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.”

The post Should We Be Worried About the Future of Same-Sex Marriage? appeared first on Yellow Scene Magazine.

When the supreme court ruled in favor of gay marriage on Friday, June 26, our screens seemed to be filled with rainbows and slogans like #lovewins. It certainly depends who your Facebook “friends” are, but for us at Yellow Scene, the ruling was met with joy from most corners. We say “most,” because there always the loudmouthed dissenters. From Fox News to Glenn Beck, from churches to regular conservative households, hateful messages were spewed out, usually disguised as religious passion. It isn’t. Real Christians know the definition of love under the teachings of Jesus. They also know what progress is and, both tragically and amusingly, these dinosaurs are firmly on the wrong side of history. Allow us to illustrate that very thing.W

Marriage between a man and a woman was established by God, and no earthly court can alter that.
Louisiana Gov. Bobby Jindal, candidate for the Republican presidential nomination

Hence today I believe that I am acting in accordance with the almighty creator and that I have been chosen to do so by providence.
Adolf Hitler

Homosexuality is consistently condemned in the strongest possible terms … Science proves living a homosexual lifestyle is devastating, medically and psychologically. It’s not loving the encourage people to violate God’s moral law, especially when the consequences are so destructive. Now we’re sending a morally confused message to our children and grandchildren. God is not pleased.
Gary Cass, Christian Anti-Defamation Commission

The negro is not a human being.
Anti-abolitionist Buckner Payne

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.
Supreme Court Judge Clarence Thomas

Just so you know, the family has been officially and will now be officially redesigned. It has to be defined differently. The term ‘mom and dad’ in the traditional family is over. Now you’re parent one and parent two.
Radio personality Glenn Beck

The Slaves have many rights. The right of life and limb, the right to be fed and clothed, to be nursed when sick, and cared for in old age when they become helplessly infirm. They are rightfully entitled to protection from ill treatment.
From Nellie Norton by Rev. E.W. Warren

The post The wrong side of history appeared first on Yellow Scene Magazine.

By Jake Plessinger

As of 10:30am Mountain Standard Time on Monday October 06, 2014, gay marriage will now be allowed in almost a dozen new states. The Supreme Court has refused to hear cases of gay marriage appeal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, thus lifting bans on same sex marriage in those states. Because the Supreme Court refused to hear cases from these states, it could mean that six other subsidiary states (Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming) can start lifting their bans on same sex marriage as well. Colorado was one of the first states to begin the process. Same sex marriage licenses have been ordered to be issued to the public from all 64 county clerks throughout the state. The Colorado Attorney General, John Suthers, advised precaution to those who were trying to gain early access to a marriage license, suggesting that the county clerks wait until every legal matter was taken care of before any license was officially issued so that no more “frustration” (Steffan) was placed upon those looking to obtain their marriage license.

First off, a big congratulations to everyone in the 11 states and all around the world who have been fighting for the legalization of same sex marriage. However this is no victory for the LGBQT community; it just isn’t a loss. Though same sex marriages are now legal in 11 new states, it may not be forever. The Supreme Court can still overturn the decision in about one or two years. Or the individual states could even enact new laws to limit or prohibit same sex marriage yet again. The Supreme Court’s indecision simply showed us that they aren’t ready to start talk for or against gay marriage yet. For some reason gay marriage is a touchy subject in our society today, but to simply ignore the cases for or against either side isn’t a win for the other one. Much like our Legislative branch, our Judicial system seems to prefer to postpone their final decisions until the absolute last second, which does a lot more harm than it does good. Whatever your belief on the subject may be, we here at Yellow Scene would like to remind everyone to be respectful of each other. We value every one of our readers, whether they’re gay, straight or otherwise.

Sources:

Ashley Fantz & Bill Mears “High court refuses to rule – and gives tacit victory – on same-sex marriage”, CNN.com

Jordan Steffan “Colorado clerks are preparing to issue same-sex marriage licenses”, denverpost.com

The post The “Legalization” of Same Sex Marriage in Colorado appeared first on Yellow Scene Magazine.

Remember Mitt Romney out there in Fort Lupton chuckling in a reporter’s face about what an ignorant boob she was for asking him questions about civil unions and medical marijuana?

“Don’t you have anything of significance you want to ask?” he sneered.

Well, excuse all of us who’ve been hearing our voices echo off the walls of Big Government for decades on issues like these and more. Maybe Romney is uncomfortable because, unlike in past elections, politicians aren’t the only ones setting the agenda for our national dialogue.

Call it a residual effect of the Occupy movement or encouragement brought by the successes of the Tea Party or the amplification afforded by social media, but it seems like standing up to be heard on issues that have historically been radioactive to politicians is starting to have an effect. In the past, town hall meetings were easy for candidates to keep on message—their message. Angry civilians shaking their fists over taxes or drug policy or spending or gay marriage were marginalized with the sort of razor-edged sneer that Romney deployed in Fort Lupton, the one that says, “No one cares about your pet issue when there are jobs to discuss, JOBS!”

But that’s proving to be wrong. Consider civil unions, which have long been fought solely as local skirmishes doomed to ping-pong through the lower courts.

No serious candidate would touch the issue for fear of alienating the moneyed marriage interests. But now a sitting president seeking reelection has staked out a position—whether sincerely or cunningly, the jury is still out—that has legitimized the issue as one that’s at least worthy of debate. For something that mainstream politicians and most of the press have long relegated to the fringe of political debate, that’s a success.

So what does all this mean for your summertime? For one thing, it doesn’t have to be ruined by an upcoming national election dominated exclusively by issues chosen by the politicians themselves, those deemed to be “significant” only because they’re safe waters to tread. Attack ads, “talking points” and campaign speeches meant to appeal to those with plankton-level IQs will certainly still be a prominent feature, but thanks to unrelenting pressure to keep hot-button issues front and center, the discussion has been broadened to include topics that many politicians aren’t comfortable with. So there’s wind at your back, Average Citizen!

Don’t waste your time discussing Howard Stern’s relative merits compared to Simon Cowell—get motivated to talk about those “pet issues” of yours because, to the chagrin of Mitt Romney, Barack Obama and a whole host of congressional wannabes, they seem to be building a head of steam and are not going anywhere soon.

Here’s a short list of hot topics guaranteed to hound politicians throughout the dog days of summer, until they realize we’ve been talking about things of significance all along.

›› Medical Marijuana/Marijuana Legalization

This topic is a virtual tsunami, triggered by none other than President Obama himself when the U.S. Department of Justice issued a memo in late 2009 suggesting that federal prosecutors and the DEA would leave patients and businesses in compliance with state medical marijuana laws alone. This was in line with a campaign promise (actually, several of them) that Obama made along his path to the White House. Although the memo has been effectively retracted and Obama’s administration has cracked down harder on medical marijuana businesses than that of George W. Bush, the genie is out of the bottle. As we’ve seen in Colorado, the 2009 memo unleashed a torrent of mainstream pot activity and sparked a robust debate about the topic. Currently, 17 states and Washington, D.C., have defied the 41-year-old $1-trillion-and-counting War on Drugs—which has as a core principle that marijuana has no medical benefit—by allowing people to smoke some grass if their doctors think they will benefit from it. Twelve more have similar legislation pending. Three states, including Colorado, will vote on whether to legalize it outright.

As if this weren’t evidence enough that politicians should start paying attention, consider the latest Rasmussen poll on the issue—56 percent of likely voters favor all-out legalization, a 9 percent jump since March. Only 36 percent are opposed to the idea. Will this finally be the year that some politician (other than Ron Paul and Gary Johnson) finally gets hit on the head with these statistics and has a long overdue road-to-Damascus conversion?

›› Taxes and Spending

You can thank the Tea Party for bringing back to light an issue that has irked Americans since…well, since the original Tea Party. More than any other contemporary movement, Tea Partiers have proven that even if you marginalize yourself with goofy three-pointed hats, UN school lunch conspiracies, and candidates like not-a-witch Christine O’Donnell (who was famously worried that scientists were breeding mice with “fully functioning human brains”), even Average Joes can upend politics as usual, forcing their issues into the hallowed halls of Congress, although whether the results have been good or bad so far is fodder for a bar fight, or a civil war.

But that’s the beauty of the First Amendment and our rights to free speech and assembly; they spawn ideas, debate and counter-ideas. Would we have had Occupy Wall Street without having first had the Tea Party? Regardless, until recently, “taxes” and “spending” have been no more than cardboard platitudes that perfectly mirrored the cardboard politicians who talked about them. Now, they have concrete meanings for many who’ve never paid attention—debt ceilings, corporate welfare, Wall Street criminals and overseas debt default are now being publicly (if often too vociferously) debated. And as the Tea Party has shown, candidates who are ever mindful of the one thing that matters most to them—their electability—are paying attention. No matter which side of the divide you’re on, capitalize on that.

›› Civil Unions/Gay Marriage

Who would have thought we’d be talking about gay marriage during this election? The official word is that you can thank blabbermouth Joe Biden for forcing the president’s hand on an issue he swears (no, really!) that he was going to bring up in his own good time, maybe or maybe not just before the election. If that’s true, it’s an open debate as to whether Biden helped or hurt Obama. In late May a CBS/New York Times poll showed that more than two thirds of respondents, 67 percent, thought the president’s support of gay marriage was a political stunt. It could have been much worse if it had happened any closer to the election.

But whether it was premature or not, this debate will do nothing but grow in intensity as the election nears, particularly because North Carolina, the state hosting the Democratic National Convention, voted just the week before Obama’s announcement to ban civil unions. The issue is sure to be brought up during debates, in TV ads and around water coolers from coast to coast.

More than anything, this new reality should signal to politicians and voters alike that setting our national agenda can—and should—be a shared duty. Politicians from both parties would to well to keep that in mind before they swing through our state, or any state, and pretend that voters don’t have a say in what’s significant or not. As we’re seeing with this election, our voices might be louder than we give ourselves credit for.

The post The trending topic of the election season: Your opinion appeared first on Yellow Scene Magazine.