Following the Supreme Court’s reversal of Roe v. Wade on Friday, members of Colorado’s LGBTQ community are concerned that the nation’s highest court could overturn marriage equality and allow for the reinstatement of sodomy laws. In a concurring opinion, Justice Clarence Thomas wrote that, with the end of federal privacy rights protecting abortion, decisions that advanced equality for LGBTQ people might be struck down on similar grounds.
Thomas specifically pointed to Lawrence v. Texas, which in 2003 put an end to sodomy laws, and 2014’s Obergefell v. Hodges, which allowed same-sex couples to marry nationwide. Thomas’ words contradict those of Justice Samuel Alito, who wrote, “The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
In Colorado, marriage equality came as a result of a federal court ruling. Some activist groups are intent on pushing to cement marriage equality into state law during next year’s General Assembly. Gov. Jared Polis told Colorado Matters in May he would sign such a bill. But there is no guarantee he or other Democrats will be in charge after the November election.
Garrett Royer, deputy director at One Colorado, an advocacy group that focuses on LGBTQ equality in the state, spoke with Colorado Matters Senior Host Ryan Warner.
This interview has been edited for clarity and length.
Ryan Warner: Justice Alito writes, “The court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedence that do not concern abortion.” Do you take comfort in that?
Garrett Royer: That's a difficult question to answer considering there is clearly a contradiction with the concurring opinion from Clarence Thomas, because he explicitly names two cases that I think are instrumental in LGBTQ rights. In order for Alito to argue that established precedent of Roe v. Wade – which is a 50-year precedent, it should be challenged under due process. To not recognize the implications that could potentially have for two related cases that are already argued using due process seems like he's trying to have it both ways. I think Clarence Thomas, in his concurring opinion, made that much more explicit of what the intentions of some of these justices are trying to do.
Ryan Warner: Justice Thomas invoking, specifically, Obergefell, which legalized same-sex marriage in many places across the country. So, help us understand what protections are there for same-sex marriage in this state?
Garrett Royer: This is what's incredibly concerning, is that there are no existing protections in Colorado, besides the Supreme Court ruling. It's clearly one of the things that Gov. Polis has said that he wants to make a priority for the next legislative session. It's one of the main priorities for One Colorado going into the next legislative session: ensuring that we can codify marriage protections here in Colorado. But yes, there are no existing protections other than the Obergefell decision.
Ryan Warner: Would you want that codified in statute for instance, as Colorado has done with abortion access? Would you like to see that in the state Constitution to protect same-sex marriage?
Garrett Royer: I think that LGBTQ folks in Colorado would be happy to see it be codified either way. It would be much more difficult to go a constitutional route because that would likely then have to go in front of the voters. We've seen in Colorado that in past constitutional amendments – in the Amendment 2 decision, for example – Colorado voters let down LGBTQ people and voted to block nondiscrimination protections for LGBTQ folks.
So, I think that it would be preferable to go through statute. But at this point, we need to guarantee that the protections for LGBTQ folks to marry currently exist and stay in place in Colorado.
Ryan Warner: You invoked Amendment 2, which was passed in 1992, and basically said that 'no community, no level of government in Colorado could pass anti-discrimination laws.' That earned Colorado the moniker, “The hate state.”
Garrett Royer: Yes.
Ryan Warner: It sounds like you're still smarting from that, Garrett.
Garrett Royer: I wouldn't say 'smarting.' I think that Colorado has come an incredibly long way. We elected the first openly gay governor; we have a pro-equality majority in both chambers of our state Legislature.
But it's important to remember the history of Colorado as it pertains to LGBTQ rights. We are now one of the leading states when it comes to LGBTQ rights, we have some of the strongest protections when it comes to nondiscrimination protections, when it comes to the access for transgender folks to access gender-affirming care. But I still would be concerned about handing over the rights of LGBTQ folks to the voters, if they don't fundamentally understand that issue. And clearly, based on the court's decision, they are explicitly identifying our community and will continue to identify our community, and other marginalized populations, as folks whose rights should be in question. Again, that's why we need to guarantee that, whether it's through the Legislature or another process, we have protections in Colorado for same-sex marriage.
Ryan Warner: It strikes me though that much of what you're saying depends on a continuation of Democratic majorities. It's not to say that there aren't any Republicans who would support these measures, but they would seem to be much more likely to pass if you maintain a Democratic governor, and a Democratic House and Senate. Do you see the midterms now as somewhat existential?
Garrett Royer: Absolutely. We did already think that the midterms were going to be incredibly critical in terms of what is going to be accomplished in Colorado. We know that the state Senate is vulnerable; but if anything, my hope is that this decision will motivate and mobilize voters to turn out to vote and to see what the stakes are. Historically, Republicans have been the ones that have been motivated when it comes to abortion. We have not been on the other side of this: The ball is in Democrats' court. In order to guarantee that a pro-equality majority exists in the Legislature, Democrats are going to need to see what those stakes are and ensure that their ballots get in this November.
Ryan Warner: Thank you for being with us.
Garrett Royer: Thank you for having me.