Colorado Ruling Is Boost To Gay-Rights Advocates

Decision against anti-gay-rights law means that the issue will continue to be sharply debated in political and legal arenas

THE decision this week by a Colorado court that upheld an injunction against a highly visible and volatile anti-gay-rights measure gives a legal and political boost to the homosexual movement nationwide.

But the victory for gays was tempered by President Clinton's middle-of-the-road move on lifting the ban on homosexuals in the military, which gay-rights activists view as a retreat.

At the same time, the Colorado ruling is likely to do little to stifle anti-gay-rights drives, similar to the one launched here, that are now going on in at least a dozen states.

The result is that gay rights, which many expect to be a predominant issue of the 1990s, will continue to reverberate in both the judicial and political spheres here and across the country.

"It remains a very polarizing issue," says Floyd Ciruli, a Denver-based pollster. Supreme Court appeal

Already, the ruling Monday by the Colorado Supreme Court blocking implementation of Amendment 2, which would ban anti-discrimination laws for homosexuals, is headed for appeal to the United States Supreme Court. The measure was approved by Colorado voters last November.

Colorado Attorney General Gale Norton said this week the state will file an appeal with the US Supreme Court by Sept. 15. It is hoping for a decision on whether the tribunal will hear the case by year's end.

In its 6-1 decision, the Colorado high court ruled that Amendment 2 violates a fundamental right of gays and lesbians to participate equally in the political process. The decision left intact a temporary injunction issued in January by Denver District Judge Jeff Bayless.

Despite the plans for a quick appeal, there is no guarantee the Supreme Court will hear the case. A trial to determine the constitutionality of Amendment 2 is scheduled to be heard before Judge Bayless in October. The Supreme Court rarely reviews cases until litigation in lower courts is complete.

Instead, says Gene Nichol, dean of the University of Colorado Law School, the court would be more likely to take it up after the October trial and any subsequent appeals through the state system.

The state argues, though, that the Colorado ruling goes far beyond discussing the rights of homosexuals and "sets a sweeping new standard." Thus the high court might be willing to review the case now. It will ask Judge Bayless to postpone his trial pending a decision by the Supreme Court.

The outcome of that trial now seems a foregone conclusion. In its ruling, the Colorado high court said the state must show a compelling interest or justification for the measure. Legal scholars say that would be virtually impossible to do.

Until the law is clear, the ardor of groups in other states pushing initiatives like Amendment 2 is not likely to diminish. Organizers of anti-gay-rights campaigns in Florida, Oregon, and other states dismiss the Colorado ruling as irrelevant to their cause. Some believe the Supreme Court will overturn the decision. Others say the wording of their ballot measures is sufficiently different to escape a court injunction. Other state campaigns

Campaigns are also planned or underway in Alaska, Idaho, Washington, Ohio, Missouri, Arizona, and New Mexico. Where the ruling here in Colorado might hold implications is in states that have patterned their proposed laws explicitly after Colorado's, such as Michigan.

"I think it is going to be very hard to frame this thing in a way that isn't unconstitutional," says Linda Fowler, the director of the Colorado Alliance to Restore Equality, which opposes the measure.

Amendment 2 supporters are confident they will eventually triumph in the courts, but, if not, they are prepared to go back to the voters with a rewritten measure.

"We'd come back with something that would achieve our objective," says Will Perkins, a Colorado Springs auto dealer and the chairman of Colorado for Family Values, which sponsored Amendment 2.

How well another measure might do is uncertain. Amendment 2 was approved in November on a vote of 814,000 to 710,000. Surveys taken since then show few voters have changed their feelings. Colorado voting

"There is no reason to assume public opinion has changed much," says Mr. Ciruli, whose last survey in April showed the measure winning 52 percent to 48 percent.

A nationwide boycott of the state by gay-rights supporters, including some Hollywood celebrities, continues despite the court ruling.

The Denver Metro Convention and Visitors Bureau blames the boycott for at least 31 canceled conventions worth an estimated $38 million to local business. Some economists, though, say the protest has done little to hurt the state's $6 billion tourism industry.

Among those sure to be buoyed by this week's ruling are members of the state's political establishment who have opposed Amendment 2 and see the court's decision as a vindication.

Rejection of the amendment by the courts would preclude them from having to come up with an alternative initiative for the ballot box, something liberal and moderate elements have had difficulty agreeing on.

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