Summary
Currently, Article II, Section 31 of Colorado’s Constitution states that only “a union of one man and one woman is valid or recognized in the state.” This section was included through Colorado Amendment 42 in 2006, a citizen-initiated ballot that saw 55% voter approval. It was later struck down in 2014 as discriminatory by a Colorado district court judge and a U.S. district court, and then again by the United States Supreme Court’s Obergefell v Hodges decision in 2015, which ruled that marriage was a fundamental right guaranteed to same-sex couples.
Colorado marriage licenses have been issued for same-sex couples since 2014. However, Section 31 remains in the state constitution. Amendment J was put on this year’s ballot by the state legislature, so voters can choose to replace the current language in Section 31 with “A union of two consenting adults shall be valid or recognized as a marriage within the state.” A supermajority of votes from Coloradans (55%) is needed for a constitutional amendment to pass in Colorado.
Fiscal Impact
Colorado has been issuing same-sex marriage licenses since 2014. There is, therefore, no fiscal impact other than the minor election costs associated with any ballot measure. However, a 2011 analysis of the impact of then-proposed same-sex civil unions in Colorado predicted state revenue increases due to savings on means-tested public benefits programs,’ licensing fees, and sales tax revenues from celebratory ceremonies, accommodations for out-of-state guests and related spending, which would outweigh increased costs associated with enrolling spouses on state benefits. Such fiscal effects were likely seen after the issuing of marriage licenses to same-sex couples, although the impact has not been documented.
Proponents’ Arguments
Amendment J was introduced by Senator Joann Ginal (D-Larimer). The other two prime sponsors of the bill are Representatives Alex Valdez (D-Denver) and Brianna Titone (D-Jefferson). Several arguments were offered for the resolution. The first relates to the principle of equality under the law. Ginal states:
“Marriage is a basic freedom that should not be denied to anyone…In the United States, freedom means freedom for everyone. No member of anybody’s family—gay or straight—should be singled out for unfair treatment or denied their basic American freedom, just because of who they are and who they love.”
The second argument relates to the state constitution’s outdated, unconstitutional language that is also out of touch with popular sentiment and values about same-sex marriage. Titone asserts, “This is what the people want. They don’t want an unconstitutional amendment in the Constitution anymore.” The last argument addressed the importance of removing the language in Section 31, given recent statements by Justice Thomas about revisiting Obergefell v. Hodges to prevent same-sex marriages if the decision were to be overturned.
Among the nongovernmental supporters of Amendment J passage is Freedom to Marry Colorado, a coalition of organizations, and One Colorado, the biggest LGBTQ advocacy organization in the state. One Colorado Executive Director, Nadine Bridges, said attitudes toward same-sex marriage have changed, that the constitution’s language is now outdated, and also raised the specter of the Supreme Court reversing its 2015 decision. She stated:
“More than one Justice has said that same-sex marriage should be revisited…if the Obergefell decision is overturned, same-sex couples cannot be married in the future here in Colorado if this amendment remains in our state constitution.”
Opponents’ Arguments
Unlike California’s Proposition 3, a similar ballot initiative, the bill to put Amendment J on the ballot did not pass uncontested in Colorado, even as it obtained a two-thirds majority vote. Five Republicans in the Senate and 13 in the House voted no, as did one Democrat in the House. Still, there was bipartisan support, with six Republicans in the Senate and two in the House voting for the bill.
Representative Scott Bottoms (R-Colorado Springs), in expressing his opposition, said he did not object to the amendment going before Coloradans but that it contradicted God’s laws. He said,
“Marriage was never between people and a state…it was between people and God. God established marriage…if you want what God says is marriage, you have to go by his rules.”
Among the organizations opposed to Amendment J, Focus on the Family and the Colorado Catholic Conference spoke at the House Judiciary Committee against the amendment. The Colorado Catholic Conference argues that marriage is rooted in the biological ability of men and women to reproduce, that children have a natural right to a mother and a father, and also that social science supports the need for a mother and a father to prevent ills such as poverty and crime. Focus on the Family advocates for the concept of natural marriage, limited to unions between men and women. They state, “Marriage and family require male and female because nature demands it…marriage as an exclusively heterosexual union is the statement from nature that the family needs both parts of humanity, not just for procreation, but for all of life.” Focus on the Family, as with the Colorado Catholic Conference, also sees heterosexual marriage as necessary for good familial and societal outcomes.
Discussion
Colorado was one of 30 states that amended its constitution via ballot initiative to include language that limited marriage to unions between a man and a woman between 1998 and 2012. To date, only Nevadans have repealed their amendment. This November, Colorado joins California and Hawaii in giving voters the choice of removing that language through a legislatively referred amendment. It is likely to pass, as 69% of Americans now approve of legalizing same-sex marriage.
Amendment J may seem unnecessary because of the Supreme Court’s 2015 decision in Obergefell v. Hodges, which invalidated all laws and constitutional amendments limiting marriage to a man and a woman, establishing the right for same-sex people to marry and to have their marriage recognized in all states on the basis of the constitutional guarantees of due process and equal protection, the same guarantees that protected interracial marriage in Loving v Virginia. However, Justice Alito has written about the dangers he anticipated from the Obergefell decision, namely, Americans who disagree with same-sex marriage will be “labeled as bigots and treated as such by the government.” Justice Thomas signaled in his opinion in the case Dobbs v. Jackson Women’s Health Organization a willingness to reconsider the outcome of Obergefell. Because the Dobbs case was the decision that overturned Roe v. Wade, it upended a sense of complacency with relying on judicial precedents to protect rights that were not enshrined in state laws and constitutions. The ballot initiatives in Colorado, California, and Hawaii are preemptive as much as they are about removing outdated language. At the federal level, we see this same motivation in the 2022 repeal of the Defense of Marriage Act with the Respect for Marriage Act.
Some constitutional experts have discouraged panicking about the demise of that precedent. The majority opinion given by the Supreme Court justices in Dobbs asserts that it is an “unfounded fear” that Obergefell will be overturned. Still, eliminating language from state constitutions that invalidates same-sex marriages upholds several valuable core principles.
It provides for an essential and meaningful personal freedom to enter into a socially recognized institution with another person regardless of their sex, it removes the government from functioning as a sexual morality police, and it maintains equality under the law. At the same time, it does not deprive heterosexual couples of their own rights, nor does it infringe on the religious or ideological liberty of those who disagree with same-sex marriage. Getting the government out of defining, regulating, and providing special benefits for marriage entirely is a better long-term goal. However, in the interim, ensuring that same-sex couples do not have their rights infringed upon merits the passage of Amendment J.