If Obergefell were overturned, legal same-sex marriage not guaranteed for Coloradans

Justice Thomas says the Supreme Court should reconsider same-sex marriage protections, which could leave the matter up to states

By: - June 24, 2022 2:46 pm

Two people fly a rainbow LGBTQ pride flag and a transgender pride flag in front of the Colorado Capitol building during a celebration on Nov. 7, 2020. (Moe Clark/Colorado Newsline)

In U.S. Supreme Court Justice Clarence Thomas’ concurring opinion today to overturn Roe v. Wade, he said the Supreme Court should “correct the error” established in precedents that protect contraception use, same-sex relationships and same-sex marriage.

Colorado has a long history of denying same-sex marriage rights. Overturning the Supreme Court’s 2015 ruling in Obergefell v. Hodges, which legalized same-sex marriage nationally, could take the state many steps back. 

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“It is not surprising that this would be the first in what will likely be a wave of Supreme Court decisions that threaten LGBTQ people, their relationships and their families,” said Bruce Parker, deputy director of Out Boulder County, a nonprofit that advocates on LGBTQ+ issues. 

In 2006, Colorado voters passed Amendment 43, which defined marriage as only being between a man and a woman. The ban on gay marriage in Colorado was struck down by the 10th Circuit Court of Appeals, which cited the 14th Amendment in the decision. 

“Without knowing exactly what would happen if Obergefell were overturned, there certainly would be questions about what would happen next,” said Sara Neel, senior staff attorney for the American Civil Liberties Union of Colorado. The ACLU of Colorado was active in the fight to legalize same-sex marriage in the state. 

“But, I believe that there is still a strong argument that the prohibition against same-sex marriage in Colorado could be not upheld, but struck down as well under the Equal Protection clause,” she said. 

We’ve come a long way, and our statute books are filled with inclusive things and equitable language. And that could all go away if this court decides to go that route, which would not surprise me in this case.

– State Rep. Brianna Tinone

However, Neel said it is unclear what would happen if the Obergefell v. Hodges decision were overturned. Based on the Dobbs v. Jackson ruling today, which overturned the Roe v. Wade decision, Neel said a decision on same-sex marriage would go back to the states. She said the ACLU of Colorado would fight the impacts on Coloradans from such decisions if these precedents are overturned. 

State Rep. Brianna Titone, an Arvada Democrat, is concerned about Thomas’ opinion. Colorado’s Amendment 2, a ballot initiative passed in 1992 and later ruled unconstitutional, prohibited the state from enacting anti-discrimination protections for LGBTQ Coloradans. Titone said the state has come far since the initiative was voted on. However, she notes that the Roe v. Wade decision was overturned after nearly 50 years while most LGBTQ protections are newer. 

“We’ve come a long way, and our statute books are filled with inclusive things and equitable language. And that could all go away if this court decides to go that route, which would not surprise me in this case,” Titone said. 

There is intersectionality between abortion rights and transgender rights, said Titone, the first out trans state lawmaker in Colorado history. Without legal protection of bodily autonomy, there could be no protection for living authentically as a trans person.

If Obergefell v. Hodges is overturned, Titone said it would not be easy to protect same-sex marriage rights in Colorado. For example, Amendments 2 and 43 were ballot initiatives, adopted by a vote of the people and outside the ability of legislators to protect against. Titone is waiting on an opinion from legal staff to better understand if Amendment 2 and 43 could be reactivated if Obergefell v. Hodges were overturned, she said. It would take a vote of the people to enact protections or repeal the discriminatory laws that were in place, which is not easy to do, she said.

Titone and Parker blasted the Supreme Court. Titone said the nature of the recent appointments of Justice Brett Kavanaugh and Justice Amy Coney Barrett was hypocritical after former President Barack Obama was blocked from appointing a new justice. Under oath, both Kavanaugh and Coney Barrett during their appointment hearings acknowledged that the court’s decisions upholding abortion rights were established precedent. 

“Six people, no matter their position in government, will not be allowed to take away fundamental rights from our communities,” said Parker. “We will organize. We will vote. We will fight, and we will win.”

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Zoe Schacht
Zoe Schacht

Zoe Schacht is a former reporter for Colorado Newsline. In December 2022, she will graduate from the University of Colorado Boulder with a degree in journalism and a minor in communication. At CU, Zoe was Editor-in-Chief for the CU Independent where she gained a passion for journalism and storytelling.

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