The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. Brief Fact Summary.
94-1039 . It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. The critical discussion of the amendment, set out in Evans I, is as follows:"The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even local-option, basis-unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals.I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. PLAY. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, 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 preferences, protected status or claim of discrimination. . Code Section(s) 12-1-1 (defining "sexual orientation" as "the choice of sexual partners, i.e., bisexual, homosexual or heterosexual"); Denver Rev.
How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition.But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. Mun. . They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Municipal Code, Art. Romer v. Evans. It is at once too narrow and too broad.
The state trial court enjoined enforcement of the act. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. . The Colorado Supreme Court affirmed on appeal. Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. The constitutional amendment before us here is not the manifestation of a "`bare . "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. . Decided by Rehnquist Court . The Court today asserts that this most democratic of procedures is unconstitutional. desire to harm'" homosexuals,In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see,* Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights,",In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings.". 4-9.Kennedy, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, Ginsburg, and Breyer, JJ., joined. . . What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. 7. Striking it down is an act, not of judicial judgment, but of political will. See,Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government.
Id. Lower court Colorado Supreme Court . desire to harm a politically unpopular group,'".When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins-and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. So, the State says, the measure does no more than deny homosexuals special rights.
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