DENVER — Legal same-sex marriage came to Colorado in a flash last year, delivered at breakneck speed on a winding path that passed through several courtrooms around the country. As recently as 2012, lawmakers here battled bitterly over same-sex civil unions legislation. That now seems like ages ago. The U.S. Supreme Court announced just last week that it will consider the marriage question this spring and issue a decision this summer that will apply to all 50 states.
The politics of gay rights, however, is lagging well behind the courts and public opinion. Indeed, battles over the subject are already taking shape at the Capitol. Sen. Pat Steadman, D-Denver, an openly gay legislator who sponsored a civil unions bill that finally passed in 2013 after several failed efforts, initially thought of followup bill he is proposing this year, SB 16, as a relatively low-profile cleanup measure. The bill aims to reckon state statutes on civil unions with the fact that same-sex marriage is now legal.
“As soon as the opportunity to upgrade became available, many people did that,” Steadman explained, referring to Coloradans who entered first into civil unions and, later, when they could, into marriages. “They probably did that without getting legal advice about the consequences of having two recognized relationships by the state,” he said. “The problem is that, today, if a couple has done both and they later want to divorce, they would be required to file two divorce petitions and go through two separate divorces — one for their marriage and one for their civil union.”
In addition to what he sees as an unfair fiscal burden on same-sex couples who might find themselves embroiled in a double divorce, Steadman said the legal inconsistency will also create serious headaches for lawyers and judges.
“Say you were in a civil union for 15 years and a marriage for 13 years because you got the civil union when you could and you got married when you could,” said Steadman. “Then suppose somebody owes maintenance to the other spouse. Do you get the full amount of the marriage or of the civil union? There’s nothing to help the courts figure this out. That’s why this bill really needs to pass.”
If the inconsistencies between Colorado state statues and federal court decisions legalizing same-sex marriage aren’t put to rest at the Capitol, Steadman warns the issue will end up in the courts, where he feels certain the state will lose and have to foot the legal bill.
Ironically, the provision Steadman is particularly worried about going to trial is one he fought for just a few years ago. At the time, if a same-sex couple was legally married in another state, their marriage more or less evaporated if they relocated to Colorado. In an effort to address that issue, Colorado’s civil unions bill also included a provision that automatically converted out-of-state marriages to civil unions.
“Today that’s still the law, although now we have marriage equality and it’s a requirement to recognize other state’s marriages,” he said. “What used to be a welcoming, accommodating gesture is today a discriminatory gesture that is probably unconstitutional. We’re gonna get sued over it.”
In fact, Steadman said that a perfect test case — a same-sex couple married in Massachusetts and now seeking a divorce in Colorado — has already landed in court, before what Steadman calls a “hostile judge,” who is looking at the divorce as a civil union.
“There are hostile judges on the bench that will do everything they can to take this chaotic state of the law and impose their moral judgment on poor unsuspecting people who came into their courtroom,” he said.
Steadman laments the fact that Republican leadership has assigned his cleanup bill to the state affairs committee, colloquially known in the Capitol as the Senate “kill committee.” It’s a decision some suggest has been mirrored in the House, where Democrats are in control, and where a Republican bill aimed at prohibiting transgender people from using the locker rooms that match their chosen identifies was similarly sent to the House state affairs “kill committee.”
Steadman is said to have a good working relationship with Senate President Bill Cadman, R-Colorado Springs, and the two do seem to have a serious personal connection. Cadman, for example, asked Steadman to join him at the podium during the opening day of the session to light a candle in memory of Steadman’s late partner. Even so, Steadman said he doubts his bill will make it out of committee.
“Apparently we’d rather pay attorney fees than acknowledge the humanity, decency and dignity of gay men and lesbians,” he said.
Senate leadership declined to comment directly on the bill’s prospects, saying only that it’s too early in the legislative session to speculate about which measures will make it to the floor.
Steadman is confident in his assessment, however, perhaps partly because this wouldn’t be the first time an LGBTQ-rights cleanup bill has become the subject of a partisan face-off at the Capitol.
In 2012, even as Steadman’s civil unions bill was being sidelined, conservatives also rallied to oppose a Steadman measure that would have repealed the then-moot constitutional language of Amendment 2, which had prohibited protections for gay people against discrimination. The amendment had been ruled unconstitutional and lost all its power nearly 20 years before.
It’s the kind of political move perhaps best explained as a bi-product of the intense, often ugly, Republican Party primaries in Colorado, where any hint of softness on core issues — including so-called social issues — can translate to a round of distorted mailers and a loss.
“I’m not surprised,” said Steadman of what he sees as the Republican move against his new bill. “They can’t help themselves… I was kind of hoping the tide had turned. I was certainly presenting an opportunity for the tide to turn.”
But Steadman is confident broader public opinion in the state is now on his side.
“I’ve already told all of them, ‘I’m going to come into committee with this big sword and I’m going to hold it really strong and firm and steady and you guys are gonna fall right on it.’”