WASHINGTON – Several Supreme Court justices aggressively questioned an attorney representing Colorado Tuesday about the specifics of a state law that would severely limit gay rights.
The 1992 amendment to the Colorado constitution would ban any laws that offer protection from discrimination for homosexuals. Maryland and the District of Columbia signed on in opposition to the amendment, while Virginia signed on in favor of it.
“Would this amendment mean that a public library could refuse to allow books to be taken out by homosexuals, and they would have no recourse?” Justice Sandra Day O’Connor asked Timothy Tymkovich, the lawyer representing Colorado.
Justice David Souter questioned Tymkovich about whether a hotel could refuse service to gay customers.
Justice Ruth Ginsburg wondered about the impact the amendment would have on homosexuals’ access to scarce medical resources from public hospitals.
“I would like to know if you can cite any legislation in history like this that says to a group, `You will not be able to appeal to the state legislature for help,’ ” Ginsburg said.
Tymkovich responded that the specifics of how the amendment would be implemented would have to be determined in the Colorado courts. “Since the amendment has not taken effect yet, we don’t know how the courts will interpret it,” he said.
However, a homosexual would not have any claim of discrimination in a public setting, he said.
Tymkovich argued that the amendment was approved by citizens of Colorado. “It was a response to political groups who were seeking special rights,” he said.
But Souter responded: “Why is discrimination against one group dealt with differently than other groups? … It’s not enough to just say that’s what politics decided.”
Justice Antonin Scalia seemed the most sympathetic to Tymkovich’s arguments. Scalia said he felt that laws protecting homosexuals from discrimination did grant them unfair special protections.
The justices’ intense questioning of Tymkovich left gay rights’ activists with cautious optimism that the court will find the Colorado amendment unconstitutional.
A decision is expected sometime between December and June.
“We’ve been confident about winning all along and we’re still very optimistic,” said Jean Dubofsky, the lawyer representing a group of homosexual residents from Colorado who opposed the measure.
Colorado Attorney General Gale Norton said she felt it would be a difficult case for the court to decide.
The controversy over Amendment Two began immediately after it was approved by 53.4 percent of voters in 1992. The amendment was never put into effect, because the Colorado Supreme Court declared it unconstitutional.
In hearing the case, the Supreme Court will attempt to determine whether Amendment Two violates the equal protection clause of the 14th Amendment to the U.S. Constitution.
If the court reverses the decision of the Colorado Supreme Court and declares the amendment constitutional, it could have wide-ranging effects.
“A Supreme Court ruling sends a powerful signal,” Melinda Paras, executive director of the National Gay and Lesbian Task Force, said in a written statement. “In this case, the court can stand in defense of equal participation and fair play for all, or it can codify discrimination against one targeted group.”
The District of Columbia has laws protecting gays from discrimination, but Maryland and Virginia do not have broad protections in place. However, Maryland recently passed an executive order banning discrimination against state employees. -30-