Way back in the early 1990s, the urban centers of Colorado passed laws granting – within their metropolitan borders only – modest constitutional protections to gay men & women, to at least ensure that employers could not make hiring/firing decisions based only on sexuality. To a decent population, this proposition is uncontroversial: while the “higher end” of gay rights (like marriage) may be debatable, basic morality & regard for civil society counsel against a gay incarnation of Jim Crow.
The majority of Colorado voters disagreed. In 1992, a shockingly stigmatic ballot proposition – the infamous Proposition Two – amended the Colorado Constitution to provide that no municipality, indeed no government actor in the entire state, could legally adopt anti-discrimination laws. Colorado’s intolerant majority could not even countenance, within their borders, a voluntarily tolerant minority:
Neither the state of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or 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 preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.
A disgusted Supreme Court, in Romer v. Evans, 517 U.S. 620 (1996), held that Colorado’s Amendment ran counter to the federal equal protection guarantee, for, “[a] State cannot so deem a class of persons a stranger to its laws…. ‘[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest’” (quoting Moreno). Thus died Colorado’s shockingly stigmatic unconstitutional constitution.
Unfortunately, history is about to repeat itself, at least insofar as Colorado’s voters may again be tempted into stepping all over the rights secured to all American citizens by the federal constitution. This November, “Proposition 48″ will ask Colorado voters to define whether or not life begins at conception, in what is being called the “Definition of a Person Initiative” or, insultingly, the “Colorado Equal Rights Amendment”:
BALLOT TITLE: Shall there be an amendment to the Colorado constitution defining the term “person” to include any human being from the moment of fertilization as “person” is used in those provisions of the Colorado constitution relating to inalienable rights, equality of justice, and due process of law?
INITIATIVE: Be it Enacted by the People of the State of Colorado: SECTION 1. Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read: Section 31. Person defined. As used in sections 3, 6, and 25 of article II of the state constitution, the terms “person” or “persons” shall include any human being from the moment of fertilization.
Obviously, such a measure would end all abortion in Colorado, and indeed would cast birth control pills (which prevent fertilized cells from implanting) as the termination of a human life. Legally speaking, the proposal is not self-executing – no-one could be said to “violate” the Amendment – but its effects are significantly more chilling. By making an “embryo” a “person,” the amendment would graft onto existing criminal law to turn any woman who legally seeks an abortion, or legally takes a birth control pill/morning after pill, into a murderer. As a misstatement of medical science, an unconstitutional attempt to utterly destroy the right to choose, and an outright affront to women, Proposition 48 must fail.
Barack Obama managed to turn this state purple, against all odds, as new residents supplant an extremely conservative native population. But social wedge issue propositions like this may keep the state red, giving Sarah Palin two things to smile about.
Just as a matter of legal question: If CO passed a law which specifically forbid the discrimination of people based on their weight…. would you consider that good legislation, or perhaps a bridge too far?
Posted by Progressive Conservative | September 19, 2008, 8:57 amSomething like that, at a minimum, is within the province of the legislature to decide is wise.
Posted by Ames | September 19, 2008, 10:06 amIs it also in their province to decide it is unwise?
Posted by Progressive Conservative | September 19, 2008, 10:29 am…birth control pills (which prevent fertilized cells from implanting)
ARGH! No! Birth control pills do not do this. Birth control pills stop an existing egg from being released and therefore stopping conception from occurring in the first place. Emergency conception works the same way, since conception can happen up to something like 72 hours after sex.
The whole “birth control pills stop implantation” is just a line that the anti-sex contingent made up out of whole cloth.
Posted by Narc | September 19, 2008, 10:32 amDamn! So is it incorrect that “fertilized=person” would criminalize the morning after pill?
Posted by Ames | September 19, 2008, 10:36 amAmes, since Colorado is already ignoring science and medicine in declaring an embryo or fetus a person, I wouldn’t be surprised if they ignored how birth control pills work. I expect them to be banned as well.
Posted by MarshallDog | September 19, 2008, 10:53 amI am one of those new, blue Colorado residents, as are many of my coworkers. Hopefully we can help.
Though birth control pills work by preventing ovulation, they do have secondary effects that would make it difficult for a fertilized egg to implant were one to “get through.” Though experts say this is highly unlikely, that hasn’t stopped pro-life groups from seizing on the fact that birth control pills would stop implantation. Plus, there are other birth control methods, such as IUDs, that do work primarily by preventing implantation. These would certainly be outlawed if this were to pass.
Posted by Kris | September 19, 2008, 11:33 amThere is no credible link between abortion and breast cancer, yet there are laws that require doctors to inform women of such links. So I doubt the lack of a casual link between the Pill and implantation will stop these people from claiming one. This is about an agenda, not about reality.
Posted by Narc | September 19, 2008, 11:44 amIf personhood begins at conception, wouldn’t that make a miscarriage possible manslaughter?
Wouldn’t you then need to investigate every single “miscarriage” to see if the woman caused it in some way? Would smoking or drinking while pregnant constitute aggravated assault?
Since up to 25% of all pregnancies may end in spontaneous abortion, often before the woman even realizes, should we monitor all women to know when and why a pregnancy ends?
If they pass this, I predict a quick reversal and severe backlash against the radicals pushing it.
Posted by badkungfu | September 19, 2008, 12:37 pmThis is clearly the agenda of ‘religious’ right lunatics. Remember the sleazy James Dobson has his cult headquarters in Colorado. Maybe they can adopt Monty Python’s “Every Sperm is Sacred” as the official state song!
Posted by j davis | September 19, 2008, 1:00 pm“Maybe they can adopt Monty Python’s “Every Sperm is Sacred” as the official state song!”
Masturbation is sinful not just because it involves pleasure of the flesh, but also because it wastes precious, precious sperm, which is life. What’s that you say? Sperm isn’t exactly alive and has only half the necessary genetic material? Well then, life surely must start at the next possible step and not a moment later!
They just update their standards to the next-most conservative option each time science proves them wrong (well, sometimes they update).
And I wanted to mention that I certainly appreciate the juxtaposition of topics here – gays aren’t protected, but unborn fetuses (feti?) are. What, then, if the fetus happens to be gay?
Posted by Kris | September 19, 2008, 1:51 pmAmes, great post, but I would like to clarify exactly what is happening in Colorado right now. As Kris can attest to, Colorado is in a state of complete upheaval. James Dobson and the zillions of churches in Colorado Springs (which is known as the Evangelical Vatican) are always attempting to push the state further and further right. However, it’s usually stopped long before this can happen.
Another factor: Colorado is growing by leaps and bounds from the recently finished Denver Tech Center, which has created thousands of computer related jobs. Computer techs tend to be a little more liberal, so things are starting to shift. Last election, we voted in a Democrat governor to replace the Republican, and send more Democrats to congress; however Bush still won the state. Since then, however, more techs have come in and more and more young people are getting involved in politics. Also, many people see this as just another version of the South Dakota debacle. This is obviously an attempt to prevent abortion (likely brought upon us because of the new Planned Parenthood) and people see it as such. Remember the end result in SD?
On a separate note altogether, should the initiative pass, it won’t last its first court challenge.
Posted by Charles | September 19, 2008, 4:50 pmVery true – good to see you around Charles :). The Economist article in particular goes over the deep political divide between Colorado’s cities and rural areas…. Proposal 2 (in Romer) is a particularly scary example… Cities pass anti-discrimination laws, rural areas can’t even stand it… disturbing.
Posted by Ames | September 20, 2008, 10:23 amAmes, just wondering if you could answer #3.
Posted by Progressive Conservative | September 20, 2008, 8:38 pmI can’t imagine what you’re getting at. Weight is not a suspect classification so it’s appropriately judged under the rational basis test of the equal protection clause; the legislature would be justified in discriminating on the basis of weight except where the classification bears no rational relation to the purpose served.
Posted by Ames | September 23, 2008, 6:50 pmWhat I’m getting at is that all of these protections being offered to various groups have a logical point where they go too far.
I think it’s well within the rights of CO lawmakers to decide that sexual preferences are not the basis for special rights.
Posted by Progressive Conservative | September 23, 2008, 7:12 pmSure, they have a logical point where they go too far. But a discrete & insular minority, discriminated against because of immutable traits going to deep personal identity, presents the paradigmatic case of invidious discrimination. If the legislature ought to be free of “all of these protections,” the last ones that it ought to lose are those covering people like gay men & women.
And keep in mind that deciding against protecting gay men and women is NOT what the referendum item did. Rather, it mooted several cities’ individual decisions, which affected no-one but those cities, to affirmatively protect gay rights. These protections offered nothing more than a “psychic injury” to the rest of the Colorado population, and still they felt impelled to slap it down. So, too much regulation may be bad, but (1) regulating to protect insular minority groups and (2) a regulation that doesn’t affect you are not examples of that.
Posted by Ames | September 23, 2008, 7:20 pm