This fall voters in Colorado will have the opportunity to fix a wrong. A ballot measure seeks to strike the definition recognizing marriage only between a man and a woman enshrined in the state constitution.
It should not be necessary — the provision has been unenforceable since the U.S. Supreme Court ruled marriage equality the law of the land — but given the current national political climate, it is more important than ever.
How we got here is a story of hate, resilience, apparent victory and fear.
At the height of the culture wars in the early to mid-2000s, Republicans across the country cynically ran “gay marriage bans” to boost their electoral performance. Reliant on a base that viewed members of the LGBTQ+ community as targets for scorn, ridicule and violence, those measures helped fuel strong turnout at the polls.
Colorado ran, and passed, Amendment 43 in 2006. It set the definition of marriage into the constitution. At the same time, Referendum I, which would have provided for domestic partnerships (the effective predecessor to civil unions) failed at the polls.
Through concerted efforts over the next decade, the tides began to shift quickly.
I have a distinct memory standing in the back of the Colorado House chambers in 2013 with Brad Clark, the former head of One Colorado, as civil unions finally made their way through the Colorado legislature. After a devastating loss a year earlier that led to the most chaotic end to a legislative session in history, there was a measure of relief. Something we poured our souls into was finally passing.
At the same time, it seemed unsatisfying.
As legislators debated a bill we knew would pass, we talked about U.S. v Windsor, the case then before the U.S. Supreme Court that could (and eventually would) deem the federal Defense of Marriage Act unconstitutional. We knew that Proposition 8, which banned same-sex marriage in California, might fall (it did) in Hollingsworth v Perry.
Cases to protect marriage equality were just beginning to make their way through the federal judicial system. They would culminate in Obergefell v Hodges, a case I proudly signed an amicus brief to support, which declared the right to marriage equality in 2015.
In just under a year, the world had changed.
Over the past few years it has changed once again. Three new U.S. Supreme Court justices appointed by former President Donald Trump altered the composition of the court. One conservative justice, one liberal justice and one swing justice were replaced by three arch-conservatives. Their decisions have bolstered legal challenges to revive the culture wars.
For example, reproductive rights had been protected for decades by Roe v Wade. That was until the new court overturned it in Dobbs v Jackson Women’s Health Organization in 2022. Suddenly those same rights taken for granted for so long were thrown back to the states. Many enacted draconian measures that all but banned abortions.
Others already had statutes on the books that suddenly came to life once the Dobbs decision came down.
That is precisely what has advocates for the LGBTQ+ community spooked. If a landmark decision like Roe could fall after more than a half century as precedent, then a comparatively new one like Obergefell might not be far behind. Justice Clarence Thomas invited such challenges in his Dobbs concurrence, all but telling groups the court would overturn those opinions.
Such reversal would lead to another patchwork of precedent across the country. In Colorado, that could mean the long-dormant definition of marriage would suddenly become law again. Decades of work toward equality could suddenly evaporate.
Couples enjoying the legal protections afforded by marriage could see them disappear. Everything from property rights to children’s education could be upended.
That is why passing a ballot measure now is imperative. We cannot wait. As long as the language from Amendment 43 tarnishes our state constitution, members of the community must return to lives marked by discrimination and fear.
Thankfully, Coloradans have demonstrated time and again that most value the LGBTQ+ community. We have fostered an inclusive state and elected the first openly gay governor (who married his longtime love while in office). Even multiple Republican legislators voted to refer the measure to the ballot, therefore bypassing the often-onerous petition process.
And this year I am confident we will scrub out the discriminatory mistake we made nearly 20 years ago.
There is still plenty of work to be done: Campaigning for the measure, making sure people understand what it does and why it is necessary, tracking ballots and turnout. Nothing can be taken for granted.
Well, almost nothing. In the end, love will win out. That is something I believe we can all be sure about.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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