DENVER — The quickly evolving legal battle over Colorado’s ban on same-sex marriage shifted again late last week as the Colorado Supreme Court ordered two county clerks not to issue marriage licenses to same-sex couples.
The ruling came after Colorado Attorney General John Suthers sought the state’s highest court to intervene following a ruling by Adams County District Court Judge C. Scott Crabtree earlier this month, which found that the state’s ban on gay marriage is unconstitutional; Crabtree stayed that decision pending appeal.
The Crabtree ruling prompted a number of county clerks in Colorado – including Boulder County Clerk Hillary Hall, Denver County Clerk Debra Johnson and Pueblo County Clerk Gilbert Ortiz – to begin issuing same-sex marriage licenses. 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, and Johnson and Ortiz’s offices followed suit after a July 10 hearing in Boulder County in which Judge Andrew Hartman declined to order an injunction at Suthers’ request to prevent Hall from continuing to issue marriage licenses to same-sex couples.
The July 18 ruling from the Colorado Supreme Court specifically states that Johnson and Adams County Clerk Karen Long are not to issue “marriage licenses to same-sex couples pending resolution of this appeal.” Long’s office has not issued any same-sex marriage licenses, but was at the center of the legal case that prompted the latest court developments on the state’s ban on same-sex marriage.
The Boulder and Pueblo county clerks were not named in the Supreme Court’s ruling, and Hall’s office signaled they would continue to issue same-sex marriage licenses for the foreseeable future. On Monday, July 21, the Pueblo county clerk discontinued issuing same-sex marriage licenses.
In a statement, Suthers applauded the move, which seemed to bring a degree of clarity to whether clerks should be issuing same-sex marriage licenses while an appeal is pending — something Suthers sought after decrying the “uncertainty and instability” he claimed was building after the Hartman decision in Boulder.
“We are pleased the Colorado Supreme Court has begun to restore order to the process of resolving this difficult issue,” Suthers said in the statement. “While we await a final determination of the constitutional question, the Court recognizes that the current laws should be enforced. … We assume that all the state’s clerks will heed the Supreme Court’s direction without requiring more wasteful litigation.”
The initial 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.
In addition to ordering the Adams and Denver county clerks to abide by the stay in the case, the Colorado Supreme Court also denied a request from the original Adams County plaintiffs in the Brinkman case to expedite Suthers’ appeal, which means the earliest the state’s high court would hear the case would be sometime next year.
ruling issued against
same-sex marriage bans
As the plaintiffs and state officials were processing the state Supreme Court’s ruling July 18, another federal ruling in the 10th Circuit found that same-sex marriage bans are unconstitutional.
The three-judge 10th U.S. Circuit Court of Appeals reaffirmed lower court rulings against the same-sex marriage ban in Oklahoma. The ruling referred to the 10th Circuit’s June 25 ruling against Utah’s gay marriage ban, which itself was impetus for Hall’s decision to begin issuing same-sex marriage licenses in Boulder County. The Utah decision was stayed pending an appeal, and Utah Attorney General Sean Reyes earlier this month issued a statement saying his office would seek to appeal the case directly to the U.S. Supreme Court.
The appellate court’s decision, like the other cases from Utah and Colorado, was stayed pending an appeal.
Suthers also sounded optimistic on the outcome of the Oklahoma case ruling.
“Today’s 10th Circuit decision simply reinforces what we already know from the Circuit’s prior decision: the validity of state marriage laws is now in the hands of the U.S. Supreme Court, and when that court rules on the cases that are coming before it, we will finally have the answer for Colorado,” Suthers said in a statement.
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.