Amicus Curiae Brief — Romer v. Evans

Oo Oetopmn Term, 1994

ae Roy Romer, as Governor of the State of Colorado,

art | and the STATE OF COLORADO,

¥ Petitioners,

RicHarRD G. EVANS, ANGELA ROMERO, LINDA FOWLER,

“PauL BROWN, Priscitta INKPEN, JoHN MILLER, the

‘Boutperk VALLEY ScHoot District Re-2, the City

AND COUNTY OF DENVER, the City or BouLper, the

City oF ASPEN, and the Ciry CoUNCIL OF ASPEN,

Respondents.

: “On Writ of Certiorari to the

. Sapreme Court of the State of Colorado

BRIEF AMICI CURIAE OF AFFIRMATION: UNITED

METHODISTS FOR GAY, LESBIAN AND BISEXUAL

Se AXIOS USA, INC.; THE BRETHREN/

ITE eeray FOR LESBIAN AND GAY

1S; DIGNITY/USA; EVANGELICALS

sD, INC. INTEGRITY, INC.; LUTHERANS

RNI /NORTH AMERICA; PRESBYTERIANS

FOR LESBIAN/GAY CONCERNS; UNITED CHURCH

COALITION FOR LESBIAN/GAY CONCERNS; and

THE WORLD CONGRESS OF GAY AND

(BIAN JEWISH ORGANIZATIONS

‘SUPPORT OF THE RESPONDENTS

CELESTE McCoLLOUGH *

MATTHEW L. HESS

Suite 1700

3399 Peachtree Road, N.E.

Atlanta, Georgia 30826

(404) 841-8229

-* Counsel of Record . Counsel for Amici Curiae

OE a

BEST AVAILABLE COPY.

TABLE OF CONTENTS

IDENTITY AND INTEREST OF THE AMICI

IIIT Sieesicecbaehicsidetanehiibhaliahartahiainanhnicticasibgbhsetentedateséniementnete

Be I ait iat icaicciticicesitcgdinbicinieperincineeniisnatio

B. Gur Interest As Amiel .................ccccccccccccccccoccccccceess

I iain nlaaiihiliieiaiihciininnintaenicibiintbinmenincniemesie

I. THE WELL-WORN TECHNIQUES FOR EX-

II.

Ill.

CLUDING A MINORITY: IF TYRANNY IS

YOUR AIM, “IF YOU HAVE NO DOUBT OF

YOUR PREMISES OR YOUR POWER,” THEN

FIRST, YOU PUT YOUR EXCLUSION “IN

LAW” NOW AND, SECOND, YOU “SWEEP

AWAY ALL OPPOSITION” NOW AND INTO

THE FUTURE SO AS TO PRESERVE THAT

EXCLUSION FOR ALL TIME.............................

AMENDMENT 2 FOLLOWS THE HISTORIC

PATTERN OF EXCLUSION: IT EXCLUDES

GAY PEOPLE IN THE PRESENT AND

GUARANTEES THAT RESULT INTO THE

FUTURE BY SUPPRESSING FIRST AMEND-

FE i re

AMENDMENT 2 TRANSGRESSES THE

FIRST AMENDMENT IN FOUR WAYS ........

EER a oe ee

as sesonieaseunlbons

ae ee

EE A CS ec a

I iia inesistcticninsiscnshiiihdidicniddataicdiipbiniantaneneasinnsints

Page

11

13

ii

TABLE OF AUTHORITIES

DECISIONS OF THE UNITED STATES SUPREME

COURT Page

Abrams v. United States, 250 U.S. 616 (1919) ....... 13, 21

Adarand Constructors v. Petia, No. 93-1841, ——

if TT) 8 8 Eee 15, 17

Bowers v. Hardwick, 478 U.S. 186 (1986) ............... passim

California Motor Transp. Co. v. Trucking Uniltd.,

Peel | 6 6f) ee ee 27

City of Madison v. Wisconsin Employment Rels.

Comm’n, 429 U.S. 167 (1976) ...............-...--------2-+-- 25

Cohen v. California, 403 U.S. 15 (1971) ................... 21

Crist v. Murray, 1995 U.S. LEXIS 3622 (May 30,

BI ecenencnecesniessenscccsnensescssenseninnneeaaennals o

Dred Scott v. Sandford, 60 U.S. 393 (1856) ............. passim

Eastlake v. Forest City Enters., Inc., 426 U.S. 668

CTD aceecesennsencnsccccceneceeseneseinscinindsietinnaaana 24

Eisenstadt v. Baird, 405 U.S. 488 (1972) -............. 11, 18

First Nat’l Bank v. Bellotti, 435 U.S. 765 (1978) .... 24

Garrison v. Louisiana, 379 U.S. 64 (1964) -.............. 21

Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 8

Groppi v. Wisconsin, 400 U.S. 505 (1971) ............... 24

Hague v. Committee for Indus. Org., 307 U.S. 496

CDBG nncceccsccecsesracnsvindsovinsonininmiaiamanimmn 22

Hortonville Joint School Dist. No. 1 v. Hortonville

Educ. Ass’n, 426 U.S. 482 (1976) -....................... 24

James B. Beam Distilling Co. v. Georgia, 501 U.S.

BED. CRBIED cececerecnccescennecssssssensntictonetecanaan 17

Landmark Communs., Inc. v. Virginia, 435 U.S.

BED CRIG ED q...-n-nncccnsaanscccesensesssnsctnnsssieeaseaneie 24

Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85

CRIT oncaccccoccecescnccinsctetntsnttnnneseuaniiaa 22

Loving v. Virginia, 388 U.S. 1 (1967) ....................- 18

McDonald v. Smith, 472 U.S. 479 (1985) —............. 22, 26

Memorial Hosp. v. Maricopa County, 415 U.S. 250

CRIED envccecccercenrenenccenoscsisinasiiliaantansinediea 24

Minnesota State Bd. for Community Colleges v.

Knight, 465 U.S. 271 (1984) ............................ 10, 27, 28

Mullaney v. Wilbur, 421 U.S. 684 (1975) ~............ 24

iii

TABLE OF AUTHORITIES—Continued

Page

NAACP v. Button, 371 U.S. 415 (1963) 00. 22

North Carolina v. Butler, 441 U.S. 369 (1979) ..... 24

O’Brien v. Skinner, 414 U.S. 524 (1974) 0. 24

Planned Parenthood v. Casey, —— U.S. ——, 112

Nn cceteseneuscuecves 17

Police Dep’t v. Mosley, 408 U.S. 92 (1972) ......... ; 23

Shelley v. Kraemer, 334 U.S. 1 (1948) ..........0-.... 17

Slaughter-House Cases, 83 U.S. 36 (1873)... 12, 22

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

LE EE 25

Ward v. Illinois, 431 U.S. 767 (1977) .................... 24

Wardius v. Oregon, 412 U.S. 470 (1973) 24

Whitney v. California, 274 U.S. 357 (1927) 21, 22

OTHER DECISIONS

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

1989) . 18

Equality Found. ‘of Greater Cincinnati, Ine. ' v. », Cit

of Cincinnati, 1995 U.S. App. LEXIS 10462 (6th

Nn novcedesevenece 18

Evans v. Romer, 854 P.2d 1270 (1998) nn ieee 24

Evans v. Romer, 882 P.2d 1335 (1994)... 12, 28

High Tech Gays v. Defense Indus. Security Clear-

ance Office, 895 F.2d 563 (9th Cir. 1990) 18

Padula v. Webster, 822 F.2d 97 (D.C. Cir. 1987) .... 18

Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994)... 18

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

a nescenpnssscsooorcnces 18

UNITED STATES CONSTITUTION

SEE passim

I cccucscosvensesvcnscovece 12

OTHER AUTHORITIES

Blasi, The Pathological Perspective and the First

Amendment, 85 CoLuM. L. REV. 449 (1985) _..... 21

H.M. Hart, JR. & A.M. Sacks, THE LEGAL

PROCESS: BASIC PROBLEMS IN THE MAKING AND

APPLICATION OF LAW (tent. ed. 1958)... 10

iv |

IN THE

— | Supreme Court of the United States

OCTOBER TERM, 1994

TABLE OF AUTHORITIES—Continued

Higginson, A Short History of the Right to Petition

Government for the Redress of Grievances, 96

Pn’ |) — eeccaseeeeecnee 26-28

Karst, The Freedom of Intimate Association, 89

Wasad Vad. CBE CIGBB) ..20ccccncccnccccsesecorcsosscveoseseorssesies 18 No. 94-1039

Roy Romer, as Governor of the State of Colorado,

and the STATE OF COLORADO,

. Petitioners,

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 AMICI CURIAE OF AFFIRMATION: UNITED

METHODISTS FOR GAY, LESBIAN AND BISEXUAL

CONCERNS; AXIOS USA, INC.; THE BRETHREN/

MENNONITE COUNCIL FOR LESBIAN AND GAY

CONCERNS; DIGNITY/USA; EVANGELICALS

CONCERNED, INC.; INTEGRITY, INC.; LUTHERANS

CONCERNED/NORTH AMERICA; PRESBYTERIANS

FOR LESBIAN/GAY CONCERNS; UNITED CHURCH

COALITION FOR LESBIAN/GAY CONCERNS; and

THE WORLD CONGRESS OF GAY AND

LESBIAN JEWISH ORGANIZATIONS

IN SUPPORT OF THE RESPONDENTS

2

IDENTITY AND INTEREST OF THE AMICI CURIAE

We address the Court as Jews and Christians who de-

pend in our society upon all of the full panoply of civil

liberties guaranteed us by the First Amendment to the

Constitution of the United States. As groups consisting

largely of Christian and Jewish gay males, lesbians, and

bisexuals, our organizations have unanimously adopted

as our unified purpose to speak, to advocate, to publish,

and to petition for recognition of our inalienable rights.

Our religious commitment and tradition propel us to

claim the rights of citizenship of our constituents and to

call upon this Court to honor its mandate and tradition

of safeguarding the fundamental rights of all citizens of

this Nation, no matter how despised or unpopular. While

we fully support the equal protection rights, as briefed by

the Respondents, and the rights secured by the religion

clauses, as briefed by other amici supporting the Respond-

ents, we submit this Brief to demonstrate the massive

infringement by Amendment 2 of the First Amendment

rights of speech and petition.

A. Our Identity

Affirmation: United Methodists for Gay, Lesbian and

Bisexual Concerns consists of lesbians, bisexuals, gay

men, and their friends, families and supporters who af-

firm full participation of all persons in the United

Methodist Church. We celebrate God’s gifts of sexuality

and sensuality, with all their blessings for intimacy, rela-

tionship and personal growth. We have organized to care

for one another, to represent our concerns to and with

the United Methodist Church, and to speak boldly for

the inclusion of all people. We seek to respond positively

to God’s love to all persons and, in doing so, speak in

a prophetic voice to church and society.

Axios USA, Inc. is an organization of gay and lesbian

lay Christians. We work for the knowledge and under-

standing of men and women of homosexual orientation

among the public and within the institutions of the

3

various Eastern Orthodox, Oriental Orthodox (Non-

Chalcedonian), and Eastern-Rite Catholic Churches by

means of educational and charitable activities. Our mem-

bers engage in research and dialogue with church au-

thorities and members of the gay and lesbian community.

We honor, among others, the lives and martyrdom of

Saints Sergius and Bacchus (recognized by both Catholics

and Orthodox), whose accepted martyrium has one call-

ing the other “sweet campanion and [erotic/romantic]

lover.” They were martyred at the turn of the third cen-

tury A.D. for refusing to worship Jupiter. Their love for

each other inspired those around them and us today.

The Brethren/Mennonite Council for Lesbian and Gay

Concerns is organized for purposes of the advancement

of education regarding lesbian, bisexual and gay male

concerns in the church and in general society—especially

the elimination of prejudice and discrimination, the de-

fense of civil rights secured by law, and the development

of social activities and public or professional services for

the betterment of lesbians, bisexuals and gay men and of

the Brethren and Mennonite churches.

Dignity/USA is a national organization of gay, lesbian,

and bisexual Catholics; their families; and friends. This

year, we celebrate twenty-five years of ministering to the

spiritual needs of the gay, lesbian, and bisexual com-

munity. We have eighty-five affiliated chapters through-

out the country, and each week we provide spiritual nur-

turing to the thousands of our members of the gay com-

munity who seek guidance and renewal. We live our be-

liefs by joining with other lay organizations of the Roman

Catholic Church in proclaiming our Catholicism and our

beliefs in living the Gospel message. Dignity/USA seeks

to be an instrument through which its members may be

heard by the institutional church and society. We seek to

speak our conviction that we, as gay people, can express

our sexuality in a maner consonant with Christ’s teaching

and that we can express our sexuality physically in a

unitive manner that is loving, life-giving, and life-affirming.

4

We encourage our members to work for justice and social

acceptance through education and legal reform.

Evangelicals Concerned, Inc. is a national organiza-

tion dedicated to assisting lesbians and gay men and

churches better to understand homosexuality and the good

news of God’s grace and peace. We fulfill our purpose

of providing a fellowship of Christians concerned about

the interface between Christian life and homosexuality by,

among other things, publishing literature and conducting

professional fora ard educational colloquia on homo-

sexuality and Christian life.

In Integrity, Inc., we hold our mission to be the wit-

ness of the lesbian and gay community in the Episcopal

Church and of the Episcopal Church in the lesbian and

gay community. We engage in a ministry of worship, ed-

ucation, advocacy, fellowship, and service. We started out

as a newsletter in rural Georgia and have grown to more

than seventy chapters in the United States, Canada, and

Australia. Our membership is open to all who support

gay and lesbian rights in the Episcopal church, and we are

proud to count several of our bishops among our mem-

bership. In 1993, we adopted a resolution calling upon

“our national church and the agencies and institutions

which report to it to refrain from scheduling General

Convention, other meetings or official activities in the

State of Colorado until such time as Amendment 2 is

repealed or overturned.” At last year’s General Conven-

tion of the Episcopal Church, some 27 openly lesbian and

gay deputies, elected by dioceses, played a role in the

Convention’s passage of several pro-gay resolutions, includ-

ing the call for the inclusion of sexual orientation in state

and federal civil rights laws.

Lutherans Concerned/North America, Inc. stands as a

community of faith, modeling the gospel within the church

and within the lesbian and gay community. We seek to

embody the Gospel’s principles of inclusiveness and justice,

celebrating God’s gifts of sexuality and diversity. Our

members serve as pastors, officials, and lay leaders with-

5

in the Lutheran Church. Our goals are to affirm the

God-given nature of sexual orientation, to proclaim the

good news of Jesus Christ through inclusive worship and

to promote positive changes in all expressions of the

Lutheran Church, including the Evangel.cal Lutheran

Church in America; the Lutheran Church—Missouri

Synod; and the Wisconsin Evangelical Lutheran Synod.

In furtherance of these goals, we have adopted as our

logo a combination of the fish and pink triangle, a symbol

that visually unites symbols of our Christian faith and

courage against sexual discrimination. The ichthus, or

fish symbol, originated as a secret recognition sign when

Christians in the Roman Empire were persecuted for

their faith. The pink triangle was used by the Nazis to

identify tens of thousands (no one knows exactly how

many) of European homosexuals who were persecuted

by, and murdered in the death camps of, the Third Reich.

The triangle shape also symbolizes the Holy Trinity.

Both symbols are now used by our respective communities

today as signs of honor and support. We unite them to

show that Christian life and human sexuality can be recon-

ciled into one. Through our ministry, we seek to help the

hurting and to speak up for those who cannot risk open-

ness.

Presbyterians for Lesbian/Gay Concerns is a “special

organization” within the Presbyterian Church (U.S.A.).

We report annually to the Theology and Worship unit

within the national headquarters of the Presbyterian

Church (U.S.A.). Through proclamation of the liberat-

ing and inclusive Gospel of Jesus Christ to all people,

we seek to facilitate, by the distribution of educational

materials and otherwise, the intelligent consideration by

Presbyterian governing bodies of support for legislation

prohibiting discrimination on the basis of affectional and

sexual preference or orientation and for legislation delet-

ing restrictions on the private sexual behavior of con-

senting adults.

6

United Church Coalition for Lesbian/Gay Concerns

affirms, empowers, educates, and advocates, providing sup-

port and sanctuary to all our lesbian, gay, and bisexual

sisters and brothers, their families and friends. We ad-

vocate for full civil rights and bring Christ’s affirming

message of love and justice for all to the Church and s$O-

ciety. We affirm the good news that all persons without

regard to sexual orientation are loved and empowered

by God, and we promote ministries of pastoral care, educa-

tion, and advocacy within the United Church of Christ

and society as a whole. We enjoy a good working re-

lationship with the various instrumentalities and admin-

istrative officers of the United Church of Christ.

The World Congress of Gay and Lesbian Jewish Or-

ganizations has over fifty member organizations through-

out the world. To have voting or associate member

status in the World Congress, an organization must be a

primarily Gay and/or Lesbian and a primarily Jewish

organization. Many of our member organizations are

religious communities and congregations, most of which

are affiliated with the United Hebrew Synagogues of

America. We are established in order to coordinate and

promote educational and development programs for gay

and lesbian Jewish groups throughout the world and to

further the concerns of the World Congress in the wider

Jewish and gay lesbian communities. We pursue the

eradication of sexism, homophobia, and anti-semitism

through educational programs. Thus, for instance, one of

our member organizations, the Society for the Protection

of Personal Rights, planned and scheduled a ceremony

last year at Yad Vashem to commemorate the six million

Jews slaughtered by the Nazis in World War II, includ-

ing the five to ten percent among them who were homo-

sexual men and women. The World Congress partici-

pated in this ceremony, which was disrupted by dis-

senters. We stood together as proud gays and lesbians,

facing down the disrupters with our singing and our

faith.

B. Our Interest As Amici

As Jewish and Christian gay people dedicated to the

mandates and promises of our faiths, we claim our right to

this Court’s vigilant guardianship over our fundamental

rights as citizens of this Nation, including our First Amend-

ment rights of speech and petition. Speaking on January

29, 1995, to the Church of the Covenant, a federated

church of the United Church of Christ and the Presby-

terian Church (U.S.A.) in Boston, Massachusetts, Roger

S. Powers commended:

Like the abolitionists of the nineteenth century

who fought against slavery, like the suffragists who

fought for the rights of women, and like the African-

American churches that fought for civil rights, we

are fighting today for gay rights, and with God’s

help, we, too, shall overcome ... We have a respon-

sibility to speak the truth to them, but to do so with

love and compassion in ways that they can hear us

and not simply reject us out of hand... .

The responsibility to speak of which Mr. Powers ad-

monished is borne of our faith and our commitment to

a God of equality and justice. As Americans, our in-

nate right to proclaim this message and to claim its im-

plications is guaranteed through our Constitution.

A prominent purpose of our organizations, in exer-

cise of our First Amendment freedoms of speech and

petition, is to claim our rights as equal citizens in this

country and in God’s world order. By forbidding the

promulgation or enforcement of any law or regulation

that would entitle our members “to claim” protection,

Colorado’s Amendment 2 forbids that which our religious

faith and civic conviction require us to do.

To remove any doubt, we stand before this Court to

give witness to the fact that gay people in the United

States encounter discrimination in a multitude of invid-

ious ways. One need only look to the law of this Court

to discover how pervasively society demeans us. We hold

8

our loving relationships of companionship to be “a com-

ing together for better or for worse, hopefully enduring,

and intimate to the degree of being sacred.” Griswold v.

Connecticut, 381 U.S. 479, 486 (1965) (all emphasis

herein supplied unless otherwise indicated). Yet, even

certain expressions of our love—which we believe to be

blessed by God—have been deemed by this Court to jus-

tify criminalization and imprisonment. In a similar vein,

it is often the very identification of ourselves as gay

people that provokes the discrimination we suffer. A

lesbian couple who fly the rainbow flag (often a symbol

of pride in our sexual orientation) in front of their home

awaken to a violent attack upon their property. A gay

man who, out of dignity and honesty, reveals his sexuality

at work loses his job. A gay or lesbian couple cannot find

housing because they introduce themselves as life part-

ners. Gay or lesbian parents are declared unfit, and

their children are taken away. In Colorado, we achieve

a modicum of equality in isolated measures taken to

afford to us the basic freedoms enjoyed by other people,

and a State constitutional amendment is adopted that

prohibits us even from claiming equal protection. If we

articulate our sexual orientation, we must constantly con-

front a world of antagonism and suspicion.

This Court has a clear and unquestionable duty to

guard our right to speak and to petition our school dis-

tricts, our city and county governments, all levels of

government, our Nation and its constituent States, and our

fellow citizens. Through this Brief, we bring this in-

terest before the Court.

SUMMARY OF ARGUMENT

In their defense of Amendment 2, Petitioners focus

narrowly on the repeal of existing protection for gay

people effectuated by Amendment 2. E.zg., Brief for Peti-

tioners at 6. If Amendment 2 presented nothing more

than a repeal, this Court could perhaps rely more com-

fortably upon the background assumption that the po-

9

litical branches and democratic processes generally would

remain available to rectify any improvident decision. See

Brief for Respondents at Arg. Sec. I.A.1. But Amendment

2 is far more than an instance of repealing legislation, and

for this reason, the judicial assumption of available po-

litical processes must not become operative. Indeed,

Amendment 2, in addition to excluding gay people in

the present time by repealing all existing protection, op-

erates prospectively to preserve that exclusion for all

time. Respondents demonstrate that this second feature

of Amendment 2, the prospective exclusion, unconstitu-

tionally burdens the right to participate equally in the

political process. The present Brief demonstrates that,

wholly apart from an equal protection analysis, the means

chosen to accomplish this second goal are also in direct

violation of the right to participate (to speak and to

petition) in the political process as guaranteed by the

First Amendment.

Amendment 2 accomplishes its second goal, perpetuat-

ing the exclusion of gay people into the future and pre-

venting any future adoption of protection, by suppressing

the political speech that precedes the adoption of legis-

lation. Specifically, Amendment 2 accomplishes _ this

second goal 1) by establishing an absolute prohibition on

even the making of a claim for protection and 2) by

eliminating the capacity of government even to hear such

a claim. The record in this case provides concrete ex-

amples of how this will work. Plaintiff Romero brought

about protection from discrimination in the Denver

Police Department by petitioning the Department, using

a departmental grievance procedure, whether formal or

informal, to consider adopting such protection. Likewise,

Plaintiff Evans brought about protection in state govern-

ment by petitioning the Governor, using a state rulemak-

ing procedure, to consider adopting such protection. See

Brief for Respondents at Statement of Case Sec. IT.A.

Among the many other things it will do. Amendment 2

will prohibit Romero. Evans, and others from using such

state and local procedures in the future to make a claim

10

for—to speak out for, to advocate for, to petition for—

the adoption of such protection. And the Amendment

will also eliminate the capacity of the Denver Police De-

partment, the Governor, and all other state and local

branches and levels of government to hear, or even to re-

ceive, such a petition.

This Brief demonstrates that, in these aspects at the

very least, Amendment 2 transgresses the First Amend-

ment in four ways. The prohibition on the making of a

claim for protection violates well-settled First Amend-

ment doctrines condemning 1) content restrictions, 2)

speaker restrictions, and 3) discriminatory access to public

fora. These doctrines and the protections they afford

are supported by both the Speech Clause and the Peti-

tion Clause.

This Brief submits that Amendment 2’s elimination of

the capacity of government to hear such a claim violates

an additional fourth protection supported by the Peti-

tion Clause. Mindful of this Court’s decision in Minne-

sota State Bd. for Community Colleges v. Knight, 465 U.S.

271 (1984), the Brief does not posit a (judicially en-

forceable) duty on the part of government to hear a peti-

tion. The Brief does not, and need not, posit a govern-

mental duty corresponding to the citizen’s right to peti-

tion. Instead, the Brief posits that, in light of its language,

its history, and its place in our constitutional structure,

the Petition Clause protects the capacity of representa-

tive government—in Hohfeldian terms, the power *—to

receive; to listen to; to be informed by; to entertain; and

when appropriate, to respond meaningfully to a petition.

It is precisely because Amendment 2 so alters the

inherited structure of democratic self-government that the

judicial assumption of rectification through the political

process must not be allowed to become operative in this

1 See H.M. Hart, Jr. & A.M. SACKS, THE LEGAL PROCESS: BASIC

PROBLEMS IN THE MAKING AND APPLICATION OF LAW 141-79

(tent. ed. 1958).

11

case. Amendment 2 not only undermines impartial demo-

cratic process, see Brief for Respondents at Arg. Sec.

I.A.1, it also dismantles the process itself.

ARGUMENT

It has been said that the civic religion of the United

States is human rights. This civic religion first found

expression in the concept of universal citizenship. The

Declaration of Independence proclaimed a precivic, na-

tural, and God-given citizenship for all human beings:

“all men are created equal,” and “they are endowed by

their Creator with certain unalienable rights.” When the

United States Constitution followed, it used the word

citizen to give civic expression to this belief in the full

and equal dignity of every person. Despite the reference

to men, these formulations have always been rightly un-

derstood to mean women and minors as well. See Dred

Scott v. Sandford, 60 U.S. 393, 422 (1856) (opinion

of the Court per Taney, C.J.)

Perhaps more important than the actual rights, priv-

ileges, and immunities bound up in citizenship is the

principle that each and every person is entitled to full and

equal participation in those rights whatever they may be.

The content of these privileges and immunities has been

found, at least in part, in the concept of ordered liberty.

See Bowers v. Hardwick, 478 U.S. 186, 191-92 (1986).

But the ultimate guarantee of liberty resides much more

in the promise of full and equal participation by every-

one. A right granted to one must be afforded to all

others. And if a right is to be denied to one, all others

must suffer a like deprivation. See Eisenstadt v. Baird,

405 U.S. 438, 454-55 (1972). It is in the rigorous and

vigilant application of the principle of equality, inherent

from the beginning in the promise of full and equal

citizenship for all, that we can best preserve against the

fencing-out of any one of us.

It may be that this Court has begun to doubt the le-

gitimacy of its fundamental rights jurisprudence, at least

12

when called upon to acknowledge these rights in certain

despised classes of citizens, on the ground that these rights

are not “textual.” See Bowers, 478 U.S. at 191, 194-95.

On the textualist’s objection, it is instructive to consider

the views advanced in the concurring opinion filed by

Justice Scott in the Colorado Supreme Court. Justice

Scott maintains that, but for the mistake of the Slaughter-

House Cases, 83 U.S. 36 (1873), the present case and

many others would be governed by the substantive en-

titlements afforded by the Privileges or Immunities Clause

of the Fourteenth Amendment. See Evans v. Romer, 882

P.2d 1335, 1356 (1994) (Scott, J., concurring). In-

deed, viewed from this perspective, much of this Court’s

substantive due process and fundamental rights juris-

prudence, and even the incorporation doctrine, are not

so much nontextual exercises in judicial illegitimacy as

they are compensating mechanisms: that is, doctrines de-

veloped to compensate for the mistake of the Slaughter-

House Cases and to realize the express and textual prom-

ise of the Privileges or Immunities Clause. Cf. id at

1353-54. In light of Justice Scott’s assessment of the con-

trolling significance (but for the Slaughter-House rule of

decision) of the Privileges or Immunities Clause, it would

be wise to recall what necessitated the Clause. This

Clause was given top billing in the Fourteenth Amend-

ment because the Clause, together with the opening sen-

tence of the Amendment, was designed to overrule the

Dred Scott decision, the classic fencing-out decision of

American judicial history.

13

I. THE WELL-WORN TECHNIQUES FOR EXCLUD-

ING A MINORITY: IF TYRANNY IS YOUR AIM,

“IF YOU HAVE NO DOUBT OF YOUR PREMISES

OR YOUR POWER,” THEN FIRST, YOU PUT YOUR

EXCLUSION “IN LAW” NOW AND, SECOND, YOU

“SWEEP AWAY ALL OPPOSITION” NOW AND

INTO THE FUTURE SO AS TO PRESERVE THAT

EXCLUSION FOR ALL TIME?

Mr. Scott brought a claim to be free of Mr. Sanford’s

assaults. Sanford defended by claiming a slaveholder’s

privilege to lay his hands upon and imprison Scott and

family. Further, Sanford challenged even Scott’s right

to make a claim, on the ground that Scott was assert-

edly not a citizen. If Scott had no citizenship, then he

had no right to make a claim, one of the privileges of

citizenship. See 60 U.S. at 396-99. The Dred Scott

Court’s fateful decision of this question of citizenship

came in some two parts.

First, the Court acknowledged the universality of the

language employed in the founding documents, the Dec-

laration and the Constitution, and that this language and

“the principles” thereby expressed would seem to “em-

brace the whole human family.” /d. at 410. Neverthe-

less, the Court embarked upon an inquiry into who was

“intended to be included” and who was “intended to be

excluded” “at that time.” Jd. at 406-07. The “proof”

of this original intent was to be divined through a sur-

vey of legislative acts, court decisions, and everyday

practices throughout “the public history of every Euro-

pean nation’ of “the English Government and English

people,” and of “the British colonies” up until the time

that the Declaration and Constitution were framed (and

possibly even thereafter into the early decades of the

nineteenth century). /d. at 407-17. The Court found

in this history not merely an original intent to exclude

those who were enslaved. The Court found much more

2 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes,

J., dissenting).

14

an original intent to exclude all persons of African de-

scent regardless of whether enslaved, once enslaved and

later emancipated, or even never enslaved, say, because

of recent immigration and (attempted) naturalization.

Id. at 416-23. For every example where someone in

this public history had broken free of the abysmal record

of racism and had inched forward in realizing the prom-

ise of full and equal citizenship for all (in the abolition

of slavery in some colonies and state: for instance), the

Court found a counterexample. This, even in these free

states, the Court noted, some had remained “actively

engaged in the slave trade, procuring cargoes on the coast

of Africa, and transporting them for sale” in this country.

Id. at 412. As between two such conflicting examples,

the Court felt constrained to heed the latter example in

its search for original intent. By these means, the Dred

Scott Court drained the founding documents of prin-

cipled content.

It was as if at the moment that Mr. Jefferson glimpsed

new principles by which to organize a more nearly just

polity and put them to paper, if at that moment it was

beyond Jefferson’s power to realize these principles in-

stantaneously in the world about him, then his “intent”

would rather be found in the examples set by the very

old order he had vainly sought to revolutionize. Tragi-

cally, this completely neglected Jefferson’s capacity to

imagine a better way and his indisputable intention to

bequeath that vision to posterity. Indeed, the entire

polity would be held in check until the last blackheart

slavetrader on the coast of New England had been per-

suaded to desist.

Put another way, this technique of constitutional inter-

pretation may well be useful under certain carefully delim-

ited circumstances. If, in a given instance, the Framers

were merely constitutionalizing a preexisting rule of law,

then it may be legitimate to survey public history to as-

certain the content of that rule. When, however, the

Framers were establishing new principles, when they were

oo

15

writing a new page in world history, then it is nothing

short of a travesty to purport to find the “intent” ani-

mating these new principles in the example of the old

order they were squarely rejecting.

In 1856, the Constitution held no express guarantee

of equal protection, but the equality principle has always

been understood as the central meaning of justice. How

did the Dred Scott Court formally introduce apartheid

into America in the very teeth of this bedrock principle

of justice? It was done by finding that African-Americans

constitute “an inferior and subordinate class.” Jd. at

417; see also id. at 404-05, 416. If people of African

descent were found to be inferior, why they would not

be entitled to equal treatment. There seems to have

been no consciousness that, in matters of this nature,

even this Court’s finding of inferiority in the person of

the petitioner is utterly irrelevant. The entitlement to

participate fully and equally in citizenship is a political

and civic claim and not in any way contingent upon a

factual showing of superior worth or even of equal worth.*

The privileges and immunities attaching to citizenship

are not contingent or conditional, but rather “unalien-

able.”

Second, having embarked on the course of exclusion,

the Dred Scott Court took the further step of disabling

other political actors so that the scheme of apartheid

would remain virtually unalterable. On why the exclu-

sion had to cover, not only slaves, but all “persons of

the negro race” including free persons, the Court can-

didly admitted that it was necessary in order to elimi-

nate any entitlement to First Amendment rights: If

free Blacks qualified as citizens, then

It would give to persons of the negro race, who were

recognised as citizens in any one State of the Union,

3 See Adarand Constructors v. Pena, No. 93-1841, ——— U.S. ——

(June 12, 1995) (Thomas, J., concurring) (“Government cannot

make us equal; it can only recognize, respect and protect us as

equal before the law’).

16

the right to enter every other State whenever they

pleased, singly or in companies, without pass or pass-

port, and without obstruction, to sojourn there as

long as they pleased, to go where they pleased at

every hour of the day or night without molestation,

unless they committed some violation of law for

which a white man would be punished; and it would

give them the full liberty of speech in public and in

private upon all subjects upon which its own citizens

might speak; to hold public meetings upon political

affairs ....

Id. at 417; see also id. at 425. Having thereby sup-

pressed the political voice of the people whose every

last hope of liberty was being snatched away, the Court

then also disabled the political branches from hearing

that voice, specifically declaring Congress and the Ex-

ecutive to be without power to interfere with slavery in

any way or even to pass laws protecting emancipated

Black persons. Id. at 425-26; see also id. at 452.

By these means, Mr. Scott was rendered stateless. As

a stateless person, Scott had none of the privileges and

immunities of citizenship and therefore did not have the

right even to assert a claim. Accordingly, his case was

dismissed without the Court’s ever having addressed the

merits of his claim. See id. at 454.

For African-Americans, the Dred Scott decision was

a one-act play with two devastating scenes. For gay

Americans, the play is being rewritten as a two-act play.

Retracing the first scene of the Dred Scott decision with

remarkable fidelity, the Bowers decision was the first act.

This Court’s resolution of the present case could well be

the second act.

The Bowers decision excluded gay Americans from

participation in the fundamental rights of privacy and

of intimate association. Of course, by insisting upon an

“as applied” analysis; by disregarding the actual text of

the Georgia statute (which made no reference to the

gender mix of those committing “sodomy”); by ignor-

17

ing the possibility of heterosexual plaintiffs regardless of

whether “John and Mary Doe” had standing; and per-

haps most important, by arbitrarily redefining the fun-

damental right to be “a fundamental right to homosex-

uals” only to engage in “consensual homosexual sodomy,”

see 478 U.S. at 188 n.2, 192, the Bowers Court stacked

the deck. But one might ask why Mr. Scott was, in simi-

lar fashion, perceived by this Court exclusively in terms

of being Black, Negro, and African, but never as a hu-

man being pure and simple. In both cases, the Court

gave the appearance of devaluing the right at issue, at

least in the hands of certain rightholders, because of a

low appraisal of the worth of the rightholder. There was,

moreover, in Bowers the same evasion of principle and

the same recourse instead to a purportedly original intent

to be proven by historical examples of blackhearted op-

pression dating back to the ancient Romans and beyond.

See id. at 192-94; see also id. at 196-97 (Burger, C.J.,

concurring).

The Court said that it would come “nearest to illegiti-

macy” to acknowledge these fundamental rights in gay

Americans. Jd. at 194. If the Court was truly seized

with doubt in 1986 about its fundamental rights juris-

prudence, there was at least one remaining overriding

principle with which to contend. The Court said that

there was no equal protection claim before it. Jd. at 196

n.8. But it seems to have been totally unconscious of the

duty of judges, too, see Shelley v. Kramer, 334 US. 1

(1948), to observe the principle, the supreme principle,

of equality. See Planned Parenthood v. Casey, US.

, 112 S. Ct. 2791 (1992) (opinion of the Court per

O’Connor, J.; Kennedy, J.; and Souter, J.); James B.

Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991)

(opinion of the Court per Souter, J.); see also Adarand

Constructors, U.S. at (Thomas, J., concur-

ring) (“the principle of inherent equality that underlies

and infuses our Constitution”). Even if some constitu-

tional value was deemed to be offended by fundamental

rights, that value was norétheless subordinate to the

18

supreme constitutional principle of equality. Because

the rights had been recognized in others, rigorous ap-

plication of the equality principle demanded that the

rights be recognized in all. As in Dred Scott, the only

pu. ported escape from the equality principle would have

been a finding of the inferiority of gay people, of their

capacity to be loving human beings, and of their intimate

relationships of companionship and family. Indeed, later

courts have found evidence in the Bowers opinion that

the Court endorsed this assertion of inferiority.*

Branded with this Court’s imprimatur of criminality;

immorality; and in a word, inferiority, gay people were

robbed of an essential part of what it means to be a

human being of full and equal dignity.° As citizens, they

were reduced to the barebone rights of self-defense em-

bodied in the First Amendment. Even while bearing the

brand of inferiority and all the injurious consequences

(the relentless discrimination in the workplace, in hous-

ing, in family relations) flowing therefrom, at least they

had the bare minimum of First Amendment rights to

4E.g., Equality Found. of Greater Cincinnati, Inc. v. City of

Cincinnati, 1995 U.S. App. LEXIS 10462, at *9-*16 (6th Cir. May

12 & 17, 1995) ; Steffan v. Perry, 41 F.3d 677, 684 (D.C. Cir. 1994)

(en banc); High Tech Gays v. Defense Indus. Security Clearance

Office, 895 F.2d 563, 571 (9th Cir. 1990); Ben-Shalom v. Marsh,

881 F.2d 454, 464-65 (7th Cir. 1989), cert. denied, 494 U.S. 1004

(1990) ; Woodward v. United States, 871 F.2d 1068, 1075-76 (Fed.

Cir. 1989), cert. denied, 494 U.S. 1004 (1990); Padula v. Webster,

822 F.2d 97, 102-03 (D.C. Cir. 1987); see also Bowers, 478 U.S.

at 196.

5 The right of intimate association has been said to encompass

values as essential to human dignity and happiness as opportunities

for caring, commitment, and love. See Karst, The Freedom of

Intimate Association, 89 YALE L.J. 624, 630-36 (1980). Short of

changing their gender through surgery, gay people are now denied

the liberty to pursue these opportunities. Cf. id. at 658; Loving

v. Virginia, 388 U.S. 1 (1967). Nor will it do to say that only

the most casual of relationships have been forbidden for it is by

casual beginnings that human beings develop their most durable

intimate associations. See Karst, supra, at 633; cf. Eisenstadt,

405 U.S. at 453.

19

attempt to persuade a hostile majority to acknowledge

their humanity. And in this one particular, the Bowers

decision did differ from the Dred Scott decision; because

the Bowers Court expressly acknowledged that there was

“no question about the right or propriety of state legis-

lative decisions to repeal their laws that criminalize homo-

sexual sodomy.” Bowers, 478 U.S. at 190. The instant

case presents the question whether gay people will re-

tain even this right to speak out, to advocate, to petition,

and to claim recognition of their full and equal dignity—

the right to participate in the political processes of this

Nation.

II. AMENDMENT 2 FOLLOWS THE HISTORIC PAT-

TERN OF EXCLUSION: IT EXCLUDES GAY

PEOPLE IN THE PRESENT AND GUARANTEES

THAT RESULT INTO THE FUTURE BY SUP-

PRESSING FIRST AMENDMENT RIGHTS

Again following the historic pattern of exclusion,

Amendment 2 is designed to accomplish two goals. First,

to the fullest extent of Colorado’s power, the Amend-

ment repeals ali existing legal protection for gay people.

Second, having fenced out gay people in the present time,

the Amendment would seek to freeze that result and make

it unalterable for all time. The means chosen to ac-

complish this second goal—1) an absolute prohibition on

even the making of a claim for protection and 2) an

incapacitation of government even to hear such a claim—

are in direct violation of the rights guaranteed by the

First Amendment.

Amendment 2 prohibits the use of any state or local

procedural vehicle or setting “—and, further, prohibits any

state or local government actor’ from permitting the

®* Under “any statute, regulation, ordinance or policy.” Amend-

ment 2.

7 The “State of Colorado, through any of its branches or depart-

ments, ... any of its agencies, political subdivisions, municipalities

or school districts.”” Amendment 2.

20

use of any state or local vehicle *—“to have or claim

any minority status, . . . protected status or claim of dis-

crimination.” ° The Amendment uses the phrase to claim,

a verb or action word. It prohibits even the making, or

speaking, of a claim. The Amendment prohibits even

the making of a claim seeking protection from discrimi-

nation based on “homosexual, lesbian or bisexual orien-

tation, conduct, practices or relationships.” Accord Brief

for Respondents at Arg. Sec. I.B.1 (citing State’s expert

witness Finnis); Brief Amici Curiae of Christian Legal

Society, et al. at 21. And all state and local officials are

likewise instructed to deny all their procedures, to turn

a deaf ear, even to the making of a claim for the pro-

tection of gay people.

This second goal (freezing a result for all time) ap-

parently presented the drafters of Amendment 2 with an

age-old dilemma. One of the virtues of the republican

form of government, resting upon principles of democracy

and self-governance, is that it will be capable of adapt-

ing and thus ever-changing. Working hand in glove with

principles of our collective democracy are the First

Amendment rights of each individual citizen. In good

8 No state or local governmental actor “shall enact, adopt or

enforce.” Amendment 2.

* Petitioners have misquoted Amendment 2 in their briefing

before this Court, performing a certain elision at critical passages

in the text of the Amendment. See Petition for Writ of Certiorari

at 2; (Uncorrected) Brief for Petitioners at 2. The full and cor-

rect text of Amendment 2, as now coJified, is as follows:

Section 30b. No Protected Status Based on Homosexual,

Lesbian or Bisexual Orientation. Neither the State of Colo-

rado, through any of its branches or departments, nor any of

its agencies, political subdivisions, municipalities or school dis-

tricts, shall enact, adopt or enforce any statute, regulation,

ordinance or policy whereby homosexual, lesbian or bisexual

orientation, conduct, practices or relationships shall consti-

tute or otherwise be the basis of or entitle any person or class

of persons to have or claim any minority status, quota prefer-

ences, protected status or claim of discrimination. This Sec-

tion of the Constitution shall be in all respects self-executing.

21

times and bad times alike, First Amendment rights are

rights of self-determination that may be exercised for

political purposes or for wholly nonpolitical purposes.

See Cohen v. California, 403 U.S. 15, 24 (1971). But

especially in bad times, when faced with a hostile ma-

jority, the individual’s First Amendment rights become

rights of self-defense in the political arena. See Blasi,

The Pathological Perspective and the First Amendment,

85 CoLtum. L. Rev. 449, 449-50 (1985). First Amend-

ment rights “are means indispensable to the discovery

and spread of political truth” and are a necessary predi-

cate to “political change.” Whitney v. California, 274

U.S. 357, 375, 377 (1927) (Brandeis, J., concurring).

For an unpopular and embattled minority, these rights

are quite simply the ticket to continued participation in

our self-governing democracy. They enable each citizen

to remain a part of the collective “self” of self-governance.

See Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

And that ticket also creates the potential that its holder

may someday be successful in bringing about political

change. This is a desideratum in our political and con-

stitutional structure. Indeed, it “is the theory of our Con-

stitution.” Abrams, 250 U.S. at 630 (Holmes, J., dis-

senting). Without at ieast the potential for political

change, First Amendment rights and, indeed, participa-

tion in the political processes of self-governance would

become exercises in futility. And our government would

likewise lose the capacity to adapt.

For those who would forever forestall such political

change, the words of Justice Holmes are instructive: “If

you have no doubt of your premises or your power and

want a certain result with all your heart you naturally

express your wishes in law and sweep away all opposi-

tion.” Jd. Justice Holmes was discussing, not merely

psychology, but political necessity. In order to forestall

all potential for political change, one must disable the

mechanisms of democracy, and that means suppressing

First Amendment rights. The Dred Scott Court knew

this when it suppressed the political voice even of emanci-

22

pated Blacks. And the drafters of Amendment 2 knew

this as well.’®

The making of a claim is a privilege of citizenship;

the Dred Scott decision tells us this much. The making

of a claim in an adjudicatory setting, whether judicial or

administrative, is likewise expressive activity protected

by the First Amendment. NAACP v. Button, 371 U.S.

415 (1963); see also McDonald v. Smith, 472 U.S. 479,

484 (1985). And lest there be any lingering doubt about

the applicability of the First Amendment to the States,

it is worth noting that, before the incorporation doctrine

became second nature, this Court freely acknowledged

that First Amendment rights are among “the privileges,

immunities, rights, and liberties of citizens.” Hague v.

Committee for Indus. Org., 307 U.S. 496, 515-16

(1939) (at least, with an apparent nod to the Slaughter-

House rule, when expression bears upon “national

questions” ).

But claim-making also has a broader signification, one

fairly synonymous with petitioning. See McDonald, 472

U.S. at 488 & n.2 (Brennan, J., concurring) (collecting

cases showing different kinds of petitioning). And this

broader sense is the one used in Amendment 2 for it

prohibits claim-making in any and all conceivable pro-

10 Petitioners, in their defense of Amendment 2, display the same

mindset when they assert that Amendment 2 is the best way to

deal with the divisive, political issue of gay people. Thus, Peti-

tioners suggest that Amendment 2 is ultimately the best way be-

cause it uniformly denies protection to gay people and, at the

same time, uniformly eliminates all further discussion of the issue.

See Brief for Petitioners at 47-48. Colorado’s ultimate solution

for the “gay problem” is not only deeply offensive, it is not even

Colorado’s choice to make. The First Amendment long ago made

the choice of remedies: Absent an emergency, “ ‘the remedy to be

applied is more speech, not enforced silence. Only an emergency

can justify repression.’” Linmark Assocs., Inc. v. Willingboro,

431 U.S. 85, 97 (1977) (quoting Whitney, 274 U.S. at 377 (Bran-

deis, J., concurring) ) ; see Crist v. Murray, 1995 U.S. LEXIS 3622,

at *10 (May 30, 1995) (Scalia, J., concurring).

23

cedural settings *' for proceedings by or before any and

all conceivable governmental actors.” Petitioning, of

course, is expressly protected by the Petition Clause of

the First Amendment.

Ill. AMENDMENT 2 TRANSGRESSES THE FIRST

AMENDMENT IN FOUR WAYS

Colorado’s prohibition on claiming and petitioning di-

rectly transgresses the First Amendment in at least three

well-settled ways, and in a fourth way that flows directly

from the Petition Clause.

Content Restriction. First, it is long-since established

territory that the First Amendment will not brook a

speech prohibition that turns on the content of speech:

“[A]bove all else, the First Amendment means that gov-

ernment has no power to restrict expression because of

its message, its ideas, its subject matter, or its content.”

Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972). Colo-

rado’s Amendment 2 does not prohibit the making of all

claims. The Amendment prohibits only the making of

those claims that would seek protection for gay people on

account of “minority status” or “protected status” (status

in the sense of “homosexual, lesbian or bisexual orienta-

tion”) or that would seek protection from “discrimina-

tion” based on such orientation, conduct, practices, or

relationships. Claims seeking protection and freedom

from all other kinds of discrimination may be made and

entertained. Indeed, all other kinds of claims, whether

having to do with discrimination or not, are left un-

touched. Only the making of claims with the content as

specifically described in Amendment 2 is prohibited. In-

disputably, Amendment 2 establishes an impermissible

content restriction.

11 All those procedures established under “any statute, regula-

tion, ordinance or policy.” Amendment 2.

12 The “State of Colorado, ... any of its branches or depart-

ments, ... any of its agencies, political subdivisions, municipali-

ties or school districts.” Amendment 2.

24

Speaker Restriction. Second, the First Amendment will

not brook a speech prohibition that distinguishes among

speakers, permitting some speakers while barring other

speakers. See First Nat'l Bank v. Bellotti, 435 U.S. 765,

784-85 (1978). By its terms, Amendment 2 describes

the speakers it prohibits from making a claim as “any

person or class of persons.” The reference here to a

certain “class of persons” betrays the intended speaker

restriction. It is not difficult to understand which “class”

of speakers might wish to petition for the protection of

gay people. Indeed, this class of persons is twice spe-

cifically described in Amendment 2: all those persons of

“homosexual, lesbian or bisexual orientation.” The polliti-

cal reality is that it is gay people and only gay people

who, in their own self-defense, will petition for the pro-

tection of gay people. The Colorado Supreme Court had

no difficulty in finding that Amendment 2 capitalizes on

this political reality and that, when it bars speakers de-

scribed as a certain class of persons, the Amendment

“expressly fences out” and “singles out” a “class of per-

sons [consisting of] gay men, lesbians, and bisexuals.”

Evans v. Romer, 854 P.2d 1270, 1284 (1993). This

interpretation of Colorado law by the Colorado high

court is binding upon this Court.” And it likewise es-

tablishes beyond doubt the speaker restriction in Amend-

ment 2.

Beyond statutory exegesis, the speaker restriction in

Amendment 2 is readily apparent when one considers

some of the important, foreseeable applications of the

13 See, e.g., North Carolina v. Butler, 441 U.S. 369, 376 n.7

(1979) ; Landmark Communs., Inc. v. Virginia, 435 U.S. 829, 837

n.9 (1978); Ward v. Illinois, 431 U.S. 767, 772 (1977); Eastlake v.

Forest City Enters., Inc., 426 U.S. 668, 674 n.9 (1976); Horton-

ville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S.

482, 488 (1976); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975);

Memorial Hosp. v. Maricopa County, 415 U.S. 250, 256 (1974);

O’Brien v. Skinner, 414 U.S. 524, 581 (1974); Wardius v. Oregon,

412 U.S. 470, 477 (1973); Groppi v. Wisconsin, 400 U.S. 505, 507

(1971).

25

Amendment’s speech prohibition. In future adjudica-

tory proceedings, whether in state or local court or before

an administrative agency, a petitioner may wish to claim

Federal equal protection or Colorado equal protection

to be free of discrimination against gay people. Even

if that protection gives rise at most to rational basis

scrutiny, the petitioner’s plea would clearly transgress

Amendment 2’s prohibition on making such claims. See

State’s opening brief, Colo. Sup. Ct., No. 93SA017 (State's

concession regarding “supremacy problem”). Moreover,

because of familiar rules of standing, in most cases, only

a gay person could even assert such a claim. See Bowers,

478 U.S. at 188 n.2. At that point, standing rules and

Amendment 2 will merge to silence gay people and only

gay people. The speaker restriction is palpable.

Public Forum. Third, the First Amendment will not

brook a speech prohibition that establishes discrimina-

tory access to a public forum. See Southeastern Promo-

tions, Ltd. v. Conrad. 420 U.S. 546 (1975). Every pro-

ceeding where the Amendment 2 speech prohibition will

apply will be, by definition, a government-provided forum

(that is, all those fora provided for by “any statute, reg-

ulation, ordinance or policy”). And in many of the

important, foreseeable applications of Amendment 2, this

government forum will be an indisputably public forum.

Consider Amendment 2’s express mention of “school dis-

tricts.” The place for making a claim for the protection

of gay people in school districts would naturally be at

the school board meeting. Nearly two decades ago,

this Court had no difficulty in declaring school board

meetings to be public fora. See City of Madison v. Wis-

consin Employment Rels. Comm'n, 429 U.S. 167, 169,

174-75 (1976). The same will be true of countless other

governmental fora where Amendment 2’s speech prohibi-

tion will be brought to bear: university trustee meet-

ings, county board meetings, city council meetings, state

legislative committee meetings, and on and on. The roll-

back of First Amendment rights is simply staggering.

26

Perhaps the most sinister application of Amendment

2 to a public forum will come if ever there is an at-

tempt to submit a new round of petitions to the Colorado

Secretary of State in order to use the initiative procedure,

itself a form of public forum, to repeal Amendment 2.

In that instance, Amendment 2’s prohibition on certain

kinds of petitioning could very well serve as a basis for

enjoining such access to the initiative procedure. Or the

Colorado Secretary of State (clearly one of the “depart-

ments” or “agencies” specified in Amendment 2) could

very well be compelled to reject the initiating petitions

as a violation of Amendment 2’s petitioning prohibition.

Petition Clause. Finally, this case has serious distinct

implications for the Petition Clause of the First Amend-

ment. Over the years, the protections afforded by the

Petition Clause have seldom been developed because

these protections were frequently assumed to be sub-

sumed within the protections afforded by the other clauses

of the First Amendment. See, e.g., McDonald, 472 USS.

at 488 n.2 (Brennan, J., concurring). Serious recent

legal scholarship disputes this assumption. See, e.g., Hig-

ginson, A Short History of the Right to Petition Govern-

ment for the Redress of Grievances, 96 YALE L.J. 142,

143 n.2 (1986). There is no doubt that all the expres-

sion protected by the Petition Clause is also protected

by the other clauses. The question is whether the Petition

Clause provides additional protections, protections greater

than or different from those of the other clauses. The

language of the Petition Clause, its place in our consti-

tutional structure, and the history of the Clause all sug-

gest that it does. Indeed, the right to petition has been

regarded as so important to our system of self-govern-

ment that some have considered it one of “the citizenry’s

two constitutional means of approaching the government:

periodic election and continual instruction through peti-

tioning.” Jd. at 162 (footnote omitted, characterizing

the views of John Quincy Adams).

27

All the expressive activity protected by the Petition

Clause is almost by definition expression addressed to

government. See California Motor Transp. Co. v. Truck-

ing Unltd., 404 U.S. 508, 510-11 (1972) (all branches

or levels of government, whether state or Federal). And

the nature of that expression is by definition an appeal,

a petitioning, by a constituent for the kind of “redress

of grievances” that government can provide—in other

words, for a meaningful response by government to its

citizen. This language suggests that the Petition Clause

is keenly interested in preserving, not only the citizen’s

right to make a petition, but also the government’s ability

to hear; to entertain; and if appropriate, to respond mean-

ingfully to that petition. Whereas the Speech Clause

may in some settings protect only the right to speak out,

the Petition Clause also protects, in political matters,

the right “to be heard.” California Motor, 404 U.S. at

513. In structural terms, the Petition Clause is, as noted,

necessary for the citizen’s participation in self-govern-

ment. Moreover, it is necessary “to preserve the informed

operation of governmental processes.” Jd. at 516 (Stew-

art, J., concurring).

In 1984, the Court tended to make the alarming sug-

gestion that, of these two constitutional means available

to address government, only one remained: voting “at

the polls.” See Knight, 465 U.S. at 285. The narrow

question before the Knight Court, however, was whether

the First Amendment gave to citizens a “constitutional

right to force the government to listen to their views.”

Id. at 283; see also id. at 285. The Knight Court re-

jected this asserted right to force government to listen,

citing the difficulty of judicial definition and enforcement

and pragmatic concern over the efficiency of conducting

government. See id. Unwittingly, the Knight Court tended

thereby to lend credence to a theory of the right to peti-

tion first developed by John C. Calhoun and other rep-

resentatives of the slave states in their efforts to preserve

slavery and stifle all further discussion of it. See Higgin-

28

son, supra, at 159-61, 165-66. Indeed, the debate at the

time of the ratification of the Bill of Rights expressly

confirmed a much different understanding of the right

to petition. See id. at 155-56; see also id. at 156 n.98

(“right to consult Congress is non-binding, but Congress

has responsibility never to shut its ears to petitions (state-

ment of E. Gerry)”).

In the present case, there is, however, no occasion for

reconsidering the Knight holding. There is no need to

posit a right to force government to listen in order to

show Amendment 2’s incompatibility with the Petition

Clause. Amendment 2 operates in a different fashion.

The Amendment prohibits governmental actors from

listening to a petition and thereby informing themselves

regardless of whether they are willing to listen. The

Amendment disables even willing governmental listeners.

Unlike the Knight case, there is no question of compell-

ing government to listen. Amendment 2 eliminates the

very capacity of government, irrespective of willingness,

to listen to or even to receive a petition.

This is a serious dismantling of the accepted structure

of self-government. All the petitioning prohibited by

Amendment 2 is, seemingly, petitioning addressed to gov-

ernment. In this way, Amendment 2 presents a striking

parallel with the Petition Clause itself. The two are vir-

tually coextensive; all that which Amendment 2 prohibits

is that which the Petition Clause protects. And Amend-

ment 2 is designed, not only to suppress the petitioner,

but also to disable every possible governmental actor in

Colorado from even receiving—much less listening to,

being informed by, entertaining, and meaningfully re-

sponding to—a claim for the protection of gay people.

See Evans, 882 P.2d at 1355 (Scott, J., concurring).

It is in this way a near perfect disabling of the political

mechanisms of democratic self-governance—a step, as

noted, the drafters of Amendment 2 had to take in order

to forestall all potential for political change in the future.

29

CONCLUSION

For all these reasons, these Amici Curiae respectfully

urge this Court to affirm the decision of the Colorado

Supreme Court."

Respectfully submitted,

CELESTE MCCOLLOUGH *

MATTHEW L. HESS

Suite 1700

3399 Peachtree Road, N.E.

Atlanta, Georgia 30326

(404) 841-3229

* Counsel of Record Counsel for Amici Curiae

4 Pursuant to Supreme Court Rule 37.3, the written consents

of all parties to the filing of this Brief have been filed with the

Clerk.