Curious about US trend toward LGBTQ equal rights? Look at Colorado.
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Sarah Matusek Staff writer
| Denver and Colorado Springs, Colo.
From “hate state” status in the 1990s to the reelection of the country’s first openly gay, male governor in November, Colorado illustrates the nation’s gradual trend toward equal rights for the LGBTQ community.
Around 7 out of 10 Americans nationwide now support same-sex marriage. And on Tuesday, President Joe Biden signed the Respect for Marriage Act, which codifies same-sex and interracial marriage rights.
Why We Wrote This
A story focused onThe bipartisan passage of the Respect for Marriage Act shows how far Americans have come in embracing LGBTQ rights. Blue Colorado with its deep-red pockets illustrates that journey.
But Colorado also illustrates a nation in disagreement. The state’s three Republican U.S. representatives voted against the Respect for Marriage Act – while the four Democrats voted in favor. And the Centennial State continues to source plaintiffs for Supreme Court cases that have forced a national grappling over the promise and limits of LGBTQ equality.
The current one is 303 Creative LLC v. Elenis, whose Colorado plaintiff Lorie Smith, a graphic artist, would like to be able to decline creating custom websites with same-sex marriage messages. The case, argued before the high court earlier this month, may force a reckoning on free speech issues.
The pendulum of Colorado state law has “swung in favor of LGBT people,” says Scott Skinner-Thompson, associate professor at the University of Colorado Law School. But, he adds, “the First Amendment in particular is now being weaponized to limit those protections.”
Pink, red, orange, yellow, green, turquoise, indigo, violet.
A 25-foot-long pride flag recently hung for two weeks outside Colorado Springs City Hall. For a city known for years as a conservative, Christian center, it was a notable sign of solidarity with those targeted in the mass shooting there last month at Club Q, an LGBTQ nightclub.
Soon after the flag was raised, however, strong winds caused the fabric to tear. The city reached out to a local seamstress who came to the rescue and volunteered her time. After her repairs, the flag was raised again.
Why We Wrote This
A story focused onThe bipartisan passage of the Respect for Marriage Act shows how far Americans have come in embracing LGBTQ rights. Blue Colorado with its deep-red pockets illustrates that journey.
Much like the mending of the flag, Colorado LGBTQ advocates are used to cycles of revolution and repair, victory and setback, while gaining allies along the way. From “hate state” status in the 1990s to the reelection, with a 19-point lead, of the country’s first openly gay, male governor in November, Colorado illustrates the nation’s gradual trend toward equal rights for the LGBTQ community – even as gales of grievance continue to blow.
The partisan split of Colorado’s federal lawmakers over the Respect for Marriage Act, signed into law this week, signaled another nuanced win for LGBTQ advocates.
“Marriage and our right to marry is huge, because it humanizes us,” says Liss Smith, communications manager at Inside Out Youth Services, which serves LGBTQ young people. Yet marriage equality is a “tiny piece of a very big puzzle” of priorities, adds Mx. Smith, which includes ongoing advocacy for inclusive schools and transgender rights.
“We need allies in this work more than we ever have,” says Mx. Smith, who grew up in Colorado Springs and uses a gender-neutral courtesy title. Symbols of that support abound of late. “There are pride flags hanging in downtown businesses right now, which I never could have imagined when I was a kid.”
An about-face on marriage equality
When President Joe Biden served as a Democratic senator in 1996, a minority of Americans supported same-sex marriage. That year he voted for the Defense of Marriage Act, which defined marriage as a legal union only between a man and a woman, thereby determining eligibility for certain federal benefits.
On Tuesday, Mr. Biden formally repealed and replaced that law by signing the Respect for Marriage Act, joined by survivors of the Club Q shooting that killed five people. (Though motive remains undetermined, the alleged shooter has been charged with 305 counts that include murder and hate crimes.)
As same-sex marriage support now swells to around 7 out of 10 Americans nationwide, the bipartisan act of Congress codifies same-sex and interracial marriage rights, compelling states to honor valid unions from other states even if they do not legalize them in their own state. The measure was prompted by some lawmakers’ fear of a potential overturning of Obergefell v. Hodges, the 2015 Supreme Court decision that confirmed the constitutional right to same-sex marriage.
Several reasons may explain the growing embrace of marriage equality nationally, scholars say, including increased LGBTQ representation in mass media and more everyday interactions with those who are out. Not all activists have prioritized marriage equality, however.
To some, it was seen as “too radical of a goal, particularly in the late ’80s, early ’90s,” as workplace discrimination and AIDS activism took precedence, says Andrew Flores, a political scientist at American University in Washington, D.C. “For others, it was joining an institution that was very much more mainstream,” which was off-putting.
Colorado’s Democratic Gov. Jared Polis married his husband, Marlon Reis, last year. Mr. Polis rose from tech entrepreneur to philanthropist and major Democratic donor, winning seats on the Colorado State Board of Education and later in the U.S. House and then the governorship in 2018.
His first year in office, Governor Polis signed legislation banning conversion therapy, which seeks to get people who don’t identify as heterosexual to see themselves that way. In other LGBTQ-related moves, he outlawed the “gay or trans panic defense” in state courtrooms and mandated some protections for transgender-related care in certain health care plans. Nationally, however, he may be best known as a pragmatic leader with a libertarian streak.
“I think the interesting thing that we’ve seen is his identity as an openly LGBT person – a married gay man with kids – is almost secondary,” says Brad Clark, president and CEO at the Denver-based Gill Foundation, which focuses on issues of LGBTQ equality.
That sort of normalization is what advocates have pursued for years, adds Mr. Clark: “What should matter is his leadership.”
The governor, from Boulder County, was born in 1975 – the same year that a straight woman there became an accidental hero of the gay rights cause.
Colorado Springs: A red pocket in a blue state
Clela Rorex, Boulder County clerk and recorder, became one of the first clerks in the country to grant marriage licenses to same-sex couples. Unaware of any state law to stop her, she issued six such licenses before the state attorney general intervened. As national media picked up the story, she became a target of hate at home.
Years later, she recalled how she was tested by a “cowboy” who came in asking to marry his 8-year-old horse. “I put my pen down, calm as could be, and said, ‘Well, I’m sorry, but that’s too young without parental approval,’” she said with a chuckle.
Two decades after Ms. Rorex issued those six licenses, city ordinances barring discrimination based on sexual orientation had passed in Aspen, Denver, and Boulder, spurring conservative backlash.
Colorado Springs resident Kevin Tebedo co-founded a group called Colorado for Family Values, which put forth the 1992 Amendment 2 ballot initiative aimed at the LGBTQ community. It called for barring state entities from allowing people to claim discrimination based on “homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships.”
The goal wasn’t to “deny homosexuals any rights,” says Mr. Tebedo, a business consultant in the city. Rather, “our amendment was written specifically to prohibit homosexuality from being counted as an immutable, readily identifiable characteristic for the purposes of strict scrutiny under the law.”
What Americans like him deem behavior, LGBTQ people and allies see as personal identity (the latter is supported by the American Psychological Association). That meant Amendment 2 was personal for Coloradans like Aaron Marcus, then in his 20s, who recalls how the approaching vote made him officially come out to his family as gay.
“It was so important,” says Mr. Marcus, Gill Foundation associate curator of LGBTQ+ History at History Colorado, a state organization. “I wanted them to know if they vote yes on this and legalize discrimination, it could impact their son, their cousin, their brother, their nephew.”
Amendment 2 passed with 53% of the vote, igniting a national boycott of Colorado, which garnered the nickname “the hate state.” Mr. Tebedo, who describes himself as neither liberal nor conservative, but a “follower of Christ,” still takes exception to the hate label.
“To act like if somebody approaches something from a biblical worldview is somehow bigoted and evil, but somebody that approaches something from a humanist worldview is not – that’s a false dichotomy,” he says.
Linda Fowler, a lesbian activist who was catalyzed by Amendment 2 to join a lawsuit against the state as a plaintiff, recalls her conviction that her side would win.
“We firmly believed that it was illegal under the Constitution,” she says. In 1996, the U.S. Supreme Court agreed. The ruling in Romer v. Evans deemed the amendment unconstitutional under the equal protection clause.
By then, however, Colorado Springs already had deep roots of resistance to LGBTQ rights.
Around the same time Amendment 2 passed, Focus on the Family and other conservative Christian ministries established themselves in the city. Over the years, the organization has tried to update its messaging on sexual orientation, emphasizing more tolerance, President Jim Daly told The Associated Press last month.
“I think in a pluralistic culture now, the idea is: How do we all live without treading on each other?” said Mr. Daly, adding that he mourned the Club Q shooting.
That shift in language does not indicate a shift in core beliefs, however.
“While others have changed their views on marriage, we still hold to more than 5,000 years of Judeo-Christian teaching that marriage uniquely unites the two sexes – a male and a female,” Jeff Johnston, Focus on the Family culture and policy analyst, said in an email via a spokesperson.
By contrast, based just outside of Denver, the Rev. Dr. Sam Lopez, leadership council co-chair of the Progressive Christian Alliance, has officiated same-sex weddings for years, though he is not a member of the LGBTQ community.
“The more involved I am in progressive causes and events in the community … I have less and less contact with [evangelical friends]. Because they’re not here,” he told the Monitor during a Club Q vigil in Denver.
Varying views of equality
Attorney Mario Nicolais says his faith as an Episcopalian – particularly the call to “love one another” – influenced his support for civil unions in the state, along with marriage equality. In 2012, the self-described “classical conservative” helped form the advocacy group Coloradans for Freedom, which pressed for civil union legislation that became law the following year.
“I think to be a conservative, you have to believe in equality,” says Mr. Nicolais. “You can’t have liberty without equality first.”
Mr. Nicolais, a “Never Trumper,” switched his voter registration from GOP to unaffiliated before Donald Trump’s inauguration in 2017. The fact that Colorado’s three Republican U.S. representatives voted against the Respect for Marriage Act – while the four Democrats voted in favor – didn’t surprise him.
Those politicians answer to a Republican base that is “very siloed from the rest of the state, but also is a shrinking percentage of the state,” says Mr. Nicolais, an opinion columnist for The Colorado Sun. Today, even with deep-red rural areas, Colorado is a solidly blue state where Democrats control seats for governor, secretary of state, and both legislative chambers.
Yet the Centennial State continues to source plaintiffs for Supreme Court cases that have forced a national grappling over the promise and limits of LGBTQ equality.
In 2018, the high court narrowly ruled in favor of Colorado baker Jack Phillips in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Mr. Phillips, a devout Christian, had declined to create a custom cake celebrating a same-sex marriage, which the state found in violation of public-accommodation law. The top court ruled on free exercise grounds that the state had shown “hostility” to the baker, but it didn’t settle the free speech issue.
Now justices are revisiting free speech in 303 Creative LLC v. Elenis, whose Colorado plaintiff Lorie Smith, a graphic artist, is the owner and founder of 303 Creative. She would like to begin designing custom wedding websites for clients, but based on her Christian conviction that marriage should only be between a man and a woman, she would also like to be able to legally decline creating sites with same-sex marriage messages. Her legal team argues that the Colorado public-accommodation law is censoring her speech.
“No government should be allowed to punish its citizens for creating artwork that’s consistent with what they believe,” says Ms. Smith, whose case was argued before the Supreme Court this month. “That goes for me, that goes for the LGBT web designer, the LGBT graphic designer, and the many people out there who hold different views on marriage.”
Alliance Defending Freedom, her counsel, sees this free speech argument as compatible with the value of equality.
“I think the government treats people equally under the law by protecting everyone’s right to free speech,” says Alliance Defending Freedom attorney Kellie Fiedorek, who was on the call with Ms. Smith.
Critics see a Pandora’s box ready to burst. The pendulum of Colorado state law has “swung in favor of LGBT people,” says Scott Skinner-Thompson, associate professor at the University of Colorado Law School. “The First Amendment in particular is now being weaponized to limit those protections.”
The legal scholar, along with some advocates, believes that Colorado state law should be amended to safeguard same-sex couples out of an abundance of caution. A 2006 state constitutional amendment defines marriage as exclusively between a man and woman. Court challenges in 2014 deemed that provision unconstitutional, as did the Obergefell decision the following year. However, if the Supreme Court ever determines that nothing in the U.S. Constitution prohibits state bans on same-sex marriage, that could reanimate Colorado provisions that discriminate against same-sex couples.
“This happens all the time, where there are laws that are deemed unconstitutional and they sort of languish in the books, but courts, local officials don’t enforce them,” says Mr. Skinner-Thompson. LGBTQ advocates at One Colorado are prioritizing plans to reverse the ban, reports Colorado Public Radio.
“We are often in a space of reaction, rather than action,” says Mx. Smith, from Inside Out Youth Services. In February, for instance, their team paused work on an advocacy plan for the year to respond to local school board members’ transphobic social media posts by organizing a rally and writing an open letter condemning the content.
The nonprofit offers a range of services, including therapy, group meals, school advocacy, community trainings, and lockers for youths experiencing homelessness. The colorful space features common areas with a pool table and gurgling fish tank, along with a pink “unicorn parking only” sign in the kitchen.
But the physical space has been closed since the shooting, as participants are too hesitant to gather here in public after another safe space was violated just six miles away. Inside Out maintains an online community through the Discord platform and expects to reopen early next year.
Meanwhile, love arrives in letters. Mx. Smith reads the latest batch sent from a New York City school.
One says: “I wish I could be there to comfort you as you grieve.”
