Jerry Kopel


An Independence Day question: When can a state constitutionally interfere with the freedom by consenting adults to marry?

Freedom to marry has been a source of legislative contention in Colorado, not just in 1996 and 1997 when bills by Rep. Marilyn Musgrave (R) of Ft. Morgan regarding same-sex marriages were vetoed by Governor Romer, but throughout our state's history.

For 93 years, including 13 years when Colorado was a territory, it was a crime for a white person to wed a black or mulatto person. In Colorado's 1953 statutes, under the heading "Miscegenation" is CRS 90-1-2:

"All marriages between negroes or mulattoes of either sex and white persons are declared to be absolutely void." Note the wording. Not just "void", but "absolutely" void. But there was an escape clause in the final sentence:

"Nothing in this section shall be construed as to prevent the people living in that portion of the state acquired from Mexico from marrying according to the custom of that country."

The language referred to Colorado south of the Arkansas River plus the area west of the Continental Divide acquired after war with Mexico by the peace treaty of Guadalupe Hidalgo in 1848. Under customs of Mexico, marriage could not be denied because of skin color.

Colorado's territorial legislature began writing laws in 1861. In 1864, just 16 years after the treaty, and in the closing months of a civil war to end slavery, the territorial legislature passed a law making miscegenation a crime and a void marriage.

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

The case involved a Denver ordinance defining vagrancy as leading an immoral course of life. The prosecution held that a black man living in "supposed" common law marriage with a white woman in Denver constituted an immoral course of life by violating the miscegenation statute. Five Colorado Supreme Court justices agreed. Two justices, Bock and Hilliard, dissented.

In its early years as a statute, Colorado considered miscegenation on the same level and in the same paragraph as incest. And three years before the election of President Kennedy, miscegenation and incest were punishable equally as misdemeanors under CRS 90-1-3. Punishment was three months to two years in the county jail and a $50 to $500 fine. The penalty also applied to any minister who knowingly officiated at an interracial marriage.

In 1957, Rep. Bob Allen of Denver sponsored HB 1039 which repealed Colorado's miscegenation law. It passed the House 63 to 0 and the Senate, 35 to 0.

This was ten years BEFORE the unanimous U.S. Supreme Court decision of 1967 by Chief Justice Warren entitled Loving vs. Virginia, which overturned miscegenation statutes still in effect in 15 southern states. The court held miscegenation laws violated the equal protection clause of the constitution. Between 1952 and 1967, 14 states, including Colorado, had repealed their miscegenation laws.

Meanwhile, Gov. Romer was correct in assuming Rep. Musgrave's ban on same-sex marriages threatened common law marriages, but his veto message on HB 1198 was in error when he wrote:

"First, experts in family law advise me that the final language in this bill could threaten the thousands of common-law marriages that currently exist in Colorado. This was unintended, but if they are correct in this interpretation, the consequences could be very real in terms of the loss of such things as health benefits, pensions, paternity rights, and child support enforcement."

I doubt that any experts in family law made such a statement as to EXISTING common law marriages. The Colorado Bill of Rights, Article Two, Section Eleven, provides " in its operation... shall be passed by the general assembly."

The Musgrave measure would have affected FUTURE common law marriages, but the only way to get out of a present common law marriage is by DAD: Divorce, Annulment, Death.

* * *

It seems we can't get through a July 4th celebration without Congress attempting once more to enact a constitutional amendment regarding the nation's flag. The U.S. Supreme Court in 1989 and again in 1990 held that burning of the nation's flag as part of a political demonstration was protected as speech by the First Amendment.

Proponents of the constitutional amendment want to stem the epidemic of flag burnings, at last count as many as six reported nationally in the past ten years.

Here are writings by two Republicans on the subject. "All other civilizations around the world, despite their good points, are built on the opposite and dangerous teaching that something else is more sacred than the individual human being. It might be an abstraction, a theory, a symbol, a certain category of physical objects, or even --this is the tricky one--the democratic will of the majority.

"This doctrine is dangerous because it seems to justify depriving individuals of life, liberty and property in an ever-increasing web of central control. Regardless of good intentions or persuasive excuses, this doctrine is a slippery slope that sooner or later lands in just one destination: tyranny.

"The United States Supreme Court did all of us a favor in its courageous decision that flag-burning, while despicable, should not be criminal. No political symbol is more sacred than individual freedom." John Andrews, 1990 Republican candidate for Colorado governor.

In 1973, the Colorado Supreme Court in a unanimous decision overturned the conviction of a man arrested on a Boulder street for wearing a pair of blue jeans, on the seat of which a portion of the American flag had been sewn. The court declared the statute under which the arrest had occurred unconstitutional as it:

"...limits expression of ideas about the flag to patriotic expressions acceptable to those charged with enforcement of criminal laws, attempts to impress a symbolic orthodoxy upon people of Colorado, and is contrary to the fundamental values protected by the First Amendment." Author of the decision? Justice Donald Kelley, former Republican state senator.

The statute, of course, remains on the books 24 years later, lacking a legislator to sponsor its repeal. CRS 18-11-204 (1) "It is unlawful for any person to mutilate, deface, defile, trample upon, burn, cut, or tear a flag in public (a) with intent to cast contempt or ridicule upon the flag..."


Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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