## Facts

- Colorado voters adopted “Amendment 2,” adding § 30b to article II of the Colorado Constitution.
- Amendment 2 barred the State and all political subdivisions from enacting, adopting, or enforcing any law or policy treating homosexual, lesbian, or bisexual orientation (and related conduct or relationships) as a basis for “minority status,” “protected status,” or a “claim of discrimination.”
- Before Amendment 2, several municipalities (including Denver, Boulder, and Aspen) had ordinances prohibiting discrimination based on sexual orientation in areas such as employment, housing, education, and public accommodations.
- Amendment 2’s effect was to repeal existing sexual-orientation anti-discrimination protections and to prevent the adoption of similar protections in the future unless the state constitution were amended again.
- Gay and lesbian residents and supportive governmental entities sued state officials responsible for enforcement, seeking declaratory and injunctive relief.
- After a trial on the merits, the district court permanently enjoined enforcement of Amendment 2 as violating equal protection.
- The State appealed the permanent injunction to the Colorado Supreme Court.

## Issues

1. Whether Amendment 2 restructures the political process to burden a targeted class’s ability to seek legal protection from discrimination, thereby infringing a fundamental right and triggering strict scrutiny under equal protection.
2. If strict scrutiny applies, whether Amendment 2 is narrowly tailored to serve a compelling state interest.
3. Whether a voter-adopted state constitutional amendment may be invalidated as violating the U.S. Constitution’s Equal Protection Clause and parallel state protections.

## Decision

- The Colorado Supreme Court (en banc) affirmed the permanent injunction.
- The court held that strict scrutiny applied because Amendment 2 “fenced out” an identifiable class from using ordinary political channels to obtain anti-discrimination protections.
- Applying strict scrutiny, the court held Amendment 2 unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and parallel provisions of the Colorado Constitution.
- The court rejected the State’s asserted interests (including associational and religious liberty, conservation of enforcement resources, and avoidance of “special rights”) as insufficient and not narrowly served by the amendment’s sweeping prohibition.
- The court held that state constitutional provisions adopted by initiative remain constrained by the federal Constitution and may not abridge equal-protection rights.

## Legal Principles

- Equal protection is violated when government restructures political decisionmaking so that an identifiable group must surmount a uniquely burdensome political hurdle to obtain protections available to others through ordinary processes.
- Measures that impose such a political-process disability implicate a fundamental right to participate equally in the political process and are subject to strict scrutiny.
- Under strict scrutiny, the State must show a compelling interest and that the challenged measure is the least restrictive means (narrowly tailored) to achieve that interest.
- A state constitutional amendment, even if adopted by popular vote, is unenforceable to the extent it conflicts with the U.S. Constitution’s Equal Protection Clause.

## Conclusion

The Colorado Supreme Court held that Amendment 2 unconstitutionally singled out gay, lesbian, and bisexual persons by broadly withdrawing and forbidding governmental anti-discrimination protections and by requiring that group, unlike others, to secure relief only through a further constitutional amendment; because the measure failed strict scrutiny, the court affirmed a permanent injunction barring its enforcement.


Evans v. Romer, 882 P.2d 1335 (Colo. 1994)