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holding a state constitutional amendment invalid under the federal Constitution
Summary of this case from Huber v. Colorado Mining AssociationOpinion
No. 93SA17
Decided July 19, 1993.
Appeal from the District Court, City and County of Denver Honorable H. Jeffrey Bayless, Judge
Jean E. Dubofsky, P.C., Jean E. Dubofsky; Holland Hart, Gregory A. Eurich; Jeanne Winer; Darlene M. Ebert, Denver Assistant City Attorney; Joseph N. deRaismes, III, Boulder City Attorney; Edward M. Caswall, John P. Worcester, Aspen City Attorney; Matthew Coles, National Gay Lesbian Task Force; Suzanne Goldberg, Lambda Legal Defense Education Fund, Inc.; Wilson, Sonsini, Goodrich Rosati, Clyde J. Wadsworth; David H. Miller, American Civil Liberties Union, for Plaintiffs-Appellees.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Paul Farley, Deputy Attorney General, for Defendants-Appellants.
Martin Kuhn; Robert K. Skolrood, Tracy Louise Winn, for Amicus Curiae Colorado for Family Values.
Roger Westlund; Jordan Lorence, for Amicus Curiae Institute in Basic Life Principles.
Center for Human Rights Advocacy, William M. Cohen, for Amici Curiae American Jewish Committee, United Church of Christ Office for Church in Society, Union of American Hebrew Congregations, Unitarian Universalist Association, and Anti-Defamation League.
Bredhoff Kaiser, Robert H. Chanin, John M. West; Martha R. Houser, for Amicus Curiae National Education Association.
Theodore W. Rosen, David A. Braff, Penny Shane, Ralph Erich Jones, Eulalia M. Mack, Scott A. Kronland, for Amicus Curiae AIDS Action Council.
Heller, Ehrman, White McAuliffe, Stephen V. Bomse; Feiger Collison Killmer, Darold W. Killmer, Diane S. King, for Amici Curiae Colorado Bar Association and Colorado Trial Lawyers Association.
AFSCME Colorado Council 76, M. Patrick Steadman; AFL-CIO, Jack Dempsey, Kimberlee Keller, for Amicus Curiae American Federation of State, County and Municipal Employees, AFL-CIO.
Sherman Howard, Keith M. Angle; Ireland Stapleton Pryor Pascoe, Scot M. Peterson, for Amicus Curiae Coalition of Associations of Mental Health Professionals.
Defendants, Roy Romer, Governor of the State of Colorado, Gale A. Norton, Attorney General of the State of Colorado, and the State of Colorado (referred to collectively as "defendants") appeal the trial court's entry of a preliminary injunction enjoining them from enforcing a voter-initiated amendment to the Colorado Constitution ("Amendment 2"). We affirm.
I
In May 1992, the requisite number of qualified voters submitted petitions to the secretary of state to present to the electorate a new section 30 to article II of the Colorado Constitution. The proposed constitutional amendment was put to the voters as Amendment 2 on November 3, 1992, and passed by a margin of 813,966 to 710,151 (53.4% to 46.6%). The secretary of state certified the results on December 16, 1992, as required by article V, section 1, of the state constitution.
Art. II, § 1, of the Colorado Constitution proclaims that "[a]ll political power is vested in and derived from the people; all government of right, originates from the people, is founded upon their will only, and is instituted solely for the good of the whole." Art. II, § 2, provides that "[t]he people of this state have the sole and exclusive right of governing themselves, as a free, sovereign and independent state; and to alter and abolish their constitution and form of government whenever they may deem it necessary to their safety and happiness, provided, such change be not repugnant to the constitution of the United States."
Amendment 2 provides:
" No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing."
On November 12, 1992, Richard G. Evans, along with eight other persons ("individual plaintiffs"), and the Boulder Valley School District RE-2, the City and County of Denver, the City of Boulder, the City of Aspen, and the City Council of Aspen ("governmental plaintiffs") (referred to collectively as "plaintiffs") filed suit in Denver District Court to enjoin the enforcement of Amendment 2 claiming that the amendment is unconstitutional. This contention was premised on several state and federal constitutional provisions.
The individual plaintiffs claim that Amendment 2 violates their right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution because it fails to rationally advance a legitimate governmental interest and because it places unique burdens on plaintiffs' ability to participate equally in the political process. They also challenged the amendment on numerous First Amendment grounds including that it violates their right to petition their government for a redress of grievances; that it violates their rights to free expression and association; that it violates the constitutional prohibition against the establishment of religion; and that it is unconstitutionally vague. They also alleged that the initiative process by which Amendment 2 was passed violates the Guarantee Clause of Article IV, Section 4, of the United States Constitution. Lastly, the individual plaintiffs allege that Amendment 2 prohibits state courts from enforcing statutes, regulations, ordinances, and policies concerning discrimination based on sexual orientation and therefore, violates the Supremacy and Due Process Clauses of the Federal Constitution and art. II, § 6, of the Colorado Constitution. Two of the governmental plaintiffs urge that Amendment 2 be construed so as not to affect their home rule powers. The Boulder Valley School District RE-2 asserts that Amendment 2 may violate local control over educational policies protected by art. IX, § 15, of the Colorado Constitution. All of the governmental plaintiffs claim that the amendment subjects them to potential liability under the Supremacy Clause of the Federal Constitution.
After plaintiffs' request for an expedited hearing on the merits was rejected, they filed a motion seeking to preliminarily enjoin the enforcement of Amendment 2 which was to go into effect on or before January 15, 1993. In support of this motion, plaintiffs argued that Amendment 2 deprives them of the First Amendment right of free expression and their Fourteenth Amendment right to equal protection of the laws. The First Amendment claim was based on the contention that Amendment 2 eliminates all potential means of redress for private retaliation or discrimination against gay men, lesbians, and bisexuals. Accordingly, the First Amendment requires the government to demonstrate a compelling justification for exposing those who engage in expressive conduct to increased risk. This burden, plaintiffs maintained, could not be met by the state. The trial court neither addressed nor relied on this argument in rendering its decision.
Art. V, § 1, of the Colorado Constitution provides that state constitutional amendments passed via the initiative process "shall take effect from and after the date of the official declaration of the vote thereon by proclamation of the governor, but not later than thirty days after the vote has been canvassed."
Plaintiffs presented two separate arguments under the Equal Protection Clause. First, that Amendment 2 violates their right to equal protection of the laws insofar as it denies gay men, lesbians, and bisexuals the opportunity to participate equally in the political process. Second, that Amendment 2 lacks a rational basis for the burdens it imposes on gay men, lesbians, and bisexuals.
The trial court conducted an evidentiary hearing to consider the motion. Following its conclusion, the court issued a temporary restraining order. The next day, the trial court held that plaintiffs had met their burden under the six-part test of Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982), which sets forth the applicable standard for the issuance of a preliminary injunction and accordingly, granted plaintiffs' motion barring the enforcement of Amendment 2 pending the outcome of a trial on the merits.
Under Rathke, before a trial court may issue a preliminary injunction, "the moving party must establish, as a threshold requirement, a clear showing that injunctive relief is necessary to protect existing . . . fundamental constitutional rights." Rathke, 648 P.2d at 653. If this threshold requirement is met, the trial court must find that the moving party has demonstrated: a reasonable probability of success on the merits; a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief; that there is no plain, speedy, and adequate remedy at law; that the granting of a preliminary injunction will not disserve the public interest; that the balance of equities favors the injunction; and that the injunction will preserve the status quo pending a trial on the merits. Id. at 653-54.
More specifically (and of central importance to this appeal) the trial court concluded that plaintiffs had met the threshold requirement of Rathke by demonstrating that enjoining the enforcement of Amendment 2 was necessary to protect their right to equal protection of the laws under the United States Constitution. The court reached this conclusion by reasoning that Amendment 2 "may burden fundamental rights of an identifiable group." The fundamental right, the court went on, was "the right not to have the State endorse and give effect to private biases."
The trial court cited Palmore v. Sidoti, 466 U.S. 429 (1984) and Reitman v. Mulkey, 387 U.S. 369 (1967), as the primary support for this conclusion. The court quoted the Supreme Court's statement in Palmore that "[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect," Palmore, 466 U.S. at 433, and stated that Reitman stood for the proposition that it was unconstitutional to take "private discrimination and . . . [give] state support to it."
The trial court then determined that because Amendment 2 may burden a fundamental constitutional right, its constitutionality must be assessed by reference to the "strict scrutiny" standard of review. The court concluded that under this standard, plaintiffs had shown to a reasonable probability that Amendment 2 would be demonstrated to be unconstitutional beyond a reasonable doubt at a trial on the merits. See Bollier v. People, 635 P.2d 543, 545 (Colo. 1981) (statutes are presumed constitutional until and unless the contrary can be shown beyond a reasonable doubt).
We note that this presumption is all the more forceful in the context of a constitutional amendment. This is the case not only because here we deal with a constitutional provision as opposed to a statute, but in recognition of the broad powers which our state constitution places in the people. See supra note 1.
Defendants appealed pursuant to C.A.R. 1(a)(3), and we granted review. The basis of defendants' challenge to the preliminary injunction pertains only to the trial court's determination that the threshold requirement of Rathke v. MacFarlane had been met ( i.e., that injunctive relief is necessary to protect existing fundamental constitutional rights). Accordingly, the gravamen of defendants' allegation of error is their contention that the trial court "did not base its decision on any direct precedent," but rather "extrapolated from several federal court decisions" the right identified and allegedly infringed by Amendment 2. Moreover, defendants argue, there is no applicable legal precedent or established right under the Equal Protection Clause of the United States Constitution which Amendment 2 can be shown to infringe upon. Defendants conclude, therefore, that "the lower court's order was fundamentally flawed, and cannot be sustained."
Plaintiffs have presented to this court the same equal protection arguments that were made to, but not relied on by, the trial court. They do not urge that we base our decision on the precise right identified and relied on by the trial court in rendering its decision. To the contrary, they have argued to this court that the right identified by the trial court, when "read in light of the arguments actually presented to [it] . . . is best construed to mean that Amendment 2 violates the plaintiffs' fundamental right of political participation . . . ." In short, plaintiffs urge us to rely only on the equal protection arguments which they have relied on, and that the trial court's ruling should be construed to have done the same.
Before turning to the merits, we first set forth the applicable standard of review which governs our decision.
II
"The grant or denial of a preliminary injunction is a decision which lies within the sound discretion of the trial court." Rathke, 648 P.2d at 653. Consequently, an appellate court reviewing the issuance of a preliminary injunction will usually do so with great deference to the conclusion reached by the lower court. Only if the lower court's ruling was manifestly unreasonable, arbitrary, or unfair will an appellate court ordinarily substitute its judgment for that of the lower court. People v. Milton, 732 P.2d 1199, 1207 (Colo. 1987). Where the issue under review on appeal concerns only legal, as opposed to factual, questions however, the lower court's judgment is subject to independent review on appeal. See Bloomer v. Board of County Comm'rs of Boulder County, 799 P.2d 942, 944 (Colo. 1990) (appellate courts need not defer to trial courts when reviewing questions of law).
The question before us is whether the trial court properly determined that the threshold requirement of Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1987), had been met by plaintiffs. Since that requirement pertains only to whether an existing constitutional right is infringed by Amendment 2, the question we review is strictly a question of law. Lafferty v. Cook, 949 F.2d 1546, 1550 (10th Cir. 1991) (constitutional standard is a question of law subject to de novo review on appeal), cert. denied, 112 S. Ct. 1942 (1992). Consequently, we independently review the question of whether Amendment 2 has been shown to violate an existing constitutional right.
It is important to note in this context that the parties agree that in reviewing the order of the trial court, we are not limited to assessing only the right identified and relied on by the trial court in reaching its conclusion. Rather, a party "may defend the judgment of the trial court . . . on any ground supported by the record, so long as the party's rights are not increased under the judgment." Farmer's Group, Inc. v. Williams, 805 P.2d 419, 428 (Colo. 1991). As noted above, the plaintiffs have presented the same arguments to this court as those made to, but not relied on, by the trial court.
III
It is important to stress at the outset that the Equal Protection Clause of the United States Constitution applies to all citizens, and not simply those who are members of traditionally "suspect" classes such as racial or ethnic minorities. See Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). That gay men, lesbians, and bisexuals have not been found to constitute a suspect class, see, e.g., High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) (homosexuals neither a suspect nor quasi-suspect class); Ben-Shalom v. Marsh, 881 F.2d 454, 464 (7th Cir. 1989) (same), cert. denied sub nom. Ben-Shalom v. Stone, 494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (same), cert. denied, 494 U.S. 1003 (1990), and that plaintiffs do not claim that they constitute such a class do not render the Equal Protection Clause inapplicable to them.
It is well settled that there are three standards which may be applicable in reviewing an equal protection challenge: strict scrutiny, intermediate scrutiny, and rational basis review. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41 (1985). The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U.S. 221, 230 (1981). "When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." City of Cleburne, 473 U.S. at 440 (citations omitted).
Strict scrutiny review — the most exacting standard of review under the Equal Protection Clause — is reserved for statutes or state constitutional amendments that discriminate against members of traditionally suspect classes, see, e.g., Graham v. Richardson, 403 U.S. 365, 372 (1971) (alienage); Loving v. Virginia, 388 U.S. 1, 11 (1967) (race); Korematsu v. United States, 323 U.S. 214, 216 (1944) (national ancestry and ethnic origin), or infringe on any fundamental constitutional right, City of Cleburne, 473 U.S. at 440. Laws that are subject to strict scrutiny review will be sustained only if they are supported by a compelling state interest and narrowly drawn to achieve that interest in the least restrictive manner possible. Plyler v. Doe, 457 U.S. 202, 217 (1982).
Intermediate review, which requires a showing that the law in question is substantially related to a sufficiently important governmental interest, Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982), has been applied in the context of laws which draw distinctions based on gender, id. at 723-24, and illegitimacy, Lalli v. Lalli, 439 U.S. 259, 265 (1978), but not to those laws which create differential treatment based on age, Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313 (1976).
Thus, in reviewing the trial court's determination that the plaintiffs carried their burden of establishing the threshold requirement of Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982), we first must determine which standard applies and second, whether Amendment 2 can be shown, under that standard, and to a reasonable degree of probability, to violate the guarantee of equal protection of the laws.
A
The right of citizens to participate in the process of government is a core democratic value which has been recognized from the very inception of our Republic up to the present time. See John Hart Ely, Democracy and Distrust 87 (1980) (the Constitution "is overwhelmingly concerned, on the one hand, with procedural fairness in the resolution of individual disputes (process writ small), and on the other, with . . . process writ large — with ensuring broad participation in the processes and distributions of government"); Note, Developments in the Law: Elections, 88 Harv. L. Rev. 1111, 1114 (1975) ("no institution is more central to the United States' system of representative democracy than the election").
Indeed, the significance of political participation is evidenced by the fact that nearly half the amendments to the Constitution adopted since 1791 have concerned the franchise and election procedures. See U.S. Const. amends. XII (prescribing the method of electing the President and Vice President), XV (prohibiting the denial of the franchise on the basis of race, color, or previous condition of servitude), XVII (providing for the right to vote directly for United States Senators), XIX (extending the franchise to women), XXIII (extending the franchise to residents of the District of Columbia), XXIV (abolishing the poll tax), XXVI (extending the franchise to 18-year-olds).
The value placed on the ability of individuals to participate in the political process has manifested itself in numerous equal protection cases decided by the Supreme Court over the last thirty years. These include the reapportionment cases, see, e.g., Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713 (1964); Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964), cases concerning minority party rights, see, e.g., Williams v. Rhodes, 393 U.S. 23 (1968), cases involving direct restrictions on the exercise of the franchise, see, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966), and cases involving attempts to limit the ability of certain groups to have desired legislation implemented through the normal political processes, see, e.g., Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Gordon v. Lance, 403 U.S. 1 (1971); and Hunter v. Erickson, 393 U.S. 385 (1969). When considered together, these cases demonstrate that the Equal Protection Clause guarantees the fundamental right to participate equally in the political process and that any attempt to infringe on an independently identifiable group's ability to exercise that right is subject to strict judicial scrutiny. See Dunn v. Blumstein, 405 U.S. at 336 ("In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction."). See also, Laurence H. Tribe, American Constitutional Law 1062 (2d ed. 1988) ("At their core, all voting-related rights are rights to participate in [the] process [of representative government], and the import of the process for our system of government freights them with their indisputable moment.").
Strict judicial scrutiny is warranted when participatory rights are infringed not only because a fundamental right is at stake, see Kramer, 395 U.S. at 626-29, but also because "[t]he presumption of constitutionality and the approval given `rational' classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality." Id. at 628. See also Reynolds v. Sims, 377 U.S. 533, 565 (1964). That is, the ordinary assumption which informs judicial review of legislation that "even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted," Vance v. Bradley, 440 U.S. 93, 97 (1979), is rendered inapplicable when participatory rights are at issue.
The Supreme Court has consistently struck down legislation which establishes preconditions on the exercise of the franchise. These cases, generally speaking, are the types which most clearly violate the guarantee of equal protection because the legislation under review has the effect of directly "[f]encing out," Carrington v. Rash, 380 U.S. 89, 94 (1965), certain classes of voters. Thus, the Court has held that the requirement that voters pay a poll tax, Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966), be civilians, Carrington, or have property or children, Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969), before they can exercise the right to vote runs afoul of the Equal Protection Clause. In reviewing this sort of legislative restriction on the franchise, the Court in Kramer expressed the standard of review and rationale for applying that standard in the following terms:
"Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest."
Kramer, 395 U.S. at 626-27.
As Kramer clearly demonstrates, the danger presented by such restrictive legislation is that it may deny "any effective voice in the governmental affairs which substantially affect their lives." Id. at 627. Thus, to the extent that legislation impairs a group's ability to effectively participate (which is not to be confused with successful participation) in the process by which government operates, close judicial scrutiny is necessitated.
This same emphasis on the value of equal participation emerges from a second group of cases which addresses the issue of reapportionment. In Reynolds v. Sims, 377 U.S. 533 (1964), for example, the Court acknowledged the importance of political participation and the need for the most searching standard of judicial scrutiny when any effort is made to limit participation, in recognition of the fact that "since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Id. at 562. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964) ("even the most basic [rights], are illusory if the right to vote is undermined").
Unlike the situations presented in Carrington, Kramer, and Harper, however, the Reynolds Court was not confronted with legislation which set a precondition on the right to vote — no individual or group was precluded, or even impeded, from voting. Rather, the question presented in Reynolds concerned the Equal Protection Clause's bearing on participatory effectiveness, i.e., the right to have one's vote be as meaningful as the votes of others. Consequently, the Court's opinion in Reynolds, as well as in the other reapportionment cases, reflects the judgment that dilution in the effectiveness of certain voters' exercise of the franchise violates the guarantee of equal protection of the laws not simply because citizens are guaranteed the right to vote, but because that right must be preserved in a meaningful, effective manner. Reynolds, 377 U.S. at 565 ("each and every citizen has an inalienable right to full and effective participation in the political processes . . ."); Board of Estimate of N Y v. Morris, 489 U.S. 688, 693 (1989) (same). In short, equal protection requires that voters are able to exercise the right of franchise on an even footing with others. See Gray v. Sanders, 372 U.S. 368, 379-80 (1963) ("The concept of `we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.").
In Reynolds the Supreme Court held that under the Equal Protection Clause, "the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State." Id. at 579. The Court required " substantial equality" in recognition of the fact "that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." Id. at 577.
This principle has also been consistently relied on to strike down legislation in a third category of political participation cases — the "candidate eligibility" cases. For example, the Supreme Court in Williams v. Rhodes, 393 U.S. 23 (1968), reviewed a series of Ohio statutes which "made it virtually impossible," for new political parties with widespread support, or an old party which enjoyed very little support, to be placed on the state ballot to choose electors pledged to particular candidates for the Presidency and Vice Presidency of the United States. Id. at 24. The Court observed that the state statutes placed significant burdens on "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively," because a "vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot." Id. at 31. The Court, again applying the strict scrutiny standard of review, concluded that only a compelling interest could justify "imposing such heavy burdens on the right to vote and to associate," and held that Ohio had failed to make such a showing. Id.
The Court also held that the Ohio laws burdened "the right of individuals to associate for the advancement of political beliefs . . . ." Rhodes, 393 U.S. at 30.
Similarly, in Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979), Illinois statutes that discriminated against minority parties in local elections were held invalid under the Equal Protection Clause. Applying the strict scrutiny standard, the Court invalidated the Illinois laws, holding that they unnecessarily restricted a constitutionally protected liberty, even while acknowledging that States have a legitimate interest in regulating the number of candidates that appear on a ballot.
The Illinois statutes in question drew a distinction between the requisite number of signatures by eligible voters needed to place an independent candidate or a new party on the ballot at the state level from the number required to do so at the local level.
The "precondition," reapportionment, and "candidate eligibility" cases are not dispositive of, or directly controlling on, our decision here, as Amendment 2 falls within none of those three categories of cases. Admittedly, those decisions addressed entirely distinct questions and constitutional problems from those presented here. Nevertheless, it would be erroneous to conclude that those decisions are entirely inapposite. In the course of invalidating the laws at issue in those cases, the Court consistently recognized the paramount importance of political participation in our system of government, and articulated the fundamental principle which guided its decision in those cases: The Equal Protection Clause guarantees the fundamental right to participate equally in the political process and thus, any attempt to infringe on that right must be subject to strict scrutiny and can be held constitutionally valid only if supported by a compelling state interest. This principle is what unifies the cases, in spite of the different factual and legal circumstances presented in each of them. Thus, while all three categories of cases are distinguishable from the present controversy, the common thread which unites them with one another, and with the case before us, is the principle that laws may not create unequal burdens on identifiable groups with respect to the right to participate in the political process absent a compelling state interest.
Indeed, in Illinois State Board of Elections, 440 U.S. at 184, Justice Marshall, speaking for the Court, stated that "for reasons too self-evident to warrant amplification here, we have often reiterated that voting is of the most fundamental significance under our constitutional structure." (citing Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Reynolds v. Sims, 377 U.S. 533, 555 (1964)).
This principle has received its most explicit, and nuanced, articulation in yet another category of cases where the legislation at issue bore a much closer resemblance to the question presented by Amendment 2. This category of cases involves legislation which prevented the normal political institutions and processes from enacting particular legislation desired by an identifiable group of voters. In each case, the legislation was held to be violative of equal protection.
In Hunter v. Erickson, 393 U.S. 385 (1969), the Supreme Court struck down a charter amendment enacted by the voters of Akron, Ohio, which required any fair housing ordinance to be approved by the electorate, whereas other ordinances could be enacted by the city council. The Court held that the Akron amendment deprived minority groups of equal protection because it "place[d] special burdens on racial minorities within the governmental process." Hunter, 393 U.S. at 391.
In reaching this conclusion, the Court recognized that the amendment was aimed at minority racial groups. However, its opinion speaks to concerns which are broader than the repugnancy of racial discrimination alone. Thus, Justice White, speaking for the Court, noted that Akron was free to require a plebiscite as to "all its municipal legislation," but having chosen to do otherwise, he concluded that Akron could
The Hunter Court noted that "[h]ere . . . there was an explicitly racial classification treating racial housing matters differently from other racial and housing matters," Hunter, 393 U.S. at 389, and observed that "[b]ut for those who sought protection against racial bias, the approval of the City Council was not enough." Id. at 390. The Court acknowledged, however, that "[i]t is true that the section draws no distinctions among racial and religious groups. Negroes and whites, Jews and Catholics are all subject to the same requirements if there is housing discrimination against them which they wish to end," id., yet the Court also noted that the Akron amendment "nevertheless disadvantages those who would benefit from laws barring racial, religious, or ancestral discriminations as against those who would bar other discriminations or who would otherwise regulate the real estate market in their favor." Id. at 391. Thus, the Court concluded that while the amendment was facially neutral, "the reality is that the law's impact falls on the minority." Id.
"no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size."
Id. at 393 (emphasis added). It is significant to note that in support of this proposition, the Court did not rely on any precedent dealing with racial minorities in the context of voting but instead, cited Reynolds v. Sims, 377 U.S. 533 (1964), and Avery v. Midland County, 390 U.S. 474 (1968), neither of which had anything to do with discrimination against racial, or any other traditionally suspect class of persons.
It is also notable that Justices Harlan and Stewart, both of whom dissented in Reitman v. Mulkey, 387 U.S. 369 (1967), concurred separately to the majority opinion in Hunter. After articulating their disagreement with the Reitman Court, they observed that, unlike the California initiative, "the City of Akron [had] not attempted to allocate governmental power on the basis of any general principle." Hunter, 393 U.S. at 395 (Harlan, J., concurring). To the contrary, the fair housing statute was passed with the "clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that [was] in their interest." Id. This, the concurring Justices concluded, violated the Equal Protection Clause.
In Reitman, the Supreme Court invalidated an amendment to the California Constitution which had been passed by the initiative process. "Proposition 14" protected property owners' right to discriminate, on any grounds, in the sale or rental of their real property. The immediate effect of the amendment was to repeal existing state prohibitions on racial discrimination in housing and to prohibit the passage of similar measures in the future. Reitman, 387 U.S. at 374. The Supreme Court held that Proposition 14 violated the Equal Protection Clause because it rendered "[t]he right to discriminate, including the right to discriminate on racial grounds . . . immune from legislative, executive, or judicial regulation at any level of the state government." Id. at 377.
Justices Harlan and Stewart elaborated on the "general principle" theme as follows: "The existence of a bicameral legislature or an executive veto may on occasion make it more difficult for minorities to achieve favorable legislation; nevertheless, they may not be attacked on equal protection grounds since they are founded on neutral principles. Similarly, the rule which makes it relatively difficult to amend a state constitution is commonly justified on the theory that constitutional provisions should be more thoroughly scrutinized and more soberly considered than are simple statutory enactments. Here, too, Negroes may stand to gain by the rule if a fair housing law is made part of the constitution, or they may lose if the constitution adopts a position of strict neutrality on the question. But even if Negroes are obliged to undertake the arduous task of amending the state constitution, they are not thereby denied equal protection. For the rule making constitutional amendment difficult is grounded in neutral principle." Hunter, 393 U.S. at 394-95 (Harlan, J., concurring) (citation omitted).
Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), presents another situation in which an issue important to a minority group was removed from consideration via the normal political process. In Washington, the Court considered the constitutionality of an initiative which attempted to prohibit local school districts from utilizing mandatory busing as a means of achieving desegregation. Relying on Hunter, the Court held that the voters, in passing Initiative 350, had impermissibly interfered with the political process and unlawfully burdened the efforts of minority groups to secure public benefits. Washington, 458 U.S. at 467-70.
Prior to the passage of Initiative 350, which prohibited school boards from requiring any student to attend a school other than the one geographically nearest or next nearest to his home (and set forth a number of exceptions to this rule), see Washington, 458 U.S. at 462-63, "the power to determine what programs would most appropriately fill a school district's educational needs — including programs involving student assignment and desegregation — was firmly committed to the local board's discretion." Id. at 479-80.
In reaching this conclusion, the Court embraced Justice Harlan's "neutral principles" formulation in Hunter and referred to it as the "simple but central principle," id. at 469, underlying the majority opinion in Hunter. More specifically, the Court held that the Fourteenth Amendment reaches political structures that "distort governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation." Id. at 467. It also stated that "laws structuring political institutions or allocating political power according to `neutral principles' . . . are not subject to equal protection attack . . . . Because such laws make it more difficult for every group in the community to enact comparable laws, they `provid[e] a just framework within which the diverse political groups in our society may fairly compete.'" Id. at 470 (quoting Hunter v. Erickson, 393 U.S. 385, 393 (1969) (emphasis in original)). In contrast, the initiative at issue in Washington did "not attemp[t] to allocate governmental power on the basis of any general principle," id. at 470 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)), but rather, used "the racial nature of an issue to define the governmental decisionmaking structure, and thus impose[d] substantial and unique burdens on racial minorities." Id.
Thus, while Washington, like Hunter, involved an initiative that affected a racial minority, and while this fact weighed heavily in the Court's consideration of this case, it would be erroneous to conclude that the "neutral principle" precept is applicable only in the context of racial discrimination. Indeed, such a reading of Hunter and Washington would be antithetical to the neutral principle itself, for the requirement of neutrality would in fact only be a requirement of nondiscrimination with respect to racial minorities — and not at all a requirement that legislation must "attemp[t] to allocate governmental power on the basis of any general principle." Id. at 470 (quoting Hunter, 393 U.S. at 395 (Harlan, J., concurring)). Thus, while Hunter and Washington are indeed cases which involved racial minorities, the principle articulated in those cases clearly is not one that can logically be limited to the "race" context alone.
In Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648, 655 (Cal.Ct.App. 1991), the court, in reviewing a proposed ballot initiative whereunder "persons seeking protective legislation against discrimination based on sexual orientation or AIDS must attempt to persuade a majority of the voters that such an ordinance is desirable," concluded that: "Precisely this arrangement was condemned in Hunter v. Erickson . . . in which the court invalidated an ordinance which similarly required voter approval for any ordinance prohibiting housing discrimination on the basis of race, religion, or ancestry. "The court held that such an ordinance drew an impermissible `distinction between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends'. . . . Although the ordinance did not focus on members of minority groups, the court observed that `the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination . . . .'"
This was made clear in Gordon v. Lance, 403 U.S. 1 (1971). In Gordon, the Court upheld a West Virginia statute that required approval by a 60% majority of any proposed increase in bond indebtedness or state tax rates. Plaintiffs, a group of individuals who had voted in favor of two proposals covered by the 60% requirement, sought a declaratory judgment that the 60% requirement was unconstitutional under the Equal Protection Clause.
One proposal called for the issuance of general obligation bonds for the purpose of building a new school and improving existing educational facilities. The second proposal authorized the Board of Education to levy additional taxes to support current expenditures and capital improvements. Gordon, 403 U.S. at 3. Of the votes cast, 51.55% favored the bond issue and 51.51% favored the tax levy. Id.
The Supreme Court, in reversing the West Virginia Supreme Court of Appeals, turned its attention to the applicability of Hunter. The Court distinguished Hunter on the grounds that, unlike the West Virginia statute, which "applie[d] equally to all bond issues for any purpose, whether for schools, sewers, or highways," the municipal ordinance in Hunter subjected "fair housing legislation alone . . . to an automatic referendum requirement." Gordon, 403 U.S. at 5. Furthermore, unlike Hunter, where "[t]he class singled out . . . was clear — `those who would benefit from laws barring racial, religious, or ancestral discriminations,'" the Court was unable to discern any "independently identifiable group or category that favors bonded indebtedness over other forms of financing." Id. at 5. Thus, the Court concluded, "no sector of the population may be said to be `fenced out' from the franchise because of the way they will vote." Id. (citation omitted).
The significance of the Gordon Court's discussion of Hunter is twofold. First, it is meaningful that the issue in Gordon had nothing to do with racial minorities or any other traditionally suspect class, yet the Court felt compelled to discuss Hunter. In the course of that discussion, no mention was made of the fact that the West Virginia law was racially neutral, whereas the Akron law clearly was not. If, as the defendants suggest here, Hunter is a "race" case and nothing more, the Supreme Court could have summarily dismissed the notion that it was applicable in Gordon. The fact that the Court did not do so, however, strongly suggests that the holding of Hunter cannot be limited in application only to the review of legislation which discriminates on the basis of race.
Second, although the Gordon Court recognized that the Akron law singled out those who would benefit from laws barring racial, religious, or ancestral discrimination, no significance was placed on the nature of the class discriminated against in Hunter. Rather, the salient aspect of Hunter which distinguished it from the situation presented in Gordon was the absence of a group of voters that was "independently identifiable" apart from the group created by the statute itself.
In Town of Lockport, N.Y. v. Citizens for Community Action at the Local Level, Inc., 430 U.S. 259, 268 n. 13 (1977), the Court cited Gordon and Hunter as support for the proposition that "a referendum voting scheme that can be characterized in mathematical terms as giving disproportionate power to a minority does not violate the Equal Protection Clause, there being no discrimination against an identifiable class."
When taken together, these facts clearly support the conclusion that Hunter applies to a broad spectrum of discriminatory legislation. This becomes abundantly clear in light of the Gordon Court's articulation of the controlling constitutional standard: "We conclude that so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause." Gordon, 403 U.S. at 7.
In so concluding, we are mindful that a majority of the Supreme Court in James v. Valtierra, 402 U.S. 137 (1971), upheld the constitutionality of a California constitutional amendment that required majority approval in a community election for the construction of any low-rent housing project. The Court held that the mandatory referendum procedure, which was not limited to proposals for low-cost public housing, ensured democratic decisionmaking and did not violate the Equal Protection Clause. In reaching this conclusion, the Court declined to "extend" Hunter to a provision which was not "aimed at a racial minority." James, 402 U.S. at 141. Three Justices dissented, not by taking issue with the majority's use of Hunter, but on the basis that the provision should be invalidated on the grounds that poverty is a suspect classification. It is significant to note that all of the Justices who joined in the majority opinion in James also joined the later opinion in Gordon (as did Justice Douglas who did not participate in James), which itself made no reference to James. The two Justices who dissented in Gordon (Justices Brennan and Marshall) did not do so on the basis of the majority's application of Hunter. Thus, we are of the opinion that James is best understood as a case declining to apply suspect class status to the poor, and not as a limitation on Hunter.
B
We conclude that the Equal Protection Clause of the United States Constitution protects the fundamental right to participate equally in the political process, and that any legislation or state constitutional amendment which infringes on this right by "fencing out" an independently identifiable class of persons must be subject to strict judicial scrutiny.
Professor Michelman characterizes the Supreme Court's jurisprudence in the participation cases as establishing that, "by force of the equal protection clause, `a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction,'. . . [T]hat this right is among those it classes as `fundamental,'. . . so that any restriction of it `must be carefully and meticulously scrutinized,'. . . to determine whether it is `necessary to promote a compelling state interest.'" Frank I. Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 Fla. L. Rev. 443, 459 n. 63 (1989).
We reject defendants' contention that Amendment 2 cannot be understood to infringe on any recognized right protected under the Equal Protection Clause. We do so for a number of reasons. First, defendants urge that the authority relied on in reaching our conclusion, when "properly analyzed," recognizes a cognizable equal protection claim "only when the political process has been restructured to place unusual burdens upon racial groups, or, in the most expansive sense, [upon politically powerless groups]." This contention belies the fact that much of the authority relied on in reaching our conclusion did not involve racial groups.
See, e.g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979); Dunn v. Blumstein, 405 U.S. 330 (1972); Gordon v. Lance, 403 U.S. 1 (1971); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969); Williams v. Rhodes, 393 U.S. 23 (1968); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964).
Moreover, as Gordon v. Lance, 403 U.S. 1 (1971), makes clear, and the language of Hunter v. Erickson, 393 U.S. 385 (1969), itself indicates, the principle that a "State may no more disadvantage any particular group by making it more difficult to enact legislation on its behalf than it may dilute any person's vote or give any groups smaller representation than another of comparable size," Hunter, 393 U.S. at 393, does not apply simply to racial minorities.
Finally, if the cases referred to above were decided solely on the basis of the "suspect" nature of the classes involved, there would have been no need for the Court to consistently express the paramount importance of political participation or to subject legislation which infringed on the right to participate equally in the political process to strict judicial scrutiny. To the contrary, were these simply "race cases," the Supreme Court would have been required to do nothing more than note that the legislation at issue drew a classification that was inherently suspect ( i.e., that discriminated on the basis of race), and apply strict scrutiny to resolve those cases — irrespective of the right, entitlement, or opportunity that was being restricted. Compare Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 628 n. 9 (1969) ("we have long held that if the basis of classification is inherently suspect, such as race, the statute must be subjected to an exacting scrutiny, regardless of the subject matter of the legislation") with Graham v. Richardson, 403 U.S. 365, 375 (1971) ("It is enough to say that the classification involved in Shapiro [v. Thompson, 394 U.S. 618 (1969)] was subjected to strict scrutiny under the compelling state interest test, not because it was based on any suspect criterion such as race, nationality, or alienage, but because it impinged upon the fundamental right of interstate movement.").
We similarly reject defendants' contention that the right of equal political participation "can only work when applied to suspect classifications . . . [for any broader application will] necessarily mandate that all legal and policy choices be made at the lowest governmental level possible." This argument is based on defendants' observation that the Colorado Constitution creates numerous burdens which, in order to be overcome, require a constitutional amendment, such as article XVIII, section 9, (permitting limited gaming only in Central City, Blackhawk, and Cripple Creek) and article XIX, section 2, (prohibiting the General Assembly from proposing amendments to more than six articles of the state constitution at the same session).
While defendants are correct in observing that there are constitutional provisions which create some barriers to those who might seek governmental action in conflict with these provisions, it cannot be said that the provisions cited by defendants isolate any "independently identifiable group," Gordon v. Lance, 403 U.S. 1, 5 (1971), from pursuing its political objectives. In fact, the precise argument defendants now advance was expressly rejected by the Supreme Court in Gordon. As noted above, the constitution and statutes at issue in Gordon required a 60% majority before certain bonds or tax levies could be passed. The Court, in refusing to apply the principle of Hunter v. Erickson, 395 U.S. 385 (1969), under the facts of Gordon, noted that "[i]n contrast [to the class singled out in Hunter] we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing. Consequently no sector of the population may be said to be `fenced out' from the franchise because of the way they will vote." Gordon, 403 U.S. at 5 (citation omitted). We find this reasoning both controlling and persuasive here. The same cannot be said, however, of Amendment 2.
See infra at 32-37.
We therefore conclude that defendants' argument that the right to participate equally in the political process applies only to traditionally suspect classes is without merit. Similarly, we reject their argument that the above cited authorities are properly understood only as "suspect class" cases, and not "fundamental rights" cases. We turn, therefore, to the question of whether Amendment 2 has been shown, to a reasonable degree of probability, to infringe on the fundamental right to participate equally in the political process beyond a reasonable doubt.
IV
In reviewing Amendment 2, we do so in light of its immediate objective, its ultimate effect, its historical context, and the conditions existing prior to its enactment. Reitman v. Mulkey, 387 U.S. 369, 373 (1967).
The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code § 13-98 (1977) (prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code §§ 12-1-2 to -4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, §§ 28-91 to -116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for "all state employees, classified and exempt" on the basis of sexual orientation); Colorado Insurance Code, § 10-3-1104, 4A C.R.S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's sexual orientation); and various provisions prohibiting discrimination based on sexual orientation at state colleges.
The parties sharply disagree on the scope of Amendment 2's provisions. For example, defendants argue that Amendment 2 "does not prevent the enforcement of rights derived from other sources including federal law; it allows enforcement of rights from private contracts; and does not prevent private companies [from adopting policies prohibiting discrimination based on sexual orientation]," and conclude that Amendment 2 "prohibits only the recognition or enforcement of state or locally created civil rights protections above and beyond those required by federal law." Plaintiffs, in contrast, argue that "defendants' interpretation bears little resemblance to the language of Amendment 2," and conclude that, on its face, the amendment clearly limits the sort of redress that defendants argue it does not. The precise scope of Amendment 2 need not be determined here, however, because neither the parties, nor their amici, have contended that Amendment 2 does not prohibit the enactment of antidiscrimination laws by state or local entities. Since all agree that Amendment 2 unambiguously attempts to do this, and since that restriction alone provides a sufficient basis for our conclusion, we need not determine what broader application Amendment 2 might have.
Metropolitan State College of Denver prohibits college sponsored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimination policy which encompasses sexual orientation. See Legislative Council of the Colorado General Assembly, An Analysis of 1992 Ballot Proposals (Research Publ. No. 369, p. 10, 1992).
The "ultimate effect" of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures. In the absence of such a constitutional amendment, any governmental entity would be acting contrary to the state constitution by "adopting, enacting, or enforcing" any such measure.
See supra note 25.
Thus, the right to participate equally in the political process is clearly affected by Amendment 2, because it bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs insofar as those persons deem it beneficial to seek legislation that would protect them from discrimination based on their sexual orientation. Amendment 2 alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment. Rather than attempting to withdraw antidiscrimination issues as a whole from state and local control, Amendment 2 singles out one form of discrimination and removes its redress from consideration by the normal political processes.
Amendment 2 expressly fences out an independently identifiable group. Like the laws that were invalidated in Hunter, which singled out the class of persons "who would benefit from laws barring racial, religious, or ancestral discriminations," Hunter, 393 U.S. at 391, 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. No other identifiable group faces such a burden — no other group's ability to participate in the political process is restricted and encumbered in a like manner. Such a structuring of the political process undoubtedly is contrary to the notion that "[t]he concept of `we the people' under the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications." Gray v. Sanders, 372 U.S. 368, 379-80 (1963).
In short, gay men, lesbians, and bisexuals are left out of the political process through the denial of having an "effective voice in the governmental affairs which substantially affect their lives." Kramer, 395 U.S. at 627. Strict scrutiny is thus required because the normal political processes no longer operate to protect these persons. Rather, they, and they alone, must amend the state constitution in order to seek legislation which is beneficial to them. By constitutionalizing the prescription that no branch or department, nor any agency or political subdivision of the state "shall enact, adopt, or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation . . . shall constitute or otherwise be the basis of . . .[a] claim of discrimination," Amendment 2 singles out and prohibits this class of persons from seeking governmental action favorable to it and thus, from participating equally in the political process.
As for the State's contention that "[t]he plaintiffs continue to have the ability to participate fully in all of Colorado's political processes; what they do not have is a right to successful participation in the process," we think this misconstrues the nature of plaintiffs' participatory rights. While the State is quite right that the plaintiff class, like any other members of society, has no right to successful participation in the political process, the fact remains that its unsuccessful participation is mandated by the provisions of Amendment 2. In contrast to all other members of the electorate whose successful or unsuccessful participation in the process cannot be determined until ballots, votes, charters, etc., have been counted or voted upon, with the exception of a state constitutional amendment, gay men, lesbians, and bisexuals are told that "you can appeal to government on those issues of concern to you, but you will, by virtue of Amendment 2, lose — irrespective of your ability to summon the support of others, or carry a majority in an election."
Prior to the passage of this amendment, gay men, lesbians, and bisexuals were, of course, free to appeal to state and local government for protection against discrimination based on their sexual orientation. Thus, like any other members of the electorate, the political process was open to them to seek legislation or other enactments deemed beneficial in the same way it was open to all others. Were Amendment 2 in force, however, the sole political avenue by which this class could seek such protection would be through the constitutional amendment process. In short, Amendment 2, to a reasonable probability, infringes on a fundamental right protected by the Equal Protection Clause of the United States Constitution. Amendment 2 must be subject to strict judicial scrutiny in order to determine whether it is constitutionally valid under the Equal Protection Clause.
Indeed, this class of persons had done precisely this with some measure of success. See supra at 33-34.
Because the defendants and their amici have not proffered any compelling state interest to justify the enactment of Amendment 2 at this stage of the proceedings as required under the strict scrutiny standard of review, see Plyler v. Doe, 457 U.S. 202, 217 (1982); City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985), we conclude that plaintiffs have met their burden under Rathke v. MacFarlane, 648 P.2d 648, 653 (Colo. 1982).
V
That Amendment 2 was passed by a majority of voters through the initiative process as an expression of popular will mandates great deference. However, the facts remain that "[o]ne's right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections," West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943), and that "[a] citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be." Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736 (1964).
We reject defendants' argument that the trial court erred in granting a preliminary injunction enjoining defendants from enforcing Amendment 2 pending a trial on the merits of plaintiffs' constitutional challenge.
Order affirmed.
JUSTICE ERICKSON dissents.