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Anti-gay amendment proposed in Colorado: echoes of Amendment 2

Right-wing

By Scottie Thomaston

Alliance Defense Fund, the group currently representing the Proposition 8 proponents in federal court, has proposed an amendment to Colorado’s constitution purporting to protect ‘religious freedom’ and freedom of conscience by allowing religious groups to openly discriminate against people who are gay. The amendment reads:

Section 32. Religious Liberty.

(1) Government may not burden a person’s or religious organization’s religious liberty.

(2) The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government prove it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.

(3) A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

Essentially, it suggests that discrimination would be acceptable if it is done for religious reasons unless the government can meet certain strenuous requirements. For the most part, of course, the government can’t restrict or impede religious practices or impose certain religious beliefs on society. Common decency and the Equal Protection Clause of the 14th amendment does lead to the conclusion however that different classes of people should be treated equally in our laws, so necessarily this means disfavored classes have equal rights, too.

The amendment would “create a two-tiered society” and disadvantage gay people based on a specious rationalization:

“Everyone has a right to their own religious beliefs, but no one should be above the law,” One Colorado said in an official statement. “This extreme measure would create a two-tiered society where the law applies only to some and not others. The far-reaching consequences of this deceptive initiative are incredibly dangerous for all Coloradans.”

One Colorado Executive Director Brad Clark said the language is deceptive, and as examples said the amendment could allow a pharmacist to refuse to fill a birth control prescription, an employer to refuse to hire based on sexual orientation or gender identity, or a teacher to refuse to teach sex ed or evolution by citing religious convictions.

The amendment would have far-reaching consequences:

Aside from the offense of writing numerous typos into the Colorado constitution, the amendment not-so-subtly demands that religious groups have more power over citizens than the government by essentially giving them veto power over all policy decisions. This language could easily be construed such that the government would be permanently tethered to subsidizing religious groups, no matter how exclusive the policies of that group would be.

For example, after civil unions legislation passed in Illinois last year, the state decided to stop subsidizing Catholic Charities’ adoption services with taxpayer funding because the agencies refused to serve same-sex couples. Were this amendment to pass in Colorado, the state could never back out of such funding if organizations claimed their discrimination was based on a “sincerely held religious belief.” (Incidentally, even though Colorado’s proposed civil unions law actually would create a religious exception, Catholic Charities announced they would nevertheless shut down all services if the bill passes.)

Twenty years ago, Colorado tried to pass an amendment to their state constitution stripping away all rights and legal protections from people who are gay. Back then it was called Amendment 2, and though it had a different aim (the text did not refer to religious beliefs) it would have had a broad impact on the lives of gay people in Colorado and it would have created a two-tiered society, making gay people automatically inferior, the same way this one would. That amendment said:

“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.”

The Supreme Court struck it down in 1996, in Romer v. Evans, saying:

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. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.

And:

Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

Justice Kennedy went on to say that the constitution does not allow laws of this sort to be implemented.

Enough time has passed between then and now that these sorts of amendments shouldn’t be proposed, much less enacted by a state’s citizens. One Colorado added:

Barton continued, “What we do know is that both the US Constitution and the Colorado Constitution provide strong protections for religious freedom. The Center has concerns that the initiative may potentially have implications on law relating to education, employment, reproductive rights, civil rights and a host of other areas.”

This is a dangerously broad amendment proposal that will hurt gays and other people seeking basic needs.

41 Comments

  • 1. Richard Lyon  |  March 16, 2012 at 4:17 pm

    This is the same tact that they are taking with the anti-contraception campaign. That one isn't going so well for them. Guess it's time to try the proven recipe of fag bashing.

  • 2. AlexJon  |  March 16, 2012 at 4:20 pm

    This is super broad, it suggests a general protection that can go too far in the wrong hands. What if the persons using this are racist, xenophobic or misogynist, for example? How far can they push this?

  • 3. Scottie Thomaston  |  March 16, 2012 at 4:21 pm

    They really are all going quite crazy. Now Rick Santorum wants to ban porn. They are trying to prevent access to contraception. Then they did the transvaginal ultrasound thing. Conservatives have always been trying to ban one freedom or another but they seem to be just throwing all their worst stuff out there at one time and seeing what sticks.

    Bizarre.

  • 4. Bob  |  March 16, 2012 at 4:26 pm

    So if you kill someone but claim that their existence offended your "sincerely held religious beliefs" does that mean you go free?

    This is not only a solution in search of a problem, it's also a thinly veiled excuse to espouse any sort of bigotry.

  • 5. Scottie Thomaston  |  March 16, 2012 at 4:28 pm

    And really it depends on the type of religion as well. Would Mormons or Muslims be protected as much as Christians?

  • 6. Str8Grandmother  |  March 16, 2012 at 4:29 pm

    Off Topic. Remember when the Supreme Court turned down NOM's request for Certoria (what is that word?) on the Maine election Law Law suite (there are 2 of them) and NOM lost at the District Level and at the Appeals Level and then the Supreme Court would not hear their case? Remember that?
    The Trial Record in the District Court has been under Seal but now the Appeals Court, since their decision stands, ordered NOM and the State of Maine to produce the Trial Record. This just happened relative to that
    http://www.goodasyou.org/good_as_you/2012/03/list
    Small new development

    Make sure and read the Comments at Good As You because there is new law in Maryland about Disclosing Donors for Ballot Initiatives as well. That link is provided in a comment.

  • 7. Scottie Thomaston  |  March 16, 2012 at 4:32 pm

    Certiorari, and thanks! I will go look now.

  • 8. jpmassar  |  March 16, 2012 at 4:33 pm

    What about Pastafarians ?

  • 9. Scottie Thomaston  |  March 16, 2012 at 4:34 pm

    I think if they were really serious it would have to apply to all religions, and I doubt that will happen.

    It's pretty much taking the "License to Bully" legislation concept and spreading it into every other area of public life. As long as you say you're religious you can do whatever.

  • 10. Scottie Thomaston  |  March 16, 2012 at 4:37 pm

    Bless His noodly appendages

  • 11. Steve  |  March 16, 2012 at 4:50 pm

    Anyone who uses the phrase "sincerely held religious belief" needs to be punched in the face. Very hard. Just because you sincerely believe something doesn't mean it deserves any respect or legal authority

  • 12. Steve  |  March 16, 2012 at 4:52 pm

    So first he loses women and now Santorum wants to alienate men too. Who also happen to be in his target demographic. Red states and fundie Christians have some of the highest rates of porn consumption. It's really not surprising that they need other outlets given their severe sexual repression

  • 13. Steve  |  March 16, 2012 at 4:53 pm

    As a matter of fact, yes. Some states actually have laws that allow you to murder people with faith "healing" and get away with something like a 10 year sentence. I think Oregon only recently woke about and removed theirs.

  • 14. Steve  |  March 16, 2012 at 4:54 pm

    about = up

    WTF

  • 15. Bob  |  March 16, 2012 at 4:57 pm

    Exactly that, Scottie.

  • 16. Menergy  |  March 16, 2012 at 5:26 pm

    Absolutamente!!!!

  • 17. Str8Grandmother  |  March 16, 2012 at 6:25 pm

    If Rick Santorum goes to ban porn he will loose the Religious votes. AS according to the Christian Post over 50% of Pastors and Ministers visit internet porn sites at least weekly. http://www.christianpost.com/news/pornography-har
    Better stick to persecuting women and gays.

  • 18. Str8Grandmother  |  March 16, 2012 at 6:29 pm

    Colorado has very sparsely populated areas, you can go over 100 miles and more with no gas stations. This is the example I usually use to show how well religious exemptions work.

    Small rural Colorado town with one gas station and no other gas stations for miles around. Your wife is driving through Colorado and pulls up for gas, she is almost out. The bearded gas station owner apologies and says that he is a devout Muslim and according to his religious faith he will not sell your wife gas unless she is accompanied by a close male family member. Now what does she do?

    See how those "But it is MY RELIGION" exemptions to public accommodation laws work?

  • 19. Bob  |  March 16, 2012 at 6:42 pm

    but how will this craziness end!!!!! what we watch and see and hear, about the American elections, are just mind blowing,,,,, basically the republicans have just taken everyone back to a place everyone fought to leave ,,,,,,

    how can they even present this stupidity,,, if their isn't someone they're talking too,,,,,

    duh it seems like a no brainer,,,, but I think everyone,, and I mean everyone better take them serious,,, and get out in droves and drive the election machine that works for Obama,,, it's that or HELL on earth,, which plays perfectly into the hands of the Vatican,,,, wake up AMERICA

  • 20. celdd  |  March 16, 2012 at 6:54 pm

    Ramen!

  • 21. Bob  |  March 16, 2012 at 7:50 pm

    Canadians warned about anti-gay laws in Russia
    http://news.nationalpost.com/2012/03/16/canada-wa

  • 22. Bob  |  March 16, 2012 at 8:12 pm

    and what a perfect example of church and state working together

    The law was signed by the governor of St. Petersburg last week, amid calls for anti-gay laws from Russian politicians and the Orthodox Church. According to Russian news reports, the city says the law is designed to protect children.

  • 23. Theo McKinney-Ewing  |  March 16, 2012 at 8:14 pm

    I like your style, Scottie…It makes me particularly incensec and ANGRY because you express the details we all will need to stay *MAD* AND RESOLUTE over a Summer that promises ALL KINDS OF ANTIGAY SLURS AND IRRATIONAL ANTIGAY BILE WILL BE FLYING…

    Especially if NC's "constitutional" ban ends up as a fail…

    (CRAZY TIMES…)

  • 24. MightyAcorn  |  March 16, 2012 at 10:33 pm

    So……basically it's Amendment Two again, but this time being explicit that their animus is religiously based? Who thought THAT was a good idea? Oh yeah, Alliance Defense Fund, the ones losing their Prop8 case right now. Sounds about right.

  • 25. _BK_  |  March 16, 2012 at 11:12 pm

    OT but important: on "Preserve Marriage Washington", they have a running tally of how many signatures they have collected so far. Here's the link if anyone's interested:
    http://preservemarriagewashington.com/home.php

  • 26. Mike  |  March 16, 2012 at 11:44 pm

    You have to remember, those people who supported rallied and became politicians to author and pass anti civil rights laws against the negro class, are well alive and politically active today.

  • 27. RWG  |  March 17, 2012 at 7:48 am

    It's Special Rights for Christians. What else could you call it?

  • 28. David  |  March 17, 2012 at 7:54 am

    I'm beginning to believe that is indeed what they want. Everyone forced to worship for fear of being cast out of society, the "Righteous" can dictate behaviour for everyone, and only religious laws matter.

    Sounds a lot like Iran doesn't it? Always surprises me that the Christian Right don't absolutely LOVE the Mullahs.

  • 29. Str8Grandmother  |  March 17, 2012 at 8:58 am

    Good observation. Yup this time they have the b*lls to just come right out and explicitly say, "religiously based" they didn't do that in amendment 2. Now they are coming back for round 2 and they are putting it out there.

    I found it really helpful to listen to the oral arguments of the Supreme Court and listen to Justice Kennedy and Justice Scalia read their opinions. At this website expand the player and it scrolls the text of what is being said and who is speaking. It is very informative. http://www.oyez.org/cases/1990-1999/1995/1995_94_
    When you are done search cases for Lawrence v Texas and listen to that case as well. It really helps to listen to the Justices i think.

  • 30. Jim  |  March 17, 2012 at 8:58 am

    I think all the absolute insanity that is going on at this time is because they realize they are fighting a losing battle, that eventually there will be equal rights for all. It may take a few more years and many legal battles but if we just look back at all the advances over the last 10 years, equality will come, and the religious zealots know that, and this is, what they perceive, their last stand.

  • 31. Glen  |  March 17, 2012 at 9:33 am

    Ohh! You're of the Ramen-ite sect eh!

    I know you and us Linguini-ists have had our Pastafarian differences over the years, but we should set them aside to get this VERY important legislation passed.

    It's an important tool for going after those low-carb dieters!

  • 32. Glen  |  March 17, 2012 at 10:02 am

    That's a great example, and one that even those Christian fundamentalists should be able to grasp.

    Of course the same rules should apply even for gas station's that are right across the street from each other. No person should be inconvenienced, have to pay more, or simply denied their preference for a product or service simply on the basis of some characteristic the business owner does not like about an entire class of people. People are given LICENSE to do business with the general public, and that means abiding by certain rules.

    Someone could decide to do business as a private club, but the tax laws are different and more favorable for businesses meant to serve the general public, and your duty as a business owner being given that favorable tax treatment is to service the general public without discrimination, unless there is a valid secular reason for doing so, or it's something that applies to any person who walks in (e.g. No Shirt. No Shoes. No Service), or it targets only a specific individual for a valid reason (e.g. They were being a disturbance, poor hygiene, etc..)

    The owner can even discriminate against very specific individuals, so long as it's something that is VERY particular to that individual. For instance a fire-and-brimstone preacher that regularly and notably preaches that all gay people are going to burn in hell (say Fred Phelps), could be denied service by a gay friendly business, while your run of the mill person who simply doesn't believe gay people should have equal rights cannot be denied service.

    Of course the laws differ from place to place.

  • 33. RAJ  |  March 17, 2012 at 10:03 am

    I followed the link to the tally and then I perused the rest of the site.

    By now we're all VERY familiar with the talking points —(they just makes me tired now)— but under the "Why Marriage Matters" tab, if you read through you can detect the slightly freshened up talking points laid out by professor Robert George in an article last year in the "Harvard Journal of Law and Public Policy". I'm sure this has been referred to elsewhere on this site but I'm providing a link again to Rob Tisinai excellent and extended critique of the Harvard Journal piece.

    Having read Tisinai's take down, I found myself over and over again mentally swatting aside the points made on the preservemarriage website.

    Here it is: http://wakingupnow.com/blog/category/robert-georg

  • 34. Ray in Sacramento  |  March 17, 2012 at 12:10 pm

    Well not exactly the dark ages. I think Republicans are on a nostalga trip where they would love America to look and act like it did in the 40's and 50's. Conformity was the law of the land. Everyone was expected to look and act alike. The Republicans would probably use Joe McCarthy as their poster/pinup boy.

    I'm old enough to remember those days and the McCarthy hearings that were on TV. Gay people and communists were lumped into the same group.

    We were blocked from working in the federal government and forget about getting a security clearance in the armed forces. The government was afraid we would be blackmailed by the enemy.

    Go back to the good old days? No thank you. Been their, done that, won't do it again.

  • 35. Ray in Sacramento  |  March 17, 2012 at 12:16 pm

    After reading this article, I'm glad my husband and I decided not to move to Denver to be closer to our family. We go to Colorado once a year to visit the family and we are now starting to worry if one of us has a medical emergency while in Colorado, would we be able to make healthcare decisions for each other. My closest living relatives are Jehova Witnesses and there is no way in hell they are making any healthcare or other decisions for me.

  • 36. Str8Grandmother  |  March 17, 2012 at 1:39 pm

    RAJ, I tried to read it. I got to where they start going on and on about children and then I quit. I always think back to Dr. Nancy Cott's testimony,

    "However, still today, the purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one another as well as their dependents. The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors, children, as the proponents tend to emphasize the child's side.

    Q. – Has the ability or willingness to procreate ever been a litmus test or a test of any kind in terms of the validity of a marriage in the United States during our history?

    A. – No.

    Q. – And has — as a historical matter, have there been – has it been recognized that there are other benefits, aside from child-rearing benefits from marriage?

    A. – Most definitely, from the point of view of the state as well as the point of view of the individuals who join it. There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage.

  • 37. Reformed  |  March 17, 2012 at 1:51 pm

    Where is it written that same sex couples will not be connected to and bear responsibility for any children that are produced as a result of their marriage?

  • 38. chris hogan  |  March 17, 2012 at 2:06 pm

    Remember when Rick Santorum asked: "Anybody should be able to marry anyone, right? Why not three people? Or six?"

    Someone should ask Rick Santorum:

    Hey Rick, if anybody should be able to opt out of something on religious grounds, why shouldn't mormons be able to opt out of two person marriages? Why not three people? Or six?

    Fucking hypocrites!

  • 39. Ed Cortes  |  March 17, 2012 at 3:25 pm

    We've seen their legislation to fix the economy, create jobs, and simplify the tax structure, haven't we? They got nothin' left! They are trying to solidify the only base that's crazier than they are, and in that process, are showing how prro their ideas have been, and will be. We have seen the results of theocratic rule in Africa and the Middle east – it doesn't work unless there are strong armies (kinda like hitler and other dictators)….They're rioting in Africa…They're starving in Spain……

  • 40. Bill S.  |  March 19, 2012 at 1:55 am

    "Religious liberty" is the new Republican code word that they are trying to inject into the mainstream populace. They are very good at this. Notice how they transformed the term "anti-gay" into "pro-family" and how many times did we hear that Iraq had "weapons of mass destruction"? Now "being able to impose my personal religious beliefs on others" is "religious liberty."

  • 41. Zack Martin  |  March 28, 2012 at 4:35 am

    Even if they get this passed, it's broad and vague enough that what it actually amounts to in practice will very much depend on how the courts choose to read it. For example, suppose a business refuses to hire a gay person on the basis of a claimed religious belief, in violation of a prohibition under state or local law on discrimination on the basis of sexual orientation. Does the government have a "compelling governmental interest" in preventing discrimination on the basis of sexual orientation? Is an employment law prohibiting it, of general application, with no or strictly limited exceptions, the "least restrictive means" of implementing that interest? I'd say Yes to both; it all comes down to whether the Courts agree or not.

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