For a long time, it has felt like our country is steadily marching toward progress. What exactly progress is, though, is tricky to define and ephemeral. Progress, after all, is in the eye of the beholder and tends to change along with our culture. But for the purposes of this argument, let’s say progress is the march toward equality. Toward racial justice. Toward gender parity. Toward LGBTQ rights.
Progress toward these goals has never been steady, but it is nonetheless important to realize that our society and our country have made headway.
This is not an effort at rose-tinted revisionism, nor, for that matter, an implication that we are on a backslide. The fact of the matter is that the progress we have attained has been incredibly hard-fought. And that progress is still being made — despite all of our ongoing struggles.
That said, it is important to recognize that several of the rights that our society has worked to normalize and protect are in fact being undermined — often against the will of the public and for purely cynical political reasons.
And it is because of this, because the ground beneath our feet is ever-shifting in these hyper-partisan times, that it is vital that our elected leaders come together to pass a Senate resolution that would remove Colorado’s same-sex marriage ban from our state Constitution.
For many, it will likely come as a surprise to learn that Colorado has a constitutionally enshrined same-sex marriage ban. After all, same-sex marriages have been legal in Colorado — and the rest of the U.S. — since 2015, when the U.S. Supreme Court ruled on Obergefell v. Hodges. The landmark Obergefell decision legalized same-sex marriages — and made Colorado’s 2006 ban unenforceable.
In a perfect world, Obergefell would have put an end to this conversation. The long overdue ruling ushered in a normalization of same-sex marriages and LGBTQ rights (generally speaking and at least in places like Colorado).
But the fact of the matter is, that same-sex unions are not enshrined in the U.S. Constitution. The only thing keeping them legal is the Supreme Court’s ruling, which rests on an interpretation of the 14th Amendment — the very amendment that the court reinterpreted in 2022 to overturn Roe v. Wade.
Worse still, in that controversial ruling, the court’s most radical justice, Clarence Thomas, laid out in his opinion a vision of an America with no right to contraception, same-sex intimacy or same-sex marriage. While no one else signed onto Thomas’ egregious treatise, in a post-Roe world it is not hard to imagine more constitutional rights toppling.
This brings us back to Colorado’s same-sex marriage ban. If Obergefell were to be overruled, our ban could once again become law.
(It is worth noting that many LGBTQ rights are under attack or have simply never been granted in the first place. We still have a long way to go in our aspirational quest for “freedom and justice for all.”)
This may seem absurd, but we only have to look to Arizona where that state’s Supreme Court upheld a near-total abortion ban from 1864 to see how real this possibility is. The 1864 law had a long and complicated history, but it had become unenforceable after Roe was ruled on in 1973. It was brought back from the dead with 2022’s Dobbs v. Jackson.
These sorts of laws are rightfully known as zombie laws. Laws that are dead and forgotten — until they aren’t.
Despite an overwhelming public outcry about a century-old reproductive health law suddenly being back in effect, Arizona’s conservative lawmakers hemmed and hawed about whether or not to let it stand. Eventually, after weeks of trying, Democrats were able to pass a state Senate bill to erase the measure — with the help of just two of their Republican counterparts.
This is where things get tricky for Colorado. To remove something from the Colorado Constitution takes a two-thirds majority in both the House and Senate. In the House, Colorado Democrats have the votes necessary. But in the Senate, they will need at least one vote from a Republican.
Of course, we want to be optimistic. We want to imagine that it will be easy for this Senate resolution to sweep through the Capitol. In fact, we wish for nothing more than total support from all members of the House and the Senate.
But in the wake of the recent debacle with an effort to amend our state Constitution to remove the statute of limitations on cases of child sexual abuse, we aren’t nearly as confident as we’d like to be. Instead of passing a simple piece of legislation that would help hold those who are guilty of child sexual abuse accountable for their detestable actions, Colorado Republicans voted along the party line and killed the resolution.
In a statement, Senate Republican leaders defended their indefensible position by saying the resolution “would have upended numerous constitutional and legally settled rights we all depend on.”
Such cynical politics is exactly why we have our doubts — and why it is so important to pass this Senate resolution to get this same-sex marriage ban out of our Constitution. We hope Republicans prove us wrong and help this resolution pass.
All of this may seem convoluted, like a string of scenarios riddled with what-ifs. What if the U.S. Supreme Court continues its rightward shift? What if it overturns Obergefell? What if our same-sex ban becomes a zombie law? What if it is enforced?
If these hypotheticals aren’t convincing, consider this: Our state’s Constitution is a living, breathing document. It was, by its very nature, meant to be amended. Meant to grow and progress as our society grew and progressed. America’s founders and Colorado’s first leaders did not profess to know everything. That is the whole point of an amendment. Because we are always growing and learning and adapting.
Our Constitution is a reflection of who we are. It is a reflection of our values. No matter what happens at the U.S. Supreme Court, banning same-sex marriage is not who we are — at least not anymore.
“Human progress is neither automatic nor inevitable,” Martin Luther King Jr. said in 1959. “Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.”
Let’s honor all the tireless exertion that has gotten us this far and get our lawmakers to pass this resolution so that in November we can come together and remove this outdated provision from our Constitution and take another step toward living our values.
― Gary Garrison for the Editorial Board
