Subject: Transcripts - Colorado 2
From: James Yorton <[email-masked]>
Date: Thu, 9 Nov 1995 15:42:52 -0600 (CST)

[ Transcript of oral arguments in the Supreme Court on Colorado's
  Amendment 2, in case the QRD doesn't already have it.  -Jim ]

Roy ROMER, Governor of Colorado, et al., Petitioners
v.
Richard G. EVANS, et al.
No. 94-1039.
United States Supreme Court Official Transcript.
Oct. 10, 1995.
Washington, D.C.
The above-entitled matter came on for oral argument before the Supreme Court
of the United States at 10:02 a.m.
APPEARANCES:
TIMOTHY M. TYMKOVICH, ESQ., Solicitor General of Colorado, Denver, Colorado;
on behalf of the Petitioners.
JEAN E. DUBOFSKY, ESQ., Boulder, Colorado;  on behalf of the Respondents.
1995 WL 466395 (Reply.Brief)>>

*2 CONTENTS

ORAL ARGUMENT OF TIMOTHY M. TYMKOVICH, ESQ. On behalf of the Petitioners ...
3

ORAL ARGUMENT OF JEAN E. DUBOFSKY, ESQ. On behalf of the Respondents ... 30

REBUTTAL ARGUMENT OF TIMOTHY M. TYMKOVICH, ESQ. On behalf of the Petitioners
... 57
*3 PROCEEDINGS
(10:02 a.m.)
CHIEF JUSTICE REHNQUIST:  We'll hear argument next in Number 94-1039, Roy
Romer v. Richard G. Evans.
Mr. Tymkovich.

ORAL ARGUMENT OF TIMOTHY M. TYMKOVICH
ON BEHALF OF THE PETITIONERS

MR. TYMKOVICH:  Mr. Chief Justice and may it please the Court:
This case involves a challenge to the authority of a State to allocate
certain law-making power among its State and local governments.  Colorado's
Amendment 2 reserves to the State the decision of whether to extend special
protections under State law on the basis of homosexual or bisexual conduct or
orientation.
The sole question here is whether in this facial challenge that statewide
reservation of authority should be nullified in this Court's prior holdings
in James v. Valtierra and Hunter v. Erickson.
That question can be authoritatively resolved for two core reasons.  First,
the logic and holding of James is indistinguishable and controls here.
Secondly, the rationality of the substantive policy judgment that has so far
motivated Congress and other States in deciding not to extend title VII
protections or other--to *4 homosexuals and bisexuals similarly supports the
decision of Colorado to reserve that question to itself on a statewide basis.

QUESTION:  Well, Mr. Tymkovich--

QUESTION:  It may be, counsel, that we have to reach that question, but it
seems to me there is a predicate or a preliminary matter that we ought to
discuss at some point during your oral argument.
Usually when we have an equal protection question we measure the objective
of the legislature against the class that is adopted, against the statutory
classification.
Here, the classification seems to be adopted for its own sake.  I've never
seen a case like this.  Is there any precedent that you can cite to the Court
where we've upheld a law such as this?

MR. TYMKOVICH:  Your Honor, in James v. Valtierra the Court was presented
with a question involving a State constitutional amendment that also
identified a classification--in that case, low-income persons--and in
analyzing the question there, the Court fundamentally looked at whether
Hunter v. Erickson should extend beyond the specific racial context in which
it was decided.

QUESTION:  But the whole point in James was that *5 we knew that it was
low-income housing, and we could measure the need, the importance, the
objectives of the legislature to control low-cost housing against the
classification that was adopted.
Here, the classification is just adopted for its own sake, with reference to
all purposes of the law, so James doesn't work.

MR. TYMKOVICH:  The classification in James did involve a reference to a
specific subset of persons, an identifiable group under the theory of the
Colorado supreme court.

QUESTION:  I know it adopted a theory of a group, but it was with reference
to a specific legislative objective--low-cost housing.
Here, the classification is adopted to fence out, in the Colorado supreme
court's words, the class for all purposes, and I've never seen a statute like
that.

MR. TYMKOVICH:  Your Honor, the objective here was to resolve an issue of
whether or not to extend special protections to homosexuals and bisexuals, so
the issue resolved here--

QUESTION:  Well, Mr. Tymkovich, the language of the amendment I guess has
never been actually interpreted by the Colorado courts.

MR. TYMKOVICH:  The Colorado--
*6 QUESTION:  Has it been construed or interpreted as yet, in your view?

MR. TYMKOVICH:  Your Honor, this is a facial challenge, and the provision
was enjoined before it ever went into effect.

QUESTION:  Right.

MR. TYMKOVICH:  For bases of this appeal, the Colorado court did make an
interpretation that at least to the extent that it preempted local laws and
State provisions, that's all the farther it went.

QUESTION:  Well, does it mean that homosexuals are not covered by Colorado's
laws of general applicability?

MR. TYMKOVICH:  No, it does not.  In the--

QUESTION:  How do we know that?  I mean, the literal language would indicate
that, for example, a public library could refuse to allow books to be
borrowed by homosexuals and there would be no relief from that, apparently.

MR. TYMKOVICH:  There are a couple of reasons.  First, in the second opinion
of the Colorado supreme court, what I'll call Evans 2, the Colorado supreme
court did, in footnote 9 of that opinion, make reference to some general laws
of general applicability and found that those would not be displaced by
Amendment 2. Secondly, the--
*7 QUESTION:  Does it displace courts in Colorado?  Can a court hear a 1983
case in Colorado--

MR. TYMKOVICH:  Absolutely.

QUESTION:--dealing with discrimination--

MR. TYMKOVICH:  Yes, it may.  There--

QUESTION:--if there's a homosexual plaintiff?

MR. TYMKOVICH:  It absolutely changes no provisions under Federal law in
access to the court or vindication of one's equal protection rights, nor does
it affect the State--

QUESTION:  Well, how do we know that?  I mean, I don't read anything in the
opinion that tells me what the thing means.

MR. TYMKOVICH:  The construction that we have offered is well supported by
the legislative history and the intent of the proponents.  We think that the
law clearly on its face refers to State enactments and State policies and
does not displace any Federal law or policy.
The ballot analysis which we presented in our appendix to the petition makes
it clear that this was not intended to extend beyond State and local laws, so
it's our view that under the Supremacy Clause as well as under a plain
interpretation of the amendment, that Federal law would not be disrupted.
Moreover--

QUESTION:  Mr. Tymkovich, even focusing on State *8 law alone, Federal law
is of course supreme.

MR. TYMKOVICH:  Yes.

QUESTION:  And as Justice Kennedy pointed out, James v. Valtierra dealt with
one issue, low-cost housing.  There were dozens of other ways in which to
improve the status of the poor, to fight against the blight of poverty.
But here, it's everything--thou shalt not have access to the ordinary
legislative process for anything that will improve the condition of this
particular group--and I would like to know whether in all of U.S. history
there has been any legislation like this that earmarks a group and says, you
will not be able to appeal to your State legislature to improve your status.
You will need a constitutional change to do that.

MR. TYMKOVICH:  Your Honor, it's not unprecedented in the sense that it's a
preemptive law.  It is unusual to the extent that two strands of the law come
together, but the Court's cases have made it clear that it's appropriate to
withdraw authority over certain issues from a local level to a higher level
of State government.

QUESTION:  Mr. Tymkovich, what about laws prohibiting bigamy, or prohibiting
homosexuality, or homosexual conduct?
Incidentally, how do you interpret the bisexual *9 orientation language,
homosexual, lesbian, or bisexual orientation?  Does that require any conduct,
or is it just a disposition?

MR. TYMKOVICH:  It's unclear from this text.  However, the reason that that
language is in Amendment 2 is because this was a plain response to certain
laws that had been enacted by State and local government that used the term
bisexual, but it could include either conduct or orientation.  Again, it's
unclear how you determine--

QUESTION:  I want to know what you mean by--what is meant by--if all
orientation means is someone who engages in homosexual, lesbian, or bisexual
acts, then you have plenty of precedent in response to your question, namely
State laws that absolutely criminalize such activity--bigamy, homosexuality--

MR. TYMKOVICH:  That's right, the--

QUESTION:  Colorado has no law that prohibits consensual homosexual conduct.

MR. TYMKOVICH:  No. Colorado repealed its sodomy law in 1972, but to
answer--

QUESTION:  Well--

MR. TYMKOVICH:--Justice Scalia's question, it is unclear whether conduct
defines the class.  Many courts have so held in looking at the issue of a
classification involving--
*10 QUESTION:  Are you suggesting--

QUESTION:  You have no position on it?  You have no position on it?

MR. TYMKOVICH:  Yes. We believe that conduct is the best indicator of--

QUESTION:  Well, is it the sole indicator?  Are you representing to this
Court that Colorado's position is that the class defining characteristic is
conduct as opposed to preference or proclivity or whatnot?

MR. TYMKOVICH:  No, Your Honor, because that was immaterial to the
litigation below.
There was an attempt by the respondents to prove a suspect class--

QUESTION:  Well then we have to do one of two things.  We have to assume
that orientation means something more than conduct, or if there were a
serious question, I suppose we would have to send it back and ask the courts
of Colorado to tell us, but is there a serious question?

MR. TYMKOVICH:  I don't think that there's a serious question that--

QUESTION:  So that orientation means something more than conduct, and we
have to assume that in ruling on this challenge, don't we?

MR. TYMKOVICH:  I think that that doesn't change *11 the legal position of
the State with respect to this classification.

QUESTION:  May I go back to one point that you have made, and you've made it
more than once about the--I guess about the legal position of the State.
You've referred to the issue as the permissibility of withdrawing subject
matter from political consideration at a certain level.  You said it has been
reserved for a higher level of political action.
It seems to me that there are two things wrong with that characterization.
One of them has already been brought up, and that is, this is not merely a
reservation for this particular subject to be dealt with, for example, by
statewide referendum.  It is in fact a provision that no law may be made
addressing, or addressing for protective purposes this kind of
discrimination.
The second thing that seems to me inaccurate about the characterization
you're giving us is that this is not merely a reservation of a subject
matter.  That is not the subject of the claim.  The claim is that there is a
discrimination in the reservation of the subject matter, or a discrimination
in the provision for eligibility, or exercise of legislative power.
It seems to me that as you characterize it, it would sound like a due
process challenge, but in fact it's *12 an equal protection challenge,
because there's a discrimination involved.  Isn't that correct?

MR. TYMKOVICH:  Your Honor, there is a classification involved, but there is
no invidious discrimination.  All the fact that the law--

QUESTION:  What does invidious mean?

MR. TYMKOVICH:  I think it means an arbitrary or irrational classification,
and that is not the case here.  I think we've shown that there are reasons
for the classification.

QUESTION:  But in any case, you recognize that this is not the same problem
that might be raised if a certain subject matter, e.g., discrimination, were
reserved for legislative action at the State level rather than local level.
This is a different problem, isn't it?

MR. TYMKOVICH:  I think it's an equal protection problem, but the question
is, does it impinge on a suspect class here--

QUESTION:  Right, but it's--

MR. TYMKOVICH:--or has there been some type of fundamental--

QUESTION:--a different problem from a mere reservation of a broad spectrum
of action for political action at one level rather than another.  It's a
different problem from that, is it not?
*13 MR.  TYMKOVICH:  No, Your Honor, because of the way the lower court
has--

QUESTION:  Well, are you saying--I'm sorry.

MR. TYMKOVICH:--has characterized the fundamental right here.

QUESTION:  Well, are you saying then--maybe this is what you're saying, that
if the equal protection challenge is in fact recognized or vindicated here,
that there is no way to prevent this from in effect ballooning into a due
process challenge, that if they win this, then a different kind of claim will
also succeed, i.e., a claim that a certain subject matter, discrimination or
not, must be dealt with for purposes of Federal law at a certain level of
government?  Is that your argument?

MR. TYMKOVICH:  No, Your Honor.  We don't think--

QUESTION:  It's not a slippery slope argument.  You're not saying we go
from-- if an equal protection challenge wins here, a due process challenge
necessarily wins too.  You're not saying that.

MR. TYMKOVICH:  There's been no due process challenge in this case--

QUESTION:  But that's not what you're arguing.

MR. TYMKOVICH:--and there is--

QUESTION:  But that's not what you're arguing, *14 is that--

MR. TYMKOVICH:  That's correct.  There is a slippery--

QUESTION:  But you said the ban extends to State legislation as well as to
local legislation here.  It's not a question of who can do it, but the State
itself can't do it through the ordinary legislative process.  It will take a
constitutional change.

MR. TYMKOVICH:  Well, the initiative is the ordinary political process in
our State.  We've had many repeals in other substantive matters on our
statewide ballot.  We had four on the--four repeal measures on the ballot the
same year that Amendment 2 was enacted.

QUESTION:  Mr. Tymkovich, I was trying to think of something comparable to
this, and what occurred to me is that this political means of going at the
local level first is familiar in American politics.
In fact, it was the way that the suffragists worked.  When they were unable
to achieve the vote statewide, they did it on a cities first approach, and I
take it from what you are arguing that if there had been a referendum that
said no local ordinance can give women the vote, that that would have been
constitutional.

MR. TYMKOVICH:  No, Your Honor.  I think that that--
*15 QUESTION:  What's the difference?

MR. TYMKOVICH:--classification would be analyzed under this Court's equal
protection jurisprudence on a suspect--

QUESTION:  Well, cast your mind back to the days before the Nineteenth
Amendment.
(Laughter.)

MR. TYMKOVICH:  I think the Court would apply the traditional equal
protection analysis and--

QUESTION:  And what would have happened?

MR. TYMKOVICH:  They would have determined whether or not there was a
fundamental right to vote that had been impinged on or was--

QUESTION:  But there was no right to vote for women.

MR. TYMKOVICH:  Right, or under the Fourteenth Amendment, or whether women
were a suspect class entitled to some heightened scrutiny in the
circumstances.

QUESTION:  And if they weren't?

MR. TYMKOVICH:  If they weren't, the Court would--

QUESTION:  Then it would have been constitutional.

MR. TYMKOVICH:--enact a rational basis type of review.
*16 QUESTION:  Yes, and that's what you're urging here.

MR. TYMKOVICH:  Yes. We're urging for this classification, that the Court
engage in a rational basis type of review.
No court has found homosexual orientation or conduct to be a suspect
classification.  Therefore, the traditional equal protection model should be
applied in this case.

QUESTION:  Mr. Tymkovich, what is now required under Colorado law, assuming
that the constitutionality of this is upheld, in order to change that
provision?  It would be what, a statewide referendum?

MR. TYMKOVICH:  That's right, Your Honor.  There would be an initiative, or
a referred measure from our State legislature, and it would be placed on the
ballot in the same fashion that the Amendment 2 was placed on the ballot in
the first instance, so there would be that mere opportunity for the opponents
of Amendment 2, just like there were for the proponents.
And to further answer Justice Ginsburg's question, what the respondents here
are saying is that those who oppose certain type of special protections here
cannot get their policy preference vindicated through the legislative process
unless they are able to successfully *17 preempt or repeal such laws at the
local level.

QUESTION:  When you talk about special protection, this brings me back to an
earlier question about discrimination in libraries.  What--how do you
interpret the term, minority status quota preferences protected status?  You
mean--what does that mean?

MR. TYMKOVICH:  Protected status would be a particular affirmative positive
piece of legislation that granted some type of protection--

QUESTION:  Special protection beyond what--

MR. TYMKOVICH:  Beyond the Fourteenth Amendment baseline.

QUESTION:  So why wouldn't that have been your answer to the library
hypothetical that was produced earlier?  Any--no homosexual can be treated
differently from other people.  He simply cannot be given special protection
by reason of that status.

MR. TYMKOVICH:  That's right.  Amendment 2 is simply a Fourteenth
Amendment--

QUESTION:  May I ask how that works in the public accommodation area?
If a hotel or a restaurant--at common law you get some kind of an
innkeeper's duty to take everybody in.  Could an innkeeper refuse
accommodations to a homosexual who was not engaging in any homosexual conduct
but had *18 admitted that he had that type of tendency?  Could an innkeeper
under-- in Colorado just say, I'm sorry, we don't rent rooms to people like
you?

MR. TYMKOVICH:  To the extent there was some tort law of general
applicability in those circumstances about innkeeper's duty, we don't think
that Amendment 2 would knock that out.  To the extent--

QUESTION:  So you would say the public accommodations protection is still
available to homosexuals.

MR. TYMKOVICH:  Amendment 2 would carve out any special protections in the
public accommodation area that had been extended to homosexuals--

QUESTION:  What would the rule be in Colorado?  How do you understand the
law there?  Now, would a homosexual have a right to be served in a
restaurant?

MR. TYMKOVICH:  A homosexual would not have any claim of discrimination or
special liability theory in a private setting after Amendment 2.

QUESTION:  Even in the public accommodation area.

MR. TYMKOVICH:  Unless the Court--and again, we haven't had a full
construction of Amendment 2 yet from our State courts.  Unless a State court
construed the innkeeper's duty to be a law of general applicability *19 to--

QUESTION:  Do you know what the law of Colorado is on that point?

MR. TYMKOVICH:  I do not.  I have not encountered that, Your Honor.

QUESTION:  So we don't know whether homosexuals have a right to be served or
not.

MR. TYMKOVICH:  That will be a question for the State courts interpreting
Amendment 2.

QUESTION:  But if they do have a right to be served, would that be an
affirmative right, then, as in the distinction Justice Scalia was drawing, or
would that be just being treated like everybody else?

MR. TYMKOVICH:  I think it would be treated just like any other
characteristic or classification that has not gotten the special benefits of
the civil rights law.

QUESTION:  And being--having the right not to be refused a job or to rent on
that ground is a special right.

MR. TYMKOVICH:  Unless--

QUESTION:  It's not being just like everybody else.

MR. TYMKOVICH:  That would bring it into the range of private choice and
private arrangements, unless there is some particular law that would disable
that *20 ability by private--

QUESTION:  But there can't be such a particular law in Colorado.  I don't
understand.

MR. TYMKOVICH:  Unless Amendment 2 is repealed, or there is some general
provision that might apply.

QUESTION:  And one last question.  What is the rational basis for this
statute?

MR. TYMKOVICH:  The purpose of this statute was to preempt State and local
laws that extended special protections.  It was a response to political
activism by a political group that wanted to seek special affirmative
protections under the law.

QUESTION:  Well, it went farther, because there were political groups that
had already--as I understand it, Aspen had a protective statute of some kind.

MR. TYMKOVICH:  That's correct, Your Honor.

QUESTION:  And it's--what is the rational basis for the people outside of
Aspen telling the people in Aspen they cannot have that statute?

MR. TYMKOVICH:  Amendment 2 covers a range of circumstances, not just the
preemption of the local ordinances, but it did do that.  It also served as
a--

QUESTION:  What is the rational basis for the people outside of Aspen
telling the people in Aspen they cannot have this nondiscriminatory
provision?
*21 MR.  TYMKOVICH:  The rationale is any law of general preemption that
wants to make a substantive decision, and the people here, the rational basis
for that substantive decision in our view was a political response to what
the people might have perceived as laws going too far or being too intrusive.
What this does is--

QUESTION:  Well, the State of Virginia has a very broad State preemption
doctrine.  Local governments do not have the power in Virginia that they do
in many other places.  I suppose the rational basis for that is just that the
people generally would prefer to have the rules set by the State at large
rather than by local governments.

MR. TYMKOVICH:  That's correct, Your Honor, and there's nothing wrong,
especially in this area of civil rights and statewide protections, in making
that an issue of statewide concern, and that's simply what Colorado was--

QUESTION:  But Mr. Tymkovich, doesn't that go back to the problem I tried to
raise earlier?
You're saying that as a general matter certain laws can be determined as
subject to action at one political level and not at others, but isn't the
question here is, what is the rational basis for determining that *22
affirmative protection for homosexuals cannot be dealt with at a certain
level, whereas affirmative protection for the aged, for the handicapped, and
so on, can be?
Isn't that what the rational basis has to address, and how does your answer
to Justice Stevens address it?

MR. TYMKOVICH:  Your Honor, that's a quintessential political judgment on
how you provide relative protection to relative groups.

QUESTION:  Well, it's a judgment that is made politically, but that doesn't
state a rational basis.
I mean, if we were saying--if we were asking you this question, why should
discrimination be dealt with in Colorado at the State level rather than the
local level, or at the constitutional level, or whatnot, is that a denial of
any constitutional right, and you said, no, that's a political choice.
Colorado--the people of Colorado can decide what level to deal with this
problem.
That would, it seems to me, answer a substantive due process challenge, but
that's not the question that's being asked here.  The question that's being
asked here is, why is discrimination against one group dealt with under State
law differently from discrimination against other groups, and your rational
basis answer, it seems to me, has got to go to a justification for the *23
classification.  It isn't enough simply to say, oh, well, that's what
politics decided.

MR. TYMKOVICH:  Your Honor, that's not my response.  I think there are some
particular discrete reasons also, and this is to answer Justice Ginsburg's
question also.
This issue was seen as particularly desirable for a statewide uniform
determination.  There's a question about the desirability of each local
jurisdiction dealing with this issue, which I think raises some very
fundamental and sensitive cultural, moral, political concerns for our State.

QUESTION:  Well, it does, but are you getting any further than simply the
answer, that's what they wanted, that's the result of the political process?
I don't see in your answer the kind of justification independent merely of
majority will, which an equal protection classification question calls for.

MR. TYMKOVICH:  Your Honor, in addition to statewide uniformity, we've also
advanced some reasons that show how Amendment 2 advances other liberty
interests, and there are competing liberty interests that are, in fact--

QUESTION:  What's the liberty interest that it advances?
*24 MR.  TYMKOVICH:  It promotes a zone of autonomy.  The State supreme
court and the trial court found that religious liberty interests were
advanced here, associational liberties were advanced here, and the Court
simply made a determination below that they were not narrowly tailored, so--

QUESTION:  Mr. Tymkovich, if this is an ordinary equal protection challenge
and there's no heightened scrutiny, isn't it an adequate answer to Justice
Souter's question to say this is the only area in which we've had a problem?
If localities started passing special laws giving favored treatment to
people with blue eyes, we might have a statewide referendum on that as well?
Isn't one step at a time a normal response to equal protection?

MR. TYMKOVICH:  That's exactly what happened here, and the court--

QUESTION:  Well, what is the problem?  I mean, what is the problem that you
supposedly have been having?

MR. TYMKOVICH:  I think the problem that the voters saw, they were presented
with an opportunity to preempt and make a decision at a statewide level for
laws that raise particular and sensitive liberty concerns.

QUESTION:  State--State subdivisions giving preferences which the majority
of the people in the State *25 did not think desirable for social reasons,
isn't that the problem that was seen?

MR. TYMKOVICH:  That's right.

QUESTION:  And if they should start giving preferences for some other reason
that the majority of the State did not consider desirable--let's say, bigamy,
special preferences to bigamist couples, there would be a law on that subject
as well.
Isn't your answer, this is the only area where the people apparently saw a
problem, which is enough for equal protection?

MR. TYMKOVICH:  It is, and this is an area where there have been piecemeal
additions of special protections.  We've had--

QUESTION:  What is the special preference at stake here?  What is the
special preference that a homosexual gets?

MR. TYMKOVICH:  I think it creates a cause of action on the basis of the
characteristic that's not available to the general population at large.
Homosexuals are entitled to every other protection of the civil rights laws,
the criminal laws, the--

QUESTION:  You've just said that in--apart from whatever the common law
might be, with this ordinance *26 on--with this amendment on the books, a
restaurant owner can say, sorry, I don't want to serve gay people, and what
about--take a scarce resource.  Think of a public hospital that has a kidney
dialysis machine, and the hospital says, we have to limit this, and one group
that we're going to keep out, we're not going to have any gay, any lesbian
person use this--use this facility.
Now, there would be, under this amendment, what recourse?

MR. TYMKOVICH:  Well, first of all there's Federal law that may preempt, and
secondly, there is an opportunity, as we construe Amendment 2, for the State
to enact a policy that would treat all citizens the same in those
circumstances rather than carve out a special--

QUESTION:  But let's just have the law as it is right now.  There's a scarce
resource.  There's a basis--there has to be some rules about who can use it
and who can't.  That's the rule that the public hospital sets.  Under this
amendment, that's okay, right?

MR. TYMKOVICH:  In this facial challenge, we don't know how the court is
going to construe other potentially applicable State laws.

QUESTION:  How--I do have one question on that point which I'd like to ask.
The statute says, no agency shall adopt or *27 enforce any policy whereby
homosexual conduct, or whatever, orientation, shall be the basis of any claim
of discrimination.
So if a police department says, there's been a lot of gay-bashing.  It's our
policy.  Stop it.  If the head librarian says, you're making gays sit--you're
being mean to them and not letting them in.  Stop it.  If the health
department says the same thing, if the insurance commissioner says the same
thing, doesn't this word policy cover that, and if it doesn't cover it, what
is it about?

MR. TYMKOVICH:  The government agencies that you've indicated could enact a
general nonbias policy or require--

QUESTION:  No, no.  What they say is, they put up regulation 14.2.  There's
been gay-bashing here.  Stop it.  They put it more politely, but that's what
they mean.

MR. TYMKOVICH:  Amendment 2 would not prohibit that.

QUESTION:  It would not prohibit that.

MR. TYMKOVICH:  It would not prohibit--

QUESTION:  Then what does the word policy prohibit?

MR. TYMKOVICH:  Policy prohibits the enactment of some special entitlement--
*28 QUESTION:  No, but give me an example.  What could it possibly be? What
is policy, if it isn't the policy of the department saying, do not
discriminate against gays?

QUESTION:  Mr. Tymkovich, I assume in your State you're not allowed to bash
nongays either, are you?

MR. TYMKOVICH:  No. The criminal law is--

QUESTION:  So prohibiting the bashing of gays would not be a special
protection, would it?  It would just be enforcing the general law.

MR. TYMKOVICH:  Yes, and Amendment 2 does nothing to restrict the
applicable--

QUESTION:  Isn't that the response to Justice--

QUESTION:  But does it--

MR. TYMKOVICH:  That's right.

QUESTION:  Fine.
(Laughter.)

QUESTION:  But does it prevent--what--give me an example of what it
prevents. Does it prevent the police department, the librarian, the dozens of
State agencies from putting up a piece of paper that says, policy:  it is our
policy in this department not to discriminate against gays.
You're saying it doesn't prohibit that.  Then what does it prohibit?
*29 MR.  TYMKOVICH:  It prohibits any type of special protection or a
liability claim that somebody might have under that policy.

QUESTION:  It seems to me that your answer is inconsistent to what the
supreme court of Colorado said.  It said health insurance discrimination
regulations are void.

MR. TYMKOVICH:  The health--

QUESTION:  That's--based on sexual orientation.

MR. TYMKOVICH:  The health--that regulation did carve out what would be
construed as special protection--

QUESTION:  That's inconsistent with the answer you gave to Justice Breyer.

MR. TYMKOVICH:  I don't think so, Your Honor, because I thought he was
talking about a law of general applica--

QUESTION:  No. Look, suppose Boulder, Colorado says, it is our policy in
Boulder not to discriminate against gays.  They call it Boulder Regulation
14.2.  Is that forbidden by this?

MR. TYMKOVICH:  Yes, it would to the extent--

QUESTION:  All right.  Now, suppose the police department does exactly the
same thing.  Is that forbidden *30 by this?

MR. TYMKOVICH:  The police department would be governed by a rule of general
applica--

QUESTION:  So the police department--

MR. TYMKOVICH:  They would not be able to--

QUESTION:  I don't understand.  So is the city of Colorado.  They're all
governed by, they can't discriminate arbitrarily.  My point is, suppose that
the police department says exactly the same thing.  You say that's not
forbidden.

MR. TYMKOVICH:  That's correct.

QUESTION:  Okay.

MR. TYMKOVICH:  Your Honor, may I reserve the balance of my time for
rebuttal?

QUESTION:  Yes. Thank you, Mr. Tymkovich.
Ms. Dubofsky, we'll hear from you.

ORAL ARGUMENT OF JEAN E. DUBOFSKY
ON BEHALF OF THE RESPONDENTS

MS. DUBOFSKY:  Mr. Chief Justice, and may it please the Court:
Let me begin with how Amendment 2 should be construed and then discuss how
our legal theories relate to its unique combination of breadth and
selectivity.
Amendment 2 is vertically broad in that it prohibits all levels of
government in the State of *31 Colorado from ever providing any opportunity
for one to seek protection from discrimination on the basis of gay
orientation.

QUESTION:  Well, when you say all levels of government in Colorado, Ms.
Dubofsky, you don't include the people by referendum, I take it, or the
people by initiative.

MS. DUBOFSKY:  No, we do not.

QUESTION:  And I have one more very specific question.  What about the
courts?  Can the courts interpret a statute that prohibits unreasonable
denial of public accommodations to include gays by a specific judgment that--

MS. DUBOFSKY:  The--

QUESTION:--deals with the rights of gay people?

MS. DUBOFSKY:  The State has conceded that Amendment 2 is unconstitutional
to the degree it would prohibit such a claim based upon Federal law since
1983.

QUESTION:  No, no, no, I meant State courts interpreting State public
accommodation laws.

MS. DUBOFSKY:  Our theory is that Amendment 2 on its face prohibits a State
court from recognizing such a claim, but that particular interpretation of
the amendment is not necessary for this Court to find that Amendment 2 *32 is
unconstitutional.

QUESTION:  Thank you, and that particular interpretation has not been given
by the supreme court of Colorado.

MS. DUBOFSKY:  That's right.

QUESTION:  It has not.

MS. DUBOFSKY:  That's right.  The Colorado supreme court interpreted the
amendment, and it said it was doing this as a minimum, because that was all
that was necessary in order to find the amendment unconstitutional.
It interpreted the amendment to mean that State and local governments are
barred by promulgating and enforcing rules that declare discrimination
against gay people by both government and private actors to be arbitrary, so
that would include Justice Breyer's general policy suggestion with respect to
the police department.

QUESTION:  What do we do about, counsel for the other side said, no, it
doesn't forbid the police department from having a rule saying don't
discriminate against gays.  It doesn't forbid any of these agencies from
having such a rule.

MS. DUBOFSKY:  The Colorado supreme court interpretation of this amendment
is authoritative for purposes of this argument, I believe, and the Colorado
supreme court--
*33 QUESTION:  Where does it say that in the Colorado supreme court's
opinion?

MS. DUBOFSKY:  It says that on page B-3,
D-24--

QUESTION:  Of the white appendix, or the--

MS. DUBOFSKY:  Yes, in the white appendix.
B-3, D-24, and D-25.

QUESTION:  D as in does?

MS. DUBOFSKY:  D as in David, or does, yes.

QUESTION:  David, yes.

MS. DUBOFSKY:  And the way in which the Colorado supreme court says that is
by giving examples of the types of provisions that would be repealed by the
amendment, or precluded from enactment in the future.

QUESTION:  B-3? What does it say on B-3 that says that?

QUESTION:  Is it B--

QUESTION:  It--B-3--you said B as in--

MS. DUBOFSKY:  B as in boy.

QUESTION:  Boy. It seems to me it says the effect, the ultimate effect is to
prohibit any government entity from adopting similar or more protective
statutes, regulations, or orders in the future.

MS. DUBOFSKY:  Yes, and it refers back to the first sentence.  It says, the
immediate objective of *34 Amendment 2 is at a minimum to repeal existing
statutes, regulations, ordinances, and policies.
Then on pages--

QUESTION:  Wait, that barred discrimination based on sexual orientation.  I
assume that that means special provisions giving special protection--

MS. DUBOFSKY:  Well--

QUESTION:--as opposed to a general law that says you have to, not just
accept homosexuals, but all citizens have to be accommodated at hotels.

MS. DUBOFSKY:  That's correct.  There are general laws that say--

QUESTION:  As opposed to a special law that says a private homeowner who
wants to rent a room--you know, the mom and a family that wants to do bed and
breakfast cannot discriminate in the people it accepts.  Although it has no
obligation to take the public at large, it can decide to take only Irishmen
if it wants, but it cannot discriminate on the basis of homosexuality.  I
thought that's the kind of thought the court is referring to here.

MS. DUBOFSKY:  The Colorado supreme court is referring to?

QUESTION:  Yes.

MS. DUBOFSKY:  No, I don't think so.  I think it's referring to the general
ordinances that were *35 preempted by Amendment 2, and in Colorado those
general ordinances either have specific exceptions for exactly the type of
example you gave, or they have never been enforced to have someone in the
Mrs. Murphy's boardinghouse situation required to accept someone who does--

QUESTION:  You mean no general laws can be applied to homosexuals now?  They
can be bashed, they can be murdered, they--all sorts of things.  Is that what
it means?

MS. DUBOFSKY:  We think it can mean that, but we don't think the Colorado
supreme court found it necessary to go that far in its interpretation--

QUESTION:  I--

MS. DUBOFSKY:--and we're not arguing that it needs to be interpreted that
broadly in order to find Amendment 2 unconstitutional.

QUESTION:  I don't think the Colorado supreme court did interpret it that
broadly.  I think they interpreted it to refer to special protections
accorded to homosexuals and not to the public at large.

MS. DUBOFSKY:  I think we're having trouble a little bit with semantics.
One of the difficulties is the use of the words special protection in this
case.  I don't think there is such a thing as special rights or special
protections.  I *36 think there's a right which everyone has to be free from
arbitrary discrimination.

QUESTION:  No, but if I go and ask a homeowner to take me in on bed and
breakfast and the homeowner says, I don't like Italians, that's my tough
luck, unless there's a law against it.  It's that person's house, and that
person is entitled not to like Italians and not to rent rooms to Italians.
That's fine, unless there's a law against it, and you can have such a law
prohibiting the rental of rooms, or refusal to rental on the basis of racial
discrimination or on the basis of homosexuality, if you want to make that a
category, and I think that this law says, no special protection on that
basis. Why isn't that a special protection, one that is not given to
everyone?

QUESTION:  At D-24 and D-25 there's some particular examples.  Wasn't that--

MS. DUBOFSKY:  That's right, D-24--

QUESTION:  Colleges, State colleges, the insurance example.

MS. DUBOFSKY:  That's right.  That's right, and all of those particular laws
say that there shall be no discrimination on the basis of sexual orientation.
They apply to everyone.  They're laws of general applicability.
Amendment 2 preempts those laws, or precludes or *37 bars those laws only on
the basis that they provide protection for people on the basis of gay sexual
orientation.

QUESTION:  Yes, but you--but they are laws that provide special protection
for that particular category of person, which they don't provide to people at
large.  You can refuse to hire someone because you don't like the way he
combs his hair.  There's no law that says combing of hair is not a proper
basis of discrimination.  If you don't like that, you can refuse to hire him.
Special protection is given by this law which they cite by reason of
homosexual orientation or conduct.

MS. DUBOFSKY:  Well, in Colorado--

QUESTION:  Is that not special?

MS. DUBOFSKY:  In Colorado, there is a law which says one cannot be
terminated from employment for any legal off-duty conduct, and gives one the
basis for a claim.  If your employer doesn't like the way you comb your hair,
that was an improper reason for terminating your employment.

QUESTION:  Does a State college--can a State university decide not to admit
a student under generally applicable law because it doesn't like the way he
combs his hair?

MS. DUBOFSKY:  That's a question I'm not sure I *38 know the answer to, but
I think--

QUESTION:  I mean, can State universities discriminate arbitrarily?  Can
State insurance commissioners discriminate arbitrarily?  I would assume not.
I mean--

MS. DUBOFSKY:  I don't think they can discriminate arbitrarily, no.  They
shouldn't be able to.

QUESTION:  Let me put it to you this way.  Suppose there's a Colorado
ordinance, or city ordinance which said you cannot bar people from public
accommodations for any arbitrary or unreasonable reason.  Could a court in
Colorado find that barring--after this amendment, could a court in Colorado
find that it was unreasonable or arbitrary to bar a person from public
accommodations by reason of sexual orientation?

MS. DUBOFSKY:  I think a court could find that, yes.

QUESTION:  Despite the provision under the Constitution that says no
preferences should be given?

MS. DUBOFSKY:  Well, it depends upon whether the court is referring to more
general equal protection law on a Federal level.

QUESTION:  No, no.  It's talking about interpreting a statute that says you
cannot deny for an arbitrary or unreasonable--on the basis of an arbitrary
*39 unreasonable criterion.

MS. DUBOFSKY:  If that criteria in the particular case is because the person
who was denied that benefit is a gay person, then I think under Amendment 2
the court would not be able to provide relief.
Now, we don't think that this Court needs to resolve that type of a specific
issue, the application of Amendment 2, in order to find Amendment 2
unconstitutional.

QUESTION:  But isn't the very purpose of this ordinance to say, it's not
arbitrary to leave out of a catalog of protection against discrimination,
it's not arbitrary to leave out homosexual, lesbian--persons of homosexual,
lesbian, or bisexual orientation?

MS. DUBOFSKY:  Amendment 2 if interpreted at its broadest would authorize
that type of discrimination.

QUESTION:  But even on a narrower interpretation, even for example if
Amendment 2 didn't touch courts, wouldn't it be very difficult for the courts
of Colorado to say that that was an irrational or an arbitrary basis for
discrimination with Amendment 2 on the books, even if Amendment 2 was
narrowly construed?

MS. DUBOFSKY:  Yes, it would be, I believe--

QUESTION:  Yes.

MS. DUBOFSKY:--and we argue in our brief that *40 Amendment 2 would prevent
a court from providing a remedy in these circumstances.  We think it does on
its face.  However, the Colorado supreme court--

QUESTION:  Because it refers to departments of the government.

MS. DUBOFSKY:  Absolutely.

QUESTION:  Yes.

MS. DUBOFSKY:  But the Colorado supreme court didn't think it was necessary
to go that far in order to find the amendment unconstitutional.

QUESTION:  Well, we really don't have a definitive interpretation, I guess,
of how far this amendment would go.  I think the arguments and responses this
morning are illustrative of the fact that we're not sure.

MS. DUBOFSKY:  I think we do have a definitive interpretation from the
Colorado supreme court.  It's at pages D-25 and D-24, actually--

QUESTION:  Yes.

MS. DUBOFSKY:--and that's where the Court--

QUESTION:  I looked at that, and I just thought that that wasn't definitive.
There are still questions about how far it would go and the extent to which
it reaches courts, and so forth and so on.
*41 MS.  DUBOFSKY:  One of the difficulties with this amendment is that you
have no idea what type of general rule might be necessary in the future to
prevent arbitrary discrimination against gay people.

QUESTION:  Well, isn't it your position, Ms. Dubofsky, that you can sustain
the Colorado supreme court's decision overthrowing the statute by taking just
what the Colorado supreme court said was the minimum meaning?

MS. DUBOFSKY:  Yes, that's correct.

QUESTION:  And so you don't have to get beyond that, in your view, in order
to uphold your position.

MS. DUBOFSKY:  That's correct.

QUESTION:  And this is a facial challenge.

MS. DUBOFSKY:  And this is a facial challenge, that's right.

QUESTION:  Which means that you take the position that there are no
applications in which the statute can be constitutional.

MS. DUBOFSKY:  Well, we would here because we think the minimal
interpretation here is sufficient to find the amendment unconstitutional.

QUESTION:  Which means there are no applications that would be
constitutional.

MS. DUBOFSKY:  It doesn't necessarily mean that *42 there are no
applications that would be constitutional.

QUESTION:  I think it does if it--

MS. DUBOFSKY:  It just means that those are irrelevant.

QUESTION:  Well, that's not what our case law involving facial challenges
says.  If you wanted to wait for an as-applied challenge, you might pick an
unconstitutional situation and litigate that, but when you challenge it on
your--on its face, you are saying that in all of its applications it is
invalid.

MS. DUBOFSKY:  We're saying that the minimal interpretation that the
Colorado supreme court gave to this in all of its applications is invalid.
Because there may be other types of applications of this amendment, we don't
have to deal with those in this particular facial challenge because they're
basically irrelevant.

QUESTION:  Ms. Dubofsky, do I understand correctly that what you're saying
about what the Colorado supreme court said, at a minimum this amendment
immediately repeals all of the laws that are listed, and this group of people
cannot be reinstated into this group of laws without a constitutional
amendment, and that is what you say is unconstitutional--

MS. DUBOFSKY:  Or--

QUESTION:--under Federal equal protection?
*43 MS.  DUBOFSKY:  Or any other laws of general prophylactic rules. There's
a difference between general prophylactic rules that prevent arbitrary
discrimination such as the rules or statutes that are listed there, but
that's not an exhaustive list, and the application or, you know, case-by-case
determination of whether a particular denial of admission to a hotel, let's
say, is covered by Amendment 2.

QUESTION:  But these rules on 24 and 25 don't, as I understand them,
prohibit arbitrary discrimination.  They prohibit discrimination just on
particular grounds--race, sex, homosexual orientation, not how you comb your
hair.

MS. DUBOFSKY:  No, they--it's not homosexual orientation, it's sexual
orientation in general.

QUESTION:  Ah.

MS. DUBOFSKY:  The laws that Amendment 2 deals with, all are laws that apply
to everyone.  Amendment 2 only--

QUESTION:  They do apply to everyone, but they only apply for certain
reasons.  They are not laws that say, no arbitrary discrimination.  You can
discriminate on very arbitrary bases, just not those particular bases listed.
Isn't that right?

MS. DUBOFSKY:  That could be right.  It depends *44 upon the circumstance.
But what I'm really trying to point out is that rules such as general--the
Boulder ordinance, let's say, or the State insurance statute, presume that
certain types of discrimination can be arbitrary.  They're general
prophylactic rules.
Most of our civil rights laws in this country are effectively enforced by
generally prophylactic rules.  If we had to rely on an individual
case-by-case enforcement, I don't think we'd have very much civil rights law
enforcement.

QUESTION:  Is there a principle in Colorado law, as in many laws--let me
explain what I'm thinking--simply that if a private person can often act
arbitrarily, often, and you tell that person that they can't discriminate
against gays, you've given gays a special protection, all right, but
governments by and large cannot act arbitrarily anyway.  Is there such a
principle in Colorado law?

MS. DUBOFSKY:  Yes, there is.

QUESTION:  Is there an administrative procedures act, for example, in
Colorado?

MS. DUBOFSKY:  Yes. There's generally a principle that government cannot act
in an arbitrary fashion, that governmental services are available to *45
everyone.

QUESTION:  So that's why you say, or you think the Colorado supreme court is
saying that this law or policy, if it means anything, means that Colorado
cannot enforce that nonarbitrary principle anyway through rules and
regulations.

MS. DUBOFSKY:  That's correct.

QUESTION:  Let me ask you, counsel, getting away from the wording in the
provisions of this amendment, suppose that Colorado is concerned that one
city has passed an ordinance giving preference to gays in employment hiring,
and for any number of reasons the citizens of Colorado do not want that.
Some people say they want uniform laws because it's easier on employers.
Could the citizens of Colorado by referendum repeal that ordinance?

MS. DUBOFSKY:  Yes, they could repeal that ordinance.

QUESTION:  Without any constitutional objection?

MS. DUBOFSKY:  I think that's correct.

QUESTION:  Could they also provide that no such ordinance shall be adopted
in the future?

MS. DUBOFSKY:  That's where it gets more difficult.  That's where our
political participation argument comes to play, that by disabling a
government *46 from responding to a need for a particular benefit, the type
of protection that--it depends upon the circumstances.

QUESTION:  Well, it would seem a little odd that there could be an ordinance
enacted, then repealed by the referendum, then the ordinance is enacted
again, then repealed--it just goes back and forth.  That seems a little odd.

QUESTION:  Ms. Dubofsky, could Colorado adopt a law that says any law in our
State dealing with discrimination on any ground has to be passed at the State
level?

MS. DUBOFSKY:  It could.  The problem--

QUESTION:  That would be valid.

MS. DUBOFSKY:  Well, it may be.  There are other problems with dealing with
civil rights protections and generally, but let's say they passed Amendment 2
but it didn't target gay people.  It simply said that no one can obtain any
protection from discrimination, arbitrary discrimination for any reason.
That would not present the problem that Amendment 2 presents.  Amendment 2
is very selective.  It targets only one group of people, and that's where it
encounters equal protection difficulties.
The State may be able to rearrange its process *47 in any number of ways. It
just can't do it in a way that prevents one particular group.

QUESTION:  Ms.--

QUESTION:  But the--I'm sorry.

QUESTION:  Go on.

QUESTION:  No.

QUESTION:  That's all right.
What group does it target?  I'm asking you the same question I asked the
Attorney General.  How do you read the statute when it refers to sexual
orientation, homosexual, lesbian, or bisexual orientation, conduct,
practices, or relationships?
Suppose a person who, let's say, has a tendency to homosexual conduct, but
has never engaged in homosexual conduct, is that person--would an ordinance
that relates to that person be covered by this?

MS. DUBOFSKY:  Yes. The Colorado supreme court did interpret this initiative
in this regard.  It said that homosexual conduct was subsumed within
homosexual orientation, and--

QUESTION:  Well, I'm sure it is, but what else?  I mean, that's the problem.
What else?

MS. DUBOFSKY:  I don't understand what you mean by what else.

QUESTION:  Beyond homosexual conduct.
*48 MS.  DUBOFSKY:  Well, heterosexual people are not identified exclusively
by heterosexual conduct.  In the same fashion, homosexual people are not
defined exclusively by homosexual conduct.  It doesn't mean that heterosexual
people don't have a heterosexual orientation.  Homosexual people have a
homosexual orientation.

QUESTION:  Well, are you saying, then, that orientation identifies a group
beyond the identification of--by reference to specific homosexual conduct?

MS. DUBOFSKY:  Yes, it does.

QUESTION:  Okay. So it's a broader category.

MS. DUBOFSKY:  Yes.

QUESTION:  Okay.

MS. DUBOFSKY:  And that's what the Colorado supreme court--

QUESTION:  Both words are used--both words are used in the amendment.

MS. DUBOFSKY:  Both words are used in the amendment, but the Colorado
supreme court said that homosexual orientation is broader than homosexual
conduct and that--the State had been arguing that, well, we'll just sever out
the language, homosexual orientation, from Amendment 2. The Colorado supreme
court said no, you can't sever this amendment--

QUESTION:  Well, what if I thought that there's *49 a problem with
orientation but not a problem with the others, do you win or lose on this
facial challenge?

MS. DUBOFSKY:  If you thought there was a problem with targeting people
based on their homosexual--

QUESTION:--orientation, people who do not engage in conduct of the sort, but
have a tendency in that direction.

MS. DUBOFSKY:  Well, I'm not quite sure what you mean by problem.  Do you
mean--

QUESTION:  Suppose I find that it would be valid to have such a law directed
at conduct--

MS. DUBOFSKY:  Yes.

QUESTION:--but not at--directed at something other than conduct.

MS. DUBOFSKY:  No, we don't lose, because this law's--

QUESTION:  Why don't you lose?  This is a facial challenge.  You say it has
no valid applications.

MS. DUBOFSKY:  This law is much broader than that, and the minimal
interpretation given by the Colorado supreme court is that the law covers
homosexual orientation as well as conduct, and that they are not severable.

QUESTION:  Well--

QUESTION:  But isn't the breadth that you would *50 rely on not that it
covers orientation rather than just conduct, but that it in effect fences
people out of a political process?

MS. DUBOFSKY:  That's correct.

QUESTION:  And I guess that takes me back to your answer to, I guess it was
Justice O'Connor, in which you said the constitutional defect was the manner
in which, or a general constitutional defect would be targeting homosexuals.

MS. DUBOFSKY:  Yes.

QUESTION:  That's not really your position, is it, because if there were an
ordinance--let's say there were an ordinance in a given city saying there
will be no discrimination based on age, handicap, or sexual orientation, and
there were a political move in that city to repeal the reference to sexual
orientation, that would be targeted at homosexuals, but it would not run
afoul of what I understand your position to be here, is that correct?

MS. DUBOFSKY:  I'm not certain I understand what you're driving at.

QUESTION:  Look, if--you've got an ordinance in a city that says no
discrimination based on age, handicap, or sexual orientation.  There's a
political move in the city to repeal the reference to sexual orientation. *51
It succeeds.

MS. DUBOFSKY:  Yes.

QUESTION:  Is that a violation of equal protection?

MS. DUBOFSKY:  No.

QUESTION:  Okay.

QUESTION:  Ms. Dubofsky, supposing that in Colorado, shortly before the
enactment of this ordinance, there had been agitation, say, by dissident
Mormon sects to repeal the prohibition against polygamy that I assume
Colorado has, and so there's a referendum that says--the Colorado
constitution says polygamy will always be a felony in the State of Colorado,
now, does that fence out these people who would like to see polygamy allowed?

MS. DUBOFSKY:  Not necessarily, because that's really dealing with much more
of a discrete issue.  It's not a restructuring of the political process.

QUESTION:  But there--well, there--it's certainly restructured, if they were
agitating before the legislature to try to get a prohibition against polygamy
repealed.  It certainly fences them out there.  They now have to go to a
referendum just like your clients do.

MS. DUBOFSKY:  That's correct, but the particular issue involved is having
to do with the identity of the group of people who are engaging in *52
polygamy, and it's prohibiting polygamy.
The best way I can answer that question is to say, if you substituted
bigamists or polygamists into the language of Amendment 2, then you would
have a problem, as we point out, but here--

QUESTION:  What sort of a problem would you have?

MS. DUBOFSKY:  You would have a problem of denying people the fundamental
right to participate in the political process.

QUESTION:  Well, so then you say that Colorado cannot say in its
constitution either polygamy or bigamy will always be a felony.

MS. DUBOFSKY:  They could say that in their constitution, yes.

QUESTION:  Well, would it be valid, under your theory of the Federal
Constitution?

MS. DUBOFSKY:  To have that in the--

QUESTION:  Yes.

MS. DUBOFSKY:--Colorado constitution?  Yes, it would.

QUESTION:  Well then, why is that different from this case?

MS. DUBOFSKY:  That is different from this case because this case is
targeting a particular group of *53 people on a personal characteristic,
and--

QUESTION:  Well, but surely the dissident sects that want to practice
polygamy are a particular group of people, too.

MS. DUBOFSKY:  That's correct.  What they're not being deprived of is a
whole category of laws that provide them a benefit, the opportunity to seek
protection from discrimination or a similar--

QUESTION:  Well, but maybe this is essential to their religion.

MS. DUBOFSKY:  Well, then it would come under a whole different way of
analyzing the issue, and that would be whether it deprived them of a First
Amendment--

QUESTION:  Ms. Dubofsky, do you contend that--are you asking us to overrule
Bowers v. Hardwick?

MS. DUBOFSKY:  No, I am not.

QUESTION:  Well, there we said that you could make homosexual conduct
criminal.  Why can a State not take a step short of that and say, we're not
going to make it criminal, but on the other hand, we certainly don't want to
encourage it, and therefore we will neither have a State law giving it
special protection, nor will we allow any municipalities to give it special
protection.
It seems to me the legitimacy of the one follows from the legitimacy of the
other.  If you can criminalize *54 it, surely you can take that latter step,
can't you?

MS. DUBOFSKY:  What you've done is deprived people, based on their
homosexual orientation, of a whole opportunity to seek protection from
discrimination, which is a very different thing.

QUESTION:  So do you do it when you throw them in jail for a felony?

MS. DUBOFSKY:  No--

QUESTION:  I'm not talking about orientation, now.  I'm talking about
conduct.  If we have held it constitutional to make the conduct criminal, how
could it be unconstitutional to go so much short of that?
We don't want to get into the hassle of intrusion into private life, and all
of that, that that requires.  We're not going to criminalize it.  On the
other hand, we do not think it is conduct that ought to be encouraged, and
therefore we will not allow any special protections for it, neither at the
State level, nor locally.
Doesn't--if the one is constitutional, must not the other one be?

MS. DUBOFSKY:  If homosexuals were put into the language of Amendment 2 only
in terms of, those people who engage in homosexual conduct shall not be
entitled to ever seek protection under the civil rights laws, we would say
*55 that is unconstitutional.  That's a very different thing from saying that
you can criminalize homosexual sodomy.

QUESTION:  But isn't it also true that this law applies to this class of
people even if they abstain from the prohibited conduct?

MS. DUBOFSKY:  That's correct, and it also could apply to people who aren't
gay, but who may be perceived to be gay and are discriminated against on that
basis.

QUESTION:  Ms. Dubofsky, if we could go back to the question Justice Kennedy
was asking, I take it your answer to him was, your objection is to the
permanency, the bar to access to the political process to get something
changed.

MS. DUBOFSKY:  That's correct.

QUESTION:  But you're not objecting to the State saying, we repeal all
existing ordinances.

MS. DUBOFSKY:  That's correct, and that's because the case law and the
fundamental right to political participation says a simple repealer is all
right.

QUESTION:  Then how do you answer Justice Kennedy's further question, well,
isn't the State entitled to end a ping pong game?  The locality passes it,
the State repeals it.  The locality passes it again, the State repeals it
again.
*56 MS.  DUBOFSKY:  The constitutional bar, in effect, to ever adopting a
protection of any sort, or an opportunity to seek protection from
discrimination, is a very different type of barrier than a simple repealer
and reenactment, because it means that if the group is going to ever obtain
any protection, it has to amend the State constitution first.

QUESTION:  Yes, but wouldn't you say that it could end the ping pong ball
that way if it ends it with respect to all protection against private
discrimination?

MS. DUBOFSKY:  That's correct, it could.

QUESTION:  That would not be an equal protection problem.

MS. DUBOFSKY:  That's right.  That's right.

QUESTION:  So you're saying, if I understand you, you just can't end the
ping pong ball for this particular group.

MS. DUBOFSKY:  That's correct, or any particular group.

QUESTION:  Right.  Right.

MS. DUBOFSKY:  It doesn't matter who the group is--

QUESTION:  Yes. Yes.

MS. DUBOFSKY:--you just can't do it this way.

QUESTION:  But you can end the game.
*57 MS.  DUBOFSKY:  That's correct, you can end the game.  If the State
wants to repeal and prohibit any civil rights protections for anybody at any
level of the government in the future, and do it for everyone--

QUESTION:  May I ask you a rather elementary question I should know?  Did
the State file an answer in this case?

MS. DUBOFSKY:  Did the State file an answer in this case?

QUESTION:  Yes.

MS. DUBOFSKY:  Yes.

QUESTION:  They did file an answer.

MS. DUBOFSKY:  Yes.

QUESTION:  I couldn't find it--

MS. DUBOFSKY:  And we tried the case.

QUESTION:  Thank you, Ms. Dubofsky.

MS. DUBOFSKY:  Thank you.

QUESTION:  Mr. Tymkovich, you have 1 minute remaining.
REBUTTAL ARGUMENT OF TIMOTHY M. TYMKOVICH
ON BEHALF OF THE PETITIONERS

MR. TYMKOVICH:  Your Honor, the Colorado supreme court rule basically holds
that preemption is unconstitutional.  It says that with respect to this
issue-- this issue, not the people.  This issue--it *58 must be resolved at
the local level, and that people who oppose the substantive policy--

QUESTION:  Well, excuse me, I don't see where it said preemption was
unconstitutional, as distinct from saying, preemption for one identifiable
group was unconstitutional.

MR. TYMKOVICH:  It's preemption of this issue that affects a group, and in
James the Court told us it's permissible--

QUESTION:  Well, it doesn't--it doesn't--the ordinance speaks both in terms
of issue, i.e., basis for claim, and group.  I mean, it refers to both,
doesn't it?  You can't have one without the other, the way the ordinance is--

MR. TYMKOVICH:  It's an issue that affects a group, like in James, and like
in Gregory v. Ashcroft, where we had an age restriction in the State.

QUESTION:  Well, isn't in effect defined in terms of the group under
traditional equal protection analysis, which looks to the intent of the
enacting body?

MR. TYMKOVICH:  Right, and then there would be the question--

QUESTION:  Okay.

MR. TYMKOVICH:--of whether a rational basis supports that.
*59 CHIEF JUSTICE REHNQUIST:  Thank you, Mr.--

MR. TYMKOVICH:  In this case--

CHIEF JUSTICE REHNQUIST:  Thank you, Mr. Tymkovich.
The case is submitted.
(Whereupon, at 11:01 a.m., the case in the above-entitled matter was
submitted.)