Denial of Permit on the Basis of Sexual Orientation is Illegal, ACLU Says

MANASSAS, VA -- The American Civil Liberties Union of Virginia today urged the Manassas City Council not to deny a permit for a home-based massage therapy business simply because the owner is gay.  Although the City Council has approved two other home-based massage businesses in the last two years -- and rejected none -- Howard Daniel’s request has provoked an unusual degree of opposition.

“It appears that the only reason Mr. Daniel’s application is controversial is because he is gay,” said ACLU of Virginia Executive Director Kent Willis.  “City Council needs to put aside any biases it or others may have and treat Mr. Daniel’s application the same as anyone else’s.”

Daniel has substantial neighborhood support for his application, and has presented the City Council with a petition signed by 13 neighbors.  But at a public hearing on September 18, nearly two dozen people spoke against Daniel’s application, the vast majority of whom do not live in his neighborhood and would therefore be completely unaffected by the business.  After one of Daniel’s neighbors spoke in support of the permit application at the September 18 meeting, his car was defaced with anti-gay language.

The opponents at the public meeting cited such concerns as traffic, parking and preserving the residential character of the neighborhood.  However, Daniel’s business plan specifies that he will have at most one client per evening, between the hours of 6:30 and 8:30.  On the weekends, he will have no more than four clients per day, who will be scheduled one at a time and with at least 30 minutes between them.  Clients will only park in Daniel’s own driveway.

The Manassas City Council was scheduled to vote on the application the week after the public hearing.  Instead, it postponed a vote until this evening’s meeting at 5:30 p.m.

In a letter faxed to the City Council today, ACLU of Virginia Legal Director Rebecca Glenberg noted that the Supreme Court has found that discriminating against lesbians and gays without a rational basis is unconstitutional. “Mere dislike or disapproval for a particular group does not constitute a rational basis.  Nor do flimsy pretextual justifications such as those offered at the September 18 public hearing,” Glenberg wrote in the letter.

A copy of the ACLU’s letter to the Manassas City Council follows:

ACLU of Virginia
  
October 23, 2006
Via Facsimile

Mayor Douglas S. Waldron and Members of City Council
City of Manassas
9027 Center Street, Room 101
Manassas, VA 20110

Dear Mayor Waldron and Members of City Council:

 I write regarding Mr. Howard Daniel’s application for a special use permit to operate a home business, which is to come before the Council this evening.  It is my understanding that this application has stirred an unusual amount of controversy, which can only be explained by the fact that Mr. Daniel is gay.  To deny Mr. Daniel a permit on the basis of his sexual orientation would violate the Equal Protection Clause of the United States Constitution.  I therefore urge you to grant his application.

 It is my understanding that in the past three years, two applications for home based massage therapy businesses were approved without difficulty.  But at the September 18 public hearing on Mr. Daniel’s application, nearly two dozen individuals spoke against the permit, the vast majority of whom did not even live in his neighborhood.  By contrast, Mr. Daniel submitted a petition signed by thirteen neighbors representing ten households, indicating broad neighborhood support. 

 Moreover, the arguments of opponents make little sense given the business plan Mr. Daniels has submitted to city council.  He plans to have at most one client per evening, between the hours of 6:30 and 8:30.  On the weekends, he will have no more than four clients per day, who will be scheduled one at a time and with at least thirty minutes between them.  Clients will only park in Mr. Daniel’s own driveway.

 Given these restrictions, there is simply no basis for the argument that Mr. Daniel’s business will have any impact on traffic or parking, or that it will in any way change the residential character of the neighborhood.  Indeed, the impact of the business will be no greater than if Mr. Daniel frequently had friends drop by, one at a time, at reasonable hours on evenings and weekends. 

That the bulk of the opposition to Mr. Daniel comes from people who will not be remotely affected by his business, that their arguments are utterly without merit, and that after the September 18 hearing, one of Mr. Daniel’s neighbors and supporters had his car defaced with anti-gay language – all raise a strong inference that the real issue here is not Mr. Daniel’s business, but his sexual orientation. 

The Supreme Court has made clear that governmental discrimination on the basis of sexual orientation is unconstitutional unless there is some rational basis for the discrimination.  See Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996).  Mere dislike or disapproval for a particular group do not constitute a rational basis.  Nor do flimsy pretextual justifications such as those offered at the September 18 public hearing.

For these reasons, I urge you to grant Mr. Daniel’s special use application.  This would be consistent with your past treatment of such applications, and would be the right and lawful thing to do. 

Should you have any questions, please do not hesitate to contact me. Thank you for your attention to this matter.

    Sincerely,

    Rebecca K. Glenberg
    Legal Director