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Challenge to hate-crimes law highlighted odd lawmaking process
7/9/2005, 4:41 p.m. ET
By MARK SCOLFORO
The Associated Press
HARRISBURG, Pa. (AP) — After the Legislature extended Pennsylvania's hate-crimes law three years ago to include malicious acts based on sexual orientation or gender identity, the president of the American Family Association of Pennsylvania sued to overturn it.
In Diane O. Gramley's view, the way the General Assembly pushed the law through violated how the state constitution says laws must be passed and deprived her of the right to petition the government.
The legal challenge bore similarity to the approach taken by the coalition of gambling opponents that wanted to have the slot-machine legislation overturned. But neither lawsuit was successful.
The gambling law was largely upheld last month. On Thursday, Commonwealth Court sided 6-1 against Gramley and fellow plaintiff Frances A. Bevan of North Huntingdon. Bevan is with the Pennsylvania Eagle Forum, but both women sued as individuals.
The judges never got to the constitutional questions raised by the lawsuit. Rather, they decided Gramley and Bevan don't have "a substantial, direct and immediate" interest in the outcome — at least none beyond what the general public can claim — so they lack the standing to sue.
Revisions to the Ethnic Intimidation Law followed a script familiar to anyone who has watched the legislative leadership's opaque methods for handling controversial legislation.
It began in 2001 as a bill concerning agricultural vandalism and crop destruction, but when it reached the Senate that language was completely gutted. In its place was substituted an expanded definition of the offense of ethnic intimidation to include acts against "actual or perceived ... ancestry, mental or physical disability, sexual orientation, gender or gender identity."
Gramley, a 50-year-old antigay activist from Franklin, remains convinced the hate-crimes law directly affects her.
"Anyone who publicly voices opposition to those who are pushing the homosexual lifestyle, the acceptance of the homosexual lifestyle, will be directly affected. Their First Amendment rights will be infringed on," she said.
She and Bevan drew strong support from the lone dissenter, Judge Dan Pellegrini, who said all state residents will lose out if they can't challenge what they view as legislative shenanigans in a timely fashion.
"Each of us has an individual interest in ensuring that the compact under which we agree to be governed — the Pennsylvania Constitution — is followed," Pellegrini wrote.
Although a seven-judge panel considered the case, the majority opinion was unpublished, making it unusable as legal precedent in future cases.
"Why the court would not allow such a decision to become precedential suggests, frankly, some uncertainty on the part of the court," said Aaron D. Martin, the lawyer for Gramley and Bevan. "This case does present novel issues, and the state would benefit from knowing the court's opinions."
Lawyers for legislative leaders and the governor, who were among the defendants in the lawsuit, said Gramley and Bevan were trying to use the courts to accomplish policy changes they could not achieve in the General Assembly. Giving them standing to sue would open floodgates of litigation over all kinds of legislation, they predicted.
"Petitioners simply do not like the law, and attempt, through this litigation, to play the roles of 'super-legislators' in its undoing," lawyers for House Speaker John M. Perzel, R-Philadelphia, wrote in a brief.
Recent cases challenging the Legislature's practice of playing fast and loose with its constitutional requirements have yielded mixed results.
In November 2003 the state Supreme Court invalidated a law that gave Republicans control of the Pennsylvania Convention Center because it violated the state constitution's single-subject requirement for legislation.
But in his opinion upholding most of the gambling law, Chief Justice Ralph Cappy said the court approaches such separation-of-powers matters "with trepidation." He said the law met constitutional muster because most of it shared a "single unifying subject" — gambling.
Gramley has not decided whether to appeal.
Mark Scolforo covers the State Capitol for The Associated Press in Harrisburg. He can be reached at mscolforo(at)ap.org