April 20, 2012
By Scottie Thomaston
In March I reported on a proposed amendment to Colorado’s state constitution, an attempt by the Alliance Defense Fund and Focus on the Family to allow discrimination if it is claimed to be motivated by “sincerely held religious belief”. Like 1992’s infamous Amendment 2, which was later ruled unconstitutional by the US Supreme Court in Romer v. Evans in 1996, the amendment’s effects would be to target minorities and single them out for discrimination and denial of basic services and needs. In March, the amendment was only proposed, and right-wing groups were trying to qualify the measure for placement on the ballot so the voters can decide whether it will be adopted or not.
Today’s title board hearing just finished up. Despite having some of the best legal minds in Colorado working for us and mounting a strong legal case, we lost our initial challenge to Focus on the Family’s deceptive ballot initiative to write discrimination into our state Constitution. Now we have to take our challenge to the Colorado State Supreme Court. If we don’t, this dangerous measure is all but certain to appear on our ballot this fall. If enacted, this measure’s radical effects will be felt in Colorado for decades to come—and would have far-reaching implications for LGBT Coloradans.
Here is the amendment’s language:
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.
In March I said:
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[.]”
Passage of the amendment would be a serious step back for Colorado. And it would come at quite possibly the worst time for the state, given its recent pro-LGBT advancements. There’s a new proposal in the state to remove the unconstitutional Amendment 2 from the books, and a civil unions bill for LGBTs is advancing in the state legislature. Recent polling in the state indicates strong majority support for the civil unions bill as well as majority support for marriage equality.