concurring and dissenting.
. In this action for breach of an employment contract, Daniel C. Miller appeals from the judgment entered on a jury verdict in favor of Donald L. DeMuth.
On appeal, Miller argues that the trial court erred in (1) allowing DeMuth to present his contract claim despite De-Muth’s judicial admission that the employment agreement expired before Miller’s termination; (2) enforcing the contingent note payable clause because it was either a penalty clause and, thus, void as against public policy,' or an unreasonably restrictive covenant; and (3) using its police powers to enforce a contractual agreement penalizing Miller because he is a homosexual. I agree with the conclusion of my colleagues that Miller’s first two arguments are without merit for the reasons given in Judge Popovich’s Opinion. However, as to the resolution of Miller’s third argument, I must respectfully dissent. In my judgment, court enforcement of the contingent note payable clause, which was triggered by the operation of a *461facially discriminatory termination provision, would violate the Equal Protection Clause of the United States Constitution.
The facts of the case are as follows. In 1985, DeMuth employed Miller at his professional management consulting firm in Camp Hill, Pennsylvania. From 1986 through 1989, the parties entered into written, yearly employment contracts, each containing the following provision:
8. Contingent Note Payable. If within five years of the termination of this Agreement if the Employee terminates the Agreement or the Employer terminates the Agreement for cause, and the Employee establishes a professional management consulting or accounting firm within a 50-mile radius of any of Employer’s current or former clients, he agrees to pay the Employer 125% of the previous 12 months’ charges for each of the Employer’s clients who retain his professional management consulting or accounting services. Cause shall include, but is not limited to, ... homosexuality.
Complaint, Plaintiffs Exhibit A, at 12; R.R. at 272a. See also N.T., June 21, 1993, at 16-18.
In late September, 1990, Miller was interviewed by a television reporter in Harrisburg where he and others had gathered to voice concern over an alleged incident of anti-homosexual violence. As a result, DeMuth learned that Miller had declared that he was a homosexual. In October, 1990, he terminated Miller’s employment because of Miller’s professed homosexuality. N.T., supra, at 33-34, 36, 58, 60-61, 63, 66-67. Subsequently, DeMuth wrote to Miller’s former clients, informing them that Miller was terminated because he was a homosexual. He also suggested that they consider obtaining an HIV test if they were contemplating continued interaction with Miller.
Thereafter, Miller opened a practice and successfully solicited business from some of DeMuth’s former clients. DeMuth filed suit, seeking enforcement of the contingent note payable clause providing for liquidated damages for Miller’s alleged breach of the noncompetition clause. Following trial, the jury *462rendered a verdict for DeMuth, upon which judgment was entered. Miller filed post-trial motions seeking, among other things, entry of judgment notwithstanding the verdict. His post-trial motions, in relevant part, were denied, and this appeal followed.
Miller contends that the court’s enforcement of the disputed contractual provision constituted state action for constitutional purposes, whereby his right to equal protection of the laws, guaranteed under the Fourteenth Amendment of the United States Constitution, was violated. For the reasons set forth below, I agree.
The Fourteenth Amendment, in pertinent part, provides:
No State shall ... deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const, amend. XIV, § 1. Because “[t]hat Amendment erects no shield against merely private conduct, however discriminatory or wrongful,” Shelley v. Kraemer, 334 U.S. 1, 20, 68 S.Ct. 836, 842, 92 L.Ed. 1161, 1180 (1948), it must first be determined whether there was state action in the present case.
It is well-settled that judicial enforcement of private contracts, where such enforcement furthers private discrimination, constitutes state action and may result in a denial of equal protection. Shelley, supra; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Fleming v. Mack Trucks, Inc., 505 F.Supp. 169, 171 n. 4 (E.D.Pa.1981). This form of state action is found, not in cases “in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit[,] but “[r]ather, [in] cases in which the States have made available to such individuals the full coercive power of government to deny” another equal protection of the laws. Shelley, supra, at 31, 68 S.Ct. at 845, 92 L.Ed. at 1183.
In Shelley, property owners asked the Court to enforce a racially restrictive covenant. The Court found that, while private, consensual adherence to discriminatory covenants would not implicate the Fourteenth Amendment, state action *463within the meaning of the Fourteenth Amendment is present where the purposes of those agreements can be secured only by state court enforcement. The Shelley Court then held that the state, through court enforcement of the discriminatory covenant, had denied the petitioners equal protection of the laws.
Since that decision, courts have found Shelley’s interpretation of state action applicable in cases not involving racial classifications. See Abood, v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (enforcement of union-shop agreement); Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960) (determining right to occupancy of religious cathedral); Casa Marie, Inc. v. Superior Ct. of Puerto Rico, 988 F.2d 252 (1st Cir.1993) (challenge by elderly and disabled to zoning ordinances and restrictive covenant); United States v. Wilson, 922 F.2d 1336 (7th Cir.) (enforcement of plea bargain coerced by third party), cert. denied, 502 U.S. 850, 112 S.Ct. 155, 116 L.Ed.2d 120 (1991); Ahmad v. Wigen, 726 F.Supp. 389 (E.D.N.Y.1989) (enforcement of extradition orders to countries where repression may occur), aff'd, 910 F.2d 1063 (2d Cir.1990); Cosfol v. Varvoutis, 419 Pa. 28, 213 A.2d 331 (1965) (court interference in religious affairs of church).
In the present case, we are asked to enforce the liquidated damages provision of a covenant not to compete where the triggering of the covenant depended directly on the operation of a facially discriminatory termination clause. According to ¶ 8 of the Employment Agreement, the covenant was to take effect only if Miller were terminated “for cause, ... including] ... homosexuality.” The operation of the damages provision, set forth in the same paragraph, cannot, on the facts of this case, realistically be separated from DeMuth’s discriminatory termination of Miller. Cf. Woodward v. United States, 871 F.2d 1068, 1073 (Fed.Cir.1989) (argument that discharge of a Naval reserve would have occurred absent his homosexuality “fail[ed] to take into account that [his] file would not have reached the reviewing office at all had he not been homosexual *464and admitted [to it]”), cert. denied, 494 U.S. 1003, 110 S.Ct. 1295, 108 L.Ed.2d 473 (1990).
Because DeMuth seeks court enforcement of this provision, this is not a case in which the court’s “mere acquiescence” in a private action is sought. See Flagg Bros. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185, 198 (1978). Nor is this a case in which an injured party has asked the court to obstruct private discrimination. Rather, we are presented with the unusual circumstance in which the party wishing to discriminate seeks the court’s aid in furthering and, indeed, profiting from his discriminatory plan. This case, like Shelley, is one in which the private “injury caused is aggravated in a unique way by the incidents of governmental authority....” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 622, 111 S.Ct. 2077, 2083, 114 L.Ed.2d 660, 674 (1991) (interpreting Shelley).
In addition, it is of no moment that Miller entered into a contract containing the disputed provision. Such was also the case in Barrows, supra. In Barrows, property owners sought to enforce a racially restrictive covenant against another property owner who had initially agreed to adhere to the covenant, but who later wished to sell the property despite it. The Court found that
voluntary adherence [to a covenant] would constitute individual action only. When, however, the parties cease to rely upon voluntary action to carry out the covenant and the State is asked to [enforce] the covenant, the first question that arises is whether a court’s awarding damages constitutes state action under the Fourteenth Amendment.
Barrows, supra, at 253-54, 73 S.Ct. at 1033, 97 L.Ed. at 1594. The Barrows Court concluded that the state court’s enforcement of the covenant did constitute state action because, with court enforcement, “it becomes not [the owner’s] voluntary choice but the State’s choice that she observe her covenant or suffer damages.” Id. at 254, 73 S.Ct. at 1034, 97 L.Ed. at 1594. Similarly, in the present case, “but for the active intervention of the state courts,” Miller would be free to *465operate his business without paying damages. See Shelley, supra, at 30, 68 S.Ct. at 845, 92 L.Ed. at 1183.
Accordingly, pursuant to Shelley and Barrows, judicial enforcement of the damages provision against Miller, where the provision’s operation resulted directly from DeMuth’s discriminatory act, constitutes state action for constitutional purposes. Therefore, Miller’s claim that his rights under the Equal Protection Clause have been violated must be addressed.
In analyzing this claim, it is necessary, initially, to determine the appropriate level of scrutiny to be applied to the challenged classification. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Generally, a challenged classification is presumed to be valid and need only be rationally related to a legitimate end. Id. However, that presumption gives way when a classification is considered suspect or quasi-suspect because it is based on factors, such as race or sex, that are seldom relevant to the achievement of any legitimate state interest. Id. Miller argues that homosexuals form a quasi-suspect class and, therefore, that the challenged classification must be subjected to heightened scrutiny. If so, the classification must be substantially related to an important governmental interest. Id.
The United States Supreme Court has never determined whether a classification based on sexual orientation is quasi-suspect. Recently, however, a federal district court, faced with such a claim, determined that classifications based on sexual orientation are, indeed, quasi-suspect. Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F.Supp. 417 (S.D.Ohio 1994) (enjoining voter-initiated amendment to city charter that would bar city from prohibiting discrimination based on sexual orientation); see also Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009, 105 S.Ct. 1373, 84 L.Ed.2d 392 (1985) (Brennan, J., joined by Marshall, J., dissenting from denial of certiorari) (employment classification based on homosexuality deserving of at least heightened scrutiny); Laurence H. Tribe, American Constitutional Law 1616 (2d ed. 1988) (“homosexuals in particular seem to satisfy *466all of the Court’s implicit criteria of suspectness”). Nevertheless, while Miller’s argument is not without force, I find it unnecessary to decide whether a classification based on sexual orientation is quasi-suspect because, for the reasons set forth below, I conclude that the challenged classification fails to satisfy even the less stringent, rational-basis standard.
Generally, a non-suspect classification will not “run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, — U.S.-,-, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257, 270 (1993). However, while the classification is presumptively valid, id., “even the standard of rationality ... must find some footing in the realities of the subject addressed....” Id. at-, 113 S.Ct. at 2643, 125 L.Ed.2d at 271. It is well-established that “irrational prejudice,” “mere negative attitudes, or [unsubstantiated] fear ... are not permissible bases for [differential] treatment.” Cleburne, supra, at 448-50, 105 S.Ct. at 3259-60, 87 L.Ed.2d at 325-27 (finding classification based on mental retardation irrational); see also Able v. United States, 863 F.Supp. 112 (E.D.N.Y.1994) (military policy of discharging homosexuals, if based on prejudice, is irrational). Therefore, if the classification based on sexual orientation in the present case is founded on prejudice or unsubstantiated fear, it cannot be enforced without violating the Equal Protection Clause of the Fourteenth Amendment. See also United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782, 788 (1973) (finding discrimination aimed at hippies irrational and concluding that, if “the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest”).
Recently, the Ninth Circuit Court of Appeals, in Meinhold v. United States Dep’t of Defense, 34 F.3d 1469 (9th Cir.1994), considered a similar claim when faced with an equal protection challenge by Keith Meinhold to his Naval discharge because of his status as a homosexual. Meinhold, who had served sue*467cessfully as an enlisted member of the United States Navy for 12 years, was discharged, like Miller, after a television acknowledgment that he was gay. Meinhold was not accused of engaging in any homosexual conduct that interfered with his service. Although recognizing that military decisions are entitled to great deference, the court nevertheless concluded that the policy of discharge, to the extent that it rested solely on the status of homosexuality, was without rational basis. Accordingly, it affirmed summary judgment for Meinhold. See also Dahl v. Secretary of the United States Navy, 830 F.Supp. 1319, 1337 (E.D.Cal.1993) (construing Cleburne and Heller to find Navy’s discharge of Dahl for homosexual status was based on illegitimate prejudice and was, therefore, irrational as a matter of law); Cammermeyer v. Aspin, 850 F.Supp. 910, 929 (W.D.Wash.1994) (Army nurse discharged for homosexual status entitled to judgment as a matter of law on equal protection claim because a policy, whether “founded on unsubstantiated fears, cultural myths, stereotypes or erroneous assumptions, cannot be the basis for a discriminatory classification”).
The present case does not implicate a similar policy of special deference. Here, DeMuth conceded at trial that he terminated Miller’s employment because of his homosexuality. N.T., supra, at 33-34, 36, 58, 60-61, 63, 66-67. As in Meinhold, Dahl and Cammermeyer, there were no allegations that Miller engaged in homosexual conduct in the course of his employment. Miller’s discharge, like those described above, was based on Miller’s acknowledged status as a homosexual. This reveals precisely the kind of action based on prejudice that was rejected as irrational in the above-cited cases. See also Cleburne, supra, 473 U.S. 432, 105 S.Ct. 3249; Moreno, supra, 413 U.S. 528, 93 S.Ct. 2821.
Moreover, in Equality Foundation of Greater Cincinnati, Inc., supra, 860 F.Supp. 417, a federal district court in Ohio enjoined a voter-initiated amendment to the Cincinnati Charter, which would have barred the city from enacting legislation protecting homosexuals from discrimination based on sexual orientation. The court, considering an equal protection challenge, found that
*468sexual orientation, whether hetero- homo-, or bisexual, bears no relation whatsoever to an individual’s ability to perform, or to participate in, or contribute to, society. Indeed the American Psychological Association has so concluded____ If homosexuals were afflicted with some sort of impediment to their ability to perform and to contribute to society, the entire phenomenon of “staying in the Closet” and of “coming out” would not exist; their impediment would betray their status.
Id. at 437 (citation omitted). Although that court concluded that homosexuals constitute a quasi-suspect class, it nevertheless found that the challenged classification could not survive rational-basis scrutiny.
In the present case, DeMuth acknowledged that Miller was capably performing his job prior to discharge. N.T., supra, at 46-49, 64. In fact, DeMuth admitted that Miller was on the partnership track. Id. at 57. Miller’s homosexuality did not affect his ability to work for DeMuth, and the decision to terminate him is not justified by nondiscriminatory reasons that are unrelated to Miller’s homosexuality. Thus, court enforcement of DeMuth’s actions, “far from demonstrating governmental neutrality on the issue of homosexuality, [would give] effect to private prejudice.” Equality Foundation, 860 F.Supp. at 444, citing Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). See also Dahl, supra 830 F.Supp. 1319 (concluding that both plaintiffs and defendant’s evidence showed discharge decision not based on inability to perform work and finding military policy irrational).
DeMuth also claimed that he feared others’ prejudice toward Miller and that this concern provided a legitimate basis for his actions. N.T., supra, at 60. However, fear of prejudice cannot justify court advancement of DeMuth’s actions. A similar justification for court involvement was rejected in Palmore, supra. There, the Court overturned the denial of child custody to a natural mother based on the mother’s biracial remarriage. The Court rejected the argument that the award of custody was improper in light of the societal pressures the child would face. Relying upon Shelley, supra *469334 U.S. 1, 68 S.Ct. 836 the Court first concluded that judicial action in awarding custody was a form of state action. It theri determined that society’s negative reaction to the child’s being raised within a biracial marriage did not legitimate the custody denial. The Court concluded that, while “[t]he Constitution cannot control such prejudices!,] ... neither can it tolerate them.” Palmore, supra, at 433, 104 S.Ct. at 1882, 80 L.Ed.2d at 426. See also Dahl, supra (interpreting Palmore and rejecting argument that heterosexual dislike and fear of homosexuals was a rational basis for the military’s exclusionary policy); Blew v. Verta, 420 Pa.Super. 528, 617 A.2d 31 (1992) (concern over negative societal reactions could not justify a court’s custody restrictions placed on lesbian parent).
Similarly, while DeMuth’s “[p]rivate biases may be outside the reach of the law, ... the law cannot, directly or indirectly, give them effect.” Palmore, supra, at 433, 104 S.Ct. at 1882, 80 L.Ed.2d at 426; accord Cleburne, supra, at 448, 105 S.Ct. at 3259, 87 L.Ed.2d at 326; Equality Foundation, supra, at 441. Notably, the impetus for this case was Miller’s success in acquiring the business of DeMuth’s former clients. Thus, not only does DeMuth’s concern about client prejudice fail to justify his actions, but also reality has borne out the false nature of his concerns.
In responding to Miller’s equal protection claim, DeMuth relies on several cases in which differential treatment of homosexuals was found to be rational. See Brief for Appellee at 25-35, citing, among other cases, High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) (Department of Defense denial of security clearances); Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.1989) (Army discharge), cert. denied, 494 U.S. 1004, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990); Woodward, supra (Naval discharge); Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987) (FBI discharge). However, those cases do not militate in favor of a finding that the challenged action in the present case was rationally related to a legitimate end. In the first place, each case relied on the policy of judicial deference afforded governmental decisions implicating national security concerns, none *470of which are present here. High Tech Gays, 895 F.2d at 577; Ben-Shalom, 881 F.2d at 463-65; Woodward, 871 F.2d at 1077; Padula, 822 F.2d at 104. Moreover, the courts in Ben-Shalom, 881 F.2d at 464, Woodward, 871 F.2d at 1074 n. 6, and Padula, 822 F.2d at 102, determined that the issue presented involved prohibited homosexual conduct rather than status-based discrimination. Similarly, in Pruitt v. Cheney, 963 F.2d 1160 (9th Cir.1991), cert. denied, — U.S.-, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992), the Ninth Circuit Court of Appeals reviewed its decision in High Tech Gays and determined that it, too, “was a case relating to conduct, not orientation.” Id. at 1166 n. 5. The court proceeded to find that Pruitt, a chaplain discharged from the Army Reserve after acknowledging her homosexuality in an interview with the Los Angeles Times, had stated an equal protection claim.
Moreover, contrary to DeMuth’s assertions, see Brief of Appellee at 25-35, the decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), does not require a different result. In Hardwick, the Court upheld the constitutionality of a Georgia sodomy statute against Hard-wick’s claim that it violated his fundamental right to privacy. However, the Court specifically noted that Hardwick did “not defend the judgment below based on ... the Equal Protection Clause.” Id. at 196 n. 8, 106 S.Ct. at 2847 n. 8, 92 L.Ed.2d at 149 n, 8. Therefore, it is inapposite. See Schowengerdt v. United States, 944 F.2d 483, 490 n. 8 (9th Cir.1991) (distinguishing equal protection from substantive due process challenge to military policy), cert. denied, 503 U.S. 951, 112 S.Ct. 1514, 117 L.Ed.2d 650 (1992); Evans v. Romer, 882 P.2d 1335, 1349-50, *40-41 (Oct. 11,1994) (holding state initiative barring protection against discrimination aimed at homosexuals unconstitutional and concluding that Hardwick decision on right to privacy does not abate other rights of homosexuals); Prof. Cass Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection, 55 U.Chi.L.Rev. 1161 (1988). Further, nothing in Hardwick, which held that a state could constitutionally criminalize homosexual sodomy, suggests that a state may discrimi*471nate against or penalize an individual because of the status of sexual orientation alone. Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (state may not criminalize status of drug addiction absent prohibited acts); see also Meinhold, supra, 34 F.3d at 1476-79 (distinguishing homosexual conduct from status of sexual orientation); Equality Foundation, supra, 860 F.Supp. at 424, 426, 437-40 (same, and distinguishing Hardwick); Cammermeyer, supra, 850 F.Supp. at 918-20 (same).
In sum, because DeMuth’s termination of Miller was admittedly based on prejudice, I find that, pursuant to the reasoning of Cleburne, Equality Foundation, Meinhold and the other cases discussed above, DeMuth’s action was without a rational basis. Accordingly, the trial court, through its powers as an agent of the state, could not enforce the related liquidated damages provision without advancing an impermissible, discriminatory end and thereby offending the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
At this point, I note my disagreement with Judge Popovich’s characterization of the third issue in this case. My colleague maintains that the termination of Miller was not related only to Miller’s homosexuality, but also to his public communication of his views on television. See Opinion by Popovich, J., at 18-21. He then analyzes Miller’s claim based upon that characterization and resolves the issue against Miller. Id. However, DeMuth conceded at trial that the termination related directly to Miller’s homosexuality. N.T., supra, at 33-34, 36, 58, 60-61, 63, 66-67. Thus, the issue that Judge Popovich addresses, which is more properly framed as whether the court could enforce the disputed contract provision for a termination related to public, political speech regarding anti-homosexual violence, is not before us. But compare Van Ooteghen v. Gray, 654 F.2d 304 (5th Cir.1981) (dismissal of assistant county treasurer because of his announced intention to publicly address civil rights of homosexuals violated First Amendment), cert. denied, 455 U.S. 909, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982); Ancafora v. Board of Educ., 491 F.2d 498 *472(4th Cir.) (school teacher’s addressing homosexuality during TV appearance could not justify dismissal because speech was constitutionally protected), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1974). Moreover, as discussed above, DeMuth’s concern over others’ reactions to the television appearance cannot legitimate Miller’s termination. See Palmore, supra 466 U.S. 429, 104 S.Ct. 1879.
Lastly, I find that the trial court erred in rejecting Miller’s equal protection claim based, in part, on its inability to discern “any current legislative or societal consensus” that disdain for homosexuals is a type of bigotry. Trial Court Opinion, dated December 20, 1993, at 6. The trial court offers no authority that requires such a determination as a prerequisite to an equal protection analysis. . Indeed, this type of an inquiry would be- antithetical to the very purpose of the constitutional guarantee of equal protection of the laws to all individuals. Hence, the trial court erred in preceding its constitutional analysis with a determination of public policy. Further, the trial court’s analysis overlooks significant sources of legislative and societal consensus. Such “sources of public policy [which may limit an employer’s right of discharge] include legislation [and] administrative rules, regulation, or decision.... ” Cisco v. United Parcel Servs., Inc., 328 Pa.Super. 300, 306, 476 A.2d 1340, 1343 (1984), quoting Pierce v. Ortho Pharmaceuticals Corp., 84 N.J. 58, 417 A.2d 505, 512 (N.J.1980). Pursuant to executive order, Pennsylvania bans employment discrimination based on sexual orientation in any agency under the jurisdiction .of the governor. Pa.Exec.Order No. 1988-1 (1/20/88), reprinted in 4 Pa. Code § 1.4 (1988). In addition, many cities across the state have outlawed employment discrimination based on sexual orientation. See Pittsburgh, Pa., Code, title VI, art. 5, ch. 651 et seq. (1990); Philadelphia, Pa., Code, ch. 9-1100, § 9-1103 (1982); Harrisburg, Pa., Codified Ordinances, art. 725, § 725.06 (1983); Lancaster, Pa., Ordinance 11 (1991); York, Pa., Codified Ordinances, art. 185, § 185.02 (1992). Moreover, even if it were true that state law would not prevent DeMuth’s private discrimination based on sexual orientation, the United States Supreme Court, in Shelley, made *473clear that, when courts enforce private action, such “judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state’s common-law policy.” Shelley, supra, at 31, 68 S.Ct. at 845, 92 L.Ed. at 1184.
Based on the foregoing analysis, I would find that the trial court erred in denying Miller’s motion for judgment notwithstanding the verdict and in entering judgment in favor of DeMuth. Therefore, I would reverse the entry of judgment and direct entry of judgment notwithstanding the verdict in favor of Miller.