From: WAND_M@gold.colorado.edu
Subject: High court review of ruling requested
Followup-To: amend2-discuss@cs.colorado.edu
Originator: doherty@ucsu.Colorado.EDU
Organization: University of Colorado, Boulder
Distribution: usa
Date: Tue, 26 Jan 1993 22:42:53 GMT

The Denver Post
January 20, 1993

State: 'Extraordinary step' cancels vote

By Howard Pankratz, Legal Affairs Writer

Colorado officials yesterday asked the state Supreme Court to overturn a Denver 
judge's ruling that blocked implementation of a controversial anti-gay-rights 
measure.

The state asked the high court to rule quickly on District Judge Jeffrey 
Bayless' stay of Amendment 2 last week because of the severity of the ruling.

"This is an extraordinary step and directly implicates the right of the people 
of the state of Colorado to self-government," read a motion filed by Deputy 
Attorney General Paul Farley.

Farley argued that "there is no good reason for this court to refrain from 
immediate review of the lower court's (Bayless') decision, and indeed, the 
public interest in the constitutionality of Amendment 2 is paramount."

He said the state high court shold revieww the case because:

*	It involves a "matter of substance" never before considered
	or ruled upon by the Colorado Supreme Court.

*	It "is of such imperative public importance" to justify a
	deviaton from normal appellate processes.

*	It is an important state question that has not been, but
	should be, determined by the Supreme Court.

The state also filed a motion asking Bayless to reverse his decision.  Such a 
reversal would mean the amendment would take immediate effect, according to 
attorneys for the parties who challenged the amendment last week.

David Miller, an American Civil Liberties Union of Colorado lawyer who 
represented Colorado homosexuals in the suit, said he doubted Bayless would 
reverse himself.

"It would be extremely suprrising if the judge changed his mind over the 
weekend," said Miller.

In yesterday's motion, Farley said Bayless should reverse himself because the 
case is the first in the United States in which the scope of homosexual rights 
is being weighed.  He also argued that the ultimate decision is likely to be 
made by someone other than Bayless.

Amendment 2, passed by Colorado voters in the November general election, 
nullifies gay-rights laws in Denver, Boulder and Aspen, and prohibits the state 
and cities from enacting similar laws in the future.

A lawsuit challenging the constitutionality of the measure was filed Nov. 12, 
but it wasn't until just before Christmas that the opponents of Amendment 2 
sought a prelininary injunction blocking implementation of the measure 
scheduled to go in effect Jan. 15.

Last Friday, Bayless issued the injunction, saying the plaintiffs had a 
reasonable chance of proving Amendment 2 is unconstitutional at trial.  The 
trial date has not been set.

Bayless had ruled that Amendment 2 may violate crucial civil rights of 
homosexuals and may endorse state-sanctioned discrimination against them.

"There is a fundamental right here, and it is the right not to have the state 
endorse and give effect to private biases," Bayless aid.

Because a fundamental right appears to have been violated, the judge said, the 
state will have to show at trial that there was a "substantial and compelling 
governmental interest" behind the amendment for it to be upheld.

State lawyers admit it is difficult to prove a "compelling governmental 
interest" in any situation.

To allow the amendment to become law for even the shortest time is unthinkable, 
said Lynn Palma, a lawyer for the Lambda Legal Defense and Education Fund Inc, 
which represents homosexuals challenging Amendment 2.
measure go into effect, gays, lesbians and bisexuals would be in "danger of 
real, immediate and irreparable injury."

The problem with the amendment, Bayless explained, was that while it wouldn't 
permit the state to directly discriminate against homosexuals, the state could 
not rememdy any discrimination by private citizens based on sexual orientation.  
In amending the state constitution, Bayless said, "even a majority vote of 
Colorado citizens cannot violate the constitutional rights of other Colorado 
citizens."

Lawyers expect the Supreme Court to decide by next week if it will hear the 
appeal or transfer it to the Colorado Court of Appeals.  They say it could be 
eight to 24 months for the decision to be made, although an appellate court is 
likely to expedite the review.

Bayless could rule as early as today on the request he reverse himself and stay 
the injunction.

At issue

The state of Colorado:

*	Asked Denver District Judge Jeff Bayless to reconsider his 
	decision blocking implementation of Amendment 2.

*	Asked the Colorado Supreme Court to review Bayless'
	decision.

*	Told Bayless he should stay execution of the preliminary
	injunction he issued Friday because this is the first
	case of its type ever heard in the nation and likely
	will be decided untimately by someone other than him.

*	Told the Colorado Supreme Court that it should intervene
	because the case is a 'matter of substance' never before 
	considered.


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