Post's Knight misled on same-sex marriage court cases

Summary: In a Denver Post column criticizing a domestic partnership measure on the November ballot, Al Knight misleadingly asserted "[s]tates that have recently succeeded in defending bans on same-sex marriage also bar domestic partnerships and civil unions." However, Connecticut successfully defended its same-sex marriage ban precisely because the law also established civil unions.

In his August 30 Denver Post column criticizing a domestic partnership measure that will appear on the November ballot, Al Knight misleadingly asserted that "[s]tates that have recently succeeded in defending bans on same-sex marriage also bar domestic partnerships and civil unions." It is true that two states -- Georgia (on July 6) and Nebraska (on July 14) -- recently succeeded in defending legal challenges to state constitutional amendments banning both same-sex marriage and alternatives such as domestic partnerships and civil unions. However, contrary to Knight's assertion, at least one state -- Connecticut (on July 12) -- recently succeeded in defending its same-sex marriage ban precisely because the law also established civil unions that provided same-sex couples with the same benefits as marriage.

Knight made his statement as part of a criticism of Referendum I, a Colorado ballot measure that would, in the words of the ballot title, "extend to same-sex couples in a domestic partnership the benefits, protections and responsibilities that are granted by Colorado law to spouses" and "provid[e] that a domestic partnership is not a marriage, which consists of the union of one man and one woman." This formulation is similar to that in a 2005 Connecticut law. As summarized by Connecticut's Office of Legislative Research, the law "authorizes same sex couples to enter into civil unions, granting them the same legal benefits, protections, and responsibilities as married couples" but at the same time "defines 'marriage' as the union of one man and one woman."

Knight argued that enactment of Referendum I "would also make it difficult for the state (when challenged, as it surely will be) to offer a rational basis for why it granted these benefits while withholding the right to marry." Knight added, "States that have recently succeeded in defending bans on same-sex marriage also bar domestic partnerships and civil unions." In fact, as The Associated Press reported, the July 12 ruling of the Connecticut Superior Court affirmed the state's ban on same-sex marriage on the grounds that "[c]ivil union and marriage in Connecticut now share the same benefits, protections and responsibilities under law." Judge Patty Jenkins Pittman wrote: "The Connecticut Constitution requires that there be equal protection and due process of law, not that there be equivalent nomenclature for such protection and process."

Two other states also recently had their same-sex marriage bans upheld in court: New York (on July 6) and Washington (on July 26). According to information compiled by the Human Rights Campaign -- an organization that advocates for civil rights for the gay, lesbian, bisexual, and transgendered communities in the United States -- these two states' marriage laws do not bar domestic partnerships or civil unions.

From Al Knight's August 30 Denver Post column, "Ref. I Still Lacks Definition":

Supporters of the Colorado act would have the public believe that such visitation disputes are common here. They are not, nor would this comprehensive act be necessary to address the problem if, in fact, it existed. The same can be said of the issues of end-of-life decisions and the right of inheritance. There are already legal means by which a gay partner may leave assets to a partner and ensure that the partner can make end-of-life decisions when required.

The domestic partnership act's true purpose can be found elsewhere. It would allow same-sex partners the benefits now granted married couples. Importantly, it would also make it difficult for the state (when challenged, as it surely will be) to offer a rational basis for why it granted these benefits while withholding the right to marry.

States that have recently succeeded in defending bans on same-sex marriage also bar domestic partnerships and civil unions.

—E.B.