In 1992, Colorado voters adopted Amendment 2 to their state Constitution precluding protected status based on “homosexual, lesbian, or bisexual orientation.” Amendment 2 was met with a legal challenge.
Discrimination on the basis of sexual orientation violates the Equal Protection Clause.
In 1992, Colorado voters adopted Amendment 2 to their state Constitution precluding protected status based on “homosexual, lesbian, or bisexual orientation.” 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.
Does Amendment 2 of Colorado’s State Constitution violate the Equal Protection Clause?
Yes, Amendment 2 of Colorado’s State Constitution violates the Equal Protection Clause.
In Bowers v. Hardwick, we held that the Constitution does not prohibit what virtually all states had done from this nation’s beginning until very recently–making homosexual conduct a crime. If it is constitutionally permissible for a state to make homosexual conduct a crime, surely it is constitutionally permissible for a state to enact other laws merely disfavoring homosexual conduct.
There is no harm in what is a “modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.” Moreover, Amendment 2 does not deny equal treatment under the law to homosexuals – it only prohibits their preferential protection.
Amendment 2 singles out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. If a law neither burdens a fundamental right nor targets a suspect class, this Court will uphold the legislative classification even if it seems to disadvantage a specific group, so long as it can be shown to advance a legitimate government interest. Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation fails this inquiry. It is at once too narrow and too broad – it identifies persons by a single trait and then denies them protection across the board. It is not within our constitutional tradition to enact laws of this sort. Per the Equal Protection Clause, an explicit desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.