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National NOW Times >> August 1995 >> Article

Court Urged to Just Say NO to Colorado's Amendment

by Kimberlee M. Ward


NOW Action Vice President Rosemary Dempsey spoke at a rally in Denver, Co. during NOW's NO on 2 campaign.  Photo By Allison Busch

The U.S. Supreme Court agreed on February 21 to decide whether or not states can prohibit civil rights protection for lesbians, gay men and bisexuals. The Court has not decided a major lesbian and gay-rights case since Bowers v. Hardwick in 1986.

At issue is Colorado's Amendment 2, which seeks to repeal anti-discrimination ordinances in several Colorado cities, and prohibit the passage of any such ordinances in the future. Amendment 2 supports state-sanctioned discrimination based on sexual orientation and protects such discrimination from redress at local, county or state wide levels. If Amendment 2 is upheld, it will mark the first time a state constitutional amendment has revoked the previously-granted civil rights of a group of citizens.

54 percent of Colorado's voters approved the measure in 1992, but the Amendment never took effect because of an injunction granted by District Court Judge Jeffrey Bayless. Along with the cities of Denver, Boulder and Aspen, a group of lesbians and gay men sued the state, claiming the amendment "violated homosexuals' rights of equal protection, free speech, and impeded their right to petition the government," according to the Associated Press.

 The National Organization for Women campaigned vigorously against the measure, sending the Action Vice President and a team of activists from the national office to Colorado in 1992. NOW held press conferences and developed strategies, such as building coalitions with the local religious community, to show broad-based opposition to Amendment 2. In addition, NOW Action Vice President Rosemary Dempsey galvanized local activists at NOW-organized rallies on nearby college campuses. NOW's efforts culminated in a rally outside the governor's mansion the day before the election with hundreds of participants.

 In 1994, the Colorado Supreme Court ruled 6-1 to uphold Judge Bayless' earlier decision striking down the Amendment for violating an individual's fundamental right of equal participation in the political process. "The right to participate equally in the political process is clearly affected," held the Colorado Court. Amendment 2 "singles out one form of discrimination and removes its redress from consideration by the normal political process."

 In its decision, the Colorado Court relied upon U.S. Supreme Court cases from the 1960's that overturned similar measures designed to halt civil rights progress and deny African-Americans political participation, particularly in efforts to obtain fair housing. NOW activists are hopeful that the Court will use the same rationale to preserve the civil rights of lesbians and gays.

 If the amendment is reinstated, lesbians and gay men will be locked out of the system. It will take another constitutional amendment, supported by the majority of Colorado voters, to overturn the measure. The Court will hear the case, Romer v. Evans, in the fall and is expected to make a decision early next year.

 Lesbians and gay men are not the only people whose right to participate is outlawed by Amendment 2. If the Amendment is reinstated, it would prohibit a straight legislator from proposing a bill affecting lesbians, gay men and bisexuals. A school board would be violating state law if they included diversity training that addresses homosexuality in the curriculum.

Additionally, the principle behind Amendment 2 allows the state to single out any identifiable group of people not protected by the United States Constitution and prevent them from participating in the political process. Future amendments could target obese people or feminists, or any other group a majority of voters decided to punish. The Constitution was specifically designed to protect us from this type of legislative tyranny.

To supporters of Amendment 2, it is a crime to ask for equal rights under the Constitution. While the State of Colorado claims the initiative is an "anti-special rights amendment," opponents argue the contrary. "Amendment 2 represents a very special wrong committed against gay people," asserts Matt Coles, director of the ACLU's Lesbian and Gay Rights Project.

 Colorado will spend over 1 million taxpayer dollars fighting for the right to discriminate, estimates Patrick Steadman of the Colorado Legal Initiatives Project (CLIP), the group coordinating and financing the legal battle against the amendment. Additionally, the state estimates it lost $40 million from the boycott led by civil rights groups after passage of Amendment 2. In November 1992, NOW resolved not to hold any board meetings, conferences, or events in Colorado as long as Amendment 2 is in effect.

 The question before the Court does not address whether sexual orientation is a constitutionally-protected class, as is race. Therefore, while the implications of the decision will clearly affect lesbians, gay men and bisexuals, the Court is not deciding whether or not we have rights under the law as a group. Rather, the question is whether or not states can deny individuals their fundamental rights because the state believes the individual belongs to a certain group.

"Anti-gay initiatives call into question the very heart of our democracy," said Suzanne B. Goldberg, staff attorney at Lambda Legal Defense and Education Fund, who is co-counsel in the Colorado case. "If courts permit these measures to take effect, it would fundamentally change the relationship between the rights of minority groups and the power the majority has to infringe upon those rights. This case will affect the future of all civil rights in America."

NOW has actively challenged anti-lesbian and gay initiatives since its involvement in campaigns to defeat such ordinances in the 1970s. At the 1992 National Conference, NOW reaffirmed that commitment with a resolution opposing all efforts "designed to legalize and promote anti-lesbian and gay discrimination."

 In 1994, more than 10 anti-lesbian and gay initiatives were introduced in the states and all of them failed. To date, only four states have introduced similar initiatives: Maine, Oregon, Idaho and Washington. A survey by the Washington Blade reveals that in 1995, pro-lesbian and gay legislation outnumbers anti-lesbian and gay legislation 3-to-1. While the findings are encouraging, NOW President Patricia Ireland warns that anti-lesbian and gay sentiment is still strong, saying, "NOW deplores the repeated assaults against lesbian and gay rights. Every woman's rights are at stake when the government starts targeting individual groups for legalized discrimination."

 Currently, nine states provide some civil rights protection for lesbians, gay men and bisexuals: California, Connecticut, Hawaii, Massachusetts, Minnesota, New Jersey, Vermont, Wisconsin and Rhode Island. A ruling in favor of reinstating Amendment 2 could lead to similar initiatives in those states, especially with the recent increase in conservative legislators. And even if Amendment 2 is ruled unconstitutional by the Court, anti-lesbian and gay initiatives with significantly different wording may not be affected.

Despite President Clinton's stated opposition to anti-lesbian and gay initiatives, the Department of Justice failed to file an amicus brief in the case. Attorney General Janet Reno claimed there were no federal issues at stake, even though the President previously recognized this battle as one for "the essential right to equality." Dempsey criticized the administration's inaction, saying, "President Clinton should not cave in to bigotry and hatred."

 An official of Colorado for Family Values, the group that sponsored Amendment 2, testified that the purpose of the amendment was "simply [to] close the lid on the entire issue of [civil rights for lesbians, gay men and bisexuals] here in Colorado."

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