Should We Be Worried About the Future of Same-Sex Marriage?

As Roe v. Wade was overturned in 2022, U.S. Supreme Court Justice Clarence Thomas wrote that the court should also reconsider Griswold v. Connecticut, a decision that established a federal right to contraception, Lawrence v. Texas, a decision that established a federal right to same-sex intimacy between consenting adults, and Obergefell v. Hodges, which legalized same-sex marriage. Thomas suggested that each of those rulings should also be overturned and that substantive due processes — a principle that allows courts to protect substantive laws from government interference — should be eliminated entirely.

Though the Supreme Court re-evaluating its own rulings is not uncommon, at the time, the historical overturning of Roe v. Wade caused tremendous concern among much of the nation. The incident seemed to suggest that minority rights were under fire and were at risk of being restricted at the whim of an unelected panel of judges.

With the 2024 election looming, many politicians are beginning to revisit social topics like same-sex marriage and the political importance of who appoints the next Justices. We sat down with Laurence Gendelman, a founding partner and attorney of Gendleman Klimas Edwards, Ltd., and Scott Skinner-Thompson, an associate professor at the University of Colorado Law School to discuss the current state of same-sex marriage in Colorado and whether or not the institution is at risk.

The legality of same-sex marriage in Colorado

Civil unions for same-sex couples were legalized across Colorado in 2013. Same-sex marriage has been legal in Colorado since 2014. Federally, same-sex marriage became legal in 2015 through a U.S. Supreme Court ruling. Yet Colorado’s constitution states, “Only a union of one man and one woman shall be valid or recognized as a marriage in this state.”

Should a federal shift in law take place, Colorado’s constitution does not protect the right to same-sex marriage like 30 of the nation’s states. As recently as a 2006 ballot initiative, the state’s voters narrowly approved the amendment that called for marriage between one woman and one man. This fall, Colorado voters will get the chance to amend the state constitution to remove language that prohibits same-sex marriage along with Hawaii and California voters.

While no immediate threat is calling for the disassembly of same-sex marriage, the institution is far from safe. Gendelman said, “I think the same-sex marriage in Colorado is only as secure as that right is at the federal level.”

Before June 2022, the right to abortion was classified in the same way in Colorado — it was federally protected but not protected under the state constitution or by state law. After Roe v. Wade was overturned, Colorado lawmakers codified abortion to ensure its protection.

“We haven’t, to my knowledge at least, done anything similar with same-sex marriage rights in Colorado,” said Gendelman. Voting on an amendment in the state constitution could mark the first step towards protecting same-sex marriage across the state.

Should we be worried about the future of same-sex marriage?

A looming presidential election is one reason for growing tension surrounding the subject of same-sex marriage. Although tensions are typically high during elections, the recent reversal of Roe v. Wade and the expressed interest from Justice Thomas and a number of additional Supreme Court justices to re-evaluate similar decisions could further exacerbate tensions.

When asked if he thinks it’s likely the Supreme Court could overturn same-sex marriage, CU Law Professor Scott Skinner-Thompson said, “If they follow the approach they adopted in Dobbs, yes. But the court is political. I don’t think they will. Their credibility right now is at an all-time low, and I don’t think that they’re going to be interested in rocking the boat.”

“I think it’s easier to find five members of the court who will continue to uphold Obergefell because justices like Kavanaugh and Gorsuch and Roberts are going to be less inclined to overturn it because there’s widespread support for it. But it’s very difficult to predict this court. So, it remains theoretically vulnerable,” said Skinner-Thompson.

However, there is a possibility that the elected president will play a part in the Supreme Court’s political leanings one way or another. “If Trump wins the presidency again and is allowed to take office, it’s conceivable that the court becomes even more conservative,” Skinner-Thompson warned.

He added that there does not appear to be a looming threat at this time, “I think all of this is very salient. I don’t view it as imminent, but it’s certainly within the realm of possibility.” A more conservative Supreme Court could potentially indicate that same-sex marriage may come under fire once again, leaving the decision to the states to protect it.

A small comfort is that the Supreme Court is intended as an institution that supports checks and balances, historically representing the minority cause. “The courts are — they’re inconsistent in this, but in some ways, they pay lip service to the idea of democracy and consider how the public feels about certain issues,” said Skinner-Thompson. Yet, recent years have demonstrated volatile results.

Gendelman agreed that targeting same-sex marriage isn’t unrealistic, but it seems unlikely. “I mean, yes, of course, they could revisit a prior opinion. If the issue were to come before them again, yes, they could certainly come up with a different result.” Yet, “I think that it would be difficult for them to get there,” he said.

In a time when social issues much of society imagined were no longer at risk, Roe v. Wade had many U.S. citizens feeling terrified. Gendelman reflected that it can be difficult to determine how many of these topics needlessly create fear and how many could actually result in negative consequences. In this case, “I think that there is some well-founded fear here.”

Despite this feeling, Gendelman supports the Supreme Court’s efforts to revisit precedent. “The Supreme Court has [re-visited precedent], in which now we look back, and we say, ‘Thank God they did that,’” highlighting racial segregation as an example. Additionally, revisiting previously established precedent does not necessarily mean that it will be reversed.

Protecting same-sex marriage in Colorado

If Roe v. Wade’s reversal did anything to protect other cases that were established through precedent, it was to highlight that they were vulnerable. In fact, nationwide, countries such as France responded to U.S. events by enshrining the right to abortion in their constitution. Same-sex marriage has not yet been protected in Colorado and highlighting its current vulnerabilities could result in enough attention to protect it.

According to Gendelman, codifying same-sex marriage in Colorado’s constitution would be a step in the right direction: “I think that would be really helpful in the event that something just happened at the federal level.”

Skinner-Thompson agreed that many states, including Colorado, could benefit from updating their constitutions to more accurately reflect the social perspectives of the times, “There is a lot of need for states to do their own housekeeping on these fundamental rights.” Since Colorado is one of 30 states that still retain discriminatory language against same-sex marriage in the constitution, revisiting those perspectives could help to ensure that the majority’s opinions are expressed through law.

Gendelman noted if Colorado was unable to codify same-sex marriage, it may be possible to make a case to protect it anyway. “There’s some case law that could be used to support a right to same-sex marriage in Colorado.” He reflected,” If practitioners wanted to argue that we already recognize that right via case law because we have a case from 2021, which is Hoggset v. Neale, which extended a right to same-sex common law marriage, that can predate the existence of same-sex marriage prior to Colorado in 2014.” One silver lining is that same-sex marriage protection is not quite as black and white as Roe v. Wade. Instead, there are a fair number of cases that could be used to argue for the protection of it even if the constitution does not overtly support it.

While practicing law in the state, Gendelman also noted that he hasn’t seen any concerning changes within the courts that could indicate a perspective shift surrounding same-sex marriage: “I mean, as of right now, right, Obergefell is federal law. And I haven’t seen anyone try to argue otherwise. I have never seen any commentary, or arguments from counsel, about same-sex marriage not being legal or not standing on strong ground or anything to that effect. I do not think arguments like that would be well taken in the Colorado courts right now.” As a result, he is hopeful that statewide, same-sex marriage continues to be seen as an established entity rather than one that could soon be reversed.

While Justice Thomas’ call for the re-evaluation of the precedent that established a legal right to same-sex marriage sparked concerns amongst many people across the country, his perspectives have historically been among the most conservative of the court. As a result, his intentions alone do not necessarily indicate a high likelihood of success. Instead, a court majority would have to rally for the reversal of same-sex marriage.

Laurence Gendelman of Gendelman Klimas Edwards Ltd

While unrest continues to build leading up to the presidential election, Skinner-Thompson reminds readers that they do not have to be bound by inaction. Instead, he suggests voting and pursuing education surrounding current affairs. He also stated that it is the Supreme Court’s job to interpret the constitution: “But the constitution belongs to all of us, and we all have a role in interpreting it.”