882 P.2d 1335 (Colo. 1994), 94SA48, Evans v. Romer

Docket Nº:94SA48, 94SA128.
Citation:882 P.2d 1335
Opinion Judge:ROVIRA Chief Justice.
Party Name:Richard G. EVANS, Angela Romero, Linda Fowler, Paul Brown, Priscilla Inkpen, John Miller, The Boulder Valley School District Re-2, The City and County of Denver, The City of Boulder, The City of Aspen, and The City Council of Aspen, Plaintiffs-Appellees, v. Roy ROMER, as Governor of the State of Colorado, and the State of Colorado, Defendants-Appel
Attorney:Jean E. Dubofsky, P.C., Jean E. Dubofsky, Jeanne Winer, Boulder, Holland & Hart, Gregory A. Eurich, American Civ. Liberties Union of Colorado, David H. Miller, City and County of Denver, City Atty., Darlene M. Ebert, Asst. City Atty., Denver, Boulder City Atty., Joseph N. deRaismes, III, Jane W. ...
Judge Panel:SCOTT, J., concurs. ERICKSON, J., dissents.
Case Date:October 11, 1994
Court:Supreme Court of Colorado
 
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Page 1335

882 P.2d 1335 (Colo. 1994)

Richard G. EVANS, Angela Romero, Linda Fowler, Paul Brown, Priscilla Inkpen, John Miller, The Boulder Valley School District Re-2, The City and County of Denver, The City of Boulder, The City of Aspen, and The City Council of Aspen, Plaintiffs-Appellees,

v.

Roy ROMER, as Governor of the State of Colorado, and the State of Colorado, Defendants-Appellants.

Nos. 94SA48, 94SA128.

Supreme Court of Colorado, En Banc

October 11, 1994

Page 1338

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Jeanne Winer, Boulder, Holland & Hart, Gregory A. Eurich, American Civ. Liberties Union of Colorado, David H. Miller, City and County of Denver, City Atty., Darlene M. Ebert, Asst. City Atty., Denver, Boulder City Atty., Joseph N. deRaismes, III, Jane W. Greenfield, Boulder, Aspen City Atty., John Paul Worcester, Aspen, Special Counsel for City of Aspen and Aspen City Counsel, Edward M. Caswall, Telluride, American Civ. Liberties Union Foundation, William B. Rubenstein, Matthew A. Coles, Lambda Legal Defense and Educ. Fund, Inc., Suzanne B. Goldberg, New York City, Wilson, Sonsini, Goodrich & Rosati, Clyde J. Wadsworth, Palo Alto, CA, Roderick M. Hills, Jr., Ann Arbor, MI, for plaintiffs-appellees.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Paul Farley, Deputy Attys. Gen., Denver, for defendants-appellants.

Keith E. Abbott, Greeley, for amicus curiae for Family Research Institute.

The Nat. Legal Foundation, Robert K. Skolrood, Virginia Beach, VA, for amicus curiae Colorado for Family Values.

OPINION

ROVIRA Chief Justice.

Defendants, Roy Romer, Governor of the State of Colorado, Gale A. Norton, Attorney General of the State of Colorado, and the State of Colorado (defendants) appeal the trial court's entry of a permanent injunction enjoining them from enforcing a voter-initiated amendment to the Colorado Constitution ("Amendment 2"). We affirm.

I

In May 1992, petitions which would amend the Colorado Constitution by adding a new section 30b to article II were filed with the secretary of state. The proposed amendment was put to the voters as Amendment 2 on November 3, 1992, and passed by a vote of 813,966 to 710,151 (53.4% to 46.6%). The secretary of state certified the results on December 16, 1992, as required by article V, section 1, of the state constitution.

Amendment 2 provides:

No 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.

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This Section of the Constitution shall be in all respects self-executing.

On November 12, 1992, Richard G. Evans, along with eight other persons, the Boulder Valley School District RE-2, the City and County of Denver, the City of Boulder, the City of Aspen, and the City Council of Aspen (plaintiffs) filed suit in Denver District Court to enjoin the enforcement of Amendment 2 claiming that the amendment was unconstitutional.

The trial court conducted an evidentiary hearing to consider plaintiffs' motion for a preliminary injunction. Subsequently, the court granted the motion and prohibited the defendants from enforcing Amendment 2 pending the outcome of a trial on the merits. 1

The defendants appealed pursuant to C.A.R. 1(a)(3), and we granted review. See Evans v. Romer, 854 P.2d 1270 (Colo.1993) (Evans I ). In Evans I, we first addressed the question of the legal standard to be applied in reviewing the trial court's entry of the preliminary injunction. Following the precedent of the United States Supreme Court, we held that "the Equal Protection Clause of the United States Constitution protects the fundamental right to participate equally in the political process," and "that any legislation or state constitutional amendment which infringes on this right by 'fencing out' an independently identifiable class of persons must be subject to strict judicial scrutiny." Id. at 1282.

After recognizing that "[t]he 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" and that the " 'ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures," we held:

[T]he right to participate equally in the political process is clearly affected by Amendment 2, because it bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs insofar as those persons deem it beneficial to seek legislation that would protect them from discrimination based on their sexual orientation. Amendment 2 alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment. Rather than attempting to withdraw antidiscrimination issues as a whole from state and local control, Amendment 2 singles out one form of discrimination and removes its redress from consideration by the normal political processes.

Id. at 1285. We concluded that the trial court did not err in granting the preliminary injunction enjoining defendants from enforcing Amendment 2.

After our decision in Evans I, the case was remanded to the trial court to determine whether Amendment 2 was supported by a compelling state interest and narrowly tailored to serve that interest. Id. at 1286. At trial the defendants offered six "compelling" state interests: (1) deterring factionalism; (2) preserving the integrity of the state's political functions; (3) preserving the ability of the state to remedy discrimination against suspect classes; (4) preventing the government from interfering with personal, familial, and religious privacy; (5) preventing government from subsidizing the political objectives of a special interest group; and (6) promoting the physical and psychological well-being

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of Colorado children. 2

The trial court concluded that the interest in deterring "factionalism" was in truth, nothing more than an attempt to impede the expression of "a difference of opinion on a controversial political question...." It concluded that the first governmental interest was not a compelling state interest but rather, that "the opposite of defendants' claimed compelling interest is most probably compelling," i.e., encouraging the competition of ideas with uninhibited, robust, and wide-open political debate.

The trial court found that the interest of preserving the State's political functions, premised on the Tenth Amendment right of the states to amend state constitutions, was not a compelling interest since "[d]efendants' legal argument is not supported by federal or state case law, nor is it supported by the Colorado Constitution."

With respect to the interest in preserving the ability of the state to remedy discrimination against groups which have been held to be suspect classes, the trial court stated its doubt as to whether fiscal concerns of the state rise to the level of a compelling state interest. The court held that Amendment 2 could not be understood to further this interest because,

[d]efendants' evidence was principally in the form of opinion and theory as to what would occur if a Denver type ordinance were adopted as a state statute. There is no such statute, nor is one proposed. Plaintiffs' evidence was based on what has happened over the course of eleven years in Wisconsin, and during the time in which the Denver ordinance has included a sexual orientation provision. Those actual experiences show that the presence of a sexual orientation provision has not increased costs or impaired the enforcement of other civil rights statutes or ordinances.

Thus, the trial court concluded that "defendants' offered evidence of lack of fiscal ability [is] unpersuasive in all respects."

The trial court held that preventing the government from interfering with personal, familial, and religious privacy was, in part, a compelling state interest. Although the court acknowledged promotion of family privacy is a compelling state interest, it held that defendants never established what they meant by the term "family." Moreover, defendants failed to "tie-in ... the interest of protecting the family and denying gays and bisexuals the right to political participation...."

The trial court also found that preserving religious liberty was a compelling state interest. However, it held that Amendment 2 was not narrowly tailored to serve this interest. "The narrowly focused way of addressing [antidiscrimination protections for gay men, lesbians, and bisexuals] is to add to it a religious exemption such as is found in the Denver and Aspen ordinances, not to deny gays and bisexuals their fundamental right of participation in the political process."

The trial court rejected the personal privacy component of the argument on the grounds that "[t]he general issue of whether personal privacy is a compelling state interest was not adequately established. The court can only speculate as to what defendants...

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