ACLU warns Ohio town council about discrimination against gay man who applied to join

The American Civil Liberties Union's Ohio affiliate has warned the village of Waynesville that it committed illegal discrimination by turning away a gay applicant for Village Council.

David Nation, 41, was the only applicant seeking to fill a vacancy on the council. He submitted his application weeks before the July 10 deadline the council set for applications, and remained the only applicant as the deadline passed. Still, he was not sworn in at a July 15 council meeting, where President Pro Tempore Chris Colvin announced the council would instead be interviewing four candidates: Nation and three others who had not applied but were sought out after the deadline had passed. The council ended up appointing one of those people, Lyle Anthony.

“My lack of support for David Nation in this appointment is due to his application including his résumé with core achievements focused on ‘diversity and inclusion’ and his efforts being a founding member of the [LGBTQ+] Rainbow Alliance ERG which advocates for Diversity, Equity, and Inclusion (DEI) in ‘local government, business, and educational institutions,’” Colvin said at the time.

That amounts to “flagrant discrimination” based on sexual orientation, according to the ACLU.

“The Waynesville Village Council engaged in flagrant discrimination against Mr. Nation. Excluding individuals because they are different is not only prohibited by law, but also inhibits a community’s growth and ability to thrive. We look forward to the Council’s prompt action to address this glaring constitutional violation,” Amy Gilbert, senior staff attorney for the ACLU of Ohio, said in a press release.

“Council’s conduct blatantly violates the United States Constitution which prohibits discrimination on the basis of one’s sexual orientation,” says a letter from the ACLU to the council and Mayor Earl Isaacs, sent October 7 and signed by Gilbert. “Treating individuals differently based on a protected classification triggers ‘heightened’ scrutiny under the Fourteenth Amendment and is presumptively unconstitutional. … Recognizing the seriousness of this constitutional protection, Waynesville’s own Code of Ordinances prohibits a public official from knowingly depriving, or attempting to deprive, ‘any person of a constitutional or statutory right,’” it continues.

The letter notes that the 2020 U.S. Supreme Court decision in Bostock v. Clayton County established that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans discrimination based on sexual orientation and gender identity.

Council members “attempted to rationalize their decision to vote against Mr. Nation as a matter of ‘policy concerns,’ and not because of his sexual orientation,” Gilbert writes, but this is “nothing more than pretextual.”

“Council received the signatures of 100 Waynesville residents in support of Mr. Nation,” the missive points out. “He was the only one who applied by Council’s stated deadline and was, indeed, the only applicant who was not belatedly solicited by a council member to apply. Pointing to Mr. Nation’s involvement with organizations that support DEI initiatives, when many cities and counties in Ohio, including the State itself, continue to utilize DEI efforts and policies, is nothing more than a flagrant attempt to cover up Council’s discrimination against Mr. Nation.”

“It is clear that Mr. Nation has legal avenues to redress the discrimination he suffered should he be so inclined,” Gilbert goes on “To avoid this outcome, we urge the Village of Waynesville to immediately implement a policy of non-discrimination.”

Village officials told Columbus TV station WCMH that they have “no written statement responding to the ACLU” and cited to an earlier statement saying, “At no point was any applicant not selected for any discriminatory reasons, nor is there any evidence to support such an accusation.” The village and council “consider this matter closed and will not be making any further comments or statements on this topic,” officials told the station.

They did not respond to another allegation by the ACLU — that the council violated Ohio’s open meetings law by failing to give advance notice of the July 31 meeting, at which Nation’s application was rejected and Anthony voted into the council. The ACLU has requested all the village’s public records relating to the vacancy’s filling and possible violations of the open meetings statute.