The Colorado Civil Unions Act was a monumental victory for LGBT equality in Colorado, granting state–level rights and benefits comparable to marriage. Yet there are significant shortfalls in protections for couples with a Colorado civil union, cemented by Amendment 43 and the federal Defense Of Marriage Act.
“This is an evolving issue,” said Kyle Martelon, an attorney with the Colorado law firm Wedgle & Spahn. “Everyone is working to understand the statutory framework, how everything works together, and what similarities there are between the civil union law and marriage law in the state.”
Parallels are abundant between civil unions, which will go into effect as an option for both gay and straight couples May 1. Some examples include public assistance benefits, personal property transfers, medical proxy decision making rights and hospital visitation rights – all of which now automatically apply to couples in a civil union just as they do for married couples.
In addition, same-sex couples are covered under the same domestic violence and abuse laws, as well as survivor and workers’ compensation benefits. Couples in a civil union will have the same rights as married couples regarding visitation privileges in mental health or prison facilities.
“Essentially, Colorado civil union statutes are in a lot of ways very similar to marriage laws,” said Martelon, adding that the most significant change includes “laws which govern legal separations under title fourteen, which would apply to dissolutions: Property division, maintenance (alimony), child support, allocation of parental responsibilities, issues regarding attorney’s fees and separation agreements would conceivably apply to civil unions.”
Adoption rights will be expanded as well. Before, same-sex couples could only adopt through the complicated process of second parent adoption, barred from petitioning jointly as married couples can.
“Finally, children and potential [same-sex] parents of children are going to be included where they never were before,” said attorney Theresa Spahn, who specializes in adoption law at Wedgle & Spahn. “They can petition together, and it puts them in the same shoes as married people who want to adopt.”
These rights, however, become capricious once a couple leaves Colorado. “Each state has their own set of statutory framework in terms of recognizing civil unions or same-sex marriages,” said Martelon. “You have to look at the specific statutes in that particular state to see whether or not they would recognize a Colorado civil union.”
With only nine states offering civil unions or domestic partnerships, and nine states plus Washington D.C. recognizing same-sex marriages, Colorado couples in a civil union potentially lose their rights just by crossing the state line. None of the seven states that border Colorado have established legal recognition for same-sex couples.
And though civil unions provide many state-level protections, DOMA blocks numerous rights granted by the federal government that married couples in Colorado enjoy.
“There are thousands of rights and protections on a federal level that civil unions will not guarantee same-sex couples,” said Brad Clark, executive director of statewide LGBT advocacy organization One Colorado, “one of those being COBRA.”
The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) guarantees under federal law that married couples are covered by employer-provided health coverage should a spouse lose employment. Though some companies offer this benefit to same-sex couples, it is not guaranteed to partners in a civil union as it is for married spouses.
In addition, couples in a civil union cannot file joint taxes, barring them from almost 180 federal tax credits and provisions, including earned income tax credits, child tax credits, taxation of retirement services and the estate tax, just to name a few.
Surviving spouse and surviving parent social security benefits are also denied to same-sex couples, and the Family and Medical Leave Act, which provides medical leave for employees caring for spouses or children, is only available to married couples.
Lastly, many same-sex partners live in constant fear of deportation. “The current administration has de-prioritized deportation against same-sex couples,” said Clark, “but there’s still no pathway to citizenship that married straight couples would be entitled to.”
President Obama’s four point plan for immigration reform would allow same-sex couples to sponsor a partner for an immigration visa. However, it is unclear if the bill will make it through Congress.
“Marriage is a very important discussion,” Clark said. “Words do matter. Many of us grow up with the hope of one day falling in love and spending the rest of our lives with someone. That is not called a civil union. The promise that people make to one another is called marriage.”
With Amendment 43 of the Colorado Constitution defining marriage between and a man and a woman, there’s likely to be an ongoing political fight in Colorado for full marriage equality.
“Right now we’re waiting to see how the Supreme Court rules. Hopefully there will be a decision this summer on both the Prop 8 and DOMA cases,” Clark said.
In the meantime, Clark encouraged the community to speak out. “It’s going to take conversations all across the state with our friends and neighbors and coworkers that’s really going to create a climate that moves Colorado to a place of ensuring freedom to marry for gay and lesbian couples.”