From: WAND_M@gold.colorado.edu
Subject: Amendment 2 in limbo until court challenge
Followup-To: amend2-discuss@cs.colorado.edu
Originator: doherty@ucsu.Colorado.EDU
Organization: University of Colorado, Boulder
Distribution: usa
Date: Sun, 24 Jan 1993 04:39:56 GMT

Gazette Telegraph, Colorado Sprints
January 16, 1993

Hearing on measure's constitutionality next

By Louis Aguilar

DENVER--Amendment 2 will not become law until the courts decide whether it is 
constitutional, a Denver judge ruled Friday.

Denver District Judge Jeff Bayless issued a temporary injunction that prevents 
the measure from taking effect and warned the state that it must prove a 
compelling need to include the amendment in the constitution.

The decision elated the homosexual community, but Amendment 2 supporters and 
critics vowed to continue the fight that began last May when the measure made 
its way onto the ballot.

Amendment 2, authored by Springs-based Colorado for Family Values and approved 
by voters in November, bars laws that protect gays, lesgbians and bisexuals 
from discrimination based on their sexual orientation.

Gov. Roy Romer and state Attorney General Gale Norton said they will imediately 
appeal the ruling to the Colorado Supreme Court.  That action, in part, will 
help the state define what legal questions it will face in the trial over the 
amendment's constitutionality, Romer said.

"Judge Bayless has set out a fairly definitive standarad, and we need a higher 
court to confirm or deny that standard," Romer said in a written response to the 
ruling.

Bayless said he agreed to the injunction because there is a reasonable chance 
that Amendment 2 will be deemed unconstitutional for allowing discrimination 
toward gays.  He cited case law that showed that "private prejudice" cannot be 
sanctioned by the state.  

But he warned that the granting of the injunction should not be taken as 
foreshadowing that the amendment will be overturned.

The attorneys involved and other legal experts, however, said the state will 
have a tough time meeting the legal standards outlined by Bayless in his 
50-minute discussion of his ruling.

State Attorney Tim Tymkovich said the Bayless ruling "puts the government role 
in a difficult position" because the state must show "what legitimate 
government purpose and need" Amendment 2 will carry out.

And since Bayless said the thrust of the amendment is really about civil rights 
for gays and bisexuals, it essentially has to prove how Colorado law becomes 
better and more efficient in dealing with gay civil rights through Amendment 2.

"In fundamental rights issues such as equal protection, a government always has 
difficulty proving that," Tymkovich said.

Gene Nichol, dean of the law school at the University of Colorado at  Boulder, 
said the judge's ruling indicates a strong possibility that Amendment 2 could 
be struck down after a trial.

"In this instance, I think his ruling has more significance than just the 
timing," Nichol said.  'Because the theory employed...was that a very rigorous 
standard of review should be applied under the equal-protection clause (of the 
l4th Amendmenet) to Amendment 2.

"Meaning, that unless there's a compelling state interest to justify the 
distinctions drawn in Amendment 2, that it should be ruled unconstitutional.  I 
think it's important to note, that test is almost never met.  And so, the 
likelihood that the plaintiffs will eventually win on the merits, as well, is 
very high."  

Bayless said the amendment was legally put on the ballot and legally adopted.  
But that doesn't mean that it will meet the constitutional test.

The people of Colorado may change the state's constitution, but the law says 
the change must not ge "repugnant to the Constitution of the United States," he 
said.

The judge's ruling brought a roar of cheers from the crowd watching the 
proceeding through the monitors of TV news cameras outside the courtoom.  
Richard Evans, a gay man who is the lead plaintiff in the lawsuit, said he 
"felt like we won round one."

Eight homosexuals, a straight man with AIDS, and the cities of Boulder, Denver 
and Aspen are behind the lawsuit seeking to have the amendment ruled 
unconstitutional.

"This has been the most incredible week in my life," Evans said.  "It's taken a 
judge to say that gays and bisexuals do face tremendous discrimination, some-
thing I've known for a long time.  I'm going to go home and have a good meal 
with my lover and...basically, feel better about our protection in society."

The lead plaintiff lawyer, Greg Eurich, called Bayless' ruling a "an incredibly 
brave decision."

"He defined the way he will look at the lawsuit, and he protected the rights of 
a very unpopular minority.  It is a great day for the state of civil rights in 
Colorado."

Eurich said he hopes the injunction sends a message to the groups in the eight 
to 12 states reportedly working on Amendment 2-type initiatives.  "This should 
tell them that you can't go after civil rights without expecting a great deal 
of difficulty."

But Kevin Tebedo, executive director of Colorado for Family Values, said the 
ruling was "not a setback."

"The judge made a very good point that nobody in Colorado wants a bad law.  
This is an opportunity for the courts to go through the checks and 
balances...and make sure they are doing the right thing.  I hope this tells 
other groups out there to don't give up.  The fight is still going on."

Ever since the public debate began over Amendment 2, critics have contended it 
was about fundamental rights for gays and lesbians.  Not about the hiring 
quotas or affirmative action policies that amendment supporters told voters it 
was about.

Critics say it denies gays and bisexuals legal recourse when they are fired or 
kicked out of their housing because of their sexual orientation.  Therefore, 
they say, it clearly limits their ability to fight discrimination.

Several of the plaintiffs testified they need that protection.  For example, 
Angela Romero, a Denver police officer, tearfully testified that she was 
demoted and taken out of her position of working with inner-city kids when her 
boss found out she was a lesbian.  He found out about her sexuality, she 
contends, by noticing one of her expense accounts included materials bought 
from a lesbian book store.

Romero said she fought successfully to get some gay rights protections in the 
Denver Police Departent, but they will be wiped out because of Amendment 2.

The three cities involved in the lawsuit said that since local governments 
can't enact ordinances to ensure gay rights, they can't help prevent 
discrimination.

Supporters of Amendment 2 contend that since federal civil right laws don't 
define 

	OK, I can't stand it anymore.  This article is filled with
	strange punctuation, misuse of quotation marks, misspellings, 
	etc., as are many GT articles.  I am reproducing this---this
	stuff--exactly as it appears.  I'm tired of trying to stick (sic)
	in every few words.  If any of you need a job, maybe you should 
	contact GT; they obviously need a proofreader.  Wand.      

Supporters of Amendment 2 contend that since federal civil right laws don't 
define homosexuals as an identifiable minority group, the homosexuals are 
asking for special rights. Supporters say they shouldn't be allowed those kinds 
of discriminatory protections if the federal government hasn't really 
identified them.

That's true, Bayless said, but he also said that courts have the power to 
expand civil rights.  He quoted a U.S. Supreme Court justice saying that 
American laws have "evolving standards of decency which mark the evolution of 
a maturing society."

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