DENVER – Gov. John Hickenlooper will sign into law civil unions for gays and lesbians any day now – an action that, if President Barack Obama has his way, almost immediately would invalidate the bill in favor of same-sex marriage in Colorado.
The chain of events depends on a Supreme Court case, and it could lead to legalized same-sex marriage in Colorado this year, without a vote of the people.
Obama’s Department of Justice advocated the course of action to the Supreme Court two weeks ago, and the president himself restated his position against civil unions and for gay marriage in a Wednesday interview with ABC News.
Obama called out California, which – like Colorado soon will – allows civil unions but bans same-sex marriage.
“Well, at that point, what you’re really saying is, ‘We’re just gonna treat these folks differently because of who they are.’ And I do not think that’s who we are as Americans,” Obama told ABC News.
Throughout the three-year effort to pass a civil unions bill in Colorado, supporters stressed that although a civil union looks similar to marriage, it is a different and unequal status.
Colorado voters in 2006 amended the constitution to declare that marriage is between one man and one woman, and legislative proponents of same-sex marriage have assumed that only voters can undo the amendment.
But Obama has laid out a way for the U.S. Supreme Court to do it, and soon. Here’s how it would happen:
Obama’s solicitor general, Donald Verrilli, filed a friend-of-the-court brief last month in a Supreme Court case that seeks to overturn California’s voter-adopted ban on gay marriage.
The case is being closely watched because it gives the Supreme Court a chance to say whether gay marriage should be legal or illegal in the United States.
Verrilli lays out a middle way for the justices.
He advocates that because California has civil unions but not gay marriage, its laws should be overturned as a violation of the U.S. Constitution’s guarantee of equal protection under the law.
Civil unions work like marriages, and they should be recognized as such, Verrilli wrote.
“California has therefore recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: They establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death,” he wrote.
Rep. Bob Gardner, R-Colorado Springs, led the legal arguments for House Republicans in opposition to the civil-union bill. He said Verrilli’s argument makes sense legally.
“It’s a very skillful lawyer’s way of ... trying to pull the court a little way down the slope (to gay marriage),” Gardner said. “And it might be successful, which is why the public needs to understand there is effectively no distinction (between civil unions and marriage).”
Eight states currently have civil unions but not same-sex marriage.
Jacob Combs, an editor for Equality on Trial, which advocates for same-sex marriage, dubbed Verrilli’s position the “eight-state solution” in an analysis he wrote about the brief.
Had he known that Colorado was about to pass civil unions, he would have called it the nine-state solution, Combs said in an email interview with the Herald.
Verrilli did not explicitly call for the overthrow of civil-union laws in any state but California, Combs said.
“It leaves us and/or the justices to connect the dots toward a larger ruling striking down marriage bans in civil unions/domestic partnership states. But I think that’s certainly his intention,” Combs said.
One prominent gay rights advocate in Colorado doubts the court will follow the Obama Administration’s advice.
Brad Clark, executive director of One Colorado, called the chain of events “somewhat unlikely.”
His group wants same-sex marriage to be legalized in Colorado, but he’s unsure how his supporters would react if it’s done by judicial decree.
“I think it’s too early to tell. We just came off a really great victory (on civil unions), and we’re really excited about that,” Clark said.
Colorado is not a party in the Supreme Court case, and Attorney General John Suthers did not want to comment about Verrilli’s brief.
The Justice Department filed the brief just as Colorado’s civil-unions bill was in its final stretch through the Legislature. The effect of his argument did not come up during debates at the Capitol.
Sen. Pat Steadman, D-Denver, sponsored the civil-unions bill. He was aware of the Obama Administration’s brief but hadn’t read it. He doubted, however, that the Supreme Court would create an “automatic upgrade” from civil unions to marriage.
He predicted the Supreme Court would find a way to narrowly tailor its ruling to California and avoid setting a national precedent. Other court cases will pave the way for same-sex marriage at a national level within a few years, Steadman said.
Colorado was right to pass civil unions, he said, even though national events could soon make the bill moot.
“I don’t think it will stand the test of time, nor will the language in our constitution,” Steadman said.