Colorado voters next fall could very well face a pair of philosophically opposed but legally complementary ballot issues – one involving a ban on gay marriage and the other offering couples certain rights in legally recognized domestic partnerships.
The constitutional amendment now being promoted would define marriage in Colorado as involving one man and one woman.
It’s a gratuitous measure since our state law already defines marriage in just those terms. Supporters say their proposal would prohibit future legislatures from changing that law. We say that’s exactly what’s wrong with it.
If Colorado voters should ultimately decide to approve gay marriage, they should be able to use the normal legislative process to express their will. The state constitution should be short and sweet, like the majestic U.S. Constitution, establishing basic rights for citizens and both defining and limiting the powers of governments. Constitutions are not meant to be detailed guides to individual mores and morals.
In contrast, the plan by Senate President Joan Fitz-Gerald D-Jefferson County, and Rep. Tom Plant, D-Nederland, would offer voters a referred law in November that would recognize civil unions for gay and lesbian couples.
While we haven’t seen a detailed bill yet, the general idea is to recognize that long-term same-sex relationships do exist in Colorado. Because such couples aren’t allowed to marry, their rights and responsibilities are often murky.
This initiative would give members of gay couples the legal right to make medical decisions for incapacitated partners, protect inheritance rights when one partner dies and – most important – clarify rights and responsibilities when a couple breaks up.
That last point is vital. Some gay couples have children. But gay unions can break up just like heterosexual marriages can. When that occurs, state law should be clear as to the financial obligations and visitation rights of the former partners, using the legal yardstick of “the best interests of the child.”
This principle is so important than even the sponsors of the amendment banning gay marriage have elected not to specifically forbid civil unions. It is thus possible that the measure banning gay marriage and the law approving domestic partnerships could both pass next fall.
Possible, yes – but foolish. In our view, the state constitution is the wrong place to set social policy, let alone discriminatory social policy.
