The enactment challenged here is an amendment to the Colorado Constitution that repeals local ordinances that prohibit discrimination based on sexual orientation.
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.
An amendment to the Constitution of the State of Colorado, adopted in a 1992 referendum, repeals various local ordinances to the extent they prohibit discrimination on the basis of homosexual, lesbian, or bisexual orientation, conduct, practices or relationships. The amendment also prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class of homosexual persons or gays and lesbians. The State’s principal argument in defense of the amendment is 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 repeals local ordinances that prohibit discrimination based on sexual orientation and 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.
The people of Colorado have adopted an entirely reasonable provision which does not disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. Moreover, the Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, martial status, veterans’ status. The amendment is not intended to have any effect on this legislation but seeks only to prevent the adoption of anti-discrimination laws intended to protect gays, lesbians, and bisexuals.
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. Amendment 2 fails this inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. Amendment 2 is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented. The absence of precedent for Amendment 2 is itself instructive; discrimination of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.