Rulings on Colorado’s same-sex marriage ban open floodgates to new licenses in some counties

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By The Staff

BRIGHTON — The legal war over same-sex marriage in Colorado saw another decision against the law as it stands Wednesday, July 9, as an Adams County judge ruled the state’s ban unconstitutional.


While Adams County District Court Judge C. Scott Crabtree found that the same-sex marriage ban “violates plaintiffs’ due process and equal protection guarantees under the 14th Amendment,” as stated in his ruling, the ruling was stayed pending an appeal.

The challenge to the marriage ban was brought by Rebecca Brinkman and Margaret Burd, who have lived together since 1986 and wished to be married. The couple had sought a marriage license in October 2013 from the Adams County Clerk & Recorder’s Office, where they were denied a marriage license and instead offered a civil union license.

Colorado law has banned same-sex marriage since voters in 2006 approved Amendment 43 with 53 percent via statewide referendum. Gov. John Hickenlooper later signed into law the Colorado Civil Union Act, which took effect May 1, 2013.

While Crabtree’s decision declared the marriage ban unconstitutional, his ruling also noted that, in his capacity as a judge, a stay in the case would be best as more challenges to same-sex marriage make their way through the judicial system.

“This Court is under no delusion that the resolution of the issue of same-sex marriages will end with this Court’s decision or any lower courts’ decisions. The final chapter of this debate will undoubtedly have to be written in either Denver, Colorado or Washington, D.C.,” Crabtree wrote. “While the striking down of laws banning same-sex marriages has been progressing at a rapid rate, it will take time for this issue to be finally resolved. ... the Court finds that a stay is necessary to avoid the instability and uncertainty which would result in the State of Colorado if the Court did not stay its ruling.”


Challenges elsewhere

That “instability and uncertainty” played out in real life the same day in a Boulder courtroom as Colorado Attorney General John Suthers’ suit against Boulder County Clerk Hillary Hall had a hearing in front of Judge Andrew Hartman. Hall began issuing same-sex marriage licenses last month following a  June 25 ruling in the 10th U.S. Circuit Court against Utah’s gay marriage ban. Suthers’ contention centered on the fact the Utah ruling was stayed and would thus have no direct effect on the current law on the books in Colorado.

The next day, Hartman declined to order an injunction at Suthers’ request to prevent Hall from continuing to issue marriage licenses to same-sex couples, although the judge’s order also included a temporary measure to advise previous and future same-sex couples seeking a marriage license that the validity of the marriage “is dependent upon whether a court would find that Clerk Hall had authority to allow same-sex marriages.”

Last week, Utah Attorney General Sean Reyes issued a statement saying the 10th Circuit ruling would be appealed directly to the U.S. Supreme Court rather than opt for a review from the Circuit Court of Appeals in Denver.

Currently, there are more than 70 court challenges to various marriage bans across the country, including Puerto Rico. More than a dozen cases in federal court have ruled against the legality of same-sex marriage bans since the Supreme Court ruling in 2013 that struck down the Defense of Marriage Act.



Following Crabtree’s ruling, Suthers’ office issued a written statement highlighting his office’s contention in the Boulder County case: That the current law is still in effect while the various rulings against the same-sex marriage ban are stayed.

“The Court properly found that the instability and uncertainty that would result from not staying the decision, including the issuance of marriage licenses by county clerks in the state, necessitated that the order be stayed,” Suthers’ statement read. “The county clerks are agents of the state and should be bound by the stay order.”

Soon after Hartman’s decision was announced, the office of Denver Mayor Michael Hancock announced that they would support Denver Clerk and Recorder Debra Johnson after her office announced that they would begin issuing same-sex marriage licenses based on the Boulder decision.

“As a city, we have stood together against injustice and for the rights of all people,” Hancock’s statement read. “Today, I fully support Clerk and Recorder Debra Johnson in her issuing of marriage licenses to gay and lesbian couples who simply want the freedom to be united with the ones they love. I stand proudly with her as we take another step toward marriage equality for every single resident of this great city.”

Suthers sounded far less optimistic about the Hartman decision and signaled his office would pursue an appeal to the Colorado Supreme Court.

“It is the view of the Attorney General’s Office that the uncertainty that has been created by these recent Colorado court rulings as to the propriety of county clerks issuing same-sex marriage licenses prior to final resolution of the issue, cries out for resolution by the state’s highest court,” Suthers said in a statement following the Boulder case. “It is paramount that we have statewide uniformity on this issue and avoid the confusion caused by differing county-by-county interpretations of whether same-sex marriage is currently recognized. Therefore, we will act swiftly in an attempt to prevent a legal patchwork quilt from forming.”

The Human Rights Campaign, the nation’s largest LGBT civil rights organization, applauded the ruling, citing Crabtree’s focus on the equal protection clause in the U.S. Constitution in reaching his decision.

“It is fitting that today, the 146th anniversary of the Fourteenth Amendment to the U.S. Constitution, that a Colorado court has struck down the state’s discriminatory marriage ban relying on the equal protection clause,” said Human Rights Campaign (HRC) Legal Director Sarah Warbelow.   “These marriage bans will continue to fall because the Constitution does not allow for such blatant discrimination.”

As one of the first openly gay Americans to be elected to Congress, U.S. Rep. Jared Polis, D-Boulder, also sounded his approval of Crabtree’s decision.

“I am thrilled that Judge Crabtree has recognized that the Colorado ban on same sex marriage is a violation of due process and equal protection guarantees under the Fourteenth Amendment,” Polis’ statement read. “More than that, he has recognized ... that marriage should be an institution of love and commitment, not prohibition and discrimination. I look forward to his ruling being upheld by the higher courts, and am confident marriage equality in Colorado is within sight.”

U.S. Rep. Ed Perlmutter, D-Golden, whose House district covers large portions of western and southern Adams County, also applauded Crabtree’s decision.

““The ruling by Judge Crabtree is an important step toward marriage equality,” read a statement from Perlmutter.”  I hope higher courts will uphold this ruling so someday soon every person will have the freedom and opportunity to marry the person they love.”