Finding Public Policy in Constitutional Text

Constitutions aren’t just for constitutional law. Their very language influences broader legal, and even cultural, principles. For example, the American culture of “free speech” isn’t just the First Amendment but wider values such as academic freedom. The Constitution doesn’t directly regulate those values and yet it nevertheless inspires them.

A Colorado Supreme Court decision from last month demonstrates this dynamic in the context of private employment law — but the decision also raises grave concerns about the state high court’s misplaced priorities when engaging with the Colorado Constitution.

Moreno v. Circle K Stores primarily concerns when an at-will employee can bring a wrongful discharge claim against a private employer. The facts are simple but disputed. The plaintiff, Mary Ann Moreno, was a 72-year-old woman working at a Circle K convenience store. A man threatened her with a knife and demanded some cigarettes. After that, the parties’ accounts differ. What seems clear, however, is that she didn’t entirely comply with the assailant’s demands but also didn’t physically fight back. He eventually grabbed a pack of smokes and ran out. Circle K then fired her, claiming she violated its passive confrontation policy. She sued for wrongful discharge.

A federal district court in the case certified a question to the state supreme court: Does Colorado recognize a public policy exception to at-will employment when an employee is discharged for acting in self-defense?

“Public policy” are magic words that often crop up in private law. Whether it’s good for courts to wave the public policy wand is a jurisprudential question that we’ll leave for another forum (and where my sympathies lie with the critics). Either way, American courts routinely invoke public policy to shape their common law decisions. One example is not enforcing a term in a contract — such as a liability waiver — not because the legislature has passed a law making it unenforceable but simply because there’s a wider, and perhaps nebulous, public policy reason.

Another example is wrongful discharge. The Colorado legislature hasn’t passed a law preventing private employers from firing employees for confronting shoplifters. But even so, it wasn’t wild for Moreno to argue there was nevertheless a public policy reason to allow her to sue.

What was wild was how the court used the Colorado Constitution to justify its creation of the public policy exception.

Article II, Section 3 of the state constitution is a classic Lockean natural rights guarantee, which I’ve written about before. These provisions typically protect pre-political natural rights — or rights we possess simply because we are human, not acquired through the formation of an ordered society — in the tradition of philosopher John Locke. Colorado’s states:

All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.

Two-thirds of all state constitutions contain similar language and most state courts have interpreted them to provide substantive protections against the government. And just judging by the text, Colorado’s provides a lot of protection. Simply “obtaining . . . happiness” and “possessing . . . property” could threaten all kinds of laws, from drug prohibition to zoning to licensing.

Early in Colorado’s history the court did, to some degree, use the provision in this way. For example, in a 1914 case the court invoked it to stop a medical board’s attempt to discipline a doctor for running a newspaper ad offering services “relative to a disease, and diseases of the sexual organs.” (Alas, the opinion does not contain the text of the ad itself.) It found this discipline would violate the doctor’s right to pursue happiness, specifically “to follow his individual preference in the choice of occupation.”

In recent decades, however, the court has largely gone silent on Lockean rights, with only occasional rulings. When it comes to liberty and property rights — rights explicitly mentioned in the provision — the court has instead generally relied on the state’s due process clause. And there most rights have met a cruel fate, as the court has applied a rational basis test, a form of judicial scrutiny that almost all laws survive. Further, the court has not said much, if anything, about the specific language at issue in Moreno: Coloradans’ right of “defending their lives.”

You may be asking, given that the defendant in this case was a private entity, why would this constitutional provision be relevant at all? The majority admitted — and the dissent by Chief Justice Monica Márquez emphasized — constitutions generally do not apply to private parties. In truth, some state constitutional provisions sometimes bind private entities, as Carlos Chevere-Lugo has explained, but Lockean guarantees are widely understood not to, with certain explicit exceptions not relevant here.

To be clear, Moreno did not claim Circle K violated her natural rights as guaranteed by Section 3. If she had, she’d have no claim. Instead, her claim was that Section 3 inspired a public policy exception to her status as an at-will employee.

As the court explained, state courts often derive public policy standards from statutes that don’t directly regulate what’s before them but nevertheless inform wider values. A classic example is a prior Colorado case where an employee was fired for refusal to perform an illegal act. The criminal statute didn’t address employment law but the court still discerned a wider public policy of not wanting employers to incentivize crime.

In Moreno, the court drew upon Colorado’s statute codifying justifiable homicide — i.e., killing in self-defense — for a public policy justification to support an exception to at-will employment. It could have ended there without turning to the state constitution. But the court also drew upon Section 3’s “defending” “lives” language, saying it “presents a clear public policy in favor of self-defense.” It left unexplained why this case should champion natural rights, given how the court has declined to invoke the clause so many other times.

The decision changes employment law in Colorado by eliminating one area of at-will employment. But it does not mean Moreno will prevail, given the disputed facts. Having held that Moreno could pursue her case, the court sent it back to the federal court for further proceedings on the merits.

As the dissent pointed out, the majority’s reliance on Colorado’s natural rights guarantee was a stretch and could have expansive and unforeseen consequences. You could do the same thing with all manner of rights in the Colorado Constitution. Like most state constitutions, it protects free speech. What if she was fired for mouthing off to a customer? Colorado also has a contracts clause. Could this somehow affect at-will employment? The list is long and uncertain.

Now consider this hypothetical: Imagine that Moreno had brandished an unlawful switchblade at her assailant and was prosecuted. Colorado’s Second Amendment analog protects the “defense” of “person or property.” But six years ago, the Colorado Supreme Court held that it is nowhere near as protective as the Second Amendment. That means that Moreno would probably lose a hypothetical claim that her hypothetical prosecution violated Colorado’s Second Amendment cognate. In other words, the court’s precedent suggests she should lose a case against the government invoking state constitutional self-defense protections but might win a dispute with a private employer where the legislature has not even passed a law affecting her at-will employment. That’s bonkers.

Although some employment lawyers may be pleased by the result in Moreno, the rest of us should be wary. The court used constitutional language flippantly and without appreciation for the contradictory implications like those outlined in my hypothetical. It seems the Colorado justices in the majority have lost sight of what constitutions are primarily for: Not to shape the law between private parties but to guard against the guardians.

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice.

Suggested Citation: Anthony Sanders, Finding Public Policy in Constitutional Text, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (July 14, 2026), https://statecourtreport.org/our-work/analysis-opinion/finding-public-policy-constitutional-text