From: RMVLUG_4@FLINT.MINES.COLORADO.EDU (FRANK BERNDT)
Subject: answer to Amendment 2 lawsuit
Followup-To: amend2-discuss@cs.colorado.edu
Originator: doherty@ucsu.Colorado.EDU
Organization: University of Colorado, Boulder
Distribution: usa
Date: Sat, 12 Dec 1992 21:00:33 GMT

SMRY: Colorado's Answer to Am2 Lawsuit

NOTE:  This is the "Answer" filed by the State of
       Colorado Attorney General's office in
       response to the lawsuit filed by the ACLU
       in an effort to have Amendment 2 overturned.



DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO

Case No. 92 CV 7223, Courtroom 19

________________________________________________________

MOTION TO DISMISS
________________________________________________________

RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER, PAUL
BROWN, MARTINA NAVRATILOVA, BRET TANBERG, PRISCILLA
INKPEN, THE CITY AND COUNTY OF DENVER, THE CITY OF
BOULDER, THE CITY OF ASPEN, AND THE CITY COUNCIL OF
ASPEN,

Plaintiffs,

v.

ROY ROMER, as Governor of the State of Colorado, and
GALE E. NORTON, as Attorney General of the State of
Colorado,

Defendants.
_______________________________________________________

       The Honorable Roy Romer, as Governor of the State
of Colorado, and the Honorable Gale E. Norton, as
Attorney General of the State of Colorado,
(collectively, "the Defendants") respectfully move for
an order dismissing the above action.

                 INTRODUCTORY STATEMENT

       On November 3, 1992, the people of the State of
Colorado voted to approve the addition of a new section
30 to article 2 of the Colorado Constitution.  This new
provision, known as Amendment 2", would prohibit the
State or any of its agencies or political subdivisions
from enacting, adopting, or enforcing any statute,
regulation, ordinance, or policy giving preferred status
or protections to individuals of homosexual or bisexual
orientation.

       The Defendants have the responsibility and duty
to defend challenges to the Constitution of the State of
Colorado.  Contrary to Plaintiff's claims, Amendment 2
on its face neither infringes upon constitutional
rights, nor authorizes or encourages discrimination, nor
bars suits based on claims of discrimination.  The
amendment has only the intent and effect of establishing
a statewide policy of governmental neutrality with
respect to sexual orientation.

       Amendment 2 does not deprive homosexuals or
bisexuals of the protection provided all citizens under
general principles of civil and criminal law.  It simply
provides that homosexual or bisexual orientation should
not be granted special protection such as the federally-
recognized categories of race, gender, religion, and
national origin.

       Amendment 2 merely prohibits state and local
governments from granting special or protected status to
homosexuals and bisexuals beyond those provided by
federal law.  There is no intent, nor any effect, of
depriving any individual of either federally-guaranteed
civil rights or the federally-guaranteed right to equal
protection of the laws.

                          BACKGROUND

       1.  This action was initiated on November 12,
1992.

       2.  The Defendants have not filed an answer to
the complaint.  Their answer is not due until December
2, 1992.

       3.  Under C. R. C. P. 12(b)(5), the defense of
failure to state a claim upon which relief may be
granted may be made by motion, prior to the filing of a
responsive pleading.

       4.  None of the constitutional claims of the
complaint states a claim upon which relief may be
granted.  Pursuant to C. R. C. P. 121, S 1-15.1, a
separate memorandum brief will be filed in support of
this motion within 15 days.

       5.  Generally speaking, Amendment 2 is not
subject to challenges on state constitutional grounds.
Being part of the state constitution, it is equal in
vitality to other parts of the constitution, and, being
later and more specific on this point, it would prevail
over and conflicting parts of the constitution.

       6.  Generally speaking, Amendment 2 is not
 subject to challenge on federal constitutional grounds,
 since it leaves intact all rights conferred on
 individuals of homosexual or bisexual orientation under
 federal law.  These individuals are protected from
 irrational governmental discrimination based on their
 sexual orientation.

                          STANDING

       7.  The City and County of Denver, the City of
Boulder, the City of Aspen, and the Aspen City Council
have failed to state a claim upon which relief can be
granted under  42 U.S.C. 1983, because they are not
"persons" possessing federal constitutional rights which
they may assert, and thus lack standing to bring this
action.

       8.  The City and County of Denver, the City of
Boulder, the City of Aspen, and the City Council of
Aspen have failed to state a claim upon which
declaratory or injunctive relief can be granted under
state law, because, as creations of the State, they are
wholly subject to the will of the people of the State
and therefore lack standing to challenge the validity of
the state constitution.

                        EQUAL PROTECTION

       9.  Amendment 2 does not, on its face, violate
the equal protection principles of the state and federal
constitutions.

      10.  To the extant that state constitutional equal
protection principles might provide greater protections
than the federal constitution, they could not do so in
this context.  Amendment 2 would control in the event of
any conflict with other state constitutional provisions.

      11.  Regarding Plaintiffs' federal claim, the
amendment neither affirmatively authorizes, encourages,
or establishes discrimination based on perceived sexual
orientation, nor bars homosexuals and bisexuals from
having discrimination suits adjudicated in state court.
Amendment 2 simply limits the grounds upon which relief
can be granted in state court to those cognizable under
federal law.

      12.  The refusal of the people of Colorado to
extend greater state or local rights to the Plaintiffs
does not contravene Plaintiffs' right to vote or
otherwise participate in the governmental process.  Any
claimed discriminatory effect in this, or any other
regard, is adequately supported by a number of rational
bases, including but not limited to, achieving statewide
uniformity on this issue, limiting the provision of
special protections to those characteristics upon which
there is a national and statewide consensus, protecting
the free exercise of religion, and preserving the
associational rights of all citizens from undue
governmental interference.

           FREEDOMS OF EXPRESSION AND ASSOCIATION

      13.  Amendment 2 does not, on its face, violate
state or federal constitutional rights of freedom of
association and expression.

      14.  To the extant that state constitutional
expression/association principles might provide greater
protections than the federal constitution, they do no do
so in this context.  Amendment 2 would control in the
event of any conflict with other state constitutional
provision.

      15.  The First Amendment to the U.S. Constitution
does not require legislative bodies be allowed to
legislate with respect to every conceivable viewpoint.

      16.  Amendment 2 does not restrict the ability of
anyone to advocate a particular viewpoint or to call for
the repeal of the amendment.  Individuals continue to be
free to espouse whatever viewpoint they desire;
Amendment 2 does not coerce anyone to accept or deny a
particular viewpoint.  All persons continue to enjoy the
same right to speak and act according to their beliefs
as they did prior to the amendment.

      17.  Amendment 2 does not implicate the freedom of
association.  The amendment does limit the ability of
persons to associate together to express political or
religious views nor does it put any restrictions on any
persons to form relationships, deep attachments, and
commitments.

                  ESTABLISHMENT CLAUSE

      18.  Amendment 2 does not, on its face, violate
the Establishment Clauses of the state or federal
constitutions.

      19.  To the extant that state constitutional
Establishment Clause principles might provide greater
protections than the federal constitution, they could
not do so in this context.  Amendment 2 would control in
the event of any conflict with other state
constitutional provisions.

 

      20.  The complaint suggests that since the policy
expressed by the amendment and some of its supporters
may well have religious antecedents, its passage amounts
to a prohibited "establishment of religion."  The people
neither intended to, nor have in fact established, any
religious creed through the adoption of Amendment 2.
The complaint does not allege the absence of a
legitimate secular basis for the amendment.

                      VAGUENESS

      21.  Because Amendment 2 operates only upon
governmental entities, the Plaintiffs do not have
standing to assert a claim of unconstitutional
vagueness.

      22.  The complaint fails to state a claim, because
Amendment 2 is not impermissibly vague in all its
possible applications.  The amendment's language,
considered in light of its legislative history and well-
established principles of constitutional construction,
readily leads persons of ordinary and common
intelligence to understand its scope and meaning.

      23.  Amendment 2, on its face, is not susceptible
of arbitrary application or enforcement.

      24.  To the extent that state constitutional
vagueness principles provide greater protection than the
federal constitution, they are inapplicable in this
context.  Being of equal vitality to the state due
process clause, Amendment 2 is subject to attack only on
federal constitutional grounds.

                   PETITION CLAUSE

      25.  The complaint states no claim under the
Petition Clauses of the state or federal constitutions.

      26.  To the extent that state constitutional
Petition Clause principles might provide greater
protections than the federal constitution, they could
not do so in this context.  Amendment 2 would control in
the event of any conflict with other state
constitutional provisions.

      27.  The complaint alleges that by denying state
or local governmental officials the power to grant legal
protections to persons based on their sexual
orientation, Amendment 2 abridges their right to
petition the government for a redress of grievances.
However, the right to petition entails only the right to
express ones view to the government.  The people,
including the Plaintiffs, continue to enjoy the right to
seek the repeal of Amendment 2.

              ACCESS TO COURTS/SUPREMACY CLAUSE

      28.  Amendment 2 does not violate the right to
access to the courts, which is an aspect of the right to
petition.  The amendment does not prevent the assertion
of any claims in state court; it simply limits the
ability of the state courts to recognize or grant relief
predicated upon certain claims.  The amendment also does
not bar homosexual or bisexual individuals from
asserting federally-based discrimination claims in state
court.

      29.  To the extent that state constitutional court
access principles provide greater protections than the
federal constitution, they are inapplicable in this
context.  Being of equal vitality to the state due
process clause, Amendment 2 is subject to attack only on
federal constitutional grounds.

                 REPUBLICAN FORM OF GOVERNMENT

      30.  The complaint fails to state a claim for
on grounds of a denial of the federally-guaranteed right
to a republican form of government.  For almost a
century and a half claims brought under the Guaranty
Clause have been held to be nonjusticiable "political
questions" to be resolved by Congress and the President.
For the same reasons the Plaintiffs do not have standing
to assert a violation of the Enabling Act.

      31.  Even if the claims are justiciable,
Colorado's initiative process does not violate either
the Guaranty Clause or the Enabling Act.

                     LIMITS ON INITIATIVE

      32.  The complaint fails to state how Amendment 2
exceeds the limits on the initiative power.

      33.  The Plaintiffs do not have standing to assert
a violation of Colo. Const. art. V, 1(4).  Only the
Colorado General Assembly, which is not a party to this
action, may assert a claim that the amendment deprives
it of the power to "enact any measure."

      34.  Even if the Plaintiffs do have standing to
assert this claim, the constitutional provision they
rely upon affords them no relief.  Art. V, 1(4) simply
clarifies that the procedure established in Art. V, 1
does not in and of itself deprive the General Assembly
of the power to enact any measure.  However, pursuant to
art. V, 1, the people may adopt constitutional
amendments which do substantively deprive the General
Assembly of the power to enact certain measures.  In
other words, art. V, 1 does not prohibit the people from
enacting amendments that bind the General Assembly.

      35.  Moreover, the very language of art. V, 1(4)
limits its application to art. V, 1.  Since Amendment 2
is to be codified as art. II, 30 it is outside the scope
of art. V, 1.

                   HOME RULE AUTHORITY

      36.  The complaint does not state how the home
rule powers of Denver, Boulder, and Aspen have been
abridged.  Because the issue addressed by Amendment 2 is
of statewide, rather than purely local, concern, it is
properly addressed via the people's initiative which
takes priority over any contrary ordinances, rules, and
policies adopted by home rule cities.

    LIMITATIONS ON AMENDMENTS TO STATE CONSTITUTION

      37.  Amendment 2 does not conflict with the
federal constitution, since the amendment leaves the
Plaintiffs' federal rights intact.  The amendment does
not violate the state constitution's home rule
provisions since its subject matter is of statewide, not
just local, concern.  Amendment 2 would also control any
inconsistencies between the provisions, as it is later
in time and more specific.

                   RESERVED POWERS

       Plaintiffs' claims are further barred by the
Tenth Amendment to the Constitution of the United
States.

                   RELIEF REQUESTED

       WHEREFORE, Defendants respectfully request that
this Court dismiss the above-captioned action.

       Respectfully submitted this 2nd day of December,
1992.

                          GALE A. NORTON
                          Attorney General
                          RAYMOND T. SLAUGHTER
                          Chief Deputy Attorney General
                          TIMOTHY M. TYMKOVICH
                          Solicitor General

                          /s/
                          ------------------------------
                          JOHN DANIEL DAILEY, No. 8938*
                          Deputy Attorney General

                          /s/
                          ------------------------------
                          PAUL FARLEY, No. 16512*
                          Deputy Attorney General

                          Attorneys for Defendants

                          Department of Law
                          1525 Sherman Street, 5th Floor
                          Denver, Colorado 80203
                          Telephone:  (303) 866-4500
                          *Counsels of Record
                          AG Alpha No. EX AD AAAFK
                          AG File No. E9208938.252



                 CERTIFICATE OF SERVICE


     This is to certify that I have duly served the
within MOTION TO DISMISS upon all parties herein by
depositing copies of same in the Unites States mail,
postage prepaid, at Denver, Colorado, this 2nd day of
December 1992, addressed as follows:

Jean E. Dubofsky               Clyde J. Wadsworth
William S. Stuller             LAMDA LEGAL DEFENSE AND
1881 Ninth Street, Suite 210      EDUCATION FUND, INC.
Boulder, CO  80302             Wilson, Soncini, Goodrich
                                  & Rosati
Jeanne Winer                   2 Palo Alto Square
Attorney at Law                Palo Alto, CA  94306
1942 Broadway, Suite 404
Boulder, CO  80302             Mary Newcombe
                               Lynn Palma
David H. Miller                LAMDA LEGAL DEFENSE AND
AMERICAN CIVIL LIBERTIES          EDUCATION FUND, INC.
  UNION OF COLORADO            606 South Olive Street,
815 East 22nd Avenue           Suite 580
Denver, CO  80205              Los Angeles, CA  90014

William B. Rubenstein          Darlene M. Ebert
Ruth E. Harlow                 Assistant City Attorney
AMERICAN CIVIL LIBERTIES       1445 Cleveland Place
  FOUNDATION                   Room 303
132 West 43rd Street           Denver, CO  80202
New York, NY  10036
                               Joseph N. De Raismes, III
Edward M. Caswall              City Attorney
City Attorney                  CITY OF BOULDER
John Paul Worcester            P.O. Box 791
130 South Galena Street        Boulder, CO  80306
Aspen, CO  81611



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