Couple Challenges Colorado's Ban on Gay Marriage.

The first legal challenge to Colorado’s constitutional ban on same-sex marriage goes to court Wednesday, with the goal of unraveling Amendment 43, which voters passed in 2006.

The main legal case is misdemeanor trespassing: Catherine Burns and Sheila Schroeder, a lesbian couple from Englewood, went to the Denver Clerk and Recorder’s Office on Sept. 24 to get a marriage license.

When they were told it was unlawful under state and federal laws, they refused to leave the counter and staged a sit-in until they were cited for a misdemeanor count of trespassing.

On Monday, their attorney, Mari Newman of Denver, filed a motion that seeks to strike down Amendment 43 as unconstitutional.

“Marriage is a fundamental right that should be enjoyed by all Coloradans,” Newman said Monday afternoon.

The motion claims the marriage ban violates the due-process requirement of the U.S. Constitution’s 14th Amendment; equal protection under the law as required by the First and 14th amendments; and the First Amendment’s protection against the government establishment of a religion, claiming Amendment 43’s genesis was religiously motivated.

Amendment 43 defined marriage as between a man and a woman, and it was supported by 56 percent of voters.

Same Sex Marriage Ban Challenge Set.*[Denver Post]

*Wow is that a bad hed.

G.D.

G.D.

Gene "G.D." Demby is the founder and editor of PostBourgie. In his day job, he blogs and reports on race and ethnicity for NPR's Code Switch team.
G.D.

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  • Steve

    I HIGHLY doubt they’ll get consideration of the first amendment claim. But their main argument hinges on equal protection clause, as articulated in other cases such as Loving V. Virginia (VA banned interracial marriages). However the ultimate question the court will look at is whether the Amendment 43 is protecting a legitimate government interest. The Supreme Court has looked at cases NOT involving race as being under a rational basis review which is basically is there a rational basis for this legitimate government interest (not just motivated by an animus). As opposed to, with race cases there is “strict scrutinity” or a higher level when racial classifications are included.

    CO is also the site of one of the bigger gay rights cases that was heard before the high court. Romer v. Evans involved a CO law that BANNED legislation that BANNED discrimination (LOL). The Supreme Court in a close decision overruled this. Scalia’s dissent basically said homosexuality is a compelling government interest such as preventing murder or cruelty to animals…… and the people have the right to vote and pass such a law based on this animus.

    That case is moot these days after Lawrence v. Texas overturned Bowers v. Hardwick… Which basically now says that laws banning gay sodomy are illegal. They COULD use Oconnor’s concurring opinion arguing that the sodomy stature in Lawrence was unconstitutional because it violated the equal protection clause by ONLY banning gay sodomy not hetero sodomy. It is going to be difficult, however, because conceivably the state can argue there is MORE of a legitimate government interest in banning gay marraige than gay sodomy.

    We’ll see…