Issue.  Does an amendment to the Colorado Constitution that prevents the State of Colorado or any of its subdivisions to pass laws prohibiting discrimination based on sexual orientation violate the equal protection clause?

Background.  The voters of Colorado passed an amendment to the State Constitution that reads:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities, 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 preference, protected status or claim of discrimination.

Basically, the Amendment would prevent the State or locality from passing any law to prevent discrimination against gays.  It also prevented any executive action to protect gays including an executive order that would prevent discrimination in the hiring of government employees based on sexual orientation.

The Colorado Supreme Court ruled that the Amendment was subject to strict scrutiny because it infringed the rights of LGB people to participate in the political process.  The State of Colorado was unable to advance any sufficient argument that the Amendment was narrowly tailored to serve compelling interests.  The case was appealed to the U.S. Supreme Court.

Court's Analysis.  The Supreme Court also found that the Amendment violated the equal protection clause, but on different grounds.  The Supreme Court did not find that strict scrutiny applied in this case and that the Amendment could not even survive under rational basis.

The Court was disturbed how the Amendment singled out one particular trait (sexual orientation) that is exempt from specific legal protections.  The Amendment was found to be, at the same time, too narrow and too broad.  "It identifies persons by a single trait and then denies them protection across the board."  Further, it is rare that any such law has been passed.

The Court continued that it could not be denied that the Amendment was passed, in part, on the animosity some residents had toward the affected group.  The State could not come up with a rational basis for this broad exclusion of homosexuals from legal protection.  The State's primary rationale was that it wanted to protect the associational rights of persons with personal or religious objections to homosexuality.  However, the broad reach of the Amendment was far beyond the State's rationale.

In the end, the Court found the Amendment to be "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests."

My Take.  The ruling was correct, but the Supreme Court really tap-danced around the more difficult issue.  The Court was clearly disturbed by the discriminatory nature of the Amendment and how it specifically targeted one group.  Further, the Amendment was anti-democratic as it prohibited localities from enacting anti-discrimination laws.  Why should the residents of one town dictate what ordinances the residents of other municipalities want?  You can read how the Supreme Court was bothered by this Amendment.

What the Supreme Court did not do, and should have done was to address whether homosexuals are a suspect class?  Maybe they did not have to because the State's rationale is stupid.  It is crazy to believe that if someone has a moral objection to homosexuals that they have a right to kick them out of their restaurants and the like.  Why not make the same argument about religious minorities? 

Eventually, the Court is going to be forced to address whether gays are a suspect class, and I think if you really look at it, they are.  A new one, an unexpected one at the time of the 14th Amendment, but a suspect class nonetheless.  Ironically, gays wouldn't be a suspect class had it not been the legislative push against them in the last 50 years.