A defunct provision of the Colorado Constitution that limits marriage to between a man and a woman may finally be stripped from the state’s guiding document under a proposed amendment introduced in the state Senate.
The resolution, filed late last week by Sen. Joann Ginal, a Fort Collins Democrat, requires support from two-thirds of state senators and representatives. Should that happen, Colorado voters would then decide in November whether to nix the same-sex marriage ban that was approved by voters in 2006.
The landmark 2015 U.S. Supreme Court decision Obergefell v. Hodges, which legalized same-sex marriage nationwide, has made the Colorado constitutional language unenforceable for years.
The new effort is a preventative measure, supporters said. Advocates for gays and lesbians have raised concerns about the staying power of the 2015 decision in the wake of the Supreme Court’s 2022 Dobbs v. Jackson ruling, which overturned the right to an abortion.
In his concurring opinion in that case, Justice Clarence Thomas wrote that the high court should “reconsider” previous precedents from other marquee decisions that were due process precedents, including Obergefell.
“In Colorado, there could be something that says that this is not valid anymore — that the ruling of unconstitutionality is superseded by this Supreme Court,” said Rep. Brianna Titone, an Arvada Democrat and the co-chair of the Colorado Democratic LGBTQ+ Caucus. “And if that amendment comes back to life, then a lot of people would have problems getting married.”
Titone said supporters were focused on stripping the outdated language first and may come back in a future year to enshrine same-sex protections in the state constitution.
Ginal declined to comment Monday. One Colorado, the LGBTQ+ rights organization supporting the amendment, confirmed its involvement but also declined to comment.
To pass the Senate, Democrats — who are one seat shy of a two-thirds majority — will need the support of at least one Senate Republican, assuming every Democrat votes in support. Supporters have said they’re confident they’ll meet the threshold, though they’ve stayed mum about any senators who may join them. In the House, Democrats’ majority exceeds two-thirds.
Minority Leader Paul Lundeen, the top Republican in the Senate, said he wanted to see how the debate played out before he committed himself or anyone in his caucus to the resolution.
But the fact that court precedent has rendered Colorado’s same-sex marriage ban moot would likely give more “freedom” to fellow Republicans to back the resolution, he said.
Lundeen said he saw a distinction with a child sexual abuse constitutional amendment that failed last week after all Republicans voted against it. He said that measure, which was aimed at allowing survivors of older cases of abuse to bring lawsuits against their abusers and the institutions that protected them, raised legitimate constitutional concerns.
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