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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 the State of Colorado

BRIEF FOR PETITIONERS


GALE A. NORTON (Counsel of Record)
Attorney General of Colorado

STEPHEN K. ERKENBRACK
Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH
Solicitor General

JOHN DANIEL DAILEY
Deputy Attorney General

PAUL FARLEY
Deputy Attorney General
Colorado Department of Law
1525 Sherman Street, 5th Floor
Denver, Colorado 80203
Telephone: [phone]

REX E. LEE
CARTER G. PHILLIPS
Special Assistant Attorneys General
2840 Iroquois Drive
Provo, Utah 84604
Telephone: [phone]

ATTORNEYS FOR PETITIONERS


QUESTION PRESENTED

Whether a popularly enacted state constitutional amendment
precluding special state or local legal protections for
homosexuals and bisexuals violates a fundamental right of
independently identifiable, yet non-suspect, classes to seek such
special protections.


TABLE OF CONTENTS

QUESTION PRESENTED ............... i

OPINIONS BELOW ..................  2

JURISDICTION ................... 2

CONSTITUTIONAL PROVISIONS ....... 2

STATEMENT OF THE CASE ..............  3

A. Proceedings Below .................. 4

B. Statement of Facts. ............... 5

C. Colorado Supreme Court Opinions ...... 8

SUMMARY OF ARGUMENT ................   9

ARGUMENT

AMENDMENT 2 DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT ......... 13

A. A State's Allocation of Authorities Between Political
Subdivisions Should Not Be Disturbed Absent Exceptional
Circumstances ................ 14

B. There is No Suspect or Quasi-Suspect Class Issue in this Case
................... 16

C. There is No Fundamental "Right" for Every "Independently
Identifiable Group" to Unfettered Participation at Every Level of
Government ........ 18

1. This Court's Decisions in Hunter v. Erickson and Its Progeny
Do Not Support the Fundamental Right Identified by the
Colorado Supreme Court .......  18

2. Amendment 2 Does Not Infringe the Right to Vote or Any
Other Recognized Right Relating to Political Participation ..........
25

3. The "Right" Recognized by the Court Below Cannot Be
Upheld Under the Accepted Constitutional Analysis Embraced
by this Court ....... 28

4. The Rationale of the Decision Below is Sweeping and its
Consequences are Devastating .............. 34

D. Amendment 2 is Subject to, and Readily Satisfies, Rational
Basis Review .................... 39

1. Amendment 2 Maintains the Integrity of Civil Rights Laws
................. 41

2. Amendment 2 Enhances Individual Freedoms ..... 43

3. Amendment 2 Achieves Statewide Uniformity and Deters
Factionalism.......................  47

CONCLUSION ................................  49


TABLE OF AUTHORITIES

Adams v. Howerton, 486 F.Supp. 1119 (S.D.Cal. 1980), aff'd,
673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111 (1982)
.................  36

Anderson v. Celebrezze, 460 U.S. 780(1983) ...... 48

Arthur v. City of Toledo, 782 F.2d
565 (6th Cir. 1986)........................  25

Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal
dismissed, 409 U.S. 810 (1972) .......... 36

Beal v. Doe, 432 U.S. 438 (1977).............  37

Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989), cert. denied
sub. nom., 494 U.S. 1004 (1990) ..... 17

Bernal v. Fainter, 467 U.S. 216 (1984).......  15

Board of Directors of Rotary International v. Rotary Club of
Duarte, 481 U.S. 537(1987) ..... 44

Bob Jones Univ. v. United States,
461 U.S. 574 (1983) .......................  41

Bowers v. Hardwick, 478 U.S. 186 (1986)......  29

Cabell v. Chavez-Salido, 454
U.S. 432 (1982) .............................  16

Citizens for Responsible Behavior v.
Superior Court, 2 Cal. Rptr. 2d 648
(Cal. App. 4th Dist. 1991) ..................... 25

City of Cleburne v. Cleburne Living
Center, 473 U.S. 432 (1985) .................  13, 17

City of Eastlake v. Forest City
Enterprises, Inc., 426 U.S. 668 (1976) ........ 30

City of Springfield v. Kibbe,
480 U.S. 257 (1987) ........................  18

Coyle v. Oklahoma, 221 U.S. 559 (1911) .........  15

Crawford v. Los Angeles Bd. of Educ.,
458 U.S. 527 (1982) ...................  32, 33, 48

Davis v. Bandemer, 478 U.S. 109 (1986) ........  35

Donahue v. Fair Employment & Housing Comm'n, 2 Cal.
Rptr.2d 32 (Cal. App. 2d Dist. 1991), review dismissed, 23 Cal.
Rptr.2d 591, 859 P.2d 671 (Cal. 1993) ..................... 44

Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), reh'g
denied, 746 F.2d 1579 (D.C. Cir. 1984) ....  32

Eisenstadt v. Baird, 405 U.S. 438 (1972) ........  47

Equality Foundation of Greater Cincinnati, Inc. v. City of
Cincinnati, 838 F. Supp. 1235 (S.D. Ohio 1993), injunction made
permanent, 860 F. Supp. 417 (S.D. Ohio 1994), appeal filed,
Nos. 94-3855 and 94-3973 (6th Cir. 1994) ............   35

Ginsberg v. New York, 390 U.S. 629 (1968) ......  46

Gordon v. Lance, 403 U.S. 1 (1971) .............  23

Graham v. Richardson, 403 U.S. 365 (1971) ......  17

Grant v. Meyer, 828 F.2d 1446 (10th Cir. 1987), aff'd, 486 U.S.
414 (1988) .....................  31

Gregory v. Ashcroft, 501 U.S. 452
(1991) ........................ 10, 15, 31, 39, 40

Griswold v. Connecticut, 381 U.S.
479 (1965) ..................................  46

Harris v. McRae, 448 U.S. 297 (1980) ...........  37

Heller v. Doe, 113 S.Ct. 2637(1993) ........  39, 40

High Tech Gays v. Defense Industrial Security Clearance Office,
895 F.2d 563,  reh'g denied, 909 F.2d 375 (9th Cir. 1990)
................  17

Hill v. Stone, 421 U.S. 289(1975) ............. 26

Holt Civic Club v. City of Tuscaloosa,
439 U.S. 60 (1978)........................  10, 16

Hunter v. Erickson, 393 U.S. 385
(1969) .... 8, 11, 16, 18-25, 28, 35

Illinois State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173 (1979) ...........   8, 26

In re Estate of Cooper, 149 Misc.2d 282, 564 N.Y.S.2d 684, 687
N.Y.Sup.Ct. 1990), aff'd, 187 App.Div. 128,592 N.Y.S.2d 797,
appeal dismissed, 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d
696 (1993) ......................................  36

James v. Valtierra, 402 U.S. 137
(1971) ........................ 11, 21-25, 30, 31

Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) ..... 36

Karcher v. Daggett, 462 U.S. 725(1983) ............. 35

Korematsu v. United States, 323
U.S. 214(1944) ............................... 17

Kramer v. Union Free School Dist.,
395 U.S. 621 (1969) ...................  8, 11, 25, 26

Lalli v. Lalli, 439 U.S. 259 (1978) ............. 17

Lee v. Nyquist, 318 F.Supp. 710 (N.D.N.Y. 1970), aff'd mem.,
402 U.S. 935 (1971) ................. 25,35

Loving v. Virginia, 388 U.S. 1 (1967) ............ 17

Luther v. Borden, 48 U.S. (7 How.) 1 (1849) ... 10, 14

Maher v. Roe, 432 U.S. 464 (1977) ................ 37

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)
.......................... 24, 31

McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969 (1980)
....................  31

Meyer v. Nebraska, 262 U.S. 390(1923)..  44

Mississippi Univ. for Women v.
Hogan, 458 U.S. 718 (1982) ...............  17

Moore v. City of East Cleveland,
431 U.S. 494 (1977) ...................  29, 46

Mrazek v. Suffolk County Bd. of Elections, 630 F.2d 890 (2d
Cir. 1980) ...............  26

National Gay Task Force v. Board of Education, 729 F.2d 1270
(10th Cir. 1988), aff'd mem., 470 U.S. 903 (1985) .......................
17

New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) .......................  33

Olmstead v. United States, 277 U.S.
438 (1928) ............................   47

Padula v. Webster, 822 F.2d 97
D.C. Cir. 1987)............................. 17

Palko v. Connecticut, 302 U.S. 319 (1937) ...... 29

Palmore v. Sidoti, 466 U.S. 429 (1984) ....... 4

Pennell v. City of San Jose,
485 U.S. 1 (1988) .........................  39

Prince v. Massachusetts, 321 U.S.
158 (1944) ..............................   46

Reynolds v. Sims, 377 U.S. 533
(1964) ....................... 8, 11, 25, 26

Roberts v. United States Jaycees,
468 U.S. 609(1984) .................     41

San Antonio Independent School Dist.
v. Rodriguez, 411 U.S. 1(1973)........  15,19, 24

Singer v. Hara, 11 Wash.App. 247,
522 P.2d 1187 (1974)......................  36

Smith v. Arkansas State Highway Employees, Local 1315, 441
U.S. 463 (1979).............  27

Stanley v. Georgia, 394 U.S. 557(1969) ....... 47

Steffan v. Perry, 41 F.3d 677
D.C.Cir. 1994) .............................. 17

Storer v. Brown, 415 U.S. 724(1974) .......... 48

Sugarman v. Dougall, 413 U.S. 634 (1973) ...... 15

Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747 (1986) .........  29

Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied,
426 U.S. 940 (1976) ............... 24

United States v. Carolene Products
Co., 304 U.S. 144(1938) ............  24

Vance v. Bradley, 440 U.S. 93 (1979) ..... 12, 19, 39

Village of Belle Terre v. Boraas,
416 U.S. 1 (1974) .................... 45

~Washington v. Davis, 426 U.S. 229 (1976) ......  21

Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982)
............ 3, 9, 11,12, 22-25, 31, 35

Williams v. Rhodes, 393 U.S. 23 (1968) .... 8, 26, 27

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...... 46

Woodward v. United States, 871 F.2d 1068 (Fed.Cir. 1989), cert.
denied, 494 U.S. 1003 (1990)  ................................  17

Yee v. City of Escondido, 503 U.S.
519, 112 S.Ct. 1522 (1992) .................. 46


CONSTITUTIONAL PROVISIONS

U.S. Const. art. VI ......................  36

U.S. Const. amend.I......................... 43

U.S. Const. amend. XIV, Section 1 ....... 1, 3, 4, 9, 13, 19, 25, 28,
48

Colo. Const. art. II, Section 10 ...........  43

Colo. Const. art. II, Section 30b ........ 1, 2, 3

Colo. Const. art. IV, Section 1 .............  37

Colo. Const. art. V, Section 3 ............... 37

Colo. Const. art. V, Section 50 ............   37

Colo. Const. art. X, Section 20..............  41

Colo. Const. art. XIV, Section 3 ............  37

Colo. Const. art. XX, Section 1 ...........   37

Colo. Const. art. XX,  7 ...................  37


STATUTES

28 U.S.C. Section 1257 ........................   2

42 U.S.C. 1983 ...............................  4

Colo. Rev. Stat., Vol. 1A (1994 Supp.) .......  3


OTHER AUTHORITIES

J.S. Byrne, Affirmative Action for Lesbians and Gay Men: A
Proposal for True Equality of Opportunity and Workforce
Diversity, 11 Yale L. & Policy Rev. 47 (1993).............................
43

Council of State Governments, The Book of the States at 42-43
(1990)  ..........    30

N.E. Cunningham, In Pursuit of Reason (1987) ....  19

Denver Will Recruit Homosexual Cops, Rocky Mountain News,
Mar. 24, 1994, at 4A. ............. 43

R. Duncan & G. Young, Homosexual Rights and Citizen
Initiatives: Is Constitutionalism Unconstitutional?, 9 Notre Dame
J. of L., Ethics & Pub. Pol. 93 (1995) ..................................... 20,
34

R. Duncan, Who Wants to Stop the Church: Homosexual Rights
Legislation, Public Policy, and Religious Freedom, 69 Notre
Dame L. Rev. 393 (1994) ......... 44

The Federalist, No. 22 (A. Hamilton) ........  30

The Federalist, No. 46 (J. Madison) ..........  34

Higginson, A Short History of the Right to Petition Government
for the Redress of Grievances, 96 Yale L.J. 142 (1986)
...................    27

Legislative Council of the Colorado General Assembly, An
Analysis of 1992 Ballot Proposals, Research Publ. No. 369
(1992) ........................  6, 41

A. Lincoln, First Inaugural Address
(Mar. 4, 1861) ............................... 38

Note, The Hunter Doctrine: An Equal Protection Theory That
Threatens Democracy, 38 Vand. L. Rev. 397 (1985)
..................................... 25 37

G. Seldes, The Great Thoughts (1985) .......... 46

D.M. Smolin, Regulating Religious and Cultural Conflict in a
Postmodern America: A Response to Professor Perry, 76 Iowa L.
Rev. 1067 (1991) ..... 30

L. Tribe, American Constitutional Law
(2d ed. 1988) .............................. 24



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 the State of Colorado


BRIEF FOR PETITIONERS


The Governor of Colorado, and the State of Colorado, through
Gale A. Norton, the Attorney General of Colorado, urge this
Court to reverse the decision of the Colorado Supreme Court and
hold that Colo. Const. art. II, Section 30b ("Amendment 2") does
not violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.

OPINIONS BELOW

The opinions of the Colorado Supreme Court (Pet. App. B and
D) are reported at 882 P.2d 1335 (Colo. 1994) and 854 P.2d 1270
(Colo. 1993), respectively. The opinions of the trial court (Pet.
App. C and E) are not reported.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C.
Section 1257. The opinion of the Colorado Supreme Court was
issued on October 11, 1994, and modified on November 7, 1994.
The judgment of the Colorado Supreme Court (Pet. App. A) was
entered on November 14, 1994. Petitioners filed the petition for
certiorari on December 12, 1994. The petition was granted on
February 21, 1995.

CONSTITUTIONAL PROVISIONS

Article II,  30b of the Colorado Constitution 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 any claim of minority status, quota preferences, protected
status or claim of discrimination. This Section of the Constitution
shall be in all respects self-executing."

The Fourteenth Amendment to the Constitution of the United
States provides, in pertinent part:

"No State shall . . . deny to any person within its jurisdiction the
equal protection of the laws."

STATEMENT OF THE CASE

This case involves the validity of a Colorado constitutional
amendment, popularly known as "Amendment 2," which
precludes any state or local governmental entity from adopting or
enforcing any law or policy providing special protections for
homosexuals and bisexuals. Pet. App. D-25.[fn 1] The Colorado
Supreme Court conclusively determined that "the immediate
objective" of Amendment 2 was "to repeal existing [laws] of
state and local entities that barred discrimination based on sexual
orientation." Pet. App. D-24. At bottom, Amendment 2
constitutes a fundamental decision by the State's citizens
concerning "a particular division of authority . . . between state
and local governing bodies." Washington v. Seattle School Dist.
No. 1, 458 U.S. 457, 493 (1982). The pivotal legal issue in this
case is whether, as the Colorado Supreme Court held, the federal
Constitution dictates a different division of authority among
institutions of local government whenever the matter at issue
implicates the interests of any "independently identifiable group.
"

A. Proceedings Below.

Amendment 2 was adopted at the November 1992 general
election, by a vote of 813,966 in favor and 710,151 against
(53.4% to 46.6%). Respondents instituted this lawsuit in a
Colorado state court under 42 U.S.C. Section 1983, claiming that
Amendment 2 facially violates several provisions of the federal
constitution. The trial court preliminarily enjoined Petitioners
solely on legal grounds from enforcing Amendment 2 pending
the outcome of a trial on the merits. Pet. App. E-18.[fn 2]

On July 19, 1993, the Colorado Supreme Court affirmed the
issuance of the preliminary injunction, albeit on different
grounds. Pet. App. D. The court determined that Amendment 2
presumptively violated a "fundamental right" protected by the
Equal Protection Clause of the Fourteenth Amendment, of any
identifiable group to have political issues addressed at all levels
of government. Consequently, the Colorado Supreme Court
affirmed and remanded the matter for a trial on whether
Amendment 2.is narrowly tailored to achieve a compelling state
interest.

Trial was held October 12-22, 1993. In addition to whether
Amendment 2 was supported by a compelling state interest, the
parties also litigated whether homosexuals and bisexuals
constituted a "suspect" or "quasi-suspect" class for equal
protection purposes. The trial court ruled that homosexuals and
bisexuals do not constitute a suspect or quasi-suspect class. Pet.
App. C-18, C-19. With respect to the new "right," the court
found that Amendment 2 promotes two compelling interests --
religious freedom and familial privacy. The court nonetheless
held the provision unconstitutional because it is not narrowly
drawn to achieve those purposes in the least restrictive manner
possible. Pet. App. C-14.

On October 11, 1994, the Colorado Supreme Court affirmed,
restating its earlier holding that Amendment 2 infringes upon a
fundamental right of an identifiable group to participate equally
in the political process, and upholding the trial court's
determination that Amendment 2 was not narrowly tailored to the
State's compelling interests. Pet. App. B. The supreme court
expressly noted, however, the trial court's findings and
conclusions rejecting Respondents' suspect or quasi-suspect class
claim. Pet. App. B-6 n.3. The court further noted that
Respondents had not appealed that aspect of the case, and
accordingly refused to consider the issue. Id.

B.  Statement of Facts.

At the time Amendment 2 was proposed, a number of
governmental entities in Colorado had granted special legal
protections to homosexuals and bisexuals: three cities (Denver,
Boulder, and Aspen) had sexual orientation ordinances regulating
employment, housing, and public accommodations; the Colorado
Civil Rights Commission had voted to recommend that the
Colorado General Assembly extend the State's civil rights act to
ban discrimination based upon sexual orientation; the Governor
had issued an executive order prohibiting job discrimination for
state classified employees based on sexual orientation; at least
two state colleges had policies prohibiting discrimination based
on sexual orientation; and the General Assembly had enacted a
statute prohibiting health insurance companies from determining
insurability based on sexual orientation.[fn 3]

Believing that the General Assembly and other governmental
officials were not sufficiently responsive to the public on this
particular issue, the sponsors of Amendment 2 decided to take
the issue directly to the people. In the words of those sponsors,
Amendment 2 was intended to prevent homosexuals and
bisexuals from receiving a preferred status under state and local
laws (v. 15, pp. 731-32).[fn 4] Individuals would retain precisely
the same rights under state and federal law that they had prior to
the enactment of the special protections repealed by Amendment
2. Supporters of the Amendment claimed that the extension of
minority status or preference laws to include sexual orientation
would be tantamount to granting special rights, which are not
enjoyed by the public at large. Indeed, as one of the civil rights
experts observed,

"every civil rights provision ends up awarding special privileges.
And, it does that because the property right is vested in the
owner. The right to rent or dispose is one of the great and
honored roots in our society. So if you redefine a class that has a
right to limit your discretion in disposal and use, you have
transferred the property right from the prior title holder to this
class. And, that constitutes a very large privilege."

v. 17, p. 1194.

Amendment 2 faced significant opposition, including many
prominent figures and organizations, such as the Governor, the
Colorado Civil Rights Commission, the American Civil Liberties
Union, the League of Women Voters, at least 300 Denver area
religious leaders, and most of the newspapers in the State (v. 15,
pp. 740-43, 787; v. 16, pp. 1044, 1050). Amendment 2's
opponents outspent its supporters by a nearly 2-1 margin (v. 15,
pp. 747-48; v. 16, p. 1046; Df. Ex. S). Even so, the people
approved Amendment 2 after a spirited campaign which the trial
court found to be a classic example of democratic self-
government:

"[W]hat I saw was a group of Colorado citizens who wanted to
present an initiative to the voters. They said we would like the
voters of Colorado to look at this. So they acquired signatures.
They presented things to the state government. They followed the
political process, and they got it on the ballot. And they lobbied
for or were part of a lobbying effort for the passage of the
Amendment, and that involved spending money and presenting
their views.

There was absolutely nothing wrong with that. As a matter of
fact, this is exactly in keeping with the political process that this
country is based on. And this Court, should there be an attack on
that process, would vigorously defend those persons who have
been involved with that process because they have followed
exactly what democracy urges."

Pet. App. E-10.

C. Colorado Supreme Court Opinions.

The cornerstone of the Colorado Supreme Court's first opinion in
this case was its conclusion that "laws may not create unequal
burdens on identifiable groups with respect to the right to
participate in the political process absent a compelling state
interest." Pet. App. D-14. According to the majority, this concept
found its "most explicit, and nuanced, articulation" in Hunter v.
Erickson, 393 U.S. 385 (1969), and its progeny. Pet. App. D-14.
[fn 5] Interpreting Hunter as not limited to "special burdens on
racial minorities within the governmental process," the court
below found that Amendment 2 infringed upon a "fundamental
right to participate equally in the political process" because
homosexuals and bisexuals were no longer "free to appeal to
state and local government for protection against discrimination
based upon their sexual orientation ...." Pet. App. D-14, D-25 and
D-27.

In its second opinion, the Colorado Supreme Court reaffirmed its
core holding, addressed the various governmental interests
asserted by the State, and held that Amendment 2 is
unconstitutional under strict judicial scrutiny. Pet. App. B-7
through B-22.

Justice William H. Erickson dissented in both appeals because
the majority had blurred "fundamental rights" cases with "suspect
class" cases, and selectively used language from each, to create a
heretofore unknown federally-mandated group-based
fundamental right. Pet. App. B-37; Pet. App. D-42 through D-43.
Justice Erickson found that this Court's decisions, as well as the
analysis of constitutional scholars, refute the existence of any.
such fundamental right. Rather, he said, this Court's cases
support strict-scrutiny review only where a suspect class is
adversely affected by a restructuring of the political process. Pet.
App. D-55. In Justice Erickson's view, the appropriate standard
of review under the Equal Protection Clause is the rational basis
test, and Amendment 2 easily satisfies this test. Pet. App. B-46
through B-53.

SUMMARY OF ARGUMENT

The question in this case is even more "extraordinary" than the
one in Washington v. Seattle School Dist. No. 1, 458 U.S. at 459.
Here, local governments and individual citizens seek to use the
Fourteenth Amendment not to protect a racial minority, but to
immunize from preemption special protections that have been
conferred upon homosexuals and bisexuals.

The Colorado Supreme Court has created out of whole cloth a
new fundamental "group right" not to be "fenced out" from
unfettered political participation at all levels of government. This
theory embodies a revolutionary change in the structure of state
and local political authority, subverting the rule this Court has
followed for almost 150 years that "the sovereignty in every
State resides in the people of the State, and . . . they may alter
and change their form of government at their own pleasure."
Luther v. Borden, 48 U.S. (7 How.) 1, 47 (1849). See also
Gregory v. Ashcroft, 501 U.S. 452, 462 (1991). The reasoning of
the court below does profound violence to settled understandings
of the authority of, and respect for, popular government at the
state level. It does so without the remotest support in any prior
decision of this Court. Applying either general equal protection
analysis or fundamental rights analysis, the decision below
should be reversed.

A.

The intent and effect of Amendment 2 is to withdraw a deeply
divisive social and political issue from elected representatives
and place its resolution squarely in the hands of the people. Core
principles of federalism have led this Court to grant States
"extraordinarily wide latitude," Holt Civic Club v. City of
Tuscaloosa, 439 U.S. 60, 71 (1978), in such internal allocations
of authority among political institutions. Rare in any context,
heightened scrutiny is almost never appropriate where, as here,
the challenged state action goes to the heart of state sovereignty.
Thus, on its face, Amendment 2 carries with it a strong
presumption of constitutionality.

B.

This Court's decisions recognize one clear exception to the rule
that state allocations of decisionmaking power are presumed
constitutional, viz., when the state action constitutes a
"meaningful and unjustified official distinction based on race."
Hunter v. Erickson, 393 U.S. 385, 391 (1969); Seattle School
Dist., 458 U.S. at 470. However, any claim that Respondents
should be accorded the same "suspect class" treatment as racial
minorities has been strategically waived by Respondents both in
the Colorado Supreme Court and in this Court.

C.

Because federal judicial interference with sensitive and core
political choices involves an extraordinary departure from the
traditional approach demanded by our federalist system, this
Court has steadfastly refused to extend Hunter beyond the
context of racial minorities. James v. Valtierra, 402 U.S. 137,
141 (1971). This Court should follow that course in this case.

The new fundamental "group right" recognized below finds no
support in any previous decision of this Court, and certainly not
in the voting cases relied upon by the lower court. -See Reynolds
v. Sims, 377 U.S. 533 (1964); Kramer v. Union Free School
Dist., 395 U.S. 621 (1969). Nothing in Amendment 2 deprives
anyone of a right to vote, or to have access to the ballot, or to
petition government or to exercise any other fundamental right.
Amendment 2 merely reserves to the people the issue of special
protections for homosexuals and bisexuals. Thus, the voting
cases on which the court below relied support the
constitutionality of Amendment 2, which is itself the product of a
popular vote. Respondents retain complete freedom to employ
the same democratic processes that led to Amendment 2, to
reallocate power in the future in ways that they regard as~ more
appropriate.

Furthermore, it is simply impossible, under this Court's equal
protection jurisprudence, to characterize an independently
identifiable group's ability to define the agendas of all levels of
government as a "fundamental right." In fact, this Nation's
history and traditions authoritatively preclude any such
conclusion. Seattle School Dist., 458 U.S. at 480 n.23. Finally,
the "identifiable group-political participation" theory adopted by
the Colorado Supreme Court, if upheld, would cast constitutional
doubt on a wide range of state and federal legislation, because
the definition embraces virtually every conceivable group. No
persuasive rationale has been offered by the court below or
Respondents to support this proposed sea change in the law.

D.

Amendment 2 is properly subject to rational basis scrutiny and
readily satisfies that standard. This Court has held that it "will
not overturn. . . a statute unless the varying treatment of different
groups 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 v. Bradley, 440 U.S.
93, 97 (1979). Amendment 2 unquestionably is rationally related
to a number of legitimate state interests, including three which
the lower courts found so convincing as to be "compelling"
(albeit, not narrowly tailored).

The interests advanced by Amendment 2 fall into three general
categories. First, given limited resources, the people of Colorado
plainly could conclude that anti-discrimination protections
should be reserved for those who are particularly deserving of
special protection. Second, eliminating anti-discrimination
provisions that compel landowners and religious institutions to
open their facilities to homosexuals and bisexuals is a rational
means of protecting the legitimate prevailing preferences of the
State's population. Moreover, eliminating the regulatory burdens
on privacy and associational interests embodied in the local laws
that Amendment 2 preempted, furthers the rational basis which
has variously been described as "that government is best which
governs least." Finally, a single uniform rule has inherent
advantages for efficient law enforcement. Eliminating divergent
legal standards is certainly a legitimate choice that also
eliminates the city-by-city and county-by-county political battles
that prevailed prior to Amendment 2. In sum, Amendment 2 is a
rational means of implementing legitimate governmental goals
and as such it is plainly constitutional.

ARGUMENT

AMENDMENT 2 DOES NOT VIOLATE THE EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.

Ike Fourteenth Amendment's Equal Protection Clause is
"essentially a direction that all persons similarly situated Center,
473 U.S. 432, 439 (1985). The "general rule is that legislation is
presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state
interest. " Id. at 440. This general rule of deference gives way
only in those rare instances when statutes either utilize "suspect"
or-"quasi-suspect" classifications, or infringe upon fundamental
constitutional rights. Id. at 440-41. And where, as here, the
challenged decision is a State allocation of authority among
political subdivisions, this Court has recognized that intrusive
heightened scrutiny is almost never appropriate.

No suspect class, quasi-suspect class, or fundamental right is
implicated here. Nor can the new "right" recognized by the court
below be upheld under any accepted method of constitutional
analysis. To the contrary, affirmance would work a revolution in
this Court's equal protection jurisprudence, and would deeply
undermine traditional self-government.

A. A State's Allocation of Authority Between Political
Subdivisions Should Not Be Disturbed Absent Exceptional
Circumstances.

Through Amendment 2, a majority of Colorado citizens
rationally chose to withdraw consideration of the question of
special legal protections for a concededly non-suspect class from
their state and local governmental bodies. It placed this issue
exclusively in the hands of the people, preserving Respondents'
rights to employ the same electoral process to overturn
Amendment 2, if they persuade their fellow citizens that such a
course would be more appropriate. The decision below is nothing
less than a direct attack on the way the people of Colorado have
chosen to govern themselves, through allocating power between
themselves and their elected representatives -- a matter that
indisputably goes to the heart of state sovereignty. See, e.g.,
Luther v. Borden, 48 U.S. (7 How.) at 47 ("the sovereignty in
every State resides in the people of the State, and . . . they may
alter and change their form of government at their own
pleasure").

Of course, "[q]uestions of federalism are always inherent in the
process of determining whether a State's laws are to be accorded
the traditional presumption of constitutionality, or are to be
subjected instead to rigorous judicial scrutiny. " San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973). There
is no area in which the presumption of constitutionality finds
stronger support than a State's discharge of its "constitutional
responsibility for the establishment and operation of its own
government...." Gregory v. Ashcroft, 501 U.S. at 462; cf. Coyle
v. Oklahoma, 221 U.S. 559 (1911). Thus, this Court has
consistently recognized that equal protection "scrutiny will not
be so demanding where we deal with matters resting firmly
within a State's constitutional prerogatives. " Gregory v.
Ashcroft, 501 U.S. at 469 (quoting Sugarman v. Dougall, 413
U.S. 634. 648 (1973)).[fn 6]

These bedrock principles of federalism demand that this Court
accord States "extraordinarily wide latitude. . . in creating various
types of political subdivisions and conferring authority upon
them " or in withdrawing authority from them. Holt Civic Club
v. City of Tuscaloosa, 439 U.S. 60, 71 (1978). This is in accord
with the long-standing rule observed by this Court that:

"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 entrusted to them.
The State, therefore, at its pleasure may modify or withdraw all
such powers, . . . conditionally or unconditionally, with or
without the consent of the citizens, or even against their protest.
In all of these respects the State is supreme, and its legislative
body conforming its action to the state constitution, may do as it
will, unrestrained by any provision of the Constitution of the
United States."

Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907).

"Judicial incursions in this area may interfere with those aspects
of democratic self-government that are most essential to it,"
Cabell v. Chavez-Salido, 454 U.S. 432, 440 (1982), and
Respondents therefore bear an especially heavy burden in urging
this Court to create new "fundamental rights" that would justify
heightened scrutiny of a wide range of decisions at the heart of
state sovereignty.

B. There is No Suspect or Quasi-Suspect Class Issue in this Case.

Both the Colorado Supreme Court and Respondents expressly
recognize that this is not a "suspect" or "quasi-suspect" class
case. This Court has held that only five classifications are
entitled to heightened scrutiny,[fn 7] and has been reluctant to
extend that scrutiny to additional classifications. See Cleburne,
473 U.S. at 441. Indeed, despite numerous invitations, this Court
has declined to do so-for over seventeen years. This Court has no
occasion to consider that question here: as Respondents
themselves admit, after an extensive trial, the trial court rejected
their claim that they qualified for suspect or quasi-suspect class
protection,[fn 8] and they did not appeal that ruling. Opp. at 14;
see also Pet. App. B-6 n.3.

Indeed, Respondents not only chose for strategic reasons not to
preserve the issue in proceedings below, but also, in urging this
Court to deny certiorari, they expressly relied upon that choice as
a reason for denying the petition. Opp. at 14; see, e.g., City of
Springfield v. Kibbe, 480 U.S. 257, 258-59 (1987) (dismissing
writ as improvidently granted where argument was neither
briefed nor argued to the court of appeals nor raised at the
petition stage); Yee v. City of Escondido, 503 U.S. 519,___, 112
S. Ct. 1522, 1533 (1992) (Court considers questions not raised at
the petition stage only in "the most exceptional cases").

Here, then, the issue is simply whether Amendment 2 infringes
upon a heretofore unknown federally-guaranteed fundamental
right. As the Colorado Supreme Court admitted, this "right" is
not directly attributable to any case or set of cases decided by this
Court, but rather to a "principle" intuited from four separate,
distinct lines of authority. Pet. App. D-13 through D-14. For the
reasons that follow, none of those lines of authority -- either
separately or together -- supports the extraordinary group right
utilized by the court below to strike down Amendment 2.

C. There is No Fundamental "Right" for Every "Independently
Identifiable Group" to Unfettered Participation at Every Level of
Government.

1. This Court's Decisions in Hunter v. Erickson and Its Progeny
Do Not Support the Fundamental Right Identified by the
Colorado Supreme Court.

Our system of government presumes that "even improvident
decisions will 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." Vance v.
Bradley, 440 U.S. at 97.[fn 9] Except where otherwise required
by the Constitution, "[i]t is not the province of this Court to
create substantive constitutional rights in the name of
guaranteeing equal protection of the laws." San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. at 33 (public
education not a fundamental right).

The "right" of every independently identifiable group to
participate fully in all phases of the political process identified by
the Colorado Supreme Court has no basis in the text of the
Constitution. Nor, as the court below acknowledged, has this
Court ever recognized any such "right." Indeed, if anything, this
Court has repeatedly rejected it, as evidenced by the line of cases
commencing with Hunter v. Erickson, upon which the court
below so heavily relied. Under Hunter and its progeny, the Equal
Protection Clause only prohibits efforts to realign the political
process in a manner designed to harm a racial minority.
Inexplicably, the Colorado Supreme Court invoked this same line
of cases to reach the exact opposite conclusion.

In Hunter, this Court reviewed an amendment to a city charter
that repealed a racial anti-discrimination ordinance, and required
voter approval before such an ordinance could be put into effect.
Characterizing the amendment as placing "special burdens on
racial minorities within the governmental process," this Court
observed:

"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 classification."

393 U.S. at 391-92 (citations omitted).

Notwithstanding the facial clarity of this Court's holding, the
Colorado Supreme Court reasoned that the "complexity" of the
Hunter opinion indicated that the decision could not be based
solely on race. Thus, the court below concluded that a general
right to participate politically must have been a central element
of this Court's holding. The Colorado Supreme Court's
interpretation turns the opinion in Hunter on its head.[fn 10] The
difficult analysis in Hunter was not the concern for political
participation, but instead was the problem of determining
whether Hunter was a racial minority case. If political
participation had been the linchpin of the analysis, it would have
been wholly unnecessary to decide the much more difficult issue
whether the facially neutral city ordinance constituted a
"meaningful and unjustified official distinction based on race. "
393 U.S. at 391. See Washington v. Davis, 426 U.S. 229, 239
(1976). And this Court's comprehensive analysis of that issue
demonstrates plainly that race was the determinative factor in the
case.[fn 11]

Two years later, this Court unequivocally refused to extend
Hunter to non-suspect classes. James v. Valtierra, 402 U.S. 137
(1971), concerned the validity of a California constitutional
provision prohibiting state public bodies from developing,
constructing, or acquiring low income housing projects without
prior approval by a majority vote in a city, town, or county
referendum. A lower court had ruled, based on its reading of
Hunter, that the California measure unconstitutionally
discriminated against poor people in the exercise of their right to
seek redress from governmental authorities. This Court
disagreed, finding that, unlike in Hunter,

"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.
[Respondents] suggest that the mandatory nature of the Article
XXXIV referendum constitutes 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. But, of course, a law-making procedure that
"disadvantages" a particular group does not always deny equal
protection."

Id. at 141-42 (emphasis supplied).

In its initial opinion, the Colorado Supreme Court rewrote James
by characterizing it as ''best understood as a case declining to
apply suspect class status to the poor, and not as a limitation on
Hunter." Pet. App. D-20 through D-21 n.21. That
characterization is mystifying. Hunter did not apply to the poor,
because poverty is not a suspect classification, much less a racial
classification. That reasoning should control this case as well.

In Seattle School Dist., this Court again reaffirmed race as the
touchstone for the Hunter doctrine. There this Court invalidated a
voter-initiated statute which removed the power of school boards
to order busing to desegregate schools. This Court confirmed that
"the political majority may generally restructure the political
process to place obstacles in the path of everyone seeking to
secure the benefits of governmental action." It is only "when the
State allocates governmental power nonneutrally, by explicitly
using the racial nature of a decision to determine the
decisionmaking process" that a different analysis is required. 458
U.S. at 470 (emphasis in original). Indeed, as the majority noted,
the core rationale of this line of cases is:

"when the State's allocation of power places unusual burdens on
the ability of racial groups to enact legislation specifically
designed to overcome the `special condition' of prejudice, the
governmental action seriously `curtail[s] the operation of those
political processes ordinarily to be relied upon to protect
minorities.' In a most direct sense, this implicates the judiciary's
special role in safeguarding the interests of those groups that are
`relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political
process.'"

Id. at 486 (emphasis supplied) (citations omitted).[fn 12]

Thus, Hunter, James, and Seattle School Dist.[fn 13] call for
strict scrutiny only when the political process has been
restructured to place unusual burdens upon "those groups . . to
command extraordinary protection from-the majoritarian
political process." Seattle School Dist., 458 U.S. at 486; see also
James, 402 U.S. at 141-42. The case is, therefore, this simple: the
Hunter rule comes into play only to protect racial minorities -- or
at its most expansive, members of a suspect class.[fn 14] Thus,
Hunter provides no support for the holding below.[fn 15]

2. Amendment 2 Does Not Infringe the Right to Vote or Any
Other Recognized Right Relating -- to Political Participation.

The Colorado Supreme Court also claimed support for its
decision from cases such as Reynolds v. Sims, 377 U.S. 533
(1964) and Kramer v. Union Free School Dist., 395 U.S. 621
(1969). Those cases concern the fundamental right to vote, not
the "identifiable group right to political participation" intuited by
the court below. Reynolds v. Sims, for example, stands for the
proposition that the right to vote, read together with the Equal
Protection Clause, requires the representation of like numbers of
people, rather than geographic areas. And Kramer v. Union Free
School Dist. held only that the right to vote may not be voided on
the basis of whether one is a property owner or a parent.

At root, these voting cases involve the ~ process of electing
representatives. They do not concern the range of issues that all
voters may or may not vote upon. They certainly do not implicate
a restructuring of the overall political process. See, e.g., Mrazek
v. Suffolk County Bd. of Elections, 630 F.2d 890, 898 (2d Cir.
1980) ("The one-person, one-vote doctrine requires no more, and
does not create rights and privileges beyond the warranty of
mathematical equivalency of votes"). And Amendment 2 does
not present a case where homosexuals and bisexuals have been
denied the right to vote in upcoming elections,[fn 16] or where
reapportionment or other state action has diluted the value of
their individual votes.[fn 17]

The court below further attempted to justify its ruling on the
basis of this Court's decisions in Williams v. Rhodes, 393 U.S.
23 (1968), and Illinois.State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 1?3 (1.979). Those cases are likewise
wholly inapposite. In Williams, this Court held that a complex
state statutory scheme violated the rights to vote and to associate,
because it had the effect of excluding from the ballot all but the
candidates of the two major political parties. In Illinois State Bd.
of Elections, this Court reviewed a scheme that placed higher
burdens on new or third-party candidates for local offices than
for statewide offices. As in Williams, this Court struck down the
scheme because it placed an unacceptable burden upon the rights
to vote and to associate. Neither case stands for anything more
than that the Constitution will not permit burdens on access to
the ballot which are designed to protect the established parties.

Amendment 2, of course, presents no obstacles whatsoever to
particular candidates or political parties. Indeed, homosexuals
and bisexuals have the same access to the ballot -- including the
initiative process through which Amendment 2 was adopted -- as
all other Colorado citizens. Rather than burdening any person's
rights to vote or associate, Amendment 2 simply raises a certain
issue to a constitutional level. Neither the fundamental right to
vote, nor the right to petition government, encompasses a right to
require the state legislature or a local government to entertain
matters that are beyond its authority to address. See Smith v.
Arkansas State Highway Employees, Local 1315, 441 U.S. 463,
464-65 (1979). See also Higginson, A Short History of the Right
to Petition Government for the Redress of Grievances, 96 Yale
L.J. 142, 142-43, 159-61, 165-66 (1986).[fn 18]

Respondents continue to have precisely the same rights as
anyone else who has lost an election. They may continue to
participate fully in all of Colorado's political processes; what
they do not have is a right to successful participation in those
processes. Thus, to the extent they are relevant at all, the voting
cases support the validity of Amendment 2,-which came about as
the result of a statewide vote. The right to vote can be infringed
just as effectively by nullifying votes as by preventing them from
being cast in the first place;

It is quite apparent, then, that the "'precondition,'
'reapportionment,' and 'candidate eligibility' cases are not
dispositive of, or directly controlling on," the case at bar. Pet.
App. D-13. It is further apparent that the Hunter-doctrine is not
the "principle [which] unifies these cases, despite the different
factual and legal circumstances presented in each of them. " Id. at
D-14. The cases that actually provide a unifying principle
governing this case are those that hold that, absent a clearly
applicable constitutional impediment, States are completely free
to structure their governmental decisionmaking authority without
judicial interference. Colorado's Amendment 2 fits squarely
within that principle and therefore should be upheld because it
rationally serves legitimate governmental purposes.

3. The "Right" Recognized by the Court Below Cannot Be
Upheld Under the Accepted Constitutional Analysis Embraced
by this Court.

The group "right" to political participation identified by the court
below as fundamental is also wholly inconsistent with this
Court's accepted methodology for identifying fundamental rights.
At the outset, the decision below is fatally flawed because it blurs
and attempts to fuse fundamental rights and equal protection
jurisprudence into a new "substantive equal protection." The
Equal Protection Clause serves as a mechanism for balancing
competing constitutional interests. Where a suspect classification
or fundamental right is present, the balance usually tips in favor
of the individual. However, the Clause is not, itself, a source of
fundamental rights; such rights must be found elsewhere in the
Constitution.

Fundamental rights are those "'implicit in the concept of ordered
liberty,' such that 'neither liberty nor justice would exist if [they]
were sacrificed."' Bowers v. Hardwick, 478 U.S. 186, 191-92
(1986) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 326
(1937)). Such rights have also been characterized as "deeply
rooted in this Nation's history and tradition." Id. (quoting Moore
v. City of East Cleveland, 431 U.S. 494, 503 (1977). The utility
of these approaches

"lies in their effort to identify some source of constitutional value
that reflects not the philosophical predilections of individual
judges, but basic choices made by the people themselves in
constituting their system of government . . . and they seek to
achieve this end through locating fundamental rights either in the
traditions and consensus of our society as a whole or in the
logical implications of a system that recognizes both individual
liberty and democratic order."

Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747, 747 (1986) (White, J., dissenting)
(citation omitted). See Bowers v. Hardwick, 478 U.S. at 192-94
(applying traditions and consensus tests).[fn 19]

The "right" to demand preferential treatment from any level of
state or local government is neither "deeply rooted in this
Nation's history and tradition," nor "implicit in the concept of
ordered liberty." Quite to the contrary~, this "right" represents a
radical departure from our democratic traditions, and the
resulting political chaos is the antithesis of any notion of ordered
liberty. "The fabric of American empire ought to rest on the solid
basis of the consent of the people. The streams of national power
ought to-flow immediately from that pure, original fountain of all
legitimate authority." The Federalist, No. 22 (A. Hamilton)
(emphasis in original).

The people may legitimately give their consent to their
government either through elected representatives, or through
direct participation. "The referendum. . . is a means for direct
political participation, allowing the people the final decision,
amounting to veto power, over enactments of representative
bodies. This practice is designed to 'give citizens a voice on
questions of public policy."' City of Eastlake v. Forest City
Enterprises, Inc., 426 U.S. 668, 673 (1976) (quoting James v.
Valtierra, 402 U.S. at 141). Indeed, in every State, the people
themselves retain the power to approve or disapprove
amendments to their respective constitutions,[fn 20] and
"[p]rovisions for referendums demonstrate devotion to
democracy, not to bias, discrimination, or prejudice." James v.
Valtierra, 402 U.S. at 141.[fn 21]

Even a referendum that "disadvantages"~a particular group is
presumptively valid, unless it targets a suspect class. Id. at 141-
42. Indeed, as recently as 1991, this Court in Gregory v. Ashcroft
evaluated a State's mandatory retirement scheme for judges under
the rational basis test, despite the obvious fact the scheme
discriminated against a group -- the elderly -- which has been,
and still is, the subject of discrimination. See, e.g., Massachusetts
Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976).

As was the case in Gregory, the people retain the right to decree
that these decisions may be made only at the highest level: the
state constitution. There simply is no "vested constitutional right
to local decisionmaking, " Seattle School Dist., 458 U.S. at 480
n.23; for this reason, Colorado, like other States,

"permits persons who are dissatisfied at a local level to appeal to
the state legislature or the people of the State for redress. It
permits the people of a State to pre-empt local policies, and to
formulate new programs and regulations. Such a process is
inherent in the continued sovereignty of the States. This is our
system. Anytime a State chooses to address a major issue some
persons or groups may be disadvantaged. In a democratic system
there are winners and losers. But there is no inherent unfairness
in this and certainly no constitutional violation."

Seattle School Dist., 458 U.S. at 496 (Powell, J., dissenting).[fn
22]

Rather than permitting the range of issues associated with
homosexuality to be widely debated and determined through the
political process, however, the Colorado Supreme Court has
determined that the federal Constitution dictates the terms of
political debate. Its decision slashes across core constitutional
values of state sovereignty and self-government, making any
distinction made by government in the establishment of its
political structure vulnerable to constitutional attack. It is
indisputable that under this Court's well-settled precedent the
Colorado General Assembly was constitutionally free not to pass
laws giving homosexuals and bisexuals protected status, to repeal
any such previously enacted laws, and to refuse to pass any
similar laws in the future. See Crawford v. Los Angeles Bd. of
Educ., 458 U.S. 527 (1982).

In Crawford, this Court upheld a California constitutional
amendment prohibiting state courts from ordering race-based
public school student assignments, unless required under the
federal Constitution. "[H]aving gone beyond the requirements of
the Federal Constitution, the State was free to return in part to the
standard prevailing generally throughout the United States. " Id.
at 542. However, under the reasoning of the Colorado Supreme
Court, the California provision "fenced out" an "identifiable
group" -- in that case, a suspect class -- from the ordinary
political process. Nonetheless, this Court upheld the measure 8-1,
noting that "We reject an interpretation of the Fourteenth
Amendment so destructive of a State's democratic processes and
its ability to experiment. This interpretation has no support in the
decisions of this Court." Id. at 535. Cf. New State Ice Co. v.
Liebmann, 285 U.S. 262, 311 (1932) Brandeis, J., dissenting).

Crawford controls this case. Through Amendment 2, Colorado
has simply defined the package of civil rights available to
homosexuals and bisexuals under the Colorado Constitution as
no larger than that provided by the Constitution and laws of the
United States. The only difference between the two cases is that
Crawford dealt with a suspect classification, and this case does
not.

Achieving this same result through the people themselves, rather
than their representatives, can hardly be suspect; indeed, it cannot
be seriously maintained that the people have less power than
their elected representatives. Rather, the cornerstone of our
constitutional system is that the people are the source of all
governmental authority, and retain the power to control their
representatives:

"[T]he ultimate authority, wherever the derivative may be found,
resides in the people alone, and that it will not depend merely on
the comparative ambition or address of the different governments
whether either, or which of them, will be able to enlarge its
sphere over the other. Truth, no less than decency, requires that
the event in every case should be supposed to depend on the
sentiments and sanction of their common constituents."

The Federalist, No. 46 (J. Madison). Surely, the traditions of this
country, and concepts of ordered liberty do not mandate that
representatives must be masters of their constituents.

4. The Rationale of the Decision Below is Sweeping and its
Consequences are Devastating.

The "right" identified by the Colorado Supreme Court extends to
all identifiable groups, and is effectively unqualified. If, as
Respondents and the courts below concede, sexual orientation is
not a suspect classification, there plainly is no principled way to
limit the scope of the group "right" recognized by the Colorado
Supreme Court. Accordingly, that "right" can be used to attack a
wide range of routine federal and state legislation.[fn 23]

What makes this result breathtaking is the impossibility of
confining in any meaningful way the concept of "independently
identifiable groups" which are entitled to heightened judicial
scrutiny when they challenge adverse legislative action. Any
conceivable group, from a boy scout troop to a group of tax
protestors, fits the definition.

Furthermore, the Hunter doctrine that Respondents seek to
extend beyond the suspect class context, makes no distinction
regarding constitutional provisions, and applies with equal vigor
to statutes, ordinances, and any other governmental action. See
Hunter v. Erickson (voter-initiated charter amendment); Equality
Foundation of Greater Cincinnati, Inc. v. City of Cincinnan, 838
F. Supp. 1235, 1241 (S.D. Ohio 1993), injunction made
permanent, 860 F. Supp. 417 (S.D. Ohio 1994), appeal filed,
Nos. 94-3855 and 94-3973 (6th Cir. 1994) (same); Seattle School
Dist. (voter-initiated statute); and Lee v. Nyquist, 318 F. Supp.
710 (W.D.N.Y. 1970), aff'd mem., 402 U.S. 935 (1971) (statute
passed by state legislature).

Consequently, extending the Hunter doctrine to non-racial
classifications calls into question every federal and state measure
that draws a distinction between different groups of people -- and
there are few measures that do not draw such distinctions.
Although superficially appealing, "identifiable group" analysis
quickly becomes a morass, as beliefs and conduct become
blurred with immutable characteristics. See, e.g., Davis v.
Bandemer, 478 U.S. 109, 147 (1986) (O'Connor, J., concurring)
("identifiable group" is one "that possesses distinctive interests
and tends to vote on the basis of those interests," including
"political, religious, ethnic, racial, occupational, and
socioeconomic groups"); Karcher v. Daggett, 462 U.S. 725, 754
n.12 (1983) (Stevens, J., concurring) ("Identifiable groups will
generally be based on political affiliation, race, ethnic group,
national origin, religion, or economic status, but other
characteristics may become politically significant in a particular
context.")

A vast array of federal tax, regulatory, and social legislation
affects groups that are "independently identifiable" based upon
income, occupation, residence, health, age, or any number of
other factors. State laws that might provide greater benefits or
protections to any of these groups are preempted if they conflict
with the purposes of federal legislation. U.S. Const. art. VI.
Under the Colorado Supreme Court's reasoning, however, every
such instance of preemption may violate the equal protection
rights of the affected group to seek additional benefits at the state
or local level

Moreover, Colorado, like other States, through tax, safety,
environmental, and other legislation, routinely makes distinctions
between, and imposes burdens on, ''identifiable groups" on the
basis of income, occupation, property ownership, residency --
even sexual orientation.[fn 24] The Colorado Constitution,
likewise, burdens "identifiable groups" that desire public
abortion funding, the re-election of incumbent officials, the
reorganization of certain school districts, and certain municipal
annexations. If homosexuals and bisexuals are "fenced out" by
Amendment 2's prohibition of special protections, then surely
those who favor public funding for the fundamental right to an
abortion are "fenced out" by the restrictions of Colo. Const. art.
V, Section 50; advocates for any other medical procedure must
seek only a statute.[fn 25] Those who favor the reelection of
incumbent state officials are "fenced out" by Colo. Const. art. IV,
Section 1; Colo. Const. art. V, Section 3. Certainly, the many
parents who do not want their children included in the Denver
Public Schools would believe they are "fenced out" by Colo.
Const. art. XX, Section 7; residents of any other school district
may divide or reorganize their district by obtaining a statute. The
citizens of the City and County of Denver are "fenced out" from
annexing property in the same manner as citizens in other
municipalities by Colo. Const. art. XX, Section 1 and art. XIV,
Section 3.

In truth, any distinction made by government in the
establishment of its political structure would be vulnerable to
constitutional attack under the lower court's theory. Under the
Colorado Supreme Court's ruling, any individual voter whose
cause is unsuccessful in a referendum would be entitled to
overturn that referendum, simply because the majority imposed
its will on a minority concern. Major public policy issues could
never be decisively settled through the political process;
government would be obliged continually to reconsider every
policy choice. See Note, The Hunter Doctrine: An Equal
Protection Theory That Threatens Democracy, 38 Vand. L. Rev.
397, 428 (1985) ("Taken to its logical extreme, then, the equal
protection clause could establish a tyranny of the minority, or,
worse, the courts, over the will of the people.") (emphases in
original).[fn 26]

The principle adopted by the court below is also incoherent
because it leads to equally valid constitutional claims on both
sides of every political issue. For example, under the decision
below, a state constitutional amendment preempting local
ordinances that allow public cigarette smoking would violate the
constitutional right of smokers, an independently identifiable
group, to have their cause determined at the local level. The
theory adopted below, however, would give rise to a competing
and equally valid claim on the other side -- the right of non-
smokers to have their interests decided at the state level. Indeed,
neither the court below nor Respondents have any principled
explanation for why the supporters of Amendment 2 do not have
an equally compelling right to have their interests determined at
the state level.

Only the clearest constitutional justification could support such
revolutionizing of traditional methods of government. The desire
of interest groups to be free of measures designed to place
ultimate policy decisions in the hands of the people simply
cannot justify shifting away from a presumption of
constitutionality in favor of intrusive heightened judicial
scrutiny.

D. Amendment 2 is Subject to, and ~Readily Satisfies, Rational
Basis Review.

Because Amendment 2 does not infringe upon any fundamental
right, its validity depends solely on whether "there is a rational
relationship between the disparity of treatment and some
legitimate governmental purpose. " Heller v. Doe, 113 S. Ct.
2637, 2642 (1993). Under the rational basis test, this Court:

"will not overturn . . . a statute unless the varying treatment of
different groups 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 v. Bradley, 440 U.S. at 97. Accord Gregory v. Ashcroft,
501 U.S. at 470-71 (applying rational basis test to state
constitutional provision). In applying this test, this Court asks
only whether there is any reasonably conceivable state of facts
that provide a rational basis for the classification. Heller, 113 S.
Ct. at 2642. "A State . . rationality of a statutory classification."
7d. at 2643. Rather, "'the burden is on the one attacking the
legislative arrangement to negative every conceivable basis
which might support it,' whether or not the basis has a foundation
in the record." Id. Accord Gregory v. Ashcroft, 501 U.S. at 470-
71; Pennell v. City of San Jose, 485 U.S. 1, 14 (1988).

The rational basis inquiry in this case does not depend upon mere
theory, however, because the State argued, and presented
convincing evidence, that in removing or preventing
governmental regulation in this area, Amendment 2 promotes
freedom of choice (relating to matters of personal and familial
privacy, religion, and association), furthers several legitimate
societal concerns (relating to the integrity of civil rights laws and
the contours of social and moral norms). and achieves statewide
uniformity.

Significantly, neither the trial court nor the Colorado Supreme
Court found any of these purposes to be illegitimate or
unreasonable. Indeed, between them, the two courts recognized
that there are three "compelling" public purposes served -- albeit
inexactly -- by Amendment 2. Those interests were the
promotion of religious freedom, the promotion of familial
privacy, and the preservation of associational privacy. Pet. App.
B-11 and B-13; Pet. App. C-14. Because the means need not be
narrowly tailored to achieve these ends under the rational basis
test,[fn 27] these interests would, a fortiori, satisfy that test.

Given the nature of the rational relationship standard, many other
rational justifications undoubtedly could be established. No
useful purpose would be served in attempting to canvass
exhaustively the field of legitimate objectives. Instead, the State
demonstrated below that the interests identified plainly satisfy
the rational basis standard.

1. Amendment 2 Maintains the Integrity of Civil Rights Laws.

The supporters of Amendment 2 were acutely aware that laws
and policies designed to benefit homosexuals and bisexuals could
have an adverse effect on the ability of state and local
governments to combat discrimination against suspect classes.
See An Analysis of 1992 Ballot Proposals, Pet. App. F-8. Owing
to the state constitutional fiscal constraints which are necessarily
a part of public administration,[fn 28] unlimited resources are not
available to combat discrimination. Therefore, it is incumbent
upon the State to set priorities for its enforcement efforts.
Amendment 2 is an appropriate means by which the people
sought to focus government's limited resources upon those
circumstances most warranting attention. Cf. Bob Jones Univ. v.
United States, 461 U.S. 574, 604 (1983) (remedying specific
instances of racial or sexual discrimination is a compelling
interest); Roberts v. United States Jaycees, 468 U.S. 609, 623
(1984) (same).

When Amendment 2 was proposed, the Colorado Civil Rights
Commission had voted to recommend to the General Assembly
that it add sexual orientation protections to the State's civil rights
statutes. This recommendation was made, despite the fact that the
Commission's investigative arm, the Colorado Civil Rights
Division, had experienced steadily increasing demands upon a
shrinking budget, and the existence of substantial evidence that
homosexuals and bisexuals were not, as a class, in need of such
protections (v. 9, p. 19; v. 15, p. 866; v. 16, pp. 1085-91, 1096-
97; v. 17, pp. 1155, 1173).

Here, the State -- like Congress (v. 17, p. 1186) -- could
legitimately determine that special protections for suspect and
other needy classes should not give way to demands for inclusion
of a politically powerful[fn 29] and relatively privileged[fn 30]
special interest group. Indeed, three former Chairmen of the
Colorado Civil Rights Commission strenuously opposed the
inclusion of homosexuals under the ambit of the civil rights
statute (v. 15, p. 867); one said that such action represented "a
drastic departure" from the historical aims of the civil rights laws
(v. 17, p. 1156).[fn 31]

2. Amendment 2 Enhances Individual Freedoms.

Another obvious interest served by Amendment 2 is that it
enhances individual freedom by eliminating governmental
interference in the choices people make in religious, familial,
personal, and associational matters. Both the United States
Constitution and the Colorado Constitution explicitly recognize
the importance of religious liberty, U.S. Const. amend. I, Colo.
Const. art. II, Section 10, and this Court has recognized the
importance of preserving spheres of personal liberty, e.g., Meyer
v. Nebraska, 262 U.S. 390 (1923), including a right of intimate
association. See Board of Directors of Rotary International v.
Rotary Club of Duarte, 481-U.S. 537, 544 (1987). In truth, these
interests are, cumulatively, nothing more than the individual
liberty that this nation has cherished for over two centuries. At
the heart of that individual liberty is the freedom to make
personal choices regarding with whom one wishes to associate,
and how one wishes to be governed.

The concerns surrounding religious liberty are quite obvious and
substantial. See R. Duncan, Who Wants to Stop the Church:
Homosexual Rights Legislation, Public Policy, and Religious
Freedom, 69 Notre Dame L. Rev. 393 (1994). Under the
ordinances preempted by Amendment 2, individual landlords or
employers who have sincere and profound religious objections to
homosexuality would nonetheless be compelled to compromise
those convictions under threat of government sanctions. See
Donahue v. Fair Employment & Housing Comm'n, 2 Cal.
Rptr.2d 32 (Cal App. 2d Dist. 1991), review dismissed, 23 Cal.
Rptr.2d 591, 859 P.2d 671 (Cal. 1993). See also Df. Aff. 17
(Artine Yapoujian) (v. 18, p. 1341; v. 19, pp. 1349-51) (employer
sanctioned because his wife gave religious literature to
homosexual employee). Thus, Amendment 2 accommodates
significant and legitimate liberty interests.

The ordinances do not merely restrain the choices available to
individuals. In Aspen, for example,  13-98 of the sexual
orientation ordinance required churches to make their facilities
open to homosexual organizations if they were open to any
community organization. Pl. Ex. 48 (v. 7, pp. 148-49). Moreover,
churches apparently could not refuse to hire any employees,
including clergy, on the basis of their sexual orientation; title 12
of the Boulder municipal code did not allow a church or religious
organization with deeply held moral views regarding
homosexuality to refuse to hire someone based on his or her
sexual orientation (v. 16, pp. 1068-75). To promote free exercise
values by withdrawing the authority to adopt legislation in this
area altogether may not be a tailored response, but it certainly is a
rational means of ensuring that core religious values are
protected from infringement.

In addition to religious liberty, Amendment 2, protects notions of
personal privacy and intimate association. For example, Ann
Ready of Madison, Wisconsin, testified she 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." Df. Aff. 12 at 5 (v. 18, p. 1341; v. 19, pp.
1349-51). Ms. Ready was subsequently found to have violated
both municipal and Wisconsin state sexual orientation laws. Id.
at 9-10. Preventing this sort of intrusion into personal matters of
the utmost privacy is a legitimate interest.. "The choice of
household companions -- of whether a person's 'intellectual or
emotional needs' are best met by living with family, friends,
professional associates, or others -- involves deeply personal
considerations as to the kind and quality of intimate relationships
within the home." Village of Belle Terre v. Boraas, 416 U.S. 1,
15 (1974) (Marshall, J., dissenting).

Ordinances of the type repealed by Amendment 2 also affect
familial privacy and the ability of parents to convey values to
their children. This Court has expressly acknowledged that:

"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. It is through the family that we
inculcate and pass down many of our most cherished values,
moral and cultural."

Moore v. City of East Cleveland, 431 U.S. 494, 503-04
(1977).[fn 32] The implicit endorsement of homosexuality
fostered by laws granting special protections could undermine
the efforts of some parents to teach traditional moral values. It is
certainly rational for the State to seek to prevent this kind of
confusion.

The decision of the people of Colorado both to restore and
preserve these liberties -- as well as an even more general right of
association or non-association which exists in the absence of
special protection laws -- is reflective of the time-honored view
that " [t]hat government is best which governs least."[fn 33]
Clearly, Amendment 2's restoration and preservation of
individual freedom, through removal or prevention of
governmental regulation, is a legitimate public purpose. As this
Court has recognized,

"The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness. . . . They conferred, as
against the Government, the right to be let alone -- the most
comprehensive of rights and the right most valued by civilized
man.

Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis,
J., dissenting) (quoted with approval in Stanley v. Georgia, 394
U.S. 557, 564 (1969), and Eisenstadt v. Baird, 405 U.S. 438,
453-54 n.10 (1972)).

3. Amendment 2 Achieves Statewide Uniformity and Deters
Factionalism.

It is advantageous to the State to have uniform civil rights laws,
both to promote efficient enforcement, and to maximize
individual liberty, including the preservation of traditional social
norms. The State also benefits from creating an environment
where large employers and property owners may operate under
uniform laws, thereby providing greater economic and legal
predictability in their affairs. Equally important is the necessity
of ensuring that the deeply divisive issue of homosexuality does
not serve to seriously fragment Colorado's body politic. Df. Aff.
9 (James Hunter) at 14 (v. 18, p. 1341; v. 19, 1349-51).[fn 34]

Ensuring the stability of a State's political system through
combatting "unrestrained factionalism," such as here, is certainly
a legitimate, indeed compelling, interest. Storer v. Brown, 415
U.S. 724, 736 (1974) (upholding statutory provisions barring
independent candidates from the general election ballot if they
had been defeated in a party primary that year, or had been
registered with a political party within the past year); Anderson
v. Celebrezze, 460 U.S. 780 (1983) (noting the importance of the
State's interest in avoiding political fragmentation in the context
of elections wholly within state boundaries). Amendment 2
furthers this interest by eliminating city-by-city and county-by-
county battles over the political issue of homosexuality and
bisexuality. (v. 17, p. 1196). Consequently, Amendment 2 serves
an important state interest by promoting statewide uniformity on
this issue.

*  *  *  *

Amendment 2 infringes upon no fundamental right and is amply
supported by numerous rational bases. It does not encourage or
authorize public or private discrimination in contravention of the
Fourteenth Amendment. While a state or local government can
grant more protection than that required by the United States
Constitution, a state or local government can also rescind that
additional protection -- and prohibit its subsequent reextension --
without committing a federal constitutional violation. Crawford
v. Los Angeles Bd. of Educ., 458 U.S. at 538-39. Amendment 2
does nothing more.


CONCLUSION

For the foregoing reasons, the judgment of the Colorado
Supreme Court should be reversed.

Respectfully submitted this 21st day of April, 1995.

GALE A. NORTON (Counsel of Record)
Attorney General of Colorado

STEPHEN K. ERKENBRACK
Chief Deputy Attorney General

TIMOTHY M. TYMKOVICH
Solicitor General

JOHN DANIEL DAILEY
Deputy Attorney General

PAUL FARLEY
Deputy Attorney General
Colorado Department of Law
1525 Sherman Street, 5th Floor
Denver, Colorado 80203
Telephone: [phone]

REX E. LEE
CARTER G. PHILLIPS
Special Assistant Attorneys General
2840 Iroquois Drive
Provo, Utah 84604
Telephone: [phone]

ATTORNEYS FOR PETITIONERS


Endnotes

1.  The Colorado Revisor of Statutes renumbered this provision
as art. II,  30b for "ease of location." Colo. Rev. Stat., Vol. 1A
(1994 Supp.).

2.  Citing Palmore v. Sidoti, 466 U.S. 429 (1984), the trial court
concluded Amendment 2 infringed upon a so-called fundamental
"right not to have the State endorse and give effect to private
biases" affecting "an identifiable class." Pet. App. D-5; Pet. App.
E-15 through E-17. Respondents did not defend this "right" on
appeal, characterizing the trial court's ruling as "best construed to
mean that Amendment 2 violates the plaintiffs' fundamental right
of political participation ... . " Pet. App. D-6. The Colorado
Supreme Court accepted Respondents' concession, and in its two
opinions, never referred to Palmore again.

3.  Legislative Council of the Colorado General Assembly, An
Analysis of 1992 Ballot Proposals, Research Publ. No. 369
(1992) (Pet. App. F). Over 204,000 copies of this analysis were
distributed statewide to the voters (v. 3, pp. 65-66).

4.  The record in this case consists of nineteen volumes of
pleadings and transcripts, and numerous exhibits and affidavits.
Volume and page references to the main record, whether to
pleadings or to transcribed testimony, are indicated by a "v." and
"p." Petitioners were defendants below; Respondents were
plaintiffs below. Exhibits and affidavits will be referred to as
"Ex." and "Aff.," respectively.

5.  The Colorado Supreme Court found that this concept was also
the "common thread which unites" this Court's cases concerning
preconditions on the right to vote (e.g., Kramer v. Union Free
School Dist., 395 U.S. 621 (1969)), reapportionment (e.g.,
Reynolds v. Sims, 377 U.S. 533 (1964)), and candidate eligibility
(e.g., Williams v. Rhodes, 393 U.S. 23 (1968)); Illinois State Bd.
of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)).
Pet. App. D-13 through D-14.

6.  Indeed, the "unique nature of state decisions that go to the
heart of representative government, " Gregory v. Ashcroft, 501
U.S. 452, 461 (1991), has led this Court to recognize that even
suspect or quasi-suspect classifications may not trigger
heightened scrutiny if those classifications are "closely bound up
with the formulation and implementation of self-government."
See, e.g., Bernal v. Fainter, 467 U.S . 216, 221 (1984) (upholding
state provision denying top government posts to non-citizens and
noting, " [t]he rationale behind the political-function exception is
that within broad boundaries a State may establish its own form
of government").

7.  Loving v. Virginia, 388 U.S. 1, 11 (1967) (race, suspect
class); Korematsu v. United States, 323 U.S. 214, 216 (1944)
(national ancestry and ethnic origin, suspect class); Graham v.
Richardson, 403 U.S. 365, 372 (1971) (alienage, suspect class);
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-24
(1982) (gender, quasi-suspect class); and Lalli v. Lalli, 439 U.S.
259, 265 (1978) (illegitimacy, quasi-suspect class).

8.  Every federal appellate court which has considered this
question has similarly rejected this claim. See, e.g., Steffan v.
Perry, 41 F.3d 677, 684 n.3 (D.C. Cir. 1994); High Tech Gays v.
Defense Industrial Security Clearance Office, 895 F.2d 563, reh'g
denied, 909 F.2d 375 (9th Cir. 1990); Ben-Shalom v. Marsh, 881
F.2d 454 (7th Cir. 1989), cert. denied sub. nom., 494 U.S. 1004
(1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir.
1989), cert. denied, 494 U.S. 1003 (1990); Padula v. Webster,
822 F.2d 97 (D.C. Cir. 1987); National Gay Task Force v. Board
of Education, 729 F.2d 1270, 1273 (10th Cir. 1988), aff'd mem.,
470 U.S. 903 (1985).

9.  As Thomas Jefferson once noted:

"[T]he will of the majority, the Natural law of every society, is
the only sure guardian of the rights of man. Perhaps even this
may sometimes err. But its errors are honest, solitary and short-
lived. -- Let us then, my dear friends, forever bow down to the
general reason of the society. We are safe with that, even in its
deviations, for it soon turns again to the right way."

N.E. Cunningham, In Pursuit of Reason 133-34 (1987).

10.  See R. Duncan & G. Young, Homosexual Rights and Citizen
Initiatives: Is Constitutionalism Unconstitutional?, 9 Notre Dame
J. of L., Ethics & Pub. Pol. 93, 119 (1995) (dismissing this
argument as "uncommonly trivial" because it "overlooks the fact
that Hunter does not cease to be a 'race' case simply because it is
not an easy case.... Hunter is a complex and difficult racial
classification case").

11.  The only support in Hunter for the decision below is the
isolated comment of this Court that a "State may [not]
disadvantage any particular group by making it more difficult to
enact legislation on its behalf ...." Hunter v. Erickson, 393 U.S.
385, 393 (1969). To be sure, this single reference does not
explicitly mention race or any other suspect class, but it cannot
be read outside of the Court's overall analysis of race in that
opinion. Moreover, any doubt about the sweep of that statement
should have been eliminated when it was not applied in James v.
Valtierra. At the end of the day, this one line in Hunter simply
cannot bear the weight the court below and respondents would
place on it.

12.  That race was the controlling factor in the decision is
underscored by this Court's repeated emphasis on the racial
nature of the classification at issue. E.g., Washington v. Seattle
School Dist. No. 1, 458 U.S. 457, 470-71, 474, 485-86 (1982).

13.  The Colorado Supreme Court also claimed support for its
reading of Hunter in Gordon v. Lance, 403 U.S. 1 (1971). See
Pet. App. D-19 through D-22. This heavy reliance upon Gordon
is puzzling. There, this Court rejected both approaches employed
by the court below -- extending the Hunter doctrine beyond racial
classifications, and expanding the ballot access cases to state
actions that merely make it more difficult for some kinds of
governmental actions to be taken. Instead, this Court affirmed a
single issue supermajoritarian vote requirement. That holding
thus provides significant support for Amendment 2, not for the
holding below.

14.  See San Antonio Independent School Dist. v. Rodriguez,
411 U.S. 1, 28 (1973) (cited in Seattle School Dist.; "political
powerlessness" phrase used to describe suspect class);
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313
(1976) (same; also, correlating the "discrete and insular
minorities" language of United States v. Carolene Products Co.,
304 U.S. 144, 152-53 n.4 (1938) to the concept of "suspect"
class).

15.  Professor Tribe's comprehensive analysis also recognizes
that Hunter and Seattle School Dist. concern discrimination
against "discrete and insular minorities," rather than "rights of
political participation." Compare ch. 13 ("Rights of Political
Participation"), with ch. 16 ("The Model of Equal Protection.")
L. Tribe, American Constitutional Law (2d ed. 1988). Accord
Tyler v. Vickery, 517 F.2d 1089, 1099 (5th Cir. 1975), cert.
denied, 426 U.S. 940 (1976) (characterizing Hunter as striking
"down a city charter amendment requiring voter approval of
certain antidiscrimination ordinances on the ground that the
amendment created a classification based on race"); Lee v.
Nyquist, 318 F. Supp. 710, 718-20 (W.D.N.Y. 1970), aff'd mem.,
402 U.S. 935 (1971) ("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.");
Arthur v. City of Toledo, 782 F.2d 565, 571-74 (6th Cir. 1986)
(Hunter, James, and Seattle School Dist. reflect prohibition of
racial discrimination); Citizens for Responsible Behavior v.
Superior Court, 2 Cal. Rptr. 2d 648, 655 (Cal. App. 4th Dist.
1991) ("Hunter was a 'strict scrutiny' case in which the law
invalidly classified the affected parties on the basis of
traditionally suspect characteristics"). See also Note, The Hunter
Doctrine: An Equal Protection Theory That Threatens
Democracy, 38 Vand. L. Rev. 397, 421-26 (1985) (Hunter
doctrine limited to state action embodying a racial classification).

16.  Compare Hill v. Stone, 421 U.S. 289 (1975) (invalidating
provision limiting voters in city bond elections to persons who
have listed property for taxation); Kramer v. Union Free School
Dist., 395 U.S. 621 (1969) (invalidating provision limiting voters
in school district elections to persons owning or leasing taxable
real property, or parents or custodians of children enrolled in
schools).

17.  Compare Reynolds v. Sims, 377 U.S. 533 (1964).

18.  If the Colorado Supreme Court is correct that Respondents
have this broad right, then laws restricting marriage, certain tax
benefits, and military service to heterosexuals are also
constitutionally suspect on this ground.

19.  "The danger of expanding rights is clear: expansions of
'rights' essentially remove power from the democratic process
and thereby limit the capacity of self-government. It would be
possible to expand rights so far that self-government itself would
become a meaningless concept. This danger is particularly acute
when judges are asked to invent new rights, not in accord with
American history and tradition, and impose them on a culturally
divided nation by reading them into the Constitution." D.M.
Smolin, Regulating Religious and Cultural Conflict in a
Postmodern America: A Response to Professor Perry, 76 Iowa L.
Rev. 1067, 1100 (1991).

20.  Council of State Governments, The Book of the States at 42-
43 (1990).

21.  Cf. Grant v. Meyer, 828 F.2d 1446, 1455 n.14 (10th Cir.
1987), aff'd, 486 U.S. 414 (1988) (quoting McKee v. City of
Louisville, 200 Colo. 525, 530, 616 P.2d 969, 972 (1980) (The
initiative is "a fundamental right at the very core of our
republican form of government."))

22.  See also Dronenburg v. Zech, 741 F.2d 1388, 1397 (D.C.
Cir. 1984) reh'g denied, 746 F.2d 1579 (D.C. Cir. 1984) ("When
the Constitution does not speak to the contrary, the choices of
those put in authority by the electoral process, or those who are
accountable to such persons, come before us not as suspect
because majoritarian but as conclusively valid for that very
reason.")

23.  "The potential scope of the right recognized by the Colorado
court in Evans [v. Romer] 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 political
agenda insulated against the constitutional rights of others." R.
Duncan and G. Young, Homosexual Rights and Citizen
Initiatives: Is Constitutionalism Unconstitutional?, 9 Notre Dame
J. of Law, Ethics & Pub. Pol'y at 116.

24.  For example, courts have typically upheld statutes refusing
to recognize same-sex marriages under a rational basis test. E.g.,
Singer v. Hara, 11 Wash. App. 247, 522 P.2d 1187, 1194 (1974).
Accord Adams v. Howerton, 486 F. Supp. 1119 (S.D. Cal. 1980),
aff'd, 673 F.2d 1036 (9th Cir.), cert. denied, 458 U.S. 1111
(1982); Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185
(1971), appeal dismissed, 409 U.S. 810 (1972); In re Estate of
Cooper, 149 Misc.2d 282, 564 N.Y.S.2d 684, 687 (N.Y. Surr. Ct.
1990), aff'd, 187 App. Div. 128, 592 N.Y.S.2d 797, appeal
dismissed, 82 N.Y.2d 801, 604 N.Y.S.2d 558, 624 N.E.2d 696
(1993); Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. 1973).

25.  Such provisions are patently constitutional. See Maher v.
Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977);
Harris v. McRae, 448 U.S. 297 (1980).

26.  "Unanimity is impossible; the rule of a minority, as a
permanent arrangement, is wholly inadmissible; so that, rejecting
the majority principle, anarchy or despotism in some form is all
that is left." A. Lincoln, First Inaugural Address (Mar. 4, 1861).

27.  Indeed, under that test, courts must "accept a legislature's
generalization even when there is an imperfect fit between means
and ends. A classification does not fail rational-basis review
because it `is not made with mathematical nicety or because in
practice it results in some inequality.' `The problems of
government are practical ones and may justify, if they do not
require, rough accommodations -- illogical, it may be, and
unscientific.'" Heller v. Doe, 113 S. Ct. 2637, 2643 (1993).
Accord Gregory v. Ashcroft, 501 U.S. at 471 (upholding state
constitutional provision requiring judges to retire at age 70) ("It
is far from true that all judges suffer significant deterioration in
performance at age 70. It is probably not true that most do. It
may not be true at all.")

28. Cf. Colo. Const. art. X, Section 20.

29. The spending and voting patterns associated with
Amendment 2 itself amply demonstrate that homosexuals are
politically powerful. To date, activists have been successful not
only in effecting the repeal of sodomy statutes in 27 States (v. 17,
pp. 1254-55), but also in securing special protections in
jurisdictions comprising over one quarter of our Nation's
population. (v. 14, pp. 649, 652). And, among other things,
through one of the country's largest political action committees,
they have persuaded Congress to list sexual orientation in the
federal hate crimes statute. (v. 16, pp. 907, 933; v. 17, pp. 1253-,
1255, 1257).

30.  Respondents' own witness conceded that "with respect to the
people who are so identified, it looks like gays, lesbians, and
bisexuals continue to be more affluent than the average" and
"[t]end to have higher levels of education." (v. 19, pp. 1414-15).
Indeed, as one pro-gay rights article put it "gay men and lesbians
suffer no discernible communal economic deprivation and
already operate at the highest levels of society: in the boardroom,
the media, the military, the law, and industry." Df. Aff. 6 (Barry
Gross) at 26 (v. 18, p. 1341; v. 19, pp. 1349-51). This was in
accord with the extensive evidence presented by Petitioners. See,
e.g., v. 16, pp. 920, 932; v. 17, p. 1155; Df. Aff. 9 (James
Hunter) at 9-10 (v. 18, p. 1341; v. 19, pp. 1349-51); Df. Exs. V
(Simmons Market Survey) (v. 16, pp. 908-09), EEE (USA Today
Analysis of U.S. Census Bureau data) (v. 16, p. 924), MMM
(Overlooked Opinions, Inc. Survey) (v. 16, p. 924).

31.  Indeed, part of the Amendment 2 debate was whether
granting protected class status would lead to affirmative action
for homosexuals and bisexuals. (v. 15, pp. 770-71; v. 16, pp. 982,
1012, 1057-59). In San Francisco, for example, the mayor
"promised to represent 20 percent of his administration in city
government with homosexuals" (v. 16, p. 1057), and an
affirmative action plan for homosexuals has since been
considered in the City and County of Denver. See Denver Will
Recruit Homosexual Cops, Rocky Mountain News, Mar. 24,
1994, at 4A.  See also J.S. Byrne, Affirmative Action for
Lesbians and Gay Men: A Proposal for True Equality of
Opportunity and Workforce Diversity, 11 Yale L. & Policy Rev.
47 (1993); Pl. Ex. 117 (City of Aurora rule on equal opportunity
and affirmative action) (v. 19, pp. 1348-49).

32.  See also Wisconsin v. Yoder, 406 U.S. 205, 213-14, 232
(1972); Ginsberg v. New York, 390 U.S. 629, 639 (1968);
Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J.,
Warren, C.J., and Brennan, J., concurring); Prince v.
Massachusetts, 321 U.S. 158, 166 (1944).

33.  Thomas Paine, quoted in G. Seldes, The Great Thoughts 320
(1985); although variously attributed to Thomas Jefferson and
Henry David Thoreau.

34.  In addition, Harvard University Government Professor
Harvey Mansfield testified that enacting Amendment 2 through
the initiative process supported stability and respect for the
political process, by giving "the people a sense that . together by
their own initiative . . . to produce a result that gives them a sense
of satisfaction and accomplishment." (v. 16, p. 1003).