Date: Wed, 11 Oct 1995 23:20:26 -0600 (MDT) From: MONICA VILLALOBOS WOULD YOU LIKE TO KNOW ALL OF THE RAMIFICATIONS OF AMENDMENT 2? OVERVIEW: Amendment 2 Challenge On October 10, 1995, the United States Supreme Court will hear oral argument in the case of "Amendment 2", the anti-gay initiative passed by Colorado voters i 1992. The case is Romer v. Evans et. al., No.94-1039. In 1994, the Colorado Supreme Court upheld a lower court ruling that Amendment 2 is unconstitutional because it violates of the equal protection clause of the 14th Amendment to the U.S. Constitution. Because of this legal Challenge, Amendmetnt 2 has been enjoined from being enforced since January 15, 1993, the day it was scheduled to have gone into effect. U.S. Supreme Court review of state court decisions is optional. Amendment 2 is an amendment to Article II of the Colorado Constitution, which is the state's bill of rights. It was approvced by a 53.4% majority of Colorado voters in November, 1992. I reads as follows: 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 person 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. The amendment denies all branches and levels of government the power to remedy "any claim of discrimination" based on "homosexual, lesbian or bisexual orientation." This amendment changes the state's basic sharter to authorize discrimination against lesbians, gay men and bisexuals and immunize this doscrimination from redress at any level of government. Amendment 2 repeals portions of loval and state laws that prohibit dicrimination on the basis of sexual orientation--such as fair housing and fair employment ordinancces in Denver, Boulder, Aspen and other cities: Colorado insurance code provisions thath prohibit discrimination in underwriting practices: and Governor Roy Romer's executive order that prohibits discrimination in state employment. Amendment 2 also makes it impossible for the government to respond to existing or future discrimination that lesbians or gays my encounter. The plaintiffs in Romer v. Evans are lesbians and gay men who have sought legislation or government policies thta protect them from discrimination. For example, several of the plaintiffs are government employees who have worked for, and often secured, anti-discrimination policies in their agency. The cities of denver, Boulder and Aspen and the Boulder Valley School disstrict are also plaintiffs. Named as defendants are Governor Romer and the State of Colorado. The Colorado courts ruled tath Amendment 2 violates a fundamental right of an independtly identifuable class of persons to participate in the political process. Therefore, the courts subjected the amendment to what is known as "strict judicial scrutiny." The courts ruled Amendment 2 unconstitutional because it did not serve any compelling state interest. The Colorado Supreme Court relied upon previous U.S. Supreme Court precedents that pverturned citizen initiatives intended to stop civil rights progress. Chief among these was a 1969 case, Hunterv. Erickson, That pverturned an amendment to the Akron, Ohio, city charter which invalidated loval fair housing laws and rwquired that any future attempt to enact such laws be plavce on the ballot for voter approval. Because amendment 2 specially targets gays and lesbians and excludes them from protection while preventing them from doing anything about it, they are "fenced out" of the political process, accoring to the Colorado Supreme Court. One of the officials of Colorado for Family Values, the group that sponsored Amendment 2, testified that the purpose of the amendment was "simply to close the lid on the entire issue of [civil rights for gays] here i Colorado." The question that the State of Colorado presented to the U.S. Supreme Court in its petition for review is: Whether a popularly enacted state constitutional amendment precluding special state or local legal protections for homosexuals and bisexuals violates a fundamental right of independently identifiable, yet non-suspect, classes to seek such special protections. The issues presented to the Court in this appeal go beyond the specific legal status of gays and lesbians. Complex issues of equal protection theory could take center stage in the Court's opinion of Amendment 2. In addition to defending the Colorado Supreme Court decision, the plaintiffs will argue that Amendment 2 violates equal protection because it is not rationally related to a legitimate state purpose. Dozens of amicus curiae, or "friends of the court" briefs have been filed by various interest groups on both sides of the case. Notably absent from this list is the Clinton administration's Department of Justice. A ruling is expected sometime before June 1996. Legal observers are predicting a sharply divided court. The ruling could affirm or reverse the decision of the Colorado Supreme Court in whole or in part. It is also possible athat the case will be sent back to the Colorado state courts with instruction for further proceedings. I apologize for the length. It was my effort to clear up some (hopefully many) legal questions about the Amendment, before any further discussion. New to the list, but not to the cause Monica