30 years ago, a landmark Supreme Court decision bolstered LGBTQ+ rights — and changed Colorado’s “Hate State” reputation ...Middle East

Thirty years ago today, Jenny Pizer was at home in California when her phone rang a little after dawn.

Pizer is an attorney who at the time had recently joined the staff of an organization called Lambda Legal, which fights for LGBTQ+ rights nationwide. The organization had been heavily involved in the legal fight against a Colorado ballot measure known as Amendment 2 that prohibited local jurisdictions from passing laws banning discrimination against gay, lesbian and bisexual people.

The ballot measure passed in 1992 with 53% of the vote and represented an abrupt rebuke of the emerging movement in liberal cities and counties to protect people on the basis of sexual orientation. The measure sparked a nationwide boycott against Colorado and a nickname: “The Hate State.”

“The question of basic rights for lesbians, gay men and bisexual people was being put to a popular vote at a time when our movement was much younger than it is now,” Pizer recalled.

When her phone rang, the fight was pending before the U.S. Supreme Court in a case known as Romer v. Evans, and Pizer and other LGBTQ+ community members and supporters across the country were eagerly awaiting a decision.

But when she answered, she didn’t hear a colleague’s voice on the other end of the line. She heard her mother’s, calling from her home in Denver.

“She was in tears,” Pizer remembered. “She was crying tears of relief and joy that the Supreme Court had done the right thing.”

In a 6-3 decision, the Supreme Court struck down Amendment 2 and issued the first of a string of major decisions over the ensuing years finding that people are entitled to equal rights under the law regardless of their sexuality.

A turning point — in more ways than one

It is hard to overstate how much the passage of Amendment 2 and its subsequent defeat in the Romer decision have shaped the Colorado we live in today and the political debates across the country.

In the campaign against Amendment 2 grew the green shoots of the progressive movement that has come to dominate Colorado politics. Today, Democrats control all major seats of power in Colorado. Gov. Jared Polis is the first openly gay man ever elected governor in the United States. The state legislature has passed numerous laws providing discrimination protections for LGBTQ+ people.

“We went from enacting statewide laws that exclude gay people to having among the most robust protections for LGBTQ+ people,” said Scott Skinner-Thompson, a law professor at the University of Colorado. “The state is just totally different.”

But the decision was also a turning point in a new kind of politics, what the conservative Justice Antonin Scalia in his dissent to the Romer decision dubbed a “Kulturkampf”: Culture war.

The Romer case wasn’t the end of Colorado laws being challenged before the Supreme Court. In the years since, several more cases about discrimination protections and LGBTQ+ rights have risen to the nation’s highest court. But in these cases, the Supreme Court has ruled that Colorado’s protections go too far and trample on the free speech rights of people who oppose homosexuality on the basis of religion.

To the faith-based organizations that embrace these arguments, the Romer case was instructive, said William Schultz, a professor of history and religious studies at the University of Chicago who last year published a book called “Jesus Springs” that examines how Colorado Springs became an epicenter of evangelical conservatism.

Schultz said conservative religious organizations saw in Romer the need to focus on the judiciary, strengthening a decades-long campaign that has resulted in a conservative super majority at the Supreme Court.

“One of the lessons these groups took from the Romer v. Evans decision,” Schultz said, “is that winning the Supreme Court is a lot more important than winning the popular vote.”

And so here we are: Thirty years ago today, one fight ended. And, yet, it didn‘t end at all.

“An enormous breakthrough in constitutional terms”

When Pizer finally made it into the office on the morning of May 20, 1996, she found euphoric pandemonium.

“Relief, joy, satisfaction, vindication,” Pizer said.

In Colorado, at the center of the fight, the mood was the same for other opponents of Amendment 2.

Mary Celeste, an attorney who helped coordinate the case through an organization called the Colorado Legal Initiatives Project, was at her office when the decision was announced. She received a call from Jean Dubofsky, the former Colorado Supreme Court justice and legendary legal mind who was the lead attorney for the plaintiffs, informing her of the news.

Celeste quickly helped put together a rally on the steps of the state Capitol, which she estimated 4,000 people attended.

“How does it feel,” Celeste recalled shouting to the crowd, “to know that the Constitution is alive and well and living in Colorado?”

But, while the rally was hastily assembled, the legal fight was anything but.

Amendment 2’s main proponents were conservative religious groups in Colorado Springs, Schultz said. At the forefront was an organization called Colorado for Family Values, led by a local car dealer named Will Perkins. 

In the run-up to the election, Celeste said polling showed the measure going down, but she suspected differently. In interviews, Perkins cast the amendment as not about allowing discrimination but as preventing “special rights” for the gay and lesbian community.

“Homosexuals are not a powerless group that should be protected as are other minorities,” he told The Pueblo Chieftain in 1993, as the legal battle raged. “They are an affluent, well-educated, politically powerful group. They do not qualify for special protections.”

Celeste believed that voters would be confused by the measure’s wording or worse.

“I thought that the voters were a bit bamboozled,” she said.

Prior to the vote, Celeste and others began assembling a legal team and the outlines of a lawsuit, should the measure pass. When it did, they put the plan into motion.

The lead plaintiff in the case was a man named Richard Evans, who worked in Denver City Hall. That the lead defendant came to be then-Gov. Roy Romer is somewhat ironic given that Romer, a Democrat, opposed Amendment 2 and joined a march against it on the night it passed.

The plaintiffs went through the state courts to block Amendment 2 from going into effect. But then-state Attorney General Gale Norton, a Republican, appealed to the U.S. Supreme Court, setting the stage for the legal showdown. Opponents of Amendment 2 camped outside the Supreme Court building the night before the arguments, hoping for a seat inside the next morning.

When Justice Anthony Kennedy’s majority opinion was released seven months later, it concluded that Amendment 2 failed the most basic constitutional test — that a law be enacted for a legitimate purpose.

“Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects,” Kennedy wrote. “It lacks a rational relationship to legitimate state interests.”

Legally — and, just as significant, symbolically — it was a landmark decision.

“It was the first time we were recognized as having equal protection rights,” Pizer said. “There had not been many instances of the Supreme Court recognizing our rights, and it was an enormous breakthrough in constitutional terms.”

What flowed from that decision would fundamentally change the lives of LGBTQ+ people in the United States. Seven years after the Romer decision, Kennedy authored another majority opinion striking down laws banning homosexual relations. Another decade later, Kennedy authored two more opinions that legalized same-sex marriage. 

But it was also a limited breakthrough. While Kennedy found in Romer that a government couldn’t pass a law for the purpose of harming gay and lesbian people, he did not conclude that sexual orientation is entitled to heightened discrimination protection, in the way that race or religion are.  

“It left this very critical analysis unanswered,” Pizer said. “Over time, that unanswered question was an important one. And the Supreme Court has not answered it all these many years later.”

From gay rights to free speech

Instead, an increasingly conservative Supreme Court pivoted toward the First Amendment rights of those who opposed homosexuality, said Skinner-Thompson, the CU law professor.

“The court has basically concluded that the law, even if it’s a public accommodation regulation, a health and safety regulation, if it burdens speech, even on the periphery, it’s going to be subject to really heightened scrutiny,” Skinner-Thompson said.

That shift has roots in Colorado, too.

One of the chief proponents of these free-speech arguments is a legal organization called Alliance Defending Freedom. It was formed as the Alliance Defense Fund in 1994, right in the middle of the legal fight over Amendment 2. One of its cofounders was James Dobson, a child psychologist from Colorado Springs who also founded Focus on the Family, which was a proponent of Amendment 2.

“Without Dobson in those early years, it’s unlikely ADF would have become what it is today,” Alan Sears, ADF’s former president, CEO and general counsel, said when Dobson died last year.

And what ADF has become is a Supreme Court-winning machine. In the past decade, among numerous other cases, ADF has represented three people from Colorado challenging the state’s LGBTQ+ protections at the Supreme Court — a cake baker, a website designer and, most recently, a mental health counselor, all of whom said they carry out their work in accordance with their Christian faith.

They argued that Colorado’s laws violated their free speech rights. And the Supreme Court sided with all of them. (Though, in the case of the baker, Jack Phillips, the Supreme Court found that Colorado regulators had acted with hostility toward his religion and did not decide the free speech question.)

Schultz, the University of Chicago professor, said this legal approach comes out of lessons that conservative activists learned in the Romer decision.

The case, he said, “kicked the legs out from under” conservative groups’ strategy to win gains through elections. Meanwhile, public opinion has shifted in favor of gay rights over the last several decades. For instance, more than two-thirds of Americans now say same-sex marriage should be legal, compared with around a quarter when the Romer case was decided. 

But arguing issues in court isn’t a popularity contest.

“Romer confirms a broader trend across conservative Christian politics, which is taking hold of the language of rights and taking hold of the language of religious freedom,” he said.

As long as there are well-funded, well-organized and highly motivated groups, Schultz said, “The basic dynamic is not going to change, especially as the battle turns toward the courts. There it doesn’t matter if you’re hugely outnumbered.”

Colorado’s political structure may contribute to the state producing high-profile culture war cases at the Supreme Court. Even as the state as a whole shifts leftward politically, there remain influential conservative religious organizations.

Focus on the Family declined an interview request for this story. But, in a statement, Jeff Johnston, an issues analyst for the organization, said that Colorado has weaponized its antidiscrimination laws against people of faith.

“You can draw a direct line from the court decision in Romer v. Evans to Colorado’s systematic trampling of First Amendment freedoms and natural rights on behalf of various ‘sexual identities,’” Johnston said. “The decision vilified people of faith, defaming those who believe God’s male-female design for sexuality and marriage as motivated by animosity.”

As the legislature continues to pass laws intended to protect LGBTQ+ people against what supporters see as threats, Johnston predicted more legal battles will follow.

The relative ease of getting measures on the ballot makes Colorado a particularly appealing spot to wage these fights — this fall will see two measures on the ballot that would restrict surgical options and participation in sports for transgender youth. Johnston has written approvingly of the ballot measures.

“Focus on the Family will continue to affirm God’s good design for sexuality, marriage and family, even as we proclaim God’s grace and mercy for all of us who fail in these areas — even if Romer is never overturned,” Johnston said.

“I don’t think you’re ever finished”

One major difference in these fights compared with three decades ago is that the supporters of LGBTQ+ rights in Colorado are a lot more prominent than they used to be. This, too, is a consequence of Amendment 2.

When the measure passed, Tim Gill, the tech entrepreneur who would go on to become one of Colorado’s wealthiest individuals, was angry. He had contributed money to the campaign against the measure and to support the legal fight against it, but he wanted to do more.

“Every time I get pissed off, I tend to say, ‘What do I do to not be pissed off?’” he said. “It’s not a very productive state of mind to be in.”

So Gill took $1 million of his money and started the Gill Foundation. Three decades later, the organization has contributed more than $466 million to LGBTQ+ causes. Combined with his personal giving, Gill is the largest individual donor in the movement’s history nationwide. In a roundabout way, he said he owes all of this philanthropy to the passage of Amendment 2.

“That kind of started my whole journey of realizing that I had the resources to give back and to make the world a better place,” he said.

But his contributions didn’t stop at philanthropy. Gill believed the measure passed not because people in Colorado were bigoted but because they were blinded. They hadn’t thought much about LGBTQ+ issues, and they hadn’t talked much about them either.

Person by person, Gill set out to change that. Every time he gave a speech, he would find a way to slip in a reference to his boyfriend. He personally spoke with people who called his business upset at his opposition to Amendment 2. He came out in casual conversations with strangers — and he encouraged others in the LGBTQ+ community to do the same.

People, he said, are more compassionate and thoughtful than they’re often given credit for.

“I think one of the things it did is it not only got the broader population to a reasonable place, it got a lot of politicians to a reasonable place, and so it became easier to fix issues,” he said of the personal diplomacy strategy. “People were less afraid. Politicians were less afraid of discussing the issue and expressing positive opinions. So the real legacy is the change it made in people’s minds.”

As his activism evolved, Gill turned his attention to politics, where he became one of the key architects of Democrats’ rise to power in Colorado, as well as a major donor nationally. Last year, then-President Joe Biden awarded Gill the Presidential Medal of Freedom.

In fact, a lot of folks involved in the fight against Amendment 2 went on to hold significant roles in Colorado.

A young lawyer named Pat Steadman, who camped out on the concrete to get a seat inside the Supreme Court on the day the Romer case was argued, was later elected to the state Senate. Celeste became the first openly gay judge in Colorado history.

Achievements like those can make the legacy of Romer v. Evans feel a little like an ongoing victory party for those who opposed Amendment 2.

But Gill is not one to celebrate his victories much. His reason why may be a rare point of agreement for both sides in a fight settled 30 years ago and yet still alive today. 

“Wins are great,” Gill said. “You learn less from wins in some ways than you learn from losses.”

“Unless you’re finished,” he added. “But I don’t think you’re ever finished.”

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