Romer v. Evans - Oral Argument

Argument of Timothy M. Tymkovich

Chief Justice Rehnquist: We'll hear argument next in Number 94 1039, Roy Romer v. Richard G. Evans.

Mr. Tymkovich.

Mr. Tymkovich: Mr. Chief Justice and may it please the Court--

This case involves a challenge to the authority of a State to allocate certain law making power among its State and local governments.

Colorado's Amendment 2 reserves to the State the decision of whether to extend special protections under State law on the basis of homosexual or bisexual conduct or orientation.

The sole question here is whether in this facial challenge that statewide reservation of authority should be nullified under this Court's prior holdings in James v. Valtierra and Hunter v. Erickson.

That question can be authoritatively resolved for two core reasons.

First, the logic and holding of James is indistinguishable and controls here.

Secondly, the rationality of the substantive policy judgment that has so far motivated Congress and other States in deciding not to extend title VII protections or other... to homosexuals and bisexuals similarly supports the decision of Colorado to reserve that question to itself on a statewide basis.

Justice Kennedy: Well, Mr. Tymkovich--

--It may be, counsel, that we have to reach that question, but it seems to me there is a predicate or a preliminary matter that we ought to discuss at some point during your oral argument.

Usually when we have an equal protection question we measure the objective of the legislature against the class that is adopted, against the statutory classification.

Here, the classification seems to be adopted for its own sake.

I've never seen a case like this.

Is there any precedent that you can cite to the Court where we've upheld a law such as this?

Mr. Tymkovich: Your Honor, in James v. Valtierra the Court was presented with a question involving a State constitutional amendment that also identified a classification... in that case, low income persons... and in analyzing the question there, the Court fundamentally looked at whether Hunter v. Erickson should extend beyond the specific racial context in which it was decided.

Justice Kennedy: But the whole point in James was that we knew that it was low income housing, and we could measure the need, the importance, the objectives of the legislature to control low cost housing against the classification that was adopted.

Here, the classification is just adopted for its own sake, with reference to all purposes of the law, so James doesn't work.

Mr. Tymkovich: The classification in James did involve a reference to a specific subset of persons, an identifiable group under the theory of the Colorado supreme court.

Justice Kennedy: I know it adopted a theory of a group, but it was with reference to a specific legislative objective... low cost housing.

Here, the classification is adopted to fence out, in the Colorado supreme court's words, the class for all purposes, and I've never seen a statute like that.

Mr. Tymkovich: Your Honor, the objective here was to resolve an issue of whether or not to extend special protections to homosexuals and bisexuals, so the issue resolved here--

Justice O'Connor: Well, Mr. Tymkovich, the language of the amendment I guess has never been actually interpreted by the Colorado courts.

Mr. Tymkovich: --The Colorado--

Justice O'Connor: Has it been construed or interpreted as yet, in your view?

Mr. Tymkovich: --Your Honor, this is a facial challenge, and the provision was enjoined before it ever went into effect.

Justice O'Connor: Right.

Mr. Tymkovich: For bases of this appeal, the Colorado court did make an interpretation that at least to the extent that it preempted local laws and State provisions, that's all the farther it went.

Justice O'Connor: Well, does it mean that homosexuals are not covered by Colorado's laws of general applicability?

Mr. Tymkovich: No, it does not.

In the--

Justice O'Connor: How do we know that?

I mean, the literal language would indicate that, for example, a public library could refuse to allow books to be borrowed by homosexuals and there would be no relief from that, apparently.

Mr. Tymkovich: --There are a couple of reasons.

First, in the second opinion of the Colorado supreme court, what I'll call Evans 2, the Colorado supreme court did, in footnote 9 of that opinion, make reference to some general laws of general applicability and found that those would not be displaced by Amendment 2.

Secondly, the--

Justice O'Connor: Does it displace courts in Colorado?

Can a court hear a 1983 case in Colorado--

Mr. Tymkovich: --Absolutely.

Justice O'Connor: --dealing with discrimination--

Mr. Tymkovich: Yes, it may.

There--

Justice O'Connor: --if there's a homosexual plaintiff?

Mr. Tymkovich: --It absolutely changes no provisions under Federal law in access to the court or vindication of one's equal protection rights, nor does it affect the State--

Justice O'Connor: Well, how do we know that?

I mean, I don't read anything in the opinion that tells me what the thing means.

Mr. Tymkovich: --The construction that we have offered is well supported by the legislative history and the intent of the proponents.

We think that the law clearly on its face refers to State enactments and State policies and does not displace any Federal law or policy.

The ballot analysis which we presented in our appendix to the petition makes it clear that this was not intended to extend beyond State and local laws, so it's our view that under the Supremacy Clause as well as under a plain interpretation of the amendment, that Federal law would not be disrupted.

Moreover--

Justice Ginsburg: Mr. Tymkovich, even focusing on State law alone, Federal law is of course supreme.

Mr. Tymkovich: --Yes.

Justice Ginsburg: And as Justice Kennedy pointed out, James v. Valtierra dealt with one issue, low cost housing.

There were dozens of other ways in which to improve the status of the poor, to fight against the blight of poverty.

But here, it's everything... thou shalt not have access to the ordinary legislative process for anything that will improve the condition of this particular group... and I would like to know whether in all of U.S. history there has been any legislation like this that earmarks a group and says, you will not be able to appeal to your State legislature to improve your status.

You will need a constitutional change to do that.

Mr. Tymkovich: Your Honor, it's not unprecedented in the sense that it's a preemptive law.

It is unusual to the extent that two strands of the law come together, but the Court's cases have made it clear that it's appropriate to withdraw authority over certain issues from a local level to a higher level of State government.

Justice Scalia: Mr. Tymkovich, what about laws prohibiting bigamy, or prohibiting homosexuality, or homosexual conduct?

Incidentally, how do you interpret the bisexual orientation language, homosexual, lesbian, or bisexual orientation?

Does that require any conduct, or is it just a disposition?

Mr. Tymkovich: It's unclear from this text.

However, the reason that that language is in Amendment 2 is because this was a plain response to certain laws that had been enacted by State and local government that used the term bisexual, but it could include either conduct or orientation.

Again, it's unclear how you determine--

Justice Scalia: I want to know what you mean by... what is meant by... if all orientation means is someone who engages in homosexual, lesbian, or bisexual acts, then you have plenty of precedent in response to your question, namely State laws that absolutely criminalize such activity... bigamy, homosexuality--

Mr. Tymkovich: --That's right, the--

Justice Ginsburg: --Colorado has no law that prohibits consensual homosexual conduct.

Mr. Tymkovich: --No.

Colorado repealed its sodomy law in 1972, but to answer--

Unknown Speaker: Well--

Mr. Tymkovich: --Justice Scalia's question, it is unclear whether conduct defines the class.

Many courts have so held in looking at the issue of a classification involving--

Unknown Speaker: --Are you suggesting--

Justice Scalia: --You have no position on it?

You have no position on it?

Mr. Tymkovich: --Yes.

We believe that conduct is the best indicator of--

Justice Souter: Well, is it the sole indicator?

Are you representing to this Court that Colorado's position is that the class defining characteristic is conduct as opposed to preference or proclivity or whatnot?

Mr. Tymkovich: --No, Your Honor, because that was immaterial to the litigation below.

There was an attempt by the respondents to prove a suspect class--

Justice Souter: Well then we have to do one of two things.

We have to assume that orientation means something more than conduct, or if there were a serious question, I suppose we would have to send it back and ask the courts of Colorado to tell us, but is there a serious question?

Mr. Tymkovich: --I don't think that there's a serious question that--

Justice Souter: So that orientation means something more than conduct, and we have to assume that in ruling on this challenge, don't we?

Mr. Tymkovich: --I think that that doesn't change the legal position of the State with respect to this classification.

Justice Souter: May I go back to one point that you have made, and you've made it more than once about the... I guess about the legal position of the State.

You've referred to the issue as the permissibility of withdrawing subject matter from political consideration at a certain level.

You said it has been reserved for a higher level of political action.

It seems to me that there are two things wrong with that characterization.

One of them has already been brought up, and that is, this is not merely a reservation for this particular subject to be dealt with, for example, by statewide referendum.

It is in fact a provision that no law may be made addressing, or addressing for protective purposes this kind of discrimination.

The second thing that seems to me inaccurate about the characterization you're giving us is that this is not merely a reservation of a subject matter.

That is not the subject of the claim.

The claim is that there is a discrimination in the reservation of the subject matter, or a discrimination in the provision for eligibility, or exercise of legislative power.

It seems to me that as you characterize it, it would sound like a due process challenge, but in fact it's an equal protection challenge, because there's a discrimination involved.

Isn't that correct?

Mr. Tymkovich: Your Honor, there is a classification involved, but there is no invidious discrimination.

All the fact that the law--

Justice Souter: What does invidious mean?

Mr. Tymkovich: --I think it means an arbitrary or irrational classification, and that is not the case here.

I think we've shown that there are reasons for the classification.

Justice Souter: But in any case, you recognize that this is not the same problem that might be raised if a certain subject matter, e.g., discrimination, were reserved for legislative action at the State level rather than local level.

This is a different problem, isn't it?

Mr. Tymkovich: I think it's an equal protection problem, but the question is, does it impinge on a suspect class here--

Justice Souter: Right, but it's--

Mr. Tymkovich: --or has there been some type of fundamental--

Justice Souter: --a different problem from a mere reservation of a broad spectrum of action for political action at one level rather than another.

It's a different problem from that, is it not?

Mr. Tymkovich: --No, Your Honor, because of the way the lower court has--

Justice Souter: Well, are you saying... I'm sorry.

Mr. Tymkovich: --has characterized the fundamental right here.

Justice Souter: Well, are you saying then... maybe this is what you're saying, that if the equal protection challenge is in fact recognized or vindicated here, that there is no way to prevent this from in effect ballooning into a due process challenge, that if they win this, then a different kind of claim will also succeed, i.e., a claim that a certain subject matter, discrimination or not, must be dealt with for purposes of Federal law at a certain level of government?

Is that your argument?

Mr. Tymkovich: No, Your Honor.

We don't think--

Justice Souter: It's not a slippery slope argument.

You're not saying we go from... if an equal protection challenge wins here, a due process challenge necessarily wins too.

You're not saying that.

Mr. Tymkovich: --There's been no due process challenge in this case--

Justice Souter: But that's not what you're arguing.

Mr. Tymkovich: --and there is--

Justice Souter: But that's not what you're arguing, is that--

Mr. Tymkovich: --That's correct.

There is a slippery--

Justice Ginsburg: --But you said the ban extends to State legislation as well as to local legislation here.

It's not a question of who can do it, but the State itself can't do it through the ordinary legislative process.

It will take a constitutional change.

Mr. Tymkovich: --Well, the initiative is the ordinary political process in our State.

We've had many repeals in other substantive matters on our statewide ballot.

We had four on the... four repeal measures on the ballot the same year that Amendment 2 was enacted.

Justice Ginsburg: Mr. Tymkovich, I was trying to think of something comparable to this, and what occurred to me is that this political means of going at the local level first is familiar in American politics.

In fact, it was the way that the suffragists worked.

When they were unable to achieve the vote statewide, they did it on a cities first approach, and I take it from what you are arguing that if there had been a referendum that said no local ordinance can give women the vote, that that would have been constitutional.

Mr. Tymkovich: No, Your Honor.

I think that that--

Justice Ginsburg: What's the difference?

Mr. Tymkovich: --classification would be analyzed under this Court's equal protection jurisprudence on a suspect--

Unknown Speaker: Well, cast your mind back to the days before the Nineteenth Amendment.

[Laughter]

Mr. Tymkovich: --I think the Court would apply the traditional equal protection analysis and--

Justice Ginsburg: And what would have happened?

Mr. Tymkovich: --They would have determined whether or not there was a fundamental right to vote that had been impinged on or was--

Justice Ginsburg: But there was no right to vote for women.

Mr. Tymkovich: --Right, or under the Fourteenth Amendment, or whether women were a suspect class entitled to some heightened scrutiny in the circumstances.

Justice Ginsburg: And if they weren't?

Mr. Tymkovich: If they weren't, the Court would--

Justice Ginsburg: Then it would have been constitutional.

Mr. Tymkovich: --enact a rational basis type of review.

Justice Ginsburg: Yes, and that's what you're urging here.

Mr. Tymkovich: Yes.

We're urging for this classification, that the Court engage in a rational basis type of review.

No court has found homosexual orientation or conduct to be a suspect classification.

Therefore, the traditional equal protection model should be applied in this case.

Chief Justice Rehnquist: Mr. Tymkovich, what is now required under Colorado law, assuming that the constitutionality of this is upheld, in order to change that provision?

It would be what, a statewide referendum?

Mr. Tymkovich: That's right, Your Honor.

There would be an initiative, or a referred measure from our State legislature, and it would be placed on the ballot in the same fashion that the Amendment 2 was placed on the ballot in the first instance, so there would be that mere opportunity for the opponents of Amendment 2, just like there were for the proponents.

And to further answer Justice Ginsburg's question, what the respondents here are saying is that those who oppose certain type of special protections here cannot get their policy preference vindicated through the legislative process unless they are able to successfully preempt or repeal such laws at the local level.

Justice Scalia: When you talk about special protection, this brings me back to an earlier question about discrimination in libraries.

What... how do you interpret the term, minority status quota preferences protected status?

You mean... what does that mean?

Mr. Tymkovich: Protected status would be a particular affirmative positive piece of legislation that granted some type of protection--

Justice Scalia: Special protection beyond what--

Mr. Tymkovich: --Beyond the Fourteenth Amendment baseline.

Justice Scalia: --So why wouldn't that have been your answer to the library hypothetical that was produced earlier?

Any... no homosexual can be treated differently from other people.

He simply cannot be given special protection by reason of that status.

Mr. Tymkovich: That's right.

Amendment 2 is simply a Fourteenth Amendment--

Justice Stevens: May I ask how that works in the public accommodation area?

If a hotel or a restaurant... at common law you get some kind of an innkeeper's duty to take everybody in.

Could an innkeeper refuse accommodations to a homosexual who was not engaging in any homosexual conduct but had admitted that he had that type of tendency?

Could an innkeeper under... in Colorado just say, I'm sorry, we don't rent rooms to people like you?

Mr. Tymkovich: --To the extent there was some tort law of general applicability in those circumstances about innkeeper's duty, we don't think that Amendment 2 would knock that out.

To the extent--

Justice Stevens: So you would say the public accommodations protection is still available to homosexuals.

Mr. Tymkovich: --Amendment 2 would carve out any special protections in the public accommodation area that had been extended to homosexuals--

Justice Stevens: What would the rule be in Colorado?

How do you understand the law there?

Now, would a homosexual have a right to be served in a restaurant?

Mr. Tymkovich: --A homosexual would not have any claim of discrimination or special liability theory in a private setting after Amendment 2.

Justice Stevens: Even in the public accommodation area.

Mr. Tymkovich: Unless the Court... and again, we haven't had a full construction of Amendment 2 yet from our State courts.

Unless a State court construed the innkeeper's duty to be a law of general applicability to--

Justice Stevens: Do you know what the law of Colorado is on that point?

Mr. Tymkovich: --I do not.

I have not encountered that, Your Honor.

Justice Stevens: So we don't know whether homosexuals have a right to be served or not.

Mr. Tymkovich: That will be a question for the State courts interpreting Amendment 2.

Justice Stevens: But if they do have a right to be served, would that be an affirmative right, then, as in the distinction Justice Scalia was drawing, or would that be just being treated like everybody else?

Mr. Tymkovich: I think it would be treated just like any other characteristic or classification that has not gotten the special benefits of the civil rights law.

Justice Stevens: And being... having the right not to be refused a job or to rent on that ground is a special right.

Mr. Tymkovich: Unless--

Unknown Speaker: It's not being just like everybody else.

Mr. Tymkovich: --That would bring it into the range of private choice and private arrangements, unless there is some particular law that would disable that ability by private--

Justice Stevens: But there can't be such a particular law in Colorado.

I don't understand.

Mr. Tymkovich: --Unless Amendment 2 is repealed, or there is some general provision that might apply.

Justice Stevens: And one last question.

What is the rational basis for this statute?

Mr. Tymkovich: The purpose of this statute was to preempt State and local laws that extended special protections.

It was a response to political activism by a political group that wanted to seek special affirmative protections under the law.

Justice Stevens: Well, it went farther, because there were political groups that had already... as I understand it, Aspen had a protective statute of some kind.

Mr. Tymkovich: That's correct, Your Honor.

Justice Stevens: And it's... what is the rational basis for the people outside of Aspen telling the people in Aspen they cannot have that statute?

Mr. Tymkovich: Amendment 2 covers a range of circumstances, not just the preemption of the local ordinances, but it did do that.

It also served as a--

Justice Stevens: What is the rational basis for the people outside of Aspen telling the people in Aspen they cannot have this nondiscriminatory provision?

Mr. Tymkovich: --The rationale is any law of general preemption that wants to make a substantive decision, and the people here, the rational basis for that substantive decision in our view was a political response to what the people might have perceived as laws going too far or being too intrusive.

What this does is--

Chief Justice Rehnquist: Well, the State of Virginia has a very broad State preemption doctrine.

Local governments do not have the power in Virginia that they do in many other places.

I suppose the rational basis for that is just that the people generally would prefer to have the rules set by the State at large rather than by local governments.

Mr. Tymkovich: --That's correct, Your Honor, and there's nothing wrong, especially in this area of civil rights and statewide protections, in making that an issue of statewide concern, and that's simply what Colorado was--

Justice Souter: But Mr. Tymkovich, doesn't that go back to the problem I tried to raise earlier?

You're saying that as a general matter certain laws can be determined as subject to action at one political level and not at others, but isn't the question here is, what is the rational basis for determining that affirmative protection for homosexuals cannot be dealt with at a certain level, whereas affirmative protection for the aged, for the handicapped, and so on, can be?

Isn't that what the rational basis has to address, and how does your answer to Justice Stevens address it?

Mr. Tymkovich: --Your Honor, that's a quintessential political judgment on how you provide relative protection to relative groups.

Justice Souter: Well, it's a judgment that is made politically, but that doesn't state a rational basis.

I mean, if we were saying... if we were asking you this question, why should discrimination be dealt with in Colorado at the State level rather than the local level, or at the constitutional level, or whatnot, is that a denial of any constitutional right, and you said, no, that's a political choice.

Colorado... the people of Colorado can decide what level to deal with this problem.

That would, it seems to me, answer a substantive due process challenge, but that's not the question that's being asked here.

The question that's being asked here is, why is discrimination against one group dealt with under State law differently from discrimination against other groups, and your rational basis answer, it seems to me, has got to go to a justification for the classification.

It isn't enough simply to say, oh, well, that's what politics decided.

Mr. Tymkovich: Your Honor, that's not my response.

I think there are some particular discrete reasons also, and this is to answer Justice Ginsburg's question also.

This issue was seen as particularly desirable for a statewide uniform determination.

There's a question about the desirability of each local jurisdiction dealing with this issue, which I think raises some very fundamental and sensitive cultural, moral, political concerns for our State.

Justice Souter: Well, it does, but are you getting any further than simply the answer, that's what they wanted, that's the result of the political process?

I don't see in your answer the kind of justification independent merely of majority will, which an equal protection classification question calls for.

Mr. Tymkovich: Your Honor, in addition to statewide uniformity, we've also advanced some reasons that show how Amendment 2 advances other liberty interests, and there are competing liberty interests that are, in fact--

Justice Souter: What's the liberty interest that it advances?

Mr. Tymkovich: --It promotes a zone of autonomy.

The State supreme court and the trial court found that religious liberty interests were advanced here, associational liberties were advanced here, and the Court simply made a determination below that they were not narrowly tailored, so--

Justice Scalia: Mr. Tymkovich, if this is an ordinary equal protection challenge and there's no heightened scrutiny, isn't it an adequate answer to Justice Souter's question to say this is the only area in which we've had a problem?

If localities started passing special laws giving favored treatment to people with blue eyes, we might have a statewide referendum on that as well?

Isn't one step at a time a normal response to equal protection?

Mr. Tymkovich: --That's exactly what happened here, and the court--

Justice Souter: Well, what is the problem?

I mean, what is the problem that you supposedly have been having?

Mr. Tymkovich: --I think the problem that the voters saw, they were presented with an opportunity to preempt and make a decision at a statewide level for laws that raise particular and sensitive liberty concerns.

Justice Scalia: State... State subdivisions giving preferences which the majority of the people in the State did not think desirable for social reasons, isn't that the problem that was seen?

Mr. Tymkovich: That's right.

Justice Scalia: And if they should start giving preferences for some other reason that the majority of the State did not consider desirable... let's say, bigamy, special preferences to bigamist couples, there would be a law on that subject as well.

Isn't your answer, this is the only area where the people apparently saw a problem, which is enough for equal protection?

Mr. Tymkovich: It is, and this is an area where there have been piecemeal additions of special protections.

We've had--

Justice Stevens: What is the special preference at stake here?

What is the special preference that a homosexual gets?

Mr. Tymkovich: --I think it creates a cause of action on the basis of the characteristic that's not available to the general population at large.

Homosexuals are entitled to every other protection of the civil rights laws, the criminal laws, the--

Justice Ginsburg: You've just said that in... apart from whatever the common law might be, with this ordinance on... with this amendment on the books, a restaurant owner can say, sorry, I don't want to serve gay people, and what about... take a scarce resource.

Think of a public hospital that has a kidney dialysis machine, and the hospital says, we have to limit this, and one group that we're going to keep out, we're not going to have any gay, any lesbian person use this... use this facility.

Now, there would be, under this amendment, what recourse?

Mr. Tymkovich: --Well, first of all there's Federal law that may preempt, and secondly, there is an opportunity, as we construe Amendment 2, for the State to enact a policy that would treat all citizens the same in those circumstances rather than carve out a special--

Justice Ginsburg: But let's just have the law as it is right now.

There's a scarce resource.

There's a basis... there has to be some rules about who can use it and who can't.

That's the rule that the public hospital sets.

Under this amendment, that's okay, right?

Mr. Tymkovich: --In this facial challenge, we don't know how the court is going to construe other potentially applicable State laws.

Justice Breyer: How... I do have one question on that point which I'd like to ask.

The statute says, no agency shall adopt or enforce any policy whereby homosexual conduct, or whatever, orientation, shall be the basis of any claim of discrimination.

So if a police department says, there's been a lot of gay bashing.

It's our policy.

Stop it.

If the head librarian says, you're making gays sit... you're being mean to them and not letting them in.

Stop it.

If the health department says the same thing, if the insurance commissioner says the same thing, doesn't this word policy cover that, and if it doesn't cover it, what is it about?

Mr. Tymkovich: The government agencies that you've indicated could enact a general nonbias policy or require--

Justice Breyer: No, no.

What they say is, they put up regulation 14.2.

There's been gay bashing here.

Stop it.

They put it more politely, but that's what they mean.

Mr. Tymkovich: --Amendment 2 would not prohibit that.

Justice Breyer: It would not prohibit that.

Mr. Tymkovich: It would not prohibit--

Justice Breyer: Then what does the word policy prohibit?

Mr. Tymkovich: --Policy prohibits the enactment of some special entitlement--

Justice Breyer: No, but give me an example.

What could it possibly be?

What is policy, if it isn't the policy of the department saying, do not discriminate against gays?

Justice Scalia: Mr. Tymkovich, I assume in your State you're not allowed to bash nongays either, are you?

Mr. Tymkovich: --No.

The criminal law is--

Justice Scalia: So prohibiting the bashing of gays would not be a special protection, would it?

It would just be enforcing the general law.

Mr. Tymkovich: --Yes, and Amendment 2 does nothing to restrict the applicable--

Justice Scalia: Isn't that the response to Justice--

--But does it--

Mr. Tymkovich: --That's right.

Justice Breyer: --Fine.

[Laughter]

But does it prevent... what... give me an example of what it prevents.

Does it prevent the police department, the librarian, the dozens of State agencies from putting up a piece of paper that says, policy it is our policy in this department not to discriminate against gays.

You're saying it doesn't prohibit that.

Then what does it prohibit?

Mr. Tymkovich: It prohibits any type of special protection or a liability claim that somebody might have under that policy.

Justice Kennedy: It seems to me that your answer is inconsistent to what the supreme court of Colorado said.

It said health insurance discrimination regulations are void.

Mr. Tymkovich: The health--

Justice Kennedy: That's... based on sexual orientation.

Mr. Tymkovich: --The health... that regulation did carve out what would be construed as special protection--

Justice Kennedy: That's inconsistent with the answer you gave to Justice Breyer.

Mr. Tymkovich: --I don't think so, Your Honor, because I thought he was talking about a law of general applica--

Justice Breyer: No.

Look, suppose Boulder, Colorado says, it is our policy in Boulder not to discriminate against gays.

They call it Boulder Regulation 14.2.

Is that forbidden by this?

Mr. Tymkovich: --Yes, it would to the extent--

Justice Breyer: All right.

Now, suppose the police department does exactly the same thing.

Is that forbidden by this?

Mr. Tymkovich: --The police department would be governed by a rule of general applica--

Justice Breyer: So the police department--

Mr. Tymkovich: --They would not be able to--

Justice Breyer: --I don't understand.

So is the city of Colorado.

They're all governed by, they can't discriminate arbitrarily.

My point is, suppose that the police department says exactly the same thing.

You say that's not forbidden.

Mr. Tymkovich: --That's correct.

Justice Breyer: Okay.

Mr. Tymkovich: Your Honor, may I reserve the balance of my time for rebuttal?

Argument of Jean E. Dubofsky

Chief Justice Rehnquist: Yes.

Thank you, Mr. Tymkovich.

Ms. Dubofsky, we'll hear from you.

Mr. Dubofsky: Mr. Chief Justice, and may it please the Court--

Let me begin with how Amendment 2 should be construed and then discuss how our legal theories relate to its unique combination of breadth and selectivity.

Amendment 2 is vertically broad in that it prohibits all levels of government in the State of Colorado from ever providing any opportunity for one to seek protection from discrimination on the basis of gay orientation.

Chief Justice Rehnquist: Well, when you say all levels of government in Colorado, Ms. Dubofsky, you don't include the people by referendum, I take it, or the people by initiative.

Mr. Dubofsky: No, we do not.

Justice Kennedy: And I have one more very specific question.

What about the courts?

Can the courts interpret a statute that prohibits unreasonable denial of public accommodations to include gays by a specific judgment that--

Mr. Dubofsky: The--

Justice Kennedy: --deals with the rights of gay people?

Mr. Dubofsky: --The State has conceded that Amendment 2 is unconstitutional to the degree it would prohibit such a claim based upon Federal law since 1983.

Justice Kennedy: No, no, no, I meant State courts interpreting State public accommodation laws.

Mr. Dubofsky: Our theory is that Amendment 2 on its face prohibits a State court from recognizing such a claim, but that particular interpretation of the amendment is not necessary for this Court to find that Amendment 2 is unconstitutional.

Justice Kennedy: Thank you, and that particular interpretation has not been given by the supreme court of Colorado.

Mr. Dubofsky: That's right.

Justice Kennedy: It has not.

Mr. Dubofsky: That's right.

The Colorado supreme court interpreted the amendment, and it said it was doing this as a minimum, because that was all that was necessary in order to find the amendment unconstitutional.

It interpreted the amendment to mean that State and local governments are barred from promulgating and enforcing rules that declare discrimination against gay people by both government and private actors to be arbitrary, so that would include Justice Breyer's general policy suggestion with respect to the police department.

Justice Breyer: What do we do about, counsel for the other side said, no, it doesn't forbid the police department from having a rule saying don't discriminate against gays.

It doesn't forbid any of these agencies from having such a rule.

Mr. Dubofsky: The Colorado supreme court interpretation of this amendment is authoritative for purposes of this argument, I believe, and the Colorado supreme court--

Justice Scalia: Where does it say that in the Colorado supreme court's opinion?

Mr. Dubofsky: --It says that on page B 3, D 24--

Chief Justice Rehnquist: Of the white appendix, or the--

Mr. Dubofsky: --Yes, in the white appendix.

B 3, D 24, and D 25.

Chief Justice Rehnquist: --D as in does?

Mr. Dubofsky: D as in David, or does, yes.

Chief Justice Rehnquist: David, yes.

Mr. Dubofsky: And the way in which the Colorado supreme court says that is by giving examples of the types of provisions that would be repealed by the amendment, or precluded from enactment in the future.

Justice Scalia: B 3?

What does it say on B 3 that says that?

Is it B--

--It... B 3... you said B as in--

Mr. Dubofsky: B as in boy.

Justice Scalia: --Boy.

It seems to me it says the effect, the ultimate effect is to prohibit any government entity from adopting similar or more protective statutes, regulations, or orders in the future.

Mr. Dubofsky: Yes, and it refers back to the first sentence.

It says, the immediate objective of Amendment 2 is at a minimum to repeal existing statutes, regulations, ordinances, and policies.

Then on pages--

Justice Scalia: Wait, that barred discrimination based on sexual orientation.

I assume that that means special provisions giving special protection--

Mr. Dubofsky: --Well--

Justice Scalia: --as opposed to a general law that says you have to, not just accept homosexuals, but all citizens have to be accommodated at hotels.

Mr. Dubofsky: --That's correct.

There are general laws that say--

Justice Scalia: As opposed to a special law that says a private homeowner who wants to rent a room... you know, the mom and a family that wants to do bed and breakfast cannot discriminate in the people it accepts.

Although it has no obligation to take the public at large, it can decide to take only Irishmen if it wants, but it cannot discriminate on the basis of homosexuality.

I thought that's the kind of thought the court is referring to here.

Mr. Dubofsky: --The Colorado supreme court is referring to?

Justice Scalia: Yes.

Mr. Dubofsky: No, I don't think so.

I think it's referring to the general ordinances that were preempted by Amendment 2, and in Colorado those general ordinances either have specific exceptions for exactly the type of example you gave, or they have never been enforced to have someone in the Mrs. Murphy's boardinghouse situation required to accept someone who does--

Justice Scalia: You mean no general laws can be applied to homosexuals now?

They can be bashed, they can be murdered, they... all sorts of things.

Is that what it means?

Mr. Dubofsky: --We think it can mean that, but we don't think the Colorado supreme court found it necessary to go that far in its interpretation--

Justice Scalia: I--

Mr. Dubofsky: --and we're not arguing that it needs to be interpreted that broadly in order to find Amendment 2 unconstitutional.

Justice Scalia: --I don't think the Colorado supreme court did interpret it that broadly.

I think they interpreted it to refer to special protections accorded to homosexuals and not to the public at large.

Mr. Dubofsky: I think we're having trouble a little bit with semantics.

One of the difficulties is the use of the words special protection in this case.

I don't think there is such a thing as special rights or special protections.

I think there's a right which everyone has to be free from arbitrary discrimination.

Justice Scalia: No, but if I go and ask a homeowner to take me in on bed and breakfast and the homeowner says, I don't like Italians, that's my tough luck, unless there's a law against it.

It's that person's house, and that person is entitled not to like Italians and not to rent rooms to Italians.

That's fine, unless there's a law against it, and you can have such a law prohibiting the rental of rooms, or refusal to rental on the basis of racial discrimination or on the basis of homosexuality, if you want to make that a category, and I think that this law says, no special protection on that basis.

Why isn't that a special protection, one that is not given to everyone?

Justice Breyer: At D 24 and D 25 there's some particular examples.

Wasn't that--

Mr. Dubofsky: That's right, D 24--

Justice Breyer: --Colleges, State colleges, the insurance example.

Mr. Dubofsky: --That's right.

That's right, and all of those particular laws say that there shall be no discrimination on the basis of sexual orientation.

They apply to everyone.

They're laws of general applicability.

Amendment 2 preempts those laws, or precludes or bars those laws only on the basis that they provide protection for people on the basis of gay sexual orientation.

Justice Scalia: Yes, but you... but they are laws that provide special protection for that particular category of person, which they don't provide to people at large.

You can refuse to hire someone because you don't like the way he combs his hair.

There's no law that says combing of hair is not a proper basis of discrimination.

If you don't like that, you can refuse to hire him.

Special protection is given by this law which they cite by reason of homosexual orientation or conduct.

Mr. Dubofsky: Well, in Colorado--

Justice Scalia: Is that not special?

Mr. Dubofsky: --In Colorado, there is a law which says one cannot be terminated from employment for any legal off duty conduct, and gives one the basis for a claim.

If your employer doesn't like the way you comb your hair, that was an improper reason for terminating your employment.

Justice Breyer: Does a State college... can a State university decide not to admit a student under generally applicable law because it doesn't like the way he combs his hair?

Mr. Dubofsky: That's a question I'm not sure I know the answer to, but I think--

Justice Breyer: I mean, can State universities discriminate arbitrarily?

Can State insurance commissioners discriminate arbitrarily?

I would assume not.

I mean--

Mr. Dubofsky: --I don't think they can discriminate arbitrarily, no.

They shouldn't be able to.

Justice Kennedy: --Let me put it to you this way.

Suppose there's a Colorado ordinance, or city ordinance which said you cannot bar people from public accommodations for any arbitrary or unreasonable reason.

Could a court in Colorado find that barring... after this amendment, could a court in Colorado find that it was unreasonable or arbitrary to bar a person from public accommodations by reason of sexual orientation?

Mr. Dubofsky: I think a court could find that, yes.

Justice Kennedy: Despite the provision under the Constitution that says no preferences should be given?

Mr. Dubofsky: Well, it depends upon whether the court is referring to more general equal protection law on a Federal level.

Justice Kennedy: No, no.

It's talking about interpreting a statute that says you cannot deny for an arbitrary or unreasonable... on the basis of an arbitrary unreasonable criterion.

Mr. Dubofsky: If that criteria in the particular case is because the person who was denied that benefit is a gay person, then I think under Amendment 2 the court would not be able to provide relief.

Now, we don't think that this Court needs to resolve that type of a specific issue, the application of Amendment 2, in order to find Amendment 2 unconstitutional.

Justice Ginsburg: But isn't the very purpose of this ordinance to say, it's not arbitrary to leave out of a catalog of protection against discrimination, it's not arbitrary to leave out homosexual, lesbian... persons of homosexual, lesbian, or bisexual orientation?

Mr. Dubofsky: Amendment 2 if interpreted at its broadest would authorize that type of discrimination.

Justice Souter: But even on a narrower interpretation, even for example if Amendment 2 didn't touch courts, wouldn't it be very difficult for the courts of Colorado to say that that was an irrational or an arbitrary basis for discrimination with Amendment 2 on the books, even if Amendment 2 was narrowly construed?

Mr. Dubofsky: Yes, it would be, I believe--

Unknown Speaker: Yes.

Mr. Dubofsky: --and we argue in our brief that Amendment 2 would prevent a court from providing a remedy in these circumstances.

We think it does on its face.

However, the Colorado supreme court--

Justice Souter: Because it refers to departments of the government.

Mr. Dubofsky: --Absolutely.

Justice Souter: Yes.

Mr. Dubofsky: But the Colorado supreme court didn't think it was necessary to go that far in order to find the amendment unconstitutional.

Justice O'Connor: Well, we really don't have a definitive interpretation, I guess, of how far this amendment would go.

I think the arguments and responses this morning are illustrative of the fact that we're not sure.

Mr. Dubofsky: I think we do have a definitive interpretation from the Colorado supreme court.

It's at pages D 25 and D 24, actually--

Justice O'Connor: Yes.

Mr. Dubofsky: --and that's where the Court--

Justice O'Connor: I looked at that, and I just thought that that wasn't definitive.

There are still questions about how far it would go and the extent to which it reaches courts, and so forth and so on.

Mr. Dubofsky: --One of the difficulties with this amendment is that you have no idea what type of general rule might be necessary in the future to prevent arbitrary discrimination against gay people.

Chief Justice Rehnquist: Well, isn't it your position, Ms. Dubofsky, that you can sustain the Colorado supreme court's decision overthrowing the statute by taking just what the Colorado supreme court said was the minimum meaning?

Mr. Dubofsky: Yes, that's correct.

Chief Justice Rehnquist: And so you don't have to get beyond that, in your view, in order to uphold your position.

Mr. Dubofsky: That's correct.

Justice Scalia: And this is a facial challenge.

Mr. Dubofsky: And this is a facial challenge, that's right.

Justice Scalia: Which means that you take the position that there are no applications in which the statute can be constitutional.

Mr. Dubofsky: Well, we would here because we think the minimal interpretation here is sufficient to find the amendment unconstitutional.

Justice Scalia: Which means there are no applications that would be constitutional.

Mr. Dubofsky: It doesn't necessarily mean that there are no applications that would be constitutional.

Justice Scalia: I think it does if it--

Mr. Dubofsky: It just means that those are irrelevant.

Justice Scalia: --Well, that's not what our case law involving facial challenges says.

If you wanted to wait for an as applied challenge, you might pick an unconstitutional situation and litigate that, but when you challenge it on your... on its face, you are saying that in all of its applications it is invalid.

Mr. Dubofsky: We're saying that the minimal interpretation that the Colorado supreme court gave to this in all of its applications is invalid.

Because there may be other types of applications of this amendment, we don't have to deal with those in this particular facial challenge because they're basically irrelevant.

Justice Ginsburg: Ms. Dubofsky, do I understand correctly that what you're saying about what the Colorado supreme court said, at a minimum this amendment immediately repeals all of the laws that are listed, and this group of people cannot be reinstated into this group of laws without a constitutional amendment, and that is what you say is unconstitutional--

Mr. Dubofsky: Or--

Justice Ginsburg: --under Federal equal protection?

Mr. Dubofsky: --Or any other laws of general prophylactic rules.

There's a difference between general prophylactic rules that prevent arbitrary discrimination such as the rules or statutes that are listed there, but that's not an exhaustive list, and the application or, you know, case by case determination of whether a particular denial of admission to a hotel, let's say, is covered by Amendment 2.

Justice Scalia: But these rules on 24 and 25 don't, as I understand them, prohibit arbitrary discrimination.

They prohibit discrimination just on particular grounds... race, sex, homosexual orientation, not how you comb your hair.

Mr. Dubofsky: No, they... it's not homosexual orientation, it's sexual orientation in general.

Justice Scalia: Ah.

Mr. Dubofsky: The laws that Amendment 2 deals with, all are laws that apply to everyone.

Amendment 2 only--

Justice Scalia: They do apply to everyone, but they only apply for certain reasons.

They are not laws that say, no arbitrary discrimination.

You can discriminate on very arbitrary bases, just not those particular bases listed.

Isn't that right?

Mr. Dubofsky: --That could be right.

It depends upon the circumstance.

But what I'm really trying to point out is that rules such as general... the Boulder ordinance, let's say, or the State insurance statute, presume that certain types of discrimination can be arbitrary.

They're general prophylactic rules.

Most of our civil rights laws in this country are effectively enforced by general prophylactic rules.

If we had to rely on an individual case by case enforcement, I don't think we'd have very much civil rights law enforcement.

Justice Breyer: Is there a principle in Colorado law, as in many laws... let me explain what I'm thinking... simply that if a private person can often act arbitrarily, often, and you tell that person that they can't discriminate against gays, you've given gays a special protection, all right, but governments by and large cannot act arbitrarily anyway.

Is there such a principle in Colorado law?

Mr. Dubofsky: Yes, there is.

Justice Breyer: Is there an administrative procedures act, for example, in Colorado?

Mr. Dubofsky: Yes.

There's generally a principle that government cannot act in an arbitrary fashion, that governmental services are available to everyone.

Justice Breyer: So that's why you say, or you think the Colorado supreme court is saying that this law or policy, if it means anything, means that Colorado cannot enforce that nonarbitrary principle anyway through rules and regulations.

Mr. Dubofsky: That's correct.

Justice Kennedy: Let me ask you, counsel, getting away from the wording in the provisions of this amendment, suppose that Colorado is concerned that one city has passed an ordinance giving preference to gays in employment hiring, and for any number of reasons the citizens of Colorado do not want that.

Some people say they want uniform laws because it's easier on employers.

Could the citizens of Colorado by referendum repeal that ordinance?

Mr. Dubofsky: Yes, they could repeal that ordinance.

Justice Kennedy: Without any constitutional objection?

Mr. Dubofsky: I think that's correct.

Justice Kennedy: Could they also provide that no such ordinance shall be adopted in the future?

Mr. Dubofsky: That's where it gets more difficult.

That's where our political participation argument comes to play, that by disabling a government from responding to a need for a particular benefit, the type of protection that... it depends upon the circumstances.

Justice Kennedy: Well, it would seem a little odd that there could be an ordinance enacted, then repealed by the referendum, then the ordinance is enacted again, then repealed... it just goes back and forth.

That seems a little odd.

Justice O'Connor: Ms. Dubofsky, could Colorado adopt a law that says any law in our State dealing with discrimination on any ground has to be passed at the State level?

Mr. Dubofsky: It could.

The problem--

Justice O'Connor: That would be valid.

Mr. Dubofsky: --Well, it may be.

There are other problems with dealing with civil rights protections and generally, but let's say they passed Amendment 2 but it didn't target gay people.

It simply said that no one can obtain any protection from discrimination, arbitrary discrimination for any reason.

That would not present the problem that Amendment 2 presents.

Amendment 2 is very selective.

It targets only one group of people, and that's where it encounters equal protection difficulties.

The State may be able to rearrange its process in any number of ways.

It just can't do it in a way that prevents one particular group.

Unknown Speaker: Ms.--

--But the... I'm sorry.

Go on.

No.

That's all right.

Justice Scalia: What group does it target?

I'm asking you the same question I asked the Attorney General.

How do you read the statute when it refers to sexual orientation, homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships?

Suppose a person who, let's say, has a tendency to homosexual conduct, but has never engaged in homosexual conduct, is that person... would an ordinance that relates to that person be covered by this?

Mr. Dubofsky: Yes.

The Colorado supreme court did interpret this initiative in this regard.

It said that homosexual conduct was subsumed within homosexual orientation, and--

Justice Scalia: Well, I'm sure it is, but what else?

I mean, that's the problem.

What else?

Mr. Dubofsky: --I don't understand what you mean by what else.

Justice Scalia: Beyond homosexual conduct.

Mr. Dubofsky: Well, heterosexual people are not identified exclusively by heterosexual conduct.

In the same fashion, homosexual people are not defined exclusively by homosexual conduct.

It doesn't mean that heterosexual people don't have a heterosexual orientation.

Homosexual people have a homosexual orientation.

Justice Souter: Well, are you saying, then, that orientation identifies a group beyond the identification of... by reference to specific homosexual conduct?

Mr. Dubofsky: Yes, it does.

Justice Souter: Okay.

So it's a broader category.

Mr. Dubofsky: Yes.

Justice Souter: Okay.

Mr. Dubofsky: And that's what the Colorado supreme court--

Justice Ginsburg: Both words are used... both words are used in the amendment.

Mr. Dubofsky: --Both words are used in the amendment, but the Colorado supreme court said that homosexual orientation is broader than homosexual conduct and that... the State had been arguing that, well, we'll just sever out the language, homosexual orientation, from Amendment 2.

The Colorado supreme court said no, you can't sever this amendment--

Justice Scalia: Well, what if I thought that there's a problem with orientation but not a problem with the others, do you win or lose on this facial challenge?

Mr. Dubofsky: --If you thought there was a problem with targeting people based on their homosexual--

Justice Scalia: --orientation, people who do not engage in conduct of the sort, but have a tendency in that direction.

Mr. Dubofsky: --Well, I'm not quite sure what you mean by problem.

Do you mean--

Justice Scalia: Suppose I find that it would be valid to have such a law directed at conduct--

Mr. Dubofsky: --Yes.

Justice Scalia: --but not at... directed at something other than conduct.

Mr. Dubofsky: No, we don't lose, because this law's--

Justice Scalia: Why don't you lose?

This is a facial challenge.

You say it has no valid applications.

Mr. Dubofsky: --This law is much broader than that, and the minimal interpretation given by the Colorado supreme court is that the law covers homosexual orientation as well as conduct, and that they are not severable.

Justice Souter: Well--

--But isn't the breadth that you would rely on not that it covers orientation rather than just conduct, but that it in effect fences people out of a political process?

Mr. Dubofsky: That's correct.

Unknown Speaker: And I guess that takes me back to your answer to, I guess it was Justice O'Connor, in which you said the constitutional defect was the manner in which, or a general constitutional defect would be targeting homosexuals.

Mr. Dubofsky: Yes.

Justice Souter: That's not really your position, is it, because if there were an ordinance... let's say there were an ordinance in a given city saying there will be no discrimination based on age, handicap, or sexual orientation, and there were a political move in that city to repeal the reference to sexual orientation, that would be targeted at homosexuals, but it would not run afoul of what I understand your position to be here, is that correct?

Mr. Dubofsky: I'm not certain I understand what you're driving at.

Justice Souter: Look, if... you've got an ordinance in a city that says no discrimination based on age, handicap, or sexual orientation.

There's a political move in the city to repeal the reference to sexual orientation.

It succeeds.

Mr. Dubofsky: Yes.

Justice Souter: Is that a violation of equal protection?

Mr. Dubofsky: No.

Justice Souter: Okay.

Chief Justice Rehnquist: Ms. Dubofsky, supposing that in Colorado, shortly before the enactment of this ordinance, there had been agitation, say, by dissident Mormon sects to repeal the prohibition against polygamy that I assume Colorado has, and so there's a referendum that says... the Colorado constitution says polygamy will always be a felony in the State of Colorado, now, does that fence out these people who would like to see polygamy allowed?

Mr. Dubofsky: Not necessarily, because that's really dealing with much more of a discrete issue.

It's not a restructuring of the political process.

Chief Justice Rehnquist: But there... well, there... it's certainly restructured, if they were agitating before the legislature to try to get a prohibition against polygamy repealed.

It certainly fences them out there.

They now have to go to a referendum just like your clients do.

Mr. Dubofsky: That's correct, but the particular issue involved is having to do with the identity of the group of people who are engaging in polygamy, and it's prohibiting polygamy.

The best way I can answer that question is to say, if you substituted bigamists or polygamists into the language of Amendment 2, then you would have a problem, as we point out, but here--

Chief Justice Rehnquist: What sort of a problem would you have?

Mr. Dubofsky: --You would have a problem of denying people the fundamental right to participate in the political process.

Chief Justice Rehnquist: Well, so then you say that Colorado cannot say in its constitution either polygamy or bigamy will always be a felony.

Mr. Dubofsky: They could say that in their constitution, yes.

Chief Justice Rehnquist: Well, would it be valid, under your theory of the Federal Constitution?

Mr. Dubofsky: To have that in the--

Chief Justice Rehnquist: Yes.

Mr. Dubofsky: --Colorado constitution?

Yes, it would.

Chief Justice Rehnquist: Well then, why is that different from this case?

Mr. Dubofsky: That is different from this case because this case is targeting a particular group of people on a personal characteristic, and--

Chief Justice Rehnquist: Well, but surely the dissident sects that want to practice polygamy are a particular group of people, too.

Mr. Dubofsky: --That's correct.

What they're not being deprived of is a whole category of laws that provide them a benefit, the opportunity to seek protection from discrimination or a similar--

Chief Justice Rehnquist: Well, but maybe this is essential to their religion.

Mr. Dubofsky: --Well, then it would come under a whole different way of analyzing the issue, and that would be whether it deprived them of a First Amendment--

Justice Scalia: Ms. Dubofsky, do you contend that... are you asking us to overrule Bowers v. Hardwick?

Mr. Dubofsky: --No, I am not.

Justice Scalia: Well, there we said that you could make homosexual conduct criminal.

Why can a State not take a step short of that and say, we're not going to make it criminal, but on the other hand, we certainly don't want to encourage it, and therefore we will neither have a State law giving it special protection, nor will we allow any municipalities to give it special protection.

It seems to me the legitimacy of the one follows from the legitimacy of the other.

If you can criminalize it, surely you can take that latter step, can't you?

Mr. Dubofsky: What you've done is deprived people, based on their homosexual orientation, of a whole opportunity to seek protection from discrimination, which is a very different thing.

Justice Scalia: So do you do it when you throw them in jail for a felony?

Mr. Dubofsky: No--

Justice Scalia: I'm not talking about orientation, now.

I'm talking about conduct.

If we have held it constitutional to make the conduct criminal, how could it be unconstitutional to go so much short of that?

We don't want to get into the hassle of intrusion into private life, and all of that, that that requires.

We're not going to criminalize it.

On the other hand, we do not think it is conduct that ought to be encouraged, and therefore we will not allow any special protections for it, neither at the State level, nor locally.

Doesn't... if the one is constitutional, must not the other one be?

Mr. Dubofsky: --If homosexuals were put into the language of Amendment 2 only in terms of, those people who engage in homosexual conduct shall not be entitled to ever seek protection under the civil rights laws, we would say that is unconstitutional.

That's a very different thing from saying that you can criminalize homosexual sodomy.

Justice Stevens: But isn't it also true that this law applies to this class of people even if they abstain from the prohibited conduct?

Mr. Dubofsky: That's correct, and it also could apply to people who aren't gay, but who may be perceived to be gay and are discriminated against on that basis.

Justice Ginsburg: Ms. Dubofsky, if we could go back to the question Justice Kennedy was asking, I take it your answer to him was, your objection is to the permanency, the bar to access to the political process to get something changed.

Mr. Dubofsky: That's correct.

Justice Ginsburg: But you're not objecting to the State saying, we repeal all existing ordinances.

Mr. Dubofsky: That's correct, and that's because the case law and the fundamental right to political participation says a simple repealer is all right.

Justice Ginsburg: Then how do you answer Justice Kennedy's further question, well, isn't the State entitled to end a ping pong game?

The locality passes it, the State repeals it.

The locality passes it again, the State repeals it again.

Mr. Dubofsky: The constitutional bar, in effect, to ever adopting a protection of any sort, or an opportunity to seek protection from discrimination, is a very different type of barrier than a simple repealer and reenactment, because it means that if the group is going to ever obtain any protection, it has to amend the State constitution first.

Justice Souter: Yes, but wouldn't you say that it could end the ping pong ball that way if it ends it with respect to all protection against private discrimination?

Mr. Dubofsky: That's correct, it could.

Justice Souter: That would not be an equal protection problem.

Mr. Dubofsky: That's right.

That's right.

Justice Souter: So you're saying, if I understand you, you just can't end the ping pong ball for this particular group.

Mr. Dubofsky: That's correct, or any particular group.

Justice Souter: Right.

Right.

Mr. Dubofsky: It doesn't matter who the group is--

Justice Souter: Yes.

Yes.

Mr. Dubofsky: --you just can't do it this way.

Justice Souter: But you can end the game.

Mr. Dubofsky: That's correct, you can end the game.

If the State wants to repeal and prohibit any civil rights protections for anybody at any level of the government in the future, and do it for everyone--

Justice Stevens: May I ask you a rather elementary question I should know?

Did the State file an answer in this case?

Mr. Dubofsky: --Did the State file an answer in this case?

Justice Stevens: Yes.

Mr. Dubofsky: Yes.

Justice Stevens: They did file an answer.

Mr. Dubofsky: Yes.

Justice Stevens: I couldn't find it--

Mr. Dubofsky: And we tried the case.

Chief Justice Rehnquist: --Thank you, Ms. Dubofsky.

Mr. Dubofsky: Thank you.

Rebuttal of Timothy M. Tymkovich

Chief Justice Rehnquist: Mr. Tymkovich, you have 1 minute remaining.

Mr. Tymkovich: Your Honor, the Colorado supreme court rule basically holds that preemption is unconstitutional.

It says that with respect to this issue... this issue, not the people.

This issue... it must be resolved at the local level, and that people who oppose the substantive policy--

Justice Souter: Well, excuse me, I don't see where it said preemption was unconstitutional, as distinct from saying, preemption for one identifiable group was unconstitutional.

Mr. Tymkovich: --It's preemption of this issue that affects a group, and in James the Court told us it's permissible--

Justice Souter: Well, it doesn't... it doesn't... the ordinance speaks both in terms of issue, i.e., basis for claim, and group.

I mean, it refers to both, doesn't it?

You can't have one without the other, the way the ordinance is--

Mr. Tymkovich: --It's an issue that affects a group, like in James, and like in Gregory v. Ashcroft, where we had an age restriction in the State.

Justice Souter: --Well, isn't in effect defined in terms of the group under traditional equal protection analysis, which looks to the intent of the enacting body?

Mr. Tymkovich: Right, and then there would be the question--

Justice Souter: Okay.

Mr. Tymkovich: --of whether a rational basis supports that.

Chief Justice Rehnquist: Thank you, Mr.--

Mr. Tymkovich: In this case--

Chief Justice Rehnquist: --Thank you, Mr. Tymkovich.

The case is submitted.