The Constitution is not just for the sake of the Constitution. Their language itself influences broader legal and even cultural principles. For example, America’s culture of “free speech” refers not only to the First Amendment, but also to broader values such as academic freedom. Although the Constitution does not directly regulate these values, it nevertheless inspires them.
A Colorado Supreme Court decision last month illustrates this dynamic in the context of private employment law, but it also raises serious concerns that the state high court misplaces its priorities when it comes to Colorado’s Constitution.
Moreno vs. Circle K Store The main concern is when any employee can bring an unfair dismissal claim against a private employer. The facts are simple but debatable. The plaintiff, Mary Ann Moreno, is a 72-year-old woman who works at a Circle K convenience store. The man threatened her with a knife and demanded a cigarette. The parties’ accounts then differ. What is clear, however, is that not only did she not fully comply with her assailant’s demands, but she also did not physically fight back. Eventually he picked up a pack of cigarettes and drove off. Circle K then fired her because she violated its passive confrontation policy. She filed a lawsuit for wrongful dismissal.
The federal district court in this case certified the following question for the state Supreme Court: Does Colorado recognize a public policy exception to at-will employment when an employee is fired in self-defense?
“Public policy” is a magic word that often appears in private law. Whether it’s good for courts to wave the public policy wand is a question of jurisprudence that I’ll leave for another forum (and where my sympathies lie with the critics). In any case, American courts routinely rely on public policy to shape common law decisions. As an example, contract provisions such as liability waivers are not enforced not because Congress passed a law making them unenforceable, but simply because there are broader and perhaps obscure public policy reasons.
Another example is unfair dismissal. The Colorado Legislature has not passed a law that would prohibit private employers from firing employees for confronting shoplifters. But it was still not far-fetched for Mr. Moreno to argue that there were public policy reasons to allow the lawsuit.
What was surprising was how the court used the Colorado Constitution to justify the creation of the public policy exception.
As I have written before, Article 2, Section 3 of the state constitution is a classic Lockean guarantee of natural rights. These provisions, typically in the tradition of the philosopher John Locke, protect pre-political natural rights, rights that we have simply by virtue of being human, rather than those acquired through the formation of an ordered society. Colorado states:
Every person has certain natural, essential and inalienable rights, including the right to the enjoyment and protection of his or her life and liberty. Acquisition, possession, and protection of property. and to pursue and obtain their safety and happiness.
Two-thirds of all state constitutions contain similar language, and most state courts interpret the constitution as providing substantial protections for the government. Judging from the text, Colorado offers the following: many of protection. Simply “getting happiness” or “owning property” can threaten all kinds of laws, from drug prohibition to zoning and licensing.
Early in Colorado’s history, courts used this provision to some degree in this way. For example, in a 1914 case, the court invoked the law to thwart a medical board’s attempt to punish a physician who placed a newspaper advertisement offering services “connected with disease or genital ailments.” (Unfortunately, the opinion did not include the text of the advertisement itself.) The discipline found that it violated physicians’ right to pursue happiness, specifically their right to “follow personal preferences in career choice.”
But in recent decades, courts have remained largely silent on Rocky’s rights, issuing only occasional rulings. With respect to liberty and property rights (rights explicitly mentioned in the Clause), courts have generally relied on state due process clauses. And there, most rights meet a cruel fate because courts have applied the rational basis test, a type of judicial scrutiny that almost all laws endure. Additionally, the court has not said much, if any, about the specific language at issue in the case. Moreno: Coloradans’ right to “defend their lives.”
Given that the defendant in this case is a private entity, you may ask why this constitutional provision is relevant. The majority agreed, and Chief Justice Monica Marquez’s dissenting opinion emphasized that the Constitution generally does not apply to private political parties. Indeed, as explained by Carlos Chevere Lugo, while some provisions of state constitutions can be binding on private entities, it is widely understood that the Rocky Guarantee is not, with certain express exceptions that are not relevant here.
To be clear, Ms. Moreno does not claim that Circle K violates her natural rights guaranteed by Article 3. If so, she has no rights. Instead, her argument was that Section 3 triggered a public policy exception to her status as an at-will employee.
As the court explained, state courts often derive their public policy standards from statutes that do not directly regulate what is at hand, but that inform broader values. A classic example is an earlier Colorado case in which an employee was fired for refusing to perform an illegal act. Although the Criminal Code does not address employment law, the court recognized a broader public policy that employers do not want to encourage crime.
in Morenothe court invoked Colorado law codifying justifiable homicide. In other wordsmurder in self-defense – to justify public policy supporting the employment-at-will exception. If they hadn’t looked at the state constitution, it might have ended there. But the court also cited Article 3’s “protect life” language, which it said “represents a clear public policy favoring self-defense.” It remained unclear why this case would vindicate natural rights, given that courts have repeatedly refused to invoke the provision.
This decision changes Colorado’s employment law and eliminates one area of at-will employment. But given the facts at issue, that doesn’t mean Moreno will win. The court determined that Mr. Moreno could proceed with the case and remanded the case to federal court for further proceedings on the merits.
As the dissenters pointed out, the majority’s reliance on Colorado’s natural rights guarantees goes too far and could have far-reaching unintended consequences. The same can be done for all types of rights in the Colorado Constitution. Like most state constitutions, free speech is protected. What happens if she gets fired for abusing a customer? Colorado also has a contract clause. Could this have any impact on at-will employment? The list is long and uncertain.
Now consider the following hypothesis. Imagine Moreno brandishing an illegal switchblade at an assailant and being indicted. Colorado’s Second Amendment analog protects the “defense” of “person or property.” But six years ago, the Colorado Supreme Court ruled that it was not as protective as the Second Amendment. That means Moreno would likely lose her hypothetical claim that her hypothetical prosecution violates the Second Amendment to the Colorado Constitution. In other words, the court’s precedent suggests that she should lose the case. to the government Invokes state constitutional self-defense protections, but may prevail in dispute private employer Congress has not even passed a law affecting her at-will employment. That’s outrageous.
While some labor lawyers may be satisfied with this outcome, Morenothe rest should be careful. The court used the constitutional language carelessly, without understanding the contradictory meanings outlined in my hypothesis. A majority of Colorado judges appear to have lost sight of the Constitution’s primary purpose. It is not about forming laws between private parties, but about protecting oneself from guardians.
Anthony Sanders is director of the Center for Judicial Engagement at the Institute for Justice.
Recommended quote: Anthony Sanders Finding public policy in the text of the constitutionSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 14, 2026), https://statecourtreport.org/our-work/analysis-opinion/finding-public-policy-constitutional-text
