# Amicus Curiae Brief — Romer v. Evans

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0575%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 620

## Text

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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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(804) 579-2489

Attorneys Amicus Curiae, American
Center for Law and Justice Family Life
Project

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i
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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11

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
SE ah as saving oven Goes te seme potion
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0575%3A16. Public record. Not legal advice.