A little more than seven years ago, I affixed my name to an amicus brief to the U.S. Supreme Court to support marriage equality. I joined more than 300 Republicans to do so at the time.
Less than a decade later, many of us found ourselves — and some new supporters — signing a similar letter asking the U.S. Senate to pass the Respect for Marriage Act. This time around, 10 other Coloradans joined me. My name begins a run of three in an alphabetical row; former state representative and civil union hero B.J. Nikkel is immediately below mine, and current U.S. Senate candidate Joe O’Dea follows hers.
The letter was necessitated by the ruling in Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision that overturned Roe v. Wade.
The Dobbs decision did not outright outlaw abortion itself. Instead, it declared abortion an issue to be decided by each individual state. That in turn triggered pre-passed laws in a host of states implementing restrictions along a spectrum of timelines.
Unfortunately, the same rationale behind Dobbs could be applied to both same-sex marriages and interracial marriages.
If the Supreme Court followed a similar path, Colorado could be in for a rude awakening. Amendment 2, the ballot initiative that would have banned same-sex marriage and earned Colorado the “Hate State” moniker in 1992, was ruled unconstitutional in Romer v. Evans. But it remains in our state constitution.
It is possible that precedent could fall as well.
Fearing that outcome, I have spent years correcting anyone who called me a “gay marriage advocate.” Instead, I have always said I am a “marriage equality” advocate. It is a subtle, but important distinction.
Marriage equality is broader and provides additional legal support. It certainly encompasses same-sex marriage, but it also imbues it with more constitutional cover than abortion rights had under Roe. The later relied upon a penumbra of privacy derived from the U.S. Constitution and Bill of Rights.
Though a right to privacy is not expressly enumerated, the Roe Court ruled that it was fundamental to our constitutional jurisprudence and served as the basis for a woman’s right to choose whether or not to have an abortion. That made it ripe for attack once opponents found a favorable court predisposed to ignore anything beyond the express words put on paper.
In contrast, marriage equality is additionally buttressed by the Fourteenth Amendment and the right to equality. Both Loving v. Virginia (interracial marriage) and Obergefell v. Hodges (same-sex marriage) cite the Equal Protection Clause as a basis for marriage equality. Romer rests on similar ground.
While that gives me intellectual hope that the current court would not overturn either, I do not trust its members enough to be satisfied. Afterall, many of the justices who voted to overturn Roe asserted it as settled precedent during their confirmation hearings.
That is why the Respect for Marriage Act is so important.
A statutory provision adopted by Congress and signed by President Joe Biden would give express legal authority to marriage equality even beyond the firm constitutional footing I believe it currently enjoys. It would be beyond the Supreme Court to overturn without setting off a catastrophic constitutional crisis among the branches of government.
To my chagrin, the U.S. Senate has delayed a vote until after the 2022 general election in November. While a majority support the bill, there are not enough Republicans willing to take a position right now to reach the 60-vote mark necessary to break a filibuster. Apparently, some sitting U.S. senators have less gumption than O’Dea.
Consequently, the LGBTQ+ community and its allies will continue to hold our collective breath for another several months. Maybe the U.S. Senate will deliver just in time for Christmas.
Until then, I and my more than 400 co-signers will continue to put the pressure on candidates and elected officials across the country.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq.
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