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No. 94-1039

In The
Supreme Court of the United States
October Term, 1994

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

vs.

RICHARD G. EVANS, ANGELA ROMERO, LINDA
FOWLER, PAUL BROWN, PRISCILLA INKPEN, JOHN
MILLER, the BOULDER VALLEY SCHOOL DISTRICT RE-
2, the CITY AND COUNTY OF DENVER, the CITY OF
BOULDER, the CITY OF ASPEN, and the CITY COUNCIL
OF ASPEN, Respondents.

On Writ Of Certiorari To The
Supreme Court Of Colorado

BRIEF OF AMICI CURIAE STATES OF
ALABAMA, CALIFORNIA, IDAHO, NEBRASKA,
SOUTH CAROLINA, SOUTH DAKOTA, AND
VIRGINIA IN SUPPORT OF PETITIONER

CHARLES J. COOPER*
SHAW, PITTMAN, POTTS & TROWBRIDGE
2300 N Street NW
Washington, DC 20037
Telephone: [phone]

RICHARD F. DUNCAN
P.O. Box 67134
Lincoln, NE 68506
Telephone: [phone]

*Counsel of Record

JEFF SESSIONS
Attorney General of Alabama
Office of the Attorney General
State House
11 South Union Street
Montgomery, AL 36130

DANIEL E. LUNGREN
Attorney General of California
1515 K Street
Sacramento, CA 94244

ALAN G. LANCE
Attorney General of Idaho
P.O. Box 83720
Boise, ID 83720-0010

DON STENBERG
Attorney General of Nebraska
Department of Justice
2115 State Capitol
Lincoln, NE 68509

CHARLES MOLONY CONDON
Attorney General of
South Carolina
Post Office Box 11549
Columbia, SC 29211

MARK BARNETT
Attorney General of
South Dakota
500 East Capitol Avenue
Pierre, SD 57501-5070

JAMES S. GILMORE III
Attorney General of Virginia
Office of the Attorney General
900 East Main Street
Richmond, VA 23219

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ... 1

SUMMARY OF THE ARGUMENT... 3

ARGUMENT... 6

I. THE FUNDAMENTAL RIGHT OF POLITICAL
PARTICIPATION CREATED BY THE COURT BELOW IS
INCONSISTENT WITH THE SOVEREIGNTY OF THE
PEOPLE AND THEIR RIGHT TO ALLOCATE
GOVERNMENTAL POWER WITHIN THE STATE AS
THEY SEE FIT...6

II. AMENDMENT 2 DOES NOT IMPAIR ANY
FUNDAMENTAL RIGHT WITHIN THE
MEANING OF THIS COURT'S EQUAL PRO-
TECTION DECISIONS...11

III. THE FUNDAMENTAL RIGHT OF POLITICAL
PARTICIPATION CREATED BY THE COURT BELOW IS
INCONSISTENT WITH THE RIGHT OF THE PEOPLE TO
ENACT CONSTITUTIONAL PROVISIONS TO PRO- TECT
CIVIL LIBERTIES...18

CONCLUSION...24

CASES

Bolling v. Sharpe, 247 U.S. 497 (1954)...20

City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668
(1976)...7

Dreyer v. Illinois, 187 U.S. 71 (1902) ...9

Equality Foundation of Greater Cincinnati, Inc. v. City of
Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994)...5,19

Evans v. Romer, 854 1:'.2d 1270 (Colo. 1993), cert. denied, 114
S.Ct. 419 (1993)...passim

Evans v. Romer, 88'2 P.2d 1335 (Colo. 1994), cert. granted, 115
S.Ct. 1092 (1995)...4

Gordon v. Lance, 403 U.S. 1 (1971)...15, 16

Hunter v. Erickson, 393 U.S. 385 (1969)...passim

Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)
........................................... 5, 8, 9, 10

James v. Valtierra, 402 U.S. 137 (1971)
................................ 5, 13, 14, 15, 16, 24

Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621
(1969)...4, 17

Lawrence County v. Lead-Deadwood Sch. Dist., No. 40-1, 469
U.S. 256 (1985)...9

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .. .3, 7

Pacific States Tel. and Tel. Co. v. Oregon, 223 U.S. 118
(1912)...10

Reitman v. Mulkey, 387 U.S. 369 (1967)...13

Reynolds v. Sims,, 377 U.S. 533 (1964), reh'g denied, 379 U.S.
870 (1964)...4, 17

Sailors v. Board of Educ. of Kent County, 387 U.S. 105
(1967)...9

Sweezy v. New Hampshire, 354 U.S. 234 (1957)...9

United Mine Workers of Am. Dist. 12 v. Illinois State Bar
Ass'n, 389 U.S. 217 (1967)...10

Washington v. Davis, 426 U.S. 229 (1976)...12

Washington v. Seattle School Dist. No. 1, 458 U.S. 457
(1982)...12, 13, 16

Williams v. Rhodes, 393 U.S. 23 (1968)...4, 17

CONSTITUTIONS

U.S. Const. amend. IV...18

U.S. Const. amend. V...18, 20

U.S. Const. amend. VI ...... 18

U.S. Const. amend. VIII...19

U.S. Const. amend. XIV, Section 1...1, 3, 4, 9, 13, 28

Ariz. Const. art. 2, Section 12...23

Ark. Const. amend. 68, Section 1...23

Ca. Const. art. 9, Section 8...23

Ca. Const. art. 1:2, Section 6...23

Colo. Const art. 5, Section 50...23

Colo. Const. art. 2, Section 1...6

Ga. Const. art. 4, Section L ...23

Minn. Const. art. 1, Section 16...23

Ok. Const. art. 9, Section 18...23

Wash. Const. art. 9, Section 4...23

Wis. Const. art. 1, Section 18 ...23

RULES AND STATUTES

Maryland Regulation Section 09.12.23...21

Mo. Ann. Stat. Section 105.711 (Vernon 1995 Supp.)...23

Or. Rev. Stat. 659.165 (1993)...22

Wis. Stat. Ann. Section 59.07...23

OTHER AUTHORITIES

The Federalist No. 39 (J. Madison)...7

Cass R. Sunstein, Public Values, Private Interests, and the Equal
Protection Clause, 1982 Sup. Ct. Rev. 12 ................... 12, 13

Laurence H. Tribe, American Constitutional Law Section 16-7,
at 1454 (2d ed. 1988)...11

No. 94-1039

In The
Supreme Court of the United States
October Term, 1994

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

vs.

RICHARD G. EVANS, ANGELA ROMERO, LINDA
FOWLER, PAUL BROWN, PRISCILLA INKPEN, JOHN
MILLER, the BOULDER VALLEY SCHOOL DISTRICT RE-
2, the CITY AND COUNTY OF DENVER, the CITY OF
BOULDER, the CITY OF ASPEN, and the CITY COUNCIL
OF ASPEN, Respondents.


On Writ Of Certiorari To The
Supreme Court Of Colorado

BRIEF OF AMICI CURIAE STATES OF
ALABAMA, CALIFORNIA, IDAHO, NEBRASKA,
SOUTH CAROLINA, SOUTH DAKOTA, AND
VIRGINIA IN SUPPORT OF PETITIONER

INTERESTS OF AMICI CURIAE

Amici curiae -- states of Alabama, Idaho, California, Nebraska,
South Carolina, South Dakota, and Virginia hold a common
view that the ruling and rationale below pose a serious threat to
state constitutional provisions and, more generally, to legislation
enacted at any level other than local government. As detailed
below, the Colorado Supreme Court has announced a
fundamental constitutional right of equal group participation, in
the political process that, if allowed to stand, necessarily
disqualifies state constitutions as repositories of important
public policies. Indeed, the logical force of the court's rationale
even casts doubt upon the power of state legislatures to enact
laws that remove issues favored by "identifiable groups" from
local political processes. Further, the novel theory underlying
the ruling conflicts with established principles of equal
protection, -- thus under mining the stability necessary for states
to conduct their public affairs with reasonable confidence.

Amici curiae states join in this brief to focus attention on flaws
in the analysis below and to illuminate their negative
consequences for state governments. The effect of the decision
below is to declare off limits to state governments an undefined
body of policy choices. The prohibition is undefined because the
court did not explain the term "independently identifiable
groups," nor did it clarify how disagreeable state action must be
to such groups before their rights of political participation are
violated. Nor is it clear to what degree the new principle is
prospective, or whether it might cause the undoing of numerous
state policies thought to be well settled. Whatever the scope of
identifiable groups, and their protected political interests, issues
falling within the uncertain contours must be left to local
political processes.

This novel formulation of an asserted fundamental right does
substantial violence to constitutional principles: It deprives
states of their constitutional power to structure their political
functions and allocate government power as they see fit; it
distorts established doctrines of equal protection by imposing a
hybrid right labeled "fundamental," but apparently available
only to certain identifiable groups; and it conflicts with the right
of the people to set public policies by enacting constitutional
amendments to limit government actions.

SUMMARY OF THE ARGUMENT

This is a case in which the court below decided that the
Constitution's protection of participatory democracy somehow
required the results of a voter initiative to be set aside. In order
to reach this remarkable result, the court was required not only
to stretch beyond recognition an important line of equal
protection cases decided by this Court, but also to renounce the
foundational principle that "the people have an original right to
establish, for their future government, such principles as, in their
opinion, shall most conduce to their own happiness." Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).

The decision below effectively prohibits states from addressing
many substantive issues at the state level. It thus creates a right
to have political issues decided finally -- at the local, rather than
higher levels. This result conflicts with the general power of
states to structure their political functions as they see fit, subject
only to exceptions based on federally protected interests.

This case does not involve suspect classifications. See, e.g.,
Hunter v. Erickson, 393 U.S. 385 (1969). Nor is it about the
right to cast a vote for the candidate of one's choice. See, e.g.,
Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969);
Williams v. Rhodes, 393 U.S. 23 (1968). Nor is it about the
dilution of one's vote through the process of assigning voters to
malapportioned districts. See, e.g., Reynolds v. Sims, 377 U.S.
533 (1964). Respondents seek not the vote, but rather the right
to enact laws which regulate the lives and property of others free
of state constitutional limitations designed to protect the
liberties of those whom they seek to restrict. In other words,
Respondents claim (and the court below has recognized) the
right, as an "independently identifiable" interest group, to have
local regulatory measures insulated by the Equal Protection
Clause from revision or repeal at the state level, whether by the
state legislature or by the people themselves through the
initiative process.

According to the court below, Amendment 2 violates equal
protection because it removes one issue important to an
identifiable (but non-suspect) group from the ordinary political
process by deciding the issue -- homosexual and bisexual rights-
- as a matter of state constitutional law. Evans v. Romer, 854
P.2d 1270 (Colo. 1993) ("Evans I"), Pet. App. D-25-26.[FN1]
The Colorado court held that strict scrutiny is triggered under
the Equal Protection Clause not because Amendment 2 employs
a suspect classification, but because it "singles out and prohibits
this [non-suspect] class of persons from seeking governmental
action favorable to it and, thus, from participating equally in the
political process." Id. at D-26.

Not only is the court's holding not supported by Hunter, or any
of this Court's other precedents, it directly conflicts with the
holding and reasoning of James v. Valtierra, 402 U.S. 137
(1971), which explicitly rejected a claim identical in all material
respects to that upheld in this case. Hunter and its progeny are
not about an Equal Protection Clause at war with popular
democracy and state constitutional freedoms. Instead, this
important line of cases is inextricably intertwined with the
central meaning of equal protection -- the protection of racial
minorities against laws which place unique burdens upon their
ability to enact legislation prohibiting racial discrimination.
Hunter, 393 U.S. at 391.

The decision of the court below seriously threatens the right of
all of the people to participate collectively and directly in the
political process. It also threatens many civil liberties protected
by state and federal law. This decision has already been
followed by one federal district court to set aside a similar ballot
initiative passed by voters in Cincinnati, Ohio. Equality Found.
of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp.
417 (S.D. Ohio 1994). The decision also casts a long shadow
over numerous provisions of state constitutions and statutes that
remove issues favored by other "identifiable groups" from the
local political process.

ARGUMENT

I. THE FUNDAMENTAL RIGHT OF POLITICAL
PARTICIPATION CREATED BY THE COURT BELOW IS
INCONSISTENT WITH THE SOVEREIGNTY OF THE
PEOPLE AND THEIR RIGHT TO ALLOCATE
GOVERNMENTAL POWER WITHIN THE STATE AS
THEY SEE FIT.

Although the court below acknowledged that the Colorado
Constitution proclaims that "[a]ll political power is vested in
and derived from the people," and that the people "have the sole
and exclusive right of governing themselves . . and to alter and
abolish their constitution," Evans I (Pet. App. D-2, quoting
Colo. Const. art. 2, Sections 1 and 2), its decision in this case is
based on a new and radical principle totally at odds with the
sovereignty of the people. The "infringement" of the right of
political participation which requires, according to the court,
that Amendment 2 be set aside is nothing more than the
necessary and normal result of a political disagreement between
the sovereign people of Colorado and their elected
representatives -- their employees -- in state and local
government. The people have amended their constitution to
forbid their employees from making homosexuality and
bisexuality protected categories under anti-discrimination laws.
The court below has determined that since this issue is
important to certain identifiable interest groups, it may not be
decided by the people through an initiative amending the state
constitution.

This is a revolutionary repudiation of the basic principle of self-
government on which our democratic institutions are based. As
this Court said almost two centuries ago in Marbury v. Madison,
5 U.S. (1 Cranch) 137, 176 (1803), "the people have an original
right to establish, for their future government, such principles
as, in their opinion, shall most conduce to their own happiness."
See also, The Federalist No. 39 (J. Madison). In furtherance of
this political truth, this Court has recognized that citizen
initiatives, such as Amendment 2, are an essential means of
assuring popular sovereignty. For example, in City of Eastlake
v. Forest City Enters., 426 U.S. 668, 673 (1976), this Court
stated that "[t]he referendum . . . is a means for direct political
participation, allowing the people the final decision, amounting
to a veto power, over enactments of representative bodies." This
Court also recognized that "[i]n establishing legislative bodies,
the people can reserve to themselves power to deal directly with
matters which might otherwise be assigned to the legislature."
Id. at 672. The Colorado Supreme Court's unprecedented
decision its a significant threat to the right of direct self
government through citizen initiatives. It also threatens to
invalidate many basic rights currently existing under state
constitutions.

Nor can the Colorado Supreme Court's decision be squared with
the Constitutional principle of federalism. According to the
court below, "any legislation or state constitutional amendment
which infringes" the right of political participation must be
subjected to strict scrutiny. Evans I (Pet. App. D-21) (emphasis
added). In effect, the court held that all issues deemed important
by identifiable groups must be decided by local elected
representatives, not by state legislatures, direct democracy, or
constitutional amendment.

This Court has recognized, however, that local governments are
instrumentalities of the state, and that the state can, with limited
exceptions, grant and withdraw powers to such governments at
its pleasure. The general rule concerning the power of states to
structure internal political functions and to allocate government
power was articulated well in Hunter v. City of Pittsburgh, 207
U.S. 161, 165 (1907). There this Court wrote:

municipal corporations are political subdivisions of the state,
created as convenient agencies for exercising such of the
governmental powers of the state as may be intrusted to them.
The number, nature, and duration of the powers conferred upon
these corporations, and the territory over which they shall be
exercised rests in the absolute discretion of the state.... The state,
therefore, at its pleasure may modify or withdraw such powers,
may take without compensation such property, hold itself or
vest it in other agencies, expand or contract the territorial area,
unite the whole or another part of it with another municipality,
repeal the charter and destroy the corporation. All this may be
done, conditionally or unconditionally, with or without the
consent of the citizens or even against their protest.

Id. at 178-79 (emphasis added). Hunter v. City of Pittsburgh
remains good law States generally have absolute power relative
to local governments. As a consequence, identifiable groups
have no constitutional claim to final and binding
decisionmaking at the local level of government, and local
governments have no inherent constitutional standing to
challenge state action.[FN2]

While Hunter v. City of Pittsburgh addressed state authority to
distribute power vertically, i.e., between state and local
governments, states also retain authority to allocate power
horizontally, i.e., among the branches of government, and the
people, as they see fit. A state's allocation of power among
branches of government, standing alone, is not subject to federal
constitutional restraint. "Whether the legislative, executive and
judicial powers of a State shall be kept distinct and separate, or
whether persons or collections of persons belonging to one
department may, in some respects, exert powers which, strictly
speaking, pertain to another department, is for the determination
of the State." Dreyer v. Illinois, 187 U.S. 71, 84 (1902). See also
Sweezy v. New Hampshire, 354 U.S. 234, 256 (1957)
(Frankfurter, J., concurring) ("It would make the deepest of
inroads upon our federal system for this court to hold that it can
determine the appropriate distribution of powers and their
delegation within the . . . states.") Sailors v. Board of Educ. of
Kent County, 387 U.S. 105, 109 (1967) ("Save and unless the
state, county or municipal government runs afoul of a federally
protected right, it has vast leeway in the management of its
internal affairs.").

State discretion in structuring decisionmaking authority also
includes the choice of the people to reserve certain powers to
themselves. Pacific States Tel. and Tel. Co. v. Oregon, 223 U.S.
118 (1912) (claim that initiative and referendum process
violated guarantee clause held nonjusticiable). Just as Hunter v.
Pittsburgh recognized state control ever vertical distributions of
power, these cases expand the principle to horizontal
allocations. There is no constitutional directive that states
delegate any particular power or issue to any branch of
government. Correspondingly, there is no right of identifiable
groups to demand that any particular branch be empowered to
act on a given matter. While the right to petition is fundamental,
United Mine Workers of Am., Dist. 12 v. Illinois Bar Ass'n.,
389 U S.. 217, 222 (1967), it defies law and reason to claim the
right requires that every government office retain the inviolate
authority to grant every petition.

To be sure, state action, concerning both substantive law as well
as political process and structure, is subject to constitutional
limits. States may not structure their functions in a way that
damages federally protected rights or interests. Hunter v.
Erickson 393 U.S. 385 (1969). To state that preposition,
however, is to place claimed constitutional rights into a
federalist context. Rights do not exist in a vacuum, and cannot
be recognized without consequence to other constitutional
values.

In short, the Equal Protection Clause simply does not elevate
local government over all competing governmental authorities,
including the people themselves.

II. AMENDMENT 2 DOES NOT IMPAIR ANY
FUNDAMENTAL RIGHT WITHIN THE MEANING OF
THIS COURT'S EQUAL PROTECTION DECISIONS

The trial court rejected Respondents' claim that homosexuals
and bisexuals constitute a suspect or quasi suspect class. Pet.
App. C-18-19. Respondents did not appeal that holding, and the
court below did not base its decision on a suspect or quasi-
suspect class rationale. Evans I (Pet. App. D-7-8). Thus, in order
to trigger strict scrutiny of Amendment 2, it was necessary for
Respondents to establish that the amendment creates "inequal
ities bearing on fundamental rights." See Laurence H. Tribe,
American Constitutional Law Section 16-7, at 1454 (2d ed.
1988).

The court below stated that the "most explicit, and nuanced,
articulation" of the fundamental right at issue was contained in a
series of decisions, beginning with Hunter, in which this Court
reviewed "legislation which prevented the normal political
institutions and processes from enacting particular legislation
desired by an identifiable group of voters." Evans I (Pet. App.
D-14). The cases relied upon by the court, however, do not
support the court's holding.

In Hunter, this Court considered whether an amendment to the
Akron, Ohio city charter violated the Equal Protection Clause.
The amendment prohibited the city council from implementing
any ordinance dealing with racial, religious, or ancestral
discrimination in housing X without the approval of a majority
of voters in a regular or general election. The racially
discriminatory impact of this provision was crucial to the
Court's rationale. In striking down the challenged charter
amendment, this Court did not craft an amorphous new right of
political participation for any and every identifiable group;
rather, the Court invalidated the law because it constituted a
"meaningful and unjustified official distinction [ ] based on
race." Hunter, 393 U.S. at 391.[FN3] In other words, the central
point in Hunter was that the charter amendment placed "special
burdens on racial minorities" concerning their ability to enact
legislation prohibiting racial discrimination in housing. Id.
(emphasis added).

Similarly, in Washington v. Seattle Sch. Dist. No. 1, 458 U.S.
457 (1982), this Court invalidated a voter initiative which
stipulated that no local school board could require any student to
attend a school other than the one located nearest or next nearest
to the child's residence. The initiative was facially neutral
regarding race, but included a large number of exceptions to the
rule, which led this Court to conclude it was enacted "because
of," not merely "in spite of," its adverse effects upon busing for
racial integration. Id. at 471. The Court carefully discussed the
meaning of Hunter and explained why legislation of the kind
challenged in that case "falls into an inherently suspect
category":

[W]hen the political process or the decisionmaking mechanism
used to address racially conscious legislation -- and only such
legislation -- is singled out for peculiar and disadvantageous
treatment, the governmental action plainly "rests on 'distinctions
based on race.'"

Id. at 485-86 (quoting James v. Valtierra, 402 U.S at 141, and
Hunter v. Erickson, 393 U.S. at 391) (emphasis added).

Hunter and Seattle School District are not fundamental rights
cases. They are suspect class cases which hold that "when
government acts to single out a racial problem for special
treatment, and when the special treatment operates to the
peculiar disadvantage of racial minorities, there is reason for
more than usual suspicion of the legislative judgment."
Sunstein, supra, 1982 Sup. Ct. Rev at 165 (emphasis added). In
other words, these cases hold that a classification is race-
specific "if it singles out a racial problem for special and
disadvantageous treatment." Id. at 149. There is no reasonable
way to read Hunter and Seattle School District as supporting the
far-reaching fundamental right applied by the court in this case.
Both cases involved this Court's efforts to implement the
principle lying at the core of equal protection -- the prevention
of invidious discrimination on the basis of race.[FN4]

As Justice Erickson's thoughtful dissent in Evans I makes clear,
the Colorado Supreme Court's reading of Hunter as the source
of a broad right of political participation for "identifiable
groups" was explicitly discussed and rejected by this Court in
James. See Evans I (Pet. App. D-49-52) (Erickson, J.,
dissenting). James upheld the constitutionality of a California
constitutional amendment which provided that no "low rent
housing project" could be undertaken by "any state public body"
until the project was approved by a majority of the voters at a
community election. James, 402 U.S. at 139 n.2. Thus, as in the
case of Colorado Amendment 2, the California amendment
made it more difficult for an identifiable group (the poor) to
enact part of its legislative agenda through the normal political
process. Appellees in James, a number of low-income residents
of California, argued that the California amendment constituted
"unconstitutional discrimination because it hampers persons
desiring public housing from achieving their objective when no
such roadblock faces other groups seeking to influence other
public decisions to their advantage." 402 U.S. at 142. The Court
clearly rejected this attack on California's "procedure for
democratic decisionmaking." Id. at 143. Justice Black's majority
opinion in James explained the Court's reasoning in terms that
reject authoritatively the reasoning of the court below in this
case:

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.

Id. at 142. Since the Court in James read Hunter as a case
involving political burdens on racial minorities (id. at 140- 41),
and since the poor are not a suspect class under the Equal
Protection Clause, the Court held that the California amendment
could be invalidated "only by extending Hunter, and this we
decline to do." Id. at 141.

Likewise, the attempt by the court below to read Gordon v.
Lance, 403 U.S. 1 (1971), as support for an extremely far-
reaching right of political participation is misguided. See Evans
I (Pet. App. D-19-20). In Gordon, this Court upheld a West
Virginia law that proscribed the state's political subdivisions
from incurring bonded indebtedness or raising taxes without the
prior approval of 60% of the voters in a referendum. The Court
held that, unlike the facts of Hunter, the West Virginia law did
not single out any "discrete and insular minority" for special
burdens. 403 U.S. at 5. Therefore, there was no equal protection
violation. Id. at 7.

Noting that the West Virginia laws upheld in Gordon "had
nothing to do with racial minorities or any other traditionally
suspect class, yet the Court felt compelled to discuss Hunter,"
the court below concluded that Hunter "applies to a broad
spectrum of discriminatory legislation." Evans I (Pet. App. D-
19-20). The court attempted to bolster this specious reasoning
by adding the following trivial insight: "If . . . Hunter is a 'race'
case and nothing more, the Supreme Court could have
summarily dismissed the notion that it was applicable in
Gordon." Id. But, of course, this Court in Gordon did precisely
what Evans I said it did not do-it discussed Hunter only to
distinguish it as a case involving legislation that singled out
racial minorities and other suspect classes for unfavorable
treatment. Gordon, 403 U.S. at 5. Although the West Virginia
laws made it more difficult for some political groups to enact
their legislative agendas, these laws did not discriminate against
any racial or other suspect class and, therefore, did not violate
the Equal Protection Clause. Id. at 5-7. Thus, Gordon is an
application -- not a repudiation -- of the "race only" reading of
Hunter.

Taken one by one or together, Hunter, Seattle School District,
James, and Gordon do not support a broad right for any and
every identifiable group to have its political agenda, as enacted
by local governments, insulated against superseding state law.
Rather, these cases recognize that the central purpose of the
Equal Protection Clause is to protect racial and other suspect
classes against discriminatory state action. Therefore, laws that
single out racial problems for special and disadvantageous
treatment are subject to strict scrutiny even if the laws are
facially neutral. Laws that make it more difficult for non-
suspect groups to enact their political agendas, such as the laws
upheld in James and Gordon, do not conflict with equal
protection. Since Amendment 2 falls into the latter category, the
court below erred by subjecting the amendment to strict
scrutiny.

The Colorado Supreme Court also found support for the
fundamental right of political participation in this Court's cases
dealing with the right to an equally weighted vote in the
electoral process. The court discovered what it referred to as a
"common thread" between this case and three groups of this
Court's voting rights cases -- the right to vote cases, the
reapportionment cases, and the ballot access cases. See, e.g.,
Kramer v. Union Free School Dist., 395 U.S. 621 (1969);
Reynolds v. Sims, 377 U.S. 533 (1964); Williams v. Rhodes,
393 U.S. 23 (1968). In each of these cases, however, the basis
for this Court's decision was the fact that the challenged laws
impinged directly on the established and fundamental right to
vote for the candidates of one's choice. None of these cases even
remotely invokes the principle which controlled the decision
below -- a vague right of political participation that extends
beyond the voting booth to invalidate state constitutional
limitations on substantive legislative agendas. To be sure, these
voting rights cases do demonstrate that this Court recognizes the
importance of equality in assuring citizens an equally-weighted
vote for the candidates of their choice. The court below ignored
this context and improperly read these cases as supporting a
seemingly unlimited right to have a political agenda, as
expressed in local regulation, insulated against the
countervailing interests of others, as expressed in the statewide
initiative process.

In this case, there is no state-created obstacle to voting or any
other aspect of the electoral process. The voting rights cases are
not applicable to Amendment 2, and the court below erred by
relying upon them.

III. THE FUNDAMENTAL RIGHT OF POLITICAL
PARTICIPATION CREATED BY THE COURT BELOW IS
INCONSISTENT WITH THE RIGHT OF THE PEOPLE TO
ENACT CONSTITUTIONAL PROVISIONS TO PROTECT
CIVIL LIBERTIES

The potential scope of the right recognized by the court below is
breathtaking. If the court means what it says, it has discovered a
constitutional right of any "independently identifiable class of
persons" to have its politi cal agenda insulated against normal
democratic processes.

The idea animating this remarkable new right appears to be the
truism that constitutional law discourages political participation
by groups who favor unconstitutional legislation. Thus,
homosexuals and bisexuals were discouraged by Amendment 2
because it made their desire to enact regulations on the lives,
businesses, and property of others -- through enactment of "gay
rights" legislation -- more difficult to accomplish. Similarly, the
Establishment Clause of the First Amendment discourages
political participation of some religious groups because it
prohibits the enactment of many of their politi cal preferences,
such as state financing of parochial schools. Pro-life groups,
members of which often share an "independently identifiable"
religious and cultural heritage, are discouraged by the
unenumerated right of privacy, by state equal rights
amendments, and by other provisions of state constitutions
protecting reproductive rights, because these provisions prohibit
their strong preferences for laws restricting access to abortion
services. Organized groups of crime victims are discouraged
from political participation by the Fourth, Fifth, Sixth, and
Eighth Amendments, and by their counterparts in state
constitutions, because these civil liberties invalidate laws that
violate the rights of defendants in criminal cases.

The list is endless. Constitutional law routinely discourages
groups from seeking to legislate political agendas which the
Constitution has taken out of the hands of legislators. Indeed,
the central purpose of the Bill of Rights and similar protections
in state constitutions is to shelter persons whose liberties are
protected against political agendas designed to restrict those
rights.

The right of political participation created by the court below
casts a long shadow over the right of the people to protect their
freedom by adopting constitutional liberties. Although the court
below did not define the concept of an "independently
identifiable group," it did conclude that it was broad enough to
cover non suspect classes such as homosexuals and bisexuals.
Evans I (Pet. App. D-25-26). Moreover, while denying that it
was opening the floodgates for other groups wishing to employ
the right of political participation, the court sup plied no limiting
principle to contain this new right. Id. at D-23-27.

In Equality Found. of Greater Cincinnati, Inc. v. City of
Cincinnati, 860 F. Supp. 417 (S.D. Ohio 1994), a federal district
court followed Evans I and permanently enjoined a ballot
initiative passed overwhelmingly by the voters of Cincinnati.
The court attempted to limit the scope of the right of political
participation by distinguishing between "independently
identifiable groups" and mere "identifiable groups." 860 F.
Supp. at 434 n.12. The court said that "the difference between
an 'independently identifiable group' and an 'identifiable group'
is that where the factor identifying the group transcends the
mere support for any given issue, the group is 'independently
identifiable.'" Id. "On the other hand, a group whose sole
identifying characteristic is the group's support for a single issue
is merely an identifiable group." Id. Under this definition, most
identifiable groups -- such as the ones discussed in the examples
above -- are also independently identifiable groups.[FN5]

Indeed, any generally applicable definition of independently
identifiable group that is broad enough to include homosexuals
and bisexuals almost certainly will include many other groups
whose policy preferences have been placed beyond the ordinary
political process by the state constitutional rights of
individuals.[FB6] Nor is the principle limited to constitutional
provisions. According to the court below, "any legislation or
state constitutional amendment which infringes" the right of
political participation must be subjected to strict scrutiny. Evans
I (Pet. App. D-21) (emphasis added). Although it is not clear
from the opinion that the court understood the significance of
this very broad statement, it appears to mean that all issues
affecting identifiable interest groups must be decided by elected
representatives at the level of local government. Assume, for
example, the Colorado legislature had enacted statewide
legislation containing the same substantive policy choice as that
contained in Amendment 2. Under the decision below, the
legislation is unconstitutional because it has removed the issue
of homosexual rights from the normal political process of local
government. This principle threatens most substantive
legislation.

For example, regulation of smoking obviously affects an
"independently identifiable" group. Evans I calls into doubt
tough statewide measures such as Maryland's Regulation
Section 09.12.23 (barring smoking in most workplaces),
promulgated under that state's Occupational Safety and Health
Act, Md. Code Ann., Health Gen. Section 24-501, et seq (1990).
As a result of the regulation, smokers are unable to seek more
favorable treatment from local jurisdictions. Further, if smokers
secured passage of a statewide measure opening the workplace
to smoking, and preempting more restrictive local standards,
then nonsmokers would have an Evans I claim that they had
been fenced out of the process.

As the Maryland example illustrates, Evans I not only
encourages the factionalizing of the community into aggrieved
groups, it also generates groups with mirror opposite claims,
which, if the doctrine is applied consistently, will be locked in
judicial stalemate. Such is the case in Oregon, where the state
legislature recently enacted a measure that is the polar opposite
of Amendment 2. Oregon's new law prohibits local governments
from enacting measures that block protected status based on
homosexuality. See O.R.S. 659.165 (1993). To the extent that
identifiable cultural, religious, or political groups favor enacting
such local measures, they have been locked out of the process,
and have a claim under Evans I. Thus, presumably neither the
proponents nor the opponents of statewide measures extending
anti-discrimination protection to homosexuals would be
permitted, under the Colorado Supreme Court's reasoning, to
"enact legislation in their interest."

The list of state constitutional or legislative provisions that
might be challenged as interfering with the political
participation of identifiable groups is long. Noted below are just
a sampling of state measures that would appear vulnerable.

State civil service and personnel systems. Most states have some
form of civil service and personnel system governing conditions
of state employment. It is common for such schemes to prohibit
the state from contracting out work that will result in the
displacement of classified employees. However, private
contractors, reform groups, taxpayer advocate groups, and
others may desire greater use of contracting to accomplish state
objectives. Although such a policy clearly would be "in their
interest," they cannot pursue it without mounting a
constitutional campaign. See, e.g., Ca. Const. art. 7 Section 1;
Co. Const. Art. 9, Section 1; N.Y. Const. art. 5, Section 6. And
if the campaign succeeds, a class of independently identifiable
state employees could challenge the action.

Prohibitions on public expenditures to benefit any religious
school. Such provisions are common among the states. Sees
e.g., Ariz. Const. art. 2, Section 12; Ca. Const. art. 9, Section 8;
Minn. Const. art. 1, Section 16; Wash. Const. art. 9, Section 4;
Wis. Const. art. 1, Section 18; and others. As a result of such
provisions, supporters of private religious schools may not
petition local school districts, the state legislature, or any other
democratic body for financial or material aid, even if such aid
would be fully consistent with the First Amendment. Their only
remedy is to seek a constitutional amendment.

State public utility schemes. All states have some form of utility
regulation. Such schemes not only regulate the rates and
practices of utilities, but grant monopoly status to such utilities.
In an era of deregulation, increasing competition, and
technological advance, ratepayers, consumer groups, or
competing providers are making proposals to open controlled
markets to competition. In many cases a constitutional
amendment would be necessary to authorize such reform. See,
e.g., Ca. Const. art. 12, Section 6; Ga. Const. art. 4, Section 1, P
1; Ok. Const. art. 9, Section 18.

Bars on public funding for abortions. Several states bar public
funding of abortions, either by constitutional pro vision, see,
e.g., Ark. Const. amend. 68, Section 1; Colo. Const art. 5,
Section 5X); or by statute. See, e.g., Wis. Stat. Ann. Section
59.07 (West 1988 & 1994 Supp.) (prohibiting local
governments from funding abortions); Mo. Ann. Stat. Section
105.711 (Vernon 1995 Supp.). Several identifiable groups, such
as women, the poor, or poor women, might feel it in their
interest to petition for a different policy. But they cannot, unless
they mount a statewide effort.

The list could continue indefinitely, but the matters already
addressed demonstrate the destabilizing nature of the "right"
identified in Evans I. The Colorado Supreme Court's decision
below should be reversed.

CONCLUSION

The court below has misinterpreted several of this Court's equal
protection decisions to create an unprecedented and
revolutionary fundamental right of any and every
"independently identifiable" interest group to overturn statewide
constitutional and/or statutory provisions that prevent them from
enacting their regulatory agendas at the local level of
government. This new equal protection doctrine has cast a long
shadow of uncertainty not only over the traditional right of
democratic self-government, but also over the concept of
constitutionalism -- of representative government tempered by
individual liberty. Clearly, the Equal Protection Clause does not
provide protection for any and every special interest group
against the political discouragement that necessarily arises when
a political issue favored by the group is removed from the local
political process by a constitutional amendment. As Justice
Black stated in James, "[provisions for referendums demonstrate
devotion to democracy, not to bias, discrimination, or
prejudice." James, 402 U.S. at 141. "This procedure for
democratic decisionmaking does not violate the constitutional
command that no State shall deny to any person 'the equal
protection of the laws.' " Id. at 143. The only interference with
political participation in this case was the attempt by
Respondents to set aside the results of an election they lost. The
people of Colorado chose to enact Amendment 2. Their decision
may have been wise or unwise. Regardless, nothing in the
Constitution requires this substantive choice by the people to be
nullified by judicial decree.

For all of the foregoing reasons, amici urge the Court to reverse
the decision below and restore to the people of Colorado the
results of their democratic decisionmaking.

Respectfully submitted,

CHARLES J. COOPER*
SHAW, PITTMAN, POTTS & TROWBRIDGE
2300 N Street NW
Washington, DC 20037
Telephone: [phone]

RICHARD F. DUNCAN
P.O. Box 67134 Lincoln, NE 68506
Telephone: [phone]

*Counsel of Record

==========FOOTNOTES==========

1 Evans I affirmed the trial court's issuance of a preliminary
injunction against enforcement of Amendment 2. Subsequently,
the Colorado Supreme Court reaffirmed the constitutional
principles it had articulated in Evans I and entered final
judgment permanently enjoining enforcement of Amendment 2.
Evans v. Romer, 882 P.2d 1335 (Colo. 1994) ("Evans II") (Pet.
App. B).

2 Local governments may sue the state for withdrawing power
from the local political process only when some intervening
federal action vests power with the subdivision rather than the
state. Ct. Lawrence County v. Lead-Deadwood Sch. Dist., No.
40-1, 469 U.S. 256 (1985) (payments under federal statute to
units of local government "for any governmental purpose"
precludes states from controlling how local units spend money).

3 Hunter was decided several years before this Court deter
mined, in Washington v. Davis, 426 U.S. 229, 239 (1976), that a
facially-neutral classification is not suspect absent proof of "a
racially discriminatory purpose." Professor Cass Sunstein has
commented that "the difficulty now of understanding the Court's
opinion [in Hunter] stems largely from that subsequent
development." Cass R. Sunstein, Public Values, Private
Interests, and the Equal Protection Clause, 1982 Sup. Ct. Rev.
127, 147. Perhaps this explains the misreading of Hunter by the
court below.

4 This also explains this Courts decision in Reitman v. Mulkey,
387 U.S. 369 (1967). In Reitman, the Court invalidated an
initiated measure that guaranteed private citizens absolute
discretion to discriminate in the sale or rental of residential real
property. This Court held that the law violated the Equal
Protection Clause because it "was intended to authorize, and
does authorize, racial discrimination in the housing market." Id.
at 381 (emphasis added).

5 For example, many groups which support state financing for
parochial schools share a common religious tradition, dating
back several thousand years, which transcends any particular
issue. Similarly, many (perhaps most) pro-life groups are
composed of individuals who share religious and cultural
characteristics which transcend the politics of abortion.

6 Logically, the right of political participation would extend to
apply against the federal government by virtue of the equal
protection component of the Fifth Amendment's Due Process
Clause. See Bolling v. Sharpe, 347 U.S.497 (1954). Thus,
identifiable groups could argue that many provisions in federal
legislation restrict their political participation by removing their
preferred issues from the political process. This application of
the newly-minted equal protection principle would stand the
Supremacy Clause on its head.