June 16th is the 55th wedding anniversary for Dolores and me. What was Colorado marriage law like in 1952 compared to 2007?

 

Dolores was in law school. She wanted to be married by the Chief Justice of the state Supreme Court. So we visited with Chief Justice William S. Jackson-R. Justices and judges were at that time elected on political party tickets. Jackson, who served from 1941 to January 1953, agreed to perform the ceremony.

 

We were married in what was then the state Supreme Court on the second floor of the state capitol building, standing in the center facing the seven vacant highest seats used by the justices in hearing arguments..

 

In 1952, only a judge, justice of the peace, clergyman, or licensed preacher of the Gospel could perform the marriage ceremony in Colorado.

 

Before we were married, we had to fill out the application form with the clerk and recorder, presented to the clerk by one of the parties under oath. Both of us had to be tested by a  physician to make certain we did not have a venereal disease.

 

Today, lots more persons can solemnize a marriage, including the people being married. No need for clergy or a judge. Only one of the parties, as in 1952 has to turn in the license application.

 

In 1952, the man had to be 21 and the woman, 18. If either was below the age to marry, but 16 or older, it was all right if the license was accompanied by a certificate of parental consent. If below 16, parental consent and a court order was required.

 

Today the age of marriage for male and female is 18. If 16 or 17, parental consent is required. If below 16, parental consent and judicial approval is required.

 

The two of us standing before Chief Justice Jackson in 1952, were, and had to be, both white, both black or mulattoes. Miscegenation was the law in Denver. If, for example,  Jackson knowingly married a white and mulatto (offspring of one white and one Negro parent according to the Oxford Illustrated Dictionary) Justice Jackson could have faced up to two years imprisonment.

 

The miscegenation statute was unusual in scope. "A marriage between Negroes or mulattos of either sex, and white persons are declared to be absolutely void. Nothing in this section shall be construed to prevent the people living in that portion of the state acquired from Mexico from marrying according to the custom of that country.

 

"That portion of the state" was acquired as a result of the 1848 Mexican-American War and was a face-saving purchase by the United States as a pretense of legality in the annexation.

 

It referred to Colorado south of the Arkansas River plus the area west of the Continental Divide, which combination was actually larger than the rest of the state.

 

Also the 1952 statute recognized marriages valid in another state where performed, as valid in all Colorado courts. This did not apply to bigamy or polygamy. Miscegenation was not mentioned.

 

In 1942, the Colorado Supreme Court in a case entitled Jackson vs. Denver, held  the miscegenation statute was constitutional and not discriminatory  because "it applied equally to Negroes and white persons."

 

In 1957. the Colorado legislature repealed the miscegenation law. The repeal was carried by Rep. Bob Allen, D-Denver. In 1967, the U.S. Supreme Court overturned miscegenation statutes still in effect in 15 states.

 

Dolores and I could have simply skipped the licensing law and lived together, doing all the  things licensed married couples do, such as paying bills, signing joint tax returns , holding ourselves out as married, carrying each other as beneficiaries on insurance or pensions plans.

 

Common law marriages were recognized even before Colorado became a territory, with rules established by court decisions. It is now recognized by recent statutes, subject to all the prohibitions for those who do use marriage licenses.

 

In  1952, adultery and fornication were recognized as crimes punishable by imprisonment with the law  going back to 1861, and punishment increasing for each subsequent conviction. "The offense shall be sufficiently proved by circumstances which raise the presumptions of cohabitation and unlawful intimacy."

 

In 1971, the law was changed, the brain-child of then District Attorney Dale Tooley. His language eliminated fornication as a criminal offense. As to adultery, "Any sexual intercourse by a married person other than with that person's spouse is adultery, which is prohibited."

 

However, the new law did not mention a penalty for adultery and it did not classify the act as a felony, misdemeanor, or petty offense. Colorado law provides penalties where not specified in the criminal statute, but only if that statute refers to the activity as a felony, misdemeanor or petty offense.

 

During debate in House Judiciary Committee on the change in 1971, I asked retired  Chief Justice O. Otto Moore, who was serving as an assistant to DA Tooley: "Can you tell our committee the difference between adultery and fornication?"

 

Justice Moore's response (after a brief pause) "Well, I have tried both and I was unable to tell any difference."

 

 (Jerry Kopel served 22 years in the Colorado House.)