After nearly eight hours of often emotional testimony on legislation to establish civil unions, the House Judiciary Committee took less than a minute to quash the measure on a party-line vote last week, with six Republicans opposing the bill and five Democrats voting in favor.
Hundreds of Coloradans filled the Old Supreme Court Chambers at the state Capitol on March 31 for a marathon hearing that stretched into the night on Senate Bill 172, which passed the Senate a week earlier with the support of three Republicans.
A cavalcade of gay and lesbian couples implored lawmakers to send the bill on to the full House — where supporters said they had enough Republican votes to pass the measure — while opponents quoted Scripture and argued the bill was contrary to a 2006 statewide vote that banned same-sex marriage and shot down a similar proposal.
“This issue is simple,” said state Rep. Mark Ferrandino, D-Denver, one of the bill’s prime sponsors and one of four openly gay members of the Legislature. “Everyone should have equal rights. This is not a question of religion or of the disintegration of the family unit. Colorado is at a time when civil unions is the right thing to do to support committed, loving couples and their families.”
Before witnesses began joining him at the table, Ferrandino added, “This is not going to be a radical change. This doesn’t end marriage. What it does is provide protections under the law.”
None of the committee Republicans budged, though several sounded at pains casting their “no” votes.
“I believe the citizens of Colorado have already spoken on this and we need to respect that,” said committee Vice Chairman Mark Barker, R-Colorado Springs, the only Republican to comment before casting a vote. “If the popular support is as high as the bill’s backers claim, it should be easy to place on the ballot,” he added. “Whether it passes or fails, we need to trust the voters.”
Moments earlier, Barker joined committee Republicans and three Democrats voting against a last-minute amendment offered by state Rep. Su Ryden, D-Aurora, who proposed turning the bill into a referendum and sending it to voters. State Rep. Claire Levy, D-Boulder, argued against Ryden’s alternative, saying the legislators had been elected to decide such matters and that constitutional rights shouldn’t be submitted to a popular vote.
The bill would have established numerous legal benefits, rights and responsibilities for Colorado couples — gay or straight — who entered into civil unions, including the right to inherit property, claim survivor benefits and make medical decisions without having to draw up separate legal documents. In addition, the bill would have set up rules for dissolving the unions and determining the fate of children who belong to couples in civil unions. The bill was sponsored in the Senate by state Sen. Pat Steadman, D-Denver.
“Many of the protections in civil unions are already in state law through a patchwork of statutes,” Ferrandino testified, although he said the bill’s most important provisions are not. “The explicit responsibility one party has for the individuals that are part of a family in a civil union” carves out new legal ground, he said
Citing a point made by state Sen. Ellen Roberts, R-Durango — an estate lawyer who supported the bill in the Senate — Ferrandino said, “The key addition of this legislation is protection for children. Relationships don’t always last — we know sometimes relationships end, regardless of gender, but for married couples, our law sets out clear instructions on how to end that relationship.” SB 172, he said, “ensures courts have the rules to dissolve relationship while protecting children.”
Opponents said the statewide vote on a pair of 2006 ballot measures stood in the way of the bill. That year, Colorado voters approved Amendment 43, which defined marriage as between a man and a woman, and shot down Referendum I, which would have created domestic partnerships for same-sex couples.
Opponents say civil unions bill too much like rejected initiative
Comparing Referendum I and the civil unions bill, Roman Catholic bishops of Colorado representative Father Bill Carmody said the only difference was that the failed ballot measure applied only to same-sex couples. Tweaking the proposal to allow civil unions for all couples would only serve to undermine marriage, he said.
“This is bad for children. Children deserve both a mom and a dad. We need as many children as possible to have a mom and a dad,” Carmody said. “This is not good for marriage, this is not good for children, this is not good for society at large.”
Mindy Barton, legal director for The Center, an advocacy organization for Colorado gay, lesbian, bisexual and transgender residents, responded to points made by Carmody and other witnesses.
“This is not marriage by another name,” she said. The argument that civil unions hurt marriage was belied by the facts, she added. “What we found, in fact, is that states which have tended to have more liberal policies toward same-sex relationships also tended to have larger declines in their divorce rates. The seven states with the highest divorce rate all also have constitutional bans on same-sex marriage.”
As for the 2006 vote, Barton said, “That vote was five years ago, and the world has changed significantly in the last five years.” Numerous states have legalized gay marriage or established civil unions — including Illinois, which adopted a bill nearly identical to SB 172 late last year — and public opinion has changed, she said. She cited recent polling that shows more than 70 percent of Colorado residents favor civil unions or gay marriage. A poll released in March shows a majority of Americans, for the first time, approve of legalized same-sex couples.
Republicans risk losing young voters if the party blocks civil unions, said Democratic activist Chris Rork, who noted, “I’ve come here to represent my friends who are gay and lesbian who have no idea what a House Judiciary Committee is.”
Rork described the stakes in the debate as historic. “Just as institutional racism was, the lack of basic protections for same-sex couples is a stain upon the collective conscience of our state,” he told lawmakers. “Just because I’m young doesn’t mean I’m naive. I know that consideration of this bill takes place in a highly partisan atmosphere. But to the members of this committee who are considering voting no, I would say that if you do so, you risk losing the support of my generation.”
While many of the bill’s opponents used religious language to register their disapproval — Pastor Roger Anghis of Littleton stated simply: “This bill is an abomination” — others picked apart the legalities involved.
Not only would the civil unions bill defy the will of voters, but most of the legal rights it establishes already exist in the state’s Designated Beneficiaries law — legislation Ferrandino sponsored just two years ago — said Doug Napier, an attorney with the Focus on the Family-allied Alliance Defense Fund. By depositing virtually all the rights and responsibilities of marriage in civil unions, Napier warned during a lengthy exchange with committee Democrats, the bill’s sponsors were laying the legal groundwork to overturn the gay-marriage ban.
“You heard the testimony that, ‘I don’t want to be treated like a second-class citizen,’ and all those other things. This doesn’t solve those issues, and it won’t,” Napier said. “That’s why you won’t hear anybody who testified in favor of this say, ‘If you give us this, we’ll be satisfied, we won’t come back next year and ask for same-sex marriage,’ or, ‘We won’t file a lawsuit.’”
In fact, Napier argued, the civil unions bill was part of a clever attack on marriage via the courts. Borrowing language from the marriage statute, he said, “sets up the equal-protection issue that is the impetus for getting to court. That’s why this is important from a legal strategy for those who want to usher in same-sex marriage in Colorado.”
It was a similar point to one made by Catholic priests who held a small prayer vigil outside the Capitol before the hearing.
“We are here to protect the sanctity of marriage,” said Bishop James Conley of the Catholic Archdiocese of Denver. “We all know that marriage is attacked in our society, and it’s suffering, a lot. And a civil union bill like this is marriage under a different name.”
On the other side of the Capitol, hundreds of the bill’s supporters rallied on the West Steps, waving gay-pride flags and listening to speech after speech asking that the bill get a fair hearing.
Roxanne White, chief of staff to Gov. John Hickenlooper, addressed the crowd to register her boss’s support for the bill. She said he was sorry to miss the rally because of a trip to the Western Slope.
“It’s pretty simple,” she said, reading a letter from Hickenlooper. “What’s fair for one person should be fair for the next. Everyone, regardless of their sexual orientation, should have the same legal rights.”
The executive director of a gay-rights organization told the crowd that his group had tallied more than 18,000 messages — including e-mails, phone calls and Valentines — sent to legislators in support of the bill. An hour later, OneColorado’s Brad Clark opened testimony before the committee.
“Think about how you would feel if you were not protected or you could not be responsible for the person you love,” he said. “If you could not hold your husband’s or your wife’s hand in a hospital or an ambulance. The reality is that thousands of loving and committed gay and lesbian couples all across our state are living their lives just like you — paying their taxes, taking care of one another, putting food on the table — but they lack basic, critical legal protections that you have the opportunity today to provide.”
Issue of civil unions isn’t black and white, former lawmaker says
In perhaps the day’s most gripping exchange, a conservative African-American former lawmaker and a Democratic legislator whose parents were Holocaust survivors debated whether civil unions deserve comparison with the civil rights movement.
An impassioned former state Sen. Ed Jones, R-Colorado Springs, recalled growing up in Mississippi in the 1940s and ’50s “where being black was almost like being a sin.” In the Jim Crow South, he said, “the white race never gave my mama and my daddy the respect of being a ‘Mr. and a Mrs.’” He said supporters of civil unions got it wrong when they attempted to co-opt the mantle of civil rights.
“You can assume what I am,” he testified. “I would never be able to assume what you are, whether you are gay or straight, unless you told me. So, Capitol comparing this to civil rights, to me, is wrong,” he said. Jones went on to invoke the Ku Klux Klan, lynchings carried out in a festive atmosphere “almost like a picnic,” and the murder of civil rights martyr Emmett Till to make his point that the gay rights movement wasn’t anything like the civil rights movement.
His testimony drew a stern rebuke from state Rep. Daniel Kagan, D-Cherry Hills Village, whose parents were Lithuanian Jews who met in a concentration camp before emigrating to England at the end of World War II.
“When you talk of lynching people just because they’re black, it chills my spine. And when you talk about this issue not being an issue of civil rights,” Kagan said. “My grandfather was tortured to death in June of 1941 in front of a baying crowd. One in the crowd had a camera and took a photograph and it became a world-renowned event as a result. And the reason why my grandfather was tortured to death in front of that crowd in June 1941 was no better than the reason that the young man you talked about was hanged, and it was born of the same senseless hatred and bigotry and viciousness and lack of acceptance as a full human being.”
As the crowd in the Old Supreme Court Chambers — thinned a bit in the hours since the hearing began — sat rapt, Kagan continued. “In the case of the young man, it was because he was black. In the case of my grandfather, it was because he was a Jew. And in the case of many beatings and killings of people even to this day, it is because they are gay. And they no more chose to be gay than the young man on the tree chose to be black or my grandfather chose to be Jewish.
“And they are all — all those groups, and others, sadly — have been subjected to unreasoning hatred, disgust, contempt, disapproval and denied of their humanity, of their worth as a human being, and, yes sir, of their civil rights,” Kagan said. Whether victims of hatred were black, Jewish or gay, Kagan went on, “It would be equally unjust, and it would be equally, in my view, a violation of my civil rights and my rights before God and man as a human being. And that’s why I find it hard to understand why you, who have such understanding of the injustice of hatred toward somebody because of their status, can only see that to the extent it is not the status of their sexual preference.”
As soon as Kagan finished speaking, the crowd broke into extended applause and Judiciary Committee Chairman Bob Gardner, R-Colorado Springs, pounded his gavel to warn — not for the first time — against outbursts.
Jones didn’t back down, instead turning his penetrating gaze on Kagan to offer his own rebuttal.
“Sure, I know about gays, all right? By the same token, I only know it because they told me they were (gay),” he said. The proof, he said, was that some gay couples in the chamber said they’d been married and “made a choice not to go back into a relationship with the opposite sex again, so they made that choice. I didn’t have a choice to be born the way I am. I didn’t have a choice to choose my parents. God, if you want to get into the religion aspects of it, God doesn’t make mistakes.”
In his earlier testimony, Ferrandino made explicit comparison between civil rights and civil unions, quoting Dr. Martin Luther King: “There comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must do it because conscience tells him that it is right,” Ferrandino said.
Before the vote, Ferrandino closed with an appeal to fellow House members to grant him and the other openly gay legislators the same rights heterosexual lawmakers enjoy. “There are two members of the House and two members in the Senate who aren’t equal, who are denied access to those laws.” Gay and lesbian lawmakers, Ferrandino said, “aren’t provided the same protections that you and your spouses are provided. Our kids — if we decide to have kids and have a family — aren’t provided the same protections if something should happen to us.”
Reaction to the bill’s defeat was swift. Supporters vowed to reintroduce a civil unions bill next year and said they hoped it could make it to the full House, where Republicans hold a slim one-vote majority. “And if not,” warned local gay philanthropist and political donor Tim Gill — who has poured millions of dollars into electing friendly lawmakers — in a Denver Post column published the next day, “we will have an opportunity to change the legislature, because in the end, Colorado deserves better.”