Evans v. Romer

auto rental com (holding that a self-insured provide pany EVANS, Angela Romero, not uninsured motorist need Lin Richard G. renters); Transport Lapp v. In coverage to Fowler, Brown, Ink da Paul Priscilla Co., Cal.Rptr. Cal.App.3d dem. Miller, Valley pen, The John Boulder (1985) (finding company that a car rental Re-2, City The School District coverage motorist legally uninsured waived Denver, Boulder, County City vehicle); renter of and such waiver binds City City Aspen, and The Council Ky. Wright Taylor, &

Reeves v. Plaintiffs-Appellees, Aspen, (“[T]he 1007, 1010 owner of S.W.2d engaged not the leased automobiles is procures he certif insurance business when Roy ROMER, as of the State Governor Department insurance from the

icate of self Colorado, Colorado, and the State of liability in lieu of a insurance of Revenue Defendants-Appellants. merely he policy. The certificate shows that responsi financial produced has evidence of 94SA48, Nos. 94SA128. Tel. bility.”); States Tel. & Co. v. Mountain Co., Casualty Surety 116 Ariz. Aetna Colorado, Court (finding (App.1977) P.2d 1123 En Banc. duty provide employer self-insured had coverage employee uninsured motorist 11, 1994. Oct. injured job notwithstanding Arizona’s requirement uninsured statutory motor coverage policy

ist be included insurance). liability motor vehicle

Although Budget’s as a self-insurer status why it

provides an additional reason was not protec-

required motorist to offer uninsured customers, my analysis of

tion

statutory provisions part discussed su- equal

pra, governs with force situation

presented Accordingly, exemption here. 10-4-608, 4A

contained within section C.R.S.

(1994), excluding part applying to a automobiles,

policy insuring more than four Budget,

applies to these facts since self-insurer, possess more

certified had twenty-five pursuant to the

than automobiles

requirements in section 10-4-716. Based on coverage required exemption, under Therefore, apply. does

section 10-4-609

for the same reasons that North-West was to offer uninsured motorist cov- required Budget required to

erage, also was not offer coverage pursuant to sec-

uninsured motorist I affirm

tion would therefore 10-4-609. entry summary judgment in

trial court’s Budget.

favor of say

I authorized to that Chief Justice am joins in this dissent.

ROVIRA Hills, Jr., Alto, CA, Ann M.

Palo Roderick MI, Arbor, plaintiffs-appellees. for Norton, Gen., Atty. Stephen K. A. Gale Gen., ErkenBrack, Deputy Atty. Timo- Chief Gen., Daniel thy Tymkovich, John M. Sol. Gen., Attys. Dailey, Farley, Deputy Paul Denver, defendants-appellants. Abbott, Greeley, amicus curi- E. Keith Family Research Institute. ae for Foundation, Legal Robert K. The Nat. Beach, VA, Skolrood, cu- Virginia for amicus Family riae Values. Colorado delivered the Justice ROVIRA Chief Opinion of the Court.

Defendants, Romer, Roy Governor Colorado, Norton, Attorney of Gale A. State Colorado, of and the General of State (defendants) appeal the of State Colorado injunction entry permanent trial court’s of enforcing enjoining them from a voter-initi- amendment to the Colorado Constitu- ated 2”). (“Amendment affirm. tion We I May petitions would amend by adding a new the Colorado Constitution II to article were filed with section 30b proposed amend- secretary of state. The put to as Amendment ment was the voters passed and a vote on November 46.6%). (53.4% 710,151 813,966 of secretary certified the results of state V, required by article December 1, of the state constitution. section P.C., Dubofsky, Dubofsky, E. E. Jean Jean 2 provides: Boulder, Hart, Winer, & Holland Jeanne Eurich, on Homosex- No Protected Status Based Gregory A. American Civ. Liberties ual, Lesbian, Colorado, Miller, City or Bisexual Orientation. David H. Union Colorado, through any Denver, County City Atty., Darlene M. Neither State Denver, any Ebert, City departments, nor City Atty., of its branches Asst. Boulder subdivisions, deRaismes, III, munici- agencies, Atty., Joseph N. Jane W. districts, enact, Greenfield, Boulder, City Atty., palities or school shall Aspen John statute, Worcester, any regulation, adopt or enforce Aspen, Special Counsel Paul homosexual, Counsel, policy whereby City Ed- ordinance or City Aspen Aspen orientation, conduct, Caswall, Telluride, lesbian or bisexual American Civ. ward M. Foundation, relationships practices Ru- shall constitute B. Liberties Union William Coles, or entitle benstein, Legal or otherwise be the basis of A. Lambda Matthew Fund, Inc., person persons to have or claim B. or class and Educ. Suzanne Defense Wilson, Sonsini, any minority quota preferences, City, status Goldberg, New York Wadsworth, Rosati, protected or claim of discrimination. Clyde status J. Goodrich & permit is first amended to such shall be constitution of the Constitution This Section measures,” self-executing. respects we held: all Evans, Richard G. participate equally November On [T]he eight persons, the Boulder along with other clearly political process is affected RE-2, City Valley District School men, gay because it bars Denver, Boulder, City County lesbians, having and bisexuals from an ef- Aspen City Aspen, City Council of fective voice affairs inso- in Denver District Court (plaintiffs) filed suit persons it beneficial to far as those deem enjoin the enforcement of Amendment protect legislation that would them seek unconstitu- claiming that the amendment was on their sexuаl from discrimination based tional. polit- orientation. Amendment alters the process targeted ical so that a class is evidentiary trial court conducted an prohibited obtaining legislative, exec- hearing plaintiffs’ to consider motion for utive, judicial protection or injunction. Subsequently, redress preliminary prohibited the granted the motion and absent the consent of a court from discrimination enforcing Amendment defendants from through majority of the electorate trial on the merits.1 pending the outcome of a adoption amendment. of a constitutional attempting anti- Rather than to withdraw appealed pursuant to The defendants a from state discrimination issues as whole granted review. See 1(a)(3), C.A.R. and we control, singles and local out Romer, (Colo.1993) Evans v. P.2d 1270 its one form of discrimination and removes (Evans I, I). In Evans we first addressed by redress from consideration the normal to question legal the standard be political processes. entry reviewing in trial court’s of applied the injunction. preliminary Following the the Id. concluded that the trial 1285. We precedent the States of United granting preliminary in the court did not err Court, Equal we held that “the Protection injunction enjoining defendants from enforc- pro- Constitution Clause of the United States ing Amendment right participate to tects the fundamental I, in Evans political process,” in and “that equally the After our the case was decision any legislation amend- or state constitutional to the trial court to determine remanded infringes right by ‘fencing ment which on this supported by a Amendment was whether independently an identifiable class of out’ narrowly compelling interest and tai- state subject judicial persons to strict must be Id. at 1286. At lored to serve that interest. scrutiny.” Id. at 1282. “compelling” offered six trial the defendants (1) factionalism; deterring state interests: immediate recognizing “[t]he After that (2) integrity of the preserving the state’s minimum, is, objective of Amendment at a (3) functions; ability preserving the political statutes, regulations, repeal existing ordi- to remedy against to discrimination of the state nances, policies and of state and local entities (4) classes; preventing govern- the suspect based on sexuаl that barred discrimination “ familial, personal, interfering from with and that the ‘ultimate effect’ of orientation” (5) govern- religious privacy; preventing and any governmen- prohibit Amendment 2 is to objectives subsidizing political the ment from similar, entity adopting or more tal special group; promot- and ordinances, of a interest statutes, regulations, protective well-being ing physical psychological the and future unless the state policies right, consti plaintiffs a constitutional its had den fundamental 1. The trial court concluded tutionality by reference to the requirement must be assessed of Rathke met the threshold MacFarlane, (Colo. 1982), scrutiny” by of review. The court dem "strict standard 648 P.2d 648 standard, plaintiffs had onstrating enjoining concluded that under this the enforcement probability that Amend necessary protect their shown to a reasonable 2 was protection ment 2 would be demonstrated to be unconstitu right equal the laws under the beyond doubt at a trial on the court then tional a reasonable Constitution. The trial United States merits. bur determined that because Although compelling state interest. children.2 Colorado acknowledged family promotion pri- court trial court concluded that interest interest, it vacy compelling state is held truth, deterring was “factionalism” what that defendants never established impede nothing attempt than more Moreover, “family.” meant term de- opinion on “a expression of difference failed to “tie-in interest of fendants It con- political question_” controversial denying gays family protecting the first interest cluded compelling partic- but rath- right political not a state interest was bisexuals _” er, opposite that “the of defendants’ claimed ipation compel- compelling probably interest most preserving court found that The trial also i.e., competition ling,” encouraging the liberty compelling state inter- religious was robust, wide-open uninhibited, ideas with However, it that Amendment est. held debate. political narrowly to serve this inter- was not tailored that the interest of The trial court found way of narrowly est. “The focused address- functions, political preserving State’s ing protections gay [antidiscrimination premised on the Tenth Amendment lesbians, men, is to add it a bisexuals] constitutions, to amend the states religious exemption is found such as “[defendants’ interest since not ordinances, deny Aspen Denver argument supported federal or legal gays and bisexuals their fundamental law, supported nor state case process.” participation Constitution.” Colorado respect preserving With priva- rejected personal The trial court ability remedy of the state to discrimina- cy component argument on the against groups been held to tion which have grounds general issue of whether “[t]he classes, stated the trial court personal privacy compelling state inter- is a to whether concerns of the doubt as fiscal not adequately est was established. The compelling to the level of a state state rise only speculate can as to what defen- court court Amendment 2 interest. The held that by personal privacy and dants mean how to further this inter- could not be understood right.” protects 2 a Amendment such because, est principally in evidence was [d]efendants’ preventing government in The theory opinion as to what the form of and objectives subsidizing of a from type if a occur Denver ordinance would rejected group on special interest was as a There adopted were state statute. compelling grounds “[t]his that claimed inter- statute, proposed. no such nor is one supported by any est was not credible evi- Plaintiffs’ evidence based on what has was any cogent argument, and the dence or court years over eleven happened the course of compelling it concludes that is not a Wisconsin, during the time which interest.” included a sexu- the Denver ordinance has rejected Similarly, argu- provision. Those actual ex- trial court al orientation of a sex- periences presence protection show that the children ment that is a provision ual orientation has not increased compelling state Amend- interest served of other impaired costs or the enforcement “[djefendants have failed to because civil statutes or ordinances. support present sufficient evidence to this Thus, compelling court that “defen- claimed interest.” the trial concluded ability lack fiscal dants’ offered evidence of unpersuasive respects.” all Accordingly,

[is] trial because the court that neces concluded Amendment preventing trial court that held sary support any compelling state interest interfering personal, government from with interest, familial, was, religious part, narrowly meet that privacy tailored to appeal. has not the sixth interest 2. The state reasserted holding reaffirm our that enjoined decision. We the enforcement permanently constitutionality of Amendment must be 2.3 Amendment reference to the strict scru- determined with (1) argue that: appeal the defendants On tiny standard of review.4 forth this Court legal standard set constitutionality of assessing the I for Evans Ill (2) reconsidered; Amendment should in legislative A enactment which com- supported several bur fringes on a fundamental or which narrowly tai- interests and is pelling state constitutionally per class is dens (3) interests; to meet those lored “necessary promote a only if it is missible provisions of Amendment unconstitutional interest,” compelling state Dunn v. Blum remainder; from the are severable stein, 995, 1003, 31 of state 2 is a valid exercise and does so in the least L.Ed.2d to the power under the Tenth Doe, Plyler v. possible. restrictive manner Constitution. United States 2382, 2395, 72 question of what II state interest is one constitutes thus, reconsider the trial court’s Defendants first ask we of law and we review Am. principles ruling League articulated United Latin the constitutional de novo. Clements, I, Citizens, arguments Council No. Evans offer (5th Cir.1993); rejected by 772 n. 30 Scott then considered and F.2d were (9th Rosenberg, F.2d Cir. to revisit that no reason court. We see this I, argument gay a Federal rejected plaintiffs' 4. After this court decided Evans 3. The court men, lesbians, enjoined of a vot should be found to District Court the enforcement and bisexuals Cincinnati, "quasi-suspect "suspect Ohio class” or a enacted amendment to the be either er argument rejected city trial court class.” The almost identical to Amendment charter "[hjomosexuals fail to city enacting it concluded that prohibited because ordi political powerlessness and nance, element of regulation, policy meet the which entitled rule [necessary] to men, fail to meet the elements therefore gay to mi lesbian or bisexual individuals ruling suspect class.” This has not be found a nority protected Equality status. Foundation thus, appealed we not address it. Cincinnati, do Cincinnati, been City Greater Inc. v. (S.D.Ohio 1993) I). F.Supp. (Equality plaintiffs' request declined The trial court also likely highly found it that the The court constitutionality analyze Amendment 2 political process participate equally is a doing, it the "rational basis test.” In so under right, protected by Equal Pro fundamental stated: judicial requires scruti Clause and strict tection Supreme Court has ruled that The Colorado ny relevant review. The court concluded on right of 2 invades a fundamental Amendment supported precedent proposi Court group and that the test to be an identifiable disadvantage any may "[s]tates tion that scrutiny The rational applied is the strict test. suspect category group, or whether a identifiable not, used when there is no funda- basis test is to be legisla making difficult to enact it more There- class involved. mental I, (citing Evans behalf.” Id. at 1241 tion on its legally inap- apply fore this court declines 1270, 1281, (Colo.1993); Gordon P.2d 1283 854 propriate test to this case. 1892-93, Lance, 1, 7, 91 S.Ct. again argued to this court that Plaintiffs have Erickson, (1971); Hunter v. 393 29 pass mus- 2 does not constitutional Amendment 557, 561-62, 21 L.Ed.2d stringent test. the less rational basis ter under merits, (1969)). court After a trial on the 616 purported argue They each of the state's that injunction holding permanent inter alia made the rationally compelling are not related interests plaintiffs' fun violated the that the amendment 2. Because we enactment of Amendment equal political access to the damental I, holding in Evans see decline to revisit our infra process. Equality nati, Greater Cincin Foundation II, again 2 and conclude that Amendment Part Cincinnati,, F.Supp. City Inc. v. constitutionality right, affects a fundamental 1994). (S.D.Ohio "any explained The court scrutiny analyzed stan- under the strict must be independently legislation disadvantages Doe, that Plyler v. dard of review. See 217, by making group it more identifiable legislation group in its that to enact ("laws difficult for upоn impinge exercise of a ‘fun- that behalf, group out of the ‘fences' that right' [require] State to demon- damental thereby their fundamental process, and violates precisely has been strate that its classification I, F.Supp. (citing Equality at rights.” 838 1282.). compelling governmental Id. in- tailored to serve a 1238-42; I, terest”). 854 P.2d at Evans 1988). Smith, argue plaintiff challenged that In the rul Amendment Defendants ing of Fair supported by a number of of the California Commission is narrowly and Employment Housing interests tailored to serve and found that which discriminated, those interests.5 impermissibly she had based status, against couple who on their marital A sought housing. couple was to rent plaintiff rent to unmarried and refused to govern Defendants’ first asserted grounds doing them so would sanctity protecting mental interest is religious deeply-held her beliefs. violate familial, religious, personal privacy. and desist Plaintiff was ordered to cease and expressly religion guaranteed Freedom of discrimination; post marital a notice an by both the Amendment to the United First nouncing for her violation of California law II, Constitution and article section States ninety days; permanently post notice to Colorado Constitution and stands applicants rental of-their remedies and history the core of our Nation’s tradition. and laws; and under California antidiscrimination among society. highest It is values of our sign provide copies notices and to each both Pennsylvania, Murdock v. See person subsequently expressed an inter who 87 L.Ed. 1292 renting property. est her Id. 30 Cal. can be little doubt ensur There Rptr.2d at 397-98. ing religious compelling govern freedom is a mental interest. court appeals The California concluded argue that Defendants substantially the commission’s order necessary to serve this interest because plaintiffs free be- burdened exercise preempted “[u]nder ordinances cause “cannot remain to her reli- she faithful or em individual landlords gious yet rent to convictions beliefs and ployers deep-seated profound who have couples.” Cal.Rptr.2d Id. unmarried objections religious homosexuality would 399.6 compelled to compromise nonetheless be Assuming arguendo such that ordinances convictions, govern threat those under Boulder, prohibit in effect in which support proposi sanctions.” lesbians, gay men, against tion, discrimination rely defendants on Smith v. Commis housing employment Hous., bisexuals Employment sion Fair & 25 Cal. (3 exception religiously- Dist.1994), contain App.4th Cal.Rptr.2d 395 objections, substantially based opinion burden pet. granted super review religious liberty object of those who to rent- Employment Fair seded Smith v. & men, lesbians, Comm’n, ing employing gay Cal.Rptr.2d or bisex- Hous. P.2d (See (Cal.1994). 976(d) religious grounds, uals on the enactment of Cal.Ct.Rules clearly narrowly opinion publication pending is not tailored withdrawn review). religious ensuring to serve the interest of argue actionably infringed by apply 5. We note at outset that is not defendants Amendment ing compelling that all of asserted interests facially plaintiff a which neutral statute support narrowly 2 are which lored on the other mon tai- discrimination, merely proscribes marital status grounds absolutely that "there is notwithstanding plaintiff's scruples religious way that the could further the com- against renting couples.” to unmarried Id. 30 compelling the various interests elements of Cal.Rptr.2d at 401. This was reached conclusion through but of 2.” the enactment prohibiting based the fact that "if the exercise on specifically ‍​​‌‌​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​​‌​​​​​‌‌​‌​​​​​​​​​​‌​‌‍argument We do not address this for religion object of not the [law] is First, below, two reasons. as will be made clear merely generally appli the incidental effect of a by none of the interests identified defendants are provision, cable and otherwise valid the First Second, compelling. defendants never articulate Amendment has not been Id. 30 Cal. offended." what the pelling elements of the com- "common various Div., Rptr.2d (quoting Employment at 400 Ore. are, simply we are unable interests” and Smith, 872, 878, Dept. Human Res. v. 494 any specific to ascertain elements” "common 1595, 1599-1600, all of 108 L.Ed.2d 876 those interests share. S.Ct. (1990)). held, Nevertheless, "it that the court is clear religion protected by free exercise of as the First contrary, family family liberty. equally effec- of the and the central role the To the tive, See, substantially way society. of plays e.g., City less onerous in Moore v. Cleveland, accomplishing purpose simply 503-04, that would be East require lаws which that antidiscrimination S.Ct. provisions (“the also include for sexual orientation protects sanctity Constitution exceptions religiously-based include ob- family precisely because institution of the jections. precisely Denver This is what the family deeply in this is rooted Nation’s histo- Denver, provide. antidiscrimination laws York, tradition”); ry Ginsberg v. New Colo., IV, 28-92, §§ art. 28- Rev.Mun.Code 629, 639, (1992 Supp.). 28-95 28-97 Similar (1968) (parental role in is “basic organizations exemptions religious society”). the structure of our found federal antidiscrimination statutes. “right Defendants that the fa contend (1994 See, § e.g., Supp.) 2000e-l U.S.C. privacy” “severely milial undermine[d]” (exempting organizations religious from the pro the enactment of antidiscrimination laws prohibition against employment discrimina- men, lesbians, tecting gay and bisexuals be (1994 tion); (exemp- § Supp.) U.S.C. thing one his “[i]f cause child hears from religious organizations housing tion for parents opposite message and the exact accommodation).7 public do Defendants government, parental authority will inevi not, they could, argue and we doubt that tably argument be undermined.” This fails impairs religious the Denver ordinance free- assumption it rests because on the that the Indeed, Broadus, Joseph dom. testified who right privacy engenders of familial an inter expert as an witness on behalf of the defen- having government certain est endorse dants, imposing religiously- testified that values as moral or immoral. While it is true exemption based on antidiscrimination laws parents constitutionally protected have a men, lesbians, protect gay intended to inculcating interest their children with than bisexuals would be less restrictive values, their own see Prince Massachu adequately and would address setts, any religious liberty. concerns about point au L.Ed. defendants to no It is clear that Amendment which affects none, thority, holding and we are aware men, lesbians, gay right the fundamental parents corresponding right have the participate equally and bisexuals to government insuring that those val endorse process, is not the least restrictive ues. ensuring religious liberty, means of narrowly compelling tailored to serve the The United States Court ensuring interest the free right repeatedly has that the individuаl’s held religion. exercise of practice profess or certain moral reli argue gious Amend entail a have

Defendants also beliefs does not pre government serves the itself reinforce or follow those See, serving privacy.” Family privacy practices. e.g., Roy, “familial beliefs or Bowen v. characterized defendants “of 476 (1986) (“Never knowledge our parents to teach traditional moral val L.Ed.2d 735

some support, require[d] ues” to their children. As defen has the Court ... Government sanctity ways authority recognizing cite to behave in that the individual dants itself today substantially sincerely adequacy pies 7. We do rule burdened landlords' religious exemptions existing religious protected contained anti- held belief the Massachu- question anti- Case to de- discrimination laws. The whether setts state constitution. remanded governmental compelling a exercise cide whether discrimination laws violate the free eliminating justified by prohibiting the discrimination the clause of First Amendment in infringement); such Anchorage Equal discrimination based on marital status has re- cently Swanner Comm’n, (en- (Alaska 1994) by supreme Rights two P.2d 274 been addressed state Attorney facially housing neutral fair laws courts with mixed results. See General forcement Desilets, right to not violate a free exercise 418 Mass. N.E.2d 233 did landlord's (Statutory religion under the state or federal con- mandate that landlords cannot dis- of stitution). either against cohabitating criminate unmarried cou- deep and commitments to the spiritual further his or her de- attachments believes will family.”). necessarily few other individuals with of his or velopment or that her only special not a com- Furthermore, whom one shares government clear that it is the munity experiences, thoughts, and be- an constitutional does not burden individual’s distinctively personal aspects liefs but also rights merely it views with because endorses [T]hey distinguished of one’s are life.... may disagree. See which that individual smallness, relative a such attributes as Meese, 793 F.2d 1312-14 Block v. selectivity in the high degree of decisions (D.C.Cir.1986) (then Judge concluding Scalia affiliation, begin and maintain the excluding praise official or criti- “[a] that rule aspects in critical seclusion from others strange lead tо con- cism of ideas would the matter, general relationship. As a permissible govern- clusion that it is for the only relationships quali- these sorts of with discrimination, prohibit racial ment but likely ties are to reflect the considerations bias; criticize racial to criminalize not to understanding that free- have led to polygamy, praise monogamous but not to dom of as an intrinsic element association family_”). Id. at 1313. personal liberty. Consequently, fully recognizing par- that Jaycees, Roberts v. United States “privacy” right to their ents have a instruct L.Ed.2d immoral, homosexuality that we children nothing in laws or policies find that may preserving privacy While associational to prohibit is intended inter- Amendment compelling to the rise level of inter- right. that With or without feres with est, narrowly not Amendment tailored authority parents retain full Amendment serve that interest. Amendment would homosexuality about express their views prohibiting forbid entities their children. We believe that Amendment men, lesbians, against gay discrimination necessary narrowly nor tailored is neither (because lesbian, gay, are bisexuals privacy preserve familial that because bisexual) aspects in all of commercial and right poli- implicated is not laws and life, public impersonal. no matter how proscribes. cies which array a vast affects affilia- way implicate tions which in no associational argue Defendants also that Amend privacy. pre- of the criteria needed to None compelling serves state interest cipitate privacy associational exists: “personal privacy.” it is preserving While community” distinguished is no “special there entirely clear what meant smallness,” by “selectivity,” “relative phrase, appears are defendants “distinctively personal aspects concern with referring priva “associational of one’s life.” Id. cy” impaired in be the absence of which will lacking qualities— association these [A]n because individuals enterprise large such business lesbians, men, —seems gay with forced to associate giving remote from the concerns rise to housing.8 rental of bisexuals protection. According- this constitutional ly, undoubtedly imposes As the Court has ex Constitutiоn plained, power privacy constraints on the State’s to control associational involving, protects spouse of one’s associations selection would women, argument addressing entire shared with four other The defendants' a house privacy single personal the issue of constitutes refused to share it with a lesbian. She stated paragraph. rejected It reads: several she "had heterosexual reason, namely poten- males same religious found The court below that both physical, tial for sexual attraction.” [unwanted] liberty privacy compel- and familial indeed However, Ready subsequently found Ms. to have rejected ling interests. court municipal and state privacy violated both sexual orien- personal notion that could be com- interest, preventing finding tation this sort intru- laws. That pelling the Defendants only personal priva- "tangentially." sion into matters of the utmost addressed it This had obvious, interest, testimony cy finding ignores is a should be such as that offered Madison, Wisconsin, (citations omitted). Ready who to the record Ann B affecting the choice of regulations apply to employees. one’s fellow next assert that because Defendants homo policies designed to benefit “laws and 1, 12, Loving Virginia, v. 388 U.S. (citing Id. an adverse effect and bisexuals have sexuals 1823-24, 18 L.Ed.2d 1010 87 S.Ct. governments ability of state and local on the Corsi, (1967) Railway Mail Ass’n against suspect discrimination to combat 1483, 1487-88, 93-94, 65 S.Ct. appropriate Amendment classes.... (1945)). L.Ed. sought whereby to focus means laws that antidiscrimination To the extent upon those government’s limited resources men, lesbians, and gay bisexuals protecting warranting attention.” circumstances most potential implicate short, associational position have the take the defendants avoiding way compelling govern rights, a narrower 2 serves the privacy seeing in limited re exempt the sort of mental interest be to this conflict would the enforcement of sources are dedicated to in Roberts identified intimate associations suspect rights protect instance, civil laws intended scope of such laws. For from the portion having rather than of those classes could be allowed to disсriminate landlords to the enforcement of resources diverted in the rental of owner- against homosexuals men, lesbians, protect gay laws intended housing “Mrs. Mur- occupied so-called —the and bisexuals. See, exception. e.g., Boarding House” phy’s 3603(b) (1988 Act, § Housing 42 U.S.C. Fair preserva It well-settled that the Supp.) (exempting certain owner-oc- 1994& resources, conve administrative tion of fiscal Act); Housing housing the Fair cupied from nience, and the reduction of workload Statutory History States: Civil United compelling state governmental bodies are not (B. 1741-52, II 1805-06 Rights, Part Reed, See, e.g., Reed v. interests. 1970) (detailing legislative his- ed. Schwartz 76-77, 30 L.Ed.2d 92 S.Ct. Murphy’s policies underlying “Mrs. tory and (interest (1971) “reducing pro case-load of Housing exemption in Fair Boarding House” enough weighty to survive courts” is not bate Act). exemptions already exist un- Similar scrutiny); heightened Shapiro even instance, Denver’s For der Colorado law. Thompson, exempts from ordinance antidiscrimination (1969); 1330-31, Vlandis v. 22 L.Ed.2d 600 provi- housing public accommodation Kline, dwellings (it of not more multiple unit sions is “obvious one of units that, than two units where as the Court’s assessment Denver, Colo., occupied. Rev.Mun. owner individual interest weight and value of the 28-96(b)(2) 28-95(b)(2) IV, escalates, §§ ad likely art. & it is that mere Code the less Rights Similarly, the Civil convenience and avoidance Colorado ministrative investigations sufficient to hearings of “hous- will be exempts from the definition statute appear to be. justify what otherwise would rent or lease ing” any room offered for discriminations.”) (White, J., con irrational dwelling occupied part single-family (1988). curring). 24-34-501(2), § 10A C.R.S. owner. that defen- Consequently, we conclude however, does no such preserving interest dants’ asserted Rather, prohibits governmental en-

thing. govern- of state and local fiscal resources enacting barring discrimina- laws tities enforcing civil for the exclusive use ments men, lesbians, gay and bisexuals against tion protect intended to laws contexts, regardless of the nature in all not constitute classes does the extent of relationship involved and interest. relationships. intimacy inherent those broadly than has some sweeps Assuming more the state re preserving fiscal narrowly tailored to necessary legitimate is not interеst of civil preserv- the enforcement sources serve classes, protect suspect intended to laws privacy. ing associational easily be ac- rights enforcement could combating civil recognizing that discrimination by ear-marking funds to cover complished women against racial minorities and enforcement. Under such governmental inter- the costs of such compelling constitute a men, any protection gay est, Jaycees, arrangement, States 468 an see Roberts United lesbians, have to be and bisexuals would funds re- other than funded from sources presented the evidence specified necessary protection served for that Amendment is indicates governmental interest suspect enforce- goals.9 The chief classes. to achieve these the en- insuring adequate resources for for Denver’s antidiscrimination ment officer designed to rights civil laws protection forcement of testified that Denver’s ordinance men, lesbians, suspect classes from discrimination protect has not gay and bisexuals by denying the accomplished protecting from other need not be prevented Denver lesbians, men, and bisexuals impact gay on any significant fiscal groups or had equally in the participating The chief of Civil Denver. Wisconsin’s testified, Rather, this interest can be served process. on twelve Rights Bureau based way persons’ fundamental years experience Wisconsin’s enforce- in such with laws, pro- rights need be denied. ment of its antidiscrimination lesbian, persons gay, and bisexual tection govern- The defendants’ second asserted parts of not limited enforcement of other has support interest in of Amendment mental trial court statutes. The the Wisconsin narrowly necessary nor tailored to neither men, lesbians, protecting gay found that that interest. serve in- “has not from discrimination bisexuals impaired or the enforcement creased costs C or ordinances.”10 other civil statutes argue next that Amend Defendants finding supported by the record and This governmen “promotes compelling conclusion that Amendment substantiates the allowing themselves tal interest of necessary governmental to serve the is nоt norms.”11 public social and moral to establish interest asserted. proposition, defendants support of this men, promoted define two related norms which protecting gay if lesbi Even preserves ans, by Amendment 2: Amendment from discrimination has and bisexuals state, mar families and heterosexual impact heterosexual fiscal on some and, generally, it the socie riage more sends narrowly tailored to serve that inter is not men, lesbians, racial, condemning gay gender, message Ensuring or tal est. that certain as immoral. undiminished funds for and bisexuals groups ethnic receive dispute significant as to whether consider- regard, to note that 11.There is some In this it is currently proscribes properly discrimination law before Colorado against persons ation of this asserted interest classes, suspect in- who are not point out that in contrast to this court. Plaintiffs age, § cluding 402(l)(a), 24-34- discrimination based by the the six interests addressed (1994 Supp.); 10A C.R.S. marital court, morality was not listed in state's trial status, 24-34-502(l)(a), § family 10A C.R.S. opening state’s state- disclosure certificate status, 28-3-506, (1994 § Supp.); veterans’ 11B separate supporting ment at trial as (1989); any legal, off-duty con- C.R.S. Amendment 2. 24-34-402.5, tobacco, smoking § duct such as (1994 argue presented Supp.). course Amendment that it the interest 10AC.R.S. Of Defendants to have effect on this morality 2 is not intended public to the district court and as only prevent adoption legislation, but seeks introductory support, paragraph con- cites protect laws intended to of anti-discrimination gays, its brief to that court which stated tained in lesbians, and bisexuals. public morality permeates the "the issue indeed, compelling discussion of interests testimony rejected 10. The trial court regarded interest in its can be who, having while no ex- defendants’ witnesses right." judgment, In our this is sufficient to own perience of civil laws in the enforcement morality public that the interest of conclude bisexuals, lesbians, protect gays, intended presented to the trial court as rationale for doing speculated that so would create increased thus, 2 and this asserted interest is ability laws intend- and limit the to enforce costs properly this court. before protect classes. ed to marriages and fami- authоrity support to undermine heterosexual only relied on morality protection of view that the consti- lies married heterosexuals will because governmental compelling interest is tutes a if “choose” to “become homosexual” discrimi- Theater, Inc., Barnes Glen against prohibited. nation homosexuals is (1991). 2456, 115 L.Ed.2d 504 De- empiri- This assertion flies in the of the face plurality in opinion cite the Barnes fendants marriage at presented cal evidence trial on proposition that “the State’s interest Wisconsin, example, For and divorce rates. morality compel- in is protecting order and in “gay rights” the state the oldest law with substantial; subordinating; paramount; ling; nation, reports in that the enacted cogent; strong.” support not Barnes does divorce rate in declined after the Wisconsin public protecting contention that defendants’ enactment of its antidiscrimination statute. morality compelling governmen- constitutes Statistics, Division of See Center for Health tal interest. Health, Dep’t of & Wisconsin Health Social Barnes, In four Justices held “the Services, 1990 Re- Wisconsin Vital Statistics indecency furthers a public statute sub (divorce p. Figure at rates in port, protecting government interest stantial 1,000 peak per at 3.9 Wisconsin divorces Barnes, morality.” at order and population in 1981 and decline thereafter added). (emphasis S.Ct. 1990). 1,000 population per 3.6 divorces provided fifth Souter vote Justice argue also that the “endorse- Defendants Barnes, rely however he did not “on the homosexuality mar- ment” of undermines possible sufficiency society’s moral views riage and anti- heterosexual families because justify the limitations at issue.” Id. at implicitly laws endorse discrimination (Souter, J., 582, 111 concur improper conduct which is deemed an basis Rather, opinion he ring). was of the that the (which opinion, for discrimination. We prohibited at issue com Indiana law however, dancing) permissible laws make pletely nude due to that antidiscrimination in combating assumptions morality protect- “State’s substantial interest no about secondary effects adult entertainment they simply recognize that cer- ed classes— jus- Id. None of characteristics, еstablishments....” tain or immor- moral furthering in Barnes concluded that tices al—have enumerated com- no relevance public morality constitutes a instance, mercial For it is difficult contexts. interest. prohibits imagine employ- how a law which discriminating against anyone en- ers from Consequently, have defendants cited gaged off-duty, legal such as conduct support authority proposition 24-34-402.5, tobacco, § smoking see 10A public morality promotion constitutes a (1994 Supp.), an endorse- C.R.S. constitutes interest, compelling governmental and we smoking. ment of most, none. are aware of At the interest However, gov is a substantial substantial. short, prohibitions on discrimination is ernmental interest not sufficient render lesbians, men, against gay do and bisexuals infringes a law which on a fun constitutional any particular imply not an endorsement of must be damental com —the practices. To the con- sexual orientation or Doe, Plyler pelling. See trary, prohibitions imply at on discrimination 72 L.Ed.2d employment, evic- most termination Furthermore, recognizing even opportunities, denial tion or of rental denial legitimacy promoting public morals as a coverage, and other sanctions of insurance interest, it is clear us that based on sexual orienta- commercial contexts preserve necessary advancing ways appropriate tion are families, marriage, or to ex heterosexual even moral beliefs. valid men, lesbians, press disapproval gay reject third Accordingly, we defendants’ First, reject sug we defendants’ bisexuals. finding that a basis for asserted interest as gestion prohibiting that laws discrimination men, lesbians, constitutionally valid. against gay bisexuals will imag- any legislative enactment almost

D down clearly No This is not the law. inable. contend that Amend Defendants authority needed to make the citation of support government from “prevents ment 2 point. objectives special of a inter ing group.” only argument offered to est reject assertion that We defendants’ contention that this is a substantiate the justified by compelling Amendment 2 is following compelling is the ob state interest having governmental in not the state interest Union, Lyng International servation from v. objectives special of a political endorse the 1191, 1184, 99 108 S.Ct. group. interest (1988): the heart of the “[A]t is the notion that an indi First Amendment E will, free as he vidual should be to believe society in should and that a free one’s beliefs 2 claim that Amendment Defendants shaped by mind and his conscience his through to factionalism ensur “serves deter (quoting rather than coerced the State.” regarding special protec ing that decisions Educ., v. Bd. Abood Detroit and bisexuals are tions for homosexuals 52 L.Ed.2d 97 S.Ct. government.” highest made at the level (1977)). they argue “Amend specifically, More that Defendants do not claim that laws intended, not to restrain the com ment is prohibit is intended to which ideas,” petition but to ensure that “seeks infringement on the First constitute homosexuality’s deeply divisive issue Lyng. identified liberties society frag not place in our does serve Similarly, they position not take the do body politic.” Amendment ment Colorado’s laws amount to a “coercion] those “city- accomplishes by eliminating this end Rather, they anything. as- State” to believe by-city county-by-county battles over sert the laws which this issue.” implicit prohibit constitute an intended homosexuality that this endorsement of reject argument We of individuals “to somehow vitiates factionalism, deterring defined interest ques- judgments make their on this own defendants, compelling. Political de ” however, above, explained .... we tion As bate, “factionalism,” even if characterized as that antidiscrimination laws do not believe legitimate not an evil the state has a an endorsement of the characteris- constitute rather, deterring constitutes interest but upon that are deemed an unlawful basis tics democracy. is no “[T]here foundation against individuals. which to discriminate public interest in curtail significant state or pp. 1347-1348. See infra ing debate or discussion of a ballot measure.” Against City Rent v. significantly, offer no au- Citizens Control More defendants 290, 299, Berkeley, 454 102 S.Ct. thority support the rather remarkable U.S. (1981). government a com- See also proposition that the has Rhodes, 23, 32, pelling seeing interest in that the state does Williams (1968). objectives fail to support political “spe- of a L.Ed.2d We see state, charged serving which is with group.” сial interest The state exists how people, any legiti very implementing political the will of the can have purpose of preventing one side of a objectives governed long so as that can mate interest pressing from its case consistently the constitution. controversial debate be done with objectives simply before bodies because it political The fact that some are controversy prefer political avoid promoted by “special groups” interest is ut- would Indeed, virtually any Dep’t Chicago terly inconsequential. “factionalism.” See Police regarded Mosley, could be as a benefit to a law (“government “special group.” If defendants’ ar- 33 L.Ed.2d all, grant use of a forum to any merit at gument had deny justify striking acceptable, it finds but use interest defined would whose views conduct, “practices, homosexual or bisexual wishing express less favored or to those views”). any relationships way constitu- more controversial tionally suspect.” compelling in- support of the asserted factionalism, deterring defendants terest only mis- arguing, In so defendants not Brown, rely Storer v. position, funda- plaintiffs’ characterize 1274, 39 Storer L.Ed.2d mentally of Amend- misconstrue intent proponents requirement a state I, involved ment 2. In Evans we held that Amend- viewpoint resign political parties had been shown to a reasonable parties’ primaries run in if the and not those probability to be unconstitutional on independent intend to run as can- proponents grounds that it affected “the fundamental neutral purpose of this election didates. participate equally independent procedure was insure that process_by ‘fencing independent- out’ an ” merely were more than sore los- candidates ly persons.... class of Id. at identifiable who, having primary, ran as ers lost one infirmity of Amend- 1282. The constitutional “short-range satisfy politi- “independents” 2 I limited recognized Evans was not pique, personal quarrel.” Id. at goals, cal or opposed to sexual orientation as to restric- 735, con- concerning tions homosexual or bisexual duct, practices, relationships. To Storer, case Neither nor other we contrаry, on the fact that it was based supports proposition that there aware of indepen- sought deny 2 an Amendment compelling governmental pre- interest in is a dently group’s right partici- identifiable being venting from debated at divisive issues political pate equally process. in the government by prohibiting of one all levels seeking side of the debate from desirable provisions are “Whether unconstitutional fora. We conclude that legislation those depends an otherwise sound law excised from deterring “factionalism” is not the interest (1) autonomy of the on two factors: compelling state interest. portions remaining provi- after the defective the intent of

sions have been deleted F body.” v. enacting legislative Robertson Denver, 325, City County 874 P.2d argue that each Defendants (Colo.1994) City (quoting v. 335 Lakewood interests, individually ad while Inc., Ass’n, P.2d 70 Unlimited Colfax (Colo.1981)). espe equate to validate Amendment “are aggregate.” in the cially so considered when of the interests identified the state

None portions of Amendment We hold that necessary, governmental in ais only con- provision if that would remain narrowly tai which Amendment is terest cerning stricken are sexual orientation were together them as Lumping to advance. thus, lored not not autonomous and severable. (and ill-defined) inter grandiose rather one partic- denying equal addition to necessary, compel them more est makes no process group ipation political context, narrowly In this ling, or tailored. orientation, based sexual equal, equally and is as deficient the whole right to deny that same also is intended to parts. the sum of its “homosexual, as persons lesbian based on conduct, practices ... ” or relation-

bisexual .... ships IV targets persons this class of argue pro that

Defendants next orienta- based on four characteristics: sexual are severable and visions of tion; conduct; relationships. practices, provisions only pertaining those to “sex provides potentially dif- Each characteristic be stricken uncon ual orientation” should identifying per- way that class of only challenged ferent “Plaintiffs have stitutional: lesbian, gay, or bisexual. They sоns who are question orientation. sexual truly sev- are not any suggestion These four characteristics not claimed or made have pro- each concerning erable one another because Amendment 2’s restrictions people of way with this decision of the nothing more than a different terferenee vides Missouri, persons. defining their constitutional identifying the same class offi- cers, upset the usual constitutional bal- would constitutionally no The fact that there is (em- powers.” and state Id. ance of federal engage in recognized right homosexual added). phasis Hardwick, sodomy, see v. Bowers 92 L.Ed.2d involving applies only to cases Gregory by2 irrelevant. Amendment stretch qualification of interference with the federal imagination seeks to criminalize homo- See, e.g., Equal Em- officers. constitutional sodomy. it is true that such a sexual While ployment Opportunity v. Massa- Comm’n passed found constitutional law could be Cir.1993) (1st chusetts, F.2d 68-69 constitution, the United States’ it does under only inter- (Gregory applies when federal law denying not follow from fact policy-making with state’s definition of feres (who may group of an identifiable Frey, qualifications); officials’ Tranello sodomy) engage in homosexual (2d Cir.1992) (same); May v. F.2d process participate equally Comm’n, Forestry 993 F.2d Arkansas constitutionally permissible. gov- also (8th Cir.1993) (same); Associated 635-36 ability ernment’s to criminalize certain con- Perry, F.Supp. Builders & Contractors justify corresponding abate- duct does (same). (E.D.Mich.1992) n. independent right. fundamental ment of no interest States have ways amending their constitution in that vio- V rights. Reitman v. late fundamental federal Last, argue if defendants that even Mulkey, the Four Amendment is conflict with (1967) (no power to reserved L.Ed.2d Con teenth Amendment to ‍​​‌‌​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​​‌​​​​​‌‌​‌​​​​​​​​​​‌​‌‍the United States right part of the make discriminate stitution, constitutionally nevertheless a is charter); basic Lucas v. Colorado state’s pow people’s valid exercise of the reserved Assembly, 377 Gen. short, In ers under the Tenth Amendment.12 1459, 1473-74, 12 L.Ed.2d 632 argument power that the to amend the (“A hardly rights constitutional can citizen’s to Colorado’s state constitution reserved majority infringed simply of .the be because Amendment, under the Tenth and voters be.”). that it choose if constitu even the voters amend state reject argument defendants’ We way to violate the federal tion such a constitutionally 2 is a valid exer- Amendment constitution, per such an amendment is se power of state under the Tenth Amend- cise valid. ment. support argument, In defendants of this rely Ashcroft, Gregory VI 2395, 115 Greg In Age ory, held that the Court The state has failed to establish that Employment Act Discrimination does necessary 2 is to serve com- reaching apply judges. state court this narrowly pelling governmental interest conclusion, noted that the Court decisions way. tailored is not severable necessary concerning qualification power not a valid exercise of state under and judges state court “is a decision of the most Accordingly, af- the Tenth Amendment. we entity. sovereign for a fundamental sort entry permanent firm the trial court’s of a government and Through the structure of its injunction barring its enforcement. govern the character of those who exercise authority, a defines itself as a SCOTT, J., concurs. sovereign.” Id. at 111 S.Ct. at 2400. ERICKSON, J., “Congressional in- dissents. The court concluded States, prohibited reserved to the to the United States it to the are 12. The Tenth Amendment delegat- provides: powers not respectively, people.” Constitution "The States or to the Constitution, by the nor ed to the United States questions are decided the electorate. concurring: Justice SCOTT However, matters in which the those result join in its agree majority I with liberty upon protected or funda- intrudes un- judgment. 2 is opinion and mental cannot be determined in the Equal it offends the constitutional because voting booth. Fourteenth Amend- Protection Clause I States Constitution. ment of the United originally recognized po- this The framers nevertheless, suggest separately, write that not tential for harm understood 2 impermissibly burdens that Amendment every by the vote of a issue can be resolved “peaceably petition to assemble and Papers, majority. In The Federalist James grievances,” a government for redress of identified the covenant “a well Madison Hence, every right guaranteed to citizen. protect promise as its constructed Union” permanent injunction the district court’s rights preserve inviolate certain of all upheld Privileges be under should (J. 10, at 42 citizens. The Federalist No. the Fourteenth Immunities Clause of Madison) (Wills 1982). noted that Madison Amendment. government, other “measures under forms decided, according too often to the I justice, and the of the minor rules of graces Citizenship, good not the party; superior force of an inter- electorate, currency republican of our over-bearing majority.” Id. at 43. ested years ago, government. form of Over Madison further stated: engaged great nation in a War Civil of the man must be connected gov- form our constitutional which tested with constitutional history. as has no other time our ernment place_ angels, govern- If men were battle, joined great That to address issues angels necessary. If were ment would race, slavery actually much resolved men, nor govern neither external inter- that, fact, in History our more. teaches us government nec- nal controls on would be paramount question a nation addressed essary. framing government a is which may, by legis- importance: any whether state men, by over the to be administered men referendum, popular or lative enactment difficulty in You first great lies this: must deny or the of the several refute Union gov- government the to control the enable the of our and render asunder bonds states erned; place, oblige in it to the next government. Athough form of constitutional control itself. Appomatox, today we are called answered resolve, answer, question if not upon to importance republic, in a great It is of once more. society against the only guard the Constitution, submitted to The as federal rulers; guard one oppression of its states, certain the various created injustice against society part of the joining By cannot the states diminish. which part. the other Union, a be as Colorado “cannot viewed Id., unconnected, Appropriately, power, No. at 262 & 264. sovereign single, in a suggested, the “cure” rests imposed Madison ... no other restrictions are [which] government republican Union own form be found Constitution.” than —a (6 Cranch) Peck, “tendency to break and there is a which Fletcher Id., No. 10 Writing the violence faction.” L.Ed. 162 for the court control Fletcher, obligation “guard part one opined that at 42. Justice Marshall Chief injustice society of the other part large empire, against is state a of a each “is Union; oppressive act is part” exists whether the American a member of constitution, or state action. supremacy of of referendum other has result Union Hence, citi- promised full acknowledge, imposes every individual is all and which which which, states, zenship under a written Constitution to ... the several which none limits nor Thus, opined, “neither knows as Justice Harlan pass.” Id. within claim among Plessy important classes citizens.” sovereignty, most tolerates limits of state clear, plain meaning that lan- tion is and its Ferguson, 163 U.S. (1895) (Harlan, J., guage be and enforced as must declared 41 L.Ed. 256 dis- (“If written.”); Bork at 145 see also senting). law, presumably, like all Constitution is then Bork, addressing the Judge Robert same law, in- meaning the lawmakers other covenant, to as the wrote of what he referred binding judges upon upon tended as dilemma,” stating: “Madisonian executives.”). legislatures and Where the The United States was founded as Madi- unambiguous, words of the Constitution are system, which means that it con- sonian not look further. we need opposing principles tains two that must be principle continually reconciled. The first II self-government, which means that A majorities of life are entitled to wide areas rule, wish, they simply they if because 1 of the Fourteenth Amendment of Section majorities. is that there are The second “All declares: United States Constitution majorities things nonetheless some must persons born or naturalized the United minorities, thereof, jurisdiction some areas of life in subject not do to the States and major- must be free of which individual are citizens of the United States and of the ity rule. The dilemma is that neither ma- reside. No shall State wherein State jorities abridge nor minorities can trusted to make or enforce law shall proper spheres privileges or immunities of citizens of the define the of democratic States_” XIV, amend authority liberty. place and individual To United U.S. Const. Amendment, in section l.1 The Fourteenth power in or the other risk one would majority tyranny citizenship made tyranny by the section derivative either citizenship minоrity. national and transferred to the government portion federal of each state’s Bork, Tempting H. of America: Robert political rights.2 control over civil and The Political Seduction of the Law 139 (hereinafter “Bork”). By history a dilemma can the force of an unfortunate Such rely upon plain only be resolved resort to a neutral writ a refusal to text of the constitution, ju- principal, ten the Constitution. We should our Fourteenth Amendment risprudence Privileges to the text to the understand has resulted in a look first ing eclipsed by has manifested the words used Immunities Clause that been (4 Maryland, Equal framers. v. the Protection and Due Process Claus- McCulloch (let Wheat.) (1819) consequence, important 4 L.Ed. 579 the es. As a line of constitution, scope solely Privileges the of decision rests on the or end be “within the on, fact, appropriate Early and all means which are Immunities Clause. the original virtually prohibited, understanding are not but consist with the was written which constitution, spirit out of letter and of the con the Constitution the United States stitutional”); Slaughter-House Colorado Ass’n Public Em Court of (Colo. (16 Wall.) Lamm, 1350, Cases, 36, ployees v. 677 P.2d 21 L.Ed. 394 1984) (“Where (1873). language the constitu- of "privileges” widely agreed

1. The words and "immunities" first 2. It is that section 1 of the Four- IV, appear ("The § in the Constitution in article teenth Amendment was intended at least to em- power Congress pass Rights Citizens of each State shall he entitled to to the Civil Act of Privileges Nelson, all and Immunities of Citizens in the William ch. Stat. 27. The IV, States.”). By virtue of Article several citizenship From Fourteenth Amendment: Political Princi- (1988) ("Section with it the carries nondis- ple to Judicial Doctrine 104 one criminatory treatment within each state of citi- part was added to amendment least zens of all the states. constitutionality remove doubts about the Harrison, act.”); Reconstructing John purposes Consistent with the text and for of Clause, distinction, Privileges or Immunities 101 Yale L.J. the Article IV clause will be referred (1992). Clause,” Many "Privileges commentators have to as the and Immunities suggested actually that the amendment writes the and the Fourteenth Amendment clause will be "Privileges referred to substance of the 1866 Act into the Constitution. as the or Immunities See Clause.” id. clause, Cases, regard very impor- I it as in first decided Slaughter-House In the tant.”) (statement Howard); of Senator see acknowledged majority Court Democracy Ely, generally John H. and Dis- Privileges Immunities Clause of the (1980) (hereinafter “Ely”); John trust Amendment, ef- limited its but Fourteenth Harrison, Reconstructing Privileges or existing under rights earlier fects those Clause, 101 Yale L.J. Immunities IV, recognizing the creation without Article (1992). In his citizenship. opinion of a new national Cases, Slaughter-House Jus- for the Court in Privileges Article and Immunities IV rights that the conferred tice Miller declared imposes upon the substantive limits Clause citizenship those national were “which (No. Coryell, 6 F.Cas. 546 states. Corfield govern- their to the Federal owe existence 3230) (C.C.E.D.Pa.1825). Corfield, Jus- Constitution, character, ment, its its National Washington protect- held that this clause tice Wall.) (16 79, 21 laws.”3 83 U.S. against privileges state action the “which ed legislative histo- 394. A review the nature, fundamental; L.Ed. are, very in their however, permit an ambiva- ry, such will free belong, right, to the citizens all The statements of framers Corfield, lent view.4 governments.”7 6 F.Cas. at 551. Amendment, Senator How- Fourteenth Washington toon state: went Bingham, confirm Representative ard and are, it privileges fundamental What these Privileges or Immunities Clause was that the perhaps be tedious than diffi- would more invio- to confer and make originally intended however, They may, to enumerate. be cult na- certain minimal embodied late comprehended following gen- under the all citizenship.5 government; tional by the eral heads: Protection liberty, enjoyment life with acquire possess property

B kind, hap- every pursue and obtain safety; subject piness and nevertheless Privileges or The Fourteenth Amendment government as restraints such patterned was after Immunities Clause good justly prescribe general for the IV, in Article Section 2.6 similar clause whole. thought Fourteenth Amendment Clause at 551-52. Id. of the central ele- by its framers to one pole Cong., opinion was this which became Cong.Globe, 1. 39th It ments section (“This Representative Bingham Sess., and Sena- part p. 2765 is the star 1st Sess., (1866); generally part suggested p. 2765 see John Subsequent even narrower cases Democracy citizenship, Ely, Distrust H. definition of the of national Jersey, Twining New Bingham, Congressperson Representative Court in dictum 6. L.Ed. Privileges or Immunities Clause finally Slaughter-House who framed the on the definition settled Amendment, pointed the Fourteenth of Privileges as correct. of Article IV and Immunities Clause Sess., Cong., Cong.Globe, 39th 1st his model. dissent, it is Justice observed in and 4. As Field 2, (1866). pp. part 1033-34 possible really deny: to refers, observed, by only as the Ely ... held of Four- If inhibition has the drafters the 7. As opinion, "repeatedly majority to such to the of the court their adverted teenth Amendment privileges key they were were and immunities as before as the to what discussion Corfield writing.” 29; designated Heyman, Ely adoption specially in the Constitu- J. See Steven Protection, necessarily belonging Liberty implied Duty to and tion First Government: of 507, States, Amendment, and of United it was vain 41 Duke L.J. citizens the the Fourteenth enactment, nothing, (1991). accomplished by invoked both which idle 555-56 Corfield Wilson, unnecessarily Representative Congress and the excited and most Senator Trumbull Act, Rights explain the passage. managers of to on its the Civil the 96, Cases, (16 Wall.) citizenship by Slaughter-House rights of secured the fundamental J., (Field, dissenting). quoted Similarly, Senator Howard 21 L.Ed. 394 Act. during Congressional re- the debates Corfield garding adoption of the amendment. the fourteenth "it is certain Senator Howard stated: 5. As Sess., 3, part p. Cong., Cong.Globe, 1st 39th in the Constitution for some was inserted clause good purpose.” (1866). Cong., Cong.Globe. 1st 39th Howard, Sess., tor the Cong.Globe, 3, framers of the Fourteenth Cong., part pp. 39th 1st (1866) added). Amendment. Presenting the (emphasis Fourteenth 2765-66 Senate, Amendment to the Senator Howard privileges Senator Howard’s list of or im- “the disclosed views and the motives which munities, incorporated Corfield, was committee,” stating: influenced that representative rather than exhaustive. No attempted identify case has ever to the totali- privileges To [the immunities listed ty implied rights guaranteed by federal ], they may whatever be—for Corfield Privileges the or Immunities clause. Howev- fully are not and cannot be defined in their er, Twining Jersey, v. New precise entire extent and nature —to these 53 L.Ed. Supreme the personal rights guar- should be added the provide privileges Court did a list of im- antied and eight secured the first (1) recognized: right munities which it the Constitution; amendments of the such as (2) pass freely state;8 from state to right the speech the press; freedom of and of the petition Congress griev- redress right people peaceably to assem- (3) ances; right to vote for national offi- petition ble and the Government (4) cers; right lands; public to enter the grievances, right appertaining redress (5) right protected to be against violence to each people; right and all the custody while the lawful of a United States arms; keep right and to bear to be Marshal; right inform United exempted quartering from the of soldiers States authorities of violation of its laws. in a house without the consent of the own- Twining, 211 U.S. at 29 S.Ct. at 18-19. er; right exempt to be from unreason- These citizenship national receive seizures, able searches and and from protection absolute in the sense that except by search and seizure virtue of a states never legitimate could have a upon warrant issued a formal oath or affi- in terminating completely any of these davit; right person of an accused to be rights. Nowak, Rotunda & Treatise on Con- informed of the nature of the accusation (2d 1992). stitutional Law 351 ed. him, against right and his to be tried impartial jury vicinage; and also the right against be secure excessive bail Ill against punish- cruel and unusual The United States Court has re ments. peatedly held that the to vote is funda worthy it is a fact well of attention that mental to the citizenship and to a the course of decision of our courts free society. and democratic Burson v. — present is, settled doctrine that all these Freeman, —, —, 112 S.Ct. immunities, privileges, rights, guaran- thus (1992); Reynolds tied recognized by Constitution or Sims, it, are secured to the solely citizen as a 1381-82, (1963); Yick v.Wo citizen of the party United States and as a Hopkins, in their great objective courts.... I, 30 L.Ed. 220 In Evans is, section this amendment participate we held the equally first therefore, power restrain political process to be a right. fundamental compel

States and them at Romer, (Colo. all times to Evans 854 P.2d respect great 1993).9 guaran- these By “participate equally,” although fundamental tees. result, assuring any political we did con- 160, 178, California, 983, 990, 8. See (1979); Edwards 314 U.S. 59 L.Ed.2d 230 Dunn v. 164, 169, (1941), (the right Blumstein, L.Ed. 119 330, 336, 999- of interstate travel is an essential “incident of (1972); Lance, Gordon v. citizenship protected by national privileges the and immunities clause of the Fourteenth Amend- (1971); Michelman, Frank I. Con- ...”). ment ceptions Democracy in American Constitution- of Argument: Voting Rights, al 41 Fla.L.Rev. 9. See also Illinois State Board Elections v. of (1989). 459 n. 63 Party, Socialist Workers Privileges Immunities the peaceably to or Clause since right the template the of Cases, and, for a petition government unfortunately, the Slaughter-House assemble partici- right This to grievances. of redress upon Equal have instead built the Protection the citizen- pate, an of new national attribute Equal and Due The Clause Process Clause. the ship, by the framers of Four- was meant Clause, by history Protection burdened personal right to teenth Amendment context,10 analysis beyond the this is not Privileges or guaranteed by the and secured the Amend- appropriate most of Fourteenth Globe, Cong. 39th Immunities Clause. See securing right provisions for the to ment (1866). Sess., part pp. 2765-66 Cong., 1st participate equally political process in the right the It should be axiomatic that analysis yet primary it is the mode of govern- petition peaceably to assemble and upon by majority in relied the this case.11 ability duly implies ment the elected agree Certainly that the all must now respond, persuaded if representatives to so Yet, enforced, sought predisposed. protect if Amend- to or Fourteenth Amendment state, acting provides that the oppression by govern- from state citizens departments, or “through any of its branches Equal of ment. Protection Clause subdivisions, agencies, any political or of its to amendment mandates that afforded districts,” municipalities or shall school granted equally all. some are to See Steven statute, “enact, adopt any regula- or enforce Heyman, Duty J. First Government: tion, policy” granting or to citizens ordinance Protection, Liberty the Fourteenth on homo- a “claim of discrimination” based Amendment, 41 Duke L.J. 507 From sexual or lesbian status or sexual orientation. government time to time the acts of inter- prevent Because it would the General Assem- in the the vene lives of citizens.12 Under bly legislative enacting or other bodies Doctrine, Equal government Protection such adopting or certain new laws and bar review, subjected applying intervention is to agencies from department executive and its one of strict scruti- least three standards: laws, enforcing existing effec- review, ny, or basis intermediate rational tively right petition partici- or denies applicable analysis. The standard review process by voiding, ab pate political in the depends upon the applied to be characteris- initio, from discrimination. Like the redress citizens involved. tics or attributes right right have to vote which assumes Doctrine, Equal Under the Protection when counted, right peaceably one’s vote occurs, such intervention such petition meaningless if assemble 2 in powerless the enactment of Amendment government law to act. with case, regardless applied, standard IV abridgements contemplated it is that certain acceptable. of even fundamental are develop a have reluctant Courts been test, scrutiny analysis example, For working under under strict constitutional process. ply guarantees political Historically, Equal access to the Protection Clause 10. vote, protect may petition upon or amend as matter insular minorities. Simi- Citizens called they necessarily undoubtedly right, win as a exist unlawful dis- cannot larities between right. based on sexual orientation and matter crimination However, origin. on or based race national Moreover, I am not unmindful that the whether, general as to as a record matter, uncertain deny right participate may to vote or on sexual victims of discrimination based process operation process. political as an of due history subject- share the same orientation Carlstrom, See, e.g., 775 P.2d Moran v. experience as victims ed to a similar or condition (Colo.1989) (the may Assembly General of racial or ethnic discrimination. right place reasonable restrictions Russo, vote); People see also P.2d argue participation The defendants (Colo. 1986) (jurors disqualified if do not particular political process plaintiffs seek is a to vote reason of criminal have the adoption plaintiffs’ end or the sucсessful conviction). note, however, partici- I views. process guarantee take the form pate intervention does not 12.Government action, legislation, plaintiffs any qualified agency constitutional suc- other electors the amendment, which has the or other conduct candidate or cause nor the state’s cess right particular sim- effect of law. ideas. This embracement exacting protection homosexuals, applied heightened the most standard lesbi- and that ans, majority, state action is and bisexuals. “constitution- ally ‘necessary permissible pro- [ if it is ] establishing essentially In what a new interest,’ mote a [the a process disguised due substantive as state] does so in the least restrictive manner previously unrecognized right,” “fundamental (citations possible.” Maj. op. at omit- majority disregarded warnings of ted) original). (emphasis in Burger, Justice stated in Chief who his dis- Doe, Clause, Equal Plyler v.

Unlike the Protection sent to (1982): Privileges “If guarantees or Immunities Clause unabashedly guilty a court was of an citizens ever that certain fundamental inviolate, approach, this citizenship prime are result-oriented case is a national absent due Burger process.13 syntax example.” Chief stated: The of the Fourteenth Justice inescapably seems that Amendment Clause it our to set Were business the Nation’s According of substantive entitlement. policy, agree I without social would hesi- Ely, slightest language “the attention to will enlight- tation it is senseless for an Equal indicate that is the Protection society deprive any ened children —in- equality Clause that follows the command cluding illegal elementary aliens —of ed- strategy, Privileges while the or Immunities However, ucation.... Constitution proceeds by Clause purporting to extend to not does constitute us “Platonic Guard- everyone Ely a set of entitlements.” at 24. nor does it ians” vest Court the importance Privileges The of the or Immuni- authority they to strike down laws because require varying ties Clause is that it does not do meet our standards of desirable protections standards of review and that its “wisdom,” policy, social or “common every are extended to citizen. trespass assigned sense.” We on func- political

tiоn branches under our separated powers structure of V limited we a policymaking when assume role as Under Amendment of citizens today. the Court does “peaceably petition gov- assemble (citations Id. at S.Ct. at omit- grievances” ernment for a redress of so as to ted). participate freely equally process compromised pro- are majority opinion a manner has overlooked a cru- hibited the Fourteenth ‍​​‌‌​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​​‌​​​​​‌‌​‌​​​​​​​​​​‌​‌‍Be- aspect Amendment. cial of the case before us: we are not political rights cause these evaluating legislature are fundamental pro- an act of the citizenship and inherent in national are nouncement the executive —we are review- protected by Privileges or Immunities ing a constitutional adopted by amendment Accordingly, Clause. I concur. of the Colorado. State of While certainly

there some initiated constitu- dissenting: Justice ERICKSON majority tional amendments may attempt minority electorate visit on a Romer, respectfully I dissent. Evans v. pass scrutiny, that will not constitutional we (Colo.) (Evans I), 854 P.2d 1270 cert. de ignore must the fact we are review- —nied, —, ing expressed will citizens of this majority crafted state. new fundamental been had never I, recognized by the United In Evans States we remanded the case to the by any Court or court other than a federal district court to determine pre- whether the liminary injunction district court in Ohio that relied Evans I. majority sustained Ironically, judicial permanent. review of this court should be made court, accomplished exactly has following what the voters I great district Evans with passed pre who 2 sought precision, findings made extensive and made majority effectively preliminary injunction permanent. vent —the has created Nev- supra, 13. See n. 11.

1357 homosexual, lesbian, alleged right ertheless, participate fundamental to people of adjudi- political equally process. in the have never been bisexual orientation right protected a class and the to cated to be Erickson, 385, In Hunter v. 89 political process in participate equally 557, 21 L.Ed.2d 616 the United S.Ct. determined, apart from Ev- has never been Supreme Court addressed a violation States I, right. According- be a fundamental ans Equal Protection Clause the federal ly, employ I a would rational relation stan- city a constitution. Hunter involved charter perma- 2 vacate the dard Amendment repealed a racial anti-dis- amendment injunction. For the reasons set forth nent required crimination ordinance and voter ac- I, my to Evans and for reasons dissent tion before such an ordinance could be enact- below, respectfully I set forth dissent. 387, Although at ed. Id. 89 S.Ct. political process,

Hunter involved it I Court invalidated the amendment because unjustified an distinction on created based applies majority The relies on I and Evans race. The held: Court scrutiny the strict standard of review Because the core of the Fourteenth 2 it because holds that prevention meaning- Equal Protection Clause of United States unjustified ful and official distinctions guarantees Constitution fundamental race, on based racial classifications participate equally political right subject “constitutionally suspect,” and I, 1339; process. Maj. op. at Evans 854 P.2d rigid scrutiny.” They the “most “bear I at 1276. Evans established this standard justification” far burden than heavier by assembling of review several United other classifications. Supreme decisions and inter- States Court (citations 561 Id. 89 S.Ct. at omit preting implying teachings their collective ted). reviewing and scholars Hunter Courts I, right. a new fundamental See Evans 854 recognized holding predi have that the cases, (citing voting P.2d at 1276 ballot ac- an racial classifica cated on unconstitutional eases, involving attempts to cess and “cases 1089, Vickery, F.2d Tyler tion. See v. ability groups limit the of certain to have Cir.1975) (5th (stating that Hunter legislation implemented through the desired struck down an amendment that was based view, processes”). my political normal denied, classification), a racial cert. suspect impli- class is fundamental 940, 2660, U.S. 96 S.Ct. 49 L.Ed.2d 393 2, cated therefore 710, (1976); F.Supp. Lee Nyquist, v. scrutiny judicial applied standard of (W.D.N.Y.1970)(“The principle Hunter majority is erroneous. ‘explicitly racial the state creates be classification’ whenever differentiates A problems involving the treatment of tween majority extensively prob I racial other in Evans rе- matters and afforded area.”), 935, aff'd, many States Court lems in same viewed United 1618, (1971); conclusion, empha- Citi to reach its decisions Superior partic- Responsible relating citizen zens Behavior sized line of cases 1013, 648, Court, Cal.App.4th Cal.Rptr.2d ipation political process. See Wash- (4 Dist.1991) (stating that “Hunter was ington Dist. No. v. Seattle Sch. (1982); scrutiny’ the law invalid 73 L.Ed.2d 896 ‘strict case which Lance, parties on the ly the affected basis Gordon v. classified Erickson, characteristics”); (1971); Mi traditionally suspect 29 L.Ed.2d 273 Hunter Klarman, Interpretative History chael An Protection, 90 Mich.L.Rev. majority interpreted Equal I Modem Evans (noting place these cases to create fundamental equal protection political process theory of participate equally process. understood, however, review, should classifications are and Properly these cases racial- presumptively unconstitutional and not be considered involve classifications 1358 irrelevant to A should be decision- similar issue was addressed in because Crawford Beinfield, making); Note, Education, Robert H. 527, The v. Board 458 102 Equal

Hunter Doctrine: An Protection The- 3211, (1982), S.Ct. 948 L.Ed.2d ory Democracy, that Threatens 38 Vand. day Washington. announced on the same (1985) 397, (suggesting L.Rev. that the Crawford, upheld In the Court a state consti- in on racial decision Hunter is based classifi- prohibited tutional amendment state cations). ordering mandatory courts from as- student Washington In v. School signment Seattle District transportation. The Court stat- 457, 3187, No. 458 U.S. 102 S.Ct. 73 ed that if the em- constitutional amendment 1, (1982), applied L.Ed.2d the Court Hunt- ployed a racial classification such as the clas- struck er and down a state-wide initiative to Hunter, sification in the Court apply would busing the use of terminate achieve racial review, scrutiny the strict standard of integration in public finding the schools. In inapplicable found Hunter the because Equal that the the initiative violated Protec- “embody amendment did at issue a racial Clause, Supreme tion the Court held: Crawford, classification.” 458 U.S. at 536- political majority generally [T]he re- 37, 102 S.Ct. at 3217. process political place structure ob- The fact that fundamental creat- everyone in path seeking stacles by majority ed in Evans I has never been secure benefits of action. recognized by Supreme analysis required But a different Court is evident when Valtierra, cases, the State in governmental power allocates v. two James 402 U.S. nonneutrally, by using explicitly 137, 1331, racial 91 S.Ct. 28 L.Ed.2d nature of a decision to determine the deci- Lance, 1, 1889, Gordon 403 U.S. sionmaking process. State action of this (1971). In L.Ed.2d 273 James and Gor- kind, said, “places special the Court bur- don, the Court could have used the funda- on gov- dens racial minorities within the mental I applied found Evans process,” thereby “making ernmental it scrutiny'review strict to strike down constitu- more difficult for certain racial and reli- Instead, cases, tional measures. in both gious minorities than other members of upheld Court provisions refused community legislation to achieve that is apply scrutiny the strict standard enunciated their interest.” in Hunter. (emphasis Id. 102 S.Ct. at James, Supreme upheld Court (citations omitted). original) The Court thus validity of a California constitutional measure approve did of “distinctions based on prohibited public de- bodies from race” struck down the initiative because veloping, constructing, or acquiring it would have created additional burdens for low-in- a class citizens have had housing projects who historical come until approved voters difficulty changing process. project Thus, in a referendum. Id. S.Ct. at 3203. See Metro singled citizens out James were low-in- Broadcasting, Inc. v. Federal Communica qualify come who would for low-rent Comm’n, 547, 563-65, tions 497 U.S. 110 housing ap- and therefore the Court did not 2997, 3008-09, (1990) S.Ct. ply scrutiny. strict Court said: (holding that a traditionally members of sus us, Unlike the case before Hunter rested pect special class protection); City merit on the conclusion Akron’s referendum Co., Richmond J.A. Croson equal protection by law denied placing 720-21, 102 L.Ed.2d “special burdens racial minorities within (1989) (same); States v. United Carolene governmental process.” ... Unlike Co., Products 152-53 n. provision, the Akron referendum cannot 783-84 n. L.Ed. be (noting said that Article special California’s XXXIV protection may be of rests on based on minority fered “discrete and insular” “distinctions race.” groups). present only case could be affirmed 1678, 1679-83, Hunter,

extending and this we decline to Fundamental do. explicitly implicitly guaranteed by must James, 140-41, 91 S.Ct. at 1333. 402 U.S. at Constitution. San Anto the United States Gordon, Similarly, plaintiffs chal- Indep. Rodriguez, 411 nio Sch. Dist. v. U.S. provi- lenged Virginia’s West constitutional 1, 33-34, 1278, 1296-97, 93 S.Ct. 36 L.Ed.2d required sixty-percent approval sion that (1973). rights Among the fundamental 16 any incurred the bonded indebtedness Supreme delineated the Court are the political of the state. As subdivisions vote, travel, right right to the to interstate James, Supreme apply Court did not right privacy, guarantees con scrutiny strict standard review because: tained the First Amendment. See Police previous in our Unlike restrictions 92, 101, Dep’t Chicago Mosley, v. 408 U.S. cases, Virginia sin- West Constitution (1972) 2286, 2293, 92 33 212 S.Ct. L.Ed.2d minority” and insular gles out no “discrete (First Amendment); Shapiro Thompson, v. not, special treatment.... We are 618, 634, 1322, 1331, 22 394 U.S. 89 S.Ct. therefore, presented like with a case Hunt- (interstate (1969) travel); L.Ed.2d 600 Har er, housing legislation in which fair Elections, per Virginia v. Bd. State 383 subject to an automatic referen- alone 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d U.S. requirement. singled The class out in dum (1966) Griswold, (voting); 169 381 at U.S. was clear —“those who would bene- Hunter 484, (privacy). at 85 S.Ct. 1681-82 racial, barring religious, fit from laws discriminations.” ancestral recognize The been reluctant to Court has Gordon, 5, Bowers, 403 at 91 at U.S. S.Ct. 1891-92. rights new as fundamental. See 478 (“There James and Gordon demonstrate that 195, strict 106 at 2846 should U.S. at S.Ct. scrutiny applied to be, therefore, should not be review great expand resistance to process political on the unless the restriction [the substantive reach of Due Process Claus- singles es], restriction out a discrete and insular particularly requires redefining if it minority.1 Supreme Court of the United category rights deemed to be fundamen- held, however, tal.”); has never Stone, et.al., States Geoffrey Constitutional equally political (1986) right participate Law, (stating 831 the Court at process right. is a fundamental essentially “has frozen list of ‘fundamen- interests”). The tal’ Court has refused

B education, right housing, the to re- declare treatment, payments, or development rights of fundamental in fuse medical welfare employment to be fundamental jurisprudence our has never been a matter worthy rights heightened constitutional for ad hoc determination. See Palko v. Con- 319, necticut, 325, 149, by Cruzan v. Di- protection. 58 S.Ct. 151- See Cruzan Health, (1937) rector, 52, Dep’t (stating U.S. 82 L.Ed. 288 that funda- Missouri 497 2841, 261, 280, 2852, rights “implicit are 110 111 L.Ed.2d mental are those that S.Ct. (1990) liberty,” (right 224 medical treat- concept of ordered such that refuse ment); v. liberty justice nor would if Massachusetts Bd. Retirement “neither exist 307, 2562, sacrificed”); 312, Murgia, [they] Moore v. East 96 were (1976) 2566, Cleveland, (employment); 520 97 S.Ct. 49 L.Ed.2d U.S. (1977) 1937-38, (noting at 93 S.Ct. at 1297- Rodriguez, 52 L.Ed.2d 531 Williams, (education); Dandridge v. fundamental are liberties that 1153, 1161-62, history “deeply Nation’s rooted U.S. (welfare). Hardwick, tradition”); Never before see also Bowers v. 2844-45, partici- recognized 92 has court U.S. Connecticut, (1986); as a pate equally political process in the Griswold v. L.Ed.2d Homosexuals, lesbians, (9th Cir.1990); Secretary Dahl v. 1. and bisexuals have nev- F.2d adjudicated Navy, F.Supp. a discrete and insular 1323- er been the United States High minority (E.D.Cal.1993). Court. See Tech Office, Gays Sec. Clearance Indus. Defense right, curtailing involving fundamental which that creates classification neither classes, judicial scrutiny.2 warrants “It nor strict a fundamental province of this Court create substan- court will review the classification under the guar- tive constitutional the name of “rational basis” standard of review. See Hel —ler, anteeing equal protection —, 2642; of the laws.” Rod- at U.S. 113 S.Ct. at riguez, Sch., Kadrmas Dickinson Public 462, 108 S.Ct. note, however, It is crucial to that even Under the rational basis though equal participation review, standard of the classification will be process scrutiny analy- does merit strict “upheld protection challenge against equal if sis, the United States Constitution offers any reasonably there is conceivable state of protection adversely may for those who provide facts that could a rational basis by legislation. affected When individuals or the classification.” Federal Communica out, singled they groups have been Communication, tions Comm’n v. Beach here, protected by still be Due —Inc., —, —, 2096, U.S. 113 S.Ct. Equal Process Clauses or the Protection 2101, (1993); 211 124 L.Ed.2d see Sulli also ease, Clause.3 In this of is class citizens 478, 485, Stroop, van v. 496 U.S. 110 S.Ct. protected by Equal Protection Clause. 2499, 2504, (1990); 110 L.Ed.2d 438 v. Vance Accordingly, 2 Amendment must be struck 93, 111, 939, Bradley, 440 U.S. 99 S.Ct. 949- only challengers if its down can demonstrate 50, (1979); 59 Dandridge, L.Ed.2d 171 397 rationally legislation that the not related to 484-85, at U.S. 90 S.Ct. at 1161-62. “Such a legitimate state interest. Equal run classification cannot afoul of the Protection Clause if there a rational rela II tionship disparity of between treatment court, During argument oral legitimate before this purpose.” some — plaintiffs-appellees Heller, counsel for the at —, asserted 2642; U.S. 113 S.Ct. at — scrutiny even if inap strict Hahn, review were Nordlinger see also v. U.S. propriate, analyze —, —, 2326, 2 we should 112 120 1 S.Ct. L.Ed.2d under rational basis standard of review. Doe, Counsel that in noted Heller v. Doe inquiry into whether there is a ration — U.S. —, —, 2637, 2642, 113 S.Ct. 125 classification, however, al basis does 257 L.Ed.2d did Court judiciary not authorize “the [to] sit as a engage scrutiny in strict review because superlegislature judge the wisdom de properly preserved it was not at the lower sirability legislative policy of determina urged levels and therefore this court not to Dukes, tions.” New Orleans v. preclude by ruling rational basis review 96 49 S.Ct. L.Ed.2d 511 merely scrutiny under strict I standards. (1976) curiam). Instead, (per a classifica persuasive

find counsel’s contention tion that involves neither classes nor therefore address 2 under a ra rights strong pre fundamental is accorded a tional relation standard. sumption validity. Beach Communica —tion, —, 2098; at U.S. 113 S.Ct. at A Indiana, 314, 331-332, Hodel reviewing 2376, 2386-87, In an legislature (1981); act of the aor Murgia, voter-mandated constitutional amendment 427 U.S. at 96 S.Ct. 2567. at however, Recently, judge, Equality 2. City federal district re also cess. See Found. v. Cincin I, nati, (S.D.Ohio lying 1993). anti-gay-rights F.Supp. on Evans struck down an approved by measure Cincinnati voters. In Cincinnati, Equality Foundation Greater Inc. v. every- 3. When fundamental are denied to Cincinnati, (S.D.Ohio City F.Supp. one, at 430 process raises due concerns. When fun- 1994), the federal district court declared damental are denied to some individuals City unconstitutionally Charter only, Amendment was equal protection it raises concerns. The vague case, however, applicable violated the First Amendment standard in either participate pro scrutiny. homosexuals to strict legislative defi- va ited to the strong presumption of extreme deference Because good,’ either lidity, general or rationale behind nition of ‘the out purpose any judicial sympathy at legislation need be articulated for the difficulties of the — Heller, at —, judi- legislative process, U.S. of a time. out belief — at —, 2642; Nowak, 112 S.Ct. Nordlinger, U.S. generally.”); John Ron- cial restraint Ohio, 2334; Inc. v. Bow Rotunda, Allied Stores Young, ald Nelson Constitutional ers, (2d 1983) (“A majority Law ed. (1959). Additionally, party L.Ed.2d uphold governmental justices today clas- will the bur challenging the classification bears rea- this standard unless no sifications under “negat[ing] every conceivable basis den of sonably of facts could estab- conceivable set or not it is might support it” whether relationship clas- lish a rational between the supported the record. Lehnhausen arguably legitimate end of sification and an Co., Lake Auto Parts Shore Strasser, government.”); Suspect Mark Suspect On Classes Classifications: — at —, Heller, (1973); see also Otherwise, Discriminating, Unwittingly or S.Ct. at (“The ration- Temp.L.Rev. ap- notoriously basis al basis test is weak. When effort to ensure that rational outcome; plied, the a for courts there is ‘little doubt about review does not become “license wisdom, fairness, up- logic challenged ‍​​‌‌​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​​‌​​​​​‌‌​‌​​​​​​​​​​‌​‌‍legislation always or judge the is Communication, ”) choices,” 319, legislative (quoting Murgia, held.’ 427 U.S. at 96 Beach — —, 2101, (Marshall, dissenting)); at at 113 S.Ct. at J. U.S. S.Ct. 2569-70 given great City Living defer reasons articulated but see Cleburne Cleburne (“[A] legislative Center, 432, 447, 3249, Id. 2098 choice ence. See at 473 U.S. subject factfinding 3258, (1985) to courtroom (striking is down 87 L.Ed.2d 313 speculation unsup may rational zoning be based on a law that on rational basis review data.”); ported empirical or mentally evidence prohibited retarded individuals 470-71, 452, Ashcroft, Gregory v. residing in certain areas of town be- 2395, 410 S.Ct. 115 L.Ed.2d on the cause the law was based “bare (1991) (“In a bur cases where classification politically unpopular to harm a desire suspect funda group omitted). dens neither a nor a (citation This be- group”) is so interest, quite mental ‘courts are reluctant cause: ground action overturn that, presumes The Constitution absent ”) equal protection that it denies laws.’ antipathy, im- some reason to infer even (citation omitted); Paris I v. Adult Theater eventually recti- provident will decisions Slaton, 2637- U.S. S.Ct. process by the democratic and that fied (1973) (“The a fact that L.Ed.2d judicial generally unwar- intervention is unprovable congressional directive reflects unwisely may no ranted matter how we good peo assumptions what is for the about Thus, think a branch acted. has imponderable as ple, including aesthetic we not overturn such a statute unless will sumptions, is not a sufficient reason to find varying groups treatment different unconstitutional.”); Dandridge, that statute persons so unrelated to the achieve- (noting at 1161-62 S.Ct. pur- any legitimate ment of combination of “in a not fail because classification does only poses that can conclude that the we (cita practice inequality”) it some results were irrational. legislature’s actions omitted); City Metropolis tion Theatre Co. v. Vance, 440 at 942-43 S.Ct. 61, 69-70, Chicago, omitted). (footnote (1913) (“The Although purposes problems of 57 L.Ed. 730 even of a voter initiative are rationale justi practical government are ones legislative pro- than more difficult to assess require, fy, rough if accommoda do not unscientific.”); nouncements, passed citi- be, initiatives illogical, may it tions— Tribe, classifications zens of the state which contain see Laurence American Constitutional also (2d 1988) (“Within very fundamental not related to aw 1440 ed. L Grego- limits, given See traditionally classes are also deference. courts have exhib- broad only ry, (apply- 2 not at 2406 est behind Amendment ration- 501 U.S. at ing compelling to a al interest also a state inter- the rational basis standard constitu- people); tional restriction est.4 enacted Farms, Spire, Inc. v.

MSM F.2d (8th Cir.1991) Ill (applying a rational test basis referendum). adopted through measures only Although legitimate one state interest people of prerogative It is the rationally goals related to the state’s Colorado, not this or State of other necessary, the constitutional amendment is court, weigh the evidence and determine state has set forth several. district utility purposes the wisdom and be pro- court found that two rationale —the through adopted hind a measure initia religious pro- motion of freedom and process. tive See Minnesota Clover privacy family motion of Leaf —demonstrated Co., Creamery interests, although found (stating achieving the means for the interests Minnesota Court erred in narrowly were tailored achieve substituting judgment leg for that of the view, objectives.5 my there are at least islature). Thus, whether in fact Amendment satisfy interests that three constitutional objectives 2 will meet its is not the relevant asserting invalidity standard and those Equal question: the Protection Clause sat have not met their burden isfied if the of Colorado could have demonstrating that there is rational basis rationally prohibiting decided that homosexu for the constitutional amendment. als, lesbians, enacting and bisexuals from legislation might legitimate certain further A Housing Midkiff, interest. Hawaii Auth. v. The state asserts that the rational basis of 242, 2321, 229, 2330, 467 U.S. 104 S.Ct. 81 2 prevents govern- Amendment is that it (1984); Creamery, L.Ed.2d 186 Clover Leaf interfering privacy. from religious with 449 101 725. S.Ct. at The root of the state’s contention is that plebiscite put preempted by Amendment 2 was to a under ordinances petitions eventually employers, initiative won voter individual landlords or includ- 813,966 approval 710,151 churches, ing profound religious votes to votes. have who product objections Because 2 was homosexuality, a a to nonethe- would Colorado, purpose vote of compelled compromise the citizens of no less be to those con- explicitly government or rationale for Amendment 2 was victions under threat of sanc- Farms, Thus, prevents set forth. See any MSM 927 F.2d 332 tions. 2 po- (“Because adopted through body legislation the law was litical from enacting process, initiative referendum there is hinder to would of individuals legislative history regarding little traditional employ choose who to rent to who to on or However, purpose.”). religious grounds. state has artic- The district court found “[pjreserving religious ulated several rationale this court and in freedom is a com- pelling court to district establish that the inter- state 2 interest” but that Amendment alleged necessary promote compelling 4. The district found that court the state were to a (1) compelling deterring six interests: narrowly state fac- overriding or interest which is tailored. tionalism; (2) preserving integrity Doe, 202, 217, Plyler See v. 457 U.S. 102 S.Ct. (3) functions; preserving state’s ity the abil- 2382, 2395, (1982) (noting 72 L.Ed.2d 786 against remedy of the state to discrimination tailored”); "precisely the classification must be classes; (4) preventing government Blumstein, 330, 342, Dunn v. 405 U.S. 92 S.Ct. interfering personal, from with familial and reli- 995, 1003, (1972) (stating a clas- (5) gious privacy; preventing government involving sification a fundamental must be subsidizing political objectives spe- aof interest); compelling Shapiro Thomp- v. (6) group; promoting physi- cial interest son, 618, 634, 394 U.S. 89 S.Ct. psychological well-being cal and of children. (1969) (noting L.Ed.2d to that there needed government be a reason for applied scrutiny district court the strict travel). restrict interstate requires standard of review state to prove affecting that classifications fundamental Smith, 872, 883, narrowly ployment Div. 494 U.S. to achieve that v. “not drawn 1595, 1602-03, L.Ed.2d possi- manner S.Ct. purpose in the least restrictive (1990). ble.” case, In this the state asserts that Amend- practice and individuals to

Freedom of attempt religious protect religious among the ment particular beliefs is hold precluding legislation freedom that would society. highest in our See Murdock values 105, 115-17, against threaten sanctions those who would Pennsylvania, v. homosexuals, 870, 876-77, (1943); employ refuse to or rent 87 L.Ed. 1292 lesbians, 103, 104, and bisexuals. The state indicates Opelika, 319 U.S. 63 S.Ct. Jones v. (1943); examples of in which indi- several instances 87 L.Ed. 1290 also Martin see Struthers, groups viduals or were to set aside forced J., religious legislative their based on (Murphy, beliefs 87 L.Ed. 1313 In protecting enactments homosexuals. As- concurring). It is within the discretion of pen, example, sexual section 13-98 any or determine which beliefs court to required orientation ordinance churches are not the arbiters are valid because “courts open organiza- interpretation.” their facilities homosexual scriptural United States Lee, opened if tions the facilities were (1982). organization. fact, community appar- “reli Churches In L.Ed.2d ently employees, to hire acceptable, logical, could not refuse need not be gious beliefs consistent, including priests, on pastors or the basis comprehensible or to others Similarly, protection.” their sexual orientation. Title [free exercise] to merit order Bd., 707, 714, 101 Municipal Boulder Code did not allow v. Review Thomas organization deep- religious a church with Not ly religious on held moral and views only impermissible is it for courts to deter subject homosexuality to hire validity practices to refuse religious mine the his beliefs, body someone or her sexual orienta- government based official tion. “proper” form of delineate what require act in faith and citizens to accordance view, my legitimate the state has government-mandated religious stan with religious protecting freedoms and interest in Virginia Bd. See West State dards. of Educ. relationship Amendment bears rational Barnette, 624, 1178, 642, 63 S.Ct. that interest. (1943) (“If 1187, any there is 87 L.Ed. 1628 constellation, in fixed our constitutional star B official, high petty, pre or can it is that that the Although the district court found politics, in scribe what shall be orthodox in a interest state did not have nationalism, religion, or other matters of “factionalism,” “political frag- deterring or opinion or force citizens to confess work mentation,” legitimate the state does have therein”). act their faith uniformity promoting interest state-wide Nevertheless, religion on not all burdens rationally to related and Amendment Lee, 455 U.S. at are unconstitutional. that interest. 1055; Thomas, at Prohibiting action on matters affect- local “only (stating at 1432 those advantageous ing inas- the entire state is highest ... can over interests of the order as has an interest in uniformi- much the state legitimate the free exercise claims to balance ty regulation: of values, highest in religion”). Even the of freedom, implicit concept religious inquiry cluding must sometimes central be pre-emption is whether there should way greater public good. to See of give of Verner, uniformity regulation statewide Sherbert for If there is no need specific conduct. Thus, substantially uniformity, there is no need statewide governmental actions that power regu- to justified preempt local practice state law religious must burden preemption Em- ... This is the core compelling governmental interest. late by a hand, consider, question governments. the one Those local affairs —to uniformity regulation of municipal, need statewide of con- mixed or statewide conduct, and, specific type aof of on the imperceptibly merge. often cern hand, governments other the need of local regulation is a matter of statewide State local, respond to be able to as distin- variety in a of See concern broad contexts. guished problems. from statewide Denver, County City Robertson v. & of Netsch, Daniel R. & Dawn C. Mandelker (Colo.1994) J., (Erickson, P.2d dis- in a State Local Government Federal senting). (1977); System 237 see also M. Osborne case, legitimate In this the state has a Reynolds, Law Local Government promoting because (stating that con- inquiry the critical it a matter concern. Amend- preemption text state local of statewide “[I]s of law is: an area con- where is desirable to have a ment involves matter statewide single, all-encompassing regula- public deeply scheme of cern because the divided tion, just fact, so that local laws—not local laws homosexuality.6 over the issue of In state’s, that conflict local with type civil has never been the of con- unduly complicate pic- laws—would exclusively govern- cern reserved for local ture?”); Rhyne, Charles S. The Law Local By adopting peo- ments.7 Operations § (recognizing Government 19.11 ple of sought the state have to ensure that necessity preemption is rooted in the government will act on uniform basis. uniformity regulation). statewide Denver, governments, local such Several Aspen, and Boulder enacted sexual orienta- determining In what is a matter of state laws, concern, voting By tion while others did not. wide this court has not set forth a Instead, legal approve strict de the voters of standard. we have Colora- termined the nature the concern on an ad do indicated that wanted a statewide formerly only hoc basis. See Denver & Rio Grande issue West resolution that had Denver, City ern R.R. & County locally regulated subject great Co. v. 673 been (Colo.1983). City County P.2d & debate. citizens of the state have a State, (Colo. Denver v. 788 P.2d process to the initiative which resolves 1990), we stated: municipal govern- conflicts between and local ments when the issue Although is a matter of state- we have found it useful em- “local,” “mixed,” process ploy repug- wide concern and the is not and “state-wide” categories resolving nant conflicts the constitution.8 The between legislation, legal local these Court has noted that “referendums cate- demon- bias, gories mutually democracy, not be should mistaken for strate devotion not to factually discrimination, James, perfect descriptions prejudice.”9 exclusive or of the relevant interests of statе and 91 S.Ct. at bisexuality homosexuality Testimony 6. issue and 8. of Harvard Government Professor deeply and race Harvey controversial divisive. Unlike Mansfield indicated that the use of the sex, and there no national consensus that process sup- initiative to enact Amendment 2 inappropriate sexual orientation is an governmental, for basis ported stability respect political pro- for the private, much less cess, decisionmak- by giving people "the a sense that ing. A series of constitutional amendments and them, government they is not alien to and that Congress authoritatively acts have settled the get together by can their own initiative ... to place of race and life. sex American The same gives produce a result that a them sense of satis- simply cannot said be of non-traditional sexual accomplishment.” faction and orientation. cogently 9. The Court in James went to state: on example, Assembly 7. For the General lawmaking procedure But of a course that passed prohibiting a companies law insurance "disadvantages” particular group a does not inquiring making coverage from about deci- always protection. deny equal any such on the Under sions § basis of sexual See orientation. 10-3-1104(l)(f), (1993 holding, presumably Supp.). 4A a State would not able C.R.S. In be require any subject Rights the Colorado Civil referendums on unless Commission all, recommending legislation adding required on went record referendums on were because protected always disadvantage sexual to the group. orientation list of classes. would some state, therefore, view, legitimate prosecuted. a ed my the state has requiring a law reasonably postulates that promoting uniformity in statewide protection group an would the additional and Amend- of statewide concern matters resources, further stretch scarce and Amend- relationship to rational ment bears a 2 protects ment the civil enforcement interest. Thus, traditionally suspect groups.12 for the people decision of the the State of Colora- C government do to resources a allocate a legiti- contends that it has The state also particular legitimate manner is a state inter- allocating its resources. mate interest Dukes, See at est this case. U.S. suggests pro- laws Specifically, the state a (upholding 2516-17 New Or- 96 S.Ct. at by drain the Amendment would hibited noting leans that states have wide ordinance labor set financial and resources aside state’s economies); regulating latitude in local their protection budgeted the of tradition- for James, at 91 S.Ct. at 1334-35 respect and diminish ally classes (noting procedure that a referendum “en- rights categories. traditional civil community a will sures that all the that, case, in a testimony reflected have voice decision which lead In this large governmental expenditures of local although statute that there was current that a funds” and therefore found referen- rights leg- civil required enforce Equal Pro- dum measure did violate homosexuals, lesbians, islation behalf Clause). tection bisexuals, any would such statute de- funding exist- crease the available to enforce Additionally, legitimate in the state has a protecting traditionally suspect ing laws ensuring traditionally terest in that the sus investigative example, classes.10 For pect respected. remain See Craw classes Rights has of the Commission ex- arm Civil ford, 102 S.Ct. at 3218-19 steadily upon perienced increasing demands (“And certainly purposes the Four shrinking budget. Two out of last teenth Amendment would not be advanced years, three the Division has been unable to discouraged interpretation part federally of a funded work- protection fulfill providing greater from States minorities.”). agreement.11 Joseph The Division received Broa share racial Professor community complaints the black dus testified that addition homosexuals being thoroughly investigat- to civil statutes or ordinances would claims were not only met required analyze be elude orientation. The Division And this would sexual Court Equal goals year Employ- whether structures to determine last because provision gubernatorial veto filibuster Opportunities Commission reduced likely "disadvantage” any rule diverse satisfy necessary agree- number of cases shifting up groups that make ment. people. American Valtierra, 137, 142, 91 James ad- States Court has 12.The United impacting drеssed the issue of fiscal concerns Co., 222-24, Products Plyler, In United States Carolene rights. In certain L.Ed. whatever the Court held that at 2397-98 Supreme Court announced its deny- savings might the state achieved legislative reviewing enactments in standard ing public undocumented aliens education to sphere: the economic compared to the costs to were insubstantial legisla- supporting the of facts [T]he existence state, children, nation of not educat- and the judgment presumed, regulatory to be tive Shapiro, ing In them. ordinary legislation affecting commercial Richardson, at 365, and Graham pronounced unconsti- transactions is not to L.Ed.2d light facts made tutional unless in compel- integrity to be a Court found fiscal generally it is of known or assumed such ling against the to inter- balanced interest assumption preclude it character as to welfare assistance state travel and upon within rational basis rests knowledge some distinguishable as either aliens. These cases are legislators. experience rights or cases which cases fundamental object agreement, the works on a saving money Under the Division 11. not a basic allocation involving only federally- of cases certain number funds. which, course, protected does not in- classes respect public’s lessen the for historic civil

rights Testimony categories. also indicated PEOPLE of the State that, suspect classes, the traditionally unlike Colorado, Petitioner, homosexuals, lesbians, bisexuals are a relatively politically powerful privileged Anthony Indeed, QUINTANA, Jr., Respondent.

special group. J. former Civil Rights Ignacio Commission Chairman Rodri- No. 93SC428. guez testified the inclusion of homosexu- represent als as a class would Colorado, Supreme Court of departure” “drastic from the historical aims En Banc. of the civil laws. Oct. Colorado, through The State entities Rights Division, such as the Colorado Civil attempted

has to further the interest rem-

edying specific instances of sexual ‍​​‌‌​​​‌​‌‌‌‌‌‌‌‌‌​‌‌‌​​​‌​​​​​‌‌​‌​​​​​​​​​​‌​‌‍and racial through existing

discrimination civil However, programs.

laws and enforcement

owing fiscal to the constraints which are part

inevitably public administration,

unlimited funds are not available Therefore,

purpose. upon is incumbent priorities set state to for its enforcement case, setting priorities

efforts. In this legitimate

is a state interest and Amendment rationally

2 is related to that interest.

IV view, my judicial the correct standard of

review of Amendment 2 is a rational basis Additionally,

standard review. plain-

tiffs have not shown that is not

rationally legitimate related to the state’s freedom, protecting religious

interest in en-

couraging uniformity law, statewide allocating Accordingly, resources. I

would reverse the decision of the district injunction. Therefore,

court and vacate the I

dissent.

Case Details

Case Name: Evans v. Romer

Court Name: Supreme Court of Colorado

Date Published: Oct 11, 1994

Citation: 882 P.2d 1335

Docket Number: 94SA48, 94SA128

Court Abbreviation: Colo.