WASHINGTON -- Colorado's highest state court, in a wide-ranging victory for gay people, ruled 6-1 yesterday that the U.S. Constitution gives homosexual men and women a clear right to seek new laws to protect them from bias.
In a decision that very likely will mean the end of an amendment put into the Colorado constitution last year to forbid all legal protection for gays, the state Supreme Court defined a new right the U.S. Supreme Court has never recognized.
That is a right for lesbians and gay men to take part in all of the processes of government "on an even footing with others," without being discriminated against because of their sexual lives.
The ruling came in the first stage of a broad constitutional challenge to Colorado's new anti-gay "Amendment 2," a change in the state constitution made by a vote of the people in the state, on a 53-47 percent margin. The amendment bars any branch of the state and local governments in Colorado from adopting any policy or law that would give gays "protected status" or shield them from discrimination.
That amendment, blocked temporarily in January by a state judge, would have wiped out gay rights laws in Denver and other Colorado cities.
The Colorado provision has become a rallying point for gay rights groups nationally, who staged a boycott of the state as part of their campaign.
The state Supreme Court decision yesterday, although a preliminary decision, indicated strongly that Amendment 2 would not be able to survive the constitutional challenge against it when a lawsuit goes to trial in October.
State officials indicated that they may take the dispute on to the U.S. Supreme Court, perhaps without even waiting for that trial.
Colorado's highest court based its decision on the 14th Amendment's promise of legal equality for all persons, saying that clause "guarantees the fundamental right to participate equally in the political process."
Thus, it said, any attempt to put limits on that right may be upheld only if necessary for the operation of government.
"Laws may not create unequal burdens on identifiable groups with respect to the right to participate in the political process," unless the need to impose such burdens is strong and clear-cut, it said.
It said that Amendment 2 was designed not only to force the repeal of existing gay rights laws in Colorado cities, but also to prohibit any level of the government from passing any more such laws in the future -- unless the state constitution were amended to allow that.
The amendment "bars gay men, lesbians, and bisexuals from having an effective voice in governmental affairs" if they try to obtain passage of gay rights laws or policies in the state, it said. "Amendment 2 expressly fences out an independently identifiable group" who could benefit from laws to forbid discrimination against them for their sexual orientation or practices.
The decision stressed that gay people do not have a right to be assured that gay rights laws would be passed, but have only a right to seek such laws from their government.