What began as a trickle is now a flood. Mere weeks after an Adams County judge ruled Colorado's same-sex marriage ban unconstitutional, U.S. District Judge Raymond P. Moore issued a similar finding. However, Moore stayed his order (on view below) until 8 a.m. on August 25 and Colorado Attorney General John Suthers is expected to seek an injunction to maintain the status quo until the U.S. Supreme Court can weigh in.
That frustrates Mari Newman, who represents plaintiffs in the latest case. In her view, "the only thing standing in the way of marriage equality for all Coloradans is Attorney General John Suthers."
Last month, as we've reported, the 10th U.S. Circuit Court of Appeals in Denver ruled in a Utah case that same sex couples have a right to marry under the Constitution. That order was stayed, too, but because the ruling covers Colorado, Boulder County Clerk Hillary Hall began issuing same-sex marriage licenses right away.
Suthers's office objected to Hall's move -- but earlier this month, a judge in Boulder gave Hall permission to continue. The AG responded yesterday by filing what a spokesperson described in a news release as "a motion asking the Colorado Court of Appeals to issue an order requiring the Boulder County Clerk to enforce the state's marriage laws while the Colorado Supreme Court considers the laws' constitutionality.
"The requested order is effectively identical to the order granted by the Colorado Supreme Court regarding Denver and Adams Counties last week," the announcement continues. "Under the courts' rules, the request had to be made first to the trial court in Boulder. Now that that court has declined to follow the Colorado Supreme Court, the request is before the Colorado Court of Appeals."
Meanwhile, Judge Moore weighed in on the complaint from six same-sex couples represented by Newman. In his view, simply waiting for the U.S. Supreme Court to offer its views about the Utah case wasn't an option. Here's an excerpt from his order:
Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot -- and, more importantly, it will not -- tell the people of Colorado that the access to this or any other fundamental right will be delayed because it "thinks" or "perceives" the subtle -- or not so subtle -- content of a message not directed to this case. The rule of law demands more.
Nonetheless, Moore put a stay in place for the next month -- and Suthers cheered the decision. His statement reads: "We are gratified Judge Moore agreed with us that additional litigation in that court would be wasteful given that our laws' status will be decided by the Supreme Court's decision in the Utah's case. We expect the court of appeals to continue the stay, as it and the supreme courts of the U.S. and Colorado have in similar cases."
Newman is far less enthusiastic. In a post-victory release, she argues that it's time for Suthers "to back down from this losing battle and allow Colorado to treat all of its families with equality and dignity."
Via e-mail, we asked Newman some followup questions. Here's that exchange:
Westword: Colorado's voters approved a same-sex marriage ban in 2006. Why shouldn't Suthers be seen as simply acting to support the will of voters?
Mari Newman: Amendment 43 passed in 2006 by a VERY narrow majority, just 56 percent of the voters. Times have changed. Now, a significantly larger majority of Coloradans support marriage equality. BUT, even if that were not true, our society cannot tolerate tyranny of the majority against oppressed groups. We are better than that.
WW: If Suthers declined to appeal, what would the impact be on the same-sex marriage issue not just here in Colorado but nationwide?
MN: If Suthers chooses not to appeal, then the injunction would take effect 8/25 allowing marriage equality to take hold in Colorado. Suthers would be following the lead of state officials in Pennsylvania, Illinois and Oregon, who allowed court rulings striking down gay-marriage bans to stand.
WW: At this point, with so many courts striking down same-sex marriage bans, do you see Suthers's appeals as more about politics than the law?
MN:Absolutely. EVERY single court that has looked at this issue since the Supreme Court ruled last summer in Windsor (United States v. Windsor, which gutted the Defense of Marriage Act) has found in favor of marriage equality. Suthers's continuing fight is a mean-spirited political attack on same-sex families, all at the expense of Colorado taxpayers and real Colorado families.
Read Judge Moore's order here.
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John Suthers only obstacle to marriage equality in Colorado, says attorney after ban-case win