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Marriage Equality

Long before I was born, my beloved Uncle J.D. returned from WWII with his "BFF", my Uncle B. They met in a prisoner of war camp and survived the ordeal by never, ever giving in to adversity no matter how hard or how long the fight. It is that optimism and fortitude which sustained them as a couple throughout the ensuing decades and which I celebrate today.

On Wednesday, June 25, 2014, the U.S. Court of Appeals for the 10th Circuit, which includes Colorado, Utah, Oklahoma, Wyoming, New Mexico and Kansas, ruled that Utah's ban on same-sex marriages violates the equal protection and due process guarantees of the U.S. Constitution. That ruling was quickly followed by an announcement from Boulder County Clerk Hillary Hall that the county would immediately begin issuing same-sex marriage licenses. Colorado's attorney general then reminded us that same-sex marriages in Colorado are not valid marriages.

In 2000, Colorado ushered in the twenty-first century with the passage of a short piece of legislation with a long reach, defining a "valid marriage" as "only between one man and one woman." COLO. REV. STAT. §14-2-104. Six years later, in 2006, that legislation was reinforced with a constitutional amendment reiterating that "only a union of one man and one woman" constitutes a valid marriage in Colorado. COLO. CONST, art. 2, § 31.

Then along came 2013 and the passage of the Colorado Civil Union Act. COLO. REV. STAT. §14-15-101, et seq. That legislation authorized civil unions between two unmarried adults regardless of the gender of the parties. The Act, however, did not recognize same-sex marriages as valid marriages. Rather, it recognized civil union partners as spouses for certain purposes, such as the following:

  • Adoptions
  • Civil actions, including wrongful death, emotional distress, loss of consortium
  • Transfers of real or personal property
  • Conservators
  • Guardians
  • Homestead exemptions
  • Probate laws
  • Dissolutions of Civil Union
  • Declarations of Invalidity
  • Legal Separations
  • Financial support
  • Group benefit plans for state employees
  • Health care directives
  • Hospital visitations
  • Medical care and treatments
  • Family leave
  • Disposition of last remains
  • Anatomical gifts
  • Unemployment benefits
  • Worker Compensation survivor benefits
  • Public employee retirement plans
  • Firefighter and police pensions
  • Victim's compensation
  • Victim and witness protection
  • Domestic abuse and domestic violence
  • Public Assistance
  • Compelled testimony privilege

Colorado's passage of the Civil Union Act was an historic moment, especially in light of our State's one man/one woman double down during the previous decade. However, while our cheers of victory were still resounding throughout the State, the U. S. Supreme Court in August of 2013 issued its ruling in United States v. Windsor. The Windsor decision struck down a provision of the Defense of Marriage Act; i.e., DOMA, which restricted the terms "marriage" and "spouse" in federal law to heterosexual unions. Specifically, the Court declared the DOMA provision unconstitutional under the due process clause of the fifth amendment of the U. S. Constitution. As a result of that decision, federal laws were expanded to include same-sex marriages within the definition of marriage. And therein lies the problem.

COLORADO CIVIL UNIONS ARE NOT MARRIAGES.

In fact, the Colorado Civil Union Act expressly states,

[The Act] does not alter the public policy of this state which recognizes only the union of one man and one woman as a marriage.

COLO. REV. STAT. §14-15-102(1). Moreover, a valid, legal marriage entered into by a same-sex couple in another state is not recognized as a valid, legal marriage in Colorado. Instead, Colorado deems such marriages to be "civil unions" and thereby, denies the marital status conferred upon same-sex spouses by the state in which they entered into their marriage. COLO. REV. STAT. §14-15116.

As a result of the foregoing, the federal rights and benefits which have been extended to include same-sex spouses are not applicable to Colorado civil union partners. For example, soon after the Windsor decision, the IRS announced that a civil union under state law does not constitute a marriage under federal law and therefore, partners to a civil union can not file tax returns as a married couple. Given such limitations, it was not surprising that in January of 2014, a law suit was filed in Colorado seeking to have our State's ban on marriage equality declared unconstitutional. Soon after, another suit was filed seeking to overturn Colorado's attempt to redefine valid same-sex marriages entered into in another state as civil unions in Colorado. And now, six months later, along comes Hillary Hall and Boulder County. Take note Mr. Attorney General, marriage equality is coming to a Colorado courthouse near you.

CONGRATULATIONS COLORADO!
AND
THANK YOU TO EVERY UNCLE J.D!

Renee Sandefer, Associate Attorney, Warkentine Law Office