From: kary@col.hp.com (Dan Kary)
Subject: Constitutionality of Amendment 2
Date: Mon, 9 Nov 1992 05:04:42 GMT
Organization: HP Colorado Springs Division


I am not a lawyer, that is a trait that I am sure I share with almost
everyone who reads or posts messages in this group.  That fact does not
stop me (or anyone else, it seems :-) from posting my opinions on legal
matters.

I have heard that the cities of Aspen, Boulder and Denver plan to (or
perhaps already have) file suits claiming that Amendment 2 is unconstitutional.
One of the basis for their claim is that those cities constitutional home
rule is violated.  I believe I even heard Roy Romer repeat this argument.
That argument seems like a legal looser to me.  It seems to me that no
amendment to a constitution (U.S. or state) can violate that constitution.
The amendment specifically changes the constitution.  Laws can be held 
unconstitutional, but amendments by definition can not.

An example of what I am discussing exists in the U.S. Constitution, the
judicial powers of the U.S. are defined in Article III, part of Section 2
is quoted below.

> Article III
> Section 2.  The judicial power shall extend to all cases, in law and equity,
> arising under this constitution, the laws of the United States, and
> treaties made, or which shall be made under their authority; to all cases
> affecting ambassadors, other public ministers and consuls; to all cases of
> admiralty and maritime jurisdiction; to controversies to which the United
> States shall be a party; to controversies between two or more states,
> between a state and citizens of another state, between citizens of
> different states, between citizens of the same state, claiming lands under
> grants of different states, and between a state, or the citizens thereof,
> and foreign states, citizens or subjects.

Some of the powers defined by this section are voided by the 11th amendment,
quoted below:

> Amendment 11
> The Judicial power of the United States shall not be construed to extend to
> any suit in law or equity, commenced or prosecuted against one of the United
> States by Citizens of another State, or by Citizens or Subjects of any Foreign
> State.

This amendment is not unconstitutional even though it is directly opposite
to part of the original Article III, Section 2.  Another example of an
amendment changing prior meaning of the US Constitution is quoted below:

> Amendment 21
> Section 1. The eighteenth article of amendment to the Constitution of the
> United States is hereby repealed.

Imagine the following eventuality:

> Amendment 27
> Section 1. The first article of amendment to the Constitution of the
> United States is hereby repealed.

A frightening thought, but not an unconstitutional one.

I haven't read the Colorado Constitution, I don't have a copy.  Is there
language in it that limits what amendments can accomplish?  For example the
section(s) that describe how the Colorado Constitution may be amended could
say that no amendment can alter home rule.  If that is the case, then the
home rule argument would look like a winner.

Another argument I have heard is that amendment 2 violates the US Constitution.
I believe that the amendment quoted below is the point of contention:

> Amendment 14
> Section 1. All persons born or naturalized in the United States, and subject
> to the jurisdiction thereof, are citizens of the United States and of the
> State wherein they reside.  No state shall make or enforce any law which shall
> abridge the privileges or immunities of citizens of the United States; nor
> shall any State deprive any person of life, liberty, or property, without due
> process of law; nor deny to any person within its jurisdiction the equal
> protection of the laws.

The argument of the cities of Aspen, Boulder and Denver is that amendment 2
denies homosexuals equal protection.  The argument of CFV, which they used in
campaigning, is that amendment 2 only denies "special rights" for homosexuals,
they still have equal protection from existing laws.

This sounds like an argument that will have to be settled by the U.S. Supreme
Court.  They will probably make their decision based on legal precedents that
none of us has ever heard of.  A phrase like "equal protection of the laws"
sounds very egalitarian to people who like me have no training in the law.
But these phrases have been the focus of countless arguments and their meaning
gets refined in case after case until the legal meaning of the phrase may
not match very well with its literary meaning.

Who is responsible for defending amendment 2 in court?  I suspect the State
of Colorado bears that responsibility since it is now part of the State
Constitution.  I presume that they can defend the amendment with all the
vigor they feel is appropriate.  I would guess that CFV could be involved only
as a "friend of the court", though think I have heard spokesperson(s) for CFV
say they plan to defend amendment 2.  I don't see how they could have the
authority to defend the amendment in any way other than as a "friend of the
court".  Time will tell.

Dan Kary

Newsgroups: co.general