Colorado's Era: Off the Pedestal and Into the Courts
| Publication year | 1981 |
| Pages | 1284 |
| Citation | Vol. 10 No. 6 Pg. 1284 |
1981, June, Pg. 1284. Colorado's ERA: Off the Pedestal and Into the Courts
Colorado's Equal Rights Amendment ("ERA"), at times the target of fervent and heated debate, has now been interpreted by the courts for nearly a decade.(fn1) The rulings in the eleven reported Colorado cases to date involving the ERA are not unexpected in their results, although briefs sometimes employed the rhetorical excesses which were common during the 1976 election when Coloradoans voted to retain the state ERA.(fn2) This article surveys the reported cases citing the Colorado ERA to date. Unreported cases are included as examples of creative invocation of the state ERA.(fn3)
In evaluating cases with potential sex-bias issues, attorneys should consider the Colorado ERA as a basis for injunctive and potential affirmative relief. Even in cases of sex-neutral statutory language, sex-biased interpretations by the courts may be held to violate the state ERA.
The Colorado Equal Rights Amendment reads:
This language parallels Section 1 of the proposed federal Equal Rights Amendment(fn5) and is similar to that found in eight other state constitutions.(fn6) A total of seventeen states have state equal rights provisions in their constitutions.(fn7) The Colorado courts have looked to decisions in other jurisdictions for guidance in applying the Colorado ERA.(fn8)Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex.(fn4)
Under the Colorado ERA, the courts may grant declaratory or injunctive relief for violations. Other jurisdictions have raised the issue of damages;(fn9) however, damages have not been argued or granted in the reported cases in Colorado. Affirmative relief has not yet been granted under any state equal rights amendment.
In the cases which have raised the state equal rights amendment as an issue, no Colorado statute has been stricken as unconstitutional. Moreover, the most recent application of Colorado ERA in R. McG. v. J.W.(fn10) extended the Uniform Parentage Act to permit the natural father of a child to bring a paternity action, although the statute limited standing to "a child, his natural mother, or a man presumed to be his father under §§ 19-6-105(1)(a), (1)(b) or (1) (c)."(fn11)
The Colorado Supreme Court in People v. Salinas(fn12) specifically upheld the statutory rape statute.(fn13) The statute at that time prohibited only male offenders from engaging in sexual intercourse with females less than sixteen years old if the offenders were at
least two years older than the females, but had no prohibition against similar activities perpetrated by older females against young males. The court explained its approval of this statute by stating that the Colorado ERA "does not prohibit differential treatment among the sexes when, as here, that treatment is reasonably and genuinely based on physical characteristics unique to just one sex."(fn14)
A major reason that no statutes have been overturned by the Colorado courts as the result of application of the Colorado ERA can be traced to the substantial legislative efforts to make all statutes sex-neutral.
In 1971, the legislature adopted the Uniform Dissolution of Marriage Act,(fn15) addressing issues of child custody, division of property and maintenance in sex-neutral terms. In 1975, the sexual assault statutes were revised to sex-neutral terms.(fn16) Shortly before the Colorado ERA came into effect and later, following the recommendations of the legislative interim study report by the Committee on the Equal Rights Amendment, major revisions of Colorado's statutes were accomplished.(fn17)
This interim study report, known as the Dick-Orten Report, proposed revisions for statutes following a computerized search of the Colorado statutes in 1973 by the Legislative Counsel and Legislative Drafting Office. The information requested included statutes which explicitly treated one sex differently from another; statutes which contained sex distinctions based on physical characteristics unique to one sex; statutes which were sex neutral in their terms; statutes which prohibited discrimination, but did not specifically include sex as a basis for prohibited discrimination; statutes which prohibited discrimination on the basis of sex; statutes which provided for the construction of gender-based language; and statutes which contained the "prudent man" rule.
Implementing the recommendations of the Dick-Orten Report, statutes were revised to extend minimum wage laws from women and minors to workers and minors, and to extend firefighting and police officer pensions from wives or dependent mothers to the spouses or dependent parents.(fn18)
The following statutory recommendations of the Dick-Orten Report have not yet been accomplished:
1. Amending C.R.S. 1973, § 8-11-118, which requires employers to provide separate dressing rooms for women and girls if changing clothes is necessary for work, to read: "separate dressing rooms shall be provided for both sexes. "(fn19)
2. Adding "sex" to the list of prohibited forms of discrimination for activities of the Board of Agriculture(fn20) and the State Advisory Hospital Council(fn21)
All statutes proposed by the legislature are reviewed by the Legislative Drafting Office to determine if they comply with state constitutional provisions. The Attorney General's Office may also be consulted regarding constitutionality by state subdivisions or agencies or by the legislature for opinions as to the constitutionality of state actions or proposed legislation.
For example, the Attorney General issued an opinion that a Commission on Women did not violate the Colorado ERA, since it was formed after a specific legislative finding that such a commission was needed to address the impact of past discrimination.(fn22) Also, although the Legislative Drafting Office had approved an amendment to S.B. 109 to continue the Colorado Commission on Women requiring that its membership include both men and women, the Attorney General's Office argued that use of the
plural "men and women" created unconstitutional quotas under the Colorado ERA.(fn23)
Various states with equal rights provisions in their constitutions have adopted differing standards for review. The Colorado Supreme Court in People v. Green(fn24) established that in Colorado "it is clear today that legislative classifications based solely on sexual status must receive the closest judicial scrutiny."(fn25) Although Green was decided on equal protection grounds, this dictum establishing the standard for review under the ERA as requiring "closest judicial scrutiny" has been cited with approval in other dicta: People v. Barger(fn26) and R. McG. v. J.W.(fn27)
In most cases in Colorado which raised the issue of violation of the Colorado ERA, violations of equal protection were also raised. The courts have uniformly decided these cases on the equal protection bases(fn28) and have applied the less strict standard of review that "a classification 'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. . . .'"(fn29)
In referring to cases from other jurisdictions, care should be exercised to determine if such states have a comparable standard for review. Washington, Pennsylvania and Maryland courts have held that classifications based on sex are absolutely prohibited.(fn30) Utah, Louisiana and Virginia(fn31) apply the "rational relation" test for sex discrimination. The remaining states have either an unclear standard for review or have not clearly established such a standard.(fn32)
In People v. Taylor,(fn33) the court followed traditional standing rules that only the person who is damaged has standing. In this case, the court held that a cosmetologist did not have standing to...
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