Court To Weigh State Efforts To Ban Local Gay-Rights Measures

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Taking on a major gay-rights case for the first time in a decade, the U.S. Supreme Court agreed last week to decide whether states may ban local laws or policies protecting homosexuals from discrimination.

The High Court will review a Colorado constitutional amendment that bars cities and school districts, as well as the state government, from adopting any measure that provides "homosexual, lesbian, or bisexual" citizens with legal protection against discrimination.

The measure, known as Amendment 2, was passed as a ballot initiative in 1992. Because of a court challenge, however, it has never taken effect.

The amendment would repeal the existing gay-rights ordinances in at least three Colorado cities--Aspen, Boulder, and Denver.

The Boulder Valley school district joined those cities and several private citizens in challenging the amendment. The district contends that its policy protecting students from discrimination based on sexual orientation would be nullified if Amendment 2 is allowed to take effect.

"The place where we think Amendment 2 could do the most mischief is in the schools," said Jean E. Dubofsky, the lead lawyer for the plaintiffs who challenged the amendment. "The most virulent anti-gay sentiments first express themselves there."

If the measure takes effect, even informal school policies designed to promote tolerance of homosexuality or to help counsel gay teenagers against suicide could come under attack, she said.

A growing number of school districts nationwide are adding sexual orientation to their anti-discrimination policies, legal experts say.

Meanwhile, state ballot initiatives modeled on Amendment 2 have failed in a number of states in recent years, but proponents continue to push them. Voters in Maine and Washington State will face ballot measures similar to Amendment 2 in November.

A Fundamental Right

The High Court will review a ruling last October by the Colorado Supreme Court, which upheld a permanent injunction against Amendment 2. The court ruled that the ballot measure violated the fundamental right of gay citizens to participate equally in the political process because it bars them from seeking legislation to ward off discrimination.

The right to participate equally in the political process is guaranteed by the equal-protection clause of the 14th Amendment of the U.S. Constitution, the state supreme court said.

In an earlier ruling, the state high court had said that because Amendment 2 violated a fundamental constitutional right, the state would have to show that the measure was supported by a "compelling state interest" and was "narrowly tailored" to meet that interest.

A Denver trial judge in late 1993 rejected several justifications for Amendment 2 offered by the state, and the state supreme court upheld him with its October ruling.

In their appeal to the U.S. Supreme Court in Romer v. Evans (Case No. 94-1039), state officials argue that the Colorado high court improperly created a new federal constitutional right.

Amendment 2 "presents no obstacles whatsoever to particular candidates or political parties," the state's petition argues. "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 have."

The case will not be argued until the Supreme Court's next term, and a decision could be a year away.

Boulder Tax Case

In a separate case from Colorado, the High Court rejected an appeal from a group of taxpayers who challenged the Boulder Valley district's response to another 1992 ballot initiative.

That year, Colorado voters approved a constitutional amendment requiring voter approval of all state and local tax increases. In 1993, the Boulder Valley district put a bond issue on the ballot along with a separate question that would eliminate the need for future elections to raise property taxes to repay the bonds. The measure passed.

The state supreme court upheld the district's tactic. Without comment, the U.S. Supreme Court refused to hear the taxpayers' appeal in Wright v. Boulder Valley School District (No. 94-1196).

Vol. 14, Issue 23

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