Nature of the Case
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Facts
Most states counter discrimination against homosexuals by enacting detailed statutory schemes. Colorado's state and municipal laws enumerate the persons or entities subject to a duty not to discriminate; the list goes well beyond the entities covered by common law (e.g., housing, employment, places of public accommodation). These statutes and ordinances also depart from the common law by enumerating the groups or persons within the ambit of protection, such groups or persons not being limited to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. The enumerated groups include homosexuals. In 1992, the Colorado State Constitution was amended by popular referendum to stop the state and municipalities from enacting legislation to protect homosexuals. The Amendment 2 bars homosexuals from securing protection against the injuries that these public accommodations laws address. Amendment 2 also nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. It also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government (executive, judicial or legislative). The state supreme court held that Amendment 2 was subject to strict scrutiny under equal protection because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the State advanced various arguments to show that Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the state supreme court affirmed.
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