The 1992 fight over Colorado's Amendment 2 was one of the most divisive battles in the fight for gay rights. And once the measure -- which prohibited laws that extended civil rights to homosexuals -- was approved by Colorado voters, state Attorney General Gale Norton became the chief defender of the measure in the courts. Now Norton's nomination to become interior secretary by President-elect George W. Bush has enraged state and national gay rights activists, who remember Norton's role in the fight.
"She was a vigorous advocate for Amendment 2, and she was very disappointed when the Supreme Court overturned it," says David Smith, spokesperson for the Human Rights Campaign. "At the state court level, at least, she was leading the charge to defend Amendment 2."
Amendment 2 passed with 53 percent of the vote in 1992, but was eventually overturned by the U.S. Supreme Court. "It is not within our constitutional tradition to enact laws of this sort," Justice Anthony Kennedy wrote in the majority opinion. "A state cannot so deem a class of persons a stranger to its laws."
After the Supreme Court ruled, Norton said she believed the repeal of the law would disenfranchise voters and "mocks the democratic process." "I see this decision as increasing the cynicism of voters. I see this decision as increasing the view that the average voter doesn't have any impact on the system," she said after the May 1996 ruling.
People who followed the Amendment 2 legal rift closely say that Norton was careful not to make public comments that might reveal a personal bias. However, critics note that Norton vociferously defended Measure 2 after its passage, even though her boss, Colorado Gov. Roy Romer, had served as an honorary chairman in the campaign against it. (Romer, who as governor was bound to support the ballot measures approved by his constituents, would later defend the measure in court. But he cheered the Supreme Court's final decision, saying it was the "right answer" and that he would "do everything I can to get Colorado to accept that answer.")
Colorado State Rep. Shawn Mitchell, who served as a special counsel to Norton as the legal defense of Amendment 2 wended its way through state and federal courts, defends his former boss's role.
"It's easy for the state's chief executive to be passive while the state's attorney general conducts the litigation, but it's ridiculous to say that Gale had a bias against anyone," Mitchell says. "She never stated what her personal feelings were about the amendment nor even announced whether she voted for it or against it. What she did do was fulfill her constitutional obligation to defend something that Colorado's voters passed.
"She didn't make any public statements supporting or opposing the policy of Amendment 2. She only acted vigorously in her role as the state's chief legal officer to represent Colorado in the case," he says.
But some Colorado proponents of gay rights dispute Mitchell's characterization of Norton's role. "It's a question of perception, I suppose," says Julie Tolleson, who served as an assistant attorney general under Norton during the Amendment 2 legal battle. Tolleson did not work on the state's defense of Amendment 2, but she did volunteer and donate money to the campaign against the anti-gay measure.
"The assumption, both inside and outside the state government, is that this was Gale's baby," says Tolleson. "Roy Romer may have been technically named defendant as governor of Colorado, but make no mistake: He was an honorary chair of the campaign conducted by opponents of Measure 2. I don't think there was ever any doubt that the decision to push the litigation as far and hard was a decision of Gail Norton and no one else." But like Mitchell's recounting, Tolleson says that Norton kept her personal opinion private.
"I think she tried to create the appearance of straddling the fence. She never openly said a whole lot about why she pursued it as far and hard as she did," she says. Tolleson also says that the attorney general's office under Norton was a comfortable place for gays and lesbians to work. "I didn't see discriminatory animus in the office. There were lawyers there who were out and comfortably out. I never felt like I was mistreated. The office was a tolerant and diverse place. Government attorneys in general, other than elected officials, tend to be liberal Democrats, people who go to work for what they perceive is the public interest."
But Tolleson was especially critical of the decision by Norton's office to retain the services of Paul Cameron as an expert witness in the state's legal defense. The psychologist -- who was expelled by the American Psychological Association in 1983 -- has made something of a career of being an expert anti-gay witness in sundry court cases. He was retained by the attorney general for about $15,000 but he was ultimately discredited, and none of the information he provided was used in Colorado's defense of Amendment 2, according to published reports.
Cameron was also affiliated with Colorado for Family Values, a arch-conservative organization known for its anti-gay stances. "Gale Norton reached into the pocket of Colorado family values for her expert scientific information," Tolleson alleges. Harvard professor Harvey Mansfield was also hired by the attorney general's office. In the October 1998 Harvard Gay and Lesbian Review, writer Martha Nussbaum wrote that Masfield, in his advisory role in the defense, appealed to "the history of philosophy and to an alleged consensus of all the great thinkers that public morality requires us to take a negative view of same-sex conduct."
Though gay rights activists acknowledge that Norton was not involved in the day-to-day proceedings in the case, she was one of Amendment 2's most prominent defenders.
"Gale Norton is no friend to gay people," says Mike Brewer, legal director of the Colorado Legal Initiatives Project, an organization that grew out of grass-roots efforts to fight Amendment 2 after it passed. "She purports to be a libertarian, but her vehemence during the Amendment 2 case betrayed a definite prejudice against gay people," he says.