The petitioner challenged the amendment to the Constitution of the State of Colorado, referred to as Amendment 2 that prohibits all legislative, executive or judicial action at any level of state or local government designed to protect named class including homosexual persons or gays and lesbians.
A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws.
Earlier, the cities in Colorado each had enacted ordinances that protected persons discriminated against by reason of their sexual orientation. Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of homosexual, lesbian or bisexual orientation, conduct, practices or relationships. Yet Amendment 2 does not only repeal these provisions but prohibits all legislative, executive or judicial action at any level of state or local government designed to protect named class including homosexual persons or gays and lesbians. The State argues that it puts gays and lesbians in the same position as all other persons and thus, the measure does no more than deny homosexuals special rights.
Does the Colorado’s Amendment 2 that prohibits all legislative, executive or judicial action at any level of state or local government designed to protect named class including homosexual persons or gays and lesbians violate the Constitution?
Yes, the primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and the liberties of landlords or employers who have personal or religious objections to homosexuality. The breadth of the Amendment is so far removed from these particular justifications. Amendment 2 classifies homosexuals not to further a proper legislative goal but to make them unequal to everyone else. A State may not do this. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 therefore violates the Equal Protection Clause.
Those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities and care about homosexual rights issues much more ardently than the public at large. They possess political power much greater than their numbers both locally and statewide. Amendment 2 sought to counter both the geographical concentration and the disproportionate political power of homosexuals by resolving the controversy at the state level. It puts directly to all the citizens of the State the question of whether homosexuality should be given special protection. They answered no. The Court asserts that this most democratic of procedures is unconstitutional.
Under the Amendment 2, homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. If a law neither burdens a fundamental right nor targets a suspect class, the Court will uphold the legislative classification so long as it bears a rational relation to some legitimate goal.