Amicus Curiae Brief — Romer v. Evans

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No. 94—1039 :

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

ROY ROMER, AS GOVERNOR OF THE STATE OF COLORADO,

AND THE STATE OF COLORADO,

Petitioners,

Vv.

RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER,

PAUL BROWN, PRISCILLA INKPEN, JOHN MILLER, THE

BOULDER VALLEY SCHOOL DISTRICT RE-2, THE CITY AND

COUNTY OF DENVER, THE CITY OF BOULDER. THE CITY OF

ASPEN, AND THE CITY COUNCIL OF ASPEN,

Respondents.

On Writ of Certiorari to the

Supreme Court of the State of Colorado

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF THE AMERICAN CENTER

FOR LAW & JUSTICE FAMILY LIFE PROJECT

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

KEITH A. FOURNIER JAY ALAN SEKULOW

JOHN P. TUSKEY (COUNSEL OF RECORD)

1000 Regent Univ. Dr. JAMES M. HENDERSON, SR.

Virginia Beach, VA 23464 1000 Thos. Jefferson St. N.W.

(804) 579-2489 Suite 520

Washington, D. C. 20007

(202) 337-2273

Attorneys for Amicus Curiae

American Center for Law & Justice Family Life Project

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No. 94—1039

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1994

Roy ROMER, AS GOVERNOR OF THE STATE OF COLORADO, AND THE

STATE OF COLORADO,

Petitioners,

Vv.

RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER, PAUL BROWN

PRISCILLA INKPEN, JOHN MILLER, THE BOULDER VALLEY SCHOOL

DIsTRICT RE-2, THE CITY AND COUNTY OF DENVER, THE CITY OF

BOULDER, THE CITY OF ASPEN, AND THE CITY COUNCIL OF ASPEN

Respondents.

On Writ of Certiorari to the

Supreme Court of the State of Colorado

MOTION OF THE AMERICAN CENTER FOR LAW AND

JUSTICE FAMILY LIFE PROJECT AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

Pursuant to Supreme Court Rule 37.4, the American Center for

Law and Justice Family Life Project (ACLJ) seeks leave to file a brief

amicus curiae in support of petitioners. In support of its motion, the ACLJ

States:

1. The ACLJ has received consent to file its brief from Timothy

Tymkovich and Jean E. Dubofsky, counsel for petitioners and several

of the respondents in this case. Copies of the letters of consent are being

2. On April 18, 1995, counsel employed by the ACLJ spoke over

the telephone with John P. Worcester, counsel for the remaining

respondents City of Aspen and City Council of Aspen. Mr. Worcester

informed ACLJ counsel that his clients would not consent to the filing of

any amicus briefs, but that his clients would not oppose any amicus briefs

being filed.

3. As noted more fuliy in the Interest of Amicus section in the

brief, ACLJ attorneys have participated as counsel in a number of cases

before this Court. Based on an examination of the Petition for Certiorari

and the briefs supporting and opposing that petition, ACLJ counsel believe

that the ACLJ's brief brings relevant matter to the Court that is not already

before the Court and will be of help to the Court in deciding this case.

WHEREFORE, the ACLJ respectfully asks that this Court grant

the ACLJ leave to file its brief amicus curiae in support of petitioners.

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A. I

009 REGE > DRIVE

| cae 23464

(804) 579-2489

Attorneys Amicus Curiae, American

Center for Law and Justice Family Life

Project

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QUESTION PRESENTED

Whether a state, having a rational basis to do so, may make

it more difficult to enact legislation that would establish intrusive

regulation of private behavior and property and would cause conflicts

with the religious liberty of many of the state’s citizens, to prevent

discrimination against members of a non-suspect class that is defined

by its members’ conduct rather than by any immutable characteristic,

that enjoys considerable political influence, and whose members are

economically advantaged compared to other similarly-situated

citizens.

ii

TABLE OF CONTENTS

See PING is ss Gawd es cdes va ewe seeder i

Se aI 99.65 550000 Kas oeeet vee il

EE 6b ee icuviwics cescssDedeeee le l

SUMMARY OF ARGUMENT Wet 3

I. THIS COURT HAS NOT RECOGNIZED AND SHOULD

NOT RECOGNIZE THE FUNDAMENTAL RIGHT TO

EQUAL PARTICIPATION IN THE POLITICAL

PROCESS INVENTED BY THE COLORADO SUPREME

COURT

II. UNDER TRADITIONAL EQUAL PROTECTION

ANALYSIS, COLORADO CONSTITUTIONAL

AMENDMENT 2 DOES NOT VIOLATE THE EQUAL

FOCUS TUT CIID ony id nav cudcccnctcceseces 9

A. Homosexuals, Bisexuals, and Lesbians Do

Not Constitute a Suspect Class .............. 9

B. Amendment 2 Is Rationally Related to Several

Legitimate State Interests .................. 13

SUPE oa 60.6 ds Gian coe ne 16

TABLE OF AUTHORITIES

Attorney General v. Desilets, 636 N. E. 2d 233 (Mass. 1994) .. 15

Ben-Shalom v. Marsh, 881 F. 2d 454, 464 (7th Cir. 1989)

bScee raked ee RARER AME es SIRT eo ee SECU ES BRAY REAON 10, 11, 13

Board of Airport Commisioners v. Jews for Jesus, 482, U.S. 569

ee eco ae hund ROLMRESREKOO COS 2

Board of Education v. Mergens, 496 U.S. 226 (1990) ......... 2

Bowers v. Harawick, 478 U.S. 186 (1986) ............... 3,12

Bray v. Alexandria Women's Health Clinic, 113 S. Ct. 753 (1993).

OT Bits rh Rs IRE Egan 06 DRUM SWE EE raee res sh eh? 2, 12-13

Evans v. Romer, 854 P. 2d 1270 (Colo. 1993).......... 5,7, 8,9

Evans v. Romer, 882 P. 2d 1335 (Colo. 1994)............. 5,15

Frisby v. Schutlz, 487 U.S. 474 (1988) ................0255. 2

Gordon v. Lance, 403 U.S. 1 (1971) ...............00045. 5,6

Graham v. Richardson, 403 U. S. 365 (1971) ............... 10

Heller v. Doe, 113 S. Ct. 2637 (1993) .............. 4-5, 13,15

High Tech Gays v. Defense Industry Clearance Office, 895 F. 2d 563

ER ois. alii e Cres wo hdanavn OC Ue tes see veus 10, 11

Hunter v. Erickson, 393 U. S. 385 (1969) ............. 4,5,6, 9

James v. Valtierra, 402 U.S. 137 (1971) ............ 4, 5, 6, 8-9

iv

Table of Authorities Continued

Korematsu v. United States, 323 U.S. 14 (1944) ............ 10

Lalli v. Lalli, 439 U. S. 259 (1978)

Lamb's Chapel v. Center Moriches Union Free School District,113

PORE Te Ce ry eT eee poe 1-2

Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 313

SE in scbvb cave Veekeaeees eee: anureeel ae 10

National Gay Task Force v. Board of Education, 729 F. 2d 1270,

PE I oak todo baxubeeerel. dia kee 10

New Orleans v. Dukes, 427 U. S. 297 (1976) ............... 10

Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987)........ 10, 13

San Antonio School District v. Rodriquez, 411 U.S. 1 (1973) . 10

Smith v. Fair Employment and Housing Commission, 30 Cal. Rptr.2d

395 (Cal. App. 1994), review granted, 880 P.2d 111 (Cal. 1994). . .

‘ecendenadncd nes ebhawned boot lac ee eae 15

Steffan v. Perry, 41 F. 3d 677 (D.C. Cir. 1994) ....... 10, 11, 12

United States v. Kokinda, 497 U.S. 720 (1990) ............... 2

Washington v. Seattle School District No. 1, 458 U. S. 457 (1982).

v

Table of Authorities Continued

Watkins v. United States, 847 F. 2d 1329, (9th Cir. 1988), vacated,

875 F. 2d 699 (9th cir. 1989) ... 0.6... eee ee eee 11-12

Woodward v. United States, 871 F. 2d 1068 (Fed. Cir. 1989) ....

snap LA CE EL Pg eee eee yee eer ts Teer 10, 11, 13

Constitutional Provisions:

ee csc veteesccdsesevctoeveseess 16

Colo. Const. art. I], § 30b (Amendment 2) ............. 2, passim

Other Materials:

Richard F. Duncan, Who Wants to Stop the Church: Homosexual

Rights Legislation, Public Policy, and Religious Freedom, 69 Notre

Dame L. Rev. 393, 406 (1994) ............... 10, 11, 12-13, 16

Jeffrey Schmalz, Gay Politics Goes Mainstream, N. Y. Times, Oct.

11, 1992, §6 (Magazine), at20 .... 0.6... eee eee eee 11

A Testament of Hope: The Essential Writings of Martin Luther King,

Jr. (James Melvin Washington ed. 1991) ..............5005: 13

No. 94—1039

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

ROY ROMER, AS GOVERNOR OF THE STATE OF COLORADO,

AND THE STATE OF COLORADO,

Petitioners,

Vv.

RICHARD G. EVANS, ANGELA ROMERO, LINDA FOWLER,

PAUL BROWN, PRISCILLA INKPEN, JOHN MILLER, THE

BOULDER VALLEY SCHOOL DISTRICT RE-2, THE CITY AND

COUNTY OF DENVER, THE CITY OF BOULDER, THE CITY OF

ASPEN, AND THE CITY COUNCIL OF ASPEN, —

Respondents.

On Writ of Certiorari to the

Supreme Court of the State of Colorado

BRIEF OF THE AMERICAN CENTER FOR LAW &

JUSTICE FAMILY LIFE PROJECT AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS

The American Center for Law and Justice (ACLJ) is a public

interest law firm and educational organization dedicated to protecting

religious liberty, human life, and the family. ACLJ has argued or

participated as amicus curiae in numerous cases in this Court. See,

2

¢.g., Lamb's Chapel v. Center Moriches Union Free School District,

113 S. Ct. 2141 (1993); Bray v. Alexandria Women's Health Clinic,

113 S. Ct. 753 (1993); United States v. Kokinda, 497 US. 720

(1990); Board of Education v. Mergens, 496 U.S. 226 (1990); Frisby

v. Schultz, 487 U.S. 474 (1988); Board of Airport Commissioners v.

Jews for Jesus, 482 U.S. 569 (1987). ACLJ attorneys also have

litigated cases involving the conflicts between state anti-discrimina-

tion laws and religious liberties in courts across the country.

The ACLJ Family Life Project recognizes the family as the

primary social and religious institution of any just society. The

Family Life Project is committed to the two-parent, marriage-bound

family as the primary mediating institution of civilization, and to

efforts to defend the family against all attempts to undermine its

sovereignty, primacy, and importance.

The ACLJ, in its dedication to defending the rights of

religious believers, is committed to defending the family as long

understood within the classical Judeo-Christian tradition as a

“domestic church,” or, “church in the home.” These phrases,

hearkening back centuries, imply that the believing family is itself a

religious institution. The American Center for Law and Justice

Family Life Project submits this brief in support of the petitioners

because of the inevitable conflict between religious belief and laws

banning discrimination based on sexual orientation. Amendment 2,

Colo. Const. art. II § 30b, the Colorado constitutional provision at

issue in this case, serves the legitimate purpose of (among others)

protecting Colorado citizens’ religious liberties from unnecessary

and intrusive government regulation on behalf of a class whose

members do not need special government protection and is a class

defined by conduct that undermines the traditional marriage-bound,

two-parent family. The ACLJ Family Life Project urges this Court

to reverse the Colorado Supreme Court’s decision striking down

Amendment 2.

SRR, an AEE OO Wee ee ng hs og

te 2

3

SUMMARY OF ARGUMENT

While it is true that Amendment 2 singles out homosexuals

for special treatment, that treatment does not violate the Equal

Protection Clause. None of the normal criteria for determining that

a particular class of people is a suspect class applies to homosexuals.

First, homosexuals are not a group in need of special protection from

majoritarian processes. Homosexuals as a group are comparatively

more affluent and better educated than similarly situated hetero-

sexuals. Homosexuals also are not a politically powerless minority.

Second, homosexuality, unlike race, national origin, and sex, is not

an immutable characteristic that is irrelevant to personal character.

Rather, homosexuals as a class are defined by their sexual proclivi-

ties and conduct. This Court has held in Bowers v. Hardwick, 478

U.S. 186 (1986), that homosexual conduct is not constitutionally

protected. Moreover, that conduct is at least morally controversial,

that a person is known to be homosexual, therefore, tells us much

about the person’s, character because it tells us that person engages

in or desires to eagage in morally controversial conduct. A classifi-

cation based on conduct that bears a rational relationship to an

assessment of character is much different than classifications based

on skin color or national origin, factors that are immutable and

irrelevant to character.

Despite the fact that homosexuals do not constitute a suspect

class, the Colorado Supreme Court applied strict scrutiny to strike

down Amendment 2. The Court did so by inventing a new “funda-

mental right to equal participation in the political process.” In

creating this right, the court placed great reliance on a line of cases

from this Court that considered state laws placing special burdens on

the enactment of legislation desired by identifiable groups of voters.

But those cases in that line that applied strict scrutiny did so not

because a fundamental right was involved but because the identifi-

able groups singled out were suspect classes. When suspect classes

were not involved, this Court did not apply strict scrutiny. Compare

4

Hunter v. Erickson, 393 U.S. 385 (1969) (striking down a state

referendum requirement placing special burdens on laws benefitting

racial minorities) with James v. Valtierra, 402 U.S. 137 (1971)

(upholding a state law requiring voter approval of low-income public

housing). Thus, this Court never has recognized the “fundamental

right” that the Colorado Supreme Court has invented.

Where a law neither implicates a fundamental right nor

draws suspect classifications, the law does not violate the Equal

Protection Clause if it rationally relates to a legitimate government

interest. Amendment 2 furthers at least three legitimate state

interests: Amendment 2 protects property and associational rights by

making it more difficult to enact laws restricting the people’s right

to associate and use their property; Amendment 2 allows the state to

preserve its civil rights enforcement resources for use in protecting

traditional suspect classes more in need of protection than homo-

sexuals; and Amendment 2 protects religious liberty by making it

harder to enact laws that would create conflicts between religious

conviction and legal duty. Because Amendment 2 rationally relates

to legitimate state interests, does not draw a suspect classification,

and impinges on no fundamental right, this Court should reverse the

Colorado Supreme Court’s decision and hold that Amendment 2 does

not violate the Equal Protection Clause.

I. THIS COURT HAS NOT RECOGNIZED AND

SHOULD NOT RECOGNIZE THE FUNDAMENTAL

RIGHT TO EQUAL PARTICIPATION IN THE POLI-

TICAL PROCESS INVENTED BY THE COLORADO

SUPREME COURT.

, Under traditional equal protection analysis, “[A] classifica-

tion neither involving fundamental rights nor proceeding along

suspect lines” is presumed valid and violates the Equal Protection

Clause only if the classification does not rationally relate to some

legitimate government purpose. Heller v. Doe, 113 S. Ct. 2637, 2642

(1993). The respondents claim that Amendment 2 unfairly singles

5

out homosexuals' by creating special burdens to enacting legislation

favorable to homosexuals. But the respondents did not challenge in

the Colorado Supreme Court the trial court’s finding that homo-

sexuals are not a suspect class. Evans v. Romer, 882 P.2d 1335,

1341 n. 3 (Colo. 1994) (Evans II). The Colorado Supreme Court did

not find expressly that homosexuals are a suspect class. Instead, the

court applied strict scrutiny, rather than rational basis analysis, to

strike down Amendment 2 because the court found that Amendment

2 implicated the “fundamental right to participate equally in the

political process” by ““‘fencing out’ an independently identifiable

class of persons”—homosexuals. Jd. at 1339; Evans v. Romer, 854 P.

2d 1270, 1282 (Colo. 1993) (Evans I).

The Colorado Supreme Court cobbled this right together

from various strands of case law. But the Court found the nght’s

“most explicit, and nuanced, articulation” in cases involving

“legislation which prevented the normal political processes from

enacting particular legislation desired by an identifiable group of

voters,” Evans II, 854 P. 2d at 1279. Cases in that line include

Hunter v. Erickson, 393 U. S. 385 (1969), James v. Valtierra, 402 U.

S. 137 (1971), Gordon v. Lance, 403 U. S. 1 (1971), and Washing-

ton v. Seattle School District No. 1, 458 U. S. 457 (1982).

As dissenting Justice Erickson in the Colorado Supreme

Court and other amici to this Court have ably demonstrated, these

cases do not support the Colorado Supreme Court’s finding that a

fundamental right to equal participation in the political process

exists. See Evans II, 882 P. 2d at 1357-59 (Erickson, J., dissenting);

Evans I, 854 P. 2d at 1296-1300 (Erickson, J., dissenting); Petition

for Certiorari at 8-14; Brief of Amici Curiae States in Support of

Petition for Certiorari at 4-9; Brief Amicus Curiae Colorado for

Family Values in Support of Petition for Certiorari at 9-11. As

’ For convenience, we will refer collectively to male

homosexuals, bisexuals, and lesbians as homosexuals.

6

Justice Erickson and the other amici have demonstrated, when this

Court has applied strict scrutiny in cases such as Hunter and

Washington, it has done so not because of any fundamental right to

equal participation but because the special burdens placed on

enacting certain legislation in those cases discriminated against

suspect classes.

Thus, where states made it more difficult to enact legislation

that would benefit racial minorities, the paradigm suspect class, this

Court applied strict scrutiny and found violations of the Equal

Protection Clause. See Hunter, 393 U.S. at 389-92 (striking down a

referendum requirement that put special burdens on the enactment of

fair housing legislation that would benefit racial minorities):

Washington, 458 U. S. at 467-87 (striking down a state constitutional

amendment requiring state-wide approval of local decisions to bus

school children to desegregate schools). But where race was not

involved, the Court refused to apply strict scrutiny to strike down

state laws simply because those laws made it more difficult to enact

legislation that would benefit a certain group of people. See James,

402 U.S. at 140-42 (upholding a state constitutional amendment

requiring vcter approval of low-rent public housing projects because

the amendment did not make race-based distinctions); Gordon, 403

U. S. at 4-7 (upholding state constitutional provisions requiring

three-fifths voter approval for all bond issues because that provision

“singles out no “discrete and insular’ minority for special treatment”).

As this Court explained in Hunter, “[bJecause the core of the

Fourteenth Amendment is the prevention of meaningful and

unjustified official distinctions based on race, racial classifications

are constitutionally suspect and subject to the most rigid scrutiny.

They bear a far heavier burden of justification than other classifica-

tions.” 393 U. S. at 391-92 (internal quotations and citations

omitted).

The Colorado Suxreme Court justified applying strict

scrutiny to Amendment 2 by distinguishing between state laws that

HW

7

single out “independently identifiable groups” and those that do not.

Thus, state laws placing special burdens on the enactment of certain

legislation violate the fundamental right to participate in the political

process only if those laws seek to make it more difficult to enact laws

benefitting groups identified “apart from the groups created by the

[challenged] statute itself.” Evans I, 854 P. 2d at 1282. Thus, this

reasoning goes, because the provisions in Hunter and Washington

targeted laws benefiting racial minorities, groups identifiable by

something other than their members’ desire to have certain legisla-

tion enacted in their behalf, those laws violated the fundamental nght

to participate and required strict scrutiny analysis. On the other

hand, since people favoring bonded indebtedness are defined as a

group only by their favoring bonded indebtedness, the constitutional

provision in Gordon that made it more difficult to incur such debt did

not violate the right to political participation. It follows, at least in

the view of the Colorado Supreme Court and the respondents, that

Amendment 2 violates the right to equal participation because it

targets laws benefitting homosexuals, a group defined by something

other than the group’s members’ preferences for laws banning

discrimination against homosexuals.

There are at least two problems with this distinction. The

first is that the distinction makes no sense if the right at issue is the

“right to participate in the political process.” Evans I, 854 P. 2d at

1279. It is true that homosexuals would benefit from anti-discrimi-

nation laws making homosexuality a forbidden ground for decision.

Yet, it would be presumptuous to assume that all homosexuals

support such anti-discrimination laws (just as it would be presump-

tuous to assume that all blacks or women favor anti-discrimination

laws). It also would be presumptuous to assume that only homo-

Indeed, the fact that more than 46 % of Colorado citizens who voted

opposed Amendment 2 raises (at least) a strong inference that anti-

discrimination laws protecting homosexuals enjoy support among

many who are not homosexual.

If what is at issue in this case really is the right to participate

in the political process, it is logical to conclude that only those who

actually favor homosexual rights laws are being denied that right

because it is only people who seek to enact homosexual rights laws

who face the higher burden that Amendment 2 establishes. This

class is not defined by homosexuality, since it includes both

homosexuals and heterosexuals and also excludes some homo-

sexuals.’ Rather, the class is defined by support for the type of laws

Amendment 2 makes more difficult to enact. That is, the group

denied the right to participate is not “independently identifiable apart

from the group created by [Amendment 2] itself.” This, however,

is the very type of group to which the Colorado Supreme Court

stated the fundamental right to participate does not extend. Evans I,

854 P. 2d at 1282.

Besides being illogical, the Colorado Supreme Court’s

purported distinction also fails to explain this Court’s decision in

James v. Valtierra. In James, this Court refused to apply Hunter to

strike down a California constitutional provision requiring voter

approval of any low-income public housing project. 402 U. S. at

140-42. As Justice Marshall recognized in his dissent, the provision

“explicitly” singled out poor people; no other publicly-assisted

housing project designed to benefit any other group had to be

approved by voters. See id. at 144 (Marshall, J. dissenting). It is

specious to suggest that poor people are not an “independently

identifiable” group; poor people would be poor even if citizens could

more easily have public housing laws enacted. But in James this

Court treated Hunter as a case involving distinctions based on race,

a suspect classification, and refused to extend Hunter to strike down

a state law making distinctions based on income, a non-suspect

? In fact, rather than burdening the right of homosexuals who

oppose enti-dlscrintaatian ted te ~, in the political

ee

9

classification. See 402 U. S. at 140-42.

The Colorado Supreme Court dismissed James as “best

understood as a case declining to apply suspect class status to the

poor, not as a limitation on Hunter.” Evans I, 854 P. 2d at 1282 n.

21. But this attempted distinction just underscores that Hunter's

result depended not on any fundamental right but rather on the fact

that racial classifications are, as the Hunter Court noted, “constitu-

tionally suspect.” Hunter, 393 U. S. at 391. By refusing to extend

Hunter to a provision discriminating against a non-suspect class, the

Court in James recognized that the constitutional infirmity in the

provision involved in Hunter was that the provision discriminated

against a suspect class, not that the provision violated any funda-

mental right.

Likewise, Amendment 2 violates no fundamental right, so

the question in this case involves calssification. While homosexuals

constitute an identifiable group, that begs the question of what level

of scrutiny to apply to laws such as Amendment 2 that make

distinctions based on homosexuality. The level of scrutiny depends

on whether or not homosexuals constitute a suspect class; as we

shall see in the next section, they do not.

Il. UNDER TRADITIONAL EQUAL PROTECTION

ANALYSIS, COLORADO CONSTITUTIONAL

AMENDMENT 2 DOES NOT VIOLATE THE EQUAL

PROTECTION CLAUSE.

A. Homosexuals, Bisexuals, and Lesbians Do Not

Constitute a Suspect Class.

Federal courts of appeals that have considered the question

consistently have found that homosexuality is not a suspect classifi-

cation. See, ¢.g., Steffan v. Perry, 41 F. 3d 677, 684 n. 3 (D.C. Cir.

1994); High Tech Gays v. Defense Industry Clearance Office, 895 F.

10

2d 563, 573-74 (9th Cir. 1990); Ben-Shalom v. Marsh, 881 F.2d

454, 464 (7th Cir. 1989); Woodward v. United States, 871 F. 2d

1068, 1076 (Fed. Cir. 1989); Padula v. Webster, 822 F. 2d 97, 103

(D. C. Cir. 1987); National Gay Task Force v. Board of Education,

729 F. 2d 1270, 1273 (10th Cir. 1984). The reasons for this are not

difficult to see. Suspect classes’ generally are accorded special

protection because they have been ““‘relegated to such a position of

powerlessness as to command protection from the majoritarian

political process.”” Massachusetts Board of Retirement v. Murgia,

427 U. S. 307, 313 (1976) (per curiam) (quoting San Antonio School

District v. Rodriquez, 411 U. S. 1, 28 1973)). For instance, racial

minorities, and blacks in particular, have suffered from “severe

economic deprivation caused by pervasive discrimination. . . .”

Richard F. Duncan, Who Wants to Stop the Church: Homosexual

Rights Legislation, Public Policy, and Religious Freedom, 69 Notre

Dame L. Rev. 393, 406 (1994). Blacks were’ brought to this country

as slaves, and even after emancipation had to suffer through the

indignity of pervasive and economically and politically stultifying

discrimination well into the present century. See generally id. at

406-07 and sources cited therein.

Homosexuals, on the other hand, are economically advan-

taged compared to similarly situated people, which indicates they

have not been the victims of the kind of devestating discrimination

> This Court has recognized three classifications as suspect: race,

Hunter, 393 U. S. at 392; alienage, Graham v. Richardson, 403 U. S. 365,

372 (1971), and national origin, Korematsu v. United States, 323 U. S. 214,

216 (1944). In New Orleans v. D. kes, 427 U. S. 297, 303 (1976), the Court

also included religion among suspect classifications. Besides recognizing

several suspect classifications, this Court also has recognized two “quasi-

suspect” classifications: sex, Mississippi University for Women v. Hogan,

458 U. S. 718, 723-24 (1982) and illegitimacy, Lalli v. Lalli, 439 U.S. 259,

265 (1978). Classifications that touch on these categories are subject to a

somewhat more stringent review than the normal national basis test. See

Hogan, 458 U. S. at 724. For the same reasons they do not constitute a

suspect class, homosexuals also do not constitute a quasi-suspect class.

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as that faced by racial minorities. Average household income for

homosexual men and lesbians is generally higher than the national

average, and homosexuals are more likely to have college degrees

See id. at 408-09. Homosexuals also have political power dispropor-

tionate to their numbers. In fact, “‘it is clear that homosexuals have

crossed a threshold [and have become] an integral part of American

political life.”” Id. at 410 (quoting Jeffrey Schmalz, Gay Politics

Goes Mainstream, N. Y. Times, Oct. 11, 1992, §6 (Magazine), at

20); see also High Tech Gays, 895 F. 2d at 574 (noting that “homo-

sexuals are not without political power’).

More importantly, unlike race, national origin, or sex,

homosexuality is not an immutable characteristic. A person cannot

choose to be born African-American, Chinese-American, or female.

Homosexuality, however, is “fundamentally different,” High Tech

Gays, 985 F. 2d at 563, because what defines the class of homo-

sexuals is conduct. See id. at 563-64 (“Homosexuality is not an

immutable characteristic; it is behavioral”); Ben-Shalom, 881 F. 2d

at 464 (an admission of homosexuality “is compelling evidence that

plaintiff has in the past and is likely to again engage in [homosexual]

conduct”); Woodward, 871 U. S. at 1076 (“homosexuality 1s

primarily behavioral in nature”).

One might argue that homosexuality is not necessarily

defined by behavior because a person can be homosexual in

orientation without actually engaging in homosexual behavior. But

of appeals have routinely rejected this assertion, recog

Tiieee eat apmemmens qomen’s destitentin of ined

as homosexual is strong-indeed compelling-evidence that the person

is engaging in or desires to engage in homosexual conduct. See

Steffan, 41 F. 3d at 690; Ben-Shalom, 881 F. 2d at 464. “To pretend

that homosexuality or heterosexuality is unrelated to conduct borders

on the absurd. What distinguishes the class of homosexuals from the

class of heterosexuals is . . . the nature of the member’s sexual

—

12

proclivities or interests... .” Watkins v. United States, 847 F. 2d

1329, 1361 n.19 (9th Cir. 1988) (Reinhardt, J., dissenting.

875 F. 2d 699 (9th Cir. 1989).* Thus, “[e]ven if we Saee, a

as those who have a ‘homosexual orientation,’ its members will

consist principally of active practicing homosexuals... .” Jd. at

1360-61. Even a leading homosexual rights organization has stated

that “homosexuality is inexorably intertwined with ‘homosexual

conduct.”” Steffan, 41 F. 3d at 640 n. 11 (quoting Amicus Curiae

Brief on Behalf of Respondents of Lambda Legal Defense Fund, Inc.

. = n. 28, Bowers v. Hardwick, 478 U. S. 186 (1986) (No. 85-

).

3 That the class of homosexuals is defined by conduct is

important. “Discrimination” against people because of the way they

act (or desire or intend to act) is not invidious. This is especially so

when the conduct at issue generally is regarded not as morally

neutral but as morally controversial. Discriminating against a black

person is irrational and therefore most likely based on animus for the

person, because the fact that a person is black tells us nothing about

his character. But given the moral controversy surrounding homo-

sexuality, when a person “makes a distinction based upon a person’s

sexuality, he is making a judgment about the content of the indivi-

dual’s character.” Duncan, Homosexual Rights Legislation, 69 Notre

Dame L. Rev. at 405. Cf. Bray v. Alexandria Women's Health

Clinic, 113 §.Ct. 753, 760 (1993) (because there are “common and

respectable reasons for opposing [abortion] other than hatred of or

, Significantly, in Watkins, Judge Reinhardt, while demonstrating

why homosexuals are not a suspect class, expressed his personal agreement

this Court’s opinion in Bowers v. Hardwick, 478 U. S. 186 (1986), which

held the Constitution does not protect homosexual sodomy. See Watkins

847 F. 2d at 1356, 1358 (Reinhardt, J. dissenting). Despite his personal

suena suspect would require this Court to overrule

13

condecension toward. . . women as a class,” opposition to abortion

is not an “irrational surrogate” for opposition to women). As Dr.

Martin Luther King insightfully recognized, racial discrimination is

wrong because it involves a judgment based on something other than

“the content of [a person’s] character.” Jd. at 402 n. 37 (quoting /

Have a Dream, reprinted in A Testament of Hope: The Essential

Writings of Martin Luther King, Jr. 219 (James Melvin Washington

ed. 1991)). That being so, there is a significant difference between

classifications based on race and classifications based on sexual

orientation, a difference that should be reflected in the level of

constitutional scrutiny given to laws making those classifications.

Moreover, to recognize homosexuals as a suspect class

would conflict with this Court’s decision in Bowers v. Hardwick, 478

U. S. 186 (1986). In Bowers, this Court upheld a Georgia law

making sodomy a crime, as applied to a homosexual defendant,

because the Constitution contains no fundamental right to commit

homosexual sodomy and because a rational basis supported the law.

Id. at 192, 195-96. As several courts of appeals have recognized, it

would make no sense to declare homosexuals a suspect class when

states may criminalize the conduct that defines the class. See Ben-

Shalom, 881 F. 2d at 464; Woodward, 871 F. 2d at 1076, Padula,

$22 F. 2d at 103. As the D. C. Circuit noted in Padula, “there can

hardly be more palpable discrimination against a class than making

the conduct that defines the class criminal.” 822 F. 2d at 103.

For all these reasons, homosexuals do not constitute a

suspect class. Therefore, laws making distinctions based on sexual

orientation, such as Amendment 2, need only be rationally related to

a legitimate government interest to pass constitutional muster. Heller

v. Doe, 113 S. Ct. at 2642. Amendment 2 easily passes that test.

B. | Amendment 2 Is Rationally Related to Several

Legitimate State Interests.

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14

In analyzing whether Amendment 2 rationally relates to any

legitimate state interest, it is important to keep in mind that anti-

discrimination laws do not come without costs. Generally, in a free

society a person may associate with whomever he pleases and may

dispose of and control access to his property as he pleases. Employ-

ers generally are free to hire and fire whomever they please for any

reason. Anti-discrimination laws constitute an exception to this

general rule. When a state enacts a law prohibiting discrimination

against a certain group, it is in effect telling citizens they must

associate with members of that group, or that they must make their

property available for members of that group. In other words, anti-

discrimination laws constitute governmental regulation of personal

relationships and property that limit the liberty of people to act as

they see best.

In imposing anti-discrimination laws, states must decide

whether the benefits derived from protecting a certain group against

discrimination outweigh the costs imposed on the associational and

property rights of other citizens. Part of that calculus is the need to

protect group members. As noted above, homosexuals as a class

generally are economically advantaged, well educated, and politi-

cally powerful. A state could rationally conclude that the need to

protect homosexuals is not great and therefore does not outweigh the

burden placed on other citizens’ general right to associate and use

their property as they see fit.

Likewise, as Justice Erickson recognized in his dissent, a

state’s resources are not limited, and states have a legitimate interest

in spending those resources as effectively as possible. That means

a state must necessarily make choices, choices which may not treat

all groups equally. In the area of civil rights protection, it is rational

for a state to focus its resources on protecting traditional suspect

classes that are in greater need of protection than relatively affluent

and well-educated classes, such as homosexuals, who have less

of protection. By making it more difficult to enact anti-discrimina-

15

tion laws protecting homosexuals, Amendment 2 serves the goal of

preserving civil rights enforcement resources for use for traditionally

suspect groups. See Evans II, 882 P.2d at 1365-66 (Erickson, J.,

Sesenting).

One might argue that the state could serve these legitimate

urposes si not passing anti-discrimination laws protecting

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process is not necessary. But rational basis analysis does not require

a state to use the most narrowly tailored means possible to address a

legitimate interest. “A classification does not fail rational-basis

review because it is not made with mathematical nicety,” so long as

there is some rational connection between the end and the means.

Heller, 113 S.Ct. at 2643. Certainly, a state rationally may conclude

that making it more difficult to enact anti-discrimination laws

protecting homosexuals will protect property and association nights

from the intrusive regulation associated with those laws and conserve

enforcement resources for use in other areas.

Associational and property rights are not the only liberties

that can come in conflict with anti-discrimination laws. Many people

have sincere religious or moral beliefs that would prevent them from

hiring or doing certain types of business with homosexuals. For

example, persons running a religious school may sincerely believe

that hiring homosexuals would be wrong because hiring homo-

sexuals would create a harmful influence on students. Or, a landlord

might not want to rent to two homosexuals out of a sincere belief that

' it would be wrong to facilitate homosexual activity. Compare

Attorney General v. Desilets, 636 N.E. 2d 233 (Mass. 1994) and

Smith v. Fair Employment and Housing Commission, 30 Cal.Rptr. 2d

395 (Cal. App. 1994),review granted, 880 P.2d ii1 (Cal. 1994), both

of which involved state attempts to force landlords to rent to

that renting to those couples would violate the landlords’ religious

convictions.

16

Protecting citizens’ religious liberty is certainly a legitimate

state interest. The United States Constitution itself grants special

protection to the free exercise of religion. U.S. Const. Amend. 1, cl.

2. By precluding legislation that would increase the opportunities for

conflict between religious belief and legal duty and would “use

governmental power to punish and discourage employers and

landlords for making decisions based upon sincerely held religious

or moral beliefs,” Duncan, Homosexual Rights Legislation, 69 Notre

Dame L. Rev. at 405, Amendment 2 serves to protect Colorado

citizens’ religious liberty.

CONCLUSION

Amendment 2 does not violate any fundamental right.

Homosexuals, the class Amendment 2 singles out, are not a suspect

class. Amendment 2 is rationally related to several legitimate state

interests. Therefore, this Court should reverse the Colorado Supreme

Court’s decision in this case and hold that Amendment 2 does not

violate the Equal Protection Clause.

Respectfully submitted,

KEITH A. FOURNIER JAY ALAN SEKULOW

JOHN P. TUSKEY (COUNSEL OF RECORD)

1000 Regent University Dr. JAMES M. HENDERSON, SR.

Virginia Beach, VA 23464 1000 Thos. Jefferson St. N. W.

(804) 579-2489 Suite 520

Washington, D. C. 20007

(202)337-2273

Attorneys for Amicus Curiae American Center for Law and Justice

Family Life Project

April, 1995