The Denver Post April 3, 1993, pg 4B By Howard Pankratz, Legal Affairs Writer The Colorado attorney genral yesterday asked the Colorado Supreme Court to overturn the decision by Denver District Judge Jeffrey Bayless that prevented Amendment 2 from taking effect, saying Bayless mistakenly ruled the amendment encourages discrimination against homosexuals. In a 50-minute ruling Jan. 15, Bayless said he would not permit Attorney General Gale Norton and Gov. Roy Romer to enforce the voter-approved measure beause the state's gays and lesbians had shown it might violate a crucial con- stitutional right. "There is a fundamental right here, and it is the right not to have the state endorse and give effect to private biases," Bayless said in issuing a preliminary injunction that temporarily blocked implementation of the amendment. Bayless noted governments can't control such private prejudices but "neither can it tolerate them...Private biases may be outside the reach of the law, but the law cannot directly or indirectly give them effect." Reasoning rejected Norton yesterday rejected the judge's reasoning, saying he misread the motives of Colorado voters. She also said the judge creataed a "new right" that didn't previously exist. "Coloradans did not vote for Amendment 2 to encourage discrimination against anyone," said the atatoarney general. "Polls and common sense show that Coloradans have a live-and-let-live attitude. They supported Amendment 2 because they value their indpeendence and freedom of choice, and because they don't want government telling them what to do in their private lives." Amendment 2 repeals laws that protected gays from discrimination in jobs, housing and public accommodations in Denver, Boulder and Aspen. The amendment also prohibits state and local governments from passing laws in the future that would protect gays from discrimination. The 43-page brief filed by Norton yesterday told the seven justices that every day citizens make choices regarding what they think about, and how they relate to, other Amricans. "As a state, and as a nation, it is necessary to determine the boundaries between permissible and impermissible forms of associational choices. It is absolutely clear that the vast majority of Coloradans who supported Amendment 2 did not do so out of hatred or malice towards homosexuals and bisexuals. Rather, they supported it because they did not want government to intervene and impose values on an unwilling segment of the public in this most controversial area of public debate," said the brief. The state's appeal also said Bayless' ruling erred because he found the amendment infringes on a "heretofore unknown constitutional 'right.'" "However, this new 'right'--which the lower court characterized as the right 'not to have the state endorse or give effect to private biases'--has no basis in law or sound public policy," said the state brief. The state conceded that "obviously" some "irrational prejudice" against homosexuals and bisexuals exists in society. However, not all objections to their sexual orientation are grounded in such prejudice and the "bigoted comments" or actions of a few citizens shouldn't invalidate action that in fact has a legitimate basis, the state contended. Authority issue "Amendment 2 does not even promote impermissible private bias, it merely withdraws state and local governmental authority to extend protections in this area," the brief declared. The appeal is the latest step in the legal challenge to Amendment 2. A majority of Coloradans approved the amendment on Nov. 3. Amendment 2 opponents have until May 3 to file a reply. The Supreme Court will hear oral arguments on May 24.