Romer v Evans Brief of Amici Curiae in Support of Respondents

    No. 94-1093

In The

S u prem e C o u rt Cije Um 'tcb States?
October Term, 1994

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

Petitioners,

vs.

RICHARD G. EVANS, ETAL.,
Respondents.

On Writ of Certiorari to 
the Supreme Court of the State of Colorado

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., THE MEXICAN 

AMERICAN LEGAL DEFENSE AND EDUCATIONAL 
FUND, AND WOMEN’S LEGAL DEFENSE FUND AS 

AMICI CURIAE
IN SUPPORT OF RESPONDENTS

ELAINE R. JONES 
Director-Cou nscl 

THEODORE M. SHAW 
VICTOR A. BOLDEN 
CATHERINE POWELL 
NAACP Legal Delense & 
Educational Fund, Inc.

99 Hudson Street,
16th Floor

New York, New York 10013 
(212) 219-1900

ERIC SCHNAPPER 
University of Washington 
School of Law 
1100 N. Campus Parkway 
Seattle, WA 98195 
(206) 616-3167 
(Counsel of Record)

[Listing of counsel continued 
inside cover]



[Listing of counsel, 
continued from front cover]

ANTONIA HERNANDEZ
Mexican American Legal Defense and Educational 
Fund

634 South Spring Street 
Los Angeles, CA 90014 
(213) 629-2512

JUDITH L. LICHTMAN 
DONNA R. LENHOFF 
Women’s Legal Defense 
Fund
1875 Connecticut Ave. N.W.
Washington, D.C. 20009 
(202) 986-2600

Counsel lot Amici Curiae



TABLE OF CONTENTS

INTEREST OF AMICI ................................................................  1

SUMMARY OF ARGU M ENT.......................   3

ARGUM ENT................................................................................... 4

AMENDMENT 2 WAS ADOPTED FOR THE 
CONSTITUTIONALLY IMPERMISSIBLE PURPOSE 
OF PREVENTING GAY VOTERS FROM 
PARTICIPATING EQUALLY IN THE POLITICAL 
PROCESS ..............................     4

A. The Colorado State Courts Found that 
Amendment 2 Was Adopted for the 
Purpose of Preventing Gay Voters from 
Participating Equally in the Political
Process.................................................................... 4

B. The Findings of the Court Below Are
Supported by Substantial Evidence....................  8

C. The Purpose Found by the Courts below
Is Constitutionally Impermissible........................  18

D. Amendment 2 Has the Effect of Denying 
Gay Voters an Equal Opportunity to 
Participate Effectively in the Political
Process.................................................................... 23

CONCLUSION 30



TABLE OF AUTHORITIES

Cases: Pages:

Batson v. Kentucky,
476 U.S. 79 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Brown v. Board of Education,
347 U.S. 483 (1954) . . . . . . . . . . . . . . ----- . . . . . . . .  2

Buckley v Valeo,
424 U.S. 1 (1976) ................... .......................................... 23

Burns v. Richardson,
384 U.S. 73 (1966) ................... ......................... .. 19, 20

Carrington v. Rash,
380 U.S. 89 (1965) ....................................................... passim

Cipriano v. Houma,
395 U.S. 701 (1969) ......... .............................................. 19

Cooper v. Aaron,
358 U.S. 1 (1957) ............................................. .. 2

Crawford v. Los Angeles Board of Education,
458 U.S. 527 (1982) ..........................................    9, 10

Davis v Bandemer,
478 U.S. at 109 ............................... ..................  20, 21, 23

Davis v. Mann,
377 U.S. 678 (1964) . . . ....... ........... .. ........................... 20

Dunn v. Blumstein,
405 U.S. 330 (1972) .............. 19

Evans v. Cornman,
398 U.S. 419 (1970) ........................................................ 19

Gaffney v. Cummings,
412 U.S. 735 (1973) ................. 20, 21, 23

11



Pages:

Garza v. County of Los Angeles,
756 F. Supp. 1298 (C.D. Cal.), affd, 918 F.2d 
763 (9th Cir. 1990), cert, denied, 498 U.S.
1028 (1990) ......................................................................... 2

Hunter v. Erickson,
393 U.S. 385 (1969) ........................................ .. 11

James v. Valtierra,
402 U.S. 137 (1971) ................................... .............  21, 22

Lane v. Wilson,
307 U.S. 268 (1939) ............................ ............................ 21

Lucas v. Forty-Fourth General Assembly,
377 U.S. 713 (1964) ......................................................... 25

McKennon v. Nashville Banner Publishing Co.,
___U .S .___ , 115 S. Ct. 879 (1995) .................................  2

Mobile v. Bolden,
446 U.S. 55 (1980) ...........................................................  20

Phillips v. Martin Marietta Co.,
400 U.S. 542 (1971) ................................... ....................... 2

Reitman v. Mulkey,
387 U.S. 369 (1967) ....................................................  9, 10

Richardson v. Ramirez,
418 U.S. 24 (1976) ....... ......................... ............. .. 21

Shelley v. Kraemer,
334 U.S. 1 (1948) ....................................... ....................... 2

Smith v. Allwright,
321 U.S. 649 (1944) .......................................... ................ 2

St. Francis v. Al-Khazraji,
481 U.S. 604 (1987) .......................................................... 2

Ill

Valtierra v. James,
313 F. Supp. 1 (N.D. Cal. 1970) . . 22



Pages:

Washington v. Seattle School Dist. No. 1,
458 U.S. 457 (1982) ..........................................   10

White v. Regester,
412 U.S. 755 (1975) .........     2

Constitutional Provisions: Pages:

U.S. Const, amend II . . . . . . . . . . . .  ...................  passim

Colo. Const, art. V § 1 ......... ............. ......................................... 24

Colo. Const, art. V § (2)  ......... ................................................... 25

Miscellaneous: Pages:

Bureau of the Census, Public Employment in 1991 (1992) . . . .  17

iv



In The

Supreme Court # t  CJje United States;
O c t o b e r  T e r m , 1994

No. 94-1093

ROY ROMER, as G o v e r n o r  o f  t h e  St a t e  o f  
C o l o r a d o , a n d  t h e  STATE OF COLORADO,

Petitioners,

vs.

RICHARD G. EVANS, e t a l .,
Respondents,

On Writ of Certiorari to 
the Supreme Court of the State of Colorado

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., THE MEXICAN 

AMERICAN LEGAL DEFENSE AND EDUCATIONAL 
FUND, AND WOMEN’S LEGAL DEFENSE FUND AS 

AMICI CURIAE
IN SUPPORT OF RESPONDENTS

Interest of Amici

The NAACP Legal Defense and Educational Fund, Ine. 
(LDF) is a public interest law firm founded in 1940, 
dedicated to combatting bias and securing equal opportunity 
for all A m ericans th rough  public education , 
antidiscrimination legislation and full and effective 
enforcement of the civil rights laws. LDF has participated



2

as counsel of record or amicus curiae in important cases 
before this Court involving discrimination on a variety of 
levels, including race, Brown v. Board o f Education, 347 U.S. 
483 (1954), ethnicity, St. Francis v. Al-Khazraji, 481 U.S. 604 
(1987), gender, Phillips v. Martin Marietta Co., 400 U.S. 542 
(1971), and age, McKennon v. Nashville Banner Publishing
C o .,___U .S .___ , 115 S.Ct. 879 (1995), consistently urging
the Court to recognize the real and destructive effects of 
prejudice. LDF has also participated in a number of cases, 
such as this one, regarding the scope of the Fourteenth 
Amendment’s protection against subjugation, bias, and 
arbitrariness. See e.g., Batson v. Kentucky, 476 U.S. 79 
(1986); Cooper v. Aaron, 358 U.S. 1 (1957); Shelley v.
Kraemer, 334 U.S. 1 (1948); Smith v. Allwright, 321 U.S. 649 
(1944).

The Mexican American Legal Defense and 
Educational Fund (MALDEF) is a national nonprofit 
organization whose principal objective is to protect and 
promote the civil rights of Latinos in the United States. It 
is particularly dedicated to securing such rights in political 
access, immigration, education, employment, and language 
rights. MALDEF has litigated many cases in order to 
ensure equal access to the political process. Among those 
are White v. Regester, 412 U.S. 755 (1975) (invalidating the 
at-large election scheme for excluding Mexican Americans 
and African Americans from effective participation in the 
political process), Garza v. County o f Los Angeles, 756 
F.Supp. 1298, (C.D. Cal.), aff’d, 918 F.2d 763 (9th Cir. 
1990), cert, denied, 498 U.S. 1028 (invalidating district 
boundaries as intentionally discriminatory against Latino 
voters and diluting Latino voting strength). As a civil rights 
organization, MALDEF has an interest in ensuring the 
protection of the most fundamental right to participate in 
the political process.

Founded in 1971, the Women’s Legal Defense Fund 
(WLDF) is a national advocacy organization that works at



3

federal and state levels to promote policies that help women 
achieve equal opportunity, quality health care, and economic 
security for themselves and their families. Recognizing that 
full gender equality cannot be achieved if discrimination on 
the basis of sexual orientation is permissible, WLDF has 
participated as amicus curiae in major lesbian and gay rights 
cases and has assumed an active role in efforts to make 
invidious discrimination on the basis of sexual orientation 
unlawful.

SUMMARY OF ARGUMENT

Petitioners’ brief deals largely with the question of 
whether the effect of Amendment 2, without more, is 
sufficient to render that provision unconstitutional. The 
decision of the court below, however, did not rest exclusively 
on that impact. Rather, the Colorado courts also concluded 
as a matter of fact that Amendment 2 was framed and 
enacted for the purpose of thwarting equal participation in 
the political process by gay voters. This finding is fully 
supported by the record, and virtually compelled by the plain 
language of Amendment 2. That finding was not made over 
the objections of petitioners; to the contrary, here, as in 
Carrington v. Rash, 380 U.S. 89 (1965), petitioners insisted 
below that eviscerating the "factional" political influence of 
"special interest" gay voters constituted a legitimate reason, 
indeed a compelling state interest, justifying Amendment 2.

This avowed purpose of Amendment 2, we urge, is 
constitutionally impermissible. The lower courts’ findings as 
to the purpose of Amendment 2 provide a case-specific basis 
for affirming the decision below, and render unnecessary a 
resolution of the broader issue of whether the effect of 
Amendment 2 would be sufficient itself to render that 
provision constitutionally infirm.



4

ARGUMENT

AMENDMENT 2 WAS ADOPTED FOR THE 
CONSTITUTIONALLY IMPERMISSIBLE 
PURPOSE OF PREVENTING GAY VOTERS 
FROM PARTICIPATING EQUALLY IN THE 
POLITICAL PROCESS

A. The Colorado State Courts Found that 
Amendment 2 Was Adopted for the Purpose 
of Preventing Gay Voters from Participating 
Equally in the Political Process.

In its 1993 decision, the Colorado Supreme Court 
emphasized that the impact of Amendment 2 on gay voters 
was deliberate:

Amendment 2 alters the political process so 
that a targeted class is prohibited from 
obtaining legislative, executive, and judicial 
protection or redress from discrimination 
...Amendment 2 singles out that class of 
persons (namely, gay men, lesbians, and 
bisexuals) who would benefit from laws 
barring discrimination on the basis of
sexual orientation.

(Pet. App. D-25) (emphasis added).

In 1994 the Colorado Supreme Court reiterated this 
finding:

Evans /...was based on the fact that 
Amendment 2 sought to deny an 
independently identifiable group’s right to 
participate equally in the political profess....In 
addition to denying the right of equal 
participation in the political process to a



5

group based on sexual orientation, 
Amendment 2 also is intended to deny the 
same right to persons based on "homosexual, 
lesbian, or bisexual... conduct, practices, or 
relationships...." Amendment 2 targets this 
class of person....(Pet. App. B-22) (emphasis 
added)1 2.

The trial court noted that the petitioners had openly 
defended Amendment 2 as a measure intended to thwart 
what they regarded as the pernicious influence of gay voters. 
Petitioners called as witnesses the leaders of Colorado for 
Family Values, which had drafted and led the campaign for 
Amendment 2. Those sponsors insisted that they had acted 
on the belief that "militant gay aggression in this 
state...endangers the state’s political functions." (Pet. App. 
C-8).

Petitioners’ witnesses urged that this 
Amendment protected Colorado’s political 
functions from being overrun by such 
groups....[T]he founder of CFV...testified that 
Amendment 2 was a defensive measure to 
fend off state-wide militant gay aggression.
The court’s notes contain his term "militant 
gay aggression" no less than six times in his 
direct testimony alone.

(Pet. App. C-6 to C-7).

Petitioners contended in the courts below that gay 
voters exercised undue influence in the political process. In

1See also Pet. App. B-4 ("an attempt to impede the expression of 
’a difference of opinion on a controversial political question’"). The 
dissenting judge below agreed, describing the purpose of Amendment
2 as "prohibiting homosexuals, lesbians and bisexuals from enacting 
certain legislation." (Pet. App. B-45).



6

the trial court, petitioners’ counsel argued:

[H ]om osexuals...have po litical pow er 
disproportionately g rea ter than their 
numbers....Homosexuals enjoy superior 
lobbying, clout [and] voting turnout.2

In the Colorado Supreme Court, petitioners insisted that the 
sponsors of Amendment 2 were gravely and legitimately 
concerned that "the legislature was too vulnerable to the 
formidable homosexual lobbying power here in Colorado"2 3 
and that the "homosexual ’movement was going forward’ and 
that local gains were ’just a piece of the puzzle’ which would 
be used as ’leverage to approach state legislators....’"4 
Having adduced evidence intended to substantiate those 
concerns, petitioners argued below that gays are:

a politically powerful and relatively privileged 
special interest....Homosexuals are immensely 
p o w er fu l  in p r o p o r t i o n  t o t he i r  
numbers....They enjoy inordinate access to 
influential cultural institutions such as the 
m e d i a  a n d  e n t e r t a i n m e n t  
industries....[Hjomosexual advocates have 
succeeded in dominating the terms of the 
debate.5

Similar objections, of course, have been voiced in the past

2 Defendants’ Trial Brief, Case Nos. 92 CV 7233, P. 45 and n.55 
(emphasis added).

3 Opening Brief for Defendants-Appellants, Case Nos. 94 SA 048 
and 94 SA 128, p.4.

4 Id. at 5.

3 Id. at 30-31 and n.42 (emphasis added).



7

about the political and cultural influence of other groups of 
Americans. Petitioners also contended that in Aspen, 
Boulder and Denver-cities which had passed anti- 
discrimination ordinances, in Denver and Boulder following 
public referenda--"homosexuals and bisexuals are a dominant 
force and wield the greatest political power."6

Counsel for petitioners repeatedly pressed in the 
courts below justifications for Amendment 2 that were 
entirely consistent with, and indeed more elaborate than the 
finding of the state courts as to the purpose of the 
Amendment. Petitioners insisted that one of the objectives 
"sought" by Amendment 2 was to "prevenjtj government 
from supporting the political objectives of a special interest 
group,"7 i.e. gay voters. The Colorado Supreme Court 
correctly characterized this as an argument which, by 
branding gay voters as a somehow illegitimate "special 
interest," sought to justify rigging the political process to 
deny them an opportunity for effective political participation:

[Defendants offer no authority to support the 
rather remarkable proposition that 
government has a compelling interest in 
seeing that the state does not support the 
political objectives of a "special interest 
group." The state exists for the very purpose

6 Id. at 34; see also Tr. 1497 (closing argument for state urging 
that Amendment 2 will "prevent against stealth campaigns at the local 
[level] by activists who would like to see sexual orientation in the 
law").

7 Id. at 42-43; see also Trial Brief for Defendants, Case No. 92 
CV 7223, p. 68 ("Amendment 2 prevents government from subsidizing 
the political objectives of a special interest group."); Brief in Support 
of Defendants’ Motion for Summary Judgment, Case No. 92 CV 
7223, p. 17 ("Amendment 2 prevents government from subsidizing the 
political objectives of a special interest group.").



8

of implementing the political objectives of the 
governed....The fact that some political objectives are 
promoted by "special interest groups" is utterly 
inconsequential. Indeed, virtually any law could be 
regarded as a benefit to a "special interest group."

(Pet. App. B-20). Similarly, petitioners argued below that 
"Amendment 2...seeks to ensure that the deeply divisive 
issue of homosexuality does not serve to fragment 
Colorado’s body politic."8 The state Supreme Court, though 
properly recognized that the method of avoiding factionalism 
sought by Amendment 2 was intentionally to strip gay voters 
of any practical ability to advance through the political 
process their interests regarding the issues which the state 
sought to brand as unduly controversial:

[W]e fail to see how the state, which is 
charged with serving the will of the people, 
can have any legitimate interest in preventing 
one side of a controversial debate from 
pressing its case before governmental bodies 
simply because it would prefer to avoid 
political controversy or "factionalism."

(Pet. App. B-21).

B. The Findings of the Court Below Are 
Supported by Substantial Evidence.

Petitioners do not directly take issue with the findings 
of the lower courts as to the actual purpose of Amendment

8 Trial Brief for Defendants, Case No. 92 CV 7223, pp. 60-61; see 
also Brief in Support of Defendants’ Motion for Judgment on the 
Pleadings, p. 8 ("Amendment 2...seeks to ensure that the deeply 
divisive issue of homosexuality’s place in society does not serve to 
fragment Colorado’s body politic.").



9

2. Any dispute regarding this fact-bound issue is clearly 
outside the scope of the Question Presented.

Even if review of that issue had been sought in this 
Court, there would be no reason to overturn the decision of 
the Colorado Supreme Court. The purposes animating 
Amendment 2 are, as petitioners themselves emphasized 
below, "a quintessential^ factual question." (Tr. 96) In 
Crawford v. Los Angeles Board o f Education, 458 U.S. 527 
(1982), this Court deferred to the conclusions of the 
California Supreme Court as to the motive behind the state 
constitutional provision there at issue. 458 U.S. at 544 ("[I]n 
this case,...involving the circumstances of passage and the 
potential impact of a Proposition adopted at a statewide 
election, we see no reason to differ with the conclusions of 
the state appellate court."); see also Reitman v. Mulkey, 387 
U.S. 369 (1967). Here, as in Crawford and Reitman, the 
state appellate court was

"armed...with the knowledge of the facts and 
circumstances concerning the passage and 
potential impact" of the Proposition and 
"familiar with the milieu in which that 
provision would operate."

Crawford, 458 U.S. at 543, quoting Reitman, 387 U.S. at 378.

The findings of the Colorado Supreme Court in this 
regard are fully supported by the record. The plain 
language of Amendment 2 is more than sufficient by itself 
to support, if not require, that finding. As the court below 
correctly observed, Amendment 2, on its face, is expressly 
targeted at a "class of persons," which the provision 
delineates as those individuals whose "orientation, conduct, 
practices, or relationships" are "homosexual, lesbian, or 
bisexual." Amendment 2 does not seek to exclude from 
consideration by state and local government all issues and 
controversies regarding sexual orientation, but focuses



10

exclusively on the issue-discrimination against homosexuals— 
which gay voters are particularly likely to press. Far from 
compelling government neutrality on issues regarding sexual 
orientation, Amendment 2 leaves the state and localities free 
to respond with alacrity to the wishes of any voters who 
favor government-imposed discrimination against gays.

With regard to the city ordinances prohibiting 
discrimination based on "sexual orientation," Amendment 2 
invalidates those local laws only insofar as they apply to 
"homosexual, lesbian, or bisexual orientation". Thus 
heterosexuals retain the protection of the Denver, Boulder 
and Aspen ordinances, and heterosexual voters are free to 
seek similar protections from the state legislature. In this 
respect, Amendment 2 is on its face more extreme, for 
example, than California’s 1964 Proposition 14, which 
applied equally to minority and non-minority voters, and 
which precluded the state from discriminating against 
minorities as well as from protecting them.9 And, unlike 
the provisions previously considered by this Court, which 
were narrowly directed at a particular type of activity,10

9 See Reitman v. Midkey, 387 U.S. 369, 371 (quoting Proposition 
14), 391 (dissenting opinion) ("neutral on its face"), 394 ("a neutral 
provision restoring ...the sphere of free choice"); Crawford v. Los 
Angeles Board of Education, 458 U.S. 527, 527 (1982) (upholding 
provision which addressed racial issue "in neutral fashion"); 
Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 494 (Powell J. 
dissenting) (1982) ("[T]he State has adopted a policy of racial 
neutrality in student assignments."), 495 (challenged provision is 
"neutral on its face, and racially neutral as public policy").

10 See. e.g., Crawford v. Los Angeles Board of Education, 458 U.S. 
527 (1982) (limitation on use of two specific remedies—busing and 
pupil school assignment-to redress violations of state, but not federal, 
constitution); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 
(limiting authority of local school officials, but not state officials or 
state courts, to utilize busing to integrate schools), 488 (dissenting 
opinion emphasizing subjects not covered by challenged provision), 
490 (same), 496 (same), 497 n.12 (same).



11

Amendment 2 is broadly framed to encompass the entire 
gamut of possible government action. Covering such 
unrelated subjects as employment, housing, public 
accommodations, and insurance, and applying with full force 
to discrimination involving no assertion of privacy or 
religious motivation, Amendment 2 is unintelligible as the 
solution to any common problem other than the "problem" 
perceived by the Amendment’s proponents of undue gay 
political influence. The purpose of Amendment 2 is thus 
even more apparent on its face than the motive which 
Justice Harlan perceived behind the Akron charter provision 
in Hunter v. Erickson, 393 U.S. 385, 393 (1969) (concurring 
opinion).

Petitioners themselves proffered testimony from the 
proponents of Amendment 2 in order to establish the 
purpose of Amendment 2. Petitioners’ star witness was 
Tony Marco, who had drafted Amendment 2 and founded 
its sponsoring organization, Colorado for Family Values. 
Counsel for petitioners argued in his opening statement:

You will...hear from Tony Marco who did 
much thinking on this issue and was 
instrumental in drafting Amendment 2 and 
planning the strategy that led to its electoral 
success. You will hear from [Marco and 
other CFV officials] about why they did what 
they did.

Mr. Marco candidly proclaimed that Amendment 2 was 
framed to thwart effective use of the political process by gay 
voters:

It was necessary because it was obvious that 
the aggression of gay militants through the



12

legislature was not going to cease....[T]he 
legislature is very vulnerable to all kinds of 
lobbying...lobbying for which I discovered gay 
militants were very well equipped and were 
very well experienced. And so the only way 
to ensure that this kind of activity would stop 
would be through passage of a constitutional 
amendment.11

The virtue of Amendment 2, Marco explained, was 
that it would completely preclude gay voters from advancing 
through the political process what he perceived to be their 
common goals. "[We] f[ound] a way to stop this kind of 
aggression with one single act." (Tr. 837). Amendment 2 
was intentionally framed as broadly as possible to prevent 
enactment of any measures which gay voters might support:

The fundamental principle behind the 
drafting of the initiative language was quite 
simply to take those factors which we felt that 
gay militants had themselves said that they 
desired, plus all of the factors that are 
attendant on achievement of or awarding of

11 Tr. 839; id. at 837 (Amendment 2 framed to thwart the "broad 
statewide agenda of the militant gay movement."); see id. at 846 
("statewide aggression on the part of gay militants”); see also id. at 
852 ("[W]e felt that the legislature was too vulnerable to the 
formidable lobbying power of the gay militant contingent here in 
Colorado.”), 859 ("[Wjhat we are dealing with in my opinion is one 
of the most politically powerful organizations relative to the size of 
its numbers."), 868 ("statewide militant gay aggression"), 869 (There 
would be "irrational public policy, if gay militants had their way on 
the State of Colorado.”).



13

protected class status, and simply say no to 
those.12

Marco explained that it was necessary to prevent gay 
voters from seeking government protection and assistance 
because other voters seeking such government resources 
"simply could not compete with gay militants’ ability to 
lobby, to influence legislation, to promulgate its views 
through print and through other media." (Tr. 866). As the 
Colorado courts correctly recognized, Amendment 2 solved 
this "problem" by intentionally excluding gay voters from 
participation in that political competition to influence 
government legislation and policy.

Documentary evidence demonstrated that prior to the 
passage of Amendment 2 Marco had circulated flyers with 
similar admonitions that "[rjecently Colorado homosexual, 
lesbian and bisexual activists and their supporters have 
launched a multi-pronged legislative offensive."13 Marco 
had asserted that the tactics of these "gay extremists" "shows 
a striking resemblance to, of all things, a Communist Party 
directive quoted in the 1956 Report of the House of 
Representatives Committee on Un-American Activities."14 
Another flyer widely circulated by CFV in support of

12 Tr. 843; see also id. at 853 ("[B]y dealing with all of this in 
essence in one full [sic] swoop, we simply closed the lid on the entire 
issue.") (emphasis added).

13 PX 11, p. 1; see also PX 12, p. 1 ("In recent years, extremist 
homosexual, lesbian and bisexual activists and their supporters have 
launched a multi-pronged legislative offensive on national, state and 
local government levels."); PX 21 ("The so-called ’gay rights 
movement’ is gaining ground...here in Colorado."); PX 22, p.l 
(tabloid circulated by CFV with "astonishing, fully-documented 
reports of the actual goals of homosexual extremists").

14 PX 12, p. 46; see also id. at 46 (one gay rights group allegedly 
"a truly fascist organization" which subscribed to "consciously 
’subversive modes, drawn largely from..jWem Kampf.’").



14

Amendment 2 argued that gays exercised dangerously 
excessive influence because they had the support of "the gay- 
sympathetic media." (PX 20, p.2). At trial petitioners made 
a major effort to prove this allegation. Witnesses called by 
petitioners warned that gays had "an inordinate influence on 
the media"13 * 15 and "receive disproportionate and largely 
sympathetic attention from the print and electronic 
media",16 an excessive influence which petitioners attributed 
to the existence of "open gays and lesbians in many 
newsrooms." (Tr. 1257). Petitioners also sought to establish 
the existence of undue gay influence in Hollywood. (Tr. 
1250).

In addition, petitioners attempted at trial to buttress 
Marco’s argument that gays exercised excessive power in 
three cities which had enacted gay rights ordinances— 
Denver, Boulder and Aspen. In two of these cities— 
Boulder17 and Denver18~the ordinances had been 
approved by voters in public referenda. Thus, petitioners 
offered testimony attacking the political views of the voters 
themselves in those cities. The reason for Amendment 2, 
according to petitioners’ expert witness, was that local 
majorities in those cities were "inflamed" (Tr. 1003), 
"completely reckless" (Tr. 1198), "felt very strongly and were 
concentrated" (Tr. 1001), and had "propensities to abuse." 
(Tr. 1224). The virtue of Amendment 2, he asserted, was

13 Tr. 1244; see also id. at 1245 ("access that would not be
accorded to other groups"), 1247 ("pro gay bias" on television;
networks "enormously biased.").

16 DX CC, pp. 26-27; see also DX 44, p. 2 ("[Homosexuals enjoy 
support from every major news organization, whose coverage long 
ago crossed the line into outright advocacy of homosexual causes.").

17 PX 39 (ordinance approved by vote of 7916 to 7621).

18PX 29 (ordinance approved by vote of 55,173 to 45,771).



15

that it shifted control over gay rights in those three cities out 
of the hands of local voters who were "closely ideologically 
involved in the question of gay rights," and conferred it 
instead on a broader electorate with "different interests," 
whom he regarded as "the moderates . . . the centralists." 
(Tr. 1002).

That Colorado’s highest officials actually sought at 
trial to prove that its political processes were imperiled by a 
conspiracy of gay extremists is quite extraordinary. The 
modest changes that have occurred in the law regarding 
sexual orientation, and the professional successes of some 
gay people, would convince none but the paranoid that 
Colorado or any other state is actually threatened by 
"militant gay aggression." This argument bears an unsettling 
resemblance to the canard voiced half a century ago that 
Jews, who in fact then faced widespread and open 
discrimination, were somehow covertly exercising control 
over the nation’s policies. Not since the heyday of Jim Crow 
have state officials attacked as a threat to the "body politic" 
the enactment of minimal protections for an unpopular 
group. The trial court understandably rejected these 
outlandish claims. (Pet. App. C-8).

In this Court, petitioners, although not directly 
attacking the findings of the Colorado Supreme Court, assert 
that the actual purpose of Amendment 2 was to assure that 
sufficient funds were available to enforce existing 
prohibitions against discrimination on the bases of race, 
gender and religion.19 This proffered explanation is utterly 
implausible. The trial court concluded, to the contrary, that

19 "Amendment 2 is an appropriate means by which the people 
sought to focus government’s limited resources upon those 
circumstances most warranting attention." Pet. Br. 41. Although 
petitioners suggest that there might be other rational bases for 
Amendment 2, this is the only basis which petitioners assert was the 
actual purpose of that provision.



16

applying anti-discrimination laws to sexual orientation would 
have entailed little if any additional cost:

The facts don’t support defendants’ position 
. . . .  [Ajctual experiences show that the 
presence of a sexual orientation provision has 
not increased costs or impaired the 
enforcement of other civil rights statutes or 
ordinance . . . .  [Tjhis court now finds 
defendants’ offered evidence of lack of fiscal 
ability unpersuasive in all respects.20

Amendment 2 does not provide that any nominal savings 
must or even should be utilized to enforce other anti- 
discrimination provisions, does not require that the state or 
localities appropriate any funds at all for enforcing those 
provisions, and leaves Colorado and its subdivisions free to 
repeal completely any existing statutes or ordinances that 
prohibit discrimination on the basis of race, gender or 
religion. Petitioners acknowledged below that extension of 
state anti-discrimination laws to sexual orientation would 
require no more than a single additional employee at the 
Colorado Civil Rights Division.21 It is quite unbelievable 
that the sponsors of Amendment 2 would have solicited

20Pet. App. C-9 - C-10. Petitioners conceded below that 
enforcement of the Denver ordinance, for example, had involved no 
significant cost to the city. Opening Brief, Case Nos. 94 SA 048 and 
94 SA 128 (Colo. S. Ct.) p. 29 ("[T]he Denver experience reflected 
little fiscal impact.").

21 In the court below, the only argument advanced by petitioners 
regarding the impact of a possible state ban on sexual orientation 
discrimination was that in Wisconsin, a state substantially larger than 
Colorado, "almost a full time position was required to handle the . . 
. new civil rights filings each year precipitated by the sexual 
orientation law." (Opening Brief, Case Nos. 94 SA 048 and 94 SA 128 
(Colo. S. Ct.), p. 29.).



17

more than 50,000 petition signatures (PX 21), expended 
hundreds of thousands of dollars (Tr. 747-48, 1046), and 
waged a year long state wide campaign merely to prevent the 
addition of a single worker to a state payroll that already 
numbered more than 156,000.22

There is, moreover, no mention whatever of this 
purported purpose in the flyers prepared by the proponents 
of Amendment 2, hundreds of thousands of which were 
circulated prior to the referendum. Rather, in language 
similar to Marco’s testimony, the flyers called for preemptive 
action "to STOP the ’gay’ activists,"23 warning darkly that 
gay voter~"militant[s]" and "extremists"—were pursuing 
"astonishing...goals"; "[w]hat they really want will shock and 
alarm you." (PX 22, p. 1). The description of those alleged 
goals included topics, such as "Target: Children" and 
"Objective: Destroy the Family." (PX 22, pp. 2, 4). Much of 
this literature was baldly framed to inculcate blind animus 
toward gay voters by portraying them as an evil clique 
unworthy to participate in any aspect of civilized society. 
CFV insisted at length that central goals of gays included 
legalizing, and engaging in, pedophilia,24 desecrating 
churches, and assaulting members of the clergy. (PX 21). 
The flyers were replete with luridly explicit descriptions of

12See Bureau of the Census, Public Employment in 1991 11 (1992).

23 PX 21 (capitalization in original).

24 PX 22, p. 2 ("[Pjedophilia (the sexual molestation of children) 
is actually an accepted part of the homosexual community....Don’t let 
gay militants double-talk hide their true intentions. Sexual 
molestation of children is a large part of many homosexuals’ 
lifestyle....Say no to sexual perversion with children-vote YES on 
Amendment 2!").



18

bizarre sexual practices.25 One bold-faced headline warned: 
"Lesbians are now having babies conceived by homosexual 
semen". (PX 21).

C. The Purpose Found by the Courts below 
Is Constitutionally Impermissible.

In Carrington v. Rash, 380 U.S. 89 (1965), Texas 
refused when registering voters to recognize as bona fide 
residents any member of the armed forces who had not been 
a Texas resident when he or she entered the service. The 
state sought to justify this statute as a method of preventing 
military personnel from dominating local elections. The 
Court held that such a purpose was unconstitutional per se:

[T]he State’s first contention is that 
the...provision is necessary to prevent the 
danger of a "takeover" of the civilian 
community resulting from concentrated voting 
by large numbers of military personnel in 
bases placed near Texas towns and cities. A 
base commander, Texas suggests, who 
opposes local police administration or 
teaching policies in local schools, might 
influence his men to vote in conformity with 
his predilections. Local bond issues may fail, 
and property taxes stagnate at low levels 
because military personnel are unwilling to 
i n v e s t  in t h e  f u t u r e  o f  t h e  
area....But..."[fjencing out" from the franchise 
a sector of the population because o f  the way 
they may vote is constitu tionally  
impermissible.

25 PX 21; PX 22, p. 4; see also PX 20 (CFV letter referring to 
accompanying "Shocking brochure" with "graphic, disgusting facts" 
that will "shock and repel").



19

380 U.S. at 93-94 (emphasis added); see also id. at 94 (right 
to vote cannot be restricted "because of fear of the political 
views of a particular group").

This holding in Carrington has been reiterated by this 
Court on numerous occasions. In Cipriano v. Houma, 395 
U.S. 701 (1969), the Court emphasized that it was 
"constitutionally impermissible" to preclude non-landowners 
from voting on the issuance of revenue bonds because their 
interests, and thus likely voting behavior, were different than 
those of property owners. 395 U.S. at 705-06. In Dunn v. 
Blumstein, 405 U.S. 330 (1972), the state sought to justify a 
one-year residence requirement for voters as a method of 
assuring that new voters would share the interests of existing 
residents. This Court held:

Tennessee’s hopes for voters with a "common 
interest in all matters pertaining to [the 
c o m m u n i t y ’ s]  g o v e r n m e n t  i s 
impermissible"...."[Differences of opinion" 
may not be the basis for excluding any group 
or person from the franchise...."[T]he fact that 
newly arrived [Tennesseans] may have a more 
national outlook than longtime residents, or 
even may retain a viewpoint characteristic of 
the region from which they have come, is a 
constitutionally impermissible reason for 
depriving them of their chance to influence 
the electoral vote of their new home state."

405 U.S. at 355-56 (footnote omitted); see also Evans v. 
Common, 398 U.S. 419, 422-423 (1970).

This Court has also held that district lines that may 
not be drawn for the avowed purpose of minimizing the 
political influence of a targeted group. Bums v. Richardson, 
384 U.S. 73 (1966), recognized that the Constitution would 
not permit use of a district plan "designed to...minimize or



20

cancel out the voting strength of racial or political elements 
of the voting population." Id. at 89 (emphasis added). In 
Gaffney v. Cummings, 412 U.S. 735 (1973), the Court 
reiterated that multimember districts would be 
unconstitutional if "invidiously discriminatory because they 
were employed to minimize or cancel out the voting strength 
of racial or political elements of the population." 412 U.S. at 
751 (emphasis added), quoting Fortson v. Dorsey, 379 U.S. 
433, 439 (1965). In Mobile v. Bolden, 446 U.S. 55, 69, n.14 
(1980), the Court stressed that the term "employed" in this 
passage in Gaffney referred to "the existence of 
discriminatory purpose." Gaffney also indicated that the 
boundaries of particular legislative districts could not be 
intentionally drawn "to minimize or eliminate the political 
strength of any group or party." 412 U.S. at 754. Davis v. 
Mann, 377 U.S. 678, 691 (1964), emphasized that a 
districting scheme adopted for the purpose of discriminating 
against "military and military-related personnel...is
constitutionally impermissible."

Most recently in Davis v. Bandemer, 478 U.S. 109 
(1988), six members of the Court agreed that plaintiffs in a 
gerrymandering case could prevail by demonstrating "both 
intentional discrimination against an identifiable political 
group and an actual discriminatory effect on that group." 
478 U.S. at 127, (plurality opinion), 161 (Powell, J., 
concurring in part and dissenting in part). The Court 
expressly rejected the contention that the constitutional 
prohibition against invidious gerrymandering should be 
limited to race claims. Compare 478 U.S. at 125-27 
(plurality opinion) with 478 U.S. at 144-61 (dissenting 
opinion).

In the instant case, Colorado unquestionably would 
have violated the Constitution if, as in Carrington, the state 
had concocted some voter registration requirement that 
disproportionately screened out gays and did so with the 
intent "to deny [them the] right to participate equally in the



21

political process." (Pet. App. B-22). The state would have 
also acted unconstitutionally if it had mandated an invidious 
gerrymander of city council districts in Aspen, Denver or 
Boulder for the avowed purpose of "minimizing] or 
cancel[ing] out the voting strength" of gay voters. Gaffney, 
412 U.S. at 752. The result is no different here merely 
because, in seeking to accomplish a similar discriminatory 
result with an identical invidious purpose, Colorado has 
chosen instead a different method of manipulating its 
political process. The Fourteenth Amendment "nullifies 
sophisticated as well as simple-minded modes of 
discrimination." Lane v. Wilson, 307 U.S. 268, 275 (1939).

To be sure, the particular device at issue in this case 
is different from the practices in Carrington and Davis v. 
Bandemer. But the constitutional transgression in those 
cases concerned the purpose of the government action, not 
the specific manner in which the state had sought to further 
the constitutionally impermissible goal. The Colorado 
Supreme Court below concluded that the purpose of 
Amendment 2 was to eviscerate the political power of gay 
voters and organizations to bring about changes in state or 
local laws with which the proponents of Amendment 2 
happened to disagree. Such a deliberate scheme

to "withdraw all political influence from those 
who are practically hostile" to the existing 
order, strikes at the very heart of the 
democratic process. A temporal majority 
could use such a power to preserve inviolate 
its view of the social order simply by 
disenfranchising those with different views.

Richardson v. Ramirez, 418 U.S. 24, 83 (1976) (Marshall, J., 
dissenting).

Nothing in James v. Valtierra, 402 U.S. 137 (1971), is 
to the contrary. There was no claim in that case that the



22

California constitutional provision there at issue had been 
adopted for the purpose of preventing equal political 
participation by the poor. On the contrary, both the District 
Court opinion and the dissenters in this Court relied 
exclusively on the effect of that provision26. The majority 
stressed that under the circumstances in that case the 
California provision mandating referenda to review the 
creation of certain housing projects "demonstratejd] devotion 
to democracy, not bias, discrimination, or prejudice." 402 
U.S. at 141. Unlike Amendment 2, which was deliberately 
framed to obstruct in the most sweeping manner every 
conceivable anti-discrimination action, the California 
provision did not apply to any of the myriad of non-housing 
actions local officials might take to benefit the indigent, such 
as providing Head Start programs, school lunches, remedial 
education under Title I, etc. Even with regard to housing 
for the poor, no referendum was required if local officials 
chose to provide subsidies for indigent tenants in private 
housing, to use zoning laws to require developers to include 
units for low income tenants, or to forbid landlords from 
discriminating against tenants receiving welfare. Nor did the 
California measure require indigent voters to meet the often 
onerous burdens necessary to initiate a referendum. In sum, 
the provision in James was directed at a quite specific type 
of housing project, not at interfering generally with effective 
political participation by indigent voters.

26 402 U.S. at 145 (Marshall, J., dissenting) ("substantial 
burden...on the poor); Valtierra v. James, 313 F. Supp. 1, 6 (N.D. Cal. 
1970) ("[L]ack of bad motive has never been held to cure an 
otherwise discriminatory scheme. Certainly Hunter does not demand 
a demonstration of improper motivation.1').



23

D. Amendment 2 Has the Effect of Denying Gay 
Voters an Equal Opportunity to Participate 
Effectively in the Political Process.

A state law or constitutional provision is not 
necessarily invalid solely because it was motivated by a 
desire to reduce the political impact of a group of voters. 
For example, a districting plan framed to eliminate a 
disproportionate advantage previously enjoyed by one 
political party, and which merely resulted in representation 
that is "a rough approximation of the statewide political 
strengths of the Democratic and Republican parties," would 
pose no constitutional problem. Gaffney, 412 U.S. at 752. 
Similarly, limits on campaign contributions, even though 
directed at least in part at curbing disproportionate influence 
or access by rich contributors, serve at most to equalize the 
ability of contributors to advance favored candidates. 
Buckley v Valeo, 424 U.S. 1, 25-26 (1976). In order to 
violate Equal Protection, a scheme not only must be 
animated by an intent to reduce the influence of an 
identifiable group of voters, but also must have the effect of 
"consistently degrading] a voter’s or a group of voters’ 
influence on the political process...." Davis v Bandemer, 478 
U.S. at 109.

Amendment 2 is not a mere "gauntlet" or "hurdle;" 
rather, Amendment 2 is a virtually insuperable barrier to the 
adoption of any governmental measures protecting gays from 
discrimination. In the court below petitioners correctly 
characterized Amendment 2 as such a flat prohibition:

[T]he plain language of Amendment 2 
itself...remove[s] state and local government 
from  th e  issue  [o f gay r ight s]



24

altogether....Amendment 2 was about the
resolution of the debate...a final decision is 
made on this divisive issue.27

Other lower court briefs submitted by petitioner were 
equally emphatic in describing Amendment 2 as an absolute 
and definitive bar.28

In this Court, however, petitioners seek to 
recharacterize Amendment 2 as merely altering the process 
for enacting gay rights legislation. Petitioners do not rely in 
this regard on the actual language of Amendment 2, which 
is on its face a flat prohibition, but instead tacitly invoke 
Article V, section 1 of the Colorado Constitution, which 
permits future amendments. Thus, petitioners reason, 
Amendment 2 has not prohibited laws or ordinances against 
sexual orientation discrimination, but merely established a 
new process under which, as part of adopting any such 
enactments, the constitution of Colorado would first have to 
be amended by statewide referendum. But the hypothetical 
possibility of subsequent constitutional amendments does not 
convert an unequivocal constitutional prohibition into a 
mere process for taking the forbidden action. In petitioners’ 
view the Establishment Clause of the First Amendment 
would constitute, not a barrier to the creation of a national

27 Opening Brief, Case Nos. 94 SA 048 and 94 SA 128 (Colo. S. 
Ct.), pp. 39, n.57, 45 (emphasis in original).

28 Opening Brief, Case No. 93 SA 017 (Colo. S. Ct.), pp. 5 
("Amendment 2...barred special civil rights protections"), 12 
("Amendment 2...prohibits" adoption of certain anti-discrimination 
rules); Reply Brief, Case No. 93 SA 017 (Colo. S. Ct.), p. 7 
("Amendment 2 prohibits adopting of specific civil rights protections); 
Brief in Support of Defendant’s Motion to Dismiss, Case No. 92 CV 
7223 (D. Ct. Denver), pp. 2 ("prohibits"), 5 ("prohibition"), 25 
(Amendment 2 places civil rights protections for homosexuals 
"beyond the competency of government officials.").



25

church, but merely a decision to let Congress, in consultation 
with three-quarters of state legislatures, determine which 
particular religious sect all Americans should be compelled 
to join. In adopting Amendment 2, Colorado has erected 
against adoption of anti-discrimination measures a barrier as 
insurmountable as is possible to create in a democracy. 
Three decades ago in Lucas v. Forty-Fourth General 
Assembly, 377 U.S. 713 (1964), this Court rejected this same 
argument that a provision of the Colorado constitution 
diluting the votes of certain voters could be upheld merely 
because Colorado voters retained the right to amend their 
state’s constitution. 377 U.S. at 732, 733, 737.

Even if the possibility of further amending the 
Colorado constitution is considered, the burden imposed by 
Amendment 2 is too severe. In the wake of Amendment 2, 
proponents of any protections against sexual orientation 
discrimination bear the burden of obtaining the more than 
54,000 signatures necessary to even obtain a public vote.29 
If, for example, such a measure were sought by the people 
of Aspen, the number of signatures needed would be 130 
times the total number of voters in the town.30 Under 
Amendment 2, the overwhelming majority of the voters 
could be hundreds of miles from, for example, the town of 
Aspen, and understandably unfamiliar with, if not indifferent 
to, local problems. The critical reason for placing a barrier 
to gay rights legislation in the Colorado Constitution, 
petitioners themselves emphasized below, was to create an

29 Article V, section 1(2) of the Colorado Constitution requires 
petition signatures equal to five percent of the votes cast in the most 
recent election for secretary of state.

30 There are 4031 registered voters in the town of Aspen.



26

obstacle that could "not be easily displaced or 
circumvented."31

As petitioners frankly acknowledge, Amendment 2 
was framed and enacted for the avowed purpose of 
overturning, and preventing further adoption of, measures 
that prohibited discrimination by state and local government 
officials in Colorado. (Pet. Br. 6). There were at least ten 
such measures directed exclusively at preventing 
governmental discrimination: (a) an executive order issued 
by the governor prohibiting employment discrimination on 
the basis of sexual orientation by any state agency,32 (b) 
prohibitions issued by officials of, and applicable to 
employment by, Boulder County (PX 118), the Denver 
Police (PX 32), the Denver Public Library (PX 31), and the 
City and County of Denver (PX 10), against sexual 
orientation discrimination in government employment, (c) a 
prohibition generally forbidding discrimination on the basis 
of sexual orientation by Denver officials with regard to 
government housing, contracting services, and credit (PX 
36), (d) general prohibitions adopted by at least two state 
colleges against sexual orientation discrimination in 
employment or education (Pet. App. D-25), and (e) 
directives issued by the Denver Police Department 
forbidding police officers from engaging in harassment, or 
making derogatory remarks in radio transmissions, with 
regard to sexual orientation. (PX 33, PX 34). In addition, 
the local ordinances forbidding discrimination on the basis

31 Opening Brief, Case Nos. 94 SA 048 and 94 SA 128, (Colo. S. 
Ct.), p. 52.

32 PX 46. That prohibition is reflected in Colorado civil service 
regulations. PX 47.



27

of sexual orientation often applied to governmental as well 
as private entities.33

Amendment 2 invalidates these and any future 
prohibitions against discrimination by employees of Colorado 
or its political subdivisions. Amendment 2 was openly 
advocated as a method of preventing elected officials from 
interfering with discrimination by their subordinates.34 The 
provision does so by directing in part that neither the state, 
its agencies, nor its subdivisions

shall...adopt or enforce any...policy whereby 
homosexual...orientation...shall constitute...the 
basis of...any claim of...discrimination.

Measures such as the governor’s executive order forbidding 
employment discrimination by his or her subordinates is just 
such a "policy" clearly forbidden by the language of the 
Amendment.

Amendment 2, in an unprecedented and quite bizarre 
manner, obstructs the normal operation of the political 
process and of state and local government. The purpose and 
effect of the Amendment is to strip elected officials, and any 
other supervisory officials down through the chain of 
command, of any power to interfere with decisions by their 
subordinates to engage in discrimination. The governor may 
opt to make his own decisions in a non-discriminatory 
manner, but he cannot direct "[tjhe head of each principal 
department" to do the same. (Compare PX 44). The Denver 
Chief of Police may avoid harassing anyone on the basis of

33 PX 37 (Boulder ordinance applies without limitation to all 
employers); PX 48 (Aspen ordinance applies to "any...government 
agency").

34 PX 22, p. 7 (urging vote for Amendment 2 in order to protect 
"[gjovernment workers" who object to "hirjrng] gays" and "promoting] 
homosexuals").



28

sexual orientation, but he cannot order "all Police 
Department personnel" to refrain from such actions. 
(Compare PX 33). The mayor of Denver may chose not to 
personally discriminate in decisions regarding government 
housing, services, contracting, etc., but he cannot require "all 
department heads" to follow a similar course. (Compare PX 
36).

Amendment 2 places each of the hundreds of 
thousands of state and local government employees in 
Colorado, insofar as they may wish to discriminate against 
gays, outside the powers of any elected official and thus 
beyond the reach of the political process. Petitioners argue 
that a presumption of propriety should be accorded to 
choices made by government officials "who are accountable 
to" "those put in authority by the electoral process" (Pet. Br. 
32 n. 22); but a core purpose of Amendment 2 is to 
guarantee that state and local government employees in 
Colorado will not be so accountable. Discrimination against 
homosexuals in the exercise of governmental power is in 
Colorado the constitutional right of every individual police 
officer, school teacher, office supervisor, public housing 
official, and college admissions clerk. Far from bringing 
about uniformity, this near anarchical scheme means that 
whether a gay applicant can obtain a government job, or be 
admitted to a state college, turns solely on the whims and 
biases of whichever official happens to be charged with 
making that particular decision.

On repeated occasions this Court has emphasized 
that individuals aggrieved by injury at the hands of 
government officials must--in the absence of a clear 
constitutional transgression-look to the political process for 
redress. For gay victims of discrimination in Colorado 
today, that is simply impossible. Gay applicants denied state 
jobs on the basis of sexual orientation cannot obtain redress 
from even a willing governor, and, if dissatisfied with a 
hostile governor’s lack of response, cannot improve their 
situation by voting into office a new governor sympathetic to 
their plight. It is a mockery of democracy to assert of this



29

situation, as do petitioners (Pet. Br. 11, 26, 27), that gays 
remain free to run for office or to vote for the candidates of 
their choice. For gay voters aggrieved by sexual orientation 
discrimination on the part of state or local government 
employees, the political process has been deliberately 
rendered an empty charade.



CONCLUSION

For the above reasons the judgment of the Colorado 
Supreme Court should be affirmed.

Respectfully submitted,

ELAINE R. JONES 
Director-Counsel 

THEODORE M. SHAW 
VICTOR A. BOLDEN 
CATHERINE POWELL 
NAACP LEGAL DEFENSE 
Fund, Inc.
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

ERIC SCHNAPPER 
University of Washington 
School of Law 

1100 N. Campus Parkway 
Seattle, WA 98195 
(206) 616-3167 
(Counsel of Record)

ANTONIA HERNANDEZ 
Mexican American Legal 
Defense and Educational 
Fund

634 South Spring Street 
Los Angeles, CA 90014 
(213) 629-2512

JUDITH L. LICHTMAN 
DONNA R. LENHOFF 
Women’s Legal Defense 
Fund

1875 Connecticut Ave. N.W. 
Washington, D.C. 20009 
(202) 986-2600

Counsel for Amici Curiae