Gazette Telegraph, Colorado Springs
May 18, 1993, pg 1B
Ruling could indicate fate of embattled amendment
By Louis Aguilar
DENVER--The final written argument in the fight to lift the injunction placed
on Amendment 2 was filed Monday at the Colorado Supreme Court, setting the
state for the court battle next week over the constitutional amendment.
The state Attorney General's office filed its 26-page brief late Monday,
rebutting a brief filed May 3 by its opponents--the nine state residents and
the cities of Denver, Boulder and Aspen that seek to overturn Amendment 2.
The amendment bans laws that protect gay, lesbians and bisexuals from
discrimination based on their sexual orientation. The measure, passed by state
voters Nov. 3, was sponsored by Colorado Springs-based Colorado for Family
Values.
Although the state's high court will rule simpy to uphold or overturn the
injunction that blocked the amendment from going into effect, the decision will
provide guidelines that will be used to decide whether the amendment is
constituonal or not, lawyers on both sides say.
When he issued the injunction in January, Denver District Court Judge Jeffrey
Bayless set the highest legal standard for the state to tackle in order to keep
Amendment 2 from being struck down. The judge said the state cannot sanction a
private bias unless it has a compelling interest to do so. He granted the
injunction because he believed there is a good chance the amendment is
unconstitutional.
The lawsuit on the constitutionality of Amendment 2 will be heard in October.
In the legal briefs filed at the state Supreme Court, the state is attempting
to refute the notion that Amendment 2 deals with a fundamental right, said Gene
Nichol, dean of the law shcool at the University of Colorado at Boulder.
"The state knows it can't win with the guidleines that Judge Bayless set out,"
Nichol said Monday. "Part of its goal is for the state Supreme Court to give
Bayless a different guidance."
The state contends the measure merely ensures government will not interfere
with the right of people to associate with others. Moreover, it creates a
uniform law for the state that puts it in line with federal civil rights laws,
which don't include sexual orientation as a trait of people who need protection
from discrimination.
Based on the brief it filed May 3, the plaintiffs will go beyond the Bayless
ruling and argue that the amendment blocks gay's fundamental right to
participate in the political process by not allowing cities or counties to pass
ordinances to protect gays from discrimination. No other group has such a
limitation, the plaintiffs argue.
The oral arguments will be heard by the seven state justices beginning at 9 am.
Monday, with each side getting a half-hour to present its case.
Former state Surpeme Court Justice Jenane Winer will argue for the plaintiffs.
State Attorney General Gale Norton and Solicitor General Tim Tykovich will
argue for the state.
The state Supreme Court has given this case extraordinarily short deadlines for
filing briefs and hearing the oral arguments, an indication of the case's
priority. Often the deadlines for briefs can stretch out longer than a year,
several lawyers said.
The fast pace means the state's highest court could issue its opinion before
its summer recess, which starts in mid-July.
"It's all guesswork at this point," Tymkovich said, "but given the
extraordinary tight schedule, we are hopeful of that."
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