Legislative Goof Bans Heterosexual Marriages

By Dave Kopel

May 14, 1997

When I was in seventh grade, one of my friends had to do a book report, but he didn't want to take the time to actually read the book. So he just copied part of the jacket copy, from the back of the book. The kid got an "F" for his failure to read the book, but I think the teacher was wrong. My friend was simply developing skills which would help him serve in the Colorado legislature.

You see, our State Representatives and State Senators often fail to read the bills they're voting on. And the consequences can be enormous. A case in point is the recent ban on gay marriages, which was passed by the legislature, and is now sitting on the Governor's desk, awaiting his signature or veto.

The bill (H.B. 1198) aims to preserve the status quo in Colorado; if the Hawaii Supreme Court legalizes gay marriages in that state, as is widely predicted, gay marriages from Hawaii would not be valid in Colorado. The Colorado bill says that for Colorado purposes, a marriage is "between a man and a woman." So far, so good, at least for defenders of the status quo.

But the bill also includes a radical, unintentional, change--outlawing one form of heterosexual marriage. According to H.B. 1198, a marriage must be "licensed, solemnized, and registered." That language abolishes common-law marriage.

A common-law marriage, which has always been considered valid under Colorado law, is created when a man and a woman hold themselves out to the public as husband and wife. Even if the couple has never had a formal marriage ceremony, the couple is legally married, if they tell people that they are married, and they act married (e.g., live together, own property in common, argue about what to watch on television).

One can make policy arguments against common law marriage, especially if one is philosophically opposed to people doing important things like getting married without registering with the government, filling out paperwork, and obtaining permission from a bureaucrat. But no-one in the legislature made any arguments against common law marriage.

Instead, nobody realized the implications of the bill's language until both houses of the legislature had passed the bill, and sent it to the Governor. So in order to sign a bill intended to uphold old-fashioned marriage, the Governor will also have to destroy a perfectly legitimate form of old-fashioned marriage, whose benefits Colorado residents have enjoyed since Territorial days.

How could the legislature unintentionally do something so stupid? The answer is that many legislators vote on bills without reading them. Instead of reading the actual text of the bill, they just glance at the one-paragraph summary at the beginning of every printed bill.

The problem with this approach is that the summary is often inaccurate or incomplete. For example, another bill passed this session had a summary which said that parents who did not pay child support would have their occupational licenses suspended. So many legislators voted for this bill under the impression that the bill would apply to licensed professionals, such as doctors and lawyers. But in fact, the actual language of the bill required revocation of every kind of state permit, even including fishing or hunting licenses.

Far too often, the legislature passes bills creating results which the legislature never intended--results which could be prevented if every legislator read every bill he or she was voting on.

Over the last four decades, many hundreds of people have served in the Colorado legislature. Of these hundreds, only two representatives could be counted on to read every bill before every vote. (The two were Tim Foster, a Grand Junction Republican, and my father Jerry Kopel, a Denver Democrat.)

The non-reading, slovenly approach to law-making contradicts our Colorado Constitution. The state Constitution (art. V, sect. 22), requires that every bill be read out loud on two separate days. The reading can be skipped if everyone agrees to skip it, and these days, the reading is always skipped.

But if legislators won't do their homework and read the bills themselves, having the bills read out loud to them would be a good substitute. The legislature should change its rules to reduce the huge volume of bills that are introduced each year. With fewer bills to consider, more legislators might do their law-making jobs better, by actually reading or having read to them the laws they are making.

Dave Kopel is Research Director of the Independence Institute, a free-market think tank in Golden.

Note: The bill discussed in this article was vetoed by Governor Romer.

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