With Carlisle’s anti-discrimination ordinance still on the table, there seems to be some confusion as to how exactly the policy’s legal framework functions.
Despite the apparent impression amongst some readers that Carlisle is granting itself new powers of arrest – and, some fear, persecution of those who do not approve of homosexuality – the actual text of the ordinance does not indicate such.
Rather, the policy currently under discussion in the borough is dependent on Pennsylvania’s 1955 Human Relations Act, the legal measure that first established anti-discrimination measures in the Commonwealth, and which gives municipalities the right to establish their own hearing bodies for allegations of employment and property discrimination.
“What empowers local jurisdictions, particularly home rule jurisdictions, is the act of 1955,” said Jason Landau Goodman, a legal activist who has worked on several local anti-discrimination ordinances. “The act empowers local jurisdictions to create their own human relations commissions, which can expand upon the protections already established by the state.”
On the most basic level, the borough of Carlisle is not a wholly sovereign government. Its ability to legislate, and to enforce that legislation, is granted to it by the Commonwealth of Pennsylvania.
That power is not carte blanche. The borough cannot give itself new powers of arrest, nor create criminal charges. It must clearly note, in all of its ordinances, that its actions fall under Pennsylvania’s general provision granting municipalities the right to protect “public welfare, prosperity, health and peace.”
This is the purpose of the proposed ordinance’s language deeming it “an exercise of police power of the borough for the protection of the public welfare, prosperity, health and peace of the Carlisle community.”
Such power does not grant Carlisle’s police the ability to arbitrarily arrest those who express disapproval of others.
“That’s boilerplate language that refers to the general power of the borough to enforce codes under state law,” said Carlisle Councilman Sean Crampsie. “It’s the same power that gives us the ability to cite a citizen who doesn’t cut their grass or doesn’t bag their garbage. You’re not going to get arrested for discrimination. That’s not what ‘police power’ means in this instance.”
That power is also limited to a narrow definition of discrimination. Actionable discrimination is limited to the denial of “housing, employment or public accommodations” for explicit reasons of race, religion, gender, etc.
“I’ve had folks think that people are going to try to get out of parking tickets by saying they were discriminated against,” Crampsie said. “That’s not what this is. This is to adjudicate denial of employment and housing.”
The ability of municipal governments to create hearing bodies for discrimination cases – such as Carlisle proposed Human Rights Commission – is closely defined by the 1955 legislation that created the state’s own Human Relations Commission.
The Pennsylvania HRC is empowered, by the 1955 law, to hear and adjudicate allegations of discrimination based on a number of factors, including race, religion and gender. This power has been interpreted to include gender presentation and sexuality, although it is not explicitly stated as such.
The 1955 law also gives municipalities the ability to establish their own commissions. In many cases, those municipalities have also expanded the legal language used to explicitly include LGBTQ persons. The ability of municipalities to do this was upheld in a 2005 court decision that challenged whether or not this expansion was justified under state law, Goodman noted.
The point of having a local rights commission, pursuant to the state’s commission, is access.
“In many cases, a local commission is better equipped to handle cases at the local level. They can pass things up to the state, but the state commission, like many things, is experiencing a lack of funding and is trying to get back on its feet,” Goodman said.
Carlisle’s proposed ordinance does not specify a schedule of punishment for those found to have acted in a discriminatory manner. The goal of a commission would be mediation.
“Municipalities do have some power to fine, but it’s very limited,” Goodman said. “They can mediate cases, come up with a determination, and if the resolution is not amicable to either party, one of them can take it to court.”
The fact that the ultimate remedy would be the Cumberland County Court of Common Pleas is explicitly referenced at the end of the Carlisle ordinance, pertaining to rights of action.
Further, the stipulations being made by the state, and by the borough, already exist in some form under federal law.
Like the state, federal statutes do not explicitly mention LGBTQ people in their anti-discrimination language. But the federal Equal Employment Opportunity Commission has gone forward with such cases, declaring that sexuality and gender presentation are covered under Title VII rules against gender discrimination more generally.
Thus far, 35 municipalities in Pennsylvania have established human rights commissions that cover LGBTQ persons, as well as racial and other forms of discrimination, Goodman said. Philadelphia was the first in 1982.
“People should understand that these are not new powers,” Goodman said. “This is a mechanism that’s been used in Pennsylvania for over 30 years. Local commissions fill a void because state and federal laws don’t yet have specific language for LGBTQ issues.”