These days, Brad Clark has an unusual amount of spare time on his hands. The executive director of One Colorado, the state’s largest LGBT advocacy organization, has found himself sandwiched in time between his biggest political victory – the passage of the Colorado Civil Union Act – and an undetermined day, that, when it arrives, will set in motion a series of events that will solidify plans to usher in marriage equality here.
That day – most likely just after the last of the glitter from Denver’s PrideFest celebration has been swept away – is the day the United State’s Supreme Court will make public its decisions on two cases regarding relationship recognition and benefits for same-sex couples.
Few, if any, legal experts expect the Supreme Court to make a sweeping mandate for marriage equality in either its decision on the California case regarding Proposition 8, a voter approved ballot measure that stripped the right for gay and lesbian couples to marry in California after the state’s highest court ruled they could, or its opinion on whether the federal government has the right to withhold benefits bestowed to heterosexual couples from same-sex couples.
Even fewer believe any decision will have a direct and immediate impact on Colorado.
“The question before the court isn’t whether same-sex marriage is legal, but whether a popular vote can take away a set of rights that were previously recognized,” said Metropolitan State University of Denver constitutional law professor Norman Provizer. “We never recognized gay marriage here.”
So, if no one is expecting a ruling from the Supreme Court to be excessively favorable to the cause of marriage equality, why wait and not take matters into their own hands?
If there is even one half-sentence in a limited but favorable opinion a team of lawyers could use to continue the argument that marriage, regardless of gender, is a constitutional right, a legal case maybe the quickest and most affordable path.
A lawsuit challenging Colorado’s Amendment 43, a ballot question approved by voters in 2006 defining marriage between a man and a woman, would also spare gays and lesbians the multi-million dollar financial and emotional burden of putting their families up for a vote, Clark said.
A burden Clark’s not ready to ask the community to carry unless he knows victory is assured.
“The next steps are going to be weighed seriously and strategically,” Clark said. “We have to have to be assured there is a reasonable expectation of success we’ll win.”
‘There was avoidance of romance and love’
When Coloradans in 2006 were asked to constitutionally limit the definition of marriage to a man and a woman, they were also asked in a separate initiative to extend some of the rights and responsibilities of relationship recognition to same-sex couples through domestic partnerships.
Coloradans for Fairness, the campaign behind Referendum I, primarily funded by one donor, gay activist and philanthropist Tim Gill, publicly raised more than $5 million and outspent the religious right coalition responsible for putting Amendment 43 on the ballot nearly 5-to-1 – and lost on both questions.
“We were ahead of our time,” said Adam Crowley. Then 26 years old, the Grand Junction native served on the campaign as an outreach director. “Our base wasn’t even there yet.”
Ref I, referred to the ballot by the Colorado General Assembly, was the first time in the nation’s history voters were asked to extend rights to same-sex couples. The question also came before just after the state’s laws included an LGBT inclusive employment nondiscrimination act and before second parent adoption and robust school bullying policies.
“People’s attitudes were a hell of a lot different then,” said lobbyist Jeff Thormodsgaard. The nation was engulfed in anti-gay hysteria championed by President George W. Bush’s administration that was cheerleading not just statewide constitutional amendments limiting marriage, but a federal amendment that would double down on the federal Defense of Marriage Act signed into law by President Bill Clinton.
Thormodsgaard worked on the campaign as a regional field director in Boulder.
But, he added, “it wasn’t the watershed loss it could have been.”
Thormodsgaard and Crowley now agree, the work done on the Ref I campaign was the beginning of a new understanding on how to connect with voters on gay rights and that 2014 could be the year to run a successful ballot campaign to overturn Amendment 43.
“We live in a fundamentally different state,” Crowley said.
The state, according to analysis by pollster Floyd Ciruli, added 400,000 new voters in 2012. A little more than 75 percent of those voted for President Barack Obama. Coloradans also legalized recreational marijuana, an idea voters opposed in 2006.
If the voters weren’t there in 2006, neither was the message, Crowley said. The campaign was focused more on convincing voters domestic partnerships were a logical compromise and about fairness rather than tug on their heartstrings and share stories about love and commitment.
“The campaign was all about hospital visitation, health care and end of life decisions,” Crowley said. “There was avoidance of romance and love. That’s the interesting thing about how far we’ve come. Now it’s all about ‘one love,’ ‘same love,’ – and it’s working.”
Amendment 43 passed 53 percent to 47 percent. Referendum I lost 52 percent to 48 percent.
“Can we make up that 2 percent? I think we can,” Crowley said. “But it’s going to take money, organization, and buy in from stakeholders and straight allies.”
“The ultimate goal is … to build a strong community.”
It’s not that Brad Clark and his teams are twiddling their thumbs. They’re fanning across Colorado this spring and summer asking supporters at Pride festivals to sign a petition to ask U.S. Senators debating an immigration bill to include LGBT protections.
The petition accomplishes a couple of things for One Colorado: it keeps the advocacy organization’s current base engaged, while growing a database of emails, and strengthens ties between itself and its progressive Latino partners.
The petition drive comes immediately after not just the passage and implementation of the Colorado Civil Union Act, but a successful legislative session that included the passage of the Colorado ASSET bill, granting a lower college tuition rate to the children of immigrants who came to the U.S. unauthorized; the expansion of Medicaid that will allow the community’s most underserved population access to health care; and a memo from the state’s Division of Insurance prohibiting discrimination based on sexual orientation and transgender status.
As One Colorado continues its work on safe schools, trans inclusiveness, and race relations within the LGBT community, it’s weighing several political factors in regards to marriage: first, what does the Supreme Court say? If the court’s ruling is narrow and it’s clear a ballot initiative is the only path, should voters be asked in 2014, a midterm which might draw out more social conservatives because of backlash on gun legislation? Or would the question do better in 2016 – especially if former Secretary of State Hillary Clinton is on the ballot? Or could the momentum behind marriage equality wane just enough to make it more difficult to stoke a progressive fire?
Political tea leaves aside, there are some clear standards One Colorado and the LGBT community can and should set to make a clear decision on when to ask voters to reverse the course of Amendment 43, said executive director of Basic Rights Oregon Jeanna Frazzini.
Frazzini, who has worked with Basic Rights since 2000, said LGBT Oregonians have faced five different statewide votes on their families since 1973. And when the community first began discussing whether they should organize a proactive marriage ballot initiative, after the state’s highest court in 2009 let a lower court decision on Oregon’s constitutional one–man–one–woman definition of marriage stand, the community agreed in order to win they would need to meet the following criteria:
- Polling would have to show at least 50 percent of Oregonians agree with marriage equality
- Create a sustainable fundraising drive to finance a field operation
- A consistency of public engagement by thousands of volunteers
- And Oregon would need the backing of and support from national partners
And while Frazzini said the work her organization in 2011 netted a 10 percent favorable shift in polling data, it still wasn’t enough to create a reasonable expectation of success.
“Our donors and volunteers said they only wanted to run a campaign once – and for all,” she said. “And we decided to hold the vote for another day.”
The day is now, Franzzini said. With marriage victories across the nation, including Oregon’s northern neighbor Washington, Basic Rights Oregon is expecting to begin gathering signatures this summer to put marriage on the 2014 ballot.
If Basic Rights is successful in both putting their question on the ballot and winning the vote, it will be the first state – and a model for the rest of country – to reverse a constitutional ban on same-sex marriage.
If One Colorado were to use the same standards, they might come to the same conclusion that 2014 is the year. Coloradans favor marriage equality by 51 percent, according to a Public Policy Polling survey. One Colorado already has field offices across the state. And after two election cycles and three years of lobbying for the civil unions, One Colorado is poised to move the conversation to marriage.
But a ballot initiative to reverse Amendment 43 would likely be one of the largest campaigns Colorado’s progressive coalition has ever been a part of: political experts interviewed by Out Front put the price tag between $5 million and $20 million.
By comparison, a joint effort between One Colorado’s small donor committee, PAC and C4 nonprofit and a network of national donors raised less than $400,000 during the 2012 election. More than half came from out of state. While the funds served more as a punctuation mark to a sentence on Colorado’s GOP leadership written by Colorado Democratic donors, it was begs the question whether Colorado residents are ready to invest money in a vote on their equality.
The money raised to out lawmakers One Colorado held responsible for blocking a vote on the Colorado Civil Union Act fail in comparison to the marriage campaign in Washington where activists raised more than $14 million — $9.5 million from their own state.
That money was supplemented by donations from all 49 other states, according to campaign finance reports.
A sign of the times: every state gave more to support pro-equality efforts than the opposition.
“The ultimate goal is not just the policy win, but to build a strong community to move the momentum forward,” Franzzini said. “Because, there will still be a lot do after the freedom to marry is won.”