Monday, October 30, 2006

DENVER — Colorado voters can decide next Tuesday whether to support a constitutional amendment affirming traditional marriage or an initiative allowing same-sex couples to register as domestic partners.

Or both.

The measures, which at first glance appear to cancel each other out, are actually legally compatible, said lawyers and political analysts.

Amendment 43, the marriage amendment, says that marriage is only between one man and one woman, with no mention of same-sex relationships. Referendum I would establish legal domestic partnerships for same-sex couples, but states that such an arrangement “is not a marriage, which consists of the union of one man and one woman.”

In other words, both could become law without the added drama of a protracted court battle, a likely scenario given that both are now leading narrowly in the polls.

“They’re not contradictory at all,” said Denver political analyst Eric Sondermann. “It makes perfect legal sense — voters are not yet ready to cross the threshold that would make marriage an institution for anyone other than one man and one woman.

“But at the same time, they recognize that gay couples should have basic legal rights and protections,” he said.

Indeed, the Rocky Mountain News endorsed both measures in its Oct. 6 editorial, saying homosexual couples “do face unnecessary obstacles and disadvantages” in areas such as inheritance, workers’ compensation and medical decisions.

“Referendum I would level the playing field on all of those matters,” said the editorial. “But we also think Coloradans should protect the right to decide whether gay couples should be issued marriage certificates that are in every detail the same as those heterosexual couples receive. That’s all Amendment 43 does.”

Still, their supporters are hardly working hand in hand. Focus on the Family’s political arm, which backs Amendment 43, is also the primary mover behind the anti-Referendum I effort.

“Coloradans are fair, but we don’t want counterfeit marriage,” says a television ad run by the Colorado Family Action Issues Committee.

Meanwhile, the Gill Action Fund, the political committee led by homosexual software millionaire Tim Gill, is the chief financial backer for both the pro-Referendum I campaign, Coloradans for Fairness and Equality, and the Say No to 43 campaign.

“No constitutional definition can make a marriage strong,” said the Rev. Phil Campbell of the United Church of Christ, arguing against Amendment 43 at a debate last week. “The thought that gay and lesbian couples may someday marry holds no threat to my marriage.”

The marriage constitutional amendment has a perfect record with voters to date — it’s won passage in every one of the 20 states where it has been it on the ballot — but that could change Nov. 7.

The measure is struggling this year in several states, including Arizona, South Dakota and Wisconsin. And although the polls show the Colorado amendment leading with about 52 percent of the vote, that’s a far cry from the 70 percent that such amendments have averaged in the past.

“This is definitely one of the most interesting campaigns in the United States,” said Jon Paul, executive director of Coloradans for Marriage. “There may be other states in more danger of losing the marriage amendment, but we’re close and Referendum I certainly doesn’t help.”

Denver pollster Floyd Ciruli agreed that Referendum I, with its extensive television advertising campaign, has hurt support for Amendment 43 by shifting the public’s focus from marriage protection to equal rights.

“There’s an immense amount of money arguing that domestic partnership is a rights issue,” Mr. Ciruli said. “It’s creating a significant atmosphere of tolerance toward gay rights, which is probably helping bring some people out to the polls and persuading other people who might have been on the cusp.”

Another factor, he said, is that voters just aren’t as excited about traditional marriage this year as they are about other issues, such as illegal immigration.

“There’s not much passion behind it because Colorado already has a statute, and there’s no court challenge in this state,” Mr. Ciruli said.

Cathi Herrod, spokeswoman for Protect Marriage Arizona, sees the same problem in her state with Proposition 107.

“There’s complacency,” she said. “When you see 20 states pass marriage amendments by an average of 70 percent, it’s hard to feel like this is urgent.”

Focus on the Family Chairman James Dobson is sounding the charge for Christian listeners of his nationally syndicated radio program, urging listeners to turn out on Election Day specifically to support the amendments.

“If one of those states is lost — or two or three — it has serious implications for the future of the family,” Mr. Dobson said.

What could ultimately energize the electorate is the New Jersey Supreme Court decision Wednesday ordering the Legislature to provide for same-sex unions.

“We have Massachusetts, Vermont and now New Jersey with activist judges using the courts to redefine marriage, not by a vote of the people or their representatives,” Mrs. Herrod said.

“It’s judicial activism at its worst,” she said. “The only remedy is to place marriage protection in the state constitution by voting for these amendments.”

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