BRIA 12 4 c Should Homosexuals Have the Right to Laws Protecting Them From Discrimination?

A number of religious organizations and others grew concerned that the laws and policies protecting gays and lesbians from discrimination seemed to legitimize homosexual conduct and threaten the idea of the traditional family. These concerned citizens formed a group called Colorado for Family Values, which led an effort to do away with the protection of homosexuals in all antidiscrimination laws and policies in the state.

Colorado for Family Values adopted a unique way to achieve its goal. It helped put before the voters a state constitutional amendment with two major provisions. First, it would repeal all sections in existing city and statewide laws and policies that specifically protected gay people from discrimination. Second, and more importantly, the amendment would stop all branches of Colorado state and local government from enacting or enforcing any such measures in the future. [See box for wording of the amendment.]

On November 3, 1993, Colorado voters approved the ballot measure (called Amendment 2) by 53.4 percent to 46.6 percent. Opponents quickly challenged Amendment 2 in court as being in violation of the equal protection clause of the U.S. Constitution's 14th Amendment, which says: "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

The Colorado Supreme Court agreed that the ballot measure violated the equal protection clause. The court stated that the voter-approved amendment denied gay people their "right to participate in the political process." In the spring of 1995, Colorado Attorney General Gale Norton decided to appeal the ruling to the U.S. Supreme Court in a case called Romer v. Evans. (Romer is the governor of the state of Colorado. He opposed Amendment 2, but was named as a party to the lawsuit along with the attorney general and the state of Colorado. Evans is one of the several parties who sued to stop Amendment 2.)

Before the U.S. Supreme Court hears oral arguments in a case, each side must submit a written "brief," which is a document presenting legal arguments and court precedents backing them up. In this case, the court also received several amicus curiae, or friend of court, briefs, from organizations interested in the appeal. The two sections that follow summarize the main legal arguments from the briefs filed in the Romer v. Evans case.

Arguments by the Attorney General of Colorado

The state of Colorado made the following arguments in favor of the constitutionality of Amendment 2:

Amendment 2 does not treat gay persons unequally. In fact, Amendment 2 only eliminates laws and policies that gave gays and lesbians a "special right" to be protected from discrimination. This is not a violation of the equal protection clause of the U.S. Constitution's 14th Amendment.


No Protected Status Based on Homosexual,
Lesbian or Bisexual Orientation

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities, or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any persons or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.

Racial minorities, women, and certain other groups that historically have been victimized by discrimination may need special protection by the law. But homosexuals as a group have not suffered widespread mistreatment in Colorado. Generally, gay people are better educated, wealthier, and more politically organized than most other segments of Colorado's population.

Amendment 2 does not take away any fundamental right from gays and lesbians. They, like other Coloradans, can continue to form political organizations, run for office, and vote. They can even try to get laws banning discrimination against gay people, but only by adoption by the people of constitutional amendments. Amendment 2, passed by a majority of the voters, only takes the

power to create "special rights" for homosexuals away from elected and appointed officials and places that power directly in the hands of the citizens themselves.

The state of Colorado has several legitimate purposes for Amendment 2's prohibition against any laws and policies that protected homosexuals from acts of discrimination. They are:

Purpose #1: Amendment 2 reserves the state's antidiscrimination efforts for minorities that really need protection.

Purpose #2: Amendment 2 does away with laws and policies that forced landlords, employers, and churches with sincere objections to homosexuality to have to associate with gay persons.

Purpose #3: Amendment 2 requires civil rights laws to be the same in all parts of the state thus making enforcement of them more efficient.

Purpose #4: Amendment 2 is necessary to end the deep division in the state over the issue of homosexuality brought on by laws and policies granting gays and lesbians special protections in the law.

Purpose #5: Amendment 2 promotes traditional moral and family values by eliminating special legal protections for those practicing the gay lifestyle.

Arguments by the Respondents

The respondents, those opposed to the constitutionality of Amendment 2, made the following arguments:

The voter-approved amendment singles out gays and lesbians and intentionally denies them their right to utilize regular political institutions like city councils to get laws and policies protecting gay persons from discrimination.

Amendment 2 is nothing more than a cover to deny equal rights to a politically unpopular group. Therefore, the amendment clearly violates the 14th Amendment's equal protection clause.

It simply is not true that gay persons have not been the target of widespread hostility and discrimination. National studies show that homosexuals are the victims of more hate crimes today than any other minority. Also, in some major Colorado cities, there is a long record of police harassment against gay people.

Amendment 2 is too broad and sweeping. All antidiscrimination protections for gays and lesbians are swept away including those that are currently part of police regulations, university non-discrimination policies, state employee firing rules, canons of conduct for lawyers, and regulations of the insurance industry.

The state of Colorado has alleged five purposes for Amendment 2. None are constitutionally legitimate. We rebut them as follows:

Rebuttal to Purpose #1: Colorado claims gay people do not need special protection. But the gay minority, like racial minorities and women, have all suffered from discrimination and deserve the protection of the law.

Rebuttal to Purpose #2: Colorado claims that Amendment 2 did away with laws that harmed people who object to homosexuality. There is no evidence that the city ordinances and state policies protecting gay people from discrimination harmed non-gay persons in any way.

Rebuttal to Purpose #3: While Colorado claims Amendment 2 establishes uniform state-wide civil rights laws, the amendment actually wiped out certain state employment antidiscrimination provisions that applied to gay people.

Rebuttal to Purpose #4: Colorado claims that laws protecting gay people cause too much division among the citizens. This is nonsense. Political conflict and competition are at the core of our democracy.

Rebuttal to Purpose #5: Colorado claims that Amendment 2 eliminates laws that endorse the gay lifestyle. But these laws did not endorse the gay lifestyle: They only attempt to stop discrimination based on sexual orientation.

Since Amendment 2 has no legitimate purpose and is plainly aimed at harming the gay minority of Colorado, it violates the equal protection clause.

For Discussion and Writing

  1. What type of laws did Colorado gay activists work to enact in the 1980s?
  2. What did Colorado Amendment 2 attempt to do?
  3. Do you think gay people should have the right to laws protecting them from discrimination? Why or why not?

For Further Reading

The National Journal of Sexual Orientation Law: This web site contains links to the articles from the Romer v. Evans issue (1996, volume 2.2) of The National Journal of Sexual Orientation Law, the first on-line law journal in the country and the second devoted exclusively to legal issues affecting lesbians, gay men and bisexuals.

Sexual Orientation and the Law Research Links: This page contains numerous links to web sites about court cases, organizations, and journals dealing with legal issues and developments related to sexual orientation.


Romer v. Evans

In this activity, students will meet in groups and take on the role of the U.S. Supreme Court justices to decide the Romer v. Evans case.

QUESTION BEFORE THE COURT: Does Colorado Amendment 2 violate the equal protection clause of the 14th Amendment?

  1. The "justices" in each group should read the equal protection clause of the 14th Amendment.
  2. The groups should discuss the arguments presented in the briefs for Colorado and the respondents. Justices should pay particular attention to the purposes of Amendment 2. If Amendment 2 does not violate the equal protection clause of the 14th Amendment, the state must have a legitimate purpose (also called a "rational basis") for prohibiting laws and policies protecting gays and lesbians from acts of discrimination.
  3. One justice in each group should take notes on the opinion of the group regarding the arguments made by the state of Colorado and the respondents.
  4. After discussing all the arguments, the justices in each group should review their notes and decide the Question Before the Court above.
  5. A justice in each group should be prepared to announce the group's decision and the reasons for it. Dissenting justices should also have a chance to give their views.

Romer v. Evans

116 S.Ct. 1620 (1996)

On May 20, 1996, the U.S. Supreme Court decided by a vote of 6-3 that Amendment 2 violates the 14th Amendment's equal protection clause. Among other things, the majority held that there was no "rational basis" for "fencing out" those laws and policies that protected gay citizens from discrimination. In his majority opinion, Justice Anthony M. Kennedy wrote:

. . . the Constitution 'neither knows nor tolerates classes among citizens'. . . . Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause. . . .

In writing for the three dissenters, Justice Antonin Scalia concluded:

No principle set forth in the Constitution . . . prohibits what Colorado has done . . . . The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantial sense, but merely denies them preferential treatment.



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