From: WAND_M@gold.colorado.edu
Subject: Text of Bayless' decision on Amend.2
Followup-To: amend2-discuss@cs.colorado.edu
Originator: doherty@ucsu.Colorado.EDU
Organization: University of Colorado, Boulder
Distribution: usa
Date: Fri, 22 Jan 1993 15:51:45 GMT

Now, in a minute, I'm going to rule,and one side is going to perceive that they 
have won something, and the other side is going to perceive that they have lost 
something, and it might generate some emotions.  And I understand that.  As a 
matter of fact, I expect there are strong emotions on both sides.  And for 
those who perceive that they have won something, they might want to celebrate.  
For those who perceive that they have lost something,they might want to express 
disagreement with that.  That's inappropriate in court.  I didn't want it 
yesterday; I don't want it today.  But having told everybody what I want, I'm 
satisfied that they will abide by the court's request and maintain the decorum 
that's appropriate in a courtroom.

Now, the second thing I want to tell you...I decided this about 2:30 this 
morning.  Since that time, with about four hours out to sleep, I've been 
writing.  And what I've attempted to do is to undestand and to have my ruling 
reflect that I know the audence to whom I'm speaking.  And I think the audience 
is made up of two distinct groups.  One is a group of legally trained 
people--that is to say,counsel who have presented this and counsel who may have 
been perhaps inside the bar and who may not have presented this, and they're 
familiar with the case law, and they're familiar with the legal concepts, and 
there will be catch phrases and legal expressions--code I talk in--and they'll 
understand that, and so a part of it is written for them.  And both sides have 
told me very clearly, not at this hearing but before that, they anticipate that 
regardless of what I do, there might be another day and in another higher 
appellate court that something might be reviewed, so I've written for that 
audience as well.  But I am aware of the interest in this case, and the 
interest in this decision from non-legally-trained folks, just the people of 
Colorado who voted on the amendment.  So what I have attempted to do in 
writing this is to write at two levels, one for the lawyers, one for the 
nonlawyers.  And I hope not to insult either.  And I hope to be clear to both. 
How well I've succeeded in that will be determined by someone other than me.  

Having said those two things, the court rules as follows:

Our form of government is a constitutional democracy, and both of those words 
have significance.  Constitutional means a form of government is established by 
the United States Constitution and by the Colorado constitution.  Democracy 
means what most people think it means--that, in most cases, the majority rules. 
Now, let's talk a little bit about that.  Historically the United States 
Constitution would not have been ratified, if you remember your history 
classes, unless there had been included the first ten amendments, the Bill of 
Rights, and the state wouldn't have adopted it without that.  And so that's 
how the first ten got there.  Now in Colorado, for those of you who aren't 
immediately familiar with our constitution, it is physically different in 
appearance from the United States Constitution.  Let me tell you about that.
The Bill of Rights to the Colorado Constitution is not a set of amendments.  As 
a matter of fact, the Bill of Rights is right in the body.  It is Article 2 of 
the Colorado Constitution.  Article 1 is a one-paragraph geographic descrip-
tion.  It says the boundaries of the state start here and go like this.  The 
first matter of substance, then, that is addressed after defining the 
boundaries is the Bill of Rights in our constitution.  I take that to mean that 
in Colorado, rights come first.  Section 1 of Article 2 of the Bill of Rights 
sets out that all political power in Colorado is vested in and derived from 
people.  Section 2 says the people of this state have the sole and exclusive 
right of governing themselves as a free, sovereign and independent state, and 
to alter and abolish their constitution and form of government whenever they 
may deem it necessary for their safety and happiness, provided that such 
change be not repugnant to the Constitution of the United States.  What that 
says is the majority of citizens can alter the constitution, can change it, and 
we have had 29 parts to that constitutuion--there are 29 existing articles to 
Amendment 2 that are on the Bill of Rights in Colorado--but in amending that 
and altering the form of government, even a majority vote of Colorado citizens 
cannot violate the constitutional rights of other Colorado citizens.  Now, the 
issue in question here in this hearing relates to Article 2 Section 2 of the 
Colorado Constitution, and it relates to the amendment of that constitution.  
The alteration of the state's constitution by the addition of what was called 
Amendment 2.  Amendment 2 is scheduled actually to become Section 30 of the 
Bill of Rights here in Colorado.  The question raised by the lawsuit asks the 
courts of Colorado whether this amendment violated Article 2 Section 2 of the 
Bill of Rights by virtue of being repugnant to the Constitutution of the United 
States.  The courts of Colorado are one of the three branches of government 
under Article 3 of the Colorado Constitution, and are chartered with 
interpreting the constitution and the laws of the state of Colorado.  Now, the 
first part of this case is the part we've done this week, and it does not 
address, and the court today is not addressing, the merits of this case.  What 
will be the final determination will be for another day.  After a full 
presentation, full briefing and full argument.  This first part deals with only 
asking the court to delay the effective date of the amendment until such time 
as that final determination can be made.  Such a request is proper and, as a 
matter of fact, is provided for under the rules of civil procedure, 
specifically Rule 65 here in Colorado, which allows preliminary injunctions.  
Now, an injunction is a court order which may stop something from happening 
within the state.  This court is not allowed to base its ruling on a 
preliminary injunction on its own personal views.  Rather, the oath of all 
Colorado judges is to support the constitution of both the United States and of 
the state of Colorado and, in deaing specifically with preliminary injunctions, 
the Supreme Court of Colorado has spoken very clearly as to what trial courts 
are to view in making their decision as to whether injunctions should issue.  

I started on Monday when I introduced this case by making reference to that 
case.  It's called Rathke vs. McFarland (spelling?).  And if you were here 
yesterday, you saw that counsel pitched their arguments in terms of the Rathke 
vs. McFarland standards.  That case tells me several things, and let me just 
brief them.  It says first that the granting or denial of a preliminary 
injunction rests in the discretion of the trial court, but then it talks to the 
trial court as to how it should exercise that discretion.  It says these 
injunctions should not be indiscriminately granted.  It says they should only 
be granted sparingly and cautiously,with the full conviction on the part of the 
trial court that there is an urgent necessity for the injunction.  Now, the 
urgent necessity is described by our Colorado Supreme Court as being at 
threshold.  That is to say, if the urgent necessity is not found, then the 
court doesn't weigh the other six factors.  It then says if the threshold, 
however, is established, then the court has to weigh the six factors that have 
been discussed.  First, that the side seeking the injunction has a 
reasonable probability of winning the case on the merits.  Now, this calls 
admittedly for some degree of forecast or prediction by the court as to what 
may occur in the future.  And the Supreme Court recognizes that.  That's a part 
of it.  Second, it says the court must consider whether there is a danger of 
real, immediate and irreparable injury which may be prevented by injunctive 
relief.  Irreparable injury is defined as injury that cannot be fixed or 
repaired or adequately compensated perhaps by money.  Third, the court has to 
weigh whether or not there is a plain, speedy and adequate remedy at law should 
the preliminary injunction not be granted.  Fourth, the court must weigh 
whether granting a preliminary injunction will or will not disserve the public 
interest.  Fifth, the court is directed to address the balace of equities and 
see if they favor the injunction.  Sixth, the court is directed to consider 
whether the injunction will preserve the status quo, prserve what exists now, 
pending the trial on the merits of the case so that things will stay the same.  
And then the Supreme Court says you can't prove five or four, you have to 
prove all six, so that's what we're talking about here today, and that is the 
area in which the court must base its ruling.

The plaintiffs are individuals and three home rule cities who have asked the 
court to delay the effective date, so it is they who bear the burden of proving 
these things established by Rathke vs. McFarland.  They must show the threshold 
of urgent necessity and then they must show to the satisfaction of the court 
these other six things that have been discussed.  In large measure, the proof 
which has been offered has been focused on their position that Amendment 2 is 
repugnant to the United States Constitution.  They argue that there is an 
urgent necessity because of the probability of persons having their fundamental 
constitutional rights violated for any time period creates an urgent necessity. 
They argue that the violation of these fundamental constitutional rights 
causes irreparable harm, and so on throughout the six that I have to weigh.

The first one, and perhaps the one that most of the attention has been 
focused on, is whether there is a reasonable probability of success on the 
merits.  Plaintiffs are attacking the part of the constitution of the state of 
Colorado which was passed by a majority vote of the voters November 3, 1992.  
Because it is a part of the constitution, they must prove at the final hearing 
in order to prevail that this amendment is unconstitutional beyond a reasonable 
doubt.  Several cases have said that that's the standard, including Rathke vs. 
McFarland.  That's the highest standard we have in Colorado.  That's the same 
standard as a jury would be asked to consider if someone is guilty of murder in 
the first degree.  Reasonable doubt in Colorado means a doubt based on reason 
and common sense, which arises from a fair and thoughtful consideration of all 
of the evidence or the lack of evidence in the case.  It is not a vague, 
speculative or imaginary doubt.  It is such a doubt as would cause reasonable 
persons to hesitate to act in matters of importance to themselves, and so at 
the hearing on the merits, they will have the burden of proving it beyond such 
reasonable doubt.  Plaintiffs argue that this amendment deprives them of 
fundamental rights guaranteed by the United States Constitution.  They do not 
argue that there is a fundamental right to be homosexual or bisexual or 
lesbian which is found in the United States Constitution.  Rather, they argue 
that the rights they are deprived of are found in the right to equal protection 
of the law under the First and Fourteenth Amendments to the United States 
Constitution. Specifically, plaintiffs argue that they will be denied the right 
to vote and the right to petition the government for redress of grievances by 
the right to have access to the courts.  What does the amendment say?  We've 
had the amendment on the podium from time to time here.  It says, "Neither the 
State of Colorado nor any of its branches or departments nor any of its 
agencies, political sudivisions, municipalities or school disticts shall enact, 
adopt or enforce any statute, regulation, ordinance or policy whereby 
homosexual, lesbian or bisexual orientation, conduct, practices or 
relationships shall constitute or otherwise be the basis of or entitle any 
person or class of persons to have or claim any minority status, quota 
preference, protected status, or claim of discrimination.  This section of the 
constitution shall be self-executing."  Plaintiffs produced evidence that the 
amendment was only addressed to claims of discrimination by homosexuals, 
lesbians, and bisexuals.  They did this by the testimony of witnesses who came 
before this court and announced, self-declared if you will, that they were 
homosexual and then by saying that neither they nor anyone that they knew who 
were also homosexual are seeking to establish any minority status or quota 
preference or protected status.  By doing this, the plaintiffs have attempted 
to narrow the focus to the claim of discrimination based on homosexual, 
bisexual or lesbian orientation.  They therefore urge that the amendment 
actually and only stands for the proposition that Colorado, by constitutional 
amendment, is now about to say that there will be no remedy available for acts 
of discrimination against homosexuals, bisexuals and lesbians, because those 
people alone may not go to the government to ask for laws to be enacted, or 
existing laws to be enforced, which would prevent that discrimination.  They 
then point out, both by testimony and exhibits, that there are existing laws, 
and they pointed specifically to Section 10-3-1104 having to do with insurance. 
And that says insurance companies may not discriminate in issuing insurance 
policies based on sexual orientation.  They point out that the executive 
department has an existing order by virtue of the governor's executive order of 
December 10, 1990, which prohibits discrimination based on sexual orientation.  
They point out from the testimony of the representatives of the home rule 
cities that these cities may not enact ordinances which may grant remedies for 
discrimination based on these particular orientations, and they further point 
out that the three cities which have such ordinances at the present time will 
be forbidden to enforce them if amendment 2 becomes effective.  They urge that 
school districts may not be allowed to remedy any discrimination as to faculty, 
employees or students based on discrimination for homosexuals, bisexuals or 
lesbians.  In short, the plaintiffs urge that this amendment, by denying the 
opportunity to obtain a remedy for discrimination based upon these 
orientations, has identified a specific group and said that any discrimination 
as to that group because of membership in that group may not be given relief or 
remedy by the agencies of the state of Colorado.  It has not said that the 
state will discriminate against homosexuals, bisexuals or lesbians, but it has 
said if any private citizen does discriminate based on such orientations that 
no remedy may be provided by the state.  Plaintiffs argue this amendment 
endorses and gives state approval to privatae discrimination.  Plaintiffs argue
that such a state stand endorsing and approving private discrimination deprives
them of the right to vote and the right to approach their government, 
specifically their courts, for a redress of grievances.  The plaintiffs offer 
much case authority in support of their position, many cases from the United 
States Supreme Court.  Such law is received and followed where appropriately 
applicable by Colorado courts, and the United States Supreme Court.  Plaintiffs 
offer several other cases which are not controlling in Colorado.  For  example, 
they offer cases from other states, California, for instance, and from federal 
courts which are not Supreme Courts.  That's proper.  There's nothing improper 
about that.  They're not sayng it is controlling here.  They're saying please 
read this and please review this. We believe there is wisdom to be gained which 
Colorado might wish to adopt.  Their lead case from where they began, and 
this is highlighted in the closing argument yesterday is Freedman vs. Malke 
(spelling?).  The case involved a question of race in the sale or leasing of 
rental property.

Let's turn now to the defendants.  The defendants quite rightly point out that 
the majority of cases offered by the plaintiffs deal with race, as does 
Freedman vs. Malke, their initial one, and not with questions of sexual 
orientation.  The court notes that the defense are right, that's correct.  But 
the court also notes that it wasn't very surprised by that, and the reason it 
wasn't very surprised by that is because the history of discrimination law in 
the United States is based on race, starting with the Fourteenth Amendment 
which talked about slavery.  And most, I will say, of the law has dealt then 
with the history of discrimination, and so most of these cases do talk about 
race.  Race has a very special place in our legal history, and I think it may 
well have a small place here.  Now, there has been a suggestion that as a part 
of defendants' exhibit C, one of the things that concerned those proponents of 
Amendment 2 was that there was urged in one jurisdiction in Colorado that a 
certain quota preference be given to those with homosexual or bisexual 
orientation.  It was never adopted, but they suggest that perhaps that is what 
is being addressed by the quota preference which is a part of Amendment 2.  
Now, defendants are allowed to present evidence, and defendants ar allowed to 
argue and they have done both here.  But Rathke vs.McFarland does not place 
any burden of proving anything on the defendants.  The burden is always with 
the plaintiffs who are seeking the injunction.  Now, in addition to not having 
to prove anything here, the defendants have the benefit of something else.  
Legislation in this case--this is a piece of initiated legislation that will 
become a part of the Colorado constitution and is entitled to something called 
a presumption of constitutionality.  The court understands that and gives to 
that statute a presumption of constitutionality.  That is not to say that the 
presumption may not be overcome by the presentation of evidence, but the 
defendants start with that presumption.  Defendants then well and fairly argue 
that there are several things here that have been discussed, that have been 
represented, that they strongly urge are not part of the case.  Mr. Dailey did 
this very well really at the up-front part of his argument yesterday.  He said 
Colorado for Family Values isn't party here.  He said the religious right isn't 
party here, nor the political right, nor whether Colorado could be deemed a 
hate state.  That's not here, judge, that's not what you're to decide.  And the 
defendants are correct, and the court accepts that.  As a matter of fact, I 
looked at what was presented to the court in terms of the efforts that had been 
made on part of Colorado for Family Values and the religious right and the 
political right, and what I saw was a group of Colorado citizens who wanted to 
present an initiative to the voters.  They said we would like the voters of 
Colorado to look at this, and so they acquired signatures, they presented 
things to the state government, they fllowed the political process, and they 
got it on the ballot, and then they lobbied for or were part of the lobbying 
effort for the passage of the amendment.  And that involved spending money and 
presenting their views.  There is absolutely nothing wrong with that.  As a 
matter of fact, that is exactly in keeping with the political process that this 
country is based on.  And this court, should there be an attack on that 
process, would vigorously defend those persons who have been involved with that 
process, because they have followed exactly what democracy urges.  As a matter 
of fact, at every election, what you hear is to the voters get involved, go to 
your caucuses, and vote.  That's exactly what they have done.  There is nothing 
suspect about that.  The focus of the defendants' argument was that this is not 
unconstitutional because all the amendment attempts to do is to make a part of 
Colorado law that which is existing in the federal law in terms of the 
treatment of homosexuals, lesbians and bisexuals.  The argument goes on that 
the court should not look to the limitation placed by plaintiffs just on the 
(word missing here), but rather look to the whole amendment, and they urge that 
because that demonstrates the true intent of the amendment.  If you isolate on 
one part you may not be viewing the true intent, and that the court should look 
to the ballot analysis as a type of legislative history, if you will, to 
demonstrate what that intent was.  The defendants also argue and they cite the 
same way United Supreme Court cases and cases from other courts.  They start 
with Bowers vs. Hardwick and they urge that gay, lesbian and bisexual 
conduct has been held--- conduct, now---has been held to be criminal by some 
states.  That case involved a statute outlawing sodomy and that statute was 
sustained in Bowers vs. Hardwick by the United States Supreme Court.  And they 
urge that this behavior which can be crimnalized defines the class of people 
here.  They also argue that a lawmaking procedure that disadvantages a 
particular group does not always violate constitutional law or deny equal 
protection, and they cite Supreme Court case law for that.  The court agrees 
with that general statement of the law.  They say there is no necessity for the 
court to intrude on the private moral values of citizens, and that is what is 
the heart of Amendment 2.  They urge, then, that the court distinguish between 
certain standards or measures, or tests, if you will, as to how you--how the 
court--should view an attack on constitutionality.  They say this should not be 
viewed under what is described as the strict scrutiny test, but only should be 
described or analyzed under what is called the rational basis test.   

These are the positions which have been taken, in summary, by the two sides 
here.  Now, the question is, what is the court to do?  First, the court is 
ruling on a motion for preliminary injunction.  I am not ruling on the 
constitutionality of Amendment 2.  As a matter of fact, the court may not at 
this time rule on the constitutionality of Amendment 2. I may only rule on the 
motion that is before me, a motion for preliminary injunction. Second, in 
ruling, I am following the guidelines as outlined from Rathke vs. McFarland.  
The courts view of this--in larage measure everything revolves around the first 
of the six elements.  As to whether plaintiffs have shown evidence and made 
argument that leads this court to conclude that they have a reasonable 
probability of proving that Amendment 2 is unconstitutional beyond a reasonable 
doubt at a hearing on the merits.  Now, some of the six parts are easier to 
answer on that score than others.  For example, the last one is the easiest.  
Will an injunction preserve the status quo?  Of course.  Amendment 2 has never 
been a part of the law of Colorado.  It is not now.  An injunction will 
preserve exactly that status.  The voters have voted on it, the secretary of 
state has certified the vote totals.  An injunction will preserve exactly that 
status.  The others tend to be related to that question that the court has 
identified.  Is there a danger of real, immediate and irreparable harm if 
Amendment 2 becomes effective? Well, if the court determines that this would be 
a denial of fundamental constitutional rights, then any denial of fundamental 
constitutional rights would be real, immediate and irreparable harm.  Keep in 
mind where I started.  Rights come first in the Colorado constitution.  The 
Bill of Rights is first.  The question relates as to whether Amendment 2 
amounts to a denial of a constitutional fundamental right.  Is there a plain, 
speedy and adequate remedy at law?  Well, once again, it is related to is this 
probably to be shown to be unconstitutional?  The only discussion of a 
potential remedy has been that someone could pass an amendment which repealed 
Amendment 2.  That is a plain remedy.  Plain isn't enough.  Is it speedy?  
Clearly not.  There would have to be some effort to get that sort of amendment 
on the ballot by legislative action or initiative.  Then there would have to be 
the election process.  There's a plain remedy, but it is clearly not speedy.  
But it does relate once again, as I have mentioned, to whether or not this is a 
violation of fundamental constitutional rights, or that they have shown that 
they have a reasonable probability of succeeding on the merits.  Will the 
granting of the preliminary injunction serve or disserve the public interest?  
It's tied to whether or not they have established whether they may or may not 
prevail.  The court finds that the public has no interest whatsoever in having 
an unconstitutional amendment be added to its constitution.  By the same token 
or, if you will, on the other hand, the state has every interest in having a 
constitutional amendment become efective if it is not unconstitutional, because 
the majority of the voters voted for it.  Does the balance of equities favor 
the injunction?  It goes back to the same question.  Is there an urgent 
necessity?  The urgent necessity is once again tied to whether or not they are 
able to prevail.

Therefore, the court concludes that in order to answer the question as to 
whether the plaintiffs have established a reasonable probability of success--a 
reasonable probability that they will prove that this is unconstitutional 
beyond a reasonable doubt, will determine the matter.  What is the state of the 
law in this court's view regarding the constitutionality of such an amendment?  
It has been mentioned that the law is not static.  It has been mentioned that 
it evolves, it grows, it changes, and that is true.  I'm going to borrow a few 
words from some justices of the supreme court, not about these cases, not about 
sexual orientation.  It's about the law.  It's about the law growing and 
changing.  Because I want to put this in context.  According to Mr. Justice 
McKenna in a case called Williams vs. the United States from a long time ago, 
1910, he said, "The clause of the constitution, in the opinion of the learned 
comentators, may be therefore progressive and is not fastened to the obsolete, 
but may acquire meaning as public opinion becomes enlightened by a humane 
justice."  I want to quote from Chief Justice Earl Warren in a 1958 case called 
Trope vs. Dulles.  He was discussing the eighth amendment, that's cruel and 
unusual punishment.  It says, "The words of the eighth amendment are not 
precise, and their scope is not static.  The amendment must draw its meaning 
from the evolving standards of decency that mark the progress of a maturing 
society."

What is the law on discrimination, or has it been?  As I mentioned, it started 
with the 14th amendment, which was for former slaves.  It related to blacks, it 
related to race.  It has been largely dominted by racial cases.  Th evolution 
has developed some legal standards, and they were argued yesterday, and I'm 
going to now discuss those.  One is that a violation of fundamental rights 
which involves something called a suspect class or a violation which involves a 
suspect class even if it is not a fundamental right, calls for strict scrutiny 
by the court.  It's not here.  Plaintiffs haven't argued it, it's not for the 
court to determine.  We'll go on to the next.  A second involved what are 
described as equal protection violations of fundamental rights.  What are 
fundamental rights?  There hae been a lot of cases that have discussed those.  
Fundamental rights have been deemed to include the right to participation in 
elections, the right of access to the courts, the right of privacy, and even 
the right of interstate travel.  In terms of this issue, the laws which may 
burden fundamental rights of an independently identifiable group are subject to 
what is called strict scrutiny of the courts under this equal protection 
analysis.  That's where the plaintiffs urge the court ought to come down.  
Those two prongs.  This is a fundamental freedom, and this is an independently 
identifiable group, and, therefore, the court must view this under the strict 
scrutiny standard.  What does that mean?  That means a law which burdens any of 
these fundamental rights of this independently identifiable group require--the 
state, now--to show and have a burden that this measure is necessariy related 
to a compelling governmental interest.  So it changes.  It had all the burden 
here, but if it were a strict scrutiny standard at the time of hearing on the 
merits, there would be two standards, one on this side of the room and one on 
that side of the room.  And plaintiffs urge that that is the standard I should 
apply.  The third standard which has been urged, in part, at leat, by the 
defense is called the rational basis test, and that involves laws which may 
involve nonfundamental rights, but may be something that's deemed 
nonfundamental rights in the constitution, and they are subject only to the 
test of rational basis.  That is to say, the court is to defer to the 
legislation if there is any rational relationship between a legitimate public 
goal to be accomplished and the lines drawn which may accomplish that, even 
though those lines in the legislation may amount to some degree of 
discrimination.  

The court concludes with regard to the first, that there is a fundamental 
freedom involved with Amendment 2.  The parties themselves have struggled to 
identify the fundamental freedom, and the reason they have struggled, I think, 
is because they have tried to cast it in the words of prior cases.  Let me read 
you some of those words. I'm going to read you some quotes, and there is always 
a question as to whether anybody ought to do this, but you have to understand 
where the court is coming from, because of the law that has come before.  The 
first case the plaintiffs cited is called Regan vs. Mulkey, and in this 
California case--and if you haven't read it, it involved Section 26 that they 
passed out there, and it says if you own a piece of prperty you can decide if 
you want to sell it or lease it to anybody, and it's your own decision.  That's 
all it said.  The court said private discriminations in housing for now are not 
only free from prior statutory enactments, but they also enjoyed a far 
different status than was true before the passage of those statutes.  The 
right to discriminate, including the right to discriminate on racial grounds, 
was now embodied in the state's basic charter, immune from legislative, execu-
tive or judicial regulation at any level of state government.  Those practicing 
racial discriminations need no longer rely solely on their personal choice.  
They could now envoke constitutional authority free from censure or 
interference of any kind from official sources.  The court in 1967 by a 5 to 4 
vote--there are nine justices on the United States Supreme Court--said that was 
unconstitutional, that involved a fundamental right because what it did was it 
took this private discrimination and it gave state support to it.  It was 5 to 
4 in 1967.  That means the majority said yes, and it was the law of the land, 
but what happens if we change the members of the Supreme Court?  I told you the 
law evolves, so let's come forward from 1967.  In 1984 there was a Supreme 
Court case which has been urged to the court--by both sides, as a matter of 
fact-- called Palmar vs. Sabadi.  This time it was a unanimous decision--9-0.  
And it didn't involve real estate at all, it involved child custody.  And the 
facts of that are that two people who are Anglo had been married and they had a 
baby and then they got a divorce, and in the divorce, custody of the baby was 
awarded to the mother.  And the mother, who was an Anglo, then took up with a 
Black man and they ultimately married.  And the father, who is Anglo, went for 
a change of custody, and basically the change of custody said my daughter is 
white and she will be victimized because there will be bias focused on her 
because the two people she's living with are of a mixed marriage--one White, 
one Black.  That's the context.  The Supreme Court said the question, however, 
is whether the reality of private biases and the possibly injury they might 
inflict are permissible considerations for removal of an infant child from the 
custody of its natural mother.  Seventeen years before the vote had been 5-4.  
This time it was unanimous, and the Supreme Court said, We have little 
difficulty concluding they are not..."--then it gives a footnote.  Sometimes a
lot of law is contained in footnotes, and the footnote says, "In light of our 
holding based on the equal protection clause, we need not reach or resolve 
petitioner's claim based on the 14th amendment's due process cause", so they 
are ruling on equal protection, which is being raised here.  The court then 
goes on to say, "The constitution cannot control such prejudices (that is, 
private prejudices), but neither can it tolerate them."  Private biases may be 
outside the reach of the law, but the law cannot directly or indirectly give 
them effect.  Two years ago, in 1991, there was a case which was not from the 
Supreme Court. It's been urged...as a matter of fac,t it was urged in closing 
argument by defense, it's called Pruitt vs. Chaney, a different set of facts.  
A lesbian was an officer in the Army Reserve.  She made a statement which was 
printed in the Los Angeles press that said, "I am a lesbian."  Based upon that, 
she was thrown out of the military.  They hae a regulation, an Army regulation, 
that says they can do that.  She brought suit to say that's unconstitutional.  
And she brought it because she said it's a violation of my right to freedom of 
speech. The only reason it was thrown out is because I spoke and it got printed 
in the paper, and that's why you threw me out, not because I'm homosexual.  
Now, the court said no, you were thrown out because of the Army regulation, 
because you're homosexual.  And that had been her claim.  But then the court 
incredibly said your claim was for violation of the first amendment, but you 
stated facts which may arise--may amount to a violation of the equal protection 
clause, and even though you didn't raise it by stating the theory, we are going 
to let you proceed on that theory which you didn't state.  An incredible swing! 
It said--it cited Palmar in the case which I just read to you.  In Palmar, the 
Supreme Court struck down a denial of custody of a chld based on social 
disapproval of the interracial marriage of her daughter.  In so ruling, the 
state said the constitution cannot control such prejudices, but neither can it 
tolerate them.  Private biases may be outside the reach of the law, but the law 
cannot directly or indirectly give them effect.  Then it went on to say 
Cleeburn, which is another case, made clear that this principle is not confined 
to instances of racial discrimination where viewed under strict scrutiny.  
Cleeburn was a case of zoning, basically.  It was whether you could put a group 
home for mentally retarded people within a certain area.  And in Cleeburn, the 
court said, "It is plain that the electorate as a whole, whether by referendum 
or otherwise, could not order city action violative of the equal protection 
clause," an then they cite a case called Lucas vs. 44th General Assembly of 
Colorado--that's a Supreme Court case--and the city may not avoid the 
strictures of that clause by deferring to the wishes or objections of some 
fraction of the body politic.  And then quoted Palmar, the same case I quoted 
before.  So, the first part has been established, the court considers.  There 
is a fundamental right here, and it is the right not to have the state endorse
and give effect to private biases.  

Second question.  Is there an identifiable class?  Yes.  A lot of these cases 
say it's real hard to find an identifiable class.  Not here.  The statute 
itself, that is, Amendment 2, defines the identifiable class.  A lot of these 
cases say even though it is facially neutral, that is to say, you can sell your 
property to anybody you want, or not sell it to anybody you don't want.  This 
isn't facially neutral, this identifies the class right in the amendment.  So I
find that there is an identifiable class.  Now, with regard to the idea that 
has been argued by defendants that I can't make this an identifiable class 
because in Bowers vs. Hardwick, the court concludes that this is principally 
--although the term conduct appears in there, this is principally an amendment 
which addresses status, not conduct.  Conduct (several words lost here) and I 
do that based on a case which was not cited by either side.  It's called 
Robinson vs. California, and that case is a Supreme Court case.  And it said 
you can't make a status a crime, even though the conduct is a crime.  It had to 
do with drugs.  Can you prevent--can you say it's a crime to possess drugs?  
Yep.  Sell them?  Yep.  Can you say it's a crime to be addicted to drugs?  
That's the status, and they said nope.  The court finds that this is a status.

Therefore, the court finds that the burden at the hearing on the merits is 
going to be twofold.   One, the plaintiffs must prove the unconstitutionality 
of this beyond a reasonable doubt, but, two, the court will look at this under 
the strict scrutiny standard and therefore the state will have to show more 
than a mere rational basis.  They'll have to show a substantial and compelling 
government interest in passing this.  

There will be a trial on the merits.  The amendment will be reviewed as though 
it is one involving a fundamental right as affecting an identifiable class.  It 
requires strict scrutiny and the two burdens.  This will take place in light of 
what Justice Warren said.  The evolving standards of decency that mark the 
progress of the maturing society.  

Will the plaintiffs win?  The court does not know.  Do the plaintiffs have a 
reasonable probability, given all this, given all of the law that the court has 
examined, do they have a reasonable probability of proving that Amendment 2 is 
unconstitutional beyond a reasonable doubt?  Yes.

The burdens of Rathke have been carried and met by the plaintiffs.  The motions 
for preliminary injunction are granted, and the defendants, the governor of 
the state of Colorado and the Attorney General of the state of Colorado are 
enjoined from declaring Amendment 2 in force, and are enjoined from enforcing 
Amendment 2 until further order of court.

This court is in recess.


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