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This is the Colorado Supreme Court opinion overturning the state's constitutional amendment voiding all anti-discrimination laws against homosexuals.

LLR No. 9410024.CO

SUPREME COURT, STATE OF COLORADO NOS. 94SA48 & 94SA128
October 11, 1994

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,

Plaintiffs-Appellees,

v.

ROY ROMER, as Governor of the State of Colorado, and the STATE
OF COLORADO,

Defendants-Appellants.

Appeal from the District Court, City and County of Denver
Honorable H. Jeffrey Bayless, Judge

EN BANC JUDGMENT AFFIRMED

Jean E. Dubofsky, P.C. Jean E. Dubofsky Boulder, Colorado

Jeanne Winer Boulder, Colorado

Holland & Hart Gregory A. Eurich Denver, Colorado

American Civil Liberties Union of Colorado David H. Miller
Denver, Colorado

City and County of Denver City Attorney Darlene M. Ebert,
Assistant City Attorney Denver, Colorado

Boulder City Attorney Joseph N. deRaismes, III Jane W.
Greenfield Boulder, Colorado

CONTINUED . ..Aspen City Attorney John Paul Worcester Aspen,
Colorado

American Civil Liberties Union Foundation William B. Rubenstein
Matthew A. Coles New York, New York

Lambda Legal Defense and Education Fund, Inc. Suzanne B.
Goldberg New York, New York

Wilson, Sonsini, Goodrich & Rosati Clyde J. Wadsworth Palo Alto,
California

Roderick M. Hills, Jr.

Ann Arbor, Michigan

Attorneys for Plaintiffs-Appellees

Gale A. Norton, Attorney General Stephen K. ErkenBrack, Chief
Deputy Attorney General Timothy M. Tymkovich, Solicitor General
John Daniel Dailey, Deputy Attorney General Paul Farley, Deputy
Attorney General Denver, Colorado

Attorneys for Defendants-Appellants

Keith E. Abbott Greeley, Colorado Attorney for Amicus Curiae for
Family Research Institute

The National Legal Foundation Robert K. Skolrood Virginia Beach,
Virginia Attorney for Amicus Curiae Colorado for Family Values

CHIEF JUSTICE ROVIRA delivered the Opinion of the Court.

JUSTICE SCOTT concurs. JUSTICE ERICKSON dissents.

 Defendants, Roy Romer, Governor of the State of Colorado,
Gale A. Norton, Attorney General of the State of Colorado, and
the State of Colorado (defendants) appeal the trial court's
entry of a permanent injunction enjoining them from enforcing a
voterinitiated amendment to the Colorado Constitution
("Amendment 2"). We affirm.

I In May 1992, petitions which would amend the Colorado
Constitution by adding a new section 30 to article II were filed
with the secretary of state. The proposed amendment was put to
the voters as Amendment 2 on November 3, 1992, and passed by a
vote of 813,966 to 710,151 (53.4% to 46.6%). The secretary of
state certified the results on December 16, 1992, as required by
article V, section 1, of the state constitution.

Amendment 2 provides:

No Protected Status Based on Homosexual, Lesbian, or Bisexual
Orientation. Neither the State of Colorado, through any of its
branches or departments, nor any of its agencies, political
subdivisions, municipalities or school districts, shall enact,
adopt or enforce any statute, regulation, ordinance or policy
whereby homosexual, lesbian or bisexual orientation, conduct,
practices or relationships shall constitute or otherwise be the
basis of or entitle any person or class of persons to have or
claim any minority status quota preferences, protected status or
claim of discrimination. This Section of the Constitution shall
be in all respects self-executing. On November 12, 1992, Richard
G. Evans, along with eight other persons, 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
(plaintiffs) filed suit in Denver District Court to enjoin the
enforcement of Amendment 2 claiming that the amendment was
unconstitutional.

The trial court conducted an evidentiary hearing to consider
plaintiffs' motion for a preliminary injunction. Subsequently,
the court granted the motion and prohibited the defendants from
enforcing Amendment 2 pending the outcome of a trial on the
merits.FN1 The defendants appealed pursuant to C.A.R. 1(a)(3),
and we granted review. See Evans v. Romer, 854 P.2d 1270 (Colo.
1993) (Evans I). In Evans I, we first addressed the question of
the legal standard to be applied in reviewing the trial court's
entry of the preliminary injunction. Following the precedent of
the United States Supreme Court, we held that "the Equal
Protection Clause of the United States Constitution protects the
fundamental right to participate equally in the political
process," and "that any legislation or state constitutional
amendment which infringes on this right by 'fencing out' an
independently identifiable class of persons must be subject to
strict judicial scrutiny." Id. at 1282.

After recognizing that "[t]he immediate objective of Amendment 2
is, at a minimum, to repeal existing statutes, regulations,
ordinances, and policies of state and local entities that barred
discrimination based on sexual orientation" and that the
"'ultimate effect' of Amendment 2 is to prohibit any
governmental entity from adopting similar, or more protective
statutes, regulations, ordinances, or policies in the future
unless the state constitution is first amended to permit such
measures," we held:

[T]he right to participate equally in the political process is
clearly affected by Amendment 2, because it bars gay men,
lesbians, and bisexuals from having an effective voice in
governmental affairs insofar as those persons deem it beneficial
to seek legislation that would protect them from discrimination
based on their sexual orientation. Amendment 2 alters the
political process so that a targeted class is prohibited from
obtaining legislative, executive, and judicial protection or
redress from discrimination absent the consent of a majority of
the electorate through the adoption of a constitutional
amendment. Rather than attempting to withdraw antidiscrimination
issues as a whole from state and local control, Amendment 2
singles out one form of discrimination and removes its redress
from consideration by the normal political processes.

Id. at 1285. We concluded that the trial court did not err in
granting the preliminary injunction enjoining defendants from
enforcing Amendment 2.

After our decision in Evans I, the case was remanded to the
trial court to determine whether Amendment 2 was supported by a
compelling state interest and narrowly tailored to serve that
interest. Id. at 1286. At trial the defendants offered six
"compelling" state interests: (1) deterring factionalism; (2)
preserving the integrity of the state's political functions; (3)
preserving the ability of the state to remedy discrimination
against suspect classes; (4) preventing the government from
interfering with personal, familial, and religious privacy; (5)
preventing government from subsidizing the political objectives
of a special interest group; and (6) promoting the physical and
psychological well-being of Colorado children.FN2 The trial
court concluded that the interest in deterring "factionalism"
was in truth, nothing more than an attempt to impede the
expression of "a difference of opinion on a controversial
political question . ..." It concluded that the first
governmental interest was not a compelling state interest but
rather, that "the opposite of defendants' claimed compelling
interest is most probably compelling," i.e., encouraging the
competition of ideas with uninhibited, robust, and wide-open
political debate.

The trial court found that the interest of preserving the
State's political functions, premised on the Tenth Amendment
right of the states to amend state constitutions, was not a
compelling interest since "[d]efendants' legal argument is not
supported by federal or state case law, nor is it supported by
the Colorado Constitution." With respect to the interest in
preserving the ability of the state to remedy discrimination
against groups which have been held to be suspect classes, the
trial court stated its doubt as to whether fiscal concerns of
the state rise to the level of a compelling state interest. The
court held that Amendment 2 could not be understood to further
this interest because, [d]efendants' evidence was principally in
the form of opinion and theory as to what would occur if a
Denver type ordinance were adopted as a state statute. There is
no such statute, nor is one proposed. Plaintiffs' evidence was
based on what has happened over the course of eleven years in
Wisconsin, and during the time in which the Denver ordinance has
included a sexual orientation provision. Those actual
experiences show that the presence of a sexual orientation
provision has not increased costs or impaired the enforcement of
other civil rights statutes or ordinances.

Thus, the trial court concluded that "defendants' offered
evidence of lack of fiscal ability [is] unpersuasive in all
respects." The trial court held that preventing the government
from interfering with personal, familial, and religious privacy
was, in part, a compelling state interest. Although the court
acknowledged promotion of family privacy is a compelling state
interest, it held that defendants never established what they
meant by the term "family." Moreover, defendants failed to

 "tiein . ..the interest of protecting the family and denying
gays and bisexuals the right to political participation . ..."
The trial court also found that preserving religious liberty was
a compelling state interest. However, it held that Amendment 2
was not narrowly tailored to serve this interest. "The narrowly
focused way of addressing [antidiscrimination protections for
gay men, lesbians, and bisexuals] is to add to it a religious
exemption such as is found in the Denver and Aspen ordinances,
not to deny gays and bisexuals their fundamental right of
participation in the political process." The trial court
rejected the personal privacy component of the argument on the
grounds that "[t]he general issue of whether personal privacy is
a compelling state interest was not adequately established. The
court can only speculate as to what defendants mean by personal
privacy and how Amendment 2 protects such a right." The interest
in preventing government from subsidizing the political
objectives of a special interest group was rejected on the
grounds that "[t]his claimed compelling interest was not
supported by any credible evidence or any cogent argument, and
the court concludes that it is not a compelling state interest."
Similarly, the trial court rejected the argument that the
protection of children is a compelling state interest served by
Amendment 2 because "[d]efendants have failed to present
sufficient evidence to support this claimed compelling
interest." Accordingly, because the trial court concluded that
Amendment 2 was not necessary to support any compelling state
interest and narrowly tailored to meet that interest, it
permanently enjoined the enforcement of Amendment 2.FN3 On
appeal the defendants argue that: (1) the legal standard set
forth by this Court in Evans I for assessing the
constitutionality of Amendment 2 should be reconsidered; (2)
Amendment 2 is supported by several compelling state interests
and is narrowly tailored to meet those interests; (3) that the
unconstitutional provisions of Amendment 2 are severable from
the remainder; and (4) Amendment 2 is a valid exercise of state
power under the Tenth Amendment to the United States
Constitution.

II Defendants first ask that we reconsider the constitutional
principles articulated in Evans I, but they offer no arguments
that were not then considered and rejected by this court. We see
no reason to revisit that decision. We reaffirm our holding that
the constitutionality of Amendment 2 must be determined with
reference to the strict scrutiny standard of review.FN4 III A
legislative enactment which infringes on a fundamental right or
which burdens a suspect class is constitutionally permissible
only if it is "necessary to promote a compelling state
interest," Dunn v. Blumstein, 405 U.S. 330, 342 (1972), and does
so in the least restrictive manner possible. Plyler v. Doe, 457
U.S. 202, 217 (1982). The question of what constitutes a
compelling state interest is one of law and thus, we review the
trial court's ruling de novo. League of United Latin Am.
Citizens, Council No. 4434 v. Clements, 986 F.2d 728, 772 n.30
(5th Cir. 1993); Scott v. Rosenberg, 702 F.2d 1263, 1274 (9th
Cir. 1983). Defendants argue that Amendment 2 is supported by a
number of compelling state interests and is narrowly tailored to
serve those interests.FN5 A Defendants' first asserted
governmental interest is in protecting the sanctity of
religious, familial, and personal privacy. Freedom of religion
is expressly guaranteed by both the First Amendment to the
United States Constitution and article II, section 4 of the
Colorado Constitution and stands at the core of our Nation's
history and tradition. It is among the highest values of our
society. See Murdock v. Pennsylvania, 319 U.S. 105, 115-17
(1943). There can be little doubt that ensuring religious
freedom is a compelling governmental interest.

Defendants argue that Amendment 2 is necessary to serve this
interest because "[u]nder the ordinances preempted by Amendment
2, individual landlords or employers who have deep-seated and
profound religious objections to homosexuality would nonetheless
be compelled to compromise those convictions, under threat of
government sanctions." In support of this proposition,
defendants rely on Smith v. Commission of Fair Employment &
Hous., 30 Cal. Rptr.2d 395 (Cal. App. 3 Dist. 1994).

In Smith, the plaintiff challenged the ruling of the California
Commission of Fair Employment and Housing which found that she
had impermissibly discriminated, based on their marital status,
against a couple who sought to rent housing. The couple was
unmarried and the plaintiff refused to rent to them on the
grounds that doing so would violate her deeply-held religious
beliefs. Plaintiff was ordered to cease and desist marital
discrimination; post a notice announcing her violation of
California law for ninety days; permanently post a notice to
rental applicants of their rights and remedies under California
antidiscrimination laws; and sign both notices and provide
copies to each person who subsequently expressed an interest in
renting her property. Id. at 397-98.

The California court of appeals concluded that the commission's
order substantially burdened plaintiff's free exercise rights
because she "cannot remain faithful to her religious convictions
and beliefs and yet rent to unmarried couples." Id. at 399.FN6
Assuming arguendo that ordinances such as that in effect in
Boulder, which prohibit discrimination against gay men,
lesbians, and bisexuals in housing and employment but which
contain no exception for religiously-based objections,
substantially burden the religious liberty of those who object
to renting or employing gay men, lesbians, or bisexuals on
religious grounds, the enactment of Amendment 2 clearly is not
narrowly tailored to serve the interest of ensuring religious
liberty. To the contrary, an equally effective, and
substantially less onerous way of accomplishing that purpose
simply would be to require that antidiscrimination laws which
include provisions for sexual orientation also include
exceptions for religiously-based objections. This is precisely
what the Denver antidiscrimination laws provide. Denver, Colo.,
Rev. Mun. Code art. IV, Sub Sect. 28-92, 28-93, 28-95 to 28-97 (1992
Supp.). Similar exemptions for religious organizations are found
in federal antidiscrimination statutes. See, e.g., 42 U.S.C. Sect.
2000e-1 (1994 Supp.) (exempting religious organizations from the
prohibition against employment discrimination); 42 U.S.C. Sect. 3607
(1994 Supp.) (exemption for religious organizations in housing
and public accommodation).FN7 Defendants do not, and we doubt
that they could, argue that the Denver ordinance impairs
religious freedom. Indeed, Joseph Broadus, who testified as an
expert witness on behalf of the defendants, testified that
imposing a religiously-based exemption on antidiscrimination
laws intended to protect gay men, lesbians, and bisexuals would
be less restrictive than Amendment 2 and would adequately
address any concerns about religious liberty.

It is clear that Amendment 2, which affects the fundamental
right of gay men, lesbians, and bisexuals to participate equally
in the political process, 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.

Defendants also argue that Amendment 2 serves the compelling
interest of preserving "familial privacy." Family privacy is
characterized by defendants as the right "of some parents to
teach traditional moral values" to their children. As support,
defendants cite authority recognizing the sanctity of the family
and the central role the family plays in society. See, e.g.,
Moore v. City of East Cleveland, 431 U.S. 494, 503-04 (1977)
("the Constitution protects the sanctity of the family precisely
because the institution of the family is deeply rooted in this
Nation's history and tradition"); Ginsberg v. New York, 390 U.S.
629, 639 (1968) (parental role is "basic in the structure of our
society").

Defendants contend that the "right of familial privacy" is
"severely undermine[d]" by the enactment of antidiscrimination
laws protecting gay men, lesbians, and bisexuals because "[i]f a
child hears one thing from his parents and the exact opposite
message from the government, parental authority will inevitably
be undermined." This argument fails because it rests on the
assumption that the right of familial privacy engenders an
interest in having government endorse certain values as moral or
immoral. While it is true that parents have a constitutionally
protected interest in inculcating their children with their own
values, see Prince v. Massachusetts, 321 U.S. 158, 166 (1944),
defendants point to no authority, and we are aware of none,
holding that parents have the corresponding right of insuring
that government endorse those values.

The United States Supreme Court has repeatedly held that the
individual's right to profess or practice certain moral or
religious beliefs does not entail a right to have government
itself reinforce or follow those beliefs or practices. See,
e.g., Bowen v. Roy, 476 U.S. 693, 699 (1986) ("Never to our
knowledge has the Court . .. require[d] 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.").
Furthermore, it is clear that the government does not burden an
individual's constitutional rights merely because it endorses
views with which that individual may disagree. See Block v.
Meese, 793 F.2d 1303, 1312-14 (D.C. Cir. 1986) (then Judge
Scalia concluding that "[a] rule excluding official praise or
criticism of ideas would lead to the strange conclusion that it
is permissible for the government to prohibit racial
discrimination, but not to criticize racial bias; to criminalize
polygamy, but not to praise the monogamous family . .. ."). Id.
at 1313.

Consequently, fully recognizing that parents have a "privacy"
right to instruct their children that homosexuality is immoral,
we find that nothing in the laws or policies which Amendment 2
is intended to prohibit interferes with that right. With or
without Amendment 2, parents retain full authority to express
their views about homosexuality to their children. We believe
that Amendment 2 is neither necessary nor narrowly tailored to
preserve familial privacy because that right is not implicated
by the laws and policies which Amendment 2 proscribes.

Defendants also argue that Amendment 2 serves the compelling
state interest in preserving "personal privacy." While it is
not entirely clear what is meant by the phrase, it appears that
the defendants are referring to the right of "associational
privacy" which will be impaired in the absence of Amendment 2
because individuals may be forced to associate with gay men,
lesbians, and bisexuals in the rental of housing.FN8 As the
Supreme Court has explained, the right of associational privacy
protects associations involving, deep attachments and
commitments to the necessarily few other individuals with whom
one shares not only a special community of thoughts,
experiences, and beliefs but also distinctively personal aspects
of one's life. ...[T]hey are distinguished by such attributes as
relative smallness, a high degree of selectivity in the
decisions to begin and maintain the affiliation, and seclusion
from others in critical aspects of the relationship. As a
general matter, only relationships with these sorts of qualities
are likely to reflect the considerations that have led to an
understanding of freedom of association as an intrinsic element
of personal liberty.

Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984).

While preserving associational privacy may rise to the level of
a compelling state interest, Amendment 2 is not narrowly
tailored to serve that interest. Amendment 2 would forbid
governmental entities from prohibiting discrimination against
gay men, lesbians, and bisexuals (because they are gay, lesbian,
or bisexual) in all aspects of commercial and public life, no
matter how impersonal. Amendment 2 affects a vast array of
affiliations which in no way implicate associational privacy.
None of the criteria needed to precipitate associational privacy
rights exists: there is no "special community" distinguished by
"selectivity," "relative smallness," or any concern with
"distinctively personal aspects of one's life." Id.

[A]n association lacking these qualities -- such as a large
business enterprise -- seems remote from the concerns giving
rise to this constitutional protection. Accordingly, the
Constitution undoubtedly imposes constraints on the State's
power to control the selection of one's spouse that would not
apply to regulations affecting the choice of one's fellow
employees.

Id. (citing Loving v. Virginia, 388 U.S. 1, 12 (1967) and
Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945)).

To the extent that antidiscrimination laws protecting gay men,
lesbians, and bisexuals have the potential to implicate
associational privacy rights, a narrower way of avoiding this
conflict would be to exempt the sort of intimate associations
identified in Roberts from the scope of such laws. For instance,
landlords could be allowed to discriminate against homosexuals
in the rental of owner-occupied housing -- the so-called "Mrs.
Murphy's Boarding House" exception. See, e.g., Fair Housing Act,
42 U.S.C. Sect. 3603(b) (1988 & 1994 Supp.) (exempting certain
owneroccupied housing from the Fair Housing Act); Statutory
History of the United States: Civil Rights, Part II 1741-52,
1805-06 (B. Schwartz ed. 1970) (detailing legislative history
and policies underlying "Mrs. Murphy's Boarding House" exemption
in Fair Housing Act). Similar exemptions already exist under
Colorado law. For instance, Denver's antidiscrimination
ordinance exempts from its housing and public accommodation
provisions multiple unit dwellings of not more than two units
where one of the units is owner occupied. Denver, Colo., Rev.
Mun. Code art. IV, Sub Sect. 2895(b)(2) & 28-96(b)(2) (1991).
Similarly, the Colorado Civil Rights statute exempts from the
definition of "housing" any room offered for rent or lease in a
single-family dwelling occupied in part by the owner. Sect. 24-34
-501(2), 10A C.R.S. (1988).

Amendment 2, however, does no such thing. Rather, it prohibits
governmental entities from enacting laws barring discrimination
against gay men, lesbians, and bisexuals in all contexts,
regardless of the nature of the relationship involved and the
extent of intimacy inherent in those relationships. Amendment 2
sweeps more broadly than necessary and is not narrowly tailored
to serve the governmental interest in preserving associational
privacy.

B Defendants next assert that because "laws and policies
designed to benefit homosexuals and bisexuals have an adverse
effect on the ability of state and local governments to combat
discrimination against suspect classes. ...Amendment 2 is an
appropriate means whereby the people sought to focus
government's limited resources upon those circumstances most
warranting attention." In short, defendants take the position
that Amendment 2 serves the compelling governmental interest in
seeing that limited resources are dedicated to the enforcement
of civil rights laws intended to protect suspect classes rather
than having a portion of those resources diverted to the
enforcement of laws intended to protect gay men, lesbians, and
bisexuals.

It is well-settled that the preservation of fiscal resources,
administrative convenience, and the reduction of the workload of
governmental bodies are not compelling state interests. See,
e.g., Reed v. Reed, 404 U.S. 71, 76-77 (1971) (interest of
"reducing case-load of probate courts" is not weighty enough to
survive even heightened scrutiny); Shapiro v. Thompson, 394 U.S.
618, 633 (1969); Vlandis v. Kline, 412 U.S. 441, 458-59 (1973)
(it is "obvious . .. that, as the Court's assessment of the
weight and value of the individual interest escalates, the less
likely it is that mere administrative convenience and avoidance
of hearings or investigations will be sufficient to justify what
otherwise would appear to be irrational discriminations.")
(White, J., concurring).

Consequently, we conclude that defendants' asserted interest in
preserving the fiscal resources of state and local governments
for the exclusive use of enforcing civil rights laws intended to
protect suspect classes does not constitute a compelling state
interest.

Assuming that the state has some legitimate interest in
preserving fiscal resources for the enforcement of civil rights
laws intended to protect suspect classes, and recognizing that
combating discrimination against racial minorities and women may
constitute a compelling governmental interest, see Roberts v.
United States Jaycees, 468 U.S. 609, 623 (1984), the evidence
presented indicates that Amendment 2 is not necessary to achieve
these goals.FN9 The chief enforcement officer for Denver's
antidiscrimination ordinance testified that Denver's protection
of gay men, lesbians, and bisexuals has not prevented Denver
from protecting other groups or had any significant fiscal
impact on Denver. The chief of Wisconsin's Civil Rights Bureau
testified, based on twelve years experience with Wisconsin's
enforcement of its antidiscrimination laws, that protection of
gay, lesbian, and bisexual persons has not limited enforcement
of other parts of the Wisconsin statutes. The trial court found
that protecting gay men, lesbians, and bisexuals from
discrimination "has not increased costs or impaired the
enforcement of other civil rights statues or ordinances."FN10
This finding is supported by the record and substantiates the
conclusion that Amendment 2 is not necessary to serve the
governmental interest asserted.

Even if protecting gay men, lesbians, and bisexuals from
discrimination has some fiscal impact on the state, Amendment 2
is not narrowly tailored to serve that interest. Ensuring that
certain racial, gender, or ethnic groups receive undiminished
funds for civil rights enforcement could easily be accomplished
by ear-marking funds to cover the costs of such enforcement.
Under such an arrangement, any protection for gay men, lesbians,
and bisexuals would have to be funded from sources other than
funds reserved for the protection of the specified suspect
classes. The governmental interest in insuring adequate
resources for the enforcement of civil rights laws designed to
protect suspect classes from discrimination need not be
accomplished by denying the right of gay men, lesbians, and
bisexuals from participating equally in the political process.
Rather, this interest can be served in such way that no persons'
fundamental rights need be denied.

The defendants' second asserted governmental interest in support
of Amendment 2 is neither necessary nor narrowly tailored to
serve that interest.

C Defendants next argue that Amendment 2 "promotes the
compelling governmental interest of allowing the people
themselves to establish public social and moral norms."FN11 In
support of this proposition, defendants define two related norms
which are promoted by Amendment 2: Amendment 2 preserves
heterosexual families and heterosexual marriage and, more
generally, it sends the societal message condemning gay men,
lesbians, and bisexuals as immoral.

The only authority relied on to support the view that the
protection of morality constitutes a compelling governmental
interest is Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991).
Defendants cite the plurality opinion in Barnes for the
proposition that "the State's interest in protecting order and
morality is compelling; substantial; subordinating; paramount;
cogent; strong." Barnes does not support defendants' contention
that protecting public morality constitutes a compelling
governmental interest.

In Barnes, four Justices held that "the public indecency statute
order and morality." Barnes, 501 U.S. at 567 (emphasis added).
Justice Souter provided the fifth vote in Barnes, however he did
not rely "on the possible sufficiency of society's moral views
to justify the limitations at issue." Id. at 582 (Souter, J.,
concurring). Rather, he was of the opinion that the Indiana law
at issue (which prohibited completely nude dancing) was
permissible due to the "State's substantial interest in
combating the secondary effects of adult entertainment
establishments . ..." Id. None of the justices in Barnes
concluded that furthering public morality constitutes a
compelling state interest.

Consequently, defendants have cited no authority to support the
proposition that the promotion of public morality constitutes a
compelling governmental interest, and we are aware of none. At
the most, this interest is substantial. However, a substantial
governmental interest is not sufficient to render constitutional
a law which infringes on a fundamental right -- the interest
must be compelling. See Plyler v. Doe, 457 U.S 202, 217 (1982).

Furthermore, even recognizing the legitimacy of promoting public
morals as a governmental interest, it is clear to us that
Amendment 2 is not necessary to preserve heterosexual families,
marriage, or to express disapproval of gay men, lesbians, and
bisexuals. First, we reject defendants' suggestion that laws
prohibiting discrimination against gay men, lesbians, and
bisexuals will undermine marriages and heterosexual families
because married heterosexuals will "choose" to "become
homosexual" if discrimination against homosexuals is prohibited.
This assertion flies in the face of the empirical evidence
presented at trial on marriage and divorce rates. For example,
Wisconsin, the state with the oldest "gay rights" law in the
nation, enacted in 1982, reports that the divorce rate in
Wisconsin declined after the enactment of its antidiscrimination
statute. See Center for Health Statistics, Division of Health,
Wisconsin Dep't of Health & Social Services, 1990 Wisconsin
Vital Statistics Report, at p. 93, Figure 13 (divorce rates in
Wisconsin peak at 3.9 divorces per 1,000 population in 1981 and
decline thereafter to 3.6 divorces per 1,000 population in
1990).

Defendants also argue that the "endorsement" of homosexuality
undermines marriage and heterosexual families because
antidiscrimination laws implicitly endorse that conduct which is
deemed an improper basis for discrimination. We are of the opinion,
however, that antidiscrimination laws make no assumptions about the
morality of protected classes -- they simply recognize that certain
characteristics, be they moral or immoral -- have no relevance in
enumerated commercial contexts. For instance, it is difficult to
imagine how a law which prohibits employers from discriminating
against anyone engaged in off-duty, legal conduct such as smoking
tobacco, see Sect. 24-34402.5, 10A C.R.S. (1994 Supp.), constitutes an
endorsement of smoking.

In short, prohibitions on discrimination against gay men, lesbians,
and bisexuals do not imply an endorsement of any particular sexual
orientation or practices. To the contrary, prohibitions on
discrimination imply at most that termination of employment,
eviction or denial of rental opportunities, denial of insurance
coverage, and other sanctions in commercial contexts based on
sexual orientation are not appropriate ways of advancing even
valid moral beliefs.

Accordingly, we reject defendants' third asserted interest as a
basis for finding that Amendment 2 is constitutionally valid.

D Defendants contend that Amendment 2 "prevents government from
supporting the political objectives of a special interest group."
The only argument offered to substantiate the contention that this
is a compelling state interest is the following observation from
Lyng v. International Union, 485 U.S. 360, 369 (1988): "[A]t the
heart of the First Amendment is the notion that an individual
should be free to believe as he will, and that in a free society
one's beliefs should be shaped by his mind and his conscience
rather than coerced by the State." (quoting Abood v. Detroit Bd.
of Educ., 431 U.S. 209, 234-45 (1977)).

Defendants do not claim that the laws which Amendment 2 is intended
to prohibit constitute an infringement on the First Amendment
liberties identified in Lyng. Similarly, they do not take the
position that those laws amount to a "coerc[ion] by the State" to
believe anything. Rather, they assert that the laws which Amendment
2 is intended to prohibit constitute an implicit endorsement of
homosexuality and that this somehow vitiates the right of
individuals "to make their own judgments on this question . ..."
As explained above, however, we do not believe that
antidiscrimination laws constitute an endorsement of the
characteristics that are deemed an unlawful basis upon which to
discriminate against individuals. See infra pp. 25-26.

More significantly, defendants offer no authority to support the
rather remarkable proposition that the government has a compelling
interest in seeing that the state does not support the political
objectives of a "special interest group."  The state exists for the
very purpose of implementing the political objectives of the
governed so long as that can be done consistently with the
constitution. The fact that some political objectives are promoted
by "special interest groups" is utterly inconsequential. Indeed,
virtually any law could be regarded as a benefit to a "special
interest group."  If defendants' argument had any merit at all, the
compelling state interest defined would justify striking down almost
any legislative enactment imaginable. This is clearly not the law.
No citation of authority is needed to make the point.

We reject defendants' assertion that Amendment 2 is justified by
the compelling governmental interest in not having the state
endorse the political objectives of a special interest group.

E Defendants claim that Amendment 2 "serves to deter factionalism
through ensuring that decisions regarding special protections for
homosexuals and bisexuals are made at the highest level of
government."  More specifically, they argue that "Amendment 2 is
intended, not to restrain the competition of ideas," but "seeks to
ensure that the deeply divisive issue of homosexuality's place in
our society does not serve to fragment Colorado's body politic."
Amendment 2 accomplishes this end by eliminating "city-by-city and
county-by-county battles over this issue." We reject the argument
that the interest in deterring factionalism, as defined by
defendants, is compelling. Political debate, even if characterized
as "factionalism," is not an evil which the state has a legitimate
interest in deterring but rather, constitutes the foundation of
democracy. "[T]here is no significant state or public interest in
curtailing debate or discussion of a ballot measure."  Citizens
Against Rent Control v. City of Berkeley, 454 U.S. 290, 299 (1981).
See also Williams v. Rhodes, 393 U.S. 23, 32 (1968). We fail to see
how the state, which is charged with serving the will of the people,
can have any legitimate interest in preventing one side of a
controversial debate from pressing its case before governmental
bodies simply because it would prefer to avoid political controversy
or "factionalism."  See Police Dep't of Chicago v. Mosley, 408 U.S.
92, 96 (1972) ("government may not grant the use of a forum to people
whose views it finds acceptable, but deny use to those wishing to
express less favored or more controversial views").

In support of the asserted compelling interest in deterring
factionalism, defendants rely on Storer v. Brown, 415 U.S. 724
(1974). Storer involved a state requirement that proponents of any
viewpoint resign from political parties and not run in those
parties' primaries if the proponents intend to run as independent
candidates. The purpose of this neutral election procedure was to
insure that independent candidates were more than merely sore losers
who, having lost one primary, ran as "independents" to satisfy
"short-range political goals, pique, or personal quarrel."  Id. at
735.

Neither Storer, nor any other case we are aware of supports the
proposition that there is a compelling governmental interest in
preventing divisive issues from being debated at all levels of
government by prohibiting one side of the debate from seeking
desirable legislation in those fora. We conclude that the interest
in deterring "factionalism" is not a compelling state interest.

F Defendants argue that each of the governmental interests, while
individually adequate to validate Amendment 2, "are especially so
when considered in the aggregate."  None of the interests
identified by the state is a necessary, compelling governmental
interest which Amendment 2 is narrowly tailored to advance.
Lumping them together as one grandiose (and rather illdefined)
interest makes them no more necessary, compelling, or narrowly
tailored. In this context, the whole is equal, and is as equally
deficient as the sum of its parts.

IV Defendants next argue that the provisions of Amendment 2 are
severable and that only those provisions pertaining to "sexual
orientation" should be stricken as unconstitutional: "Plaintiffs
have only challenged . ..the question of sexual orientation. They
have not claimed or made any suggestion that Amendment 2's
restrictions concerning homosexual or bisexual conduct, practices,
and relationships are in any way constitutionally suspect." In so
arguing, defendants not only mischaracterize plaintiffs' position,
but fundamentally misconstrue the intent of Amendment 2. In
Evans I, we held that Amendment 2 had been shown to a reasonable
probability to be unconstitutional on the grounds that it affected
"the fundamental right to participate equally in the political
process . ...by 'fencing out' an independently identifiable class
of persons .

recognized in Evans I was not limited to sexual orientation as
opposed to restrictions concerning homosexual or bisexual conduct,
practices, and relationships. To the contrary, it was based on the
fact that Amendment 2 sought to deny an independently identifiable
group's right to participate equally in the political process.

"Whether unconstitutional provisions are excised from an otherwise
sound law depends on two factors: (1) the autonomy of the portions
remaining after the defective provisions have been deleted and (2)
the intent of the enacting legislative body." Robertson v. City and
County of Denver, 874 P.2d 325, 335 (Colo. 1994) (quoting City of
Lakewood v. Colfax Unlimited Ass'n, Inc., 634 P.2d 52, 70 (Colo.
1981)).

We hold that the portions of Amendment 2 that would remain if only
the provision concerning sexual orientation were stricken are not
autonomous and thus, not severable. In addition to denying the
right of equal participation in the political process to a group
based on sexual orientation, Amendment 2 also is intended to deny
that same right to persons based on "homosexual, lesbian or
bisexual . ..conduct, practices or relationships . . .." Amendment
2 targets this class of persons based on four characteristics:
sexual orientation; conduct; practices, and relationships. Each
characteristic provides a potentially different way of identifying
that class of persons who are gay, lesbian, or bisexual. These four
characteristics are not truly severable from one another because
each provides nothing more than a different way of identifying the
same class of persons.

The fact that there is no constitutionally recognized right to
engage in homosexual sodomy, see Bowers v. Hardwick, 478 U.S. 186
(1986), is irrelevant. Amendment 2 by no stretch of the imagination
seeks to criminalize homosexual sodomy. While it is true that such
a law could be passed and found constitutional under the United
States' constitution, it does not follow from that fact that
denying the right of an identifiable group (who may or may not
engage in homosexual sodomy) to participate equally in the
political process is also constitutionally permissible. The
government's ability to criminalize certain conduct does not
justify a corresponding abatement of an independent fundamental
right.

V Last, defendants argue that even if Amendment 2 is in conflict
with the Fourteenth Amendment to the United States Constitution, it
is nevertheless a constitutionally valid exercise of the people's
reserved powers under the Tenth Amendment.FN12  In short, the
argument is that the power to amend the state constitution is
reserved to Colorado's voters under the Tenth Amendment, and even
if the voters amend the state constitution in such a way as to
violate the federal constitution, such an amendment is per se
valid.

In support of this argument, defendants rely on Gregory v.

Ashcroft, 501 U.S. 452 (1991). In Gregory, the Supreme Court held
that the Age Discrimination in Employment Act does not apply to
state court judges. In reaching this conclusion, the Court noted
that decisions concerning the necessary qualification of state
court judges "is a decision of the most fundamental sort for a
sovereign entity. Through the structure of its government and the
character of those who exercise government authority, a state
defines itself as a sovereign."  Id. at 460. The court concluded
that "Congressional interference with this decision of the people
of Missouri, defining their constitutional officers, would upset
the usual constitutional balance of federal and state powers."  Id.
(emphasis added).

Gregory applies only to cases involving federal interference with
the qualification of constitutional officers. See, e.g., Equal
Employment Opportunity Comm'n v. Massachusetts, 987 F.2d 64, 68-69
(1st Cir. 1993) (Gregory applies only when federal law interferes
with state's definition of policy-making officials'qualifications);
Tranello v. Frey, 962 F.2d 244, 249 (2d Cir. 1992) (same); May v.
Arkansas Forestry Comm'n, 993 F.2d 632,  63536 (8th Cir. 1993)
(same); Associated Builders & Contractors v.
Perry, 817 F. Supp. 49, 53 n.3 (E.D. Mich. 1992) (same).

States have no compelling interest in amending their constitution
in ways that violate fundamental federal rights. Reitman v. Mulkey,
387 U.S. 369 (1967) (no reserved power to make right to
discriminate a part of the state's basic charter); Lucas v.
Colorado Gen.Assembly, 377 U.S. 713, 736-37 (1964) ("A citizen's
constitutional rights can hardly be infringed simply because a
majority of the people choose that it be.").

We reject defendants' argument that Amendment 2 is a
constitutionally valid exercise of state power under the Tenth
Amendment.

VI The state has failed to establish that Amendment 2 is necessary
to serve any compelling governmental interest in a narrowly
tailored way. Amendment 2 is not severable and not a valid exercise
of state power under the Tenth Amendment. Accordingly, we affirm
the trial court's entry of a permanent injunction barring its
enforcement.

JUSTICE SCOTT concurs. JUSTICE ERICKSON dissents.

JUSTICE SCOTT concurring:

I agree with the majority and join in its opinion and judgment.
Amendment 2 is unconstitutional because it offends the Equal
Protection Clause of the Fourteenth Amendment of the United States
Constitution. I write separately, nevertheless, to suggest that
Amendment 2 impermissibly burdens the right "peaceably to assemble
and petition the government for redress of grievances," a right
guaranteed to every citizen. Hence, the district court's permanent
injunction should be upheld under the Privileges or Immunities
Clause of the Fourteenth Amendment.

I Citizenship, not the good graces of the electorate, is the
currency of our republican form of government. Over 130 years ago,
this nation was engaged in a great Civil War which tested our
constitutional form of government as has no other time in our
history. That great battle, joined to address issues of slavery and
race, actually resolved much more. History teaches us that, in
fact, our nation addressed a question of paramount importance:

whether any state may, by legislative enactment or popular
referendum, deny or refute the Union of the several states and
render asunder the bonds of our constitutional form of government.
Although answered at Appomatox, today we are called upon to answer,
if not resolve, that question once more.

The federal Constitution, as submitted to the various states,
created certain rights which the states cannot diminish. By joining
the Union, Colorado "cannot be viewed as a single, unconnected,
sovereign power, on [which] . ..no other restrictions are imposed
than may be found in its own Constitution."  Fletcher v. Peck, 10
U.S. (6 Cranch) 85, 135 (1810). Writing for the court in Fletcher,
Chief Justice Marshall opined that each state "is a part of a large
empire, . ..is a member of the American Union; and that Union has a
constitution, the supremacy of which all acknowledge, and which
imposes limits to . ..the several states, which none claim a right
to pass."  Id. Thus, within the limits of state sovreignty, most
important questions are decided by the electorate. However, those
matters in which the result intrudes upon a protected liberty or
fundamental right cannot be determined in the voting booth.

The framers originally recognized this potential for harm and
understood that not every issue can be resolved by the vote of a
majority. In The Federalist Papers, James Madison identified the
covenant of "a well constructed Union" as its promise to protect
and preserve inviolate certain rights of all citizens. The
Federalist No. 10, at 42 (J. Madison) (Wills 1982). Madison noted
that under other forms of government, "measures are too often
decided, not according to the rules of justice, and the rights of
the minor party; but by the superior force of an interested and
over-bearing majority."  Id. at 43. Madison further stated:

The interest of the man must be connected with the constitutional
rights of the place . ...If men were angels, no government would
be necessary. If angels were to govern men, neither external nor
internal controuls on government would be necessary. In framing a
government which is to be administered by men over men, the great
difficulty lies in this: You must first enable the government to
control the governed; and in the next place, oblige it to controul
itself.


It is of great importance in a republic, not only to guard the
society against the oppression of its rulers; but to guard one part
of the society against the injustice of the other part.

Id., No. 51, at 262 & 264. Appropriately, Madison suggested, the
"cure" rests in a republican form of government -- a Union in which
there is a "tendency to break and control the violence of faction."
Id., No. 10 at 42. The obligation to "guard one part of the society
against the injustice of the other part" exists whether the
oppressive act is the result of referendum or other state action.
Hence, every individual is promised full citizenship under a
written Constitution which, as Justice Harlan opined, "neither
knows nor tolerates classes among citizens." Plessy v. Ferguson,
163 U.S. 537, 559 (1895) (Harlan, J., dissenting).

Judge Robert Bork, addressing the same covenant, wrote of what he
referred to as the "Madisonian dilemma," stating:

The United States was founded as a Madisonian system, which means
that it contains two opposing principles that must be continually
reconciled. The first principle is  self government, which means
that in wide areas of life majorities
are entitled to rule, if they wish, simply because they are
majorities. The second is that there are nonetheless some things
majorities must not do to minorities, some areas of life in which
the individual must be free of majority rule. The dilemma is that
neither majorities nor minorities can be trusted to define the
proper spheres of democratic authority and individual liberty. To
place that power in one or the other would risk either tyranny by
the majority or tyranny by the minority.

Robert H. Bork, The Tempting of America: The Political Seduction of
the Law 139 (1990) (hereinafter "Bork"). Such a dilemma can only be
resolved by resort to a neutral written principal, the
Constitution. We should look first to the text and to the
understanding manifested in the words used by the framers.
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (let the
end be "within the scope of the constitution, and all means which
are appropriate . ..which are not prohibited, but consist with the
letter and spirit of the constitution, are constitutional");
Colorado Ass'n of Public Employees v. Lamm, 677 P.2d 1350, 1353
(Colo. 1984) ("Where the language of the constitution is plain and
its meaning clear, that language must be declared and enforced as
written."); see also Bork at 145 ("If the Constitution is law,
then presumably, like all other law, the meaning the lawmakers
intended is as binding upon judges as it is upon legislatures and
executives."). Where the words of the Constitution are
unambiguous, we need not look further.

II A Section 1 of the Fourteenth Amendment of the United States
Constitution declares: "All persons born or naturalized in the
United States and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States . ..."  U.S. Const.
amend XIV, section 1.FN13  The Fourteenth Amendment, in section 1,
made state citizenship derivative of national citizenship and
transferred to the federal government a portion of each state's
control over civil and political rights.FN14 By the force of an
unfortunate history and a refusal to rely upon the plain text of
the constitution, our Fourteenth Amendment jurisprudence has
resulted in a Privileges or Immunities Clause that has been
eclipsed by the Equal Protection and Due Process Clauses. As a
consequence, no important line of decision rests solely on the
Privileges or Immunities Clause. Early on, in fact, the original
understanding was virtually written out of the Constitution by the
United States Supreme Court in the  SlaughterHouse Cases, 83 U.S.
(16 Wall.) 36 (1873).

In the Slaughter-House Cases, decided in 1873, a majority of the
Court acknowledged the Privileges or Immunities Clause of the
Fourteenth Amendment, but limited its effects to those rights
earlier existing under Article IV, without recognizing the
creation of a new national citizenship. In his opinion for the
Court in Slaughter-House Cases, Justice Miller declared that the
rights conferred by national citizenship were those "which owe
their existence to the Federal government, its National character,
its Constitution, or its laws."FN15  83 U.S. (16 Wall.) at 79. A
review of the legislative history, however, will not permit such
an ambivalent view.FN16  The statements of the framers of the
Fourteenth Amendment, Senator Howard and Representative Bingham,
confirm that the Privileges or Immunities Clause was originally
intended to confer and make inviolate certain minimal rights
embodied in national citizenship.FN17 B The Fourteenth Amendment
Privileges or Immunities Clause was patterned after a similar
clause in Article IV, Section 2.FN18 The Fourteenth Amendment
Clause was thought by its framers to be one of the central
elements of section 1. Cong. Globe, 39th Cong., 1st Sess., part 3,
p. 2765 (1866) ("This is the first clause, and I regard it as very
important.") (statement of Senator Howard); see generally John H.
Ely, Democracy and Distrust 22 (1980) (hereinafter "Ely"); John
Harrison, Reconstructing the Privileges or Immunities Clause, 101
Yale L.J. 1385 (1992).

The Article IV Privileges and Immunities Clause imposes substantive
limits upon the states. Corfield v. Coryell, 6 F. Cas. 546 (No.
3230) (C.C.E.D.Pa. 1825). In Corfield, Justice Washington held that
this clause protected against state action the privileges "which
are, in their very nature, fundamental; which belong, of right, to
the citizens of all free governments."FN19  Corfield, 6 F. Cas. at
551. Washington went on to state:

What these fundamental privileges are, it would perhaps be more
tedious than difficult to enumerate. They may, however, be all
comprehended under the following general heads: Protection by the
government; the enjoyment of life and liberty, with the right to
acquire and possess property of every kind, and to pursue and
obtain happiness and safety; subject nevertheless to such
restraints as the government may justly prescribe for the general
good of the whole.

Id. at 551-52.

It was this opinion which became the pole star for Representative
Bingham and Senator Howard, the framers of the Fourteenth Amendment.
Presenting the Fourteenth Amendment to the Senate, Senator Howard
disclosed "the views and the motives which influenced that
committee," stating:

To [the privileges and immunities listed in Corfield], whatever
they may be -- for they are not and cannot be fully defined in
their entire extent and precise nature -- to these should be added
the personal rights guarantied and secured by the first eight
amendments of the Constitution; such as the freedom of speech and
of the press; the right of the people peaceably to assemble and
petition the Government for a redress of grievances, a right
appertaining to each and all the people; the right to keep and to
bear arms; the right to be exempted from the quartering of
soldiers in a house without the consent of the owner; the right to
be exempt from unreasonable searches and seizures, and from any
search and seizure except by virtue of a warrant issued upon a
formal oath or affidavit; the right of an accused person to be
informed of the nature of the accusation against him, and his
right to be tried by an impartial jury of the vicinage; and also
the right to be secure against excessive bail and against cruel
and unusual punishments.

decision of our courts and the present settled doctrine is, that
all these immunities, privileges, rights, thus guarantied by the
Constitution or recognized by it, are secured to the citizen solely
as a citizen of the United States and as a party in their courts. ..
therefore, to restrain the power of the States and compel them at
all times to respect these great fundamental guarantees.

Cong. Globe, 39th Cong., 1st Sess., part 3, pp. 2765-66 (1866)
(emphasis added).

Senator Howard's list of privileges or immunities, which
incorporated Corfield, was representative rather than exhaustive.
No case has ever attempted to identify the totality of implied
federal rights guaranteed by the Privileges or Immunities clause.
However, in Twining v. New Jersey, 211 U.S. 78 (1908), the Supreme
Court did provide a list of privileges or immunities which it
ecognized: (1) the right to pass freely from state to state;FN20
(2) the right to petition Congress for redress of grievances; (3)
the right to vote for national officers; (4) the right to enter
the public lands; (5) the right to be protected against violence
while in the lawful custody of a United States Marshal; and (6)
the right to inform United States authorities of violation of its
laws. Twining, 211 U.S. at 97. These rights of national
citizenship receive absolute protection in the sense that the
states never could have a legitimate interest in terminating
completely any of these rights. Rotunda & Nowac, Treatise on
Constitutional Law 351 (2d ed. 1992).

III The United States Supreme Court has repeatedly held that the
right to vote is fundamental to the rights of citizenship and to
a free and democratic society. Burson v. Freeman, 112 S. Ct.
1846, 1859 (1992); Reynolds v. Sims, 377 U.S. 533, 561-62
(1963); Yick Wo v. Hopkins, 118 U.S. 356, 371 (1886). In Evans
I, we held the right to participate equally in the political
process to be a fundamental right. Evans v. Romer, 854 P.2d
1270, 1282 (Colo. 1993).FN21 By "participate equally," although
not assuring any political result, we did contemplate the right
of the people peaceably to assemble andpetition the government
for a redress of grievances. This right to participate, an
attribute of the new national citizenship, was meant by the
framers of the Fourteenth Amendment to be a personal right
guaranteed and secured by the Privileges or Immunities Clause.
See Cong. Globe, 39th Cong., 1st Sess., part 3, pp. 2765 -66
(1866).

It should be axiomatic that the right peaceably to assemble and
petition government implies the ability of the duly elected
representatives to respond, if so persuaded or predisposed. Yet,
if enforced, Amendment 2 provides that the state, acting
"through any of its branches or departments, or any of its
agencies, political subdivisions, municipalities or school
districts," shall not "enact, adopt or enforce any statute,
regulation, ordinance or policy" granting to citizens a "claim
of discrimination" based on homosexual or lesbian status or
sexual orientation. Because it would prevent the General
Assembly or other legislative bodies from enacting or adopting
certain new laws and bar the executive department and its
agencies from enforcing existing laws, Amendment 2 effectively
denies the right to petition or participate in the political
process by voiding, ab initio, redress from discrimination. Like
the right to vote which assumes the right to have one's vote
counted, the right peaceably to assemble and petition is
meaningless if by law government is powerless to act.

IV Courts have been reluctant to develop a working
constitutional analysis under the Privileges or Immunities
Clause since the Slaughter-House Cases, and, unfortunately, have
instead built upon the Equal Protection Clause and Due Process
Clause. The Equal Protection Clause, burdened by a history and
analysis beyond this context,FN22 is not the most appropriate of
the Fourteenth Amendment provisions for securing the right to
participate equally in the political process and yet it is the
primary mode of analysis relied upon by the majority in this
case.FN23 Certainly all must now agree that the Fourteenth
Amendment sought to protect citizens from oppression by state
government. The Equal Protection Clause of that amendment
mandates that rights afforded to some are granted equally to
all. See Steven J. Heyman, The First Duty of Government:
Protection, Liberty and the Fourteenth Amendment, 41 Duke L.J.
507 (1991). From time to time the acts of government intervene
in the lives of its citizens.FN24 Under the Equal Protection
Doctrine, such government intervention is subjected to review,
applying at least one of three standards: strict scrutiny,
intermediate review, or rational basis analysis. The applicable
standard of review to be applied depends upon the
characteristics or attributes of the citizens involved. Under
the Equal Protection Doctrine, when such governmental
intervention occurs, such as with the enactment of Amendment 2
in this case, regardless of the standard applied, it is
contemplated that certain abridgements of even fundamental
rights are acceptable. For example, under the strict scrutiny
test, the most exacting standard and that applied by the
majority, state action is "constitutionally permissible [] if it
is 'necessary to promote a compelling state interest,' and [the
state] does so in the least restrictive manner possible." Maj.
op. at 10 (citations omitted) (emphasis in original).

Unlike the Equal Protection Clause, the Privileges or Immunities
Clause guarantees citizens that certain fundamental rights of
national citizenship are inviolate, absent due process.FN25 The
syntax of the Fourteenth Amendment Clause seems inescapably that
of substantive entitlement. According to Ely, "the slightest
attention to language will indicate that it is the Equal
Protection Clause that follows the command of equality strategy,
while the Privileges or Immunities Clause proceeds by purporting
to extend to everyone a set of entitlements." Ely at 24. The
importance of the Privileges or Immunities Clause is that it
does not require varying standards of review and that its
protections are extended to every citizen.

V Under Amendment 2, the rights of citizens "peaceably to
assemble and petition the government for a redress of
grievances" so as to participate freely and equally in the
political process are compromised in a manner prohibited by the
Fourteenth Amendment. Because these political rights are
fundamental and inherent in national citizenship they are
protected by the Privileges or Immunities Clause. Accordingly, I
concur.

JUSTICE ERICKSON dissenting:

I respectfully dissent. In Evans v. Romer, 854 P.2d 1270 (Colo.)
(Evans I), cert. denied, 114 S. Ct. 419 (1993), the majority
crafted a new fundamental right that had never been recognized
by the United States Supreme Court or by any court other than a
federal district court in Ohio that relied on Evans I.
Ironically, judicial review of Amendment 2 has accomplished
exactly what the voters who passed Amendment 2 sought to prevent
-- the majority has effectively created a heightened protection
for homosexuals, lesbians, and bisexuals.

In establishing what is essentially a new substantive due
process right disguised as a previously unrecognized
"fundamental right," the majority disregarded the warnings of
Chief Justice Burger, who stated in his dissent to Plyler v.
Doe, 457 U.S. 202, 244 (1982): "If ever a court was guilty of an
unabashedly result-oriented approach, this case is a prime
example." Chief Justice Burger stated:

Were it our business to set the Nation's social policy, I would
agree without hesitation that it is senseless for an enlightened
society to deprive any children -- including illegal aliens --
of an elementary education. ...However, the Constitution does
not constitute us as "Platonic Guardians" nor does it vest in
this Court the authority to strike down laws because they do not
meet our standards of desirable social policy, "wisdom," or
"common sense." We trespass on the assigned function of the
political branches under our structure of limited and separated
powers when we assume a policymaking role as the Court does
today.

Id. at 242 (citations omitted).

The majority opinion has overlooked a crucial aspect of the case
before us: we are not evaluating an act of the legislature or
pronouncement of the executive -- we are reviewing a
constitutional amendment adopted by the people of the State of
Colorado. While there are certainly some initiated
constitutional amendments that a majority of the electorate may
attempt to visit on a minority that will not pass constitutional
scrutiny, we must not ignore the fact that we are reviewing the
expressed will of the citizens of this state.

In Evans I, we remanded the case to the district court to
determine whether the preliminary injunction sustained by a
majority of this court should be made permanent. The district
court, following Evans I with great precision, made extensive
findings and made the preliminary injunction permanent.
Nevertheless, people of homosexual, lesbian, or bisexual
orientation have never been adjudicated to be a protected class
and the right to participate equally in the political process
has never been determined, apart from Evans I, to be a
fundamental right. Accordingly, I would employ a rational
relation standard to Amendment 2 and vacate the permanent
injunction. For the reasons set forth in my dissent to Evans I,
and for the reasons set forth below, I respectfully dissent.

I The majority relies on Evans I and applies the strict scrutiny
standard of review to Amendment 2 because it holds that the
Equal Protection Clause of the United States Constitution
guarantees the fundamental right to participate equally in the
political process. Maj. op. at 4; Evans I, 854 P.2d at 1276.
Evans I established this standard of review by assembling
several United States Supreme Court decisions and interpreting
their collective teachings as implying a new fundamental right.
See Evans I, 854 P.2d at 1276 (citing voting cases, ballot
access cases, and "cases involving attempts to limit the ability
of certain groups to have desired legislation implemented
through the normal political processes"). In my view, no
fundamental right or suspect class is implicated by Amendment 2,
and therefore the standard of judicial scrutiny applied by the
majority is erroneous.

A The majority in Evans I extensively reviewed many United
States Supreme Court decisions to reach its conclusion, and
emphasized a line of cases relating to citizen participation in
the political process. See Washington v. Seattle Sch. Dist. No.
1, 458 U.S. 457 (1982); Gordon v. Lance, 403 U.S. 1 (1971);
Hunter v. Erickson, 393 U.S. 385 (1969). The majority in Evans I
interpreted these cases to create the fundamental right to
participate equally in the political process. Properly
understood, however, these cases involve suspect classifications
and not the alleged fundamental right to participate equally in
the political process.

In Hunter v. Erickson, 393 U.S. 385 (1969), the United States
Supreme Court addressed a violation of the Equal Protection
Clause of the federal constitution. Hunter involved a city
charter amendment that repealed a racial anti-discrimination
ordinance and required voter action before such an ordinance
could be enacted. Id. at 387. Although Hunter involved the
political process, the Court invalidated the amendment because
it created an unjustified distinction based on race. The Court
held:

Because the core of the Fourteenth Amendment is the prevention
of meaningful and unjustified official distinctions based on
race, racial classifications are "constitutionally suspect," and
subject to the "most rigid scrutiny." They "bear a far heavier
burden of justification" than other classifications.

Id. at 391-92 (citations omitted). Courts and scholars reviewing
Hunter have recognized that the holding was predicated on an
unconstitutional racial classification. See Tyler v. Vickery,
517 F.2d 1089, 1099 (5th Cir. 1975) (stating that Hunter struck
down an amendment that was based on a racial classification),
cert. denied, 426 U.S. 940 (1976); Lee v. Nyquist, 318 F. Supp.
710, 718 (W.D.N.Y. 1970) ("The principle of Hunter is that the
state creates an `explicitly racial classification' whenever it
differentiates between the treatment of problems involving
racial matters and that afforded other problems in the same
area."), aff'd, 402 U.S. 935 (1971); Citizens for Responsible
Behavior v. Superior Court, 2 Cal. Rptr. 2d 648, 655 (Cal. App.
4 Dist. 1991) (stating that "Hunter was a `strict scrutiny' case
in which the law invalidly classified the affected parties on
the basis of traditionally suspect characteristics"); Michael
Klarman, An Interpretative History of Modern Equal Protection,
90 Mich. L. Rev. 213, 314 (1991) (noting that in place of a
political process theory of equal protection review, racial
classifications are and should be considered presumptively
unconstitutional because they should be irrelevant to decision
-making); Robert H. Beinfield, Note, The Hunter Doctrine: An
Equal Protection Theory that Threatens Democracy, 38 Vand. L.
Rev. 397, 405 (1985) (suggesting that the decision in Hunter is
based on racial classifications).

In Washington v. Seattle School District No. 1, 458 U.S. 457
(1982), the Court applied Hunter and struck down a state-wide
initiative to terminate the use of busing to achieve racial
integration in the public schools. In finding that the
initiative violated the Equal Protection Clause, the Supreme
Court held:

[T]he political majority may generally restructure the political
process to place obstacles in the path of everyone seeking to
secure the benefits of governmental action. But a different
analysis is required when the State allocates governmental power
nonneutrally, by explicitly using the racial nature of a
decision to determine the decisionmaking process. State action
of this kind, the Court said, "places special burdens on racial
minorities within the governmental process," thereby "making it
more difficult for certain racial and religious minorities than
for other members of the community to achieve legislation that
is in their interest." Id. at 470 (emphasis in original)
(citations omitted). The Court thus did not approve of
"distinctions based on race" and struck down the initiative
because it would have created additional burdens for a class of
citizens who have had historical difficulty in changing the
political process. Id. at 486. See Metro Broadcasting, Inc. v.
Federal Communications Comm'n, 497 U.S. 547, 563-65 (1990)
(holding that members of a traditionally suspect class merit
special protection); City of Richmond v. J.A. Croson Co., 488
U.S. 469, 490-91 (1989) (same); United States v. Carolene
Products Co., 304 U.S. 144, 152-53 n.4 (1938) (noting that
special protection may be offered for "discrete and insular"
minority groups).

 A similar issue was addressed in Crawford v. Board of
Education, 458 U.S. 527 (1982), which was announced on the same
day as Washington. In Crawford, the Court upheld a state
constitutional amendment that prohibited state courts from
ordering mandatory student assignment or transportation. The
Court stated that if the constitutional amendment employed a
racial classification such as the classification in Hunter, the
Court would apply the strict scrutiny standard of review, but
found Hunter inapplicable because the amendment at issue did not
"embody a racial classification." Crawford, 458 U.S. at 536-37.

The fact that the fundamental right created by the majority in
Evans I has never been recognized by the Supreme Court is
evident in two cases, James v. Valtierra, 402 U.S. 137 (1971),
and Gordon v. Lance, 403 U.S. 1 (1971). In James and Gordon, the
Court could have used the fundamental right found in Evans I and
applied strict scrutiny review to strike down constitutional
measures. Instead, in both cases, the Court upheld the
provisions and refused to apply the strict scrutiny standard
enunciated in Hunter.

In James, the Supreme Court upheld the validity of a California
constitutional measure that prohibited state public bodies from
developing, constructing, or acquiring low-income housing
projects until voters approved of the project in a referendum.
Thus, the citizens singled out in James were low-income people
who would qualify for low-rent housing and therefore the Court
did not apply strict scrutiny. The Supreme Court said:

Unlike the case before us, Hunter rested on the conclusion that
Akron's referendum law denied equal protection by placing
"special burdens on racial minorities within the governmental
process." . .. Unlike the Akron referendum provision, it cannot
be said that California's Article XXXIV rests on "distinctions
based on race." . ..The present case could be affirmed only by
extending Hunter, and this we decline to do.

James, 402 U.S. at 140-41.

Similarly, in Gordon, the plaintiffs challenged West Virginia's
constitutional provision that required a sixty-percent approval
for any bonded indebtedness incurred by the political
subdivisions of the state. As in James, the Supreme Court did
not apply the strict scrutiny standard of review because:

Unlike the restrictions in our previous cases, the West Virginia
Constitution singles out no "discrete and insular minority" for
special treatment. ...We are not, therefore, presented with a
case like Hunter, . ..in which fair housing legislation alone
was subject to an automatic referendum requirement. The class
singled out in Hunter was clear -- "those who would benefit from
laws barring racial, religious, or ancestral discriminations."
Gordon, 403 U.S. at 5. James and Gordon demonstrate that strict
scrutiny should not be applied to review a restriction on the
political process unless the restriction singles out a discrete
and insular minority.FN26 The Supreme Court of the United States
has never held, however, that the right to participate equally
in the political process is a fundamental right.

B The development of fundamental rights in our jurisprudence has
never been a matter for ad hoc determination. See Palko v.
Connecticut, 302 U.S. 319, 325 (1937) (stating that fundamental
rights are those that are "implicit in the concept of ordered
liberty," such that "neither liberty nor justice would exist if
[they] were sacrificed"); Moore v. East Cleveland, 431 U.S. 494,
503 (1977) (noting that fundamental rights are liberties that
are "deeply rooted in this Nation's history and tradition"); see
also Bowers v. Hardwick, 478 U.S 186, 191-92 (1986); Griswold v.
Connecticut, 381 U.S. 479, 481-86 (1965). Fundamental rights
must be explicitly or implicitly guaranteed by the United States
Constitution. San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 33-34 (1973). Among the fundamental rights delineated by
the Supreme Court are the right to vote, the right to interstate
travel, the right to privacy, and the guarantees contained in
the First Amendment. See Police Dep't of Chicago v. Mosley, 408
U.S. 92, 101 (1972) (First Amendment); Shapiro v. Thompson, 394
U.S. 618, 634 (1969) (interstate travel); Harper v. Virginia
State Bd. of Elections, 383 U.S. 663, 670 (1966) (voting);
Griswold, 381 U.S. at 484 (privacy).

The Court has been reluctant to recognize new rights as
fundamental. See Bowers, 478 U.S. at 195 ("There should be,
therefore, great resistance to expand the substantive reach of
[the Due Process Clauses], particularly if it requires
redefining the category of rights deemed to be fundamental.");
Geoffrey Stone, et al., Constitutional Law, at 831 (1986)
(stating that the Court "has essentially frozen the list of
`fundamental' interests"). The Court has refused to declare
education, housing, the right to refuse medical treatment,
welfare payments, or governmental employment to be fundamental
rights worthy of heightened constitutional protection. See
Cruzan by Cruzan v. Director, Missouri Dep't of Health, 497 U.S.
261, 280 (1990) (right to refuse medical treatment);
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312
(1976) (employment); Rodriguez, 411 U.S. at 35 (education);
Dandridge v. Williams, 397 U.S. 471, 485 (1970) (welfare). Never
before has any court recognized the right to participate equally
in the political process as a fundamental right, the curtailing
of which warrants strict judicial scrutiny.FN27 "It is not the
province of this Court to create substantive constitutional
rights in the name of guaranteeing equal protection of the
laws." Rodriguez, 397 U.S. at 33.

It is crucial to note, however, that even though equal
participation in the political process does not merit strict
scrutiny analysis, the United States Constitution offers
protection for those who may be adversely affected by
legislation. When individuals or groups are singled out, as they
have been here, they may still be protected by the Due Process
Clauses or the Equal Protection Clause.FN28 In this case, the
class of citizens is protected by the Equal Protection Clause.
Accordingly, Amendment 2 must be struck down only if its
challengers can demonstrate that the legislation is not
rationally related to a legitimate state interest.

II During oral argument before this court, counsel for the
plaintiffs-appellees asserted that even if strict scrutiny
review were inappropriate, we should analyze Amendment 2 under a
rational basis standard of review. Counsel noted that in Heller
v. Doe by Doe, 113 S. Ct. 2637, 2642 (1993), the Supreme Court
did not engage in strict scrutiny review because it was not
properly preserved at the lower levels and therefore urged this
court not to preclude rational basis review by ruling merely
under strict scrutiny standards. I find counsel's contention
persuasive and therefore address Amendment 2 under a rational
relation standard.

A In reviewing an act of the legislature or a voter-mandated
constitutional amendment that creates a classification involving
neither a fundamental right nor suspect classes, a court will
review the classification under the "rational basis" standard of
review. See Heller, 113 S. Ct. at 2642; Kadrmas v. Dickinson
Public Sch., 487 U.S. 450, 462 (1988). Under the rational basis
standard of review, the classification will be "upheld against
equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis
for the classification." Federal Communications Comm'n v. Beach
Communication, Inc., 113 S. Ct. 2096, 2101 (1993); see also
Sullivan v. Stroop, 496 U.S. 478, 485 (1990); Vance v. Bradley,
440 U.S. 93, 111 (1979); Dandridge, 397 U.S. at 484-85. "Such a
classification cannot run afoul of the Equal Protection Clause
if there is a rational relationship between the disparity of
treatment and some legitimate governmental purpose." Heller, 113
S. Ct. at 2642; see also Nordlinger v. Hahn, 112 S. Ct. 2326,
2331-32 (1992).

The inquiry into whether there is a rational basis for the
classification, however, does not authorize "the judiciary [to]
sit as a superlegislature to judge the wisdom or desirability of
legislative policy determinations." New Orleans v. Dukes, 427
U.S. 297, 303 (1976) (per curiam). Instead, a classification
that involves neither suspect classes nor fundamental rights is
accorded a strong presumption of validity. Beach Communication,
113 S. Ct. at 2098; Hodel v. Indiana, 452 U.S. 314, 331-332
(1981); Murgia, 427 U.S. at 314.

Because of the strong presumption of validity, the purpose or
rationale behind the legislation need not be articulated at any
time. Heller, 113 S. Ct. at 2642; Nordlinger, 112 S. Ct. at
2334; Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528
(1959). Additionally, the party challenging the classification
bears the burden of "negat[ing] every conceivable basis which
might support it" whether or not it is supported by the record.
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364
(1973); see also Heller, 113 S. Ct. at 2643.

In an effort to ensure that rational basis review does not
become a "license for courts to judge the wisdom, fairness, or
logic of legislative choices," Beach Communication, 113 S. Ct.
at 2101, the reasons articulated are given great deference. See
Id. at 2098 ("[A] legislative choice is not subject to courtroom
factfinding and may be based on rational speculation unsupported
by evidence or empirical data."); Gregory v. Ashcroft, 501 U.S.
452, 470-71 (1991) ("In cases where a classification burdens
neither a suspect group nor a fundamental interest, `courts are
quite reluctant to overturn governmental action on the ground
that it denies equal protection of the laws.'") (citation
omitted); Paris Adult Theater I v. Slaton, 413 U.S. 49, 62
(1973) ("The fact that a congressional directive reflects
unprovable assumptions about what is good for the people,
including imponderable aesthetic assumptions, is not a
sufficient reason to find that statute unconstitutional.");
Dandridge, 397 U.S. at 485 (noting that a classification does
not fail because "in practice it results in some inequality")
(citation omitted); Metropolis Theatre Co. v. City of Chicago,
228 U.S. 61, 69-70 (1913) ("The problems of government are
practical ones and may justify, if they do not require, rough
accommodations -- illogical, it may be, and unscientific."); see
also Laurence Tribe, American Constitutional Law 1440 (2d ed.
1988) ("Within very broad limits, courts have traditionally
exhibited extreme deference to the legislative definition of
`the general good,' either out of judicial sympathy for the
difficulties of the legislative process, or out of a belief in
judicial restraint generally."); John Nowak, Ronald Rotunda,
Nelson Young, Constitutional Law 596 (2d ed. 1983) ("A majority
of the justices today will uphold governmental classifications
under this standard unless no reasonably conceivable set of
facts could establish a rational relationship between the
classification and an arguably legitimate end of government.");
Mark Strasser, Suspect Classes and Suspect Classifications: On
Discriminating, Unwittingly or Otherwise, 64 Temp. L. Rev. 937,
941 (1991) ("The rational basis test is notoriously weak. When
applied, there is `little doubt about the outcome; the
challenged legislation is always upheld.'") (quoting Murgia, 427
U.S. at 319 (Marshall, J. dissenting)); but see City of Cleburne
v. Cleburne Living Center, 473 U.S. 432, 447 (1985) (striking
down on rational basis review a zoning law that prohibited
mentally retarded individuals from residing in certain areas of
town because the law was based on the "bare . ..desire to harm a
politically unpopular group") (citation omitted). This is so
because:

The Constitution presumes that, absent some reason to infer
antipathy, even improvident decisions will eventually be rectified
by the democratic process and that judicial intervention is
generally unwarranted no matter how unwisely we may think a
political branch has acted. Thus, we will not overturn such a
statute unless the varying treatment of different groups or persons
is so unrelated to the achievement of any combination of legitimate
purposes that we can only conclude that the legislature's actions
were irrational.

Vance, 440 U.S. at 97 (footnote omitted). Although the purposes and
rationale of a voter initiative are even more difficult to assess
than legislative pronouncements, initiatives passed by the citizens
of the state which contain classifications not related to
fundamental rights or suspect classes are also given deference. See
Gregory, 501 U.S. at 470 (applying the rational basis standard to a
constitutional restriction enacted by the people); MSM Farms, Inc.
v. Spire, 927 F.2d 330, 333 (8th Cir. 1991) (applying a rational
basis test to measures adopted through a referendum).

It is the prerogative of the people of the State of Colorado, and
not this or any other court, to weigh the evidence and determine the
wisdom and utility of the purposes behind a measure adopted through
the initiative process. See Minnesota v. Clover Leaf Creamery Co.,
449 U.S. 456, 469 (1981) (stating that the Minnesota Supreme Court
erred in substituting its judgment for that of the legislature).
Thus, whether in fact Amendment 2 will meet its objectives is not
the relevant question: the Equal Protection Clause is satisfied if
the people of Colorado could have rationally decided that
prohibiting homosexuals, lesbians, and bisexuals from enacting
certain legislation might further a legitimate interest. Hawaii
Housing Auth. v. Midkiff, 467 U.S. 229, 242 (1984); Clover Leaf
Creamery, 449 U.S. at 466.

Amendment 2 was put to a plebiscite by initiative petitions and
eventually won voter approval by 813,966 votes to 710,151 votes.
Because Amendment 2 was a product of a vote of the citizens of
Colorado, no purpose or rationale for Amendment 2 was explicitly set
forth. See MSM Farms, 927 F.2d at 332 ("Because the law was adopted
through the initiative and referendum process, there is little
traditional legislative history regarding its purpose."). However,
the state has articulated several rationale in this court and in the
district court to establish that the interest behind Amendment 2 is
not only a rational interest but also a compelling state
interest.FN29 III Although only one legitimate state interest
rationally related to the state's goals for a constitutional
amendment is necessary, the state has set forth several. The
district court found that two rationale -- the promotion of
religious freedom and the promotion of family privacy --
demonstrated compelling state interests, although it found that the
means for achieving the interests were not narrowly tailored to
achieve the objectives.FN30  In my view, there are at least three
interests that satisfy the constitutional standard and those
asserting the invalidity of Amendment 2 have not met their burden of
demonstrating that there is no rational basis for the constitutional
amendment.

A The state asserts that the rational basis of Amendment 2 is that
it prevents the government from interfering with religious privacy.
The root of the state's contention is that under ordinances
preempted by Amendment 2, individual landlords or employers,
including churches, who have profound religious objections to
homosexuality, would nonetheless be compelled to compromise those
convictions under threat of government sanctions. Thus, Amendment 2
prevents any political body from enacting legislation that would
hinder the right of individuals to choose who to rent to or who to
employ on religious grounds. The district court found that
"[p]reserving religious freedom is a compelling state interest" but
that Amendment 2 was "not narrowly drawn to achieve that purpose in
the least restrictive manner possible." Freedom of individuals to
practice and hold particular religious beliefs is among the highest
values in our society. See Murdock v. Pennsylvania, 319 U.S. 105,
115-17 (1943); Jones v. Opelika, 319 U.S. 103, 104 (1943); see also
Martin v Struthers, 319 U.S. 141, 149-50 (1943) (Murphy, J.,
concurring). It is not within the discretion of this or any court to
determine which beliefs are valid because "courts are not the
arbiters of scriptural interpretation."  United States v. Lee, 455
U.S. 252, 257 (1982). In fact, "religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in
order to merit [free exercise] protection."  Thomas v. Review Bd.,
450 U.S. 707, 714 (1981). Not only is it impermissible for courts to
determine the validity of religious practices and beliefs, but no
government official or body may delineate what is a "proper" form of
faith and require citizens to act in accordance with
government-mandated religious standards. See West Virginia State Bd.
of Educ. v. Barnette, 319 U.S. 624, 642 (1943) ("If there is any
fixed star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or
force citizens to confess by work or act their faith therein.").

Nevertheless, not all burdens on religion are unconstitutional. Lee,
455 U.S. at 257; Thomas, 450 U.S. at 718 (stating that "only those
interests of the highest order . .. can overbalance legitimate
claims to the free exercise of religion"). Even the highest values,
including religious freedom, must sometimes give way to the greater
public good. See Sherbert v. Verner, 374 U.S. 398, 403 (1963). Thus,
governmental actions that substantially burden a religious practice
must be justified by a compelling governmental interest. Employment
Div. v. Smith, 494 U.S. 872, 883 (1990).
In this case, the state asserts that Amendment 2 is an attempt to
protect religious freedom by precluding legislation that would
threaten sanctions against those who would refuse to employ or
rent to homosexuals, lesbians, and bisexuals. The state
indicates several examples of instances in which individuals or
groups were forced to set aside their religious beliefs based on
legislative enactments protecting homosexuals. In Aspen, for
example, section 13-98 of the sexual orientation ordinance
required churches to open their facilities to homosexual
organizations if the facilities were opened to any community
organization. Churches apparently could not refuse to hire
employees, including pastors or priests, on the basis of their
sexual orientation. Similarly, Title 12 of the Boulder Municipal
Code did not allow a church or religious organization with
deeply held moral and religious views on the subject of
homosexuality to refuse to hire someone based on his or her
sexual orientation.

In my view, the state has a legitimate interest in protecting
religious freedoms and Amendment 2 bears a rational relationship
to that interest.

B Although the district court found that the state did not have
a compelling interest in deterring "factionalism," or "political
fragmentation," the state does have a legitimate interest in
promoting state-wide uniformity and Amendment 2 is rationally
related to that interest.

Prohibiting local action on matters affecting the entire state
is advantageous inasmuch as the state has an interest in
uniformity of regulation:

The central inquiry implicit in the concept of pre-emption is
whether there should be statewide uniformity in the regulation
of specific conduct. If there is no need for statewide
uniformity, there is no need for state law to preempt local
power to regulate. . .This is the core of the preemption
question -- to consider, on the one hand, the need for statewide
uniformity of regulation of a specific type of conduct, and, on
the other hand, the need of local governments to be able to
respond to local, as distinguished from statewide problems.

Daniel R. Mandelker & Dawn C. Netsch, State and Local Government
in a Federal System 237 (1977); see also Osborne M. Reynolds,
Local Government Law 120 (1982) (stating that the critical
inquiry in the context of state preemption of local law is:

"[I]s this an area where it is desirable to have a single, all
-encompassing scheme of regulation, so that local laws -- not
just local laws that conflict with the state's, but any local
laws -- would unduly complicate the picture?"); Charles S.
Rhyne, The Law of Local Government Operations Sect. 19.11
(recognizing that preemption is rooted in the necessity of
statewide uniformity of regulation).

In determining what is a matter of statewide concern, this court
has not set forth a strict legal standard. Instead, we have
determined the nature of the concern on an ad hoc basis. See
Denver & Rio Grande Western R.R. Co. v. City & County of Denver,
673 P.2d 354, 358 (Colo. 1983). In City & County of Denver v.
State, 788 P.2d 764, 767 (Colo. 1990), we stated:

Although we have found it useful to employ the "local," "mixed,"
and "state-wide" categories in resolving conflicts between local
and state legislation, these legal categories should not be
mistaken for mutually exclusive or factually perfect
descriptions of the relevant interests of the state and local
governments. Those affairs which are municipal, mixed or of
statewide concern often imperceptibly merge.

State regulation is a matter of statewide concern in a broad
variety of contexts. See Robertson v. City & County of Denver,
874 P.2d 325, 350 (Colo. 1994) (Erickson, J., dissenting).

In this case, the state has a legitimate interest in promoting
Amendment 2 because it is a matter of statewide concern.
Amendment 2 involves a matter of statewide concern because the
public is deeply divided over the issue of homosexuality.FN31
In fact, civil rights has never been the type of concern
reserved exclusively for local governments.FN32 By adopting
Amendment 2, the people of the state have sought to ensure that
the government will act on a uniform basis. Several local
governments, such as Denver, Aspen, and Boulder enacted sexual
orientation laws, while others did not. By voting to approve
Amendment 2, the voters of Colorado indicated that they wanted a
statewide resolution of the issue that had formerly only been
locally regulated and subject to great debate. The citizens of
the state have a right to the initiative process which resolves
conflicts between municipal and local governments when the issue
is a matter of statewide concern and the process is not
repugnant to the constitution.FN33 The Supreme Court has noted
that "referendums demonstrate devotion to democracy, not to
bias, discrimination, or prejudice."FN34 James, 402 U.S. at
141.

In my view, the state has a legitimate interest in promoting
statewide uniformity in matters of statewide concern and
Amendment 2 bears a rational relationship to that interest.

C The state also contends that it has a legitimate interest in
allocating its resources. Specifically, the state suggests that
laws prohibited by Amendment 2 would drain the state's financial
and labor resources set aside and budgeted for the protection of
traditionally suspect classes and diminish respect for
traditional civil rights categories.

In this case, the testimony reflected that, although there was
no current statute that required the state to enforce civil
rights legislation on behalf of homosexuals, lesbians, and
bisexuals, any such statute would decrease the funding available
to enforce existing laws protecting traditionally suspect
classes.FN35 For example, the investigative arm of the Civil
Rights Commission has experienced steadily increasing demands
upon a shrinking budget. Two out of the last three years, the
Division has been unable to fulfill its part of a federally
funded work-share agreement.FN36 The Division received
complaints from the black community that claims were not being
thoroughly investigated and prosecuted. The state, therefore,
reasonably postulates that a law requiring the protection of an
additional group would further stretch scarce resources, and
Amendment 2 protects the civil rights enforcement for
traditionally suspect groups.FN37 Thus, the decision of the
people of the State of Colorado to allocate government resources
in a particular manner is a legitimate state interest in this
case. See Dukes, 427 U.S. at 303 (upholding a New Orleans
ordinance noting that states have wide latitude in regulating
their local economies); James, 402 U.S. at 143 (noting that a
referendum procedure "ensures that all the people of a community
will have a voice in a decision which may lead to large
expenditures of local governmental funds" and therefore found
that a referendum measure did not violate the Equal Protection
Clause).

Additionally, the state has a legitimate interest in ensuring
that the traditionally suspect classes remain respected. See
Crawford, 458 U.S. at 539 ("And certainly the purposes of the
Fourteenth Amendment would not be advanced by an interpretation
that discouraged the States from providing greater protection to
racial minorities."). Professor Joseph Broadus testified that
the addition of homosexuals to civil rights statutes or
ordinances would lessen the public's respect for historic civil
rights categories. Testimony also indicated that, unlike the
traditionally suspect classes, homosexuals, lesbians, and
bisexuals are a relatively politically powerful and privileged
special interest group. Indeed, former Civil Rights Commission
Chairman Ignacio Rodriguez testified that the inclusion of
homosexuals as a suspect class would represent a "drastic
departure" from the historical aims of the civil rights laws.

The State of Colorado, through entities such as the Colorado
Civil Rights Division, has attempted to further the interest in
remedying specific instances of sexual and racial discrimination
through existing civil rights laws and enforcement programs.
However, owing to the fiscal constraints which are inevitably a
part of public administration, unlimited funds are not available
for this purpose. Therefore, it is incumbent upon the state to
set priorities for its enforcement efforts. In this case, the
setting of priorities is a legitimate state interest and
Amendment 2 is rationally related to that interest.

IV In my view, the correct standard of judicial review of
Amendment 2 is a rational basis standard of review.
Additionally, the plaintiffs have not shown that Amendment 2 is
not rationally related to the state's legitimate interest in
protecting religious freedom, encouraging statewide uniformity
in the law, and allocating resources. Accordingly, I would
reverse the decision of the district court and vacate the
injunction. Therefore, I dissent.

FN1 The trial court concluded that plaintiffs had met the
threshold requirement of Rathke v. MacFarlane, 648 P.2d 648
(Colo. 1982), by demonstrating that enjoining the enforcement of
Amendment 2 was necessary to protect their right to equal
protection of the laws under the United States Constitution. The
trial court then determined that because Amendment 2 may burden
a fundamental constitutional right, its constitutionality must
be assessed by reference to the "strict scrutiny" standard of
review. The court concluded that under this standard, plaintiffs
had shown to a reasonable probability that Amendment 2 would be
demonstrated to be unconstitutional beyond a reasonable doubt at
a trial on the merits.

FN2 The state has not reasserted the sixth interest on appeal.

FN3 The court rejected plaintiffs' argument that gay men,
lesbians, and bisexuals should be found to be either a "suspect
class" or a "quasi-suspect class." The trial court rejected
this argument because it concluded that "[h]omosexuals fail to
meet the element of political powerlessness and therefore fail
to meet the elements [necessary] to be found a suspect class."
This ruling has not been appealed and thus, we do not address
it.

The trial court also declined plaintiffs' request to analyze the
constitutionality of Amendment 2 under the "rational basis
test." In so doing, it stated:

The Colorado Supreme Court has ruled that Amendment 2 invades a
fundamental right of an identifiable group and that the test to
be applied is the strict scrutiny test. The rational basis test
is to be used when there is no fundamental right or suspect
class involved. Therefore this court declines to apply a legally
inappropriate test to this case.

Plaintiffs have again argued to this court that Amendment 2 does
not pass constitutional muster under the less stringent rational
basis test. They argue that each of the state's purported
compelling interests are not rationally related to the enactment
of Amendment 2. Because we decline to revisit our holding in
Evans I, see infra Part II, and again conclude that Amendment 2
affects a fundamental right, its constitutionality must be
analyzed under the strict scrutiny standard of review. See
Plyler v. Doe, 457 U.S. 202, 217 (1982) ("laws that impinge upon
the exercise of a 'fundamental right' [require] the State to
demonstrate that its classification has been precisely tailored
to serve a compelling governmental interest").

FN4 After this court decided Evans I, a Federal District Court
enjoined the enforcement of a voter enacted amendment to the
Cincinnati, Ohio city charter almost identical to Amendment 2,
which prohibited the city from enacting any ordinance,
regulation, rule or policy which entitled gay men, lesbian or
bisexual individuals to minority or protected status. Equality
Foundation of Greater Cincinnati, Inc. v. City of Cincinnati,
838 F. Supp. 1235 (S.D. Ohio 1993) (Equality I). The court found
it highly likely that the right to participate equally in the
political process is a fundamental right, protected by the Equal
Protection Clause and requires strict judicial scrutiny on
review. The court concluded relevant Supreme Court precedent
supported the proposition that "[s]tates may not disadvantage
any identifiable group, whether a suspect category or not, by
making it more difficult to enact legislation on its behalf."
Id. at 1241 (citing Evans I, 854 P.2d 1270, 1281, 1283 (Colo.
1993); Gordon v. Lance, 403 U.S. 1, 7 (1971); Hunter v.
Erickson, 393 U.S. 385, 393 (1969)). After a trial on the
merits, the court made the injunction permanent holding inter
alia that the amendment violated the plaintiffs' fundamental
right to equal access to the political process. Equality
Foundation of Greater Cincinnati, Inc. v. City of Cincinnati,
Slip op. at 26, 1994 WL 442746 at *11 (S.D. Ohio 1994). The
court explained "any legislation that disadvantages an
independently identifiable group of people by making it more
difficult for that group to enact legislation in its behalf,
`fences' that group out of the political process, and thereby
violates their fundamental rights." Id. (citing Equality I, 838
F. Supp. at 1238-42; Evans I, 854 P.2d at 1282.).

FN5 We note at the outset that defendants argue that all of the
asserted compelling interests which support Amendment 2 are
narrowly tailored on the grounds that "there is absolutely no
other way that the people could further the common elements of
the various compelling interests but through the enactment of
Amendment 2." We do not specifically address this argument for
two reasons. First, as will be made clear below, none of the
interests identified by defendants are compelling. Second,
defendants never articulate what the "common elements of the
various compelling interests" are, and we are simply unable to
ascertain any specific "common elements" which all of those
interests share.

FN6 Nevertheless, the court held, "it is clear that free
exercise of religion as protected by the First Amendment is not
actionably infringed by applying to plaintiff a facially neutral
statute which merely proscribes marital status discrimination,
notwithstanding plaintiff's religious scruples against renting
to unmarried couples." Id. at 401. This conclusion was reached
based on the fact that "if prohibiting the exercise of religion
effect of a generally applicable and otherwise valid provision,
the First Amendment has not been offended." Id. at 400 (quoting
Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. at
878 (1990)).

FN7 We do not rule today on the adequacy of any religious
exemptions contained in existing antidiscrimination laws. The
question whether antidiscrimination laws violate the free
exercise clause of the First Amendment by prohibiting
discrimination based on marital status has recently been
addressed by two state supreme courts with mixed results. See
Attorney General v. Desilets, 636 N.E.2d 233 (Mass. 1994)
(Statutory mandate that landlords cannot discriminate against
cohabitating unmarried couples substantially burdened landlords'
sincerely held religious belief protected by the Massachusetts
state constitution. Case remanded to decide whether a compelling
governmental interest in eliminating such discrimination
justified the infringement); Swanner v. Anchorage Equal Rights
Comm'n, 874 P.2d 274 (Alaska 1994) (enforcement of facially
neutral fair housing laws did not violate a landlord's right to
free exercise of religion under either the state or federal
constitution).

FN8 The defendants' entire argument addressing the issue of
personal privacy constitutes a single paragraph. It reads:

The court below found that both religious liberty and familial
privacy are indeed compelling interests. However, the court
rejected the notion that personal privacy could be a compelling
interest, finding that the Defendants had addressed it only
"tangentially." This finding ignores testimony such as that
offered by Ann Ready of Madison, Wisconsin, who shared a house
with four other women, but refused to share it with a lesbian.
She stated that she "had rejected several heterosexual males for
the same reason, namely the potential for [unwanted] physical,
sexual attraction." Ms. Ready was subsequently found to have
violated both municipal and state sexual orientation laws. That
preventing this sort of intrusion into personal matters of the
utmost privacy is a compelling interest, should be obvious.

(citations to the record omitted).

FN9 In this regard, it is significant to note that Colorado law
currently proscribes discrimination against persons who are not
suspect classes, including discrimination based on age, Sect. 24
-34402(1)(a), 10A C.R.S. (1994 Supp.); marital or family status,
Sect. 24-34-502(1)(a), 10A C.R.S. (1994 Supp.); veterans' status, Sect.
28-3-506, 11B C.R.S. (1989); and for any legal, off-duty conduct
such as smoking tobacco, Sect. 24-34-402.5, 10A C.R.S. (1994 Supp.).
Of course Amendment 2 is not intended to have any effect on this
legislation, but seeks only to prevent the adoption of anti
-discrimination laws intended to protect gays, lesbians, and
bisexuals.

FN10 The trial court rejected the testimony of the defendants'
witnesses who, while having no experience in the enforcement of
civil rights laws intended to protect gays, lesbians, and
bisexuals, speculated that doing so would create increased costs
and limit the ability to enforce laws intended to protect
suspect classes.

FN11 There is some dispute as to whether consideration of this
asserted interest is properly before this court. Plaintiffs
point out that in contrast to the six governmental interests
addressed by the trial court, morality was not listed in the
state's disclosure certificate or the state's opening statement
at trial as a separate interest supporting Amendment 2.

Defendants argue that it presented the interest in public
morality to the district court and as support, cites an
introductory paragraph contained in its brief to that court
which stated that "the issue of public morality . ..permeates
the discussion of compelling interests and indeed, can be
regarded as a compelling interest in its own right." In our
judgment, this is sufficient to conclude that the interest of
public morality was presented to the trial court as a rationale
for Amendment 2 and thus, this asserted interest is properly
before this court.

FN12 The Tenth Amendment to the United States Constitution
provides: "The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people."

FN13 The words "privileges" and "immunities" first appear in
the Constitution in article IV, Sect. 2 ("The Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens
in the several States."). By virtue of Article IV, state
citizenship carries with it the right to nondiscriminatory
treatment within each state of citizens of all the states.

Consistent with the text and for purposes of distinction, the
Article IV clause will be referred to as the "Privileges and
Immunities Clause," and the Fourteenth Amendment clause will be
referred to as the "Privileges or Immunities Clause."

FN14 It is widely agreed that section 1 of the Fourteenth
Amendment was intended at least to empower Congress to pass the
Civil Rights Act of 1866, ch. 31, 14 Stat. 27. William Nelson,
The Fourteenth Amendment: From Political Principle to Judicial
Doctrine 104 (1988) ("Section one was added to the amendment at
least in part to remove doubts about the constitutionality of
the 1866 act."); John Harrison, Reconstructing the Privileges or
Immunities Clause, 101 Yale L.J. 1385, 1389 (1992). Many
commentators have suggested that the amendment actually writes
the substance of the 1866 Act into the Constitution. See id.

FN15 Subsequent cases suggested an even narrower definition of
the rights of national citizenship, but in Twining v. New
Jersey, 211 U.S. 78 (1908), the Court in dictum finally settled
on the Slaughter-House definition as correct.

FN16 As Justice Field observed in dissent, and it is not really
possible to deny:

If this inhibition . ..only refers, as held by the majority of
the court in their opinion, to such privileges and immunities as
were before its adoption specially designated in the
Constitution or necessarily implied as belonging to citizens of
the United States, it was a vain and idle enactment, which
accomplished nothing, and most unnecessarily excited Congress
and the people on its passage."

Slaughter-House Cases, 83 U.S. (16 Wall.) at 96 (Field, J.,
dissenting).

FN17 As Senator Howard stated: "it is certain the clause was
inserted in the Constitution for some good purpose." Cong.
Globe. 39th Cong., 1st Sess., part 3, p. 2765 (1866); see
generally John H. Ely, Democracy and Distrust 22 (1980).

FN18 Representative Bingham, the Congressperson who framed the
Privileges or Immunities Clause of the Fourteenth Amendment,
pointed to the Privileges and Immunities Clause of Article IV as
his model. Cong. Globe, 39th Cong., 1st Sess., part 2, pp.
103334 (1866).

FN19 As Ely has observed, the drafters of the Fourteenth
Amendment "repeatedly adverted to the Corfield discussion as the
key to what they were writing." See Ely at 29; Steven J.
Heyman, The First Duty of Government: Protection, Liberty and
the Fourteenth Amendment, 41 Duke L.J. 507, 555-56 (1991).
Corfield was invoked by both Senator Trumbull and Representative
Wilson, the managers of the Civil Rights Act, to explain the
fundamental rights of citizenship secured by the Act. Similarly,
Senator Howard quoted from Corfield during the Congressional
debates regarding adoption of the fourteenth amendment. Cong.
Globe, 39th Cong., 1st Sess., part 3, p. 2765 (1866).

FN20 See Edwards v. California, 314 U.S. 160, 178 (1941), (the
right of interstate travel is an essential "incident of national
citizenship protected by the privileges and immunities clause of
the Fourteenth Amendment . ..").

FN21 See also Illinois State Board of Elections v. Socialist
Workers Party, 440 U.S. 173, 184 (1979); Dunn v. Blumstein, 405
U.S. 330, 336 (1972); Gordon v. Lance, 403 U.S. 1, 5 (1971);
Frank I. Michelman, Conceptions of Democracy in American
Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443, 459
n. 63 (1989).

FN22 Historically, the Equal Protection Clause was called upon
to protect insular minorities. Similarities undoubtedly exist
between unlawful discrimination based on sexual orientation and
that based on race or national origin. However, the record is
uncertain as to whether, as a general matter, victims of
discrimination based on sexual orientation share the same
history or are subjected to a similar experience or condition as
victims of racial or ethnic discrimination.

FN23 The defendants argue that the participation in the
political process plaintiffs seek is a particular end or the
successful adoption of plaintiffs' views. I note, however, that
the right to participate in the political process does not
guarantee plaintiffs or any other qualified electors the success
of any candidate or cause nor the state's embracement of
particular ideas. This right simply guarantees access to the
political process. Citizens may vote, petition or amend as a
matter of right, but they cannot necessarily win as a matter of
right.

Moreover, I am not unmindful that the state may deny the right
to vote or participate in the political process as an operation
of due process. See, e.g., Moran v. Carlstrom, 846 P.2d 862, 874
(Colo. 1989) (the General Assembly may place reasonable
restrictions on the right to vote); see also People v. Russo,
713 P.2d 356, 360 (Colo. 1986) (jurors disqualified if they do
not have the right to vote by reason of criminal conviction).

FN24 Government intervention may take the form of agency
action, legislation, constitutional amendment, or other conduct
which has the effect of law.

FN25 See supra, n.11.

FN26 Homosexuals, lesbians, and bisexuals have never been
adjudicated to be a discrete and insular minority by the Supreme
Court. See High Tech Gays v. Defense Indus. Sec. Clearance
Office, 895 F.2d 563, 571 (9th Cir. 1990); Dahl v. Secretary of
the United States Navy, 830 F. Supp 1319, 1323-25 (E.D. Cal.
1993).

FN27 Recently, however, a federal district judge, relying on
Evans I, struck down an anti-gay-rights measure approved by
Cincinnati voters. In Equality Foundation of Greater Cincinnati,
Inc. v. City of Cincinnati, slip op. at 26 (S.D. Ohio Aug. 9,
1994), the federal district court declared that a City Charter
Amendment was unconstitutionally vague and violated the First
Amendment right of homosexuals to participate in the political
process. See also Equality Found. v. City of Cincinnati, 838 F.
Supp. 1235 (S.D. Ohio 1993).

FN28 When fundamental rights are denied to everyone, it raises
due process concerns. When fundamental rights are denied to some
individuals only, it raises equal protection concerns. The
applicable standard in either case, however, is strict scrutiny.

FN29 The district court found that the state alleged six
compelling state interests: (1) deterring factionalism; (2)
preserving the integrity of the state's political functions; (3)
preserving the ability of the state to remedy discrimination
against suspect classes; (4) preventing the government from
interfering with personal, familial and religious privacy; (5)
preventing the government from subsidizing the political
objectives of a special interest group; and (6) promoting the
physical and psychological well-being of children.

FN30 The district court applied the strict scrutiny standard of
review which requires the state to prove that classifications
affecting fundamental rights were necessary to promote a
compelling or overriding interest which is narrowly tailored.
See Plyler v. Doe, 457 U.S. 202, 217 (1982) (noting that the
classification must be "precisely tailored"); Dunn v. Blumstein,
405 U.S. 330, 342 (1972) (stating a classification involving a
fundamental right must be a compelling state interest); Shapiro
v. Thompson, 394 U.S. 618, 634 (1969) (noting that there needed
to be a compelling reason for the government to restrict
interstate travel).

FN31 The issue of homosexuality and bisexuality is deeply
controversial and divisive. Unlike race and sex, there is no
national consensus that sexual orientation is an inappropriate
basis for governmental, much less private, decisionmaking. A
series of constitutional amendments and acts of Congress have
authoritatively settled the place of race and sex in American
life. The same simply cannot be said of non-traditional sexual
orientation.

FN32 For example, in 1989, the General Assembly passed a law
prohibiting insurance companies from inquiring about or making
coverage decisions on the basis of sexual orientation. See Sect.
103-1104(1)(f), 4A C.R.S. (1993 Supp.). In 1992, the Colorado
Civil Rights Commission went on record recommending legislation
adding sexual orientation to the list of protected classes.

FN33 Testimony of Harvard Government Professor Harvey Mansfield
indicated that the use of the initiative process to enact
Amendment 2 supported stability and respect for the political
process, by giving "the people a sense that . ..government is
not alien to them, and that they can get together by their own
initiative . ..to produce a result that gives them a sense of
satisfaction and accomplishment."

FN34 The Court in James went on to cogently state:

But of course a lawmaking procedure that "disadvantages" a
particular group does not always deny equal protection. Under
any such holding, presumably a State would not be able to
require referendums on any subject unless referendums were
required on all, because they would always disadvantage some
group. And this Court would be required to analyze governmental
structures to determine whether a gubernatorial veto provision
or a filibuster rule is likely to "disadvantage" any of the
diverse and shifting groups that make up the American people.

James v. Valtierra, 402 U.S. 137, 142 (1971).

FN35 In United States v. Carolene Products Co., 304 U.S. 144,
152 (1938), the Supreme Court announced its standard for
reviewing legislative enactments in the economic sphere:

[T]he existence of facts supporting the legislative judgment is
to be presumed, for regulatory legislation affecting ordinary
commercial transactions is not to be pronounced unconstitutional
unless in light of the facts made known or generally assumed it
is of such a character as to preclude the assumption that it
rests upon some rational basis within the knowledge and
experience of the legislators.

FN36 Under the agreement, the Division works on a certain
number of cases involving only federally-protected classes
which, of course, does not include sexual orientation. The
Division only met the goals last year because the Equal
Employment Opportunities Commission reduced the number of cases
necessary to satisfy the agreement.

FN37 The United States Supreme Court has addressed the issue of
fiscal concerns impacting certain rights. In Plyler, 457 U.S. at
222-24, the Court held that whatever savings might be achieved
by the state by denying public education to undocumented aliens
were insubstantial compared to the costs to the children, the
state, and the nation of not educating them. In Shapiro, 394
U.S. at 618, and in Graham v. Richardson, 403 U.S. 365 (1971),
the Court found fiscal integrity not to be a compelling interest
balanced against the right to interstate travel and the right to
welfare assistance to aliens. These cases are distinguishable as
either fundamental rights cases or cases in which the object was
saving money not a basic allocation of funds.

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LLR No. 9410024.CO