# Amicus Curiae Brief — Romer v. Evans > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0575%3A34 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 620 ## Text No. 94-1039 ~ JUN 19 1995 Supreme Court of the United States October Term, 1994 S ROY ROMER, as Governor of the State of Colorado and The STATE OF COLORADO, wa. 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 On Writ Of Certiorari To The Supreme Court Of The State Of Colorado + BRIEF AMICI CURIAE OF THE AMERICAN FRIENDS SERVICE COMMITTEE, AMERICAN JEWISH COMMITTEE, ANTI-DEFAMATION LEAGUE, FEDERATION OF RECONSTRUCTIONIST CONGREGATIONS AND HAVUROT, INTERFAITH IMPACT FOR JUSTICE AND PEACE, THE MOST REVEREND EDMOND L. BROWNING, PRESIDING BISHOP OF THE EPISCOPAL CHURCH, RECONSTRUCTIONIST RABINNICAL ASSOCIATION, UNITARIAN UNIVERSALIST ASSOCIATION, UNITED CHURCH OF CHRIST OFFICE FOR CHURCH IN SOCIETY, AND UNITED SYNAGOGUE OF CONSERVATIVE JUDAISM IN SUPPORT OF RESPONDENTS + WituiaM COHEN Stark Ritcuie* The Center For Human Epwarp M. Rocers Rights Advocacy KATHLEEN A. KENEALY 934 Pearl Street, Suite F Akin, Gump, Strauss, Boulder, CO 80302 Hauer & Feld, L.L.P. (303) 444-0970 1333 New Hampshire Ave, N.W. Suite 400 Washington, D.C. 20036 (202) 887-4000 Attorneys for Amici Curiae *Counsel of Record COCKLE LAW BRIEF PRINTING CO., 225-6964 OR CALL COLLECT (402) ‘BEST AVAILABLE COPY, TABLE OF CONTENTS TABLE OF AUTHORITIES SUMMARY OF ARGUMENT ARGUMENT AMENDMENT 2 VIOLATES THE ESTABLISH- MENT CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION .... I, A. Amendment 2’s Purpose And Effect Are To Endorse A Particular Religious Belief Con- cerning Homosexuality, Thereby Excluding Gay Persons And Religious Dissenters From The Political Community. Such Endorsement Violates The Establishment Clause Amendment 2 Also Violates The Establish- ment Clause By Attempting To Use Coercive State Powers To Discriminate Against Gay Citizens In Aid Of Particular Religious SE ARMA GR DSS oot n4 6s Weebeeh Cae4s 0 9-00 2 THE FREE EXERCISE OF RELIGION CANNOT BE GUARANTEED BY A LAW THAT ITSELF ESTABLISHES RELIGION A. Amendment 2 Exceeds The Permissible Scope Of State Accommodation Amendment 2 Is Not A Neutral Law In That It Encourages Discrimination The Religious Freedom Restoration Act Pre- serves Religious Liberty By Balancing Free Exercise Against The Competing Needs Of Secular Society CONCLUSION ii TABLE OF AUTHORITIES Page(s) Cases Abington School District v. Schempp, 374 U.S. 203 (35GS) . . nw ccvcccsnvinaseennes seu euniensee Asin 6, 7 Allah v. Beyer, 1994 WL 549614 (D.N.J. Mar. 29, IDPS). cc ccccccccccsswedetasmaene tip hie tAnertn mime 28 Baker v. Bosworth, 222 P.2d 416 (Colo. 1950) ......... 23 Bessard v. California Community Colleges, 867 F. Supp. 1456 (B.D. Cal. BORG) «as civsegveees nos tes 28 Bob Jones University v. United States, 461 U.S. 574 (19G3) .. 0c ccccvcvvechie semen skn ened au snn eee 22 Bowen v. Kendrick, 487 U.S. 589 (1988)............ 10, 20 Bowen v. Roy, 476 U.S. 693 (1986) ...........-.-2005. 20 Cantwell v. Connecticut, 310 U.S. 296 (1940).......... 13 Church of Lukumi Babalu Aye, Inc. v. Hialeah, 113 S. Ct. 2217 (9906)... .is0cs ccdennevanpekseeesennbenes 9 Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Cal. Ct. App. 1991) ............ 23 Committee for Public Education v. Nyquist, 413 U.S. TS (2GTS).. . wc acccnssccstanctun ae euuen eeeenneanuaes 4 Corporation of the Presiding Bishop v. Amos, 483 U.S. S27 (29G7)} . oo nc ncccccvksstusvssyeuseseeaeneenees 26 County of Allegheny v. A.C.L.U., Greater Pittsburgh Chapter, 492 US. S73 (1969)... 0. ciecaseccccees passim Edwards v. Aguillard, 482 U.S. 578 (1987) ............. 7 Employment Division v. Smith, 494 U.S. 872 (1990) bo ccc eeees wesc oes vein > 5.eieemn i eaae anny ann 11, 14, 28 iii TABLE OF AUTHORITIES ~— Continued Page(s) Epperson v. Arkansas, 393 U.S. 97 (1968) ...... 6, 7, 8, 19 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) .... 19 Evans v. Romer, 854 P.2d 1270 (Colo.), cert. denied, Er 5 Evans v. Romer, 882 P.2d 1335 (Colo. 1994), cert. granted, 115 S. Ct. 1092 (1995) .......cescceevees 5, 26 Everson v. Board of Education, 330 U.S. 1 (1947)...... 13 Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995), appeal docketed, Nos. & 50308 (Sth ECGs WL ices ede aUsdcccccccccccccs 28 Gillette v. United States, 401 U.S. 437 (1971)......... 3, 6 Joseph Burstyn, Inc v, Wilson, 343 U.S. 495 (1952) .... 19 Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982)..... 10 Larson v. Valente, 456 U.S. 228 (1982).............0055 5 Lee v. Weisman, 112 S. Ct. 2649 (1992).......... 4, 6, 12 Lemon v. Kurtzman, 403 U.S. 602 (1971)............. 7,9 Lynch v. Donnelly, 465 U.S. 668 (1984)............. 9, 11 tng Northwest Indian Cemetery Protective Ass'n, Nee cece ccc ecces 20 Norwood v. Harrison, 413 U.S. 455 (1973)............. 22 Otten v. Baltimore & Ohio R. Co., 205 F.2d 58 (2d EEE ES EE 19 Palmore v. Sidoti, 466 U.S. 429 (1984) ................ 22 Reitman v. Mulkey, 387 U.S. 369 (1967)........ 23, 24, 25 Sherbert v. Verner, 374 U.S. 398 (1963) ............... 26 iv TABLE OF AUTHORITIES - Continued Page(s) Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) 900 00s 6ebunneéeetee’ seedsesenneeedeeeel 6, 9, 15, 19 Wallace v. Jaffree, 472 U.S. 38 (1985) .. 7, 8, 9, 12, 15, 17 Westside Community Schools v. Mergens, 496 U.S. TD CRU vc obo nviccvvoncnscncungescamnaeevewes Crna 14 West Virginia State Board of Education v. Barnette, SED Ww. .GOG Coc cocoenccceccscnscaasetsese 15, 30 Wisconsin v. Yoder, 406 U.S. 205 (1972). ... 0.066600 26 Yenter v. Baker, 248 P.2d 311 (Colo. 1952)......... 19, 23 STATUTES Coro. Const. Art. I], § 30D... 6.6 passim The Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb to 2000bb-4 (Supp. 1994)..... 27, 29 MISCELLANEOUS CarecHism or THE CarHouic CHurcn (Doubleday Bc ccccccccccccencddeucbatesdaseseeseenerevanas 21 CHURCH AND Society: SOcIAL Poucy or THE Episcorat CNN, 5s én doce Chik 'c vob Wa babion db eee eenbaalene 64 i 21 General Convention (Episcopal Church) 1994 OBESE oc cvvcbcbdccoetsewss covdedvembeebe ddveees 21 Georce L. Mosse, NATIONALISM AND SEXUALITY, COREE vc vec veecctvebbcdesreepeceadessaventebebeacn 16 Georce L. Mosse, Towarp THE Finat SoLuTiOn: A History or European Racism (1985 ed.) ..........5. 16 Heinz Hecter, THe Men Wirn tHe Pink TRIANGLE CRGGED 6 cvivcccccvccovcvedscddebeovecdsesybeosecive 16 v TABLE OF AUTHORITIES - Continued Page(s) Tenth General Synod, United Church of Christ, CE EE ae 21 Warren Johansson & William A. Percy, Homosex- uals in Germany, 7 Simon WiesentHaL CENTER PARA TA tint v0 Kdkbavieds dtotaée cd cabs cocecs 16 Ruediger Lautmann, Gay Prisoners in Concentration Camps as Compared with Jehovah's Witnesses and Political Prisoners, in A Mosaic or Victims: Non- Jews Persecurep AND Murperep sy tHe Nazis (Michael Berenbaum ed., 1990)...............0005. 16 Prank Recror, THe Nazi Extermination or Homo- TT hon cn cdekieed Au dinbntedes dbeeceseees 17 SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION ee Uae wi we SEL le SORE CES NS coho EE hws cece 7 Writincs or James Mavison (Hunt ed., 1904)......... 25 SUMMARY OF ARGUMENT I, As evidenced by the State’s brief, the purpose and effect of Amendment 2 is to endorse its proponents’ religious views concerning homosexual persons.' Amendment 2's proponents’ avowed religious belief that homosexual persons should be singled out for discrimi- nation is not a universal religious belief and, in fact, is contrary to the religious beliefs of Respondents’ Religious Amici. As this Court has long held, the government must remain neutral in matters of religious theory, doctrine and practice. Amendment 2 is not neutral because it encourages private discrimination in support of a partic- ular religious belief to the detriment of contrary religious beliefs and because it obligates the State to act only in furtherance of Amendment 2's religious, discriminatory purpose. Because Amendment 2 constitutes State endorsement of one set of religious beliefs over all others, it violates the First Amendment's Establishment Clause. America’s founding generation had a vision of a soci- ety in which religion would be entirely voluntary and entirely free. People of all faiths were to be welcome to openly exercise their differing religious beliefs. Thus, the religious beliefs of Amendment 2’s sponsors should be accommodated where possible. Amendment 2, however, goes beyond accommodation because it constitutionalizes ' Throughout this brief, the term “homosexual” and/or “gay” refers to those individuals singled out for discrimination by Amendment 2: homosexual, lesbian, and bisexual citizens. the private biases of Amendment 2’s sponsors at the expense of homosexual citizens and of Respondents’ Reli- gious Amici, and because it directly involves the State in furthering such religious views. The State’s argument that Amendment 2 is necessary to protect religious liberty is meritless. Existing jurispru- dence, as well as the existence of the Religious Freedom Restoration Act (“RFRA”) and express exemptions in some anti-discrimination laws for religiously-held beliefs, demonstrate that there is a way to protect the religious freedom of Amendment 2's sponsors without either pro- moting discrimination or inhibiting the religious freedom of others who do not share the views of Amendment 2's sponsors. Religious liberty for all citizens of Colorado would be hindered, not advanced, by Amendment 2. . ARGUMENT I. AMENDMENT 2 VIOLATES THE ESTABLISH- MENT CLAUSE OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION, The State of Colorado admits in its brief that the purpose and effect of Amendment 2? is to “promote free exercise values” and to protect “core religious values.” Petitioners’ Brief at 45. These values, according to the State, include the right of persons “who have sincere and profound religious objections to homosexuality” to dis- criminate against gay persons in housing, jobs, and pub- lic accommodations. Id. at 44. The State and Petitioners’ 2 Amendment 2 was codified at Article Il, § 30b of the Colorado Constitution. Religious Amici? who share these religious beliefs argue that Amendment 2 is a permissible “accommodation” of these individuals’ free exercise rights as well as the rights to autonomy of like-minded religious institutions. Id. at 43-45, Petitioners’ Religious Amici emphasize that according to their beliefs, “(rjeligion, at least orthodox and tradi- tional religions, generally deny [gay persons] moral legit- imacy. This places religion foursquare in [the] path” of the efforts of gay persons to protect their civil rights through enactment of anti-discrimination laws. Brief of Christian Legal Society ef al, (hereafter “CLS”) at 25. These Amici clearly recognize that “religious persons and religious groups — and hence free exercise and institu- tional autonomy - are not a mere side issue in this case.” Id. However, the State’s admission that Amendment 2 is intended to “promote free exercise values” and to protec “core religious values” by itself implicates Amendment 2 under the Establishment Clause of the First Amendment. Whenever a State law “touches upon religion,” it must be carefully scrutinized to determine if it is “permissible under the Establishment Clause.” County of Allegheny v. A.C.L.U., Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989); see Gillette v. United States, 401 U.S. 437, 450 (1971). The Establishment Clause is as important for protec- tion of religious liberty as the Free Exercise Clause of the First Amendment. This Court has recognized that “the ® Petitioners’ Religious Amici include the parties joined in the Brief Amicus Curiae filed herein by the Christian Legal Soci- ety. principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause,” Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992), “and that it may often not be possible to promote the former without offending the latter.” Committee for Public Educ. v. Nyquist, 413 U.S. 756, 788 (1973). Among the limitations on reli- gious accommodation which the Establishment Clause imposes is that “government may not promote or affiliate itself with any religious doctrine or organization[.]” Alle- gheny County, 492 U.S. at 590. Neither the State nor Petitioners’ Religious Amici, in their respective Briefs, make any attempt to demonstrate that Amendment 2 conforms to the Establishment Clause’s lim- itations. However, Respondents’ Religious Amici here con- tend that Amendment 2, both in its purpose and effect, amounts to an impermissible State endorsement of the reli- gious beliefs and practices of the Amendment's proponents and discriminates against the opposing religious beliefs of others, including Respondents’ Religious Amici. Also, Amendment 2's authorization of discrimination in aid of its proponents’ proselytizing mission aimed at gay individuals — however unlikely to succeed — constitutes indirect coercion to adhere to a particular religious belief. For these reasons, Amendment 2’s religious purpose and effect exceed the permissible boundaries of State accommodation under the Free Exercise Clause and con- stitute an infringement on the religious liberty protected by the Establishment Clause.* Accordingly, the “religious 4 The Respondents in this case (Plaintiffs in the trial court) challenged Amendment 2 on several grounds including “that it values” relied on by the State to justify Amendment 2 cannot serve as a legitimate State interest to uphold its constitutionality. A. Amendment 2’s Purpose And Effect Are To Endorse A Particular Religious Belief Concern- ing Homosexuality, Thereby Excluding Gay Persons And Religious Dissenters From The Political Community. Such Endorsement Vio- lates The Establishment Clause. In proscribing all laws “respecting an estab- lishment of religion,” the Constitution prohibits, at the very least, legislation that constitutes an endorsement of one or another set of religious beliefs .... It is part of our settled jurisprudence that “the Establishment Clause prohibits gov- ernment from abandoning secular purposes in order to put an imprimatur on one reli- gion ... or to favor the adherents of any sect or religious organization.” violates the constitutional prohibition against establishment of religion.” Evans v. Romer, 854 P.2d 1270, 1272 n.2 (Colo.), cert. denied, 114 S. Ct. 419 (1993) (“Evans v. Romer I”). In holding that Amendment 2 “is not the least restrictive means of ensuring religious liberty, and is not narrowly tailored to serve the compelling governmental interest in ensuring the free exercise of religion,” Evans v. Romer, 882 P.2d 1335, 1343 (Colo. 1994), cert. granted, 115 S. Ct. 1092 (1995) (“Evans v. Romer II”), the Colorado Supreme Court applied the same “strict scru- tiny” analysis required for “denominational preferences” under the Establishment Clause. See Larson v. Valente, 456 U.S. 228, 246 (1982). Respondents’ Religious Amici submit that in addition to, and independent of, the Equal Protection issues before this Court, this Court can and should affirm the Colorado Supreme Court’s decision on Establishment Clause grounds. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 8-9 (1989) (plu- rality opinion) (quoting Gillette v. United States, 401 U.S. at 450); cited with approval in Allegheny County, 492 U.S. at 593. In Epperson v. Arkansas, 393 U.S. 97 (1968), this Court set forth the doctrine of neutrality with respect to religion and religious belief required by the Establishment Clause: Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no religion; and it may not aid, foster or promote one religion or religious theory against another or even against the militant opposite. Id. at 103-04 (emphasis added); accord Allegheny County, 492 U.S. at 590; Abington School District v. Schempp, 374 U.S. 203, 222 (1963) (neutrality prohibits placing official support behind “the tenets of one or of all orthodoxies”).° In this case, the State admits that Amendment 2 is motivated by the religious views on homosexuality of the Amendment's proponents. The primary proponent of Amendment 2, Colorado for Family Values (CFV), sought passage of the Amendment for the expressed purpose of permitting those who share CFV’s religious objections to 5 Moreover, this Court has made it clear that the Free Exer- cise Clause’s prohibition against State action which denies “the rights of free exercise to anyone . . . has never meant that a majority could use the machinery of the State to practice its beliefs,” Schempp, 374 U.S. at 226, or “to enforce a religious orthodoxy.” Lee v. Weisman, 112 S. Ct. at 2658. homosexuality to engage in unrestricted discrimination against homosexual persons.® CFV conceived of the alleged need for and drafted the language of Amendment 2. CFV also managed the campaign which ultimately resulted in passage of Amendment 2 (v. 16, pp. 874, 1045-46). CFV’s position papers on Amendment 2 state its religious basis for promoting passage of that Amendment: “Gay behavior is what the Bible calls ‘sin’ because sin defines any attempt to solve human problems or meet human needs without regard to God’s wisdom and solutions as found in Scripture and in His saving grace and mercy.” (Pl. Ex. 12 at 67; v. 3, p. 56.)7 In Schempp, this Court articulated two of the three tests which were later summarized in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971):8 © The religious goals of the proponents of legislation are relevant in determining whether the contested measure has a religious purpose and/or effect which violates the Establish- ment Clause. See Edwards v. Aguillard, 482 U.S. 578, 591-93, 601-02 (1987); Wallace v. Jaffree, 472 U.S. 38, 56-57, 74-76 (1985) (history of a law is a factor in determining whether its purpose and effect are religious); Epperson v. Arkansas, 393 U.S. at 108, n.16-17 (1968) (advertisement by proponents for statute adopted by popular initiative cited as evidence of the law’s religious purpose); SUTHERLAND, Stat. Const. § 48.19 (5th ed.). 7 See Statement of Interest of the Lutheran Church-Missouri Synod: “God’s Word clearly identifies homophile behavior as immoral, and condemns it. . . . ” Brief of CLS at App. 4. ® Under the Lemon analysis, “a statute or practice which touches upon religion, if it is to be permissible under the Estab- lishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion.” Allegheny County, 492 U.S. at 592. The test may be stated as follows: what are the purpose and the primary effect of the enact- ment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. 374 U.S. at 222; accord Epperson v. Arkansas, 393 U.S. at 107. In Allegheny County, this Court noted that decisions subsequent to Lemon had “refined the definition of gov- ernmental action that unconstitutionally advances reli- gion” by paying “[p]articularly close attention to whether the challenged governmental practice either has the pur- pose or effect of ‘endorsing’ religion.” Allegheny County, 492 U.S. at 592. A majority of this Court in Allegheny County further emphasized that: The prohibition against governmental endorse- ment of religion “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” Id. at 593 (emphasis in original) (quoting Wallace v. Jaffree, 472 U.S. 38, 70) (O’Connor, J., concurring). Of particular relevance to this case, this Court sum- marized the “essential principle” expressed in its use of key words such as “endorsement,” “favoritism,” or “pro- motion”: The Establishment Clause, at the very least, pro- hibits government from appearing to take a position on questions of religious belief or from “making adherence to a religion relevant in any way to a person’s standing in the political com- munity.” Allegheny County, 492 U.S. at 593-94 (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concur- ring); accord Texas Monthly, Inc. v. Bullock, 489 U.S. at 9 (plurality opinion); Wallace v. Jaffree, 472 U.S. at 69 (O’Connor, J., concurring).? The admitted religious purpose of Amendment 2, to facilitate the ability of individuals and organizations with religious objections to homosexuality to enforce their beliefs throughout Colorado society and in State govern- mental operations, clearly constitutes an “appearance” that the State has taken a position on this question of religious belief.!° It is equally certain that if Amendment 2 is enforced, it will have the primary effect intended by its % Justice O’Connor, in her concurring opinion in Lynch, explained one of the reasons for this principle: “Endorsement [of religion] sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherenis that they are insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. at 688. 10 The purpose test of Lemon does not require that a State law have exclusively secular objectives. However, the secular purposes proffered by the State must be sincere, not shams. Wallace v. Jaffree, 472 U.S. at 64; see Church of Lukumi Babalu Aye, Inc. v. Hialeah, 113 S. Ct. 2217, 2226-29 (1993). This Brief does not address the validity of the secular purposes alleged by the State to justify Amendment 2’s discriminatory purpose. If none of them are valid, then Amendment 2’s religious purpose fails the first prong of the Lemon test. If this Court finds a valid secular as well as religious purpose behind Amendment 2, it must still determine whether its effect is to endorse religion. Allegheny County, 492 U.S. at 592. 10 “pervasively sectarian” proponents.!! See Bowen v. Ken- drick, 487 U.S. 589, 609-10 (1988). Amendment 2’s con- scious employment of a prohibition against protecting gay citizens from discrimination, as a means of facilitat- ing the Amendment's proponents’ religious purpose, cre- ates the “appearance of a joint exercise of legislative authority by Church and State [which] provides a signifi- cant symbolic benefit to religion in the minds of some by reason of the po.ver conferred.” Larkin v. Grendel's Den, Inc., 459 U.S. 116, 125-26 (1982). Under such circum- stances, Amendment 2 “can be seen as having a ‘primary’ and ‘principal’ effect of advancing religion.” Id. at 126. Additionally, by creating a constitutionally protected right to discriminate against them, Amendment 2 subjects gay persons to second class citizenship in Colorado soci- ety. Because they do not adhere to CFV’s religious beliefs on homosexuality, Colorado’s gay residents face discrimi- nation in housing, jobs or public accommodations and are precluded by Amendment 2 from seeking any form of protection from any branch or level of state government. Thus, the second aspect of the essential principles behind the “endorsement” test under the Establishment Clause, “making adherence to a religion relevant in any way to a person’s standing in the political community,” is also compromised by Amendment 2. Allegheny County, 11 At a church discussion on Amendment 2 prior to its passage Kevin Tebedo, the co-founder of CFV, asserted that Amendment 2 is “about authority. It’s about whose authority takes precedence in the society in which we live. Is it the author- ity of man... or is it the authority of God?” (v. 16, pp. 1060, 1061-62.) 11 492 U.S. at 593-94 (quoting Lynch v. Donnelly, 465 U.S. at 687). 12 Finally, by siding with its proponents’ religious view on homosexuality, Amendment 2 discriminates against other, equally sincere and profound religious beliefs, including those of Respondent's Religious Amici,’ which oppose discrimination against gay citizens. Justice Scalia, writing for the majority in Employment Division v. Smith, 494 U.S. 872, 877 (1990), recognized that under the First Amendment Religion Clauses, “[t]he government may not . . . lend its power to one or the other side in controversies over religious .. . dogma.” As this Court stated unequivocally in Allegheny County: The antidiscrimination principle inherent in the Establishment Clause necessarily means that would-be discriminators on the basis of religion cannot prevail. 492 U.S. at 611. Contrary to the State’s assertions on this issue, instead of promoting and protecting religious lib- erty, Amendment 2 has the opposite impact. 2 By CFV’s definition, homosexual individuals are “sin- ners” whose beliefs are at odds with those religions, such as Petitioners’ Religious Amici’s, which “generally deny them moral legitimacy.” Brief of CLS at 25. Though many gay persons may be practicing Christians or adherents to other religious disciplines, as well as participants in religious organizations which do not share CFV’s interpretation of religious scripture, unless they conform to CFV’s religious views, they are “non- adherents” of the religious beliefs favored by Amendment 2. 3 See Respondents’ Religious Amici’s Statements of Interest at Appendix. 12 As this Court eloquently articulated in Lee v. Weis- man: The explanation lies in the lessor »»“ history that was and is the inspiration for the F stablishment Clause, the lesson that in the hands of govern- ment what might begin as a tolerant expression of religious views may end in a policy to indoc- trinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed. 112 S. Ct. at 2658. By er ‘orsing, through Amendment 2, a particular religious belief on homosexuality, “the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people.” Id. Therefore, because Amendment 2’s primary purpose and effect are to endorse a particular religious belief, because it makes adherence to that belief relevant to the standing of gay citizens in the Colorado political commu- nity, and because it discriminates against opposing reli- gious beliefs, Amendment 2 violates the Establishment Clause. B. Amendment 2 Also Violates The Establishment Clause By Attempting to Use Coercive State Powers To Discriminate Against Gay Citizens In Aid Of Particular Religious Beliefs. The Establishment Clause also forbids the State from using its power or prestige to either directly or indirectly pressure or coerce a person to conform to the prevailing, officially approved religious doctrine. Wallace v. Jaffree, 472 U.S. at 50; Engel v. Vitale, 370 U.S. 421, 430-31 (1962), 13 Everson v. Board of Educ., 330 U.S. 1, 15 (1947); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). CFV’s religious motives for seeking passage of Amend- ment 2 were not limited to protecting the private religious beliefs of individuals opposed to homosexuality. Nor were they confined to preserving the autonomy of religious orga- nizations whose theology requires discrimination against homosexuals in the internal affairs of those organizations. CFV also sought adoption of Amendment 2 to accomplish its main objective: to proselytize its belief that homosexuality can be “cured” through religious “conversion” to heterosex- ual orientation.'* (Pl. Ex. 12 at 67-68.) In CFV’s view, civil rights protections for gay citizens inhibit CFV’s ability to religiously assist them to convert to heterosexuality “through the power of Christ.” (Pl. Ex. 12 at 68.) Amendment 2, by prohibiting state protection for gay citizens against discrimination, removes this cru- cial “impediment” to CFV’s proselytizing activities. It cannot seriously be contended that sexual orienta- tion is freely and voluntarily changeable.'® Accordingly, '* During the campaign to pass Amendment 2, CFV Execu- tive Board Chairman Will Perkins sent a letter to 4,000 Colorado pastors enlisting their help and the help of their congregations in passing Amendment 2. In his letter, Perkins asserted that CFV’s leadership on Amendment 2 was aimed at stopping gay citizens’ efforts to protect themselves from discrimination through civil rights legislation so that “churches” could con- tinue “to minister to homosexuals as persons living in sin with Christ as the Source of forgiveness and the Restorer of hope for relationship with God.” (v. 15, pp. 758-59.) '® See testimony of Respondents’ experts (v. 6, p. 94; v. 13, pp. 272-73, 383; v. 14, p. 469). It is conceivable, however, that 14 the attempt to coerce homosexual individuals into becom- ing heterosexuals through a state policy which protects and promotes discrimination against homosexual indi- viduals is grossly perverse. More importantly, the Consti- tution prohibits the enforcement of a law which was drafted and promoted to aid in such sectarian “pressure” whether or not ultimately successful in the application. See Westside Community Schools v. Mergens, 496 U.S. 226, 261 (1990) (Kennedy, J., concurring). The primary effect of such a law would be for gay citizens to experience dis- crimination because of their non-conformance with CFV’s religious beliefs. Such coercive pressure, whether or not successful, violates the principle that the government cannot “impose special disabilities on the basis of religious views or religious status.” Employment Div. v. Smith, 494 U.S. at 877. In his famous “Memorial and Remonstrance Against Religious Assessments,” James Madison articu- lated the reasons for his objections to a Virginia law which would have imposed a tax to support teachers of Christianity. Madison stated that laws establishing reli- gion: degrade from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be... from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. some individuals will appear to religiously renounce their homosexuality to avoid the punishing discrimination they would otherwise experience. 15 quoted in Engel, 370 U.S. at 432 n.16. Amendment 2 violates the core Establishment Clause principle that gov- ernment: may not place its prestige, coercive authority, or resources behind a single religious faith or behind religious belief in general, compelling nonadherents to support the practices or pros- elytizing of favored religious organizations and conveying the message that those who do not contribute gladly are less than full members of the community. Texas Monthly, Inc., 489 U.S. at 9 (plurality opinion). This principle, of prohibiting government sponsored compulsion in the area of freedom of conscience and religion, is fortified by “the teaching of history,” both preceding and subsequent to the adoption of the Bill of Rights. Wallace v. Jaffree, 472 U.S. at 54 n.39. As Justice Jackson explained in West Virginia State Board of Education v. Barnette: Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by rape. ns as well as by evil men. Nationalism is a tively recent phenomenon, but at other times and p the ends have been racial or territorial security, support of a dynasty or reg- ime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever increasing severity. As govern- mental pressure towards unity becomes greater, so strife becomes more bitter as to whose unity it shall be. . . . Ultimate futility of such attempts to compel coherence is the lesson of every such 16 effort from the Roman drive to stamp out Chris- tianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. ... ' ‘© This year, as America and the other countries involved in World War II struggle to comprehend the lessons of that era and the Nazi Holocaust which defined it, CFV, in its April 1995 Newsletter, has contributed a piece of revisionist history. In its lead article, “The Pink Swastika,” CFV propagates the perspec- tive that “Homosexuality actually played a key role in the psy- chology of Nazi brutality. In fact, ‘macho’ homosexuality inspired the ruthlessness of the entire regime.” CFV Report: The Voice of Amendment 2, Volume 27, page 1, April 1995. CFV’s use of a classic revisionist technique - literally blam- ing the victims for their own persecution — is consistent with CFV’s attempt to demonize and dehumanize gay people in an effort to justify Amendment 2’s unbridled discrimination against them. See generally, P|. Ex. 12 at 8-30, 46-47. For a discus- sion on the use of similar stereotypes in racist theory, see gener- ally Georce L. Mosse, NATIONALISM AND Sexuaurry (1985); Georce L. Mosse, Towarp THe Finat Sovution: A History or Eurorean Racism (1985 ed.). CFV’s article deliberately distorts responsible historical research which reveals Hitler’s “bloody purge” of homosexual individuals in the SA storm troopers, the Nazis’ official policy and campaign against homosexual individuals, the convictions of 50,000 gay people under anti-homosexual laws during the Nazi-era, and the harsh treatment of gay individuals in Nazi concentration camps, including attempts to forcibly “cure” homosexual persons of their sexual orientation. See Hemwz Hecver, THe Men Wrern tHe Povx Triancre (1980); Warren Joh- ansson & William A. Percy, Homosexuals in Germany, 7 Simon WiesentHat Center ANNuaAt (1990); Ruediger Lautmann, Gay Prisoners in Concentration Camps as Compared with Jehovah's Wit- nesses and Political Prisoners, in A Mosaic or Victms: Non-Jews PerseCcUTED AND Murverep sy THe Nazis (Michael Berenbaum ed., 17 It seems trite but to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. 319 U.S. 624, 640-41 (1943) (emphasis added) (quoted in sub- stantial part in Wallace v. Jaffree, 472 U.S. at 54 n.39). The coercive nature of Amendment 2 conflicts with these historical lessons underlying the religious liberty pro- tected by the First Amendment. Because of its coercive nature, Amendment 2 violates the Establishment Clause. Il. THE FREE EXERCISE OF RELIGION CANNOT BE GUARANTEED BY A LAW THAT ITSELF ESTAB- LISHES RELIGION. It is clear that what the sponsors and supporters of Amendment 2 seek is the elimination of any compromise between their religious views and any other interest, includ- ing the religious beliefs of others. The Christian Legal Soci- ety’s statement of interest set forth in their brief amicus curiae is revealing on this point: Because the source of rel liberty . . . is the Creator, not a constitu amendment, statute or eT ee ee ee ea interests to be weighed . Hence, the pee ay brig and ms mages ‘prohibition a to this, our First Freedom, is “Congress shall make no law... . ” CLS Brief at App. 2 (emphasis added). The State and its Religious Amici therefore ask this Court to permanently tip the balance in favor of the 1990); Frank Rector, THe Nazi Exrerminarion or Homosexvacs (1981). 18 sponsors’ religious views so that no other interest can possi- bly outweigh those views: “the compelling government interest in protecting [our] religious liberty justifies any bur- den Amendment 2 imposes upon [homosexual individuals].” Id. at 2 n.2 (emphasis added); see also id. at 26 (same). The State and its Religious Amici ignore the fact that other consti- tutionally protected religious views are at odds with the views promoted by Amendment 2. This endorsement of one set of religious beliefs over others is precisely contrary to what the Framers contemplated when drafting the First Amendment. A. Amendment 2 Exceeds The Permissible Scope Of State Accommodation. The proponents of Amendment 2 seek to justify the need for Amendment 2 on the basis of perceived difficulties with hypothetical free exercise claims that they believe they would have to assert in order to avoid Colorado’s existing anti-discrimination laws and policies. The issue before this Court, however, is not whether any of Colorado’s statutes, ordinances or policies which prohibit discrimination on the basis of sexual orientation violate religious freedom as pro- tected by the Free Exercise Clause of the First Amendment. That issue must await an actual case or controversy before it can properly be adjudicated. The issue here is whether Amendment 2, by withdraw- ing all of Colorado’s authority to protect gay citizens from discrimination in all walks of life —- public, private, secular and sectarian — exceeds the permissible scope of State accom- modation of free exercise of religion and thereby violates the Establishment Ciause. ——— -—- ——— ee + eee 19 “The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.’ ” Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985) (quoting Judge Learned Hand in Otten v. Baltimore & Ohio R. Co., 205 F.2d 58, 61 (2d Cir. 1953)). Thus, Amendment 2, which not only “exempts” its reli- gious proponents from having to comply with anti-discrimi- nation laws but also repeals all such anti-discrimination laws to the extent they protect gay people, imposes substantial burdens on gay persons and on those with contrary religious views. Amendment 2 exposes gay people to discrimination from anyone, not just those with religious motives, and requires the State to act only in furtherance of Amendment 2’s discriminatory purposes. See Yenter v. Baker, 248 P.2d 311, 314 (Colo. 1952). Because Amendment 2 allows the imposi- tion of substantial burdens, especially upon gay citizens, in furtherance of its proponents’ avowed religious beliefs, it exceeds the limits of permissible accommodation. Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989). “[T]he State has no legitimate interest in protecting any and all religions from views distasteful to them. . . »" Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 505 (1952) (quoted with approval in Epperson v. Arkansas, 393 U.S. 97, 107 (1968)). While CFV’s and Petitioners’ Religious Amici’s religious belief that homosexual orientation is objectionable is pro- tected by the Free Exercise Clause, they cannot employ the authority of the State of Colorado to carry out that belief. Furthermore, this Court has never “interpreted the First Amendment to require the government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. The Free 20 ‘Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699 (1986) (emphasis in original); accord Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 449 (1988). Amendment 2 would repeal numerous laws and regulations of the State of Colorado relating solely to governmental actors and employees, to the extent such laws and regulations protect gay people from discrimination. Among them are an Executive Order of the Governor, No. D0035 (Dec. 10, 1990), prohibiting discrimination on the basis of sexual orientation in State employment practices and Canon 3(a)(9) of the Code of Judicial Conduct prohibiting judicial prejudice or bias based on sexual orientation. Clearly, in this context, Amendment 2 exceeds the permissible scope of accommodation under the Free Exercise Clause. The State’s Religious Amici’s espoused religious beliefs regarding the treatment of homosexual persons are not uni- versal. For example, The Episcopal Church, also a Christian denomination, has a longstanding policy to work toward the eradication of discrimination against homosexual persons in society.!7 The other religious denominations and associations 17 In 1976, the General Convention of the Episcopal Church (the Church’s highest policy making body) adopted the follow- ing resolutions: RESOLVED, the House of Bishops concurring, that it is the sense of this General Convention that homosex- ual persons are children of God who have the full and equal claim with all other persons upon the love, acceptance, and pastoral concern and care of the Church. RESOLVED, the House of Bishops concurring, that this General Convention expresses its conviction that ee rt 21 comprising Respondents’ Religious Amici espouse similar policies against discrimination. See, e.g., Appendix (Respon- dents’ Amici’s Statements of Interest). Amendment 2, while it may serve the self-defined ends of CFV and its other sponsors, is contrary to, and undermines, the beliefs of other Christian and non-Christian religions,’® and the beliefs of Respondents’ Religious Amici. The method employed by Amendment 2 to accommo- date religious beliefs, namely, discrimination against gay individuals not restricted to the sectarian sphere, is not a legitimate governmental interest. “The Constitution cannot homosexual persons are entitled to equal protection of the laws with all other citizens, and calls upon our society to see that such protection is provided in actu- ality. CHURCH AND Society: SociaAL Pouicy oF THE EpiscopaL CHuRCH at 357. In 1994, the General Convention reaffirmed the above reso- lution regarding equal protection for homosexual persons and committed the resources of the Church to work on behalf of legislation to assure such protection. General Convention 1994 (C-019s) at 60. 18 For example, the Roman Catholic Church, while not approving homosexual acts, teaches tolerance toward those who are homosexual: homosexual persons “must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided.” Catecnism or THE CaTHOLIC CHURCH at 625-26 (Doubleday 1994). Still other religions have adopted resolutions opposing discrimination against homosexual persons and exhorting adherents to work for the enactment of legislation that would guarantee the liber- ties of all persons without discrimination related to sexual ori- entation. See, e.g., Tenth General Synod, United Church of Christ, Resolution 6 (1975). Thus, CFV and the other sponsors of Amendment 2 cannot and do not speak for all religions on the issue of homosexuality. 22 control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Palmore v. Sidoti, 466 U.S. 429, 433 (1984); see also Norwood v. Harrison, 413 US. 455, 469-70 (1973) (“[A]lthough the Constitution does not proscribe private bias, it places no value on discrim- ination as it does on the values inherent in the Free Exercise Clause.”) As this Court said in Allegheny County: To be sure, in a pluralistic society there may be some would-be theocrats, who wish that their reli- gion were an established creed, and some of them rhaps may be even audacious enough to claim that the lack of established religion discriminates against their preferences. But this claim gets no relief, for it contradicts the fundamental premise of the Establishment Clause itself. The anti-discrimina- tion principle inherent in the Establishment Clause nec- essarily means that would-be discriminators on the basis of religion cannot prevail. 492 U.S. 573, 611 (1989) (emphasis added); cf. Bob Jones Univ. v. United States, 461 U.S. 574, 602-04 (1983) (denial of tax exempt status to schools that engage in racial discrimination on the basis of sincerely held religious beliefs does not violate Free Exercise Clause). B. Amendment 2 Is Not A Neutral Law In That It Encourages Discrimination. The State contends that because Amendment 2 does not require discrimination against homosexual citizens, it is not discriminatory, but rather is neutral. Petitioners’ Brief at 48. However, Amendment 2 does encourage discrimination because it would open the door to discrimination against homosexual citizens by anyone for any reason or for no 23 reason. It prohibits Colorado (and its courts) from taking any action to defend homosexual citizens against discrimination and, as a self-executing initiative, limits Colorado to under- taking only those future actions which would further the discriminatory purpose of Amendment 2. As the Colorado Supreme Court stated in Yenter v. Baker, a self-executing law is: beyond the power of the legislature to render it nugatory by passing restrictive laws. .. . “Only such legislation is permissible as is in furtherance of the purpose, or as will facilitate the enforcement, of such provision, and legislation which will impair, limit or destroy rights granted by the provi- sion is not permissible.” 248 P.2d at 314 (quoting Baker v. Bosworth, 222 P.2d 416, 418 (Colo. 1950)). Accordingly, Amendment 2 locks the State of Colorado into a posture of promoting prospective discrimi- nation. Thus, Amendment 2, contrary to the State’s claim of neutrality, is far from neutral in that it supports and encourages discrimination both by private individuals and by the State. See Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648, 658 (Cal. Ct. App. 1991). This Court addressed the seeming “neutrality” of a similar State constitutional amendment in Reitman v. Mulkey, 387 U.S. 369 (1967). There, the Court invalidated a California constitutional amendment (known as § 26), passed by ballot initiative, which had the effect of repealing existing laws prohibiting racial discrimination in housing.!9 19 Section 26 provided, in part, that: Neither the State nor any subdivision or agency thereof shall deny, limit or abridge, directly or 24 Although the anti-discrimination laws at issue in Reit- man addressed racial discrimination, the Court's test of the subject law’s neutrality, or lack thereof, is unaffected by the form of discrimination at issue. The Court found that the initiative was discriminatory, despite the fact that it did not, by its own terms, require discrimination. By overturning existing State laws protecting citizens against discrimination, the initiative had changed the situation from one in which discriminatory practices were restricted to one where they were affirmatively encouraged: The right to discriminate, including the right to discriminate on racial grounds, was now ied in the State’s basic charter, immune from legisla- tive, executive, or judicial regulation at any level of the state government. Those practicing racial dis- criminations need no longer rely solely on their personal choice. They could now invoke express constitutional authority, free from censure or inter- ference of any kind from official sources. Id. at 377. Unlike Amendment 2, § 26 specifically exempted the State from its purview. Even with such an exemption, the Court found that § 26 impermissibly co-opted the State into a position of encouraging discrimination. Id. A fortiori, Amend- ment 2, which does not exempt the State of Colorado from its purview but rather mandates that the State act to further indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discre- tion, chooses. Reitman, 387 U.S. at 371 n.2 (setting forth the full text of § 26). 25 the purposes of the amendment i cath entiene , Must certainly fail the Aenandinant 2 does not simply attempt to defend a oer ogy s religious beliefs. Instead, it creates a spe- . t group (and anyone else) to discriminate against another targeted group of citizens they do not like. By making unavailable to gay citizens the means of redress available to all other vicitms of discrimination, a uniquely unt category would be created for discrimination gainst ad a in both the private and government The State and its Religious Amici assert that such a right is necessary for religious reasons and that Amendment 2 ree i be respected because it is the will of the people. ee Brief at 14. As Justice Douglas reiterated in Reit- Wherever the real power in a Government lies, there is the danger of oppression. In our Govern- Gants the real power lies in the majority of the ommunity, and the invasion of private rights is chiefly to be apprehended, not from acts of Govern- ment contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constitu- ents. This is a truth of great importance, bu sulliciently attended to... . wpepetam rol U.S. at 387 (1966) (Douglas, J., concurring) (quoting 5 RITINGS OF JAMes Mapison 272 (Hunt ed., 1904) (emphasis in original)). Allowing for the enactment of anti-discrimination laws while providing for limited exemptions for religious beliefs would certainly constitute a more neutral arrangement than 26 Amendment 2 would create.2° As the Colorado Supreme Court noted in its ruling, the State did not argue that the Denver ordinance, which contains an exemption for reli- giously-based objections, impairs religious freedom. Evans v. Romer II, 882 P.2d 1335, 1343 (Colo. 1994). In fact, the State’s own expert witness testified that imposing a religiously- based exemption on all such anti-discrimination laws would be less restrictive than Amendment 2 and would adequately address any concerns about religious liberty. Id. This Court, in Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987), has already recognized the value of religiously-based exemptions in protecting religious liberty under federal anti- discrimination laws. Id. at 339. The State’s “winner take all” approach to religious lib- erty is not neutral and cannot long exist in a democracy as diverse as ours without straining it to the point of breaking. A law that is truly neutral would be one that accommodates conflicting religious beliefs with minimal harm to the rights of other members of society. C. The Religious Freedom Restoration Act Preserves Religious Liberty By Balancing Free Exercise Against The Competing Needs Of Secular Society. In 1993, Congress codified the standards established in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 20 Respondents’ Religious Amici recognize that the issue of religiously-based exemptions is not before the Court, but simply point out that Amendment 2, because it disallows any anti- discrimination laws as they apply to gay citizens, would have a much broader discriminatory effect than would allowing for religiously-based exemptions. 27 406 U.S. 205 (1972), by enacting the Religious Freedom Res- toration Act of 1993. 42 U.S.C. §§ 2000bb to 2000bb-4 (Supp. 1994). Under the RFRA test, government must justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.2! RFRA was intended to protect the religious liberty of all citizens without imposing any one group’s religious beliefs on others or requiring the State to support or advance any particular religious views. RFRA renders meritless the State’s argument that Amendment 2 is necessary to protect religious liberty. RFRA, as well as existing jurisprudence and express exemptions set forth in some of the targeted anti-discrimination laws, already provides the necessary protection. RFRA allows the supporters of Amendment 2 to seek an exemption from any of the anti-discrimination laws targeted by the amendment based upon their religiously-held belief against homosex- uality. 21 Section 3 of RFRA provides as follows: (a) IN GENERAL - Government shall not substan- tially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) EXCEPTION — Government may substantially bur- den a person's exercise of religion only if it demonstrates that application of the burden to the person - (1) is in furtherance of a compelling govern- mental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §§ 2000bb-1(a), 1(b) (Supp. 1994). 28 The impact of RFRA on this Court’s holding in Employ- ment Division v. Smith, 494 U.S. 872 (1990), that the free exercise analysis of Sherbert may not be applicable to neutral laws of general applicability, has yet to be fully determined. Since the enactment of RFRA, however, the vast majority of cases dealing with free exercise claims have been determined by applying the balancing test as set forth in RFRA.” It is also important to note, even though the issue is not directly before the Court today, that regardless of whether a court hearing a challenge to one of the anti-discrimination laws targeted by Amendment 2 applies the RFRA/Sherbert balanc- ing test or relies upon this Court's ruling in Smith, the most favorable ruling the challenger could receive would be for the court to hold that the challenger is exempted from compliance with the subject ordinance.” 22 See, e.g., Bessard v. California Community Colleges, 867 F. Supp. 1454 (E.D. Cal. 1994) (forcing plaintiffs to choose between being denied employment or taking a statutory loyalty oath in violation of their religious beliefs imposed a substantial burden on the plaintiffs’ exercise of their religion and such oath was not the least restrictive means of furthering a compelling state interest). Allah v. Beyer, 1994 WL 549614 (D.N.J. Mar. 29, 1994) (unpublished opinion) (transfer of an inmate to a prison where he would not be able to share religious experiences with co-religionists constituted a substantial burden on the inmate’s exercise of his religion, but such transfer constituted the least restrictive means available to prison administrators to accom- plish the compelling state interest of maintaining institutional secu- rity and order). Only one federal district court has held RFRA to be unconstitutional, arguing that Congress violated the doctrine of Separation of Powers by intruding on the power and duty of the judiciary. Flores v. City of Boerne, 877 F. Supp. 355 (W.D. Tex. 1995), appeal docketed, Nos. 50306 & 50308 (Sth Cir. May 11, 1995). 23 Respondents’ Religious Amici are not necessarily endors- ing such a ruling but simply note that the possibility for such a ruling exists. 29 Unlike Amendment 2, RFRA also recognizes that the protection of free exercise of religion cannot exceed the limits of the Establishment Clause. Section 7 of RFRA reads, in part, as follows: Nothing in this Chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respect- ing the establishment of religion. 42 US.C. § 2000bb-4 (Supp. 1994). The sponsors of RFRA, unlike the sponsors of Amendment 2, recognized that the Establishment Clause is essential to preserve religious liberty for all citizens, rather than just a chosen few. Amendment 2, if upheld, would preclude the judicial scrutiny of religious motives and competing State interests that free exercise challenges under RFRA would require. Further, Amendment 2 would fail to provide the Establish- ment Clause protections of RFRA. Rather than protecting free exercise, Amendment 2 would endanger the religious liberty of all citizens. ¢ CONCLUSION The Free Exercise Clause alone cannot sufficiently safe- guard religious liberty. The Establishment Clause also plays a central role in guaranteeing such freedom by forbidding official actions that signify state endorsement or exclusion based on an individual's religious beliefs. If, as the propo- nents of Amendment 2 contend, it is religiously necessary for them to discriminate against homosexuals, then they may seek a religious exemption from non-discrimination laws. See, e.g., RFRA. The State may not, however, without running afoul of the Establishment Clause, give selected religious 30 beliefs the force of law. To allow such a law threatens the religious liberties of those with contrary religious views, as well as the liberties of all Americans. As this Court stated in West Virginia Board of Education v. Barnette: [W]e apply the limitations of the Constitution with no fear that freedom to be intellectually and spiri- tually diverse or even contrary will disintegrate the social organization. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. 319 US. 624, 641-42 (1943). Therefore, for the foregoing reasons, the Court should affirm the ruling of the Colorado Supreme Court that Amendment 2 is unconstitutional. Respectfully submitted, WILLIAM COHEN Stark Ritcuie* The Center For Human Epwarp M. Rocers Rights Advocacy KATHLEEN A. KENEALY 934 Pearl Street, Suite F Akin, Gump, Strauss, Boulder, CO 80302 Hauer & Feld, L.L-P. (303) 444-0970 1333 New Hampshire Ave, N.W. Suite 400 Washington, D.C. 20036 (202) 887-4000 Attorneys for Amici Curiae *Counsel of Record A-l STATEMENTS OF INTEREST The AMERICAN FRIENDS SERVICE COMMITTEE (“AFSC”) is an institutional, expression of the principles of the Religious Society of Friends (Quakers). AFSC’s belief in the sanctity and worth of each human being calls it to engage in a struggle — though never a war, for no person is our enemy - for greater justice for all people, greater inclusiveness in communities and institutions. The AFSC has a long history of action against discrimina- tion, whether based on race, gender, disability, religion, national origin or legal status. Over the past two decades, AFSC has also come to understand the need to work toward removing practices of discrimination against les- bian, gay and bisexual persons. As part of that struggle AFSC supports legal protections against discrimination in employment and employment related benefits, housing, public accommodations, education and other areas of life, including domestic partnerships. The AFSC has affirmed its respect and loving concern for its lesbian, gay and bisexual committee and staff members. It has initiated actions to implement this con- cern through staffing policies and program activities designed to raise awareness in the larger community of the problems of discrimination based on sexual orienta- tion, recognizing that such discrimination harms both its direct victims and the community as a whole. The AMERICAN JEWISH COMMITTEE (“AJC”) is a national membership organization founded in 1906, a time of pogroms in Europe and rising anti-Semitism in America, to protect the civil and religious rights of Jews. The AJC has chapters throughout the United States, A-2 including Colorado. The AJC believes that civil and reli- gious rights can be made secure for Jews only if the rights of all Americans are equally secure. Therefore, AJC has been actively involved since the early 1930s in the cause of civil rights. As an extension of AJC’s firm opposition to invidious discrimination based on race, religion, sex, and national origin, AJC is also opposed to discrimination based on sexual orientation in employment, housing, education and public accommodations. The ANTI-DEFAMATION LEAGUE (“ADL”) is one of the oldest civil rights organizations in the United States. It was founded in 1913 to combat anti-Semitism and to promote good will among all races, ethnic groups, and religions. As set forth in its charter, ADL’s “ultimate purpose is to secure justice and fair treatment to all citizens alike and to put an end forever to unjust and unfair discrimination against and ridicule of any sect or body of citizens.” For more than eighty years, ADL has been active in the fight against discrimination in employ- ment, housing, education and public accommodations. The FEDERATION OF RECONSTRUCTIONIST CONGREGATIONS AND HAVUROT (“FRCH”) is the congregational arm of the Jewish Reconstructionist Move- ment, representing 80 affiliated groups and 50,000 mem- bers in North America. FRCH is on record as having adopted a policy favor- ing full and equal participation in Jewish and civic life for all gay and lesbian Jews. The Reconstructionist Move- ment believes that all people are created in the image of God and that the sanctified love between two people is a A-3 right to be enjoyed by everyone in society regardless of the sexual orientation of the parties. Therefore, FRCH endorses the principle of protection for the full and com- plete rights of all gay and lesbian persons. The INTERFAITH IMPACT FOR JUSTICE AND PEACE (“IIJP”) is a 26-year old coalition of Protestant, Catholic, Jewish and Muslim organizations working together on public policy. The 35 faith groups represent national denominations and regional, state and local organizations. The IIJP has a long-standing history of speaking out against discrimination in employment, housing, education and public accommodations. It has actively supported civil rights for gay, lesbian and bisex- ual individuals. The IIJP has worked at both the national and state levels to ensure the full protection of the law and inclusion in society of gay, lesbian and bisexual indi- viduals. The membership of the IIJP reflects this commit- ment. From its national member organizations to its individual members to its staff IIJP is an inclusive organi- zation that does not discriminate based on race, gender, disability, religion, sexual orientation, national origin or legal status. IIJP believes that discrimination based on sexual orientation hurts the individuals directly affected and harms the whole of our society. The MOST REVEREND EDMOND L. BROWNING, PRESIDING BISHOP OF THE EPISCOPAL CHURCH. The Episcopal Church is a hierarchical Christian denomi- nation, and a province of the worldwide Anglican Com- munion that is geographically divided into nearly 120 dioceses in the United States and several nations abroad. Each such diocese is headed by a bishop and contains a number of worshiping congregations, each generally with A-4 its own ordained priest. For example, the Diocese of Colorado has as its leader a bishop, and approximately 108 worshiping congregations. The chief pastor and executive of The Episcopal Church is its Presiding Bishop, who is elected from among the bishops of the dioceses by the Church’s Gen- eral Convention. The current Presiding Bishop, one of the amici curiae in this case, is the Most Reverend Edmond L. Browning, formerly the bishop of the Diocese of Hawaii. The Presiding Bishop, among his other pastoral and administrative duties, often speaks for the Church on matters on which the Church has formally taken a policy position or as to which it is appropriate for the Presiding Bishop to take a leadership role. The Episcopal Church has long adhered to its convic- tion that homosexual persons are entitled to equal protec- tion of the laws with all other citizens, and has articulated this position in a series of resolutions adopted by its General Convention, which are cited in this Brief. The RECONSTRUCTIONIST RABBINICAL ASSO- CIATION (“RRA”) is comprised of over 120 rabbis who are graduates of the Reconstructionist Rabbinical College located in Philadelphia, Pennsylvania. The RRA serves as the professional organization for Reconstructionist Rabbis. The RRA was represented on a joint Reconstruc- tionist Commission that investigated the role of gay and lesbian Jews in the Jewish Community a few years ago. In accordance with its statement in that Commission Report, the RRA affirms the full equality of gay and lesbian people in Jewish social, cultural and religious life. The RRA seeks to prevent discrimination against gay and A-5 lesbian people and to find ways to involve them fully in inclusive and welcoming Reconstructionist Jewish Com- munities. The UNITARIAN UNIVERSALIST ASSOCIATION is a religious association of more than 1,000 congregations in the United States, Canada and elsewhere. Through its democratic process, the Association adopts resolutions consistent with its fundamental principles and purposes. In particular, the Association has adopted numerous reso- lutions affirming the principles of separation of church and state, personal religious freedom and the right to privacy. Most relevant to the case at bar is the Associa- tion’s resolutions (a) opposing discrimination based on sexual orientation or practice and (b) affirming the goal of equality, dignity and respect for all people, regardless of affectional or sexual orientation. The UNITED CHURCH OF CHRIST OFFICE FOR CHURCH IN SOCIETY (“UCC”) is a national instru- mentality of the United Church of Christ, a denomination of approximately 1.5 million members and 6100 churches, including 71 churches in Colorado. Its predecessor agency, the Council for Christian Social! Action, in 1969, declared its opposition to all laws criminalizing consen- sual homosexual expression in private and urged their repeal. It also called for an end to employment discrimi- nation and other forms of discrimination against homo- sexuals. In 1975, the United Church of Christ General Synod, the denomination’s most representative body, passed a pronouncement calling for federal, state, and local legislation to guarantee civil liberties for all and to forbid discrimination related to sexual preference. To quote from the Pronouncement, “Our Christian faith A-6 requires that we respond to the injustice in our society manifested in the denial and violation of the civil liberties of persons whose affectional or sexual preference is toward persons of the same gender.” In 1983, the Execu- tive Council recommended that homosexuality, per se, not be a bar to ordination but that Associations should consider a candidate’s total view of human sexuality and its moral expression. Since then the UCC, by vote of Associations across the country, has ordained many gay and lesbian persons for Christian ministry. For over twenty years many parts of the United Church of Christ have been in the forefront in seeking an end to discrimination against gay and lesbian people. UCC clergy and churches in Colorado were vocal in opposition to Amendment 2, with almost 50 UCC clergy signing an ad in opposition in the Denver Post. Through- out its diverse history, from the days when religious vision for a new society led the Mayflower Pilgrims to cross the sea in 1620, UCC has consistently believed that when a society attempts to structure itself so as to refuse by law to offer protection to a group of citizens who face discrimination and abuse, the very purpose of civil soci- ety has been violated. The UNITED SYNAGOGUE OF CONSERVATIVE JUDAISM (“USCJ”), established in 1913, is the associa- tion of 800 Conservative Jewish congregations with two million members in North America. In November 1991, USCJ adopted a Resolution affirming Judaism’s belief that the divine image reflected by every human being must always be cherished and A-7 affirmed; recognizing that Jews have always been sensi- tive to the impact of official and unofficial prejudice and discrimination, wherever directed; reiterating that, as are all Jews, gay men and lesbians are welcome as members in its affiliated congregations; and supporting full civil equality for gay and lesbian people in national life. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0575%3A34. Public record. Not legal advice.