Homosexual Rights: Amendment 2’s Legality Tested in Denver Court

The eight days of testimony heard during the Amendment 2 trial in Denver were a rare, in-depth examination of the basis for legal limits on protection of homosexual behavior.

Denver District Judge Jeffrey Bayless’s courtroom featured a parade of experts from Harvard, Princeton, Yale, and Duke universities. Homosexuality was scrutinized from every conceivable angle—legal, political, historical, medical, and scientific.

At the conclusion of the trial in late October, Bayless was not saying how soon he would render a verdict on Amendment 2, the Colorado initiative that struck down existing homosexual-rights legislation.

Bayless spoke for many state residents who are growing tired of the protracted legal battle when he said, “The sooner I will be able to rule, the happier I will be.” An appeal to the U.S. Supreme Court is likely regardless of the judge’s ruling.

Last November, 53 percent of Colorado’s voters supported Amendment 2, the first successful statewide effort to counteract what many conservative Christians see as a growing wave of homosexual activism. The amendment struck down homosexual-rights ordinances previously passed in Denver, Boulder, and Aspen and said that no future state laws could grant “protected status” or quota preferences “based on homosexual, lesbian or bisexual orientation.”

A suit was filed last November alleging that Amendment 2 violated the equal protection clause of the U.S. Constitution. Bayless has issued an order preventing the state from enforcing the amendment.

Throughout the testimony, Bayless heard complicated and often contradictory opinions on the origins of sexual orientation and the status of homosexuals in America. Colorado Attorney General Gale Norton, leading the state’s defense of the amendment, attempted to show that the state has “a compelling interest” in the law, an extremely difficult standard to meet. Throughout the trial, the plaintiffs attempted to show that Amendment 2 was the latest example of repressive efforts to regulate sexual behavior.

Historical experts discussed the ancient Greeks’ proscription of widespread homosexual activity and the early American colonists’ description of homosexuality as a crime worthy of death or castration. Homosexuality was removed from the American Psychiatric Association’s list of disorders in the early 1970s.

The plaintiffs assert that the amendment has a sinister intent. Amendment 2 was originally a response to 1991 efforts to add sexual orientation to Colorado Springs’ human-rights code. Amendment 2 was sponsored by Colorado for Family Values (CFV), a Springs-based group headed up by local evangelical laity and supported by Focus on the Family and other local evangelical organizations.

There was conflicting testimony over the power and privileges of homosexuals in America. The defense noted homosexuals’ high levels of income, education, and political clout, showing they do not need special protection.

David Woodard, a political scientist from Clemson University, cited the homosexual lobby’s Human Rights Campaign Fund as among the 50 largest political action committees. The plaintiffs countered that homosexuals still face discrimination and violence.

Some of the most interesting testimony came from Tony Marco, a coauthor of the amendment who has a lesbian stepdaughter. He said the campaign’s charge that homosexuals are promiscuous and likely to molest children “unfairly indicts the entire gay community.”

Kevin Tebedo, CFV’s executive director, admitted that he had called homosexuality “an abomination” during a campaign talk at a Springs-area church. Plaintiffs believe such comments reveal that amendment supporters were motivated by a religiously inspired antipathy for homosexuals.

After the trial, Tebedo said, “We remain convinced that Amendment 2’s language was constitutional and right. The Colorado Constitution says that all power is vested in the people, not in the courts.”

Rob Gregory, senior director of public policy for Focus on the Family, said, “Amendment 2 is a necessary law to keep a group that has no reason for calling itself a group, apart from their chosen behavior, from getting special privileges, not special rights.”

By steve Rabey in Denver.

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