Ari Armstrong, Civil Liberties, Constitutional Law, Exclusives, Uncategorized

Armstrong: Repeal Amendments 2 and 43 from Colorado Constitution

Right now the Colorado Constitution, under the Bill of Rights no less (Article II), contains two provisions intended to restrict people’s rights. Section 30b forbids government in Colorado to pass any provision protecting “homosexual, lesbian or bisexual” people from discrimination. Section 31 says, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

Both of those provisions straightforwardly violate aspects of the federal Constitution, including the Equal Protection clause, so courts threw them out. But they are still officially on the books. The legislature should refer measures to remove those outmoded provisions, and Colorado voters should formally repeal them.

In 1992, voters approved the discrimination measure, Amendment 2,”Colorado No Protected Status for Sexual Orientation,” by a margin of 53–47%. This justifiably earned Colorado the nickname Hate State. Obviously government is wrong to discriminate against any group. If you want to argue that anti-discrimination laws for private parties are wrong across the board, be my guest. But the position that some groups but not others may enjoy protection of anti-discrimination laws is untenable. The Supreme Court threw out the measure on May 20, 1996, in Romer v. Evans.

Coloradans long debated gay marriage. In 1975, then-Boulder County Clerk Clela Rorex issued a marriage license to a gay couple. (She died June 19 of this year.) Democratic governor Roy Romer vetoed legislative bans on same-sex marriage in 1996 and 1997. Republican governor Bill Owens signed a ban in 2000. In 2006, voters approved Amendment 43, banning gay marriage by a margin of 56–44%. Following state and district court cases on the matter, the Supreme Court legalized gay marriage on June 26, 2015, in Obergefell v. Hodges.

Today both provisions seem absurdly stuck in the past. Our governor, Jared Polis, is an openly gay man raising two children with his husband. Amendment 2 mentions only LGB people, not transgender people. That wasn’t because the authors of the measure were sympathetic to transgender people, but rather because such language had not yet caught on. Today an openly transgender woman, Brianna Titone, serves in the legislature.

A quick anecdote: Years ago, before the legalization of same-sex marriage, I argued that civil unions for gay couples would be just as good as marriage. But then someone pointed out that my position amounted to calling for “separate but equal” status for gay couples. That won’t do.

What’s the big deal, if these measures are no longer enforced? Having obviously discriminatory language in the state Constitution is an embarrassment. The proper purpose of a Bill of Rights is to protect people’s rights, not to formalize discrimination against select people.

Repealing the language also might have a practical benefit. In the Supreme Court decision overturning Roe v. Wade, Justice Samuel Alito 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.” But Justice Clarence Thomas said the court “should reconsider all of this Court’s substantive due process precedents,” including the one about gay marriage. (He left open the possibility that other cases might hinge on other constitutional arguments.) So it is possible (although unlikely) that now-dead provisions of the state Constitution could again come into play.

Even better than repealing the provision banning gay marriage would be formal language in the state’s Bill of Rights protecting the rights of gay couples to be married on equal footing with heterosexual couples.

If you don’t like homosexuality, don’t have gay sex or marry someone of the same gender. That’s your right. (Alleged discrimination by businesses against gay people is a complex issue for another discussion.) But if we want a just government, we cannot allow openly discriminatory laws or laws driven by sectarian dogmas.

Gay people deserve equal standing in our state Constitution. We should formally make Colorado the Love State.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism.  He can be reached at ari at ariarmstrong dot com.


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