Supporters of two lawsuits attacking Colorado's ban on same-sex marriage are optimistic that a change is coming after a hearing this week in Adams County court. During the proceedings, Judge C. Scott Crabtree clearly seemed to be more persuaded by their arguments than those of Colorado Attorney General John Suthers, who chose to defend the law even though judges in fifteen other jurisdictions have struck down similar measures of late.
Kris McDaniel-Miccio has a unique perspective on the case. A former prosecutor turned law professor at the University of Denver, she's also a plaintiff. As such, her interest is both professional and very, very personal.
McDaniel-Miccio, who married her wife, Nan McDaniel, during a ceremony in New York, proudly calls herself a member of "the Denver nine" -- the number of couples who signed on to a lawsuit filed in February by the law firm of Reilly Pozner. That complaint has now been consolidated with a suit filed separately by Rebecca Brinkman and Margaret Burd, an Adams County couple who have been together for more than three decades. Naturally, McDaniel refers to Brinkman and Burd as "the Adams County two," and while she concedes that she was initially wary when the two suits were joined, her concerns have long since disappeared. "It feels right," she says.
As for the reasons she got involved, McDaniel-Miccio believes that "the very first thing for people to understand is that [the ban] diminishes the dignity of my relationship with my wife. It diminishes me as a person by saying my people -- gays and lesbians -- are the only ones that really can't marry in the State of Colorado.
"In the old days, if you were mentally defective, you were barred from marriage and barred from reproducing. So this is a stigma. It's about second-class citizenship, unlike what the Attorney General's office was attempting to argue yesterday."
McDaniel-Miccio, who was unable to attend the hearing (she's currently in Ireland) but followed it closely, is referring to Suthers' assertion that the prohibition protects the link between procreation and marriage.
"That idea is absurd," McDaniel-Micco maintains. "Even at straight weddings I've gone to over the years, nobody gets up there and says, 'I'm going to love, honor and procreate with you.'"
To McDaniel-Miccio, "marriage is the idea of coming together and declaring your love" -- a theme that underpinned the ceremony that united her and Nan. "We had two rabbis, not one: I wanted to make sure we had everything covered," she recalls. "And one thing that was so clear as we were joined by friends and relatives who'd traveled from California, from Israel, from Ireland, is that we were declaring our commitment to each other in their presence. They were witnessing it, and I think that's critical, especially in a society where we are so mobile. We need to be able to say this state recognizes all marriages between consenting adults -- not just ones they approve of. And they shouldn't come up with spurious reasons why not."
For instance, she points out that laws don't forbid people beyond the typical reproductive age from getting married -- and while believers in the procreation argument cite what she refers to as "the fertile octogenarian," she sees a flaw in the theory: "He may be shooting live bullets, but women have something called menopause. And as the judge said, when you go to get a marriage license, they don't ask if you're sterile or have the ability to reproduce."
Continue for more of our interview with Kris McDaniel-Miccio about the effort to end Colorado's same-sex marriage ban, including more photos, two videos and original documents. In many ways, McDaniel-Miccio sees herself as an unlikely marriage champion.
"For most of my adult life as a feminist, I was not pro-marriage because of the position of women in marriage," she acknowledges. "But when I saw the state and federal government putting their imprimatur on overt discrimination, it was something I thought I had to be involved in. I'd never been a litigant before, but when Colorado passed the civil union bill, I made the decision to broach the subject with Nan and see if it was something we were going to do."
She understands that Brinkman and Burd got involved because "they wanted to have the chance to get married before they die, and I wanted the same thing. I wanted to find someone I love to set up my pup tent with -- to make a commitment that I'd be there in sickness and in health. And our marriage was a very special day, probably the best day of my life.
"I was marrying this woman and declaring my love for her, and my feminist friends were like, 'I can't believe you're getting married! What are you doing?' But there's something to be said for it -- for continuing the traditions."
Well, not all of them. "We had to give little speeches," McDaniel-Miccio remembers, "and I said my mother wishes she could come down from heaven and say, 'You couldn't wear a dress? She's wearing a dress -- why not you?'"
Memories like this one played a big part in McDaniel-Miccio's decision to become a plaintiff -- but for more Coloradans to enjoy the same opportunity, her legal team must best Suthers, whose decision to defend the same-sex marriage ban puzzles her to some degree.
"I can't get into his heart or mind to figure out why he did and didn't do what the other AGs did, which was not to enforce patently discriminatory law," she says. "When we first filed suit in February, he was quoted in the Denver Post as saying he thought any adult could get married, but he needed to support the laws passed in the State of Colorado. But if I could have sat down with him over a Guinness, I would have asked, 'If the Colorado plebiscite had voted to reintroduce slavery or say that women could no longer work after marriage, would you have supported that, too?"
Editor's note: To get a sense of Suthers' reasoning, check out this Washington Post op-ed from February entitled "A 'veto' attorney generals shouldn't wield."
"I understand the conflict he was in as Attorney General, but there's also something about conscience. Martin Luther King taught us that if a law is unconstitutional and immoral -- and I would argue that this law is both unconstitutional and immoral -- you have a duty to speak against it, work against it and take the consequences that flow from it. And I don't think that duty stops when you get into office. I think the duty is enlarged. You're Attorney General for all the people of Colorado, not just for some of them.
"I don't envy him at all, and I don't envy the governor or the Denver clerk -- but that's why you get paid the big bucks, or whatever the expression is these days. It tests the mettle, makes us think about what's important to us as individuals and as a society.
"It's the same thing I had to think about when I became part of this lawsuit. I brought together all the LGBT lawyers. We'd heard they weren't going to do anything, so I invited them to the Washington Park Grille and met John [McHugh] from Reilly Pozner. And being a typical New Yorker, I kept dogging him. I didn't let it go, and they finally agreed to take the case pro bono. And then we had to think about asking people to join the case. And this is a very public thing. We had to think about family, friends, my sister, my brother, and how they were going to handle it. There was a lot of introspection, but I came to the conclusion that there comes a time when you have to walk the walk and not just talk the talk. And God willing, we'll win."
Continue for more of our interview with Kris McDaniel-Miccio about the effort to end Colorado's same-sex marriage ban, including two videos and original documents. She's not taking anything for granted. The experience of only half-listening to a verdict in a case she was sure she'd won and suddenly realizing the judge was ruling against her taught her the lesson that "when you put something into the court system, you lose control over it. So all we can do is hope, and if we lose, we'll probably take it to the next level. I can't imagine we won't."
In the meantime, similar cases are moving forward across the country, albeit at different paces. According to her, "The 10th Circuit court is probably going to render an opinion any day, and whatever happens is invariably going to go to the Supremes." She's curious to see what opinions come from conservative justices Samuel Alito and Antonin Scalia -- "my paisans," she says -- since their judicial philosophy might make it extremely difficult for them to avoid striking down same-sex marriage bans. As she puts it, "I think it'll be very interesting to see the mental gymnastics they go through to get out from under their own opinions."
A ruling in Colorado should come before then, and if the decision goes McDaniel-Miccio's way, she hopes people who disagree will give it a chance anyhow.
"I know there are people in Colorado who have very strong religious beliefs, and I want them to know that my marriage and my love for Nan in no way threatens either their religious beliefs or their marriages," she says. "They're separate things and we are different people, just like people who are from a different ethnicity or a different state.
"I don't know how people become homosexual, but it wasn't a choice for me. It was something inside of me since I was a very little kid. And I think everyone has a right to find someone they love and settle down with them if that's what they choose to do. And other people also have a right to their beliefs. But in civil society, we need to learn to work together and get along. That sometimes means what I want to happen may not happen, but it also means something they want to happen may not happen, either. So continue to believe what you believe, continue to teach your children and speak from the pulpits if that's what you want to do. But attempting to cut off my fundamental right to marriage cuts off the essence of democracy.
"In the end, I hope we're celebrating the opportunity to join the rest of the states in moving into the column of equality. That's my wish. For me, it's about being part of the fabric of society, and not being a loose thread."
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More from our News archive circa February 20: "Marriage equality lawsuit argues that civil unions are 'second-class and unequal.'"