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Date:         Fri, 22 Jan 1993 08:13:40 -0500
From:         "Douglass St. Christian" <stchri@MCMAIL.CIS.MCMASTER.CA>
Subject:      Democracy, Freedom of Speech and the courts.....

I would like to raise the tone of this discussion of democracy by asking
for as many people as are interested to comment on an interesting
development in Colorado.

As you may be aware, in November, by a vote of 53%, Coloradons passed an
amendment which would have prohibited the state government enacting any
regulation or statute which sought specifically to enshrine and protect
the civil liberties of lesbians and gays by virtue of their sexual
orientation. Bear in mind this amendment did not strip gays and lesbians
of civil rights but instead forbade the govt from enacting protection
against discrimination based on sexual orientation.

Several parties took the state to court over the proclamation of this
amendment and last week a Colorado judge issued an injunction prohibiting
the enactment of this amendment and obligating a higher court to rule on
its constitutionality. In doing this, Judge Bayless set a rigourous
standard - known legally as strict scrutiny - which obligates the state to
demonstrate that there is a strong legislative need for this amendment.
Only by meeting the requirement of strict scrutiny will the state of
Colorado be able to proclaim this amendment into law.

This amendment was democratically selected. A majority of Coloradons voted
in favour of this amendment. The court has set aside that decision by the
voters and required a review of the amendment on constitutional grounds.
In other words, the court has ruled that while the decision of the voters
has immediate merit as a democratic decision, the state is still obligated
to scrutinize the decision for its constitutional validity.


Now, what does this say about American democracy?

Is this an example of government [ in this case the courts] exercising
prohibitive power and denying the democratic authority of the electorate?

Is this an example of the power of checks and balances in the American
system which protects Americans from punitive mob rule?

I have my own opinion - that the judiciary stands as a gatekeeper whose
purpose is to ensure that fundamental constitutional values are maintained
and that Judge Bayless's decision in Colorado is a shining example of a
monumental accomplishment of the American system.

But I am curious.

Jon... how does the authority of the courts to supercede decisions of the
electorate fit in with your understanding of American democracy?


Zahir... is this an example of the protective power of the American system
or is it an example of how the system can be manipulated to serve special
interests in spite of the will of the majority.



Dougl,           *
The           .
Southern       *   *
Cross            *

AKA

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