Elements of marriage

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Originally published in gayzette, June 2009

Laurin Foxworth knows his time may be up soon. That’s why he’s at the Denver County Clerk’s office, the 83-year-old is standing in between his partner of 10 years, Lewis Thompson, 63, and his friend John Ferguson, 66. The three men are taking part in an act of civil disobedience. They, along with Shari Wilkins and Kate Burns, are blocking the marriage license counter and will not allow any couple to obtain a marriage license until every couple in Colorado is allowed to have one or until they are arrested.

“I don’t know how many days I have left,” Foxworth says. And when he passes, so will his Social Security benefits and pension. His partner Thompson will receive little if anything at all.

The five members of SoulForce, a nonviolent activist group, hold each other’s hands and form a line in front of the counter. It’s the Day of Decision: Tuesday, May 26, 2009, the day the California Supreme Court would rule Proposition 8 — an amendment to the California Constitution that says marriage is between a man and a woman — is legitimate.

Since October 2008, the states of Iowa, Vermont, Connecticut and Maine have legally recognized same-sex marriage. In 2006, an amendment — number 43 — was passed in Colorado defining marriage between a man and a woman. The same year, Referendum I, a law that would have created civil unions for same-sex couples, was defeated. It was a double whammy for GLBT Coloradans.

Organizers are working on a Colorado ballot initiative for 2010 which could undo the discrimination in our law books. However, the gay community — at least the part with money and political clout — isn’t backing the push. They say it’s too soon.

At 83 years, Foxworth would say it can’t come soon enough.

THE PROCESS

Amendment 43 would have to be overturned by either a voter referendum or a federal court would have to rule the amendment violates the U.S. Constitution in order for same-sex marriage to be legal in Colorado.

According to Colorado Attorney General John Suthers, “Anyone seeking to have gay marriage legalized in Colorado would have to successfully repeal that provision.”

Suthers said the Colorado Supreme Court could not overturn Amendment 43 because it cannot strike down an amendment approved by voters, only interpret it.

How does Amendment 43 get repealed? A new amendment. And there are two ways of getting one on the ballot. The first way would be a petition drive; the second, a two-thirds vote of the Colorado General Assembly to put the question on the ballot.

Enter Stu Allen. A 23-year-old straight man from Lakewood; Allen is working on repealing Amendment 43. His organization Yes on Equal Rights will be spending the summer months collecting signatures to get his initiative on the 2010 ballot.

“It’s going slowly, but it’s progressing,” he said. “Trying to collect signatures is difficult.”

Allen said he’d be at Denver PrideFest and other large GLBT events throughout the summer. He’s been playing phone tag with GLBT organizations such as the Gill ActionFund and The GLBT Community Center of Colorado. So far, no GLBT organization has offered their support.

“Marriage is a right, and for there to be equal rights, we have to get rid of this utterly ridiculous amendment,” he said.

Allen said he’s been met with little anti-gay opposition while collecting signatures. “Most people just run away when you approach them to sign a petition,” he said with a laugh. Allen said his biggest battle right now is logistics and getting a good volunteer base together.

When asked if Colorado is ready to overturn an amendment that was passed just three years ago, Allen — with only a gut feeling — said, “yes.” “There are people who call me crazy,” he admitted. “But we need to be in the voters’ face. We need to show them they’re on the wrong side of history. This is our civil rights movement.”

POLITICS, MONEY

One senior administrator at a local GLBT nonprofit, who asked not be identified, said gay marriage “is not going to happen” in Colorado anytime soon, and any immediate effort would be a waste of time and money.

“Our first goal should be civil unions,” he said. The administrator said Allen’s ballot initiative is misguided and premature. “It will be rejected by the populace,” he said. “Coloradans don’t support same-sex marriage. If marriage is on the 2010 ballot, it will fail.”

The administrator said a lot of other issues are coming up in 2010, including the governor race and money would be spent there. He also said money is tight. “The stock market hurt a lot of people who would be likely donors.”

“I know this makes me sound like a Debbie Downer but it’s not as easy as someone waking up; there is a lot of money and politics at work,” he said.

And while recently-elected State Senator Pat Steadman — the first openly gay man to serve in the Colorado Senate — agrees that same-sex marriage is a way off, he’s ready to make some headway.

“It’s a tall order,” Steadman said.  But, he’s optimistic. “I think public opinion is in flux. If you look at this country as a whole, we’re making real progress.”

Steadman said he thinks Allen and his ballot initiative are admirable. But he’s also aware there isn’t enough money for the 2010 election. “We just had two very expensive election cycles,” he said. “I don’t know if people who are usually able to donate can.”

STEP BY STEP

“Amendment 43 obviously needs to be overturned by either an election or a federal court decision,” Mike Ditto of Progress Now Colorado said. But Ditto is one of many who doesn’t think same-sex marriage will come sweeping into Colorado. Rather it will come in increments like civil unions. “[Same-sex marriage] is where we want to end up,” he said.

The nonprofit administrator agrees. He said the GLBT community cannot look at the issue of same-sex marriage as an all or nothing deal. “One day we’ll get it. But we have to go from ‘A’ to ‘G’ and then to ‘Z.’”

He encouraged leaders and activists to separate emotions from politics. “Yeah, I’m outraged. But this is a process that takes time,” he said. “We are not in an opposition-free environment.”

In the last session of the Colorado General Assembly, a law was passed that will grant Coloradans designated beneficiaries — making it easier for gays and lesbians to leave assets behind to their partners. The new law will also allow same-sex partners the right to be with one another in the hospital during times of crisis.

Steadman is excited for the Designated Beneficiaries bill to become law on July 1. “My partner and I will be at the courthouse to sign up,” he said. “This is the kind of movement you need to build upon.”

ACROSS THE NATION

“As the older generation dies off, it means the tide will turn in our direction demographically,” Ditto said.

And Steadman believes a time will come in the not so distant future that the federal government will have to act on same-sex marriage. “There could be something that would happen, and it not be at the state level,” he said. “The federal government allows states to act as a laboratory of democracy.” He hypothesizes that once a majority of the states have either same-sex marriage or an equivalent there will be some action nationwide.

And some lawyers agree with him. David Boies and Theodore Olson have filed a lawsuit in a federal court arguing Proposition 8 is unconstitutional.

Ken Upton a lawyer for Lamda Legal said the political and judicial system never gets too far ahead or behind social reality. “There is such a thing of going too fast and too slow,” he said. But activist groups have been hesitant in the past to pursue legal action, fearing a loss that would create bad legal precedent setting the movement back another decade.

Upton said state constitutions do not keep governments from discriminating against their citizens but he said they must have a legal interest in doing so. “I’m just not sure what the interest in discriminating against gays is,” he said.

He said the million-dollar question is: do these state amendments violate the U.S. Constitution — most specifically the 14th Amendment that promises citizens due process and equal protection?

Both lawyers and federal courts have been hesitant to take on the same-sex marriage debate because marriage has been a state issue since the U.S. was founded. “The Constitution limits the federal government, and any business not expressly written in the Constitution is handled by the state,” he said.

Regardless, the federal government will have to face the idea of same-sex marriage soon, Upton said. “The federal government is going to have to face the facts that there will be some 100,000 gay couples married across the country and there will be inequality nationwide.”

WHEN?

Mindy Barton, the legal director at The Center said she’d love to be out of a job. But until there is full equality for all members of the community, she’ll be employed.

“There is no doubt we’re moving toward gay marriage,” she said. “It’s the end result we all hope for.”

But for the moment, Barton believes there is still a lot of healing to do after the 2006 defeat of Referendum I and the victory of Amendment 43. “It was ugly to say the least,” she said. Barton echoes the others who say Amendment 43 makes Colorado’s fight for same-sex marriage “tricky.”

“We may still have a little time to go, but I think we’re progressing,” she said. “Iowa, who would have thought?”

Barton said overturning Amendment 43 in court is unlikely. “We don’t have a very good court right now,” she said. “Setting a bad legal precedence is really scary. Right now I don’t know if I could recommend litigation.”

Barton said it would be more likely for the Colorado Legislature to pass an amendment off to the people. “It’s possible to make inroads on the fight there,” she said. “We’ve had a string of great laws pass recently.”

One way to introduce a ballot question to overturn Amendment 43 would be by a vote of two-thirds of the Colorado General Assembly. This could happen instead of a petition. Steadman, who is now in a position to introduce such legislation, said it is one of his mid-range goals. “It’s not something I can do next year,” he said. “But something for the future. Public opinion needs to be there.”

TOMORROW

Ryan Kendal, a member of Denver’s GLBT Commission, said getting same-sex marriage in Colorado is a matter of changing hearts and minds.

He’s in the County Clerk’s Office too. He’s snapping pictures of the people in front of the counter, probably for SoulForce’s website. Only 26-years-old, he seems to wear this fight on his shoulders, more so than others his age. He’s kneeled down in front of Kate and John and Shari.  And Lewis and Laurin. All his elders.

All who have come before Kendal, have fought. Stonewall. Sodomy Laws. Amendment 2. And what makes Kendal so different than so many of his peers is that he knows he must continue the fight.

“We need to start showing the public the impact of how the law hurts (gay) people,” he said. “We have better reaction when people realize the injustices going on.”

Kendal supports the idea of an incremental approach to gaining full rights. “When you look at the past, it doesn’t happen overnight,” he said.

But Kendal warned gaining equal rights takes time and just waiting for equal rights to come to fruition are two very different things.  “It’s not a matter of time,” he said. “You don’t just sit around and wait for your freedom. We all need to get out on our streets.”

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