Colorado’s swift, swerving trip to marriage equality
State gay-marriage ban likely to be fully lifted in a week’s time
DENVER — Jubilant supporters of marriage equality here Monday said that, in hindsight, the glimmer of victory shone in defeats.
There was Amendment 2, which in 1992 legalized discrimination against gay people. There was Amendment 43, the 2006 gay marriage ban. And there was the long battle for civil unions, finally won last year in the shadow of full marriage rights gained that year in states like Minnesota, New Mexico, New Jersey and Illinois.
“At the time it was a very painful defeat. But in hindsight, it’s one of the best things that could have happened to us,” said state Senator Pat Steadman, referring to Amendment 2, which Colorado voters passed with 53 percent of the vote. The amendment came at the height of Christian-right power in the state led by Colorado Springs-based fundraising juggernaut Focus on the Family, and it spurred civil rights groups around the country to organize a national economic boycott of the “hate state.”
Steadman worked to defeat the amendment when it landed on state ballots, and after it passed he co-founded the nonprofit that launched the Romer v. Evans suit that made it to the Supreme Court four years later. The justices eventually found Amendment 2 unconstitutional and that it was “motivated by animus.”
“Not only did Amendment 2 galvanize a movement in our state,” said Steadman. “It also led to the first of [Supreme Court Justice Anthony] Kennedy’s [pro-]gay rights trilogy of decisions, establishing very important precedent that directly lead us to this day, today.”
He notes that multimillionaire Colorado resident Tim Gill started the gay-rights Gill Foundation and the Gill Action Fund after the amendment passed.
“So many grassroots groups and organizations here are all direct descendants of Amendment 2,” Steadman said. “I think it convinced the gay community in our state that they couldn’t afford not to be politically active… We couldn’t sit it out any longer. It was an ‘If you’re not at the table, you’re on the menu’ thing.”
The intense anti-gay messaging that helped pass Amendment 2 was spearheaded by a rough-and-tumble Christian-right group called Colorado for Family Values and it was more low-end horror movie than political advertising. But it was so successful at demonizing gay people as a dangerous fringe element that it was promoted at Christian-right conferences for years. Indeed, the group also was reanimated in 2006 in support of the gay marriage ban and again in 2012 when same-sex civil unions threatened to pass the legislature with Republican support.
But Colorado, like most of the rest of the country, had been moving forward in its view of gay rights. And in 2012, the hardline 1990s-style anti-gay pitch — this time meant to defeat civil unions — came off as anachronistic and desperate.
“If the homosexual lobby gets their way, traditional families will be a thing of the past,” the group warned supporters.
The campaign succeeded in energizing far-right social conservatives who barraged then-Republican House Speaker Frank McNulty with phone calls and emails. McNulty made Colorado history by leading an unprecedented showdown on the House floor, angrily wielding the gavel to silence debate, orchestrating a filibuster and then walking away from the chamber during a two-hour recess. McNulty ran out the clock to keep the civil unions bill from reaching the floor and he killed dozens of other bills in the process.
Voter polls in 2012 showed the civil unions bill had upwards of 70 percent support in the state. In the fall, Democrats won majorities in both chambers of the legislature.
University of Denver law professor Kristian Miccio told The Colorado Independent that year that campaigns against gay rights characterized by references to nefarious agendas and threats to families had lost a key advantage. She said campaigns like those waged by groups such as Colorado for Family Values used to benefit from a “shock of the new” effect.
“They were an aggressive introduction for most Coloradans to the idea of gay rights,” she said. “[A]re those early votes against gay rights even a fair measure of where opinion was at the time? I’m not sure.”
Miccio suggested that, beyond activist Christian-right circles, Colorado for Family Values-style messaging, which sets a radical fringe against a mainstream majority, may have had an ironic effect in 2012 because ideas about what constituted “radical” and “mainstream” had evolved.
With Democrats running the legislature in 2013, civil unions passed easily.
“It took years to get that consolation prize,” Steadman said Monday. “And once we got it passed, I immediately predicted it would become quickly passé… It feels like things are moving really fast now, but this is the logical conclusion of this dispute.”
Mark Ferrandino, the openly gay Denver lawmaker who replaced McNulty as House speaker and who worked with Steadman to pass civil unions for three years, agreed that the U.S. Supreme Court news came suddenly Monday but that the story was long in unfolding on the ground.
“The Supreme Court’s decision vindicates a lot of work by a lot of people over a lot of years,” he said in a release. “But what really matters is that our state and our country will finally offer equal treatment under the law to all loving couples.”
Others underlined the need to build on the momentum generated by the news that the Supreme Court decided not to review U.S. Appeals Court rulings that found gay-marriage bans unconstitutional in Indiana, Oklahoma, Utah, Virginia and Wisconsin. The effect was to make gay-marriage legal across three federal jurisdictions covered by the rulings. In total, it meant gay-marriage bans fell in 11 states, including in Colorado.
Kat Teter, 23, a board member at Inside Out Youth Services, the only LGBTQ youth advocacy group in El Paso County, said they were “delighted” with the news but intent not to lose focus on the fight for greater equality. “I would remind LGBT people and our allies that our work is not yet done.”
They also pointed out that in 29 states gay people can still be fired just for being gay; that 40 percent of homeless young people are LGBT kids; that, according to the Gay Lesbian Straight Education Network, 92 percent of LGBT youth say they’re bullied or mocked at school.
“We should celebrate this historic victory, and then we must recommit ourselves to the long road ahead,” they said.
Grace Montesano, a 18-year-old lesbian from Denver, said Monday she was conflicted about the high court’s decision, mainly because she’s conflicted about marriage as it has been constructed and practiced. It’s an institution in which women have been subordinated and in which monogamy has been championed to ill effect, she said.
“It’s somewhat exciting to see such a great influx of queers in love who are so happy,” she said. “So maybe this could lead to a queering of the very institution we’ve been kept out of for so long. Maybe the restructuring necessary to assimilate queer individuals will result in a better institution overall. Whatever the case, the work is far from over.”
Bruce Hausknecht, a judicial analyst at Focus on the Family, said Monday’s ruling won’t affect the work of his organization.
“We’ll continue to do just what we’ve always been doing,” he said. “I think anyone can follow the polls and see that there has been some trend of acceptance over the last few years. It looks like that has leveled off, though. We will precede to be divided on that issue the same way we are divided over abortion…
“Marriage is and always has been the union of one man and one woman… Marriage always has been and always will be a top concern.”
Late Monday afternoon, the state attorney general’s office, the governor’s office and county clerks filed joint motions to lift stays overturning the state marriage ban put in place by the 10th Circuit and Colorado Supreme Court after state and federal district courts ruled against the bans and the state appealed those rulings. Parties to the lawsuits also moved to dismiss the appeals. Legal analysts estimate that gay marriage will be fully legal and in practice in Colorado within a week.
But a last order of business remains. If lawmakers want same-sex marriage ban Amendment 43 removed from the state constitution, they must pass a resolution to that effect. Proposing and passing such a resolution should be nothing more than a formality given that Monday’s high court announcement has drained the amendment of any legal power. But it may not be so easy.
Although the high court struck down Amendment 2 more than 18 years ago, the law remains part of Colorado’s constitution. When Steadman and Ferrandino proposed removing it in 2012, social conservatives rallied. The Catholic Conference, Right Turn Colorado and Don’t Forget the Facts Colorado pushed the position that keeping the provision on the books offered some measure of protection against future gay-rights legislation and against infringements on religious liberties.
McNulty that year made sure Steadman and Ferrandino’s resolution died along with their civil unions bill.
Ferrandino later said that the fringe Republican base was controlling the legislature by directing the actions of the Speaker.
“The vote [on the resolution] is not actually injurious,” he said, comparing it to the vote to kill civil unions. “This time, McNulty’s minions settled for being gratuitously offensive.”
Colorado Democrats this election year are likely to retain their majority in the House but they control the Senate by only one vote. And the governor’s race pitting incumbent Democrat John Hickenlooper, who supports gay marriage, against former Congressman Bob Beauprez, who does not, is also closer than anyone would have predicted.
Beauprez has touted his Catholic views on the stump and he has repeatedly attacked Hickenlooper for going along with the “Democrat legislature” and refusing to more forcefully control the agenda at the Capitol.
With reporting by Nat Stein.
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