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68 U. Colo. L. Rev. 287 (1997)
A Tale of Three Theories: Reason and Prejudice in the Battle over Amendment 2

handle is hein.journals/ucollr68 and id is 309 raw text is: A TALE OF THREE THEORIES: REASON AND PREJUDICE IN THE BATTLE OVER AMENDMENT 2 TIMOTHY M. TYMKOVICH,* JOHN DANIEL DAILEY,** AND PAUL FARLEY*** It has given me pleasure to sustain the constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the constitution permits. Justice Oliver Wendell Holmes' The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimi- nation against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. Justice Anthony Kennedy2 INTRODUCTION With a wave of the judicial pen, Justice Anthony Kennedy and five of his colleagues on the Supreme Court of the United States dismissed as illegitimate the desire of Colorado voters to prohibit special legal protections for homosexuals. Romer v. * Solicitor General, State of Colorado, 1991-1996. B.A., Colorado College; J.D., University of Colorado. Mr. Tymkovich was lead counsel for Colorado in Romer v. Evans and argued the Petitioners' case before the Supreme Court. ** Deputy Attorney General, State of Colorado, 1986-present. B.A., Bucknell University; J.D., Syracuse University. *** Deputy Attorney General, State of Colorado, 1991-present. B.A., University of Colorado; J.D., University of Denver. Mr. Dailey and Mr. Farley were also counsel to Colorado before the U.S. Supreme Court in Romer v. Evans. Special thanks also to Colorado Attorney General Gale A. Norton and to trial counsel Gregg Kay, Jack Wesoky, Terry Gillespie, and Mark Gerganoff. Many others, too numerous to list, contributed in this very difficult case. 1. LIVA BAKER, THE JUSTICE FROM BEACON HILL 595 (1991) (quoting Justice Oliver Wendell Holmes). 2. Romer v. Evans, 116 S. Ct. 1620, 1629 (1996).

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