Amendment 2 puts gay and lesbians in the same position as all
The measure does no more than deny homosexuals special rights.
Colorado State Supreme Court
Found the amendment invalid even on a modest reading of its
Objective of the Amendment
The main practical impact of Amendment 2 was that it prevented
both the state legislature and any city from passing statutes or
ordinances that would protect gays and lesbians from
Prohibit other statutes, Unless first amended by
Only by amending the state constitution could gays obtain any
protection against discrimination on the basis of sexual
Traits that cannot be the basis of discrimination
in recent times, sexual orientation
The laws of Colorado set forth an extensive catalogue of traits
that cannot be the basis for discrimination, including age,
military status, pregnancy, parenthood, custody of a minor
child, political affiliation, physical or mental disability -
and, in recent times, sexual orientation.
Consequences of Amendment 2 - Denies & nullifies protections
Amendment 2 denies to homosexuals
the same protections that
are extended to other groups.
It nullifies existing protections at all levels of government
for this TARGETTED CLASS in all transactions in
Housing, sale of real estate, insurance, health and welfare
services, private education, and employment.
Not confined to the private sphere
Repealed and forbid all laws or policies providing specific
protection for gays or lesbians from discrimination by every
level of Colorado government.
Also repealed and forbidden are "various provisions prohibiting
discrimination based on sexual orientation at state colleges."
Deprives of general laws
Broad Language deprives of general laws and policies that
prohibit arbitrary discrimination.
- We cannot accept view
We cannot accept the view that Amendment 2's prohibition on
specific legal protections does no more than deprive
homosexuals of special rights
- Does Amendment 2 burden or target a suspect class?
If a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the legislative classification so
long as it bears a rational relation to some legitimate end.
- Amendment fails this inquiry.
First, the amendment has the peculiar property of
imposing a broad and
undifferentiated disability on a single named group,
an exceptional and, as we shall explain, invalid form of
Second, its sheer breadth is so discontinuous with the reasons
offered for it that the
amendment seems inexplicable by anything but animus [ill will]
toward the class it affects; it lacks a rational
relationship to legitimate state interests.
What is the relation between the classification adopted and the
object to be attained?
Link between classification and objective
The search for the link between classification and objective
gives substance to the Equal Protection Clause.
Provides guidance to legislatures
It provides guidance and discipline for the legislature, which
is entitled to know what sorts of laws it can pass; and it marks
the limits of our own authority.
Sustained if serves a legitimate Government Interest
In the ordinary case, a law will be sustained if it can be said
to advance a legitimate government interest, even if the law
seems unwise or works to the disadvantage of a particular group,
or if the rationale for it seems tenuous
- The law is too narrow and too broad
It identifies persons by a single trait and then denies them
protection across the board. The resulting disqualification of a
class of persons from the right to seek specific protection from
the law is unprecedented in our jurisprudence.
Sweatt v. Painter
Equal protection of the laws is not achieved through
indiscriminate imposition of inequalities.
- This is a denial of equal protection
law declaring that in general it shall be more difficult for one
group of citizens than for all others to seek aid from the
government is itself a denial of equal protection of the laws in
the most literal sense.
- The law is born of animosity toward the class of persons
This law raises the inevitable inference that the disadvantage
imposed is born of animosity toward the class of persons
Equal Protection - not legitimate government interest
Department of Agriculture v. Moreno
"If the constitutional conception of 'equal protection of the
laws' means anything, it must at the very least mean that a bare
. . . desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest
- this law does not bear a
relational relationship to a legitimate government purpose.
Amendment 2 mak[es] a general announcement that gays and
shall not have any particular protections from the law,
inflicts on them immediate, continuing, and real injuries that
outrun and belie any legitimate justifications that may be
claimed for it.
States Primary Rationale
Respect for other citizens' freedom of association
Their liberties of landlords or employers who have personal or
religious objections to homosexuality.
- No legitimate purpose
The breadth of the Amendment is a classification of persons
undertaken for its own sake, something the Equal Protection
Clause does not permit.
Class legislation is obnoxious to the prohibitions of the
Supreme Court of Colorado Affirmed.
DISSENT - Justice Scalia, Chief Justice Rehnquist, Justice
Not singling out
Inconsistent with Bowers
Not politically unpopular
Prohibits Special Treatment of homosexuals
Amendment 2 prohibits special treatment of homosexuals and
Preserve traditional sexual mores
modest attempt by seemingly tolerant Coloradans to preserve
traditional sexual mores against the efforts of a politically
powerful minority to revise those mores through use of the laws.
Constitution says nothing about this subject - Use democratic
They should be able to do so through normal democratic means
without their efforts being frustrated by unrepresentative
members of this elite institution.
The amendment prohibits special treatment of homosexuals, and
Not Affect a homosexual employee
requirement of state law that pensions be paid to all retiring
state employees with a certain length of service; homosexual
employees, as well as others, would be entitled to that benefit.
Would Affect a life partner
But it would prevent the State or any municipality from making
death-benefit payments to the "life partner" of a homosexual
when it does not make such payments to the long-time roommate of
a nonhomosexual employee
Our constitutional jurisprudence has achieved terminal silliness
Under Amendment 2, homosexuals may not obtain preferential
treatment without amending the state constitution.
That is to say, the principle underlying the Court's opinion is
that one who is accorded
equal treatment under the laws, but cannot as readily obtain
preferential treatment under the laws, has been denied equal
If merely stating this alleged "equal protection" violation does
not suffice to refute it, our constitutional jurisprudence has
achieved terminal silliness.
For whenever a disadvantage is imposed, or conferral of a
benefit is prohibited, at one of the higher levels of democratic
decision making (i. e., by the state legislature rather than
local government, or by the people at large in the state
constitution rather than the legislature), the affected group
has (under this theory) been denied equal protection
Although it is un-American to hate any human being or class of
human beings, one could consider certain conduct reprehensible.
Murder, for example, or polygamy, or cruelty to animals -- and
could exhibit even "animus" toward such conduct.
This is the same sort of "animus" at issue here
Bowers v. Hardwick
Moral disapproval of homosexual conduct, the same sort of moral
disapproval that produced the centuries-old criminal laws that
we held constitutional in Bowers.
If it is rational to criminalize conduct, then surely it is
rational to deny special protections to those who engage in that
Court is saying polygamy must be permitted.
The constitutions of the States of Arizona, Idaho, New Mexico,
Oklahoma, and Utah to this day contain provisions stating that
polygamy is "forever prohibited.
This was a condition of their admission into statehood.
The Court's disposition today suggests that these provisions are
unconstitutional, and that polygamy must be permitted in these
States on a state-legislated, or perhaps even local-option,
basis -- unless, of course, polygamists for some reason have
fewer constitutional rights than homosexuals.
It is not business of the courts to take part in this cultural
It is preposterous to call homosexuality politically unpopular
Homosexuals have 4% of the population, but had 46% support of
the voters on Amendment 2.
Prevent piecemeal deterioration
Amendment 2 is designed to prevent piecemeal deterioration of
the sexual morality favored by a majority of Coloradans, and is
not only an appropriate means to that legitimate end, but a
means that Americans have employed before.
Striking it down is an act, not of judicial judgment, but of