If voters mix signals, courts may decide couples' rights

Kevin Flynn, Rocky Mountain News

Published May 11, 2006 at midnight

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Elections usually settle things. But possibly not in the case of two apparently conflicting measures related to same-sex couples that may end up on the November ballot.

If voters approved both, the election would likely be settled in the courts.

One measure seeks to prohibit any official recognition of a same- sex union that resembles marriage. The other seeks to exempt same- sex "domestic partnerships" from that prohibition.

So what happens if both pass?

"This is a peculiar question," said Richard Collins, a law professor at the University of Colorado.

In that case, he said, both would end up in the state constitution. The one that gets the most yes votes would have an edge on the other but only on the provisions that are in conflict, he said.

The proposed No Legal Status Amendment would prohibit the state from creating any legal status similar to marriage for same-sex couples. The proposal is an attempt to trump the domestic partnership measure that will be on the ballot.

Yet a third measure is meant to counter the No Legal Status proposal. It would make a same-sex domestic partnership "a unique and valued relationship" that is not similar to marriage. The intent is to allow voters to say domestic partnerships don't violate the one-man, one-woman marriage definition.

Reconciling that proposal with the No Legal Status Amendment would take an outside force, assuming they make the ballot and are both approved.

"Thank goodness that will all be up to the courts," said Maurie Knaizer, an assistant deputy attorney general.

Knaizer, an expert in election law, said courts would have to determine whether, in fact, the two measures do conflict. Courts at first try to find common ground and reconcile potential conflicts, he said.

"The courts are very reluctant to overturn measures that the people have approved," Knaizer said.

But with the measures seeming to allow inherently conflicting things, Collins said, "It's hard to avoid the notion that there's a conflict. The only thing the court can do is find there is no conflict or take the one with the greater number of votes in favor."

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