In refusing to support a proposed ban on legal recognition of committed same-sex couples, Coloradans this week made history: For the first time, they said "no" to irrational discrimination against gays and lesbians.
Initiative 109 would have forbidden the state and its political subdivisions from creating or recognizing a legal status "similar" to marriage. It died Monday when supporters conceded that they had failed to gather the 67,829 valid signatures necessary to place it on the ballot.
Opponents had dubbed 109 "Son of Amendment 2," for good reason. Both measures originated with Colorado Springs' own Will Perkins; both were underlain by what the U.S. Supreme Court, in declaring Amendment 2 unconstitutional, called "animus" toward gays.
Perkins and co-sponsor Kevin Lundberg (R-Berthoud) touted Initiative 109 as a ban on civil unions. Denying same-sex couples access to marriage itself doesn't go far enough, in their eyes; if marriage is to be adequately "defended," gays and lesbians must also be denied the legal rights and responsibilities that buttress heterosexual families.
In fact, Initiative 109's true reach likely would have extended even farther to same-sex partner benefits already offered by the city and county of Denver, the city of Boulder and the University of Colorado.
That's what has happened in other states.
"Our view is that [these kinds of measures] shouldn't affect benefits," says Ken Upton, a senior staff attorney for the Lambda Legal Defense and Education Fund, a national organization that works to secure civil rights for gays. "But our experience in other states shows us that people who oppose fair treatment of gays and lesbians will use this as a justification for attacking benefits."
The clearest example is Michigan, where in 2004 voters amended their constitution to state that "the union of one man and one woman ... shall be the only agreement recognized as a marriage or similar union for any purpose."
During the campaign, the American Family Association of Michigan assured citizens that the last five words "similar union for any purpose" were intended only to add emphasis, not to reverse existing benefits.
Now the same organization is suing Michigan State University, saying the school's nine-year-old policy of offering health insurance to same-sex partners violates the state constitution. Focus on the Family lauded the action during a recent radio newscast, using the phrase "wolf in sheep's clothing" to characterize not the AFA about-face, but "gay activists who are cunningly pushing their agenda under the radar."
Similar bait-and-switch tactics have been used in Oregon, Utah and other states that have passed broadly worded "defense of marriage" amendments, according to E.J. Graff, a Brandeis University scholar and journalist who has written extensively on same-sex marriage.
In Colorado, the scenario is complicated by Initiative 83, which reiterates the statutory definition of marriage as the union of one man and one woman. Supporters of that narrowly tailored measure submitted 133,200 signatures to the secretary of state Monday, virtually assuring it a place on the ballot.
While 83 is silent on civil unions, voters might well have mistaken 109 for "the marriage amendment," had both made the cut. One table sign used by Initiative 109 signature-gatherers actually described Initiative 83: "Marriage: One Man, One Woman. No Exceptions."
Yet the distinction is vitally important to gays whose partner benefits were threatened by the Perkins-Lundberg measure. They include University of Colorado-Boulder psychologist Mike Potoczniak, who worried that voters faced with the two measures wouldn't parse the difference.
"My partner is self-employed, so it's a huge thing for us to have benefits through me," Potoczniak says. "What people don't understand is: If you want to vote against [same-sex] marriage, go ahead and vote against marriage. But when you vote for a constitutional amendment that says "a legal status similar,' you're taking away things we currently have. ...
"I don't think people understand that there are all these people who would lose benefits as a result of that vote."
Benefits administrators estimate that 112 employees across the CU system, including the Colorado Springs campus, take advantage of domestic-partner benefits offered since 2003. At the city and county of Denver, which has offered same-sex partner benefits since 1999, 61 employees are enrolled. No figure is available for the city of Boulder, which has offered the benefits for nearly a decade.
Enrollment would be higher if not for federal policy, which recognizes common-law marriage but not same-sex partnerships. That means that, unlike heterosexual employees, gay employees are taxed on the value of benefits that cover a partner and non-biological children.
Because of the additional tax burden, the benefits don't make financial sense for all gay couples. But for others, they're a lifesaver.
"Not a lot of people enroll," says Bruce Backer, director of benefits for the city and county of Denver. "But the people who do enroll really need those benefits. They're typically in situations where they can't get access to group benefits through another venue."
The benefits are equally valuable to Denver from a recruiting and retention standpoint, Backer says. Health and welfare coverage comprises 10 to 15 percent of a typical compensation package; offering partner coverage to gay employees moves them toward parity with heterosexual colleagues.
Graff believes most Americans share that commitment to equal treatment even if they grapple with the notion of gay "marriage." In rejecting Initiative 109 this week, Coloradans demonstrated as much.
"Americans still have a lot of caution about the word "marriage,' and that's understandable," Graff says. "It's an idea that's central to most people's lives, and to make a change in that requires a lot of thought.
"But it's part of the DNA of being an American citizen that you believe in fairness for all and equality for all. I don't think people actually want to stop two people who love each other from taking care of each other."
The three that remain
While signature-gatherers for Initiative 109 fell short, it is likely that a trio of other same-sex-related measures will make the ballot.
Reiterates Colorado's statutory definition of marriage as a union between one man and one woman.
Authorizes same-sex domestic partnerships.
(Scroll down to Referendum I)
Declares domestic partnerships not similar to marriage.