IT WAS THE BALLOT MEASURE THAT EARNED COLORADO THE SOBRIQUET “THE HATE STATE.” THIRTY YEARS AGO, COLORADO VOTERS PASSED AMENDMENT 2, WHICH WOULD BAR LOCAL GOVERNMENTS FROM CREATING ANTI-DISCRIMINATION PROTECTIONS FOR GAY PEOPLE.
Although most political observers had predicted that the measure would fail, members of the gay community and their allies had been quietly plotting a legal assault on the amendment. Before it went into effect, opponents were able to win an injunction to stay its enforcement until a lawsuit called Evans v. Romer could decide its constitutionality. Colorado’s conservative attorney general, Gale Norton, went all in and enlisted a handful of experts to attest to Amendment 2’s morality, giving a platform to psychological testimony that falsely alleged homosexuals were more likely than heterosexuals to be child molesters.
One of the state’s most prominent allies was John Finnis, a revered philosopher of law at England’s University of Oxford. Finnis, a bespectacled Australian, submitted an affidavit on behalf of Amendment 2. In it, he contended that gay relationships were “deeply shameful” to people engaged in “real marriage.” Finnis was a devout Catholic but maintained that his thinking was secular and backed by Plato and Aristotle, who, Finnis said, argued that “only conjugal activity is free from the shamefulness of instrumentalisation which is found in masturbation and in being masturbated or sodomized.” (Finnis would also equate gay sex with bestiality.)
Despite Finnis’ affidavit, the Denver District Court made the preliminary injunction on Amendment 2 permanent, and the Colorado Supreme Court upheld the decision. The state appealed, and in 1995, the U.S. Supreme Court heard the case, now called Romer v. Evans. Any hope Colorado might have had that SCOTUS would rule in Amendment 2’s favor, however, evaporated roughly one minute into oral arguments, when Justice Anthony Kennedy interrupted the state solicitor. “I’ve never seen a case like this,” said Kennedy, his voice registering disbelief. “Is there any precedent that you can cite to the court where we’ve upheld a law such as this?” Opponents of the measure immediately relaxed. Kennedy wrote the majority opinion, and Amendment 2 was quashed for good.
Although the decision in Romer v. Evans was narrow—it didn’t dissolve anti-sodomy laws or legalize same-sex marriage—it was the first instance of the federal high court purposefully protecting gay rights. It also marked the beginning of Kennedy’s defense of queer liberties. He may have been appointed by Republican President Ronald Reagan, but the California-born justice would go on to write majority opinions that overturned bans on gay sex and federal and state bans on same-sex marriage.
This month, the U.S. Supreme Court will once again hear a case concerning gay rights from the Centennial State:
