Address to the American Constitution Society at Sturm College of Law, University of Denver

Thank you to the American Constitution Society and Sturm College of Law for hosting today’s convening and inviting me to join.

It is an important time to discuss and reflect on our Constitution. Indeed, it is a time that calls to mind what Ben Franklin said as he left our Constitutional Convention, “[you have] A Republic …  if you can keep it.”  Today, we are confronting challenges to the rule of law and a level of distrust in our institutions that threatens the ability of our government to function.

At the Department of Law, we have a core mission of “together, we serve Colorado and its people, advancing the rule of law, protecting our democracy, and promoting justice for all.”  We do this important work, with four core values in mind—(1) serving the public; (2) operating in a principled way; (3) embracing innovation; and (4) being better together.  By working in this manner, we do our part to build confidence that our government can operate as our Framers envisioned—a government “of the people, by the people, for the people,” to quote Lincoln’s famous description of our constitutional democracy.

Today, let me focus on three areas of our important work: (1) the fight for equality for all; (2) protecting reproductive rights; and (3) defending the rights of immigrants.

Equality

A core principle of our democracy is that all people are created equal. As Colorado’s Attorney General, I am committed to protecting the guarantees of our Constitution for every Coloradan.  I am particularly proud that our state moved—within a generation—from being called the “hate state” for enacting Amendment 2 to electing our nation’s first openly gay Governor.

In Colorado, we recognize that gender identity can be non-binary, allowing residents the option of a non-binary gender designation on issue driver’s licenses and other identifying documents. By contrast, the U.S. Department of State has refused to follow suit.  Consequently, when Colorado resident Dana Zzyym applied for a passport, the request was denied because Zzyym did not select a gender designation of male or female.  After, the State Department refused to issue a passport with an “X” as a non-binary gender designation and Zzyym challenged the decision, Colorado filed an amicus brief with the Tenth Circuit, joined by 8 other states, arguing that all Americans should have identification that accurately reflects who they are. We await a decision in that case.

Protecting employment and opportunity for all is similarly important to me and to Colorado. More than a decade ago, Colorado passed a law to prevent employment discrimination based on sexual orientation or gender identity.  During this Supreme Court term, the Court will decide whether the same protection exists at the federal level under Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex.  In that case, we joined with other states and a range of civic, business, and governmental organizations, explaining that sexual orientation or gender identity is a prohibited form of sex discrimination.

I recognize that we have work to do to continue to bend the moral arc of the universe toward justice.  LGBTQ teenagers, for example, are far more likely to experience bullying and take their own lives than their straight peers.  Indeed, until recently, so-called “conversion therapy” was permitted here in Colorado for teenagers.  No longer.  Based on a law signed this year, such dangerous and discredited practices will not be tolerated.

Reproductive Rights

The last topic I want to address today is reproductive rights. Protecting women’s right to choose is about autonomy, dignity, and equal protection of the law for all. To protect access to birth control and reproductive rights, we’ve taken a number of important actions.

First, the federal government sought to undermine the Affordable Care Act’s protection for access to birth control by inventing a loophole that would allow employers to deny birth control coverage for moral or religious objections.  By joining with other states, we sued to prevent this action from taking effect.

Second, we are currently challenging another rule – the “gag rule” – adopted by the U.S. Department of Health and Human Services.  This rule prohibits health care providers who receive Title X funding from telling women about the possibility of an abortion in most cases. Historically, Colorado has received about $3.8 million a year in Title X funding, supporting 76 clinics across the state that provide a range of family planning and women’s health care services. We won in the district court, but the 9th Circuit let the rule go into effect while the government appealed. Just during the few months on appeal, two providers serving over 4,400 patients have dropped out of the program because they felt they could not provide accurate and complete medical care under the gag rule, and others have reduced or eliminated some services. These programs matter and we are focused on doing all we can to ensure access to reproductive rights.

Finally, we recognize that the constitutional right of access to abortion as protected by Roe v. Wade is now at risk. To defend Roe v. Wade and protect a woman’s right to make her own reproductive choices, we are joining with other states to defend this principle, supporting cases around the country where states seek to narrow or eliminate access to abortion.

Immigrant Rights

Next, I want to speak about immigrant rights – an issue that is particularly personal to me. My grandparents and mom survived the Holocaust and came to the United States as refugees.  They were welcomed here where they could build a better life. This welcoming attitude that my family and so many others have experienced is currently under attack from the federal government.

Colorado continues to play a critical role in protecting immigrants and pushing back against unconstitutional federal policies. When the Trump administration sought to end the DACA program, Colorado joined other states in a lawsuit to protect from deportation the estimated 17,000 DACA recipients living in Colorado who were brought to the United States as children.

Under the Constitution, the census must be an “actual enumeration” of the entire population. Unfortunately, the U.S. Commerce Department sought to subvert this goal, seeking to undercount Latinos by asking about citizenship status. As many of you know, we prevailed at the Supreme Court, which ruled that asking a question about citizenship status would reduce responses to the 2020 Census and lead to an unconstitutional outcome. But the fight is not over. Colorado has joined with other states to intervene into yet another case where Alabama is challenging the apportionment of representatives with a census that includes non-citizens. The federal government is not defending the case, but a coalition of states, including Colorado, is fighting to ensure the integrity of our census and apportionment process.

Most recently, we also obtained a preliminary injunction against the so-called public charge rule.  This rule sought to disqualify those seeking visas or permanent residency if they participated in a broad swath of government programs. The district court found this new rule had a chilling effect and would harm the health and wellbeing of our residents.

In short, our work on immigration matters to both defend the rule of law and to ensure we honor our American tradition of welcoming others who make our country better with their talent and hard work.

Conclusion

America’s brave constitutional experiment, charting a course of self-governance backed by the rule of law, is now at risk.  Just last spring, when I spoke here, we were contemplating how to respond to a painful action undermining our constitutional separation of powers—building a border wall through the diversion of congressionally appropriated funds.  We are now challenging that action in court, defending not only the principle of separation of powers, but also protecting the $8 million Congress appropriated for Peterson Air Force Base that would be defunded.  If allowed to stand, this action would reduce personal income by $18 million for Coloradans, take away 129 jobs by 2022, and Colorado would receive over $1 million less in state and local tax revenues.

At the Department of Law, we are doing our part to defend our constitutional values and our constitutional democracy.  It is crucial that we do this work in a principled way to build confidence in the durability of the rule of law – the principle that all persons are treated fairly and equally.  Indeed, we can all do this work and Colorado can continue to be a model of how to move our nation towards a more perfect union.