The Colorado Senate on Monday advanced to a second reading of a ballot resolution that would allow voters to repeal an unenforceable constitutional amendment banning local authorities from passing gay-inclusive nondiscrimination laws.
Senate Concurrent Resolution 1, sponsored by Sen. Pat Steadman and Rep. Mark Ferrandino, both Denver Democrats, would put a measure on the November ballot asking voters to repeal prior amendments in the state constitution because they have been declared unconstitutional.
But probably the most controversial part of Senate Concurrent Resolution 1 is the portion that would repeal Amendment 2, which voters passed in 1992. The amendment prohibits the state and local governments from enacting laws that forbid discrimination against gays, including in housing and job hiring.
“This is, in my estimation, a housekeeping measure to remove some dead letters from the books,” Steadman said.
The resolution would also ask voters to repeal two campaign finance laws that have been deemed unconstitutional, including language in the constitution that limits campaign contributions from corporations and unions.
The gay rights amendment in question, Amendment 2, received voter approval in 1992 but was subsequently ruled unconstitutional by the United States Supreme Court in 1996 in the case Romer v Evans.
In this landmark gay rights case the SCOTUS, in a 6-3 vote, upheld a lower court ruling that the law had been enacted through clear animus for the sole purpose of disenfranchising gay people.
Wrote Justice Kennedy for the majority:
“To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint… [Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
The Supreme Court went as far as to say that the law didn’t even meet the lowest standard of judicial review, the rational basis test.
This decision would go on to be cited in a number of cases and would set the stage for the 2003 Lawrence v Texas ruling where the court rejected a previous standard from Bowers and found that private sexual conduct was protected by due process under the Fourteenth Amendment. This in turn helped render US sodomy bans unenforceable.
Romer v. Evans also may prove central to the Supreme Court ruling in the Proposition 8 gay marriage trial.
The Colorado Senate must still approve the resolution on a two-thirds vote before it can go to the House. The House will then have to approve the measure by the same margin.
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