Taped from Channel 4 News, May 24, 1993 Note: I do not know which Justice is speaking throughout this transcript. I am uncertain of spelling of names, and I do not speak legalese. Justice: Good morning. The first case to be heard today is that of Richard G. Evans and others, plaintiffs appellese vs. the State of Colorado, Roy Romer as governor. (list of other cases to be heard). As the counselors are seated at the counsel table, Miss Attorney General, you may proceed. Norton: May it please the court, I am Gale Norton, Attorney General of Colorado. I will today discuss the meaning of Amendment 2 and the poltical rights arguments raised by the plaintiffs. Solicitor General Tim Tymkovich will continue our equal protection analysis by discussing the rational basis for Amendment 2 and Judge Bayless' ruling. This case raises difficult emotional issues about how our society and our legal system regars not just homosexuality, but how far to extend civil rights protections. Our task today is not to judge the wisdom of the policy underlying Amendment 2, but to dertermine whether it is constitu- tional. It must ultimately be upheld unless it is unconstitutional beyond a reasonable doubt. There are important reasons for the voters of a state to decide to elevate an issue to constitutional importance. The vast majority of Coloradans who supported Amendment 2 did not do so out of hatred or malice. 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. Where there is an emotional moral issue as difficult and divisive as this one, where the stakes and risks are great, the political system can decide that this issue should not be decided at the local level. Voters sense that there are high stakes here regarding family structure and marriage, education of children, concern about associational rights in the context of employment and housing. These views, this moral debate, is not necessarily based on religion. The court does not need to decide which side is correct in this moral debate, to say that voters can decide for themselves. There is a major profound choice for society, and voters felt attitudes about homosexuality should not be man- dated by the legislature or by the town council, but that the people should be able to have a vote directly. This is different from all other civil rights issues discussed in all of the precendents before us today because of the lack of national moral concensus. In racial matters, there have been difficulties with implementation of the issue. There have been conflicts, but the moral concensus was decided for all time in the Civil War. Bowers vs. Hardwick illustrates the depth of moral controversy in this area, and Congress has re- fused to add sexual orientation protections to the Civil Rights Act. Raising an issue to the constitutional level requires direct citizen input. This is an issue about how we govern ourselves and who gets to make controversial choices. I will now turn to what Amendment 2 means and how it operates. It was inititated to repeal ordinances in Denver, Boulder and Aspen, and to pre- serve that repeal and remove jurisdiction of the legislature and of local governments to legislate on sexual orientation. It does not, and this is important, does not prevent enforcement of rights derived from other sources including federal law. It allows enforcement of rights from private contract and does not prevent private companies from ... Justice: How do you reach those conclusions? What's in the Amendment that says that? Norton: The Amendment itself can be read to say that it only effects, it only withdraws jurisdiction, from the state and from local governments to create policies. Also, the enforcement of it can be read to say enforcement of policies derived from those same sources. To the extent that the text itself is not clear, the legislative council analysis is abolutely clear, where it specifically says that those rights that come from outside sources can still be enforced by the state system. Justice: So you think that a colletive bargaining agreement, for example, could be en- forced in the state court? Norton: Absolutely, because that is a contractual right. As the legislative council pointed out, rights that come from contract, from tort, from other sources can still be enforced. Justice: What about discrimination in housing accommodations? Norton: There is no source of that within state law that would be allowed by Amendment 2. To the extent that there might be other soruces in terms of contract that could be enforced, to the extent that federal law would apply, it could be en- forced, but since there is no federal specific protection on that issue, pre- sumably there would be no specific cause of action on the basis of private action in the housing area. Justice: Must this court construe Amendment 2 in its final only pertinent application or is that something that must come later, given the posture of this case before us? Norton: Given the issues that are in front of the court, it seems relevant to the issue of political participation rights to look at exactly what Amendment 2 does. In all of those cases that had decided the issue of political participation, the exact Amendment that was in front of the court had a bearing on the effect of political participation rights. Justice: And how does that effect full faith and credit provisions of the federal constitution? Norton: It has absolutely no effect. Justice: But six states have granted preferred status to this group that is before us in this Amendment. What do state courts do? Norton: To the extent that those rights are derived from federal law they would apply equally in Colorado. To the extent that they are localized within their states they would have the same effect that they have now, which is none. Justice: So we would ignore the full faith and credit clause? Norton: Amendment 2 would not change full faith and credit. Amendment 2 can only be used as a shield, not as a sword. It does not grant any power in government to discriminate. It only says that private parties can make decisions about private issues. Now turn to the issue raised by the plaintiffs, the right of succesful participation in the political process. Every time an amendment to the constitution is proposed to the voters, there are winners and losers. The statewide losing group will always by definition have a harder time prevailing on future issues than if they had just lost at the city council level. Many constitutional provisions have losers who are identifiable minorities. The amendment does not in any way infringe on homosexuals' access to the political process. It does not restrict voting or provide unequal representation. Thus it is not invalidated by the voting type cases stemming from Reynolds vs. Simms. The primary issue here today is the Hunter Doctrine, and that draws from a line of cases including Hunter vs. Erickson and Wrightman vs. Malke. Wrightman created a constitutional right that would have been enforced by government and thus it is different here. It created a right that could have been used as a sword rather than just as a shield. Both of these cases become unworkable if overextended. The Supreme Court has refused to extend this line of cases, and there is no reason to believe it will extend it as far as the case presented before us. There are limitless numbers of groups that could claim to have been disadvantaged under Wrightman and under Hunter. We believe that the proper way of narrowing these cases is to apply suspect class analysis, that those classes that have been disavantaged by this political participation (words lost here) must themselves be suspect classes. The court has never applied this (words lost here) to any type of class except to a suspect class. It has, in fact, only applied it in the racial context. If the court were to extend this doctrine to apply to any group, then it would do away with traditional suspect class analysis because any group could come in and say, "We have been denied our political rights because of the substantive outcome in this case." Justice: Are homosexuals a suspect class? Norton: The plaintiffs have not submitted evidence to show that they are. This court cannot base its decision on the idea that they are a suspect class. Plaintiffs have specifically not used that as a grounds for their motion for preliminary injunction, and the precedent has clearly not established that they are a sus- pect class. The United States Supreme Court has not ruled upon it. Every federal cirucit court hat has ruled upon it has held that they are not a sus- pect class. Justice: Was it even alleged that homosexuals are a suspect class, or the individuals addressed in the amendment? Norton: The complaint raises the issue to suspect class, so in the broader litigation that is specifically an issue, but that was not raised as an issue, and more specifically by the plaintiffs not raised as an issue as to the preliminary injunction. Justice: Did the trial court find that they were a suspect class? Norton: No, he did not. He used an analysis based on his own interpretation of finding a unique fundamental right, and that unique fundamental right was the basis for requiring strict scrutiny. He did not get to the issue of suspect class. Justice: And what was the fundamental right involved that the trial court found? Norton: The trial court found a fundamental right not to have the government give effect to private biases. That fundamental right is his own creation. It has not even been defended in any significant way by the plaintiffs in this case. They took his fundamental right analysis and said it should properly be interpreted as a political participation analysis. Justice: Has any other court ever interpreted a fundamental right as the trial court did? Norton: The trial court seems to rely primarily on Palmor, which was a case dealing with a custody dispute, and that was a case where the trial court found that the private biases within that custody dispute could not be given effect by the court. That was a specific kind of case. That was where the court was going beyond just saying that it would not get involved in private decision making but instead was acting in using a sword to say that private bias would be enforced by the law. So there is a difference between private bias that is just allowed to exist, as all of us are allowed to make private choices in all aspects of our day-to-day lives and those where the court actually enforces a private bias, that is irrational. Justice: Unless there is a suspect class or a violation of a fundamental right, the strict scrutiny test requirement can be imposed, am I correct? Norton: That is correct. It is otherwise a rational basis. Justice: Is the review standard applicable here, abuse of discretion or some other standard? Norton: It is abuse of discretion; however, that abuse of discretion here would include the fact that the trial court did not apply the appropriate law to the case and so in reviewing the trial court, this court can act essentially de novo in looking at that legal issue. The trial court made no findings of fact and so this comes to this court as a purely legal issue. Justice: Which has to be definitively resolved, or what is our standard in reviewing that legal ruling? Norton: The standard here would be to apply again the standard as it would be found from the Rathke six-part test, and that is whether there is a reasonable likelihood of sucess on the merits, and here the plaintiffs have to show a reasonable probability that they will be able to show Amendment 2 is uncon- stitutional beyond a reasonable doubt. Justice: To do that, I take it you have suggested we have to construe the amendment. You indicated in your opening you were going to explain how, in your view, it works. Are you going to discuss whether it prohibits more than conduct, or is it specific conduct that is prohibited? Norton: Amendment 2 does not address conduct. Amendment 2 does essentially talk about status, and that means we admit a different... Justice: ...I'm sorry, I know your time is running, but it specifically says that we shall--state or local municipalities shall not enact, adopt or enforce any statue, etc., whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships... Norton: I apologize. I stated incorrectly. The amendment does address conduct. The issues that we have discussed are those primarily of status. As to conduct, the United States Supreme Court has clearly spoken to that, and the statement from the United States Supreme Court that one can criminalize homosexual con- duct certainly would allow a prohibition against special status for homo- sexual conduct as is found in Amendment 2. Justice: I guess the question is, is the term "status" in the title different from single prohibited legislation or conduct, or does it embrace orientation and other of these specific items referred to in the amendment, or do we have to construe that in this case? Norton: This is a facia challenge and so the court must construe a minimum amount of aspects of the interpretation of Amendment 2. It is not necessary to deter- mine how it would apply in every possible situation. I think the important point that I am making as to the interpretation of Amendment 2 is essentially that Amendment 2 operates to change the status quo, not in terms of govern- ment action. Wherever government acts, whether it is state or local govern- ment, there must be a rational basis, and that has to exist because of the federal constitution, and Amendment 2 must be construed in light of the federal constitution. On the other hand, Amendment 2 has its primary effect on private associations, and there it prevents state and local governments from inter- vening in purely private decisionmaking. That is the point of Amendment 2 that I think needs to be addressed by this court. Justice: I would like to return to the language of the amendment that deals with claims of discrimination. If a person is fired by the state government because of being alleged to be a homosexual--no problem about being a wonderful employee, does that person have any recourse? Norton: Yes, they do. Justice: And what's that? Norton: Because they have a federal constitutional right to be treated in a rational way and so, to the extent that their discipline or firing was based on ir- rational prejudice, then they would have a cause of action based on the federal constitution. Justice: And what is your idea of how they would bring that cause of action? Norton: They would be able to bring that in state court. The state court has an independent jurisdiction outside of Amendment 2 to be able to address that cause of action. The cause of action is not based on that person's sexual orientation. The cause of action is based on their ability to demand equal treatment from the federal government. It's based on an ability to require the government act rationally toward them, and so it is not a pure cause of action based on sexual orientation. That is what Amendment 2 prohibits. Justice: So I understand you to say that Amendment 2 has to be construed to be con- stitutional? Norton: That is correct, yes. Justice: Then why shouldn't the preliminary injunction stand? Norton: I don't follow. Justice: Why shouldn't the preliminary injunction remain in place until the final disposition on the merits? That's all we have at issue here, isn't it? Norton: Because the burden is on the plaintiffs to show that Amendment 2 will be likely held to be unconstitutional beyond a reasonable doubt. Justice: But you conceded that it is unconstitutional in some aspects unless construed. Norton: I believe that Amendment 2, properly understood, never meant to reach any federal constitutional rights. The legislative history as found in the legislative council analysis shows that it was never intended to reach that far. Justice: But that... Norton: ...It does not require that the court make any difficult interpretation to avoid unconstitutionality. Justice: That's not based on the plain language of Amendment 2, is it? Norton: The plain language of Amendment 2 speaks as to what the state itself can do and the state as a source of the special status based on homosexual, lesbian or bi- sexual... Justice: ...Well, it also prohibits claims of discrimination. Norton: If you look at the entire text of the amendment, one of the things that was voted on by the people as part of the amendment is the title, and that title is "No protected status based on homosexual, lesbian or bisexual orientation." And it is that that sets the trend of what the amendment means. It is to just not provide any additional status. It is not intended to take away any other- wise existing rights. Justice: Well, that's not all the amendment states, though. It does speak as to pro- hibitions regarding discrimination. Norton: It is, again, a claim of discrimination based purely on sexual orentation status and any claim of discrimination that would have another basis would still be able to come before the court. It is only that the state source of authority provided sexual orientation as the basis for the claim of dis- crimination that one would not be able to raise sexual orientation. Justice: It seems from the briefs that have been filed in this case that is a particular portion of the amendment which has caused the greatest difficulty for the par- ties. Norton: Yes, that is correct. Justice: And so that's going to have to be construed by a court at some point in time. Norton: That is correct. Justice: Regardless of what has been stated in the publicity prior to the adoption or prior to the action of the electorate, regardless of what interpretations may have been rendered prior to the vote and after the vote, it still requires judicial interpretation. Norton: It requires judicial interpretation, that is correct, and that can be based on the plain language, and to the extent that is not clear, you can look to the contemporaneous statements of the proponents and to the legislatiave council analysis. By adoption of Amendment 2, the people have properly taken it upon themselves to define how far beyond federally mandated minimums to extend civil rights protections. The arguments presented by plaintiffs are insufficient to force the judiciary to overturn the public's choice. We will reserve the re- mainder of our time for rebuttal. Justice: Miss Attorney General, just one question or one point. Despite the status now, which apparently is not affected by Amendment 2 with respect to racial minorities, it is true that at one point in time those racial minorities did not have the protection that we currently acknowledge. Norton: That is correct. Justice: And that many of our standards and principles have had to evolve over time. Norton: That is correct, and here the people have not attempted to take away existing federal constitutional rights but have said that otherwise they do not feel that that issue of homosexuality should be the subject of mandated private conduct, and that is the moral debate that is still going on at this point. It is not resolved. And this court does not need to resolve that moral debate in order to find that it is constitutionally the subject of constitutional debate. Justice: Just one more, if I may. One of the justifications, assuming we do get to a construction of the amendment, is that it preserves associational rights. Many of the briefs have taken the position that there is a conflict of associational rghts, those of the majority that passed the amendment, and those of the minority who are most specifically affected by the amendment. What is the standard we should use to assess the strength of that argument, that this preserves associational rights in view of federal constitutional authority? Norton: The associational rights provide a rational basis for the state to decide to take the action it is taking in adopting Amendment 2, and so the associational rights are part of that rational basis. They may also rise to a compelling state interest standard, but they are the balance that is to be weighted against the other interests in deciding the compelling or rational interest of the state in Amendment 2. Thank you. Dubofsky: May it please the court, my name is Jean Dubofsky. I represent the plaintiffs, and for the purpose of this argument, I am representing the cities of Aspen, Boulder, Denver, and the Boulder Valley School District, in addition to representing the individual plaintiffs. Thirty years ago, California voters adopted a state constitutional amendment in response to the success of the civil rights movement. Proposition 14 provided that the state could not deny the right of any person to sell or lease property to whomever the seller or landlord chose. The effect of that state constitutional intiative was to re- peal California's fair housing law, to forestall future protection and, as the United States Supreme Court said in Wrightman vs. Malke, to embody in the state basic charter the right to discriminate, immune from legislative, executive or judicial regulations at any level of state government. Amendment 2 presents this court with remarkably similar circumstances. Over the past several years state and local governments throughout the country have responded to what had been for the most part a quiet effort by lesbians and gay men to obtain pro- tection from discrimination on the basis of sexual orientation. Colorado for Family Values, like the realtors in California, attempted to roll back those protections and to prevent all future efforts to attain protection, not just in fair housing, but protections from discrimination in employment, public accommodations, insurance benefits, and all the various programs offered by schools and universities. Amendment 2, if the prelininary injunction is vacated, will embody in this state's basic charter the right to discriminate, immune from legislative, executive or judicial regulations at any level of state government. The plaintiffs today make two equal protection arguments. The first is that Amendment 2 makes a classification that impinges on a fun- damental right and thus is subject to strict scrutiny and must be supported by a compelling governmental purpose. Alternatively, the plaintiffs argue that Amendment 2's classification is not rationally related to a legitimate govern- mental purpose, and the classification has no legitimate governmental purpose if it is motivated by antipathy for class. Justice: Is it your position, Miss Dubofsky, that this court needs to decide one or both of those issues in this proceeding, given the posture of the case? Dubofsky: By deciding, I think the only thing the court needs to decide at this time is whether the preliminary injunction should be sustained to the degre it is important to determine whether there is a likelihood of success on the merits. The court probably has to resolve the legal issues. One is more purely legal than the other. On either ground--whether either ground is sufficient to sus- tain the trial court's ruling. This court is not limited to the reasons ad- vanced by the district court so long as the court's ruling does not expand the plaintiffs' right to preliminary injunction, so long as it doesn't go beyond the issues that were raised in support of the motion for preliminary injunction. Justice: Well, in addition to the matter relating to the preliminary injunction, isn't another issue that of the standard by which the proceeding on the merit will have to be judged; that is, the standard which was adopted by the trial court? Dubofsky: Well, yes and no. I mean, the court can decide that there was enough of a basis under either of the plaintiffs' arguments to support a preliminary in- junction and the court, in making that determination, presumably would tell the distict court, "You can determine whether Amendment 2 supports a compelling governmental purpose or a legitimate governmental purpose" and, to the degee that is a legal ruling, yes, the court would be setting the standard. Justice: Well, that's a very significant aspect of it since it is presumed that the constitutional provision that is Amendment 2 is constitutional, and that to prove unconstitutionality in violation of the federal constitution, it must be shown beyond a reasonable doubt so that next step on the standard of the proof or the burden which the people would have to assume that the trial court is a very significant issue, is it not? Dubofsky: Well, in some caes it is a lot more significant than I think it is in this one. In this case I don't think the government can prove either a compelling state interest--indeed, it has offered no compelling state interst of any sort for Amendment 2. I don't think it can prove that there is a legitimate govern- mental purpose behind amendment 2. Justice: Well, that's your view of the matter, but that might not be--what is important is the standard which has to be adopted or should be adopted so the trial court can apply that standard in making his determination. Dubofsky: Well, of course, the court will make that legal ruling. Justice: Let me--perhaps a few questions to set the stage, at least as far as my own thinking is concerned. Do you agree that, as suggested by the attorney general, that the group who you represent, that they do not constitute a suspect or a quasisuspect class? Dubofsky: Well, for purposes of this argument, we have not asserted that they are a sus- pect class or a quasisuspect class . Justice: Now, secondly, the trial court identified the fundamental right, a fundamental right of the plaintiff class as a right not to have the state endorse or give effect to private biases affecting an identifiable class. Now, my question is do you agree with that analysis by the trial court that there does exist such a fundamental right or have you sort of bypassed that and established, as in your briefs, the argument which you bring forth as to the question of political rights? Dubofsky: I think that single sentence in the court's oral ruling has to be read in the context of the argument that was made to the court and the line of the court's thinking. The district court began its oral ruling with references to Wright- man, the right to vote and the determination that Amendment 2 effects an iden- tifiable group. The court also discusses the cases relied upon by the plain- tiffs to make their rational basis-equal protection argument that Amendment 2 classification violates equal protection under the rational relationship test because Amendment 2 was motivated by antipathy to the class. And antipathy cannot provide a legitimate governmental purpose. I believe that the court's opinion should be read as a ruling on both claims presented by the plaintiffs that Amendment 2 violates equal protection because it violates the plaintiffs' fundamental right to participate in the political process, which is the funda- mental right argument that we presented to the district court. We did not present to the district court a fundamental right for the state to enforce laws against private bias. Justice: Let me interrupt you at this point. Do the plaintiffs agree, as suggested in the briefs, that the lower court did not rely on any facts in reaching its conclusions and that this is simply basically a facial constitutional challenge? Dubofsky: Not for purposes of the rational relationship part of our equal protection argument. We believe that the distict court found that Amendment 2 was an endorsement and a giving effect to private biases and that that is sustained by the record before the district court. There were three and one-half days of testimony presented to the district court. Those three and one-half days in- volved a great deal of time going through all the materials that were presented in support of Amendment 2. I urge every member of this court to look at ex- hibits 11, 12, 21 and 22. Those are the materials that Colorado for Family Values used to promote this amendment, and those are the materials that show what the purposes of this amendment were to be. They reflect private bias just as the court in Citizens for Responsible Government, which is a direct prece- dent for our position in this case, ruled that the materials presented in support of the citizen-initiated charter amendment in Citizens case reflected private bias. Those materials are almost identical to the materials in the exhibits that I suggest that you... Justice: ...The California lower appellate court which decided that case determined that issue on a rational basis test? Dubofsky: It did, and that's what I'm referring to. Justice: You're not relying on the strict scrutiny test. You don't think that's the proper test in this case? Dubofsky: We have both tests, your honor. At this point I was responding to the chief justice's question with respect to whether there was enough evidence in the record to support the district court ruling that there is no rational basis for this amendment because it is supported only by private bias, but my other concern is that the court as it ruled in the Amendment 1 case a couple of weeks ago needs to look at the materials that were used by the supporters of the amendment to promote the amendment in determining what the purpose of the amendment was and, as I have said, those materials reflect private bias and private bias alone. Justice: In Bowers vs. Hardwick, the United States Supreme Court denied (words missing here) in dealing with homosexual conduct specifically made the declaration that it was not a fundamental right and didn't fall within the extensions provided by Caldwell vs. Connecticut, and suggested that fundamental rights not be ex- panded. Is there any (word missing here) that you can direct us to that (words missing here) a right defined by the trial court as a fundamental right? Dubofsky: Well, first of all,Bowers is not an equal protection case and our arguments are under equal protection. Bowers was a due process case and it was talking about fundamental rights to privacy. That's a distinction that is very important to this case. The first few years after Bowers vs. Hardwick was decided, there were several federal appellate courts that in the military or FBI context said that we will apply Bowers to equal protection claims. More recently the military cases even have said that we're not going to apply Bowers in the equal protection context. Bowers addressed conduct, one specific type of conduct, sodomy. It did not address a broader sexual orientation and, as our briefs set out in some detail, sexual orientation encompasses much, much more than the conduct that was at issue in the sodomy statutes in Bowers. Perhaps the best illustration of that I can give to you is some of the information that was put on by testimony by plaintiffs to the trial court. For example, the plaintiff Paul Brown. There is no indication that Paul Brown's conduct cost him his job that he had had with a distributor of wholesale parts for 11 years. He lost his job because one employee did not want to associate at a place of employment with a gay man. Justice: Miss Dubofsky, may I interrupt you for a moment. Are there particular findings of fact that the trial court held which we could refer to other than referring to the record and attemptong to draw conclusions for ourselves? Dubofsky: There are not. Any findings of fact from the trial court other than its findings, and I guess thats a mixed question of law in fact as to the private bias that was behind Amendment 2. Because these are constitutional facts I don't think this court is deterred from addressing this issue by the lack of specific findings. Justice: Well, I'm not certain (words missing here) here. I don't see us going through the entire record and determining on our own what are the factual bases for this court's ruling, and that's one of the difficulties that I have with the court's opinion at this time. I agree there is perhaps a mixed finding of fact in law, but I would certanly like to see the factual conclusions from which the court... Dubofsky: ...If we had been preparing the court's opinion, we also would have liked to have seen the factual conclusions spelled out. They were not, but that doesn't mean that the court is totally precluded from reviewing the record. I under- stand why an appellate court does not want to go through the record and make its own findings of fact, but what I am arguing is that there is sufficient evidence in this record to demonstrate the distinction between conduct and status. Let me give you one more example of this, because I think it shows what Amendment 2 is really about. There is no indication that Angela Romero's conduct led to her demotion as a police officer. Her purchase of a book at a lesbian bookstore resulted in her assignment to more quote suitable employment. That type of discrimination is discrimination on the basis of sexual orienta- tion, and sexual orientation that was simply presumed because of the place from which one purchased a book. Bowers vs. Hardwick direted at conduct, sodomy, as the specific conduct certainly ought not to control whether one is entitled to protection of the type that Angela Romero needed, finally obtained by her participation in the political process. In fact, she has never obtained full protection because she never has had her job returned to her, but that is the type of discrimination that we're really talking about here. It's discrimina- tion on the basis of orientation, discrimination on the basis of one's values beliefs and views, not discrimination on the basis solely of conduct. Amendment 2 clearly addresses more than conduct. Justice: In your opinion Padulla vs. Webster was improperly decided when they suggested that the conduct defines the class? Dubofsky: Yes, I believe that. I think courts since then have really moved beyond that. The more recent cases, particularly Pruitt, where the United States Supreme Court denied sertiori review last year said there is a very great difference between conduct and status, and that if the military is to be able to prohibit service by gays or lesbians it must, on the record, demonstrate that there are rational reasons for that discrimination, that in the course of saying we don't follow Bowers for an equal protection plan, we don't follow Bowers in the sense that its ruling on conduct precludes our consideration of status. Justice: With Pruitt in this case the primary issue that must be decided is whether or not there has been a violation of the equal protection clause of the 14 h amendment, because if we are limited to equal protection parameters it's a different analysis than if we were to look at state constitutional provisions. Dubofsky: That's right. We do have pending in the district court still a number of other claims, the claims involving the first amendment, the claims involving the state constutition, claims involving access to the courts, a whole raft of things. There are a lot of different ways in which one can challenge Amendment 2. We believe that the equal protection claims that we brought to the district court in support of our motion for a preliminary injunction went most directly to the heart of the problem with Amendment 2. Justice: The article 1, I think it's section 2 of the Colorado constitution says that the people always have the right to alter or amend their form of government, and the people of Colorado have participated in that process since statehood in initiated constitutonal revisions. Now, the thrust of your argument, as I understand it, is that the plaintiff class have a fundamental right to participate in the political process on equal terms with others and that re- quiring them to amend the Colorado constitution before petitioning for relief from discrimination violates their fundamental right to equal protection. I have tried to sum up the substance of your argument. But doesn't the plaintiff class have every right still to go to the legislature and seek to have them pass a resolution with the necessary two-thirds majority in each house and put a constitutional amendment on the ballot seeking to appeal or amend Amendment 2, and does not the plaintiff class have every right to go out and file an initiative and get 50,000 signatures and place it on the ballot and take their argument to the people of the state of Colorado? Dubofsky: Of course they do, but they are the only class of people in the state of Colorado who are restricted from any other means of obtaining any sort of protection from discrimination, and that is the heart of our argument. Justice: You've also asserted, however, that that line of participation in government is severely retricted by the amendment, either because of its intents or because of its effect. Frankly, I'm still having difficulties deciding whether we are to determine what is the intent or whether we are to determine what the effect is and how we are to construe the four different types of activity the amend- ment specifically refers to. But can you elaborate on your argument that the right to participate in government, a fundamental right always acknowledged, is somehow impinged or restricted unduly by this amendment? Dubofsky: First I think it's important to understand the fact that by the way of constitutionally initiated constitutional amendments, the voters have the right to repeal any legislation or policy that they wish. The United States Supreme Court has held that that does not violate the protection. Our argument is that Amendment 2 does far more than repeal local ordinances or the state insurance statute and the governor's executive order. Amendment 2 prohibits the plaintiff class or plaintiffs' group of people from obtaining any type of re- lief from any form of discrimination on the basis of sexual orientation from any level of government. Now, citizens of Colorado have a perfect right to go to a governmental official, whether it's the state insurance commissioner or the local police chief and say "We think your radio policy or we think your insurance policies that don't provide coverage for gay men because they are concerned about AIDS, or the radio policy that allows the police to call gay men fags is something that ought to be remedied." Amendment 2 prohibits anyone from going to a local government and saying "We need relief from this' please provide it", because the government is prohibited by Amendment 2 from provid- ing any relief. Justice: Would your argument be the same if Amendment 2 did not include language about claims of discrimination? Dubofsky: Well, it would be, to a degree, with respect to protected status. There are a couple of kinds of protected status that we think are affected by Amendment 2 that are already on the books. One is the protected status afforded at the jails and prisons in Colorado for gay men primarily... Justice: ...Protective custody? Dubofsky: Yes, protective custody. And another would be the programs that are provided for teen suicide potential victims who are disproportionately gay and lesbian. All of the school districts have programs, and the health department has pro- grams that really provide some sort of protected status for teenagers who are having to come to terms with their sexual orientation and finding it difficult. Justice: Well, what about the other two categories of claim of minority status or quota preference? Dubofsky: It's difficult to understand exactly what those were directed toward. I think they were directed toward no affirmative action programs, but as the record will demonstrate, there are not and have never been any affirmative action pro- grams in employment or education for gays and lesbians, so that part of the amendment, I think, was just more to sell the amendment than to have any specific effect. Justice: What about the Aspen ordinance, for example. How does that--which category would that fall under? Dubofsky: That would be claim of discrimination. Most of the objection that we have to Amendment 2 is under claim of discrimination, and that claim of discrimination (words missing here) nor in the legislative council publications limited to state and local claims. There is nothing on the face of Amendment 2 that says it does not violate the supremacy clause and, in fact, the state has conceded that Amendment 2 violates the supremacy clause if it is interpreted by its plain language. That alone should be sufficient to sustain the ppeliminary injunction. Justice: If we were to construe the amendment to be limited only to particular conduct in spite of the language of status based on orientation, and to follow up some- what on Justice Erickson's question, if status has been defined solely by a particular conduct, how do you answer the people's argument that if indeed a job discrimination or a demotion context such as you suggested occurs, the individual would still have a right to challenge that because the conduct would be irrational and not prohibited--the conduct of the employer--not prohibited under federal standards, and the individual would not be denied access to at least the judicial branch of the government for that particular situation. Dubofsky: Well, that would only apply to state employment. You have to have state action so that the only area in which, if Amendment 2 is interpreted as you suggested might be interpreted, that a person who is discriminated on the basis of sexual orientation would have a claim that could be brought in the court systems under 42 usc 1983. Justice: But the state also claims that it is perfectly legitimate and indeed a part of our govenment to prevent private bias in many areas as long as it is private bias. Dubofsky: But it is not permissible for the state to embody in the state's basic charter the right to discriminate. To go back to Wrightman vs. Malke, that was the case that held this type of an amendment is state action. It does a lot more than allow people to exercise their private biases. It removed any sanction for discrimination that occurs because of private bias, and until today it didn't seem to us that the state was contesting whether there was state action involved in Amendment 2. There is a long line of cases nearly 30 years old that says this type of amendment is state action. It is not simply something that affects private bias. By keeping the government out of enforcing either fair housing laws or laws that allow or prevent discriminination on the basis of sexual orientation, you have in fact had state action. It goes back to Shelley vs. Kramer. It (words lost here) in state court a racially discriminatory covenant . Justice: What's your response to the attorney general's position that a contractual nondiscrimination clause could be enforced in state court? Dubofsky: We believe under the terms of Amendment 2 it cannot be enforced in state court. Amendment 2 says *any* policy, that includes private policy, and that means that even though you can have in your employement contract, as a number of the major employers in Colorado do, a provision that says you cannot discriminate on the basis of sexual orientation in employment, you still cannot enforce that provision because you have to enforce it through the state court, and the provision itself is meaningless if it cannot be enforced. That affects a lot pf peole in this state. Most of the major employers have such nondiscrimina- tion provisions--Coors, IBM, all the airlines--the record lists a number of major employers that have these policies... Justice: ...Yes, but isn't that somewhat speculation on your part as to what the courts might do in the question of enforcing a contractual provision which you've just referred to and that it would not be--that those contractual provisions would not be enforced by the courts because of Amendment number 2? Dubofsky: I think it is no different than any of the speculations surrounding the interpretation of Amendment 2. We're simply looking at its plain language and saying Amendment 2 on its face prohibits enforcement of any policy that pre- vents discrimination on the basis of sexual orientation. You can't get around that. Justice: Doesn't that argue, then, that perhaps it would be wise to allow Amendment 2 to go into effect to determine--so speculation would end and that evidence would be available as to the effects of the amendment? Dubofsky: That's never been a requirement for facia challenges. Justice: May I ask one last question? Under Rathke vs. McFarland there are six require- ments that must be met before a preliminary injunction is entered, and there must be findings on each of those six requirements. Did the trial court make the findings that would support the entry of a preliminary injunction? Dubofsky: The trial court did make all of those findings, your honor. Justice: And you think that the trial court's findings are supported by the record? Dubofsky: Yes, and we believe that the preliminary injunction should be sustained. Justice: I realize that your time is up, but I beg your indulgence for just a question and a parting observation. Justice Jackson used to refer to the almost for- gotten clause in the 14th amendment, and it certainly has been forgotten in the briefs that have been filed, and that is with respect to the privileges in immunities clause, and certainly the Slaughterhouse case raised question as to its vitality. Nonetheless, James Madison in the federalist papers #10 spoke of the fear of factions and the power of majority or even the minority who are in contorl to oppress others, and I raise the question regarding whether the parties had in the court any evidence or any argument regarding the privileges in immunities clause which has received some recognition by the courts most recently in terms of rights that exist from national citizenship and from which the state citizenship rights derive. Dubofsky: No, we did not make any privileges in immunities arguments. Presumably I guess if we determined before the trial court (words missing here) on the merits that we wanted to make such a claim we could, but so far we have not made such claims. Justice: Thank you, counsel. Continuation of Oral Arguments, May 24, 1993 Taped from Channel 4 TV news. Tymkovich: May it please the court, Tim Tymkovich, Colorado Solicitor General. I would like to make a few points in rebuttal for the court this morning. First of all, directed to a line of questioning from Justice Malarkey, Justice Erickson, and Justice Scctt, I think the state only needs to show one possible consti- tutional interpretation of Amendment 2 for the court to make a finding that the court below will not be able to find a reasonable probability of success. I think the concession by plaintiffs' counsel that the lower court private bias theory did not hold much weight is really effectively a concession that the lower court did abuse its discretion. I think in those circumstances it would be appropriate to dissolve the injunction. Furthermore, going to Justice Scott's question, the state has provided a number of rationals behind Amend- ment 2 that go far beyond private bias, moral condemmtion or hostility to homosexuals. We've provided those in briefs and we've argued them extensively. I think that not only do they provide sufficient rational basis for the voters to have made the determination that they did in the 1992 election but it could arguably support a compelling state interest, so I think we wouldn't concede this morning that the state has been or will be unable to show a compelling state interest, but, remember, we only need to show one possible constitutional interpretation of Amendment 2 and I think our briefs permit that. The concern over... Justice: Excuse me, what's the authority for that? Tymkovich: People vs. Ford and the United States vs. Salerno. Justice: People vs. what? Tymkovich: Ford, which is the Colorado Supreme Court case. If you also look at cases like Gregory vs. Ashcroft, again that was a case that dealt with an age discrimina- tion provision of the Missouri State Constitution. The Supreme Court said any conceivable rational will be enough to satisfy the rational basis test, and I think the court has to accept the teaching of those cases, especially when you are talking about rational basis review, which I believe is at issue here. Now, the claim of discrimination terminology that Justice Kirschbaum and Justice Malarkey addressed in their questions can be construed, I think, in the context of the amendment in a couple of ways. First of all, I think that it prevents a state-based or local ordinace-based claim of discrimination. What the people did with Amendment 2 was what the Hunter doctirne talks about, and that is can you elevate a decision on a certain issue to the state constitutionla level. Now, I'll come back to that in a second because I think Amendment 2 is plainly constitutional under the state's (words missing here) interpretation, and I don't think there is a problem with enforcing private contracts. Indeed, the legislative council booklet that was distributed to over 200,000 voters said quote the amendment would not affect the antidiscrimination policies based on sexual orientation that have been adopted by numerous private employers, so I think the intent of the voters and the language of the amendment support the interpretation that we've provided to the court, and I think in the facia challenge (words missing here) goes to the state and interpretation that provides a possible constititutional construction means that the preliminary injuncton was wrongly entered. Now, coming back to the fundamental issue, the heart of this case is what does Amendment 2 do with certain types of issues and I think we've shown in our brief that there is nothing wrong with the people repealing ordinances or state statutes that are in place. In fact, that's a fundamental part of the initiative process. What we have here are the people deciding to repeal certain policies and statutes that they didn't think was correct policy and what they did and what the plaintiffs really object to beyond that is they said you can't go back and do it again. I really think it would make the initiative process illusory if all you could do was a simple repealer, but if the Boulder city council, for instance, could go back the next day and reenact the same sexual orientation provision, what good is the initiative process if you have to go back through gathering 50,000 signa- tures and going through the process again. I think it's perfectly appropriate. Just like the general assembly can pass a preemptive statute that prevents local governments from adding further protections in certain areas, so too the people can, through the initiative process, say you may not go this far. And it is entirely appropriate as Hunter, Valskiera, Seattle School District, Crawford show to elevate certain types of issues to constitutional stature. Those cases always say there are certain types of issues when they are elevated to a different level of government and bring into play judicial over- sight, and we've argued in our brief that Hunter, Seattle School District and those other cases firmly rely on a distinction between suspect class and non- suspect class. Because if you... Justice: ...Your time's running. What are the policies that this amendment reversed beyond conduct? Tymkovich: I'd like to address--the language of the amendment discusses orientation, con- duct and a number of other factors. I don't think that's really a germain distinction to make because, if you look at the Boulder and the Aspen ordinances, you'll see that they granted an antidiscrimination law based on orientation, based on status. If it's appropriate for homosexuals to seek to achieve discrimination laws based on orientation or status, it's certainly appropriate for the people to repeal those types of ordinances and laws based on orientation. I think that's really misleading, because I think what the people really were doing is changing the level of government at which certain issues would be addressed and, under our formulation, if you look at a rational basis test and see whether that group meets the criteria, if it doesn't meet the criteria which in (word missing here) Seattle was raised, then they don't have a claim for discrimination under the equal protection clause. I think that James vs. Valtiera is a key case because that involved a sitiation where there was an identifiable group that had been precluded from getting redress on their issue at the same level of government. I think Crawford involves a similar principle. There the Supreme Court said that's not a problem. It's OK for these issues to be elevated to a different level of government, and the key distinction as we read those cases is those cases did not involve a suspect class, they didn't involve a formulation that was very clearly protrayed in Hunter and very firmly restrained by the court in Seattle. They never went beyond the suspect class formulation to extend the principle, and there are important policy reasons that they did not. Thank you. Justice: Thank you very much, counsel, for your argument. The case will stand submitted and the court will now be in recess for 15 minutes. End of Amendment 2 oral arguments.