ARCHIVE - EVERGREEN SUPREME COURT: Group Exercise on Questions Presented

DEVELOPING THE QUESTION PRESENTED
SMALL GROUP EXERCISE

Below are actual Questions Presented, found in appellant, appellee and amicus curiae briefs in the case of Romer v. Evans, a Supreme Court case we will study this quarter. The paragraph below is a brief statement of the facts in that case, presented here to help you understand the context for the Questions Presented examples.
In 1977, the City of Aspen, Colorado adopted a comprehensive anti-discrimination ordinance prohibiting invidious discrimination in employment, housing and public accommodations within the city, including discrimination based upon sexual orientation. In 1992, a majority of the Colorado electorate passed a statewide ballot proposal commonly known as "Amendment 2". This was an attempt to amend the Colorado Constitution so as to effect an immediate repeal of the Aspen ordinance and all other state and local anti-discrimination measures protecting homosexual, lesbian or bisexual citizens from discriminatory acts. Amendment 2 also stripped elected officials at all levels of government of their discretion and authority to adopt future anti-discrimination measures protecting gay and bisexual people. The Colorado Supreme Court declared Amendment 2 unconstitutional. Parties in favor of Amendment 2 appealed the case to the U.S. Supreme Court.
The following are some of the Questions Presented that appeared in appellate briefs on both sides of the controversy. From the language of the Questions Presented below, can you tell which ones likely appeared in appellate briefs of parties sympathetic to gay rights (and therefore opposed to Amendment 2) and which ones likely appeared in briefs of parties opposed to gay rights (and therefore supportive of Amendment 2)?

1. Whether a popularly enacted state constitutional amendment precluding special state or local legal protections for homosexuals and bisexuals violates a fundamental right of independently identifiable, yet non-suspect, classes to seek such special protections.

2. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the implementation of a voter-approved amendment to the Colorado Constitution that mandates the exclusion of a specifically identified and targeted minority from participation in the normal processes of government on an equal basis with other citizens.

3. Whether an initiated state constitutional amendment that forbids the state and all local governments from adopting or enforcing any law or policy protecting gay people from public or private discrimination violates the Equal Protection Clause of the Fourteenth Amendment because it burdens the fundamental right of gay people to participate in the political process and fails rationally to advance a legitimate governmental purpose.

4. Whether a state, having a rational basis to do so, may make it more difficult to enact legislation that would establish intrusive regulation of private behavior and property and would cause conflicts with the religious liberty of many of the state’s citizens, to prevent discrimination against members of a non-suspect class that is defined by its members' conduct rather than by any immutable characteristic, that enjoys considerable political influence, and whose members are economically advantaged compared to other similarly-situated citizens.

1.	Whether a popularly enacted state constitutional amendment precluding special state or local legal protections for homosexuals and bisexuals violates a fundamental right of independently identifiable, yet non-suspect, classes to seek such special protections.
2.	Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the implementation of a voter-approved amendment to the Colorado Constitution that mandates the exclusion of a specifically identified and targeted minority from participation in the normal processes of government on an equal basis with other citizens.
3.	Whether an initiated state constitutional amendment that forbids the state and all local governments from adopting or enforcing any law or policy protecting gay people from public or private discrimination violates the Equal Protection Clause of the Fourteenth Amendment because it burdens the fundamental right of gay people to participate in the political process and fails rationally to advance a legitimate governmental purpose.
4.	Whether a state, having a rational basis to do so, may make it more difficult to enact legislation that would establish intrusive regulation of private behavior and property and would cause conflicts with the religious liberty of many of the state’s citizens, to prevent discrimination against members of a non-suspect class that is defined by its members' conduct rather than by any immutable characteristic, that enjoys considerable political influence, and whose members are economically advantaged compared to other similarly-situated citizens.