In 1992, Colorado voters approved an initiative known as Amendment 2, imposing a statewide ban on claims of discrimination based on homosexual orientation or conduct. The measure was eventually voided by both state and federal courts, but it ignited a heated and usually fruitless debate over “gay rights.” This year, Colorado legislators have at last expanded that dialogue to include the more productive issue of gay responsibilities.
Much of the credit for shifting the focus away from personal rights to mutual and societal obligations goes to the gay and lesbian communities themselves. For years, they have argued the inescapable fact that long-term relationships between same-sex couples do exist, whether labeled as “marriage,” “domestic partnerships” or “civil unions.” Now, they have taken the next step by recognizing that gay relationships are just as likely as heterosexual alliances to break up. In short, Colorado is finally struggling to come to grips with “gay divorce.”
Divorce, whatever the sexual orientation of the parting partners, is tough enough when there are no children present. But once new life has been created, a lifelong pattern of responsibilities and obligations is created along with it. For this reason, the laws of every state spell out the rights and responsibilities of separating heterosexual couples, married or not, in terms of visitation, child support and other critical relationships.
Same-sex couples, however, have no similar legal template to govern their relationships, let alone the severing of those bonds.And some gay couples do have children – either from previous heterosexual relationships, by adoption or because a woman in a lesbian relationship bears a child.
Under all three scenarios, the rights and obligations of gay partners in relation to those children are murky. For heterosexual couples, there are clear legal procedures to define the rights and obligations of both the man and woman in regard to the children of their union. But in a gay family, the non-biological parent usually has no clear legal rights or obligations to the child in case of separation.
Ted Trimpa, a prominent Denver lawyer who may be Colorado’s leading expert on such issues, says the laws governing adoption are equally fuzzy. Single people, gay or straight, can adopt in Colorado, but homosexual couples can’t adopt as a family. So even if two gay men jointly agree to raise a child, only one has clear legal rights and responsibilities toward that child.
Ending the legal limbo inhabited by children of gay couples is the best reason why the legislature should place a referred law introduced by Senate President Joan Fitz-Gerald and Rep. Tom Plant, D-Nederland, on the Nov. 7 ballot. If confirmed by voters, it would establish formal domestic partnerships for same-sex couples.
Among other things, the Colorado Domestic Partnership Act would give gay couples the right to make medical decisions for an incapacitated partner, provide access to health-care and family-leave benefits and protect inheritance rights when a partner dies.
Gays have long cited their lack of standing in such cases in their pleas for legal recognition of their unions. But while the process can be cumbersome, most, though not all, of those rights can be established now – by writing wills, medical powers of attorney, and other legal documents.
Plant and Fitz-Gerald’s bill goes far beyond simply streamlining those existing procedures. It breaks new ground by clarifying rights and responsibilities when a couple breaks up, especially in regards to any children in the now-broken family. That will allow courts to define and enforce those rights and obligations using the standard legal yardstick of “the best interests of the child.”
This principle is so important that even the sponsors of an initiative to ban gay marriage chose not to specifically forbid civil unions or domestic partnerships. Thus voters might well write a ban on gay marriage into the Constitution while also approving the more limited domestic partnership law.
Passage of both measures might be called a split decision in the culture wars. But voters might well decide it would also be in the “best interests of the child.”
Deputy editorial page editor Bob Ewegen has covered state and local government since 1963.
