Colorado lawsuit challenging same-sex marriage ban breaking new ground

On Feb. 19, nine same-sex couples in Colorado joined a groundswell of litigation across the country fighting to overturn same-sex marriage bans, but the Colorado case is unique, taking place in a state where civil unions are a substitute for marriage.

“The reason this lawsuit to invalidate the ban on same-sex marriage in Colorado is different from previous lawsuits that have struck down same-sex marriage bans, like the ones that were struck down in Oklahoma and Utah, is that those states didn’t have civil unions,” said Nancy Leong, assistant professor at the University of Denver’s Strum College of Law.

There are currently 51 lawsuits in 28 states around the nation challenging gay marriage bans, with seven cases working their way through federal appeals courts, according to the organization Freedom to Marry.

“What this lawsuit in Colorado is saying is that civil unions are not enough,” Leong said. “If the [Colorado] plaintiffs win, then they’ll have accomplished something new, which is not only to strike down the ban, but also to strike it down in a situation where there is this second-best alternative.”

Attorneys at Reilly Pozner LLP who are representing Colorado couples in the lawsuit declined to comment on the case pending litigation, but the 28 page complaint filed against the city and county of Denver emphasized how civil unions foster a separate-but-equal status for gay and lesbian couples.

“Same-sex couples in Colorado are relegated to a second-class level of citizenship that denies their relationships the full panoply of rights enjoyed by married opposite-sex couples,” the complaint reads, adding, “History has taught that the legitimacy and vitality of the institution of marriage does not depend on upholding discriminatory laws. On the contrary, eliminating unconstitutional barriers to marriage further enhances the institution and society.”

Leong stated that since the US Supreme Court declared part of the Defense of Marriage Act as unconstitutional last June, there have been 33 judges who have ruled against same-sex marriage bans.

The slew of cases challenging gay marriage bans corresponds to a sharp rise in public support for same-sex marriage, with almost 60 percent of Americans supporting gay marriage and only 34 percent against, according to a recent ABC News-Washington Post poll published March 5.

“I think it’s great this case is being brought in Colorado,” said Leong, “because it helps to highlight how even these intermediate measures [civil unions] just aren’t marriage.”

Mindy Barton, Legal Director at the GLBT Community Center of Colorado, emphasized that despite all the protections put in place for same-sex couples in Colorado, there is no legal substitution for rights guaranteed through marriage recognition.

“The harms that face gay and lesbian couples by virtue of being treated separately, and unequally, under the laws are real,” said Barton. “The plaintiffs in this litigation have listed a variety of harms relating to raising children, medical situations, and more which are simply not faced by opposite-sex couples who have the availability of marriage. The availability of civil unions is not adequate to remedy these types of harms.”

Leong outlined a number of imperative legal safeguards that couples in a civil union do not have access to. For example, the Internal Revenue Service only recognizes marriages regarding joint filing of federal taxes, not civil unions or domestic partnerships.

“In addition, the Department of Labor, the Department of Defense, and the Office of Personnel Management,” Leong said. “Those three federal government entities will only extend partner benefits to married same-sex couples and not to couples who are in a civil union.”

The state’s largest LGBT lobby organization, One Colorado, recently launched their Why Marriage Matters campaign, encouraging members of the community from all four corners of the state to share their personal stories on the importance of marriage equality.

“Have a conversation with your family about why marriage is important to you,” said Dave Montez, executive director of One Colorado. “Even if you aren’t in a relationship right now, [talk about] why you, at some point, would love the opportunity to marry the person you love.”

Montez added how important it is for the diversity of the community to be represented in this fight.

“For example, Latino couples we know are more likely than their white counterparts to be raising children, not just here in Denver but in other parts of the state as well,” said Montez. ”Obviously it’s really hard to raise a family and raise children when the state you live in tells you that you’re not even really a family.”

For One Colorado’s Communication Director, Jon Monteith, marriage equality strikes a personal chord. “My sister lives here, and she and her partner want to have the freedom to marry. So for me, part of what really drove me to come out here and do this work is knowing that that’s something they’ve been waiting for. They deserve the full dignity and full protection that any other couple has.”

And couples have already begun sharing their stories, like Jenny and Jodi Martin who spoke at a recent One Colorado rally held on the steps of the Capitol, their 13-year-old daughter standing next to them.

“When we leave Colorado to go visit family or friends out of state, we lose our civil union,” Martin said. “It disappears. We are strangers in the eyes of the law.”

Jenny and Jodi have been together for eight years and moved to Boulder from Oklahoma in 2012. They obtained their civil union license on May 1 — the morning the Civil Union Act went into effect.

The couple said the right to marry goes well beyond the more than 1,100 federal rights denied to couples in a civil union. “Marriage means something — our daughter talks about the concern that people don’t see us as a true family because we’re not married,” Martin said.

Colorado Attorney General John Suthers announced he will defend Colorado’s amendment defining marriage between one man and one woman in the lawsuit.