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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