The Denver Post, October 23, 1993 Law prof lashes out at Amend. 2 Fate of anti-gay rights law now in the judge's hands By Howarad Pankratz, Legal Affairs Writer As the Amendment 2 trial ended yesterday, a Duke University law professor declared the measure one of the most blatantly repressive laws ever enacted in the United States because it singles out a clearly definable group for discrimination. Jerome Culp, an expert in civil rights law, said that even during the height of discrimination against blacks in the deep South, laws there were more subtly worded than the straight-forward prejudice in the Colorado amendment aimed at homosexuals. The only other enactment in U.S. history as blatant as Amendment 2 was an 1837 Ohio measure prohibiting blacks from petitioning the Ohio Legislature, Culp said. Culp and Joe Hicks, executive director of the Southern Christian Leadership Conference of Greater Los Angeles, were the final two witnesses to testify in the eight-day trial. They were called by opponents of the amendment to offset members of several racial minorities called by the state who support Amendment 2. Following their testimony and final arguments by both sides, Denver District Judge Jeff Bayless said he does not know when he will rule on the issue or if it will be written or oral. Bayless must decide if the measure is uncon- stitutional and therefore prohibited from taking effect. Amendment 2, passed by a majority of voters last November, repeals gay rights laws in Denver, Boulder and Aspen and prohibits the passage of similar laws statewide in the future. Culp said the intent of Amendment 2 is so clear that it has the effect of stamping a scarlet mark--the "Scarlet A"--on the foreheads of Colorado homosexuals. Colorado gays and lesbians say it unconstitutionally fences them out of the political process and reduces them to second-class citizens. Hicks and Culp, who are black, testified that homosexuals should be given the same discrimination protections as racial, religious and ethnic minorities. The state argues that gays have never faced the type of discrimination endured by blacks and don't deserve the same heightened protections accorded racial and ethnic minorities. State attorneys claim, for instance, that gays are better educated, more politically astute and make more money than the average American, indicating they're far from disadvantaged. But Culp told Bayless there is a misconception that discrimination suffered by one group is identical to that suffered by another. Discrimination sustained by blacks is different from discrimination for women, he said. And discrimination directed at women may be different than that experienced by gays and lesbians. Culp said that within a group, such as blacks, discrimination may vary from place to place. During pre-integration days in the South, there were areas where blacks used the same bathrooms and water fountains as whites. But there were other places in the South where blacks and whites couldn't even use the same Bible to take an oath. Culp said that discrimination protections for homosexuals fall directly into the mainstream of the civil rights movement because they protect homosexuals from discrimination at work, in housing and in the use of public facilities, such as restaurants. The idea behind civil rights protections is to "create a country where people are judged by the content of their character" and not other external factors, said Culp. Hicks said that Amendment 2 is dangerous to the civil rights movement because it rolls back civil rights' gains by putting rights to popular vote. If the amendment is upheld and goes into effect, Hicks, warned, it would set a national precedent where the rights of minorities might well be voted on. Hicks said he has no doubt that if the civil rights of blacks had been put to a vote 30 years ago, blacks would have lost. Following the testimony, lawyers for both the opponents and state gave their closing arguments. In asking that Bayless declare the amendment unconstitutional, Jean Dubofsky, attorney for a coalition of gays, said the amendment was nothing more than a "pretext for private bias." She said that Colorado for Family Values, the organization that wrote the amendment and put it on last November's ballot, cited three key reasons for the amendment: * To protect family values * To protect children from being molested * And to make sure protections for other minorities weren't diluted by adding a new class Dubofsky said the reasons were actually "private biases". She termed the CFV;'s family values' argument an "attack on gender nonconformity." CFV leaders who testified during the trial--Will Perkins, Tony Marco and Kevin Tebedo--made it clear that the purpose of Amendment 2 was to "block a state civil rights' movement." Dubofsky said Marco even admitted he "wanted to close the lid" on the movement. But Colorado Solicitor General Tim Tymkovic said Amendment 2 had nothing to do with hatred or bias but was a decision by Coloradans to deny an interest group a special right--heightened discrimination protections. Tymkovic said the "real political agenda" of the state's gays is an attempt to gain special civil rights status now enjoyed only by a few including racial and ethnic minorities and women. To prove they deserve the heightened protection, the solicitor general said homosexuals have to prove they are powerless, have an immutable characteristic which can't be changed and have suffered a history of discrimination. Tymkovich said gays are better educated, vote more often and make more money than the average American. There is no evidence of systematic discrimination against them, he said. Finally, gays are one of the "most active and powerful poltical groups in the country." They are able to "get the ear" of their legislators, Tymkovic maintained.