The Denver Post
August 7, 1993, pg 1A

By Howard Pankratz, Legal Affairs Writer

A Denver judge refused yesterday to postpone an October trial to determine the 
constitutionality of Amendment 2.

But Denver District Judge Jeffrey Bayless told a group of lawyers representing 
opponents and supporters of the controversial measure that the fastest way to 
resolve the controversy is to hold the two-week trial.

Bayless said he also doubted that the U.S. Supreme Court would listen to an 
appeal at such an early stage of the case.

"I'm not satisfied that there is any likelihood at all that the U.S. Supreme 
Court" would take the case now, Bayless said.  The "track record" of the 
nation's highest court indicates it doesn't take appeals at this stage of the 
case, and for him to delay the trial would be legally incorrect, said the 
judge.

Colorado state officials--who argue that the amendment is constitutional--had 
sought a trial delay while they appealed the July 19 state Supreme Court deci-
sion to the nation's high court.

In the July decision, the Colorado justices siad that during the October trial 
the state will have to show that there is a compelling state interest or 
justification for Amendment 2.  Legal experts say that the standard--called 
the "strict scrutiny standard of review"--is all but impossible to meet and 
dooms the amendment, something virtually conceded yesterday by Colorado 
Solicitor General Tim Tymkovich.

The amendment eliminates and forbids any laws to protect gays and lesbians from 
discrimination. It has yet to take effect because of a preliminary injunction 
issued by Bayless in January, which was upheld by the state Supreme Court in 
the July 19 opinion.

Tymkovich said that what "the Colorado Supreme Court ruling has done is make it 
extremely difficult for the state to show a compelling state interest as it 
must...to meet its burden of proof."

Therefore, said Tymkovich, the state should be granted a delay so it can appeal 
to the United States Supreme Court.

Tymkovich acknowledged that it is "very rare" for the U.S. Supreme Court to 
review a case that hasn't gone to trial.

But he said the Colorado Supreme Court ruling is extremely significant because 
of its impact on the people of Colorado, the coming October trial and the final 
determination of the amendment's constitutionality.

The gist of the Colorado Supreme Court ruling affects the people's right to 
self-government and "very probably" affects the ability of the people to use 
the initiative process to formulate new laws and constitutional changes, 
Tymovich said.

Such a case is the type the U.S. Supreme Court might take, he said.

But Jean Dubofsky, the lead attorney for a coalition opposed to the amendment, 
said the U.S. Supreme Court has never reviewed a similar case.

Here, she noted, a preliminary injunction has been granted by a lower-court 
judge to protect federal constitutional rights and that order has been upheld 
by a state Supreme Court.

Attorney General Gale Norton said yesterday that no decision has been reached 
on whether to appeal the Bayless decision not to postpone the trial.

But Norton said she doesn't believe a trial should begin until there is 
direction from the U.S. Supreme Court as to what "ground rules" should be 
followed at the trial.

"Our concern is that it makes no sense to go through the trial when the ground 
rules may change," she said.  "We'd like to have an opinion from the U.S. 
Supreme Court about what standard we need to meet at trial."

Norton also said that because of the lateness of the July ruling, she and state 
attorneys are facing "severe pressure" trying to adjust their case to meet the 
standard set by the Colorado Supreme Court for the October trial.

The state is still planning to appeal the July 19 ruling to the U.S. Supreme 
Court and hopes to have that appeal filed by Sept. 15.

						Reproduced w/o permission