Evans v. Romer

Decision Date19 July 1993
Docket NumberNo. 93SA17,93SA17
Citation854 P.2d 1270
Parties62 Fair Empl.Prac.Cas. (BNA) 779, 62 Empl. Prac. Dec. P 42,621, 62 USLW 2052 Richard G. EVANS, Angela Romero, Linda Fowler, Paul Brown, Jane Doe, Martina Navratilova, Bret Tanberg, 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, Gale A. Norton, as Attorney General of the State of Colorado, and the State of Colorado, Defendants-Appellants.
CourtColorado Supreme Court

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Jeanne Winer, Joseph N. deRaismes, III, Boulder City Atty., Boulder, Holland & Hart, Gregory A. Eurich, Darlene M. Ebert, Denver Asst. City Atty., Denver, Edward M. Caswall, John P. Worcester, Aspen City Atty., Aspen, Matthew Coles, ACLU Lesbian & Gay Rights Project, New York City, Suzanne Goldberg, Lambda Legal Defense & Education Fund, Inc., New York City, Wilson, Sonsini, Goodrich & Rosati, Clyde J. Wadsworth, Palo Alto, CA, David H. Miller, American Civil Liberties Union, Denver, for plaintiffs-appellees.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Paul Farley, Deputy Atty. Gen., Denver, for defendants-appellants.

Martin Kuhn, Colorado Springs, Robert K. Skolrood, Tracy Louise Winn, Virginia Beach, VA, amicus curiae, for Colorado for Family Values.

Roger Westlund, Thornton, Jordan Lorence, Paonian Springs, VA, amicus curiae, for Institute in Basic Life Principles.

Center for Human Rights Advocacy, William M. Cohen, Boulder, amicus curiae, for American Jewish Committee, United Church of Christ Office for Church in Society, Union of American Hebrew Congregations, Unitarian Universalist Ass'n, Anti-Defamation League.

Bredhoff & Kaiser, Robert H. Chanin, John M. West, Washington, DC, Martha R. Houser, Aurora, amicus curiae, for National Educ. Ass'n.

Theodore W. Rosen, David A. Braff, Penny Shane, Ralph Erich Jones, Eulalia M. Mack, Scott A. Kronland, New York City, amicus curiae, for AIDS Action Council.

Heller, Ehrman, White & McAuliffe, Stephen V. Bomse, San Francisco, CA, Feiger Collison & Killmer, Darold W. Killmer, Diane S. King, Denver, amicus curiae, for Colorado Bar Ass'n, Colorado Trial Lawyers Ass'n.

AFSCME Colorado Council 76, M. Patrick Steadman, Denver, AFL-CIO, Jack Dempsey, Kimberlee Keller, Washington, DC, amicus curiae, for American Federation of State, County and Municipal Employees, AFL-CIO.

Sherman & Howard, Keith M. Angle, Ireland Stapleton Pryor & Pascoe, Scot M. Peterson, Denver, amicus curiae, for Coalition of Associations of Mental Health Professionals.

Chief Justice ROVIRA delivered the Opinion of the Court.

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


In May 1992, the requisite number of qualified voters submitted petitions to the secretary of state to present to the electorate a new section 30 to article II of the Colorado Constitution. The proposed constitutional amendment was put to the voters as Amendment 2 on November 3, 1992, and passed by a margin of 813,966 to 710,151 (53.4% to 46.6%). 1 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. This Section of the Constitution shall be in all respects self-executing.

On November 12, 1992, Richard G. Evans, along with eight other persons ("individual plaintiffs"), and 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 ("governmental plaintiffs") (referred to collectively as "plaintiffs") filed suit in Denver District Court to enjoin the enforcement of Amendment 2 claiming that the amendment is unconstitutional. This contention was premised on several state and federal constitutional provisions. 2 After plaintiffs' request for an expedited hearing on the merits was rejected, they filed a motion seeking to preliminarily enjoin the enforcement of Amendment 2 which was to go into effect on or before January 15, 1993. 3 In support of this motion, plaintiffs argued that Amendment 2 deprives them of the First Amendment right of free expression and their Fourteenth Amendment right to equal protection of the laws. The First Amendment claim was based on the contention that Amendment 2 eliminates all potential means of redress for private retaliation or discrimination against gay men, lesbians, and bisexuals. Accordingly, the First Amendment requires the government to demonstrate a compelling justification for exposing those who engage in expressive conduct to increased risk. This burden, plaintiffs maintained, could not be met by the state. The trial court neither addressed nor relied on this argument in rendering its decision.

Plaintiffs presented two separate arguments under the Equal Protection Clause. First, that Amendment 2 violates their right to equal protection of the laws insofar as it denies gay men, lesbians, and bisexuals the opportunity to participate equally in the political process. Second, that Amendment 2 lacks a rational basis for the burdens it imposes on gay men, lesbians, and bisexuals.

The trial court conducted an evidentiary hearing to consider the motion. Following its conclusion, the court issued a temporary restraining order. The next day, the trial court held that plaintiffs had met their burden under the six-part test of Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo.1982), which sets forth the applicable standard for the issuance of a preliminary injunction and accordingly, granted plaintiffs' motion barring the enforcement of Amendment 2 pending the outcome of a trial on the merits. 4

More specifically (and of central importance to this appeal) the trial court concluded that plaintiffs had met the threshold requirement of Rathke by demonstrating that enjoining the enforcement of Amendment 2 was necessary to protect their right to equal protection of the laws under the United States Constitution. The court reached this conclusion by reasoning that Amendment 2 "may burden fundamental rights of an identifiable group." The fundamental right, the court went on, was "the right not to have the State endorse and give effect to private biases." 5

The trial court then determined that because Amendment 2 may burden a fundamental constitutional right, its constitutionality must be assessed by reference to the "strict scrutiny" standard of review. The court concluded that under this standard, plaintiffs had shown to a reasonable probability that Amendment 2 would be demonstrated to be unconstitutional beyond a reasonable doubt at a trial on the merits. See Bollier v. People, 635 P.2d 543, 545 (Colo.1981) (statutes are presumed constitutional until and unless the contrary can be shown beyond a reasonable doubt). 6

Defendants appealed pursuant to C.A.R. 1(a)(3), and we granted review. The basis of defendants' challenge to the preliminary injunction pertains only to the trial court's determination that the threshold requirement of Rathke v. MacFarlane had been met (i.e., that injunctive relief is necessary to protect existing fundamental constitutional rights). Accordingly, the gravamen of defendants' allegation of error is their contention that the trial court "did not base its decision on any direct precedent," but rather "extrapolated from several federal court decisions" the right identified and allegedly infringed by Amendment 2. Moreover, defendants argue, there is no applicable legal precedent or established right under the Equal Protection Clause of the United States Constitution which Amendment 2 can be shown to infringe upon. Defendants conclude, therefore, that "the lower court's order was fundamentally flawed, and cannot be sustained."

Plaintiffs have presented to this court the same equal protection arguments that were made to, but not relied on by, the trial court. They do not urge that we base our decision on the precise right identified and relied on by the trial court in rendering its decision. To the contrary, they have argued to this court that the right identified by the trial court, when "read in light of the arguments actually presented to [it] ... is best construed to mean that Amendment 2 violates the plaintiffs' fundamental right of political participation...." In short, plaintiffs urge us to rely only on the equal protection arguments which they have relied on, and that the trial court's ruling should be construed to have done the same.

Before turning to the merits, we first set forth the applicable standard of review which governs our decision.


"The grant or denial of a preliminary injunction is a decision which lies within the sound discretion of the trial court." Rathke, 648 P.2d at 653. Consequently, an appellate court reviewing the issuance of a preliminary injunction will usually do so with great deference to the conclusion...

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