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What follows is a transcript of Judge H. Jeffrey Bayless' ruling
declaring Colorado's Amendment 2 unconstitutional.  This transcript
was generated from a FAX of the ruling.  There may be some mistakes
due to OCR errors.  If you need a 100% accurate transcript, please
get a copy of the real thing.


Kevin Malloy  [email protected] 	 		  DoD #106  1991 BMW K75RT
633 E. 11th Ave.      __
Denver, CO  80203     \/   With Liberty and Justice for all, NO EXCEPTIONS
(303) 830-2937							  Un-Do #2

-----Cut Here-----


Civil Action No. 92 CV 7223, Courtroom 19





ROY ROMER as Governor of the State of Colorado, GALE NORTON as Attorney
General of the State of Colorado, and THE STATE OF COLORADO,



	On November 3, 1993, by a vote of 53.4% to 46.6%, the voters of the
State of Colorado passed an initiated amendment to the Colorado Constitution
referred to as Amendment 2. That amendment 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.

     Nine days after the amendment was passed, plaintiffs, individuals, three
home rule cities, and a school district, filed the instant action seeking to
have Amendment 2 declared unconstitutional.  Plaintiffs also sought and
obtained a preliminary injunction prohibiting the amendment from becoming
effective prior to court review.  That injunction was upheld by the Colorado
Supreme Court July 19, 1993 in Evans v. Romer 854 P.2d 1270 (Colo. 1993).

     In its ruling, the Colorado Supreme Court did more than merely affirm the
granting of the preliminary injunction.  By the terms of its ruling that court
set the guidelines this court must apply in making its present decision. 
Certain parts of the Supreme court opinion must be noted for they form the
basis for the present ruling.  The Colorado Supreme Court held:

     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. (Footnote omitted)

Evans, 854 P.2d at 1282.

Further, the supreme court ruled:

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, 89 S.Ct. at 560,
Amendment 2 singles out persons (namely gay men, lesbians, and bisexual)
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, 83 S.Ct.
801,808, 9L.Ed.2d 821 (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, 89
S.Ct. at 1889.   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. (Footnote omitted)

Id. at 1285.

    By stating that "strict scrutiny is required," the Supreme Court
established the burden of proof at the trial.

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 purpose in the least restrictive manner possible. Plyler
v. Doe, 457 U.S. 202, 217 102 S.Ct. 2382, 2395, 72 L.Ed. 2d 786 (1982).

Id. at 1275.


     By virtue of the Supreme court ruling, the burden at trial was upon
defendants to show at least one compelling state interest and to show that
Amendment 2 was narrowly drawn to support that interest.  This is an unusual
placement of the burden of proof,  Defendants presented six alleged
"Compelling state interests", 1) deterring factionalism; 2) preserving the
integrity of the state's political functions; 3) preserving the ability of the
State to remedy discrimination against suspect classes; 4) preventing the
government from interfering with personal, familial and religious privacy; 5)
preventing government from subsidizing the political objectives of a special
interest group; and 6) promoting the physical and psychological well-being of
our children. (Defendants' Trial Brief pp 3-4).   The court will address each
claimed compelling interest separately.

     The first claimed compelling state interest is that Amendment 2 deters
factionalism.  In their trial brief Defendants describe what they mean by
factionalism as follows:

     Amendment 2 does not purport to serve any interests outside of
Colorado's borders; rather, it simply seeks to ensure that the deeply
divisive issue of homosexuality does not serve to fragment Colorado's
body politic.  Amendment 2 eliminates city-by-city and county-by-county
battles over the political issue of homosexuality and bisexuality.  As a
matter of law, therefore, Amendment 2 serves a compelling state interest
by ending political fragmentation and promoting statewide uniformity on
this issue.

(Defendants' Trial Brief, pp 60-61.)

	As defined by defendants, "factionalism" means "political fragmentation"
over a controversial political issue.  Defendants therefore define a
difference of opinion on a controversial political question as factionalism.

	In support of this position defendants urge two cases, Storer v. Brown,
415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed. 2d 714, (1974), and Anderson v.
Celebreeze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed. 2d 547 (1983).  The word
"factionalism" appears in both of those cases.  The word "factionalism" is not
used in either Storer or Anderson in the same way as defendants here seek to
use it. Additionally, neither case is even critical of "factionalism" as it is
used in those cases.  Finally, deterring factionalism was not the compelling
state interest urged in those two cases.

     Both Storer and Anderson address state rules and regulations for placing
the name of independent, meaning not Republican or Democratic, candidates on
election ballots.  The states in each case sought to justify their regulations
by urging the compelling state interest of "political stability." The ruling
in each case addresses the stability of political processes for established
parties and independents to place candidates names on election ballots.

     In both cases it is only "splintered parties and unrestrained
factionalism" (emphasis supplied) which is criticized by the Supreme Court. 
Defendants here do not seek to deter "unrestrained" factionalism.  The
"factionalism" which defendants here argue about found to be a great strength
of the American political process in tho cases cited.  In Anderson the Supreme
Court endorses that which defendants here seek to deter;

By limiting the opportunities of independent-minded voters to associate
in the electoral arena to enhance their political effectiveness as a
group, such restrictions threaten to reduce diversity and competition in
the marketplace of ideas . . . .In short, the primary values protected
by the First Amendment -- "a profound national commitment to the
principle that debate on public issues should be uninhibited, robust,
and wide open" (citation omitted) -- are served when election campaigns
are not monopolized by the existing political parties.

Anderson, 460 U.S. at 794, 75 L.Ed. 2d at 561.

	The Anderson court made reference to its earlier decision in Williams v.
Rhodes, 393 U.S. 23, 21 L.Ed. 2d 24, 89 S.Ct. 5, (1968), another case dealing
with state limitations on parties other than Republicans or Democrats in
placing candidates names on election ballots, by repeating, "Competition in
ideas and governmental policies is at the core of our electoral process and of
the First Amendment Freedoms."  Anderson, 460 U.S. at 802, 75 L.Ed 2d at 566.

     Defendants' own authorities encourage the "competition of ideas" with
"uninhibited, robust and wide-open" political debate.   Defendants seek to
deter those very things as being "factionalism".  The history and policy of
this country has been to encourage that which defendants seek to deter.

     Defendants first claimed compelling state interest is not a compelling
state interest.  The opposite of defendants' first claimed compelling interest
is most probably compelling.

	Defendants' second suggested compelling state interest is the
preservation of the State's political functions.  Witnesses were offered who
testified about the "homosexual agenda" and the homosexual push for "protected
status" and urged that this Amendment protected Colorado's political functions
from being overrun by such groups.  These witnesses included Will Perkins,
Tony Marco, and Kevin Tebedo.

     Mr. Perkins identified himself as a Chrysler dealer in Colorado Springs
and Chairman of the Board of Colorado for Family Values (hereafter CFV), the
organization that spearheaded the campaign for Amendment 2. He indicated that
CFV intended Amendment 2 to deny protected status to homosexuals and
bisexuals.  Mr. Marco identified himself as a free lance writer of mixed
political heritage.  He testified that at one time he was a Marxist-Leninist,
that he had attended a number of colleges, ultimately earning a masters degree
in creative writing, that in a sense he was the founder of CFV, and that
Amendment 2 was his idea.  He testified that Amendment 2 was a defensive
measure to fend off statewide militant gay aggression.   The court's notes
contain his term "militant gay aggression" no less than six times in his
direct testimony alone.  Mr. Tebedo identified himself as the paid executive
director of CFV and one of its founders.  He testified that the purpose of
Amendment 2 was to prevent the government from declaring that homosexuals are
entitled to protected class status.  He made clear his belief that absent
Amendment 2, affirmative action programs for homosexuals would somehow be
implemented in Colorado.

     Defendants' argument as to this claimed interest was based on the Tenth
Amendment to the U.S. constitution which grants the power to amend state
constitutions to the states.  Defendants argue that the people through their
votes have decided to amend the Colorado constitution and that vote should end
the discussion.

     Both this court in its ruling granting the preliminary injunction and the
Supreme Court in affirming that injunction made specific reference to the
constitutional provisions granting the right and power of the people of
Colorado to amend their Constitution.  The very first footnote in the Supreme
Court opinion reads:

     1Art.  II, Sect.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, Sect.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.  (Emphasis supplied)

Evans, 854	 P.2d at 1272.

Also, the very last section of the majority opinion the Supreme Court
once again acknowledged the significance of the election, but put that
election in perspective:

     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, 63 S.Ct.
1178, 1185, 87 L.Ed. 1628 (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, 84 S.Ct. 1459, 1474, 12 L.Ed. 2d 632 (1964).

Evans, at 1286.

     The evidence presented does not satisfy this court that there is militant
gay aggression in this state which endangers the state's political functions. 
Similarly the evidence does not persuade the court that absent Amendment 2,
homosexuals and bisexuals are going to be found to be a suspect or
quasi-suspect class and afforded protections based on those classifications.  
Finally, Defendants' legal argument is not supported by federal or state case
law, nor is it supported by the Colorado Constitution.  Defendants' argument
seems little more than a begging of the ultimate question to be answered.  The
second alleged compelling interest is not a compelling state interest.

The third interest claimed to be compelling is the preservation of the
ability of the state to remedy discrimination against groups which have
been held to be suspect classes.  This claim is basically that there are
insufficient fiscal resources available to the state to add another
group to the rolls of those protected by existing civil rights laws or
ordinances.  Although not totally clear from defendants' presentation,
this claim may relate in some way to Amendment 1 passed in the same

     Mr. Thomas Duran, formerly of the  Colorado Civil Rights Division, and
Mr. Ignacio Rodriguez, formerly of the Colorado Civil Rights Commission, were
both called to testify that without Amendment 2, there would be a dilution of
protections afforded to existing suspect classes.  This testimony was unclear
because the absence of this amendment does not mean that gays have been added
as a protected class to any statute.  Similarly, Professor Joseph Broadus from
the George Mason University School of Law testified that in his view the
addition of gays to civil rights statutes or ordinances would lessen the
public's respect for historic civil rights categories.  He further testified
that enforcement of civil rights protections for gays could result in a
dilution of governmental resources allocated to protect those traditional
civil rights.

	Contrasted against this testimony was the testimony of Denver Mayor
Wellington Webb and Brenda Tolliver-Locke, a compliance officer charged with
enforcing the Denver Antidiscrimination ordinance.  Both testified that
enforcing Denver's ordinance, which does contain a sexual orientation
provision, does not detract from enforcing other aspects of the same
ordinance.  The inclusion of sexual orientation in the Denver ordinance has
not necessitated an increase of enforcement staff nor has it resulted in an
increase in costs.

	Plaintiffs also presented the testimony of Leanna Ware from the Civil
Rights Bureau of the State of Wisconsin.  In 1982 Wisconsin became the first
state to enact statutory prohibitions against discrimination based on sexual
orientation.  Ms. Ware testified that the sexual orientation cases under those
Wisconsin statutes are a very small percentage of the total case load and have
not limited enforcement of other parts of the Wisconsin statutes in any way.

     The facts don't support defendants' position.  Defendants' evidence was
principally in the form of opinion and theory as to what would occur if a
Denver type ordinance were adopted as a state statute.  There is no such
statute, nor is one proposed.  Plaintiffs' evidence was based on what has
happened over the course of eleven years in Wisconsin, and during the time in
which the Denver ordinance has included a sexual orientation provision.  
Those actual experiences show that the presence of a sexual orientation
provision has not increased costs or impaired the enforcement of other civil
rights statutes or ordinances.

     Additionally, the Court has a very real question as to whether fiscal
concerns may rise to the level of a compelling interest.  At least three U.S.
Supreme court cases have suggested that fiscal concerns do not reach such a
level when weighed against fundamental or even less than fundamental rights. 
In Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed. 2d 786 (1982), the
court was faced with an issue relating to public education of the children of
undocumented aliens.  The court in that case found that public education is
not a fundamental right and that undocumented aliens were not a suspect class. 
Having made these two findings, the court nonetheless found that whatever
savings might be achieved by the state by denying public education to these
undocumented aliens were insubstantial in light of the costs to the children,
the state, and the nation of not educating them.  The other two cases which
found fiscal integrity not to be a compelling interest balanced fiscal
integrity with the right of interstate travel and right to welfare assistance
to aliens.  Shapiro v. Thompson, 394 U.S. 618 22 L.Ed. 2d 600, 89 S.Ct. 1322
(1969), and Graham v. Richardson, 403 U.S. 365, 29 L.Ed. 2d 534, 91 S.Ct 1848

     The Colorado Supreme Court has found the right invaded in this case to be
fundamental, and this court now finds defendants' offered evidence of lack of
fiscal ability unpersuasive in all respects.

     Defendants' fourth alleged compelling interest is the prevention of
governmental interference with personal, familial and religious privacy. 
Pastor Hasford Van of Boulder's Second Baptist Church testified about the
possible impact of Boulder's ordinance on his church in view of the fact that
there is no religious exception under that ordinance.  By affidavit of John
Gillespie, executive director of Rawhide Boys Ranch, New London, Wisconsin,
defendants presented the experience of his institution under the Wisconsin
statutes especially as it related to employment of homosexuals.  Personal
privacy was addressed, at least tangentially, by several witnesses.

     Preserving religious freedom is a compelling state interest.   Religious
freedom is protected by the First Amendment to the United States Constitution
and by Article II, Section 4 of the Colorado Constitution.  The ordinances
from Aspen and Denver have exceptions for religious beliefs.  The issue of
protecting religious freedom in the context of competing governmental
interests has been discussed by the U.S. Supreme court in Bob Jones University
v. United States, 461 U.S. 574, 76 L.Ed. 2d 157, 103 S.Ct. 2017 (1983).  The
question in that case was whether non-profit private schools with racially
discriminatory admission standards based on religious doctrine qualified as
tax exempt organizations under the tax code.  The Supreme Court concluded that
private schools which employed such discriminatory policies were not tax
exempt organizations.  Recognizing the clash of interests and the impact of
denying tax exempt status the Court held as follows:

Denial of tax benefits will inevitably have a substantial impact on the
operation of private religious schools, but will not prevent those
schools from observing their religious tenets.

The governmental interest at stake here is compelling.  As discussed in
Part II-B, supra, the Government has a fundamental overriding interest
in eradicating racial discrimination in education (Footnote omitted) --
discrimination that prevailed, with official approval, for the first 165
years of this Nation's Constitutional history.  That governmental
interest substantially outweighs whatever burden denial of this benefits
places on petitioners' exercise of their religious beliefs.

Bob Jones University, 461 U.S. at 603-604, 76 L.Ed. 2d, at 181.

     In the present case, the religious belief urged by defendants is that
homosexuals are condemned by scripture and therefore discrimination based on
that religious teaching is protected within freedom of religion.  In Bob Jones
University, religious teaching was the basis for racial discrimination.  The
competing interest in the present case is the right to participate in the
political process as outlined by the Colorado Supreme Court.  On balance, this
court concludes that the two rights, the religious right to discriminate and
the homosexuals' right to participate in political process can coexist.

     When the court finds that the defendants have presented a compelling
state interest, the court is then charged with determining whether Amendment 2
is "narrowly drawn to achieve that interest in the least restrictive manner
possible."  Evans, at 1275.  In this case it is obvious that the amendment is
not narrowly drawn to protect religious freedom.  The narrowly focused way of
addressing the Boulder ordinance is to add to it a religious exemption such as
is found in the Denver and Aspen ordinances, not to deny gays and bisexuals
their fundamental right of participation in the political process.  The court
specifically finds that Amendment 2 is not narrowly drawn to accomplish the
purpose of protecting religious freedom.

     Several witnesses testified on the issue of family privacy.   In addition
to Messrs.  Tebedo, Perkins and Marco, Mr. Robert Knight, Director of Cultural
studies of the Family Research Council, was called to testify about family
privacy.  He testified that the Family Research Council is a pro-family
lobbying organization and he admitted he is an opponent of the gay rights
movement.  He also testified that a part of his job is to be interviewed by
the media and to debate gay and lesbian leaders.  His testimony was that gay
rights advocates are seeking to destroy the family by, in part, seeking to
remove special societal protections from the family.  He opined that the media
is pro gay and advised the court of what was being discussed on afternoon
television talk shows.

     The court would have to assume or speculate what the family is, according
to Mr. Knight.  He never defined the family, nor was he asked to provide a
definition.  If the Court assumes the family consists of a mother and father
who are married and living together, and children from that marriage who live
with their parents, more questions are raised than are answered.  Does the
family include parents who are divorced?  Does it include a family where the
parents are divorced and remarried?  Does it include single parent families,
or families created by second marriages with stepparents and stepchildren?

     Most importantly, however, how does Amendment 2, which impacts on
fundamental rights of an identifiable group, narrowly promote the goal of
promoting family values?  Seemingly, if one wished to promote family values,
action would be taken that is pro-family rather than anti some other group,
The tie-in between the interest of protecting the family and denying gays and
bisexuals the right to political participation was not made by defendants'

     Defendants failed to meet their burden as to the second prong of their
claimed fourth compelling interest, showing that this Amendment is narrowly
drawn to achieve its purpose of protecting religious freedom or family

     The general issue of whether personal privacy is a compelling state
interest was not adequately established.  The court can only speculate as to
what defendants mean by personal privacy and how Amendment 2 protects such a
right.  Defendants have not carried their burden as to this alleged
"compelling state interest."

     Defendants' fifth compelling interest is the prevention of government
from subsidizing the political objectives of a special interest group.  Their
strongest argument on this claim was:

For example, if a landlord is forced to rent an apartment to a
homosexual couple, the landlord is being forced to accept, at least
implicitly, a particular ideology. (Defendants' Trial Brief p.69.)

     No authority is offered for this fairly remarkable conclusion, and none
has been found.  Further, the logic of the argument is unclear.  This claimed
compelling interest was not supported by any credible evidence or any cogent
argument, and the court concludes that it is not a compelling state interest.

     The final interest urged is the promotion of the physical and
psychological well-being of children.  The defendants argue:

The state has a compelling interest in supporting the traditional family
because without it, our children are condemned to a higher incidence of
social maladies such as substance abuse, poverty, violence, criminality,
greater burdens upon government, and perpetuation of the underclass.
(Defendants Trial Brief p. 74)

     If the compelling interest relates to protecting children physically from
pedophiles, the testimony of plaintiffs' witness Dr. Carole Jenny is more
persuasive than anything presented by defendants.  Dr. Jenny practices at
Denver's Children's Hospital and made a study of persons who sexually abused
children who were brought to that hospital.  She indicated that pedophiles are
predominately heterosexuals not homosexuals.  If the compelling interest is in
protecting the psychological well being of homosexual youth, the Court is
unable to discern how allowing discrimination against them by virtue of the
Colorado Constitution promotes their welfare.  Defendants have failed to
present sufficient evidence to support this claimed compelling interest.

	The defendants have presented evidence of only two compelling state
interests that Amendment 2 serves, the promotion of religious freedom and the
promotion of family privacy.  As to those two interests the Amendment is not
"narrowly drawn to achieve that purpose in the least restrictive manner
possible." Defendants have failed to carry the burden assigned to them by the
Colorado Supreme Court and therefore this Court concludes that Amendment 2 is
Unconstitutional as being violative of the fundamental right of an
identifiable group to participate in the political process without being
supported by a compelling state interest.

Plaintiffs Claim of Suspect or Quasi-Suspect Class

     The above ruling, however, is not the end of the matter.  In one of their
trial briefs plaintiffs admit that "if the defendants do not meet their burden
of showing that Amendment 2 serves a compelling interest by the least
restrictive means, then Amendment 2 must be held unconstitutional . . . ."
(Plaintiffs' Trial Memorandum on Legal Standards for Determining Whether
Amendment 2 Serves a Compelling State Interest Through The Least Restrictive
Means, Footnote 1, p. 2).  Notwithstanding the fact that the court has now
ruled as plaintiffs suggest, they nonetheless seek to have the court rule on
three additional matters.  First they claim that homosexuals and bisexuals
ought to be found to be a suspect class and entitled to strict scrutiny review
for that reason.  Second they claim that homosexuals and bisexuals ought to be
found to be a quasi-suspect class and be entitled to heightened scrutiny
review.  Finally they claim that Amendment 2, even if subject to the least
stringent standard of review, the rational basis review, ought to be found

     Plaintiffs' presentation seeking suspect class status may be new or a
change of plaintiffs' initial position.  The Supreme Court was unaware that
plaintiffs were seeking suspect class status.  That court noted, "That gay
men, lesbians, and bisexuals have not been found to constitute a suspect
class, (citations omitted) and that plaintiffs do not claim that they
constitute such a class do not render the Equal Protection Clause inapplicable
to them." (Emphasis supplied). Evans, at 1275.

     Additionally, the question of whether plaintiffs had pled a claim of
suspect or quasi-suspect class in a manner sufficient to place defendants on
notice of those claims was the subject of a motion in limine. This Court
ultimately denied the motion which sought to exclude evidence relating to the
question of suspect or quasi-suspect class, and the Court will address those
issues in this ruling.

     Plaintiffs urge that this Court should find that the elements associated
with a suspect class are present in the homosexual and bisexual community. 
Plaintiffs argue that those elements are: (1) common traits; (2) a history of
discrimination; (3) especially vulnerable in society, and that; (4) the common
trait is irrelevant to individual merit.  This set of elements is a
re-definition or amalgamation of elements from other cases.  No case cited
contains these four elements.  In order to persuade the court, plaintiffs
filled the witness stand with doctors, psychiatrists, genetic explorers,
historians, philosophers, and political scientists.  Having chosen to present
these types of witnesses, defendants felt obliged to respond in kind.

     Standards for determining whether a group may be considered a "suspect"
or "quasi-suspect" class have been discussed in various opinions.

     To be a "suspect" or "quasi-suspect" class, homosexuals must 1)
have suffered a history of discrimination; 2) exhibit obvious,
immutable, or distinguishing characteristics that define them as a
discrete group; and 3) show that they are a minority or politically
powerless, or alternatively show that the statutory classification at
issue burdens a fundamental right.  Bowen v. Gilliard, 483 U.S. 587,
602-603, 107 S.Ct. 3008, 3018, 97 L.Ed. 2d 485 (1987)

High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563,
573 (9th Cir. 1990).

The system of alleged discrimination and the class it defines have none
of the traditional indicia of suspectness: the class is not saddled with
such disabilities, or subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political powerlessness as
to command extraordinary protection from the majoritarian political

San Antonio School District v. Rodriguez, 411 U.S. 1, 28, 36 L.Ed. 2d 16, 41,
93 S.Ct. 1278 (1973) (same language quoted with approval in Massachusetts
Board of Retirement v. Murgia, 427 U.S. 307, 313, 49 L.Ed. 2d 520, 525, 96
S.Ct. 2562).

     In applying these standards to homosexuals and bisexuals, no appellate
court has yet found them to be either a "suspect" or "quasi-suspect" class. 
Ben-Shalom v. March, 881 F.2d 454 (7th Cir. 1989) (attempted re-enlistment in
military by lesbian);  High Tech Gays v. Defense Industrial Security Clearance
Office, 895 F.2d 563 (9th Cir. 1990) (secret and top-secret security
clearances for homosexuals);  Padula v. Webster, 822 F.2d 97 (D.C. Cir.
1987)(Homosexuals seeking to be hired by the FBI); Bowers v. Hardwick, 478
U.S. 186, 92 L.Ed. 2d 140, 106 S.Ct. 2841 (1986) (attack constitutionality of
the Georgia sodomy statute by homosexuals).  Woodward v. United States, 871
F.2d 1068 (Fed. Cir. 1989) (release of homosexual member of Navy reserve from
active duty).  It also bears noting that to date the Supreme Court has only
recognized three classifications as suspect and two as quasi-suspect.

However, the Supreme Court has recognized only three classifications as
suspect: race, Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823,
18 L.Ed. 2d 1010 (1967), alienage, Graham v. Richardson, 403 U.S. 365,
372, 91 S.Ct. 1848, 1852, 29 L.Ed. 2d 534 (1971); but see Ambach v.
Norwick, 441 U,S. 68 72-75, 99 S.Ct. 1589, 1592-93, 60 L.Ed. 2d 49
(1979), and national origin, Korematsu v. United States, 323 U.S. 214,
216, 65 S.Ct. 193, 194, 89 L.Ed. 194 (1944); and two others as
quasi-suspect: gender, Mississippi University for Women v. Hogan, 458
U.S. 718, 723-24, 102 S.Ct. 3331, 3335-36, 73 L.Ed. 2d 1090 (1982), and
illegitimacy, Lalli v. Lalli, 439 U.S. 259, 265, 99 S.Ct. 518, 523, 58
L.Ed. 2d 503 (1978).

Padula, at 102.

     Plaintiffs called Dr. Richard Green, a psychiatrist specializing in human
sexuality, Dr. Marcus Conant, a Board Certified Dermatologist whose practice
consists mainly of treating AIDS patients in San FranciSco and Dr. Dean Hamer,
a molecular biologist and genetic explorer, each of whom testified from the
perspective of his discipline that homosexuals have certain common traits. 
Dr. Ted Marmor, an expert in psychiatry testified as to his opinion that
homosexuality has no single cause but that there is probably some genetic
cause and some early environmental, sociological cause.  They called Professor
Burke Marshall, a law professor from Yale who was centrally involved in
drafting Title VII of the 1964 Civil Rights Act, and Professor George
Chauncey, a History professor from the University of Chicago to discuss the
history of discrimination against homosexuals and bisexuals.  They offered
Professor Kenneth Sherrill to describe gays' and bisexuals' vulnerability in
society and to discuss their political powerlessness.  All of their witnesses
in one way or another testified that a person's homosexuality or bisexuality
is not relevant to the merit of the individual.

     One of the hot debates among witnesses addressed the question of whether
homosexuality is inborn, a product of "nature", or a choice based an life
experiences, a product of "nurture".  Plaintiffs strongly argue that
homosexuality is inborn.  All the suspect and quasi-suspect classes, race,
alienage, national origin, gender and illegitimacy, are inborn.   Defendants
argue that homosexuality or bisexuality is either a choice, or its origin has
multiple aspects or its origin is unknown.  The preponderance of credible
evidence suggests that there is a biologic or genetic "component" of sexual
orientation, but even Dr. Hamer, the witness who testified that he is 99.5%
sure there is some genetic influence in forming sexual orientation, admits
that sexual orientation is not completely genetic.  The ultimate decision on
"nature" vs. "nurture" is a decision for another forum, not this court, and
the court makes no determination on this issue.

	The federal court in High Tech Gays v. Defense Industrial Security
Clearance Office, supra, concluded that there is a history of discrimination
against gays.  That same court concluded that gays were not a suspect class,
however, because they failed to establish two other required elements.  This
court concludes as did the court in High Tech Gays that there is a history of
discrimination against homosexuals.

     The court cannot conclude, however, that homosexuals and bisexuals remain
vulnerable or politically powerless and in need of "extraordinary protection
from the majoritarian political process" in today's society.  Failure to
prevail on an issue in an election, such as Amendment 2 is not a demonstration
of political powerlessness.  Indeed, in the case of the vote on Amendment 2,
the evidence supports a finding of the political power of gays and bisexuals. 
According to the figures presented to the court, more than 46% of Coloradans
voting voted against Amendment 2. Testimony placed the percentage of
homosexuals in our society at not more than 4%.  If 4% of the population
gathers the support of an additional 42% of the population, that is a
demonstration of power, not powerlessness.  The President of the United States
has taken an active and leading role in support of gays, and an increasing
number of states and localities have adopted gay rights protective statutes
and ordinances such as the three city ordinances in the present case.  Because
the gay position has been defeated in certain elections, such as Amendment 2,
does not mean gays are particularly politically vulnerable or powerless. It
merely shows that they lost that election.  No adequate showing has been made
of the political vulnerability or powerlessness of gays.

     The evidence at trial was that there is no identifiable majority in
American politics.  Numerical majorities of whites, heterosexuals and women
were identified, but each numerical majority is so internally divided that it
does not form an effective political majority.  Therefore, the evidence showed
political majorities are formed through the process of coalition building on
an issue by issue, or election by election, basis.   Those coalitions come
together or do not come together to the level of a majority.  What was
established to the satisfaction of this court is that gays and bisexuals
though small in number are skilled at building coalition which is a key to
political power.  They are not therefore politically vulnerable or powerless.
Homosexuals fail to meet the element of political powerlessness and therefore
fail to meet the elements to be found a suspect class.

     Case law has not clearly differentiated between the elements of a
"suspect" class and a "quasi-suspect" class.  Plaintiffs similarly have not
established to the satisfaction of this court what those elements are, how
they are distinguished from a suspect class, and how they apply to homosexuals
and bisexuals.  There are two recognized "quasi-suspect" classes, gender and
illegitimacy.  Neither of the existing quasi-suspect classes encompass
homosexuals and bisexuals.  No real effort was put forth to establish that
homosexuals and bisexuals fit the existing definitions.  Plaintiffs have
failed to carry their burden to establish that homosexuals are a quasi-suspect


     Finally, plaintiffs ask that this court address Amendment 2 using the
rational basis test.  The Colorado Supreme Court has ruled that Amendment 2
invades a fundamental right of an identifiable group and that the test to be
applied is the strict scrutiny test.  The rational basis test is to be used
when there is no fundamental right or suspect class involved.  Therefore this
court declines to apply a legally inappropriate test to this case.

     The court notes that two recent cases have applied a rational basis test
to excluding homosexuals from the military.  In each case, however, no
fundamental right was involved.  Dahl v. Secretary of U.S. Navy,830 F. Supp.
1319 (E.D. Cal, Aug. 30, 1993) and Steffan v. Aspen, 1993 W.L, 465530 (D.C.
Cir.) (November 16, 1993).  Those cases examined the question of homosexuality
in the military and addressed the historic "military deference" which has been
part of earlier decisions in the area.  Both cases found there was no rational
basis for excluding homosexuals from the military.

	In Steffan, Chief Judge Mikva pointed out that the case was different
from Bowers v. Hardwick, 478 U.S. 186, in that Bowers dealt with homosexual
conduct while Steffan dealt with homosexual orientation.  He also acknowledged
that whether an agency of the federal government can discriminate on the basis
of sexual orientation "remains an open question," citing to Doe v. Casey, 796
F.2d 1508, 1522 (D.C. Cir. 1986), aff'd in part and rev'd in part sub nom
Webster v. Doe, 486 U.S. 592 (1988).  Chief Judge Mikva further acknowledged
that his decision in Steffan was only the beginning of the answer to that
"open question."  In Dahl, the Federal District Court examined at length the
application of the rational basis test to excluding homosexuals from the
military and found the ban did not stand up to even that fairly minimal
standard of review.

     These cases do not impact on the present decision because of the
fundamental right involved in the present case and the necessarily different
standard of review.


     Amendment 2 is found to be unconstitutional and the court orders that the
preliminary injunction be made permanent.

So ordered this 14th day of December, 1993.


H. Jeffrey Bayless 

District Court Judge



jewn McCain

ASSASSIN of JFK, Patton, many other Whites

killed 264 MILLION Christians in WWII

killed 64 million Christians in Russia

holocaust denier extraordinaire--denying the Armenian holocaust

millions dead in the Middle East

tens of millions of dead Christians

LOST $1.2 TRILLION in Pentagon
spearheaded torture & sodomy of all non-jews
millions dead in Iraq

42 dead, mass murderer Goldman LOVED by jews

serial killer of 13 Christians

the REAL terrorists--not a single one is an Arab

serial killers are all jews

framed Christians for anti-semitism, got caught
left 350 firemen behind to die in WTC

legally insane debarred lawyer CENSORED free speech

mother of all fnazis, certified mentally ill

10,000 Whites DEAD from one jew LIE

moser HATED by jews: he followed the law Jesus--from a "news" person!!

1000 fold the child of perdition


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