"Civil Rights, Democracy, & Amendment 2" The following text is from an educational pamphlet produced by the Denver chapter of the Gay & Lesbian Alliance Against Defamation. It is designed in a Q&A format for the general public and addresses the constitutional questions raised by Amendment 2, presenting them against a backdrop of anti- discrimination law and civil rights history. ======================================= CIVIL RIGHTS, DEMOCRACY, & AMENDMENT 2 Copyright 1993 GLAAD/Denver The Gay & Lesbian Alliance Against Defamation of Denver First Printing: October 1993 Internet Edition: December 1993 Permission is granted to copy and disseminate this material in any form provided that no unauthorized revisions to text are made and proper credit is given to GLAAD/Denver. Printed copies of this pamphlet are available for 50 cents each (plus $1 shipping and handling) from GLAAD/Denver, Post Office Box 480662, Denver, Colorado, 80248-0662. (Please inquire about educational and bulk discounts.) ======================================= INTRODUCTION Amendment 2. Why should 96 words cause such a stir? When a law is passed that challenges our nation's fundamental principles, our system of government is tested. At its root, the debate over Amendment 2 is one that has defined our national character since 1776: How does a democratic system of government respond to the will of the majority while safeguarding the rights of the minority? For most Americans, enjoying civil liberties is as natural and as unnoticed as breathing: speaking your mind, associating with friends, and worshipping as you choose are some of the political privileges we often take for granted. But when your views are unpopular, your friends despised, or your religion misunderstood, the laws allowing you to exercise these civil rights suddenly become more important. Amendment 2 is one example of when the democratically expressed "will of the people" collides with the checks and balances of our constitutional system -- a system in which the civil rights of any citizen cannot easily be restricted or taken away, even by a majority of voters. Amendment 2 provides an excellent opportunity to observe first-hand the wisdom of our nation's founders in action. We hope the information in this pamphlet will help introduce to you the basic legal concepts, historical background, and other information necessary to understand and follow what you see, hear, and read about Amendment 2. ======================================= PART I CIVIL RIGHTS / CIVIL WRONGS: The Importance of Civil Liberties Not all Americans enjoy the freedoms of our nation. At one time "all men are created equal" did not include African- Americans and women. Slavery was legal in colonial America and the U.S. Constitution specifically denied blacks their equality, citizenship, and rights. And women had to wait until 1920 before they gained the right to vote. Despite these injustices, the founders of our country were concerned about human rights and civil liberties, so much so, that they delayed approving the U.S. Constitution until a Bill of Rights (the first ten amendments) was added. The Bill of Rights defines fundamental civil rights guaranteed to all citizens. The American experience with slavery and decades of official racial segregation fueled the modern-day civil rights movement, which began in the late 1940s. This movement focused on eradicating racial discrimination and legal barriers preventing people of color from exercising their fundamental rights. The 1964 and 1968 Civil Rights Acts are major achievements of the civil rights movement. The desire for freedom and equality is alive in other movements working to remove discriminatory barriers: The women's rights movement of the 1970s (which added "sex" to the 1964 Civil Rights Act); the disability rights movement of the 1980s (which produced the 1991 Americans with Disabilities Act); and the current lesbian and gay rights movement. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ My belief has always been....that wherever in this land any individual's constitutional rights are being unjustly denied, it is the obligation of the federal government -- at point of bayonet if necessary -- to restore that individual's constitutional rights. Ronald Reagan, 1983 U.S. President ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ What are civil rights? Civil rights are fundamental rights guaranteed by the Constitution of the United States, state constitutions, and other laws. The U.S. Constitution is the supreme law of the land and its civil rights protections cannot be violated without a legitimate reason. It is unconstitutional for any state to pass laws interfering with the exercise of these rights. What is discrimination? The American principle of "life, liberty, and the pursuit of happiness" holds that people should have an equal opportunity to live, compete, and succeed based on their individual abilities, without being held back by irrelevant personal traits. For many reasons, our society has yet to completely live up to that ideal. Civil rights laws protect citizens against unfair and unequal treatment in the basic necessities of life (employment, housing, and public accommodations) when that treatment is based solely on irrelevant traits. Some protected characteristics, like race and gender, are immutable (incapable of being changed). Others, like religion and political affiliation, are chosen and can be changed. What categories are protected by anti-discrimination laws? Federal civil rights laws identify seven categories that are protected nationally from discrimination: race, sex, national origin, religion, age, disability, and veteran's status. The 1964 Civil Rights Act prohibits discrimination in employment and public accommodations (lodging, restaurants, medical facilities, and other public services). The 1968 Civil Rights Act extends these guarantees to housing and real estate. If federal law prohibits discrimination, why are state and local ordinances needed? While similar to federal civil rights laws, state and local anti-discrimination ordinances often include other categories not protected at the national level (marital status, political affiliation, and sexual orientation, for example) to address the needs of their communities. Many of the categories protected by federal laws were first protected by cities, states, and other government agencies. Do anti-discrimination laws protect only people of color? No. Anti-discrimination protections are for all citizens. Because racial minorities have been the main targets of discrimination does not mean that civil rights protections are for people of color only. The category of "race" protects whites as well as people of color, just as the category of "sexual orientation" protects heterosexuals as well as homosexuals. Are civil rights protections only for people who are economically disadvantaged? No. Civil rights protections are not based on economic status and do not stop once someone reaches a certain income level. Being denied a job, an apartment, or public services because of your sex, race, religion, age, or other irrelevant traits can happen to you whether you are rich or poor. What is affirmative action? Affirmative action programs aim to provide increased employment opportunities for women and people of color in order to overcome past patterns of discrimination. Affirmative action is a temporary remedy, not a right. There have never been affirmative action programs for sexual orientation or for any protected categories other than gender and race. Don't anti-discrimination laws automatically lead to quotas? No. Hiring quotas were declared unconstitutional in 1978 by the United States Supreme Court. Do anti-discrimination laws restrict an employer's ability to manage their employees? No. An employer has every right to dismiss an employee who is not doing his or her job. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Law[s] exist for the purpose of establishing justice. ...An unjust law is a code that a numerical or powerful majority compels a minority to obey, but does not make binding on itself. Martin Luther King, Jr. Civil Rights Leader Letter from the Birmingham Jail, 1963 ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ======================================= AMENDMENT 2: The Basics On November 3, 1992, Colorado voters approved, by 53.6 percent to 46.4 percent, a ballot initiative known as "Amendment 2." The initiative amended the Constitution of the State of Colorado by adding a new section -- 30(b) -- to Article II (the state's Bill of Rights). The wording of the amendment reads: 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. What does Amendment 2 do? Amendment 2 specifically excludes lesbians, bisexuals, and gay men from existing state and local laws prohibiting discrimination in employment, housing, and public accommodations based on sexual orientation. Amendment 2 forbids all state and local government from taking action to remedy discrimination against lesbians, bisexuals, and gay men. What state and local laws are invalidated by Amendment 2? The cities of Aspen, Boulder, Crested Butte, Denver, and Telluride have ordinances prohibiting discrimination in employment, housing, and public accommodations based on sexual orientation. A governor's executive order protects employees in state government. A legislative statute prohibits sexual orientation discrimination in health insurance coverage. And three state universities and one school district include sexual orientation in their anti- discrimination policies. Under Amendment 2, all of these laws and policies will be invalid for anyone who isn't heterosexual. What is sexual orientation? Everyone has a sexual orientation; it's basic to human sexuality. Generally, psychologists define sexual orientation as one or more of the following: 1) a physical attraction to and desire to share sexual intimacy with partners of a particular gender; 2) an emotional attraction to and desire to share emotional intimacy with partners of a particular gender; 3) personally identifying oneself as a heterosexual, lesbian, bisexual, or gay; 4) establishing a public identity based on your sexual orientation; and 5) identifying with a community defined by its sexual orientation. What does "minority status" mean? "Minority status" is a term with no clear legal meaning. Supporters of Amendment 2 use it to suggest that civil rights laws give privileges to minority groups. This is not true. What is a "protected status"? "Protected status" is a legal term given to a group that has been the target of a pattern of discrimination. Race, gender, and religion are three examples of protected statuses. Supporters of Amendment 2 use "protected status" to suggest that lesbians, bisexuals, and gay men would receive benefits denied to others. This is not true. What are "quota preferences"? Under very specific and strict legal circumstances, numerical guidelines may be set to correct a pattern of under- representation of a certain group at a particular work place (such as the number of women on a police force). Quota preferences have only been used for the protected categories of race, gender, and age -- never for sexual orientation. What is a "claim of discrimination"? A claim of discrimination is a legal action in which a person claims to have suffered unfair and unequal treatment because of his or her membership in a protected class or group. Amendment 2 prohibits all branches of Colorado government (including its courts) from responding to claims of discrimination by lesbians, bisexuals, or gay men. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ The Constitution says that all men are created equal. It doesn't say that all men are created equal except for gays. Like everyone else who is born in this country, gays are endowed by their creator, God, with inalienable rights, and among those are life, liberty, and the pursuit of happiness. Barry Goldwater, 1993 1964 Republican presidential candidate ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Have homosexuals really been discriminated against because of their sexual orientation? Yes. Lesbians, bisexuals, and gay men (as well as heterosexuals who are perceived to be homosexual or bisexual) face job discrimination, on-the-job harassment, denial of housing, and lack of access to public accommodations solely because of their sexual orientation. Many try to avoid discrimination (as well as harassment, intimidation, and assault) by hiding their sexual orientation (remaining "in the closet" or pretending to be straight). Because Amendment 2 removes legal remedies for lesbians, bisexuals, and gay men, Amendment 2 permits open discrimination against them. But don't homosexuals already have the same rights as everybody else? No. If they did, anti-discrimination laws wouldn't be needed. Amendment 2 creates unequal rights by leaving existing protections intact for heterosexuals while specifically removing them for lesbians, bisexuals, and gay men. What is meant by "special rights"? The phrase "special rights" is used by supporters of Amendment 2 to imply that anti-discrimination laws give minorities additional rights over and above those of the majority. This is not true. Anti-discrimination laws guarantee fair and equal treatment for all citizens. "Special rights" does not appear in Amendment 2 and has no agreed upon legal meaning. There is nothing "special" about equal rights. Are homosexuals asking for special treatment? No. Lesbians, bisexuals, and gay men want to be treated equally. Anti-discrimination laws protecting sexual orientation state that no one (whether they are heterosexual, bisexual, or homosexual) should lose his or her job, be evicted from an apartment, or be refused public accommodations because of their sexual orientation. That's equal, not special treatment. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Freedom is an indivisible word. If we want to enjoy it, and fight for it, we must be prepared to extend it to everyone... The Constitution does not provide for first and second class citizens. Wendel Willkie, 1943 1944 Republican presidential candidate ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ======================================= OUR CONSTITUTIONAL SAFEGUARD: A Separation of Power Who rules? Is the "will of the people" the final say in our democracy? If the power to govern ourselves rests with "We the People," then why all the fuss over Amendment 2? In a pure democracy, the majority rules all the time. Our nation, however, is a constitutional democracy. The basic freedoms and structure of our government are found in the U.S. Constitution which places limits on what the majority (and their representatives) can and cannot do. The Constitution separates power into three governmental branches -- executive, legislative, and judicial -- that monitor and control each other. This system of "checks and balances" keeps each branch from abusing its power. The legislative branch creates laws. The executive branch sets policy and administers laws. The judicial branch makes sure that the legislative and executive branches act within the guidelines of the Constitution. Citizen ballot initiatives are part of the legislative branch because they are a right granted to the voters by the state legislature. Laws passed by citizen initiative can be reviewed by the judicial branch to see that they are in agreement with state and federal constitutions. If they are not, the courts have the power to rule them unconstitutional and prevent them from being enforced. "My idea of sovereignty," wrote James Madison (the author of the Bill of Rights), "is that the people can change the [U.S.] Constitution if they please; but while the Constitution exists, they must conform to its dictates." Any changes to a state constitution cannot violate the U.S. Constitution. Why are the courts involved with Amendment 2? Aren't they meddling with the will of the people? The courts do not act on their own; it takes a claim of harm or damage by a citizen for the courts to become involved. The lawsuit against Amendment 2 was filed by a group of individuals fearing personal harm if Amendment 2 is enforced. Their claims are based on the fundamental rights guaranteed by the U.S. Constitution. The courts are empowered to determine whether Amendment 2 violates any fundamental constitutional rights. What are "fundamental rights"? Fundamental rights are defined by the U.S. Constitution and take precedence over all other laws. The United States Supreme Court is the final interpreter of the Constitution's fundamental rights. Fundamental rights are cornerstones of our democracy and cannot be overruled by majority vote. Who is challenging Amendment 2? The plaintiffs challenging the constitutionality of Amendment 2 are nine Colorado citizens, the home rule cities of Aspen, Boulder, and Denver, and the Boulder Valley School District. The citizens include a Denver police officer, an ordained minister, a professional tennis player, and various city and state employees. Who is defending Amendment 2? The State of Colorado. As elected representatives, Governor Roy Romer and State Attorney General Gale Norton are listed as defendants. Why did the cities of Aspen, Boulder, and Denver join the lawsuit? Under their home rule authority, these cities passed ordinances making discrimination in housing, employment, and public accommodations illegal based on age, marital status, gender, family responsibility, disability, sexual orientation, and other criteria. Aspen, Boulder, and Denver all claim that Amendment 2 violates their home rule authority. What is "home rule" and why is it important? The Colorado Constitution recognizes that people in different areas of the state have different needs and attitudes about how to govern themselves. It permits the state legislature to grant cities "home rule" powers in order to decide their own affairs. For example, the laws set by Aspen may not be ideal for Colorado Springs, and vice-versa. Because Aspen, Boulder, and Denver are home rule cities, it is possible that Amendment 2 infringes upon their constitutionally guaranteed power to respond to the needs of their residents. Does Amendment 2 violate any fundamental rights? That is for a court of law to decide. According to the plaintiffs, Amendment 2 may violate the right of due process and equal protection under the law as guaranteed by the Fourteenth Amendment to the U.S. Constitution. It may also violate freedom of association and expression, the right to petition the government, and the separation of church and state as guaranteed by the First Amendment. ============================== THE FOURTEENTH AMENDMENT: Equal Treatment Under the Law The Fourteenth Amendment to the U.S. Constitution was adopted after the Civil War (1861-65). It gave citizenship to the newly freed slaves and extended civil rights to all citizens by stating: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added] This guarantee of "equal protection of the laws" strengthens our democratic system by ensuring that all citizens are treated equally and fairly by the government. Any state that violates this rule with regard to fundamental constitutional rights must prove that its unequal treatment of citizens is justified. ============================== How might Amendment 2 deprive homosexuals of equal protection under law? Amendment 2 prevents all branches of Colorado government from passing and enforcing laws protecting lesbians, bisexuals, and gay men from discrimination. Laws prohibiting discrimination based on sexual orientation still exist (like those in Boulder, Denver, and Aspen), but apply only to heterosexuals. Amendment 2 also prohibits the Colorado judicial system from hearing all claims of discrimination based on sexual orientation brought by lesbians, bisexuals, and gay men (this may violate the constitutional separation of powers). No other group of citizens is prevented from accessing its government in the same way. How might Amendment 2 violate the right to freedom of association and expression? Under Amendment 2, discrimination would be legal against people who are, or who are perceived to be, lesbian, bisexual, or gay. Fear of discrimination may discourage people from associating with homosexuals or working for the equal rights of homosexuals. How might Amendment 2 violate the right to petition? The right to ask (petition) the government to consider and address your complaints is guaranteed by the First Amendment to the U.S. Constitution. Under Amendment 2, no Colorado court of branch of government can assist anyone who brings a claim of discrimination based on lesbian, bisexual, or gay sexual orientation. How might Amendment 2 violate the separation of church and state? The First Amendment's "establishment clause" prohibits the government from establishing, promoting, or favoring any particular religion over another. While the wording of Amendment 2 is careful not to refer to a religious doctrine, many of its sponsors often justify the need for it by using religious arguments against homosexuality. In this way, Amendment 2 may be interpreted as promoting a religious agenda. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Tolerance implies no lack of commitment to one's own beliefs. Rather it condemns the oppression or persecution of others. John F. Kennedy, 1960 U.S. President Since when do you have to agree with people to defend them against injustice? Lillian Hellman American author ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ How can Amendment 2 be unconstitutional if a majority voted for it? Even laws supported by a majority of the voters can be unjust. For example, if Colorado voters approved citizen initiatives establishing slavery, or denying women the right to vote, those laws would be unconstitutional, no matter how many people voted for them. What is a preliminary injunction? A preliminary injunction is a court order forbidding something from taking place. It is granted only when a court finds it necessary to prevent irreversible harm to individuals or property. A preliminary injunction remains in force until the issue has been settled by the court. Why was an injunction against Amendment 2 granted? On January 15, 1993, Denver District Court Judge Jeffrey Bayless ruled that the plaintiffs would most likely be able to prove beyond a reasonable doubt that Amendment 2 deprives them of specific fundamental rights. Judge Bayless determined that the threat of anyone having their fundamental rights violated for any period of time was enough to put the enforcement of Amendment 2 on hold. He also ruled that because Amendment 2 may violate the U.S. Constitution, the state of Colorado must defend the amendment according to a standard of strict scrutiny. What is "strict scrutiny"? Strict scrutiny requires the state to prove that Amendment 2 serves a compelling (significant) governmental interest. Judge Bayless found that Amendment 2 gives power to private biases and, while the state may not be able to control private prejudices, it also could not encourage them. The law is constantly changing to meet evolving standards of decency, said Judge Bayless, and the views of today's majority may not reflect the views of tomorrow's (Boulder is an example of this -- see time line). The court ruled that the state must show a legitimate government interest in order to justify the unequal treatment created by Amendment 2. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Even a majority has its imperfections. If the winning faction becomes oblivious to the rights of the minority, a tyranny of the majority occurs. ...Greater numbers do not guarantee greater wisdom. Alex de Toqueville Political observer Democracy in America, 1820 ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ What did the Colorado Supreme Court decide? The state asked the Colorado Supreme Court to overrule Judge Bayless and allow Amendment 2 to be enforced. The supreme court ruled that the "equal protection clause" of the Fourteenth Amendment prevents states from making it more difficult for any particular group to seek laws that benefit them. By preventing Colorado's courts and government from dealing with sexual orientation discrimination, Amendment 2 improperly "fences out" a specific group of citizens from full and equal participation in the political process. Once again, the state must show a compelling reason for Amendment 2's unequal treatment. By a vote of 6 to 1, the Colorado Supreme Court agreed with Judge Bayless that fundamental rights were in danger and left the injunction in place. But doesn't preventing Amendment 2 from taking effect undermine majority rule? On the contrary, the court reaffirmed our basic principles of democracy -- majority rule, minority rights, and political debate. Although approved by a majority of state voters, Amendment 2 short-circuits our political process by making it illegal to pass laws protecting lesbians, bisexuals, and gay men from discrimination. Shutting an unpopular minority out of the political system, even if done by majority vote, is unconstitutional, according to the Colorado Supreme Court. But Amendment 2 was democratically voted upon. Why bother to vote if my vote won't count? Yet Amendment 2 makes the votes of lesbians, bisexuals, and gay men not count. Amendment 2 was passed with the clear purpose of making it more difficult for lesbians, bisexuals, and gay men to achieve legal relief from discrimination. With the exception of a state-wide vote to repeal Amendment 2, lesbians, bisexuals, and gay men are told that "you can appeal to your local government on issues of concern to you, but you will, by virtue of Amendment 2, lose." No other group is similarly treated. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ [The courts] are the guardians of rights, and we [sometimes] have to tell people things they often do not like to hear. ...[Our] role is to do what's right under the Constitution. Rose Bird, 1986 California Supreme Court Justice ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ If Amendment 2 might be unconstitutional, how did it get on the ballot in the first place? Under the Colorado Constitution, citizens are allowed to create or change laws via ballot initiatives. Colorado courts respect this right and generally do not interfere with the initiative process, even if a proposal might be unconstitutional. Who sponsored Amendment 2? Colorado for Family Values (CFV), which is based in Colorado Springs. CFV says that it is a grassroots organization, yet several members of CFV's board of directors are connected to several national organizations promoting fundamentalist Christianity, such as the Christian Coalition, Focus on the Family, the Traditional Values Coalition, Promise Keepers, Summit Ministries, and the Eagle Forum. If Amendment 2 is found to be unconstitutional, will homosexuals be protected against discrimination throughout Colorado? No. Colorado does not have a state-wide law protecting sexual orientation from discrimination. If Amendment 2 is constitutional, will lesbians, bisexuals, and gay men have any recourse if fired, evicted, or denied public accommodations due to their sexual orientation? No, not within the state of Colorado. ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ Though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable... The minority possess their equal rights, which equal laws must protect, and to violate them would be oppression. Thomas Jefferson, 1801 U.S. President ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ======================================= CONCLUSION: WHATEVER HAPPENED TO INDIVIDUALITY? Amendment 2 is not the first time a majority of Coloradans have voted to limit the rights and liberties of its minority citizens. In 1986 voters approved a ballot initiative making English the only language recognized by the state. This law was promoted, in part, by Senator MaryAnne Tebedo of Colorado Springs. (Kevin Tebedo, Senator Tebedo's son, co-founded Colorado for Family Values and helped write Amendment 2.) While English is unquestionably the dominant language of our culture and is important in securing many employment and educational opportunities, some people feel threatened by non-English speaking people. "English Only" laws are infrequently enforced and do nothing to help people learn English. Instead, they are taken by many native-language speaking people as a sign that our English-dominated culture considers them second-class citizens. Colorado's Amendment 2 and "English Only" are two laws that target groups of citizens who do not conform to what the majority thinks is "normal." ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ When we lose the right to be different, we lose the privilege to be free. Charles Evans Hughes, 1925 Supreme Court Justice No government has the right to tell its citizens when or whom to love. The only queer people are those who don't love anybody. Rita Mae Brown, 1982 American Author ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ======================================= TIMELINE: ANTI-DISCRIMINATION PROTECTION FOR SEXUAL ORIENTATION IN COLORADO December 1973 The Boulder city council adds sexual orientation and marital status to its anti-discrimination ordinance. This action is challenged and sent to the voters to decide. May 1974 Boulder voters (by a 2-to-1 margin) remove sexual orientation from their anti-discrimination law. February 1977 The Aspen city council adds sexual orientation to its anti- discrimination ordinance. This action is not challenged. November 1987 Boulder voters restore (by citizen initiative) sexual orientation to the city's anti-discrimination ordinance (50.5% to 49.5%). November 1988 Fort Collins voters reject a proposal to add sexual orientation to their anti-discrimination ordinance (57% to 43%). October 1990 The Denver city council adds sexual orientation to its anti- discrimination ordinance. This action is challenged and sent to the voters to decide. November 1990 The Colorado Human Rights Commission recommends that the State Legislature include sexual orientation in state civil rights protections. The recommendation is rejected. December 1990 Governor Romer issues an executive order protecting state employees against discrimination based on sexual orientation. April 1991 The Colorado Springs Human Rights Commission recommends that sexual orientation be included in the city's anti- discrimination ordinance. City council rejects the recommendation. May 1991 Denver voters approve city council's action (55% to 45%). June 1991 Colorado for Family Values (CFV) forms in Colorado Springs. Their goal is to amend the state constitution to repeal existing and prohibit future anti-discrimination protection for lesbians, bisexuals, and gay men. July 1991 The Equal Protection Campaign (EPOC) forms to fight CFV's proposal. June 1992 Boulder County protects county workers from discrimination based on sexual orientation. March 1992 CFV turns in the required signatures necessary to place on the next general election ballot a proposal barring any Colorado government entity from protecting sexual orientation or accepting claims of discrimination from lesbians, bisexuals, or gay men. April 1992 The Colorado Secretary of State validates the CFV petition. The proposal becomes "Amendment 2" on the November ballot. November 3, 1992 Colorado voters approve Amendment 2 (53.6% to 46.3%). November 12, 1992 Plaintiffs file a motion for a preliminary injunction to prevent Amendment 2 from becoming law on January 15, 1993. January 14, 1993 After three days of arguments, Denver District Court Judge Bayless issues a 24-hour restraining order to give himself time to evaluate the case. January 15, 1993 Judge Bayless issues a preliminary injunction prohibiting the State from enacting or enforcing it until a trial is held to determine its constitutionality. January 19, 1993 The State of Colorado appeals to the Colorado Supreme Court to invalidate the injunction order. February 1993 Voters in Telluride add sexual orientation to their anti- discrimination ordinance (76% to 24%). March 1993 The Crested Butte city council unanimously adds sexual orientation to its anti-discrimination ordinance. May 24, 1993 The Colorado Supreme Court hears arguments concerning the validity of the preliminary injunction. July 19, 1993 The Colorado Supreme Court issues a 6-to-1 decision declaring that Amendment 2 most likely violates the Fourteenth Amendment to the US Constitution. The injunction remains in effect. October 12, 1993 The constitutionality trial of Amendment 2 begins in Denver District Court. ======================================= CREDITS This pamphlet is a project of the Education Committee of GLAAD/Denver. Made possible in part by a grant from the Human Rights Campaign Project, Denver Committee. Writer/Editor: John Wilkens Graphic Design: Ryon Brame Illustration: Allison McDuffie Special thanks to the American Civil Liberties Union of Colorado, Nancy Solomon, Pat Steadman, and the Bar Associations of Colorado for providing legal source materials. Educational materials such as this are made possible by the generous support of the friends of GLAAD/Denver. If you would like to help defray the cost of this pamphlet, please send your donation payable to: GLAAD/Denver Post Office Box 480662 Denver, Colorado 80248-0662 (303) 331-2773 Additional copies of this pamphlet are available for 50 cents each (plus $1 shipping and handling) from GLAAD/Denver, Post Office Box 480662, Denver, Colorado, 80248-0662. Please let us know your thoughts about this pamphlet. How did you get a copy? Was the information helpful in understanding Amendment 2? If not, how can we improve it? Printed on recyclable paper. Please share this pamphlet with your friends, neighbors, and coworkers. ======================================= FOR MORE INFORMATION ABOUT CIVIL RIGHTS, AMENDMENT 2, OR GAY AND LESBIAN ISSUES, CONTACT THE FOLLOWING: American Civil Liberties Union of Colorado 400 Corona Denver, Colorado 80218 (303) 777-5482 Colorado Legal Initiatives Project P.O. Box 4447 Denver, Colorado 80201 (303) 830-2100 Equality Colorado P.O. Box 300476 Denver, Colorado 80203 (303) 839-5540 Gay & Lesbian Community Center of Colorado P.O. Drawer E Denver, Colorado 80218 (303) 837-1598 Human Rights Campaign Fund - Denver P.O. Box 18213 Denver, Colorado 80218 ======================================= EXCERPTS FROM THE INJUCTION DECISION DENVER DISTRICT COURT - JUDGE JEFFERY BAYLESS January 15, 1993 "The first matter of substance [in the Colorado Constitution] then that is addressed after defining the boundaries is the Bill of Rights. Now, I take that to mean that in Colorado, rights come first." "Plaintiffs argue that this Amendment deprives them of fundamental rights guaranteed by the U.S. Constitution. They do not argue that there is a fundamental right to be homosexual or bisexual or lesbian, which is found in the U.S. Constitution. Rather, they argue that the rights they are deprived of are found in the right to equal protection of the laws under the First and 14th Amendments to the U.S. Constitution." "[Amendment 2] identified a specific group and said that any discrimination as to that group because of membership in that group may not be given relief or remedy by the agencies of the state of Colorado. It has not said that the state will discriminate against homosexuals, bisexuals, or lesbians, but it has said if any private citizen does discriminate based on such orientation, that no remedy may be provided by the State. Plaintiffs argue this Amendment endorses and gives State approval as to private discrimination." "[Colorado for Family Values is] a group of Colorado citizens who wanted to present an initiative to the voters. ...They followed the political process, and they got it on the ballot. And they lobbied for or were part of a lobbying effort for the passage of the Amendment, and that involved spending money and presenting their views. There is absolutely nothing wrong with that. As a matter of fact, that is exactly in keeping with the political process that this country is based on." "Will an injunction preserve the status quo? Yes, of course. Amendment 2 has never been part of the law of Colorado. It is not now. An injunction will preserve exactly that status. ...Will the granting of a preliminary injunction serve or disserve the public interest? ...The public has no interest whatsoever in having an unconstitutional amendment be added to its Constitution. By the same token, ...the State has every interest in having a constitutional amendment become effective if it is not unconstitutional because a majority of the voters voted for it." "...The law is not static. It grows. It changes. ...and it is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice. ...[The law] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." "...A law which burdens any of these fundamental rights of this independently identifiable group will require the state now to show and have a burden that this measure is necessarily related to a compelling governmental interest." [In discussing Reitman v. Mulkey:] "The right to discriminate...was now embodied in the State's basic charter, immune from legislative, executive, or judicial regulation at any level of state government. Those practicing discriminations...could now invoke constitutional authority, free from sensor or interference of any kind from official sources. ...[This] took private discrimination and gave state support to it." [In discussing Palmore v. Sidoti:] "The Constitution cannot control [private] prejudices, ...but neither can it tolerate them. Private prejudices may be outside the reach of the law, but the law cannot directly or indirectly give them effect." "There is a fundamental right here, and it's the right not to have the State endorse and give effect to private biases." Injunction granted, 1/15/93. ======================================= EXCERPTS FROM THE COLORADO SUPREME COURT OPINION UPHOLDING THE LOWER COURT'S DECISION July 19, 1993 [In discussing Washington v. Seattle School District:] "...An issue important to a minority group was removed from consideration via the normal political process. ...Voters [had] impermissibly interfered with the political process and unlawfully burdened the efforts of minority groups to secure public benefits." "...The principle that a State may no more disadvantage any particular group by making it more difficult to enact legislation on its behalf than it may dilute any person's vote or give any group smaller representation than another of comparable size...does not apply simply to racial minorities." "The right to participate equally in the political process is clearly affected by Amendment 2, because it bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs insofar as those persons deem it beneficial to seek legislation that would protect them from discrimination based on their sexual orientation. Amendment 2 alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress form discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment." "In short, gay men, lesbians, and bisexuals are left out of the political process through the denial of having an "effective voice in the governmental affairs which substantially affect their lives." "That Amendment 2 was passed by a majority of voters through the initiative process as an expression of popular will mandates great deference. However, the facts remain that 'one's right to life, liberty, and property...and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.'" "We conclude that the Equal Protection Clause of the United States Constitution protects the fundamental right to participate equally in the political process, and that any legislation or state constitutional amendment which infringes on this right by "fencing out" an independently identifiable class of persons must be subject to strict judicial scrutiny." "A citizens's constitutional rights can hardly be infringed simply because a majority of the people choose that it be." Injunction upheld 6-1, 7/19/93. END INTERNET EDITION