Colorado Legislative Council Staff


Drafting Number:

Prime Sponsor(s):

LLS 98-555

Rep. Musgrave

Sen. Arnold


Bill Status:

Fiscal Analyst:

March 11, 1998

House SVMA

Janis Baron (866-3523)



Summary of Legislation

            The bill’s provisions specify that:

               a valid marriage shall be between one man and one woman only;

               marriages contracted within or outside the state that are not between one man and one women shall not be valid; and

               common law marriage between one man and one woman shall not be rendered invalid.

            The bill includes a “no appropriation” clause. The bill is effective at 12:01 a.m. on the day following the ninety-day period after adjournment sine die of the General Assembly, or on the date of the official declaration of the vote of the people as proclaimed by the Governor, if a referendum petition is filed pursuant to Article V, Section 1 (3) of the State Constitution.

            Background. At present, no state has legalized same sex marriage. Twenty-five states have adopted legislation prohibiting same sex marriage, in addition to the 1996 passage of the federal “Defense of Marriage Act” (nine states adopted legislation prohibiting same sex marriage in 1997).

            The Department of Law anticipates that the issue of same sex marriage may, at some point, be litigated in Colorado, irrespective of the bill. This assumption is based upon continuing litigation in Hawaii, based on the case, Baehr v. Miike. At issue in the Hawaii case is a statute that a marriage contract is only valid between a man and a woman. The challenge to the statute was initially dismissed by the trial court. On appeal, the Hawaii Supreme Court held that under the Hawaii constitution, the statute is subject to a strict scrutiny test. This means the state has the burden of showing that the statute furthers a compelling state interest and is narrowly drawn to avoid unnecessary abridgement of constitutional rights. The case was remanded to the trial court and in December 1996, the trial court found that the state did not meets its burden and the statute was held unconstitutional. The case continues to be appealed.

Summary of Assessment

            The bill is assessed as having no fiscal impact. Final rulings in Hawaii may spark lawsuits in a number of states, including Colorado. The time and number of filings cannot be identified at this time.

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