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CO SUPREME COURT UPHOLDS STAY
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EXTRACTED KEY WORDS
DISTRICT COURT SUPREME COURT COLORADO AMENDMENT PLAINTIFFS CONSTITUTION CITY DEFENDANTS LESBIANS EQUAL PROTECTION DENVER APPEALS GAY LAW POLITICAL PROCESS DISCRIMINATION SCHOOL DISTRICT STRICT SCRUTINY GOVERNMENT STRICT SCRUTINY STANDARD LEGISLATION TRIAL COURT PRELIMINARY INJUNCTION EQUAL PROTECTION CLAUSE UNITED STATES CITY COUNCIL SUSPECT CLASS PARTICIPATION IDENTIFIABLE GROUP |
------------------------------------------------------------------------------- RICHARD G. EVANS,
ARTINA NAVRATILOVA, BRET TANBERG, PRISCILLA INKPEN, JOHN MILLER, THE BOULDER VALLEY SCHOOL DISTRICT
OULDER, THE CITY OF ASPEN, AND THE CITY COUNCIL OF ASPEN, Plaintiffs-Appellees, v. ROY ROMER, as
Attorney General of the State of Colorado, and the STATE OF COLORADO, Defendants-Appellants. No.
ded NOTICE: {*1} THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION UPON FINAL
City and County of Denver. Honorable H. Jeffrey Bayless, Judge DISPOSITION: ORDER AFFIRMED COUNSEL:
Colorado, Jeanne Winer, Boulder, Colorado, Joseph N. deRaismes, III, Boulder City Attorney,
Task Force, New York, New York, Wilson, Sonsini, Goodrich & Rosati, Clyde J. Wadsworth, Palo Alto,
er, Colorado, Darlene M. Ebert, Denver Assistant City Attorney, Denver, Colorado, Edward M.
lorado, Suzanne Goldberg, Lambda Legal Defense & Education Fund, Inc., New York, New York, David H.
lorado, Attorneys for Plaintiffs-Appellees. Gale A. Norton, Attorney General, Raymond T. Slaughter,
h, Solicitor General, John Daniel Dailey, Deputy Attorney general, Paul Farley, Deputy Attorney
pellants. Martin Kuhn, Colorado Springs, Colorado, {*2} Robert K. Skolrood, Tracy Louise Winn,
r Family Values. Roger Westlund, Thornton, Colorado, Jordan Lorence, Paonian Springs, Virginia,
Center for Human Rights Advocacy, William M. Cohen, Boulder, Colorado, amicus Curiae for American
Church in Society, Union of American Hebrew Congregations, Unitarian Universalist Association,
hanin, John M. West, Washington, D.C., Martha R. Houser, Aurora, Colorado, Amicus Curiae for
A. Braff, Penny Shane, Ralph Erich Jones, Eulalia M. Mack, Scott A. Kronland, New York, New York,
n, White & McAuliffe, Stephen V. Bomse, San Francisco, California, Feiger Collison & Killmer,
us Curiae for Colorado Bar Association Colorado Trial Lawyers Association. AFSCME Colorado Council
Jack Dempsey, Kimberlee Keller, Washington, {*3} DC, Amicus Curiae for American Federation of
& Howard, Keith M. Angle, Denver, Colorado, Ireland Stapleton Pryor & Pascoe, Scot M. Peterson,
ciations of Mental Health Professionals. JUDGES: EN BANC. ROVIRA, ERICKSON OPINIONBY: ROVIRA
Colorado, Gale A. Norton, Attorney General of the State of Colorado, and the State of Colorado
rial court's entry of a preliminary injunction enjoining them from enforcing a voter-initiated
We affirm. In May 1992, the requisite number of qualified voters submitted petitions to the
tion 30 to article II of the Colorado Constitution. The proposed constitutional amendment was put
d passed by a margin of 813,966 to 710,151 (53.4% to 46.6%). n1 The secretary of state certified
cle V, section 1, of the state constitution. - - - - - - - - - - - - - - - - - -Footnotes- - - - -
olorado Constitution proclaims that "all political power is vested in and derived from the people;
, is founded upon their will only, and is instituted solely for the good of the whole." Art. II, @
sole and exclusive right of governing themselves, as a free, sovereign and independent state; and
government whenever they may deem it necessary to their safety and happiness, provided, such
d States." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - {*4}
osexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its
al subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute,
sbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be
sons to have or claim any minority status quota preferences, protected status or claim of
all respects self-executing. On November 12, 1992, Richard G. Evans, along with eight other
School District RE-2, the City and County of Denver, the City of Boulder, the City of Aspen, and
) (referred to collectively as "plaintiffs") filed suit in Denver District Court to enjoin the
is unconstitutional. This contention was premised on several state and federal constitutional {*5}
ootnotes- - - - - - - - - - - - - - - - - - n2 The individual plaintiffs claim that Amendment 2
nder the Fourteenth Amendment to the United StatesConstitution because it fails to rationally
t places unique burdens on plaintiffs' ability to participate equally in the political process.
mendment grounds including that it violates their right to petition their government for a redress
e expression and association; that it violates the constitutional prohibition against the
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2
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AMICUSAMERICANPSYCHASSOC
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EXTRACTED KEY WORDS
HOMOSEXUALITY PSYCHOLOGY AMERICAN PSYCHIATRIC ASSOCIATION GAY UNITED STATES LESBIANS COLORADO SUPRA JOHN RESPONDENTS AMP SUPREME COURT DISCRIMINATION RICHARD NATIONAL ASSOCIATION SOCIAL WORKERS PREVALENCE PREJUDICE HETEROSEXUALS AMENDMENT NASW BISEXUALS MENTAL DISORDERS REPRESENTATIVES ADULT HOMOSEXUAL ORIENTATION ATTITUDES FACTS LITERATURE HATE CRIMES |
No No. 94-1039 In The Supreme Court of the United States OCTOBER TERM, 1994 ROY ROMER, as Governor of the State of Colorado, and the STATE OF COLORADO, Petitioners, v. RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER, PAUL BROWN, PRISCILLA INKPEN, JOHN MILLER, the BOULDER VALLEY SCHOOL DISTRICT RE-2, the CITY AND COUNTY OF DENVER, the CITY OF BOULDER, the CITY OF ASPEN, and the CITY COUNCIL OF ASPEN, Respondents. On Writ Of Certiorari To The Supreme Court Of The State Of Colorado BRIEF OF AMICUS CURIAE AMERICAN PSYCHOLOGICAL ASSOCIATION THE AMERICAN PSYCHIATRIC ASSOCIATION, THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, INC., AND THE COLORADO PSYCHOLOGICAL ASSOCIATION. TABLE OF CONTENTS INTEREST OF AMICI CURIAE STATEMENT OFSNIPPETS: |
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OPINION
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EXTRACTED KEY WORDS
SUPREME COURT COLORADO ORDINANCES LAWS CONSTITUTION DISCRIMINATION PROTECTION UNITED STATES ROMER MUNICIPAL CODE HOMOSEXUALS SEXUAL ORIENTATION GOVERNMENT PUBLIC ACCOMMODATIONS PROHIBITING DISCRIMINATION EQUAL PROTECTION PRELIMINARY PRINT LEGITIMATE LEGISLATION CLASSIFICATION FORMAL REVISION WASHINGTON STATEWIDE REFERENDUM STATE COURTS REFER EMPLOYMENT RATIONAL RELATIONSHIP LEGAL PROTECTIONS BROAD LANGUAGE DISADVANTAGE |
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of
the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors,
in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
ROMER, GOVERNOR OF COLORADO, et al.
v.
EVANS et al.
certiorari to the Supreme Court of Colorado
No. 94-1039. Argued October 10, 1995 -- Decided May 20, 1996
Justice Kennedy delivered the opinion of the Court.
The enactment challenged in this case is an amendment to the Constitution of the State of
Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as
"Amendment 2," its designation when submitted to the voters. The impetus for the amendment
and the contentious campaign that preceded its adoption came in large part from ordinances that
had been passed in various Colorado municipalities. For example, the cities of Aspen and
Boulder and the City and County of Denver each had enacted ordinances which banned
discrimination in many transactions and activities, including housing, employment, education,
public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV
§§28-91 to 28-116 (1991); Aspen Municipal Code §13-98 (1977); Boulder Rev. Code §§12-1-1
to 12-1-11 (1987). What gave rise to the statewide controversy was the protection the ordinances
afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev.
Code §12-1-1 (defining "sexual orientation" as "the choice of sexual partners, i.e., bisexual,
homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV §28-92 (defining "sexual
orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or
bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimination
on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."
Colo. Const., Art. II, §30b.
Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It
prohibits all legislative, executive or judicial action at any level of state or local government
designed to protect the named class, a class we shall refer to as homosexual persons or gays and
lesbians. The amendment reads:
"No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State
of Colorado, through any of its branches or departments, nor any of its agencies, political
subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute,
regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct,
practices or relationships shall constitute or otherwise be the basis of or entitle any person or
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US SUPREMECOURTORALARGUMENTS
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EXTRACTED KEY WORDS
DAVIDSON WOLFSON JUSTICE COURT DALE LAW CHIEF JUSTICE HOMOSEXUALITY COUNCIL POLICY SUPREME COURT MATTER PUBLIC ACCOMMODATION SCOUTING HONOR EXPRESSIVE PURPOSE FIRST AMENDMENT UNITED STATES GEORGE ESQ PETITIONERS SCOUT LEADERS SEXUAL ORIENTATION DISCRIMINATION PRINCIPLE MONMOUTH COUNCIL EVAN WOLFSON RESPONDENT MORALLY STRAIGHT |
IN THE SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES BOY SCOUTS OF AMERICA AND MONMOUTH COUNCIL, ET AL., v. JAMES DALE No. 99-699 Washington, D.C. Wednesday, April 26, 2000 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:10 a.m. APPEARANCES: GEORGE A. DAVIDSON, ESQ., New York, New York; on behalf of the Petitioners. EVAN WOLFSON, ESQ., New York, New York; on behalf of the Respondent. CONTENTS: ORAL ARGUMENT OF GEORGE A. DAVIDSON, ESQ. On behalf of the Petitioners ORAL ARGUMENT OF EVAN WOLFSON, ESQ. On behalf of the Respondent REBUTTAL ARGUMENT OF GEORGE A. DAVIDSON, ESQ. On behalf of the Petitioners PROCEEDINGS (10:10 a.m.)SNIPPETS: |
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SYLLABUS
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EXTRACTED KEY WORDS
PROTECTION COURT EQUAL PROTECTION LAW OPINION SUPREME COURT DISCRIMINATION LEGISLATION HOMOSEXUALS LESBIANS LEGISLATION CLASSIFIES COLORADO ORDINANCES SEXUAL ORIENTATION EQUAL PROTECTION CLAUSE GAYS MUNICIPALITIES EMPLOYMENT TRANSACTIONS REFERENDUM STATE CONSTITUTION GOVERNMENT PRACTICES ENJOIN ENFORCEMENT STRICT SCRUTINY DENYING SPECIAL RIGHTS POLICIES |
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in
connection with this case, at the time the opinion is issued. The syllabus constitutes no part of
opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of
the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
ROMER, GOVERNOR OF COLORADO, et al.
v.
EVANS et al.
certiorari to the Supreme Court of Colorado
No. 94-1039. Argued October 10, 1995 -- Decided May 20, 1996
After various Colorado municipalities passed ordinances banning discrimination based on sexual
orientation in housing, employment, education, public accommodations, health and welfare
services, and other transactions and activities, Colorado voters adopted by statewide referendum
"Amendment 2" to the State Constitution, which precludes all legislative, executive, or judicial
action at any level of state or local government designed to protect the status of persons based on
their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."
Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation
in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its
enforcement. The trial court's grant of a preliminary injunction was sustained by the Colorado
Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal
Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of
gays and lesbians to participate in the political process. On remand, the trial court found that the
Amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the
State Supreme Court affirmed.
Held: Amendment 2 violates the Equal Protection Clause. Pp. 4-14.
(a) The State's principal argument that Amendment 2 puts gays and lesbians in the same position
as all other persons by denying them special rights is rejected as implausible. The extent of the
change in legal status effected by this law is evident from the authoritative construction of
Colorado's Supreme Court--which establishes that the amendment's immediate effect is to repeal
all existing statutes, regulations, ordinances, and policies of state and local entities barring
discrimination based on sexual orientation, and that its ultimate effect is to prohibit any
governmental entity from adopting similar, or more protective, measures in the future absent
state constitutional amendment--and from a review of the terms, structure, and operation of the
ordinances that would be repealed and prohibited by Amendment 2. Even if, as the State
contends, homosexuals can find protection in laws and policies of general application,
Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad
disability upon those persons alone, forbidding them, but no others, to seek specific legal
protection from injuries caused by discrimination in a wide range of public and private
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6
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DISSENTING
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EXTRACTED KEY WORDS
COURT LAW CONSTITUTION AMENDMENT COLORADO PROVISION TREATMENT BOWERS UNITED STATES JUSTICE SUPREME COURT EQUAL PROTECTION DISCRIMINATION ROMER ORIENTATION RESPONDENTS AMERICAN LAW SCHOOLS RATIONAL BASIS SEXUAL ORIENTATION LAW SCHOOLS POLYGAMISTS LEGISLATION MUNICIPALITY DENIED EQUAL PROTECTION STATE LAW PROHIBITING JUSTICE THOMAS JOIN DISSENTING RELIGIOUS BIAS DEMOCRATIC ADOPTION |
SUPREME COURT OF THE UNITED STATES
ROMER, GOVERNOR OF COLORADO, et al.
v.
EVANS et al.
certiorari to the Supreme Court of Colorado
No. 94-1039. Argued October 10, 1995 -- Decided May 20, 1996
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join,
dissenting.
In holding that homosexuality cannot be singled out for disfavorable treatment, the Court
contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v.
Hardwick, 478 U.S. 186 (1986), and places the prestige of this institution behind the proposition
that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or
not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and
to the preferential laws against which the amendment was directed). Since the Constitution of the
United States says nothing about this subject, it is left to be resolved by normal democratic
means, including the democratic adoption of provisions in state constitutions. This Court has no
business imposing upon all Americans the resolution favored by the elite class from which the
Members of this institution are selected, pronouncing that "animosity" toward homosexuality,
ante, at 13, is evil. I vigorously dissent.
Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to
rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as
all other persons," and "does no more than deny homosexuals special rights," ante, at 4. The
Court concludes that this reading of Amendment 2's language is "implausible" under the
"authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid.
In reaching this conclusion, the Court considers it unnecessary to decide the validity of the
State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded
by] general laws and policies that prohibit arbitrary discrimination in governmental and private
settings." Ante, at 8. I agree that we need not resolve that dispute, because the Supreme Court of
Colorado has resolved it for us. In Evans v. Romer, 882 P. 2d 1335 (1994), the Colorado court
stated:
"[I]t is significant to note that Colorado law currently proscribes discrimination against persons
who are not suspect classes, including discrimination based on age, §24-34-402(1)(a), 10A C. R.
S. (1994 Supp.); marital or family status, §24-34-502(1)(a), 10A C. R. S. (1994 Supp.); veterans'
status, §28-3-506, 11B C. R. S. (1989); and for any legal, off duty conduct such as smoking
tobacco, §24-34-402.5, 10 AC. R. S. (1994 Supp.). Of course Amendment 2 is not intended to
have any effect on this legislation, but seeks only to prevent the adoption of anti discrimination
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CO SUPREMECOURTOPINION
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EXTRACTED KEY WORDS
AMENDMENT EVANS COLORADO CONSTITUTION CITY GOVERNMENT DENVER CIVIL DEFENDANTS LAWS POLITICAL PROCESS OPINION RIGHTS HISTORY ATTORNEY DISTRICT COURT IMMUNITIES CLAUSE DISCRIMINATION EQUAL PROTECTION UNITED STATES TRIAL COURT PRIVILEGES HOMOSEXUALS SUPREME COURT BOULDER VALLEY SCHOOL PLAINTIFFS SUSPECT CLASSES STRICT SCRUTINY LEGISLATION |
RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER, PAUL BROWN,
PRISCILLA INKPEN, JOHN MILLER, THE BOULDER VALLEY SCHOOL
DISTRICT RE-2, THE CITY AND COUNTY OF DENVER, THE CITY OF
BOULDER, THE CITY OF ASPEN, AND THE CITY COUNCIL OF ASPEN,
Plaintiffs-Appellees,
v.
ROY ROMER, as Governor of the State
of Colorado, and the STATE OF COLORADO,
Defendants-Appellants.
EVANS v. ROMER
Nos. 94SA48, 94SA128
SUPREME COURT OF COLORADO
882 P.2d 1335; 1994 Colo. LEXIS 779; 65 Empl. Prac. Dec.
(CCH) P43,289; 18 BTR 1667
October 11, 1994, Decided
NOTICE: [**1] THIS OPINION IS NOT THE FINAL VERSION AND SUBJECT TO REVISION
UPON FINAL PUBLICATION.
SUBSEQUENT HISTORY: As Corrected October 12, 1994. Second Correction October 18,1994.
Third Correction October 31, 1994. Fourth Correction November 7, 1994.
PRIOR HISTORY: Appeal from the District Court, City and County of Denver.
Honorable H. Jeffrey Bayless, Judge.
DISPOSITION: JUDGMENT AFFIRMED
COUNSEL: Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado. Jeanne
Winer, Boulder, Colorado. Holland & Hart, Gregory A. Eurich, Denver, Colorado.
American Civil Liberties Union of Colorado, David H. Miller, Denver, Colorado.
City and County of Denver, City Attorney, Darlene M. Ebert, Assistant City
Attorney, Denver, Colorado. Boulder City Attorney, Joseph N. deRaismes, III,
Jane W. Greenfield, Boulder, Colorado. Aspen City Attorney, John Paul Worcester,
Aspen, Colorado. Special Councel for the City of Aspen and the Aspen City
Counsel, Edward M. Caswall, Telluride, Colorado. American Civil Liberties Union
Foundation, William B. Rubenstein, Matthew A. Coles, New York, New York. Lambda
Legal Defense and Education Fund, Inc., Suzanne B. Goldberg, New York, New York.
Wilson, Sonsini, Goodrich & Rosati, Clyde J. Wadsworth, Palo Alto, California.
Roderick M. Hills, Jr., Ann Arbor, Michigan, Attorneys for Plaintiffs-Appellees.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney
General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy
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OVERTURNINGOFAMENDMENT2
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EXTRACTED KEY WORDS
AMENDMENT DEFENDANTS HOMOSEXUALS COLORADO PLAINTIFFS CONSTITUTION BISEXUALS ORIENTATION LAW CIVIL DENVER SCHOOL DISTRICT LESBIAN GAYS SUSPECT CLASS SUPREME COURT DISCRIMINATION ORDINANCE CIVIL RIGHTS GOVERNMENT POLITICAL PROCESS RATIONAL BASIS QUASI-SUSPECT FACTIONALISM SEXUAL ORIENTATION NARROWLY DRAWN FAMILY PRIVACY RELIGIOUS FREEDOM TESTIMONY |
DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO
Civil Action No. 92 CV 7223, Courtroom 19
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT
RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER, PAUL BROWN, JANE DOE, MARTINA
NAVRATILOVA, BRET TANBERG, PRISCILLA INKPEN, JOHN MILLER, THE BOULDER VALLEY
SCHOOL DISTRICT RE-2, THE CITY AND COUNTY OF DENVER, THE CITY OF BOULDER, THE
CITY OF ASPEN, and THE CITY COUNCIL OF ASPEN,
Plaintiffs,
V.
ROY ROMER as Governor of the State of Colorado, GALE NORTON as Attorney
General of the State of Colorado, and THE STATE OF COLORADO,
Defendants.
INTRODUCTION
On November 3, 1993, by a vote of 53.4% to 46.6%, the voters of the
State of Colorado passed an initiated amendment to the Colorado Constitution
referred to as Amendment 2. That amendment provides:
No Protected Status Based on Homosexual, Lesbian, or Bisexual
Orientation. Neither the State of Colorado, through any of its
branches or departments, nor any of its agencies, political
subdivisions, municipalities or school districts, shall enact, adopt or
enforce any statute, regulation, ordinance or policy whereby homosexual,
lesbian or bisexual orientation, conduct, practices or relationships
shall constitute or otherwise be the basis of or entitle any person or
class of persons to have or claim any minority status, quota
preferences, protected status or claim of discrimination. This Section
of the Constitution shall be in all respects self-executing.
Nine days after the amendment was passed, plaintiffs, individuals, three
home rule cities, and a school district, filed the instant action seeking to
have Amendment 2 declared unconstitutional. Plaintiffs also sought and
obtained a preliminary injunction prohibiting the amendment from becoming
effective prior to court review. That injunction was upheld by the Colorado
Supreme Court July 19, 1993 in Evans v. Romer 854 P.2d 1270 (Colo. 1993).
In its ruling, the Colorado Supreme Court did more than merely affirm
the
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