Though the Supreme Court ruled on June 26 that gay and lesbian couples have a constitutional right to wed, some opponents – including presidential candidates – still haven’t heard the fat lady sing.
The latest development in the tiny resistance movement: Colorado residents have begun the daunting task of trying to enact two constitutional amendments that target the rights of LGBT Americans.
One would enshrine vast “religious freedom”-style accommodations for individuals and wedding-related businesses in the Colorado constitution. If enacted, the state would be required to establish “a list of businesses willing to provide services to LGBT couples,” so that those opposed could instead hire a contractor to work with them.
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The other initiative, meanwhile, would recognize marriage “as a form of religious expression of the people of Colorado that shall not be abridged through the state prescribing or recognizing any law that implicitly or explicitly defines a marriage in opposition or agreement with any particular religious belief.” Should the proposed amendment take effect, same-sex couples married beforehand would see their relationship status demoted to civil unions, The Denver Post reported, meaning that those couples would lose out on certain spousal benefits.
It’s this proposal, LGBT advocates warn, that could have serious consequences beyond same-sex nuptials. While intended to unwind the recent Supreme Court decision legalizing marriage equality nationwide, the “religious expression” amendment could actually end up wiping out all marriages in the state that run afoul of “any particular religious belief” – such as interfaith, or interracial marriages.
“It’s written so broadly that it will outlaw marriage entirely in Colorado,” Owen Loftus, spokesman for the LGBT-rights group, Freedom For All Americans, told msnbc. “This will not just impact same-sex couples, but pretty much anyone else who’s getting married.”
Similar criticisms dogged a measure that became law in North Carolina earlier this year allowing magistrates and registers of deeds to refuse to participate in the marriage of any couple whose union violated their “sincerely held religious beliefs.” Though opponents warned that bill would jeopardize wedding plans for every couple in the state – not just same-sex couples hoping to marry – North Carolina’s Republican-controlled legislature moved to override a veto from the state’s GOP Gov. Pat McCrory last month, clearing the final hurdle for the bill to become law.
Littleton residents Gene Straub and D’Arcy Straub, who could not be reached by msnbc for comment, filed both proposals late last week with the Colorado Secretary of State. Each initiative, however, faces an uphill battle. According to state law, the proposed amendments would need close to 100,000 signatures apiece in order to even get on the ballot, where they would then be subjected to voters who overwhelmingly favor same-sex marriage. Additionally, the amendment specifically targeting the Supreme Court’s recent decision in the landmark case of Obergefell v. Hodges would almost certainly be struck down by federal judges as it conflicts with the high court’s repeated conclusion that marriage is a fundamental right.
Despite those challenges, however, the proposals – along with a small collection of clerks still refusing to comply with the ruling, plus various promises from Republican presidential hopefuls to reverse it – point to the simple fact that certain “traditional marriage” supporters won’t give up – not yet, and maybe not ever.
“There’s always going to be a contingent of people who do not support same-sex marriage, and they’re going to fight it,” Loftus said. “But we’re seeing the tide shift, and we’re going to continue working to ensure that LGBT people are protected under the law.”
Colorado is actually one of the most LGBT-friendly states in the country, having played an instrumental role in gay rights history. It was, after all, Boulder County Clerk Clela Rorex who in 1975 issued marriage licenses to six same-sex couples – the first to ever receive marriage licenses in the U.S. – before Colorado Attorney General J.D. MacFarlane told her to stop. Twenty-one years later, Colorado was at the center of the first major Supreme Court victory for gay rights (and the first authored by Justice Anthony Kennedy) – Romer v. Evans – which found that the state could not prohibit gay people from receiving protection against discrimination.
Today, Colorado is one of only 17 states plus the District of Columbia that prohibits discrimination in public accommodations on the basis of sexual orientation and gender identity.
Yet opposition to LGBT rights clearly persists in the Centennial State.
On Tuesday, the Colorado Court of Appeals heard a high-profile “religious freedom” case that could undermine the state’s nondiscrimination law. Attorneys for Jack Phillips, owner of the Denver-based Masterpiece Cakeshop, argued that the baker should be allowed to refuse to make wedding cakes for same-sex couples based on his religious objections to such unions. But attorneys for a same-sex couple, who were denied a wedding cake back in 2012, countered that allowing such religious exemptions in the business sector would facilitate future discrimination.
An administrative judge ruled in December, 2013, that the bakery had violated Colorado’s Anti-Discrimination Act. And in 2014, the Colorado Civil Rights Commission affirmed the ruling. The appeals court will issue its decision at a later date.
Pockets of resistance to marriage equality also exist outside of Colorado. In Decatur County, Tennessee, for example, the entire clerk’s office resigned last week rather than issue marriage licenses to same-sex couples. And in Irion County, Texas, Clerk Molly Criner declared this week that she would not issue marriage licenses to same-sex couples in order to “protect natural marriage from lawless court opinions.”
Republican presidential candidates, too, have waded into the resistance movement, hoping – likely against all hope – it will pick up steam. Texas Sen. Ted Cruz, who once clerked for former Chief Justice William H. Rehnquist, said last week he would propose an amendment to the U.S. Constitution that would subject justices to periodic retention elections – a clear violation of Article III, and one that stands virtually no chance of passing. Not to be outdone, former Pennsylvania Sen. Rick Santorum delivered the keynote address at last Thursday’s annual gala for the National Organization for Marriage (NOM) – a group with a primary goal of limiting marriage to opposite-sex couples — during which he vowed to sign the First Amendment Defense Act, a law that would prevent the federal government from taking “any discriminatory action” against people who acts in accordance with the belief that marriage is between a man and a woman.