March 16, 2012
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.
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.