WASHINGTON, Oct. 10 -- A Colorado official told the Supreme Court Tuesday homosexuals would be protected by anti-discrimination laws that shield all citizens, despite a state amendment that bans other laws specifically protecting gays, lesbians or bisexuals. State Solicitor General Timothy Tymkovich was arguing to save Amendment 2, which passed by referendum in 1992 and the Colorado Supreme Court has declared unconstitutional. Amendment 2 'changes no law protecting (civil) rights, including federal law,' Tymkovich said. But his argument quickly ran into skepticism from two key swing votes on the nine-member Supreme Court -- Justices Anthony Kennedy and Sandra Day O'Connor. 'I've never seen a case like this,' Kennedy said from the bench. 'Is there any precedent that we could uphold a law like this?' Tymkovich cited 1971's James vs. Valtierra, in which the Supreme Court upheld a California law forbidding local governments from constructing or acquiring low-income housing without a referendum in their jurisdictions. Kennedy rejected the comparison outright, however, saying that in the 1971 case the high court was able to weigh the interests of the state against the interests of people who need low-income housing. Amendment 2 attempts 'to fence out (from the political process) the class (of homosexuals) for all purposes, and I've never seen a case like that,' Kennedy said. O'Connor was equally critical. 'The literal language would indicate, for example, a public library could refuse to allow the borrowing of books to homosexuals,' O'Connor said. Justice Ruth Bader Ginsburg also questioned the validity of Amendment 2.
In effect, the state amendment tells homosexuals, 'Thou shalt not have access to the legislative process,' Ginsburg said, adding she knew of no other instance in which people were denied access to the political process. 'What about laws prohibiting bigamy, or laws prohibiting homosexuality?' Justice Antonin Scalia replied, attempting to ride to Tymkovich's rescue. Scalia said in his opinion those laws were themselves precedents for Amendment 2. Ginsburg, continuing the exchange from the bench, said there was no Colorado law banning homosexuality. In response to questioning from Justice David Souter, who asked what was the difference between banning laws protecting homosexuals and banning laws protecting the aged or the handicapped, Tymkovich replied that without Amendment 2, Colorado residents would be denied the exercise of their religious beliefs or their right to free association. Denver lawyer Jean Dubofsky, speaking for those Denver cities that had passed laws specifically protecting homosexuals, told the Supreme Court that Amendment 2 is 'vertically broad' and prohibits all levels of government in Colorado from acting to help homosexuals escape discrimination. The amendment would also prevent a state judge, though not a federal one, 'from recognizing a claim (of discrimination) on its face,' Dubofsky said. 'One of the difficulties with this amendment is that one has no idea' what measures 'may be needed to prevent discrimination against homosexuals,' she said. Before the amendment was passed by state voters, three Colorado cities -- Denver, Boulder and Aspen -- had enacted ordinances prohibiting discrimination based on sexual orientation. The Colorado Civil Rights Commission had even recommended that the General Assembly pass a law that would have similarly banned such discrimination. But a Colorado Springs-based group called Colorado for Family Values claimed that singling out homosexuals and bisexuals for special legal protections endangered the religious, economic and privacy rights of others, as well as the right to free association. CFV became the chief sponsor of what would eventually be called Amendment 2, which forbade any state division from granting 'protected status based on homosexual, lesbian or bisexual orientation.' Despite the fact that opponents outspent supporters 2 to 1, and the opposition of civil liberties groups, many religious leaders and most of the state's newspapers, state residents approved the amendment Nov. 3, 1992, by more than 100,000 votes. Ten days later, Denver, Boulder and Aspen officials challenged the amendment in court, saying it violated the U.S. Constitution. A state judge in Denver issued a preliminary injunction against the enforcement of the amendment, and the Colorado Supreme Court made the injunction permanent by ruling the amendment unconstitutional. The state high court rejected the argument that the amendment was designed to protect religious liberty. 'It is clear that Amendment 2, which affects the fundamental right of gay men, lesbians and bisexuals to participate equally in the political process, is not the least restrictive means of ensuring religious liberty,' the Colorado Supreme Court said, 'and it is not narrowly tailored to serve the compelling state interest in ensuring the free exercise of religion.' The U.S. Supreme Court is expected to rule before the justices recess for the summer. (No. 94-1039, Romer et al vs. Evans et al)