Activists' Legal Pointers:

Challenging Anti-Gay and Lesbian Initiatives

by Suzanne Goldburg, Lambda Legal Defense and Education Fund
The United States Constitution entitles all people to equal protection of the laws under the Fifth and Fourteenth Amendments. Generally speaking, this means that a law cannot single out a particular person or group of people for discriminatory treatment. IF a state law or constitutional amendment does target one set of people for differential treatment--say, for example, lesbians, gay men, and bisexuals as in Colorado's Amendment --the state must demonstrate a good reason for doing so. Without a showing that the law or amendment has a legitimate purpose and serves some interest of the state, the law or amendment should be found unconstitutional.

In Colorado, this theory played out as follows:

Amendment 2 would amend Colorado's constitution to bar all branches of Colorado's government (legislative, executive, and judicial) from prohibiting sexual orientation-based discrimination against lesbians, gay men and bisexuals. In other words, the amendment would foreclose all avenues for advocacy of lesbian and gay civil rights (except for efforts to repeal Amendment 2). It would also leave in place all state and city policies that prohibit discrimination based on sexual orientation for heterosexuals but repeal those protections as they would apply to lesbians, gay men, and bisexuals.

We argued to the state district court that since the amendment cuts gay people out of the political process, it infringes upon a fundamental constitutional right of an identifiable group of people. We also argued that by cutting off meaningful access to all branches of government, the state, through Amendment 2, raised the risks associated with speech and advocacy efforts by lesbians, gay men, and bisexuals. We then argued that the state has neither a rational nor a compelling interest in limiting political participation or free speech rights of lesbians, gay men and bisexuals and that the amendment should be struck down as unconstitutional.

After hearing our arguments and testimony from many witnesses, the court granted a preliminary injunction that will stop Amendment 2 from taking effect while the legal challenge to its constitutionality continues.

Of course, if a federal civil rights bill that prohibits discrimination based on sexual orientation becomes law, states would have a nearly impossible time defending laws, policies, or constitutional amendments that discriminate against lesbians, gay men, and bisexuals.

What Activists Should Know About the Law Related to Initiatives & Referenda

Initiatives and referenda are a so-called democratic piece of the legislative process where citizens, rather than the legislature, vote on proposed laws, policy initiatives and constitutional amendments. Each state has its own laws that govern what subjects are proper for popular vote as well as the particular process for citizens to place a proposal on the ballot. Typically, the process requires that when individual citizens want to put a measure on the ballot, they must obtain a certain number of signatures and attend a public meeting with the local or state legislative council to review the ballot measure's wording and meaning. Once a measure is certified for inclusion on the ballot at the next election, it is up to the groups for and against the measure to wage the public relations battle and attempt to influence voter response.

In some states, proposed initiatives may be challenged as unconstitutional before they are put on the ballot. Lambda Legal Defense and the ACLU have successfully kept anti-gay initiatives off of the ballot in Riverside and Concord, CA, for example. Sometimes it is also possible to keep an initiative off the ballot if the petition signatures are challenged and found to be invalid. In other states, such as Colorado, once a group has obtained enough legitimate signatures, the measure must be put on the ballot and legal challenges may take place only after the election.

What Activists Can Do:

If an anti-gay initiative makes it onto a city, county, or state ballot, voter education is crucial. Colorado's Amendment 2 was sold to voters as the end to "Special Rights" for lesbians and gay men. In fact, Amendment 2 actually would insure lesser rights for lesbian and gay Coloradans. It is critical, therefore, that activists who are fighting these efforts by the right wing understand the legal implications of proposed initiatives and then translate that information into the simplest of soundbites for consumption by the general public.

Since "special rights" has proven effective, it is most likely that we will see this theme in other states. It is important to stress in educational efforts that all people have the right to participate in government through voting and political advocacy. The government does not have to respond favorably to all requests, as we know, but by the same token, all groups must have a meaningful, or at least equal, opportunity to be heard. By preventing the government from providing protections to lesbians and gay men, initiatives such as Amendment 2 short-circuit the political participation of a particular group of people while leaving the government free to respond to the needs of all other people if it so chooses. We have to remind both the public and the court that the constitution does not allocate fundamental civil rights according to one's sexual orientation. Finally, even before an initiative is placed on the ballot, please contact Lambda Legal Defense or any of the other lesbian and gay legal groups. We can win this fight, and the earlier we start, the better off we are.

For more information or to request a complete Fight the Right Action Kit, call NGLTF at 202-332-6483, TTY 202-332-6219.