Fate of Colorado constitution’s same-sex marriage ban could land on November ballot

Colorado voters could be asked to amend the state constitution this fall to remove language against same-sex marriages.

Even though civil unions for same-sex marriage became legal in the state in 2013 — and same-sex marriages became legal nationwide in 2015 with a U.S. Supreme Court ruling — the Colorado constitution retains language that states, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

Voters narrowly approved that language in 2006 through a ballot initiative, but the Legislature is now considering sending a measure to voters to get rid of the sentence.

“As representatives of the people of Colorado, it is our shared responsibility to uphold the principles of equality and justice for all citizens, regardless of political affiliations,” said state Sen. Joann Ginal, a Fort Collins Democrat. “While we’re protected today, our state constitution still reflects outdated language and values.”

Ginal is running the resolution that would put the amendment on November’s ballot. The Senate gave preliminary approval to it on Friday, but still needs to sign off with a recorded vote before it moves to the House.

Constitutional amendments need a supermajority vote in the Legislature, so at least one Republican senator will need to vote yes for it to advance. House Democrats have the votes to pass it without Republican support. If it is put on the ballot, it will need 55% voter approval.

The marriage line in the state constitution is inoperative and unenforceable since the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges, but some supporters of same-sex marriage have been concerned about the decision’s longevity after the court’s conservative majority overturned the federal right to an abortion two years ago.

In a concurring opinion in that case, Justice Clarence Thomas — one of the most conservative voices on the bench — wrote that the reasoning the court applied in the Dobbs decision could extend to other rulings that codify rights to contraception access, same-sex relationships and same-sex marriage.

“Our LGBTQ community is very afraid, living in fear that rights will be taken away,” Sen. Sonya Jaquez Lewis, a Longmont Democrat, said.

Sen. Bob Gardner, a Colorado Springs Republican, said on the Senate floor that even if the Obergefell decision is overturned, same-sex marriages in Colorado would still be protected by state law. Changing the constitution would not have a true impact except for the removal of language many people find offensive.

“I think the law is settled. I think, in some ways, the culture of our country is settled on this matter,” he said.

The legislative session ends on May 8.