The Denver Post
January 10, 1993
By Howard Pankratz, Legal Affairs Writer
Opponents of Amendment 2 will go before a Denver judge tomorrow and ask him to
stop the measure from taking effect on the basis of a simple but explosive
claim: They say the constitutional amendment makes gays the target of
government-sanctioned discrimination.
Attorney Jean Dubofsky, representing a coalition of Amendment 2 opponents, even
stated in a legal brief that the very foundation of the law is hatred,
reminiscent of Nazi Germany.
"The Nazis' adoption of laws that permitted discrimination against homosexuals
led to their exclusion from all phases of economic, social and cultural life,
subjected them to indiscriminate violence and confiscation of their property,
and allowed their arbitrary arrest, confinement in concentration camps and
death," she said. Supporters of the amendment say the claims about hatred and
comparisons to Nazism are shrill and hollow.
"This issue is different from any I've experienced in business, sports or
political campaigns," said Will Perkins, a Colorado Springs car dealer who
championed Amendment 2 as chairman of Colorado for Family Values. "A difference
of opinion has never been equated with a demonstration of hate. But if you
don't agree with the homosexual community, they accuse you of hatred.
The state government will argue that Amendment 2 should be allowed to become
law on Friday. The measure, approved by 53 percent of the state's voters in
the November election, would erase Denver, Boulder and Aspen laws that protect
gays from discrimination in housing, employment and public accommodations. It
also would prohibit the state or its entities from passing such laws in the
future.
Deputy Attorney General Paul Farley stated in a 52-page brief that Amendment 2
doesn't encourage or authorize discrimination. It simply brings the law in
Colorado in line with what exists on the federal level, Farley said.
He pointed out that the U.S. Supreme Court, federal appellate courts and
Congress have never recognized homosexuals as a class that deserves heightened
protection from discrimination. The federal government prohibits
discrimination on the basis of race, gender, religion, age or physical
disability.
"Properly analyzed, the guiding intent behind Amendment 2 was not to deprive
homosexuals or bisexuals of any constitutionally guaranteed rights but to
remove any state-based grounds for putting such individuals in a more favorable
position" than other citizens, Farley sad.
Each side will present its arguments before Denver District Judge Jeff Bayless.
His decision undoubtedly will be appealed by the loser.
Dubofsky, a former Colorado Supreme Court justice, says Amendment 2 has started
a trampling of gays' basic rights, and "threats and actual instances of
violence" against them will be encouraged.
She argues that the amendment is the outgrowth of the right wing promoting
"anti-homosexuality measures" under the guise of protecting family values.
Dubofsky claims the "hostile and discriminatary purpose of Amendment 2" was
apparent in campaign literature distributed by Colorado for Family Values.
For example, she said, the group "equtes homosexual orientation with murder,
theft, fraud, necrophilia, bestiality and pedophilia. The organization's
statement declares, 'It's common knowledge that homosexuals are notorious
practitioners of sex with minors.'"
Perkins said hatred and bigotry did not motivate him or other supporters of
Amendment 2. He also said Colorado for Family Values never equated homosexual
orientation with murder, theft or the other evils Dubofsky claims. That type
of simplistic reasonsing, Perkins said, would be the same as accusing all
people who drink of being alcoholic.
Dubofsky claims the amendment will have a devastating effect on gays in several
ways. She told Bayless that:
* By repealing anti-discrimination statutes in Denver, Boulder and
Aspen, the amendment would authorize discrimination against homo-
sexuals in those communities.
* By prohibiting state and local governments from enacting any law
or policy that discourages discriminiation against gays, the amend-
ment would impose upon these groups significant barriers that no
other segment of the electorate faces.
Farley counters that Colorado gay rights ordinances were out of step with
society in general.
"Forty-four states, 41 governors, and countless cities, counties and
universities across the country do not provide special protections for
homosexuals and bisexuals," Farley said.
In Colorado, he said, some parts of the government had moved towarad giving
protected status to gays.
For instance:
* The legislature had enacted a law prohibiting health insurance
companies from determining insurability based on one's sexual
orientation.
* The governor had issued an executive order prohibiting job dis-
crimination for state classified employees based on sexual
orientation.
* At least two state schools, Metroplitan State College of Denver
and Colorado State University, had policies prohibiting dis-
crimination based on sexual orientation.
Those entities "had gone beyond the standard prevailing generally throughout
the United States, and the state was free to 'conform its law to the federal
constitution in every respect,'" Farley said.
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