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Roy Romer, Governor of Colorado


Richard G. Evans et al

United States Supreme Court

Roy G. Romer, Governor of Colorado, is on record as opposing initiatives that "deny" special rights and protection to homosexuals. Perhaps unfortunately for him, his name will long be remembered as part of the fight against granting these special rights to homosexuals, commonly referred to as the Colorado Amendment 2 case.

In early 1991, a group of citizens in Colorado Springs became concerned over the passage of local ordinances in several Colorado municipalities granting minority status protections to homosexuals, not granted to any other citizens. In response, the group formed an organization called Colorado for Family Values (CFV), dedicated to the repeal of all such laws. In August of 1991, CFV, with the help of the National Legal Foundation, submitted a proposed Amendment to the Colorado Constitution. Amendment 2 would prohibit state and local governments from enacting, adopting, or enforcing "any statute, regulation, ordinance, or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination."

On November 3, 1992, the people of Colorado adopted Amendment 2 by a vote of 53.4% to 46.6%. In this most democratic of processes, the people of the state had spoken by referendum and enjoined their state and all lower governments from granting protected status to a group of individuals based not on an inalienable physical characteristic, but on a chosen lifestyle.

Almost immediately, the homosexual forces struck back, challenging the constitutionality of Amendment 2. The homosexual community claimed that homosexuality was an uncontrollable inborn trait and the passage of Amendment 2 reflected discrimination against an entire class of citizens based on this "identifiable" trait. In this argument, they likened themselves to the civil rights movement of the 1960s. In fact, there is no similarity.

Both the District Court and the Colorado Supreme Court agreed with the homosexual argument. The Colorado Supreme Court held that there was a "fundamental right to participate equally in the political process," and that Amendment 2 denied homosexuals their equal participation. In order to have their grievances met, homosexuals would have to pass a future initiative that would overturn Amendment 2. This appeal to the voters of the entire state was ruled to be over-burdensome. The creation of this new class of fundamental rights was a clear example of judicial legislation. The State, with help from the National Legal Foundation, appealed to the U.S. Supreme Court.

Unfortunately, the Supreme Court issued what may be the worst decision in the history of the court, finding that Amendment 2 did discriminate against an identifiable class of people and violated their rights to due process and equal protection under the law. The court held that Amendment 2 was based in "animus," or hatred, against a specific group of people. It also ruled that, because Amendment 2 violated constitutional rights, it was subject to a "strict scrutiny" standard. Under a strict scrutiny standard a statute is examined using two tests. First, does the law promote a compelling state interest. Second, does it do so in the least restrictive means possible. This would become the standard of measure for all similar future cases. Finally, the court stated that the limited size of the group rendered any attempt to overturn Amendment 2 nearly impossible, and by denying the group’s ability to seek redress at the city or county level their fundamental rights had been violated.

Justice Scalia authored the dissenting opinion and wrote a scathing rebuke of his fellow justices. In his concluding remarks, Scalia stated the following:

Today's opinion has no foundation in American constitutional law and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will.

Justice Scalia goes on to note that the Supreme Court had even overruled a portion of the trial court decision that the homosexual community had chosen not to appeal!! Scalia correctly notes that this decision by the majority justices not only invents new "fundamental rights," but also creates a new constitutional theory. Under this theory, citizens who exercise their democratic rights to preserve traditional values can be cast aside simply by standing on the wrong side of political correctness.

One of the tests to determine a disadvantaged minority is proof of political powerlessness. Even if all other legitimate reasons for not granting homosexuals protected status are met, and they are not, they would still fail the political powerlessness test. Romer v. Evans was the first in a long line of cases joined by the National Legal Foundation in opposition to the radical homosexual rights agenda. Romer v. Evans would also be the case that brought forth a ground swell of support for the NLF's call for judicial impeachment. For further information, you may download Steve Fitschen's law review article explaining impeachment and Why the Romer 6 Must Go.

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