The Fight Over Same-Sex Marriage Made This a Long, Hot Summer for Colorado AG John Suthers
All summer long, champions and foes of same-sex marriage have barraged Colorado Attorney General John Suthers with phone calls and e-mails. Boxes of messages and missives fill a corner of his communications director's office. She reports the public's comments to her boss, and he shrugs them off. Suthers wants to focus on the letter of the law — not the letters that zealous citizens send.
He's certainly devoted his career to the law. Suthers, a Republican born in Denver and raised in Colorado Springs, graduated from the University of Colorado Law School in 1977. He has served as district attorney for the 4th Judicial District and as the head of the Colorado Department of Corrections. In 2001, George W. Bush nominated Suthers to be United States Attorney for the District of Colorado; when Democrat Ken Salazar was elected to the U.S. Senate in 2004 in the middle of his term as Colorado attorney general, Governor Bill Owens chose Suthers to be his replacement. Suthers was elected to a full term as AG in 2006 — the same year that Coloradans passed a constitutional amendment requiring that marriage be between a man and a woman — and again in 2010. Because of term limits, he will leave the office in January.
Throughout his career, Suthers has found himself arguing for laws he dislikes. He supports gun rights — but at work he must defend Colorado's restrictive firearms policies. Because he loathes the government's interference in small businesses, he sympathizes with Jack Phillips, the Christian baker who refused to sell a wedding cake to a same-sex couple; nevertheless, Suthers is prosecuting the baker for discrimination. Gun lovers and Phillips supporters alike have made violent threats against Suthers; his staff has reported them to law enforcement. Compared to those complaints, irate same-sex marriage supporters seem almost tame.
But neither death threats nor mannerly letters sway Suthers in his legal duties. At heart, Suthers says, he is a lawyer — and whether or not the law agrees with his beliefs or those of his constituents, he will strive to defend it.
In June, the 10th Circuit Court of Appeals, a federal court overseeing several states, including Colorado, found Utah's ban on same-sex marriage unconstitutional and stayed its decision for review by the U.S. Supreme Court; the court is expected to announce soon whether it will take up the case. But in the meantime, led by Boulder County Clerk Hillary Hall ("Hall Pass," August 14), three Colorado county clerks ignored the stay and began issuing same-sex marriage licenses. Suthers tried to stop them, and after a series of legal defeats, in late July he convinced the Colorado Supreme Court to shut down the clerks until the Colorado court could consider the issue later this year. After that, Suthers took a much-needed vacation out of the country — and away from e-mail. We caught up with him soon after his return to talk about his long, hot summer.
Westword: You've had a big summer dealing with judicial issues around same-sex marriage. Talk about what it's been like.
John Suthers: You've got to understand, this is a very large public office. We've got 450 employees and 275 lawyers. There is an incredible amount going on. Certain things make the paper, others don't. But my day-to-day life is the whole picture. My average day is a bunch of half-hour or hour meetings about a whole plethora of issues, from interstate water to utilities and all that kind of stuff. Not all of that has an equal footing in the eyes of the public. But from our perspective in the office, that's just what we do. I tell my lawyers every day: It's their job to be the best lawyer they can be in whatever area they're endeavoring in. I consider that my responsibility, also. While this particular issue has attracted so much attention, from my perspective I'm just demanding of myself the same thing that I'm demanding of all the lawyers in this office: Just try to be the best lawyer you can be, play the appropriate statutory constitutional role as attorney general, and let the cards fall where they may in terms of public perception or anything else.
When did same-sex marriage come across your desk, and how did we get from there to here?
This has been developing for a long time. It started in 2006, when the voters put it in the Colorado Constitution. It therefore became the responsibility of the attorney general to defend the law. As challenges have come up over time, we have done the best job we can to do that. If you want to know the immediate process for what brought this to the foreground, the Tenth Circuit decided a case out of Utah. Utah has a law virtually identical to Colorado's. So when the Tenth Circuit, on a two-to-one decision, says Utah's law is unconstitutional, that would cover Colorado, if you will. But the Tenth Circuit said: "We are staying our order pending appeal to the United States Supreme Court." That meant that the current law in Utah, in Colorado, in Kansas, in all the other states in the Tenth Circuit remains in effect.
We had this rather curious situation that one of the clerks and recorders in Colorado said, "Aha — the Tenth Circuit struck down the decision. I think that applies to me. But the stay portion of the decision doesn't apply to me, so I'm going to start issuing same-sex marriage licenses." That was contrary to the current law, which was still in effect.
I think what created an interesting hullabaloo in Colorado was when we went to the Boulder County District Court and said, "Hey, there's a stay in place. The current law is in effect. She shouldn't be issuing same-sex marriage licenses." The district-court judge said, I don't find that any harm is done to the state or to couples getting married by the issuance of invalid marriage licenses, so I won't issue an injunction. That caused two more clerk and recorders out of the 64 in Colorado to start issuing marriage licenses. There is some fairly good case law where this has been specifically addressed, where issuing same-sex marriage licenses — if that's not the law in your state — causes those licenses to be what's called void ab initio. They're not valid. Hold it. You're telling people they're now getting married. You're sending licenses over to Vital Statistics at the State of Colorado. If somebody calls the State of Colorado and says, "Are they married?," they're going to be told no. They're not even putting them in the registry. We think harm is resulting from issuing those invalid certificates.
All this is going on, and then there's a case that comes up in Adams County, where the judge holds Colorado law unconstitutional. He enters a stay. The three clerks have no concern about that stay, even though the Denver clerk and recorder is a party to that case. But she doesn't observe the stay. Even though the current law is still in effect, she's still issuing same-sex marriage licenses. So we appeal that to the Colorado Supreme Court, bypass the Court of Appeals with the notion of "Let's get this resolved as soon as possible." The Supreme Court takes it, doesn't put it on a fast track, despite a request of both ourselves and the other side, but does issue an order to the Denver District Court clerk, which was the only one it had jurisdiction over in this case: "Stop issuing same-sex marriage licenses." We then say to Boulder, "Are you going to stop, too?" Then to Pueblo: "Are you going to stop, too?" The Pueblo County attorney has a conversation with the Pueblo County clerk and recorder, and he stops.
So, Boulder's the only one to continue to issue the same-sex marriage licenses, despite the fact that that's not law in Colorado. We then appealed the Boulder decision, first to the Court of Appeals, which did not change it, and then to the Supreme Court, which issued an order directly to Clerk Hall: "You cannot issue same-sex marriage licenses while this is pending appeal to higher courts. It's stayed. The current law is currently in effect." I honestly believe that what was going on in Colorado — but for the clerks — was very much in line with what's gone on in most of the states in the United States, where, as you know, there has been a whole string of decisions holding the law unconstitutional. Virtually every court that has done so has entered a stay pending resolution by higher courts, including now, the United States Supreme Court. Clerks have obeyed those. I think that what was different about Colorado is we had three clerks — one clerk in particular — who continued despite the stay. Us having to go to court — a number of courts up to the Colorado Supreme Court — to get her not to ignore the stay contributed to the aura of "John Suthers being the modern George Wallace and standing in the way of equality" and all that kind of stuff.
From our perspective, that was what was required of us to defend the current law. From our perspective, it's just trying to be good lawyers.
Colorado law requires the attorney general's office to be responsible to federal constitutional law. How do you navigate loyalties between state and federal law?
It's quite simple: If a higher court tells us that our state law is unconstitutional under federal law and that's the final decision, then that's the deal. If the U.S. Supreme Court denies cert [request for judicial review] in the Tenth Circuit decision, [Colorado's law banning same-sex marriage] is invalid and we accept that. But I think what you're driving at is that some of my colleagues are saying that I've decided that this law's unconstitutional under the federal constitution. I don't think that's my job.
Could you imagine if I selectively say: "You know, I think those gun laws passed by the legislature last year are unconstitutional. I agree with David Kopel [the attorney representing the plaintiffs in that case], so I'm not going to defend those laws." Could you imagine the outrage in your newspaper if I did that? I frankly have a little bit of sympathy with this ma-and-pa baker out in Lakewood, who my office is prosecuting on behalf of the Colorado Civil Rights Commission for not selling a cake to a same-sex couple. I understand why he thinks this is real governmental intrusion on his life. That's the law in Colorado. We passed a public-accommodations law that protects sexual orientation as well as gender and ethnicity and religion. It's my job to defend that statute, despite the fact that I'm getting tons and tons of criticism from certain circles about that. If I saw my role as something other than being the best lawyer and started deciding and picking and choosing because I don't think this law's right, I think this law's unfair, despite the fact that the court hasn't told me that this law is unconstitutional, and I decided not to defend that, that is a very slippery slope.
The issue may be same-sex marriage today, but it's going to be something else tomorrow. We're defending the Taxpayers' Bill of Rights in the appellate courts. Can you imagine? Let's say the next attorney general is a Democrat. Can you imagine the pressure on him to abandon the defense of TABOR? That would be a dream come true for everybody. I guarantee you that if the next attorney general of Colorado is a Republican, she's going to be on as much pressure as I am not to defend gun laws. If you start picking and choosing, it becomes very difficult.
I think what you may also be driving at is that we had the Windsor decision. This is very instructive about this issue, because when AGs don't play their role, it has consequences. Let me explain. This issue [of whether gay marriage should be legal] would have been resolved for the entire nation two years ago if Kamala Harris, the attorney general of California, had played her role to defend California law. Here is what happened. Proposition 8, which was a California constitutional provision identical to Colorado's — marriage is between a man and a woman — was declared unconstitutional by a federal district court in California. Kamala Harris said, I think the law's unfair. I think it's discriminatory. I'm not going to defend it. So a group of citizens appeals to the Ninth Circuit and to the United States Supreme Court. The United States Supreme Court looks at it and says, Hmm, these citizens don't have standing. Only the attorney general could appeal this on behalf of the state. Therefore, we're not going to decide this issue of whether states can constitutionally ban same-sex marriage. If she had appealed, she could have said, I hate this law, but I'm going to appeal it, because that's my job. We would have had this issue resolved two years ago. At the same time that case went up, we had the Windsor case, which was the constitutionality of the federal Defense of Marriage Act, which basically said regardless of how a state defines marriage, we're not going to recognize same-sex marriages for purposes of federal benefits.
In a five-four decision written by Justice Kennedy, the court said, Look, if the state says they're married, the federal government can't say, Oh, we're not going to recognize that marriage for purposes of federal benefits. Now, admittedly, he said some things in there that lead me to believe, and I think lead most people to believe, that he's inclined to say the states can't ban same-sex marriage. But that wasn't the issue in the case. It hasn't been decided. And what you have to remember is, there is a difference between saying "If the state defines marriage, the federal government can't not recognize that for the purpose of federal benefits" and to say "The federal government has a role in defining marriage."
Kennedy is a big states'-rights guy. I'm a Supreme Court observer, so there is certainly a possibility that he could say states get to define marriage. Once they define it, the federal government has to recognize that. But just as states now say there is nothing in the United States Constitution about marriage, marriage has always been a province of the states. They define how old you have to be. Some states say you can't marry your first cousin — all that sort of thing. So it's possible Kennedy could distinguish Windsor on that basis. It's going to be five-four. I happen to agree with most people who think it's going to go in favor of same-sex marriage. But this notion that because it's inevitable, therefore I shouldn't continue to defend the law, I don't buy at all. We have established political and judicial processes by which laws are changed. The proponents of same-sex marriage made an apparently strategic decision not to take it to the ballot this time. I think most people, including myself, think that if they had, it would have passed. We would have reversed what we did in 2006. But can you say, "We just ran a poll — 70 percent of Coloradans believe we ought to have same-sex marriage; therefore, we ought to issue same-sex marriage licenses"? No.
The political process has to run out. And here, the judicial process has to take place, and it's going to. I will tell you, if for some reason it goes some other way — let's say for some reason it's five-four that states can define marriage to only include a man and a woman — then I think we'll have a political change in Colorado. I do believe that the majority of Coloradans at this point in time are inclined to approve of same-sex marriage. But that is not an excuse, if you will, for us to abandon our role. Our role ought to be to get this resolved by the courts as soon as possible. And I think it's going to be. I think the Supreme Court is going to accept cert of the Tenth Circuit decision.
Interestingly enough, a lot of people forget about this, but there is what we call a circuit split. A couple years ago, the Eighth Circuit upheld the Nebraska law that says marriage is between a man and a woman. While we've had a whole string of decisions going the other way, there is what we call a circuit split, and that's usually attractive to the Supreme Court in taking a case. They're likely to take cert, probably the first week in October, when they come back. And then they'll hear this case the first of the year, and they'll decide by the last week in June. As I say, if for some reason it went the other way, then obviously political forces would kick in in Colorado.
I have been a district attorney. I've been a U.S. attorney. I've been attorney general. I've dealt with a lot of controversial issues, and what allows me to sleep at night is taking a fairly consistent approach of being a lawyer first and foremost. If you start making decisions on what's the political direction, you get in trouble very quickly. When lawyers and people in public lawyer roles start making decisions on the basis of politics, they are quickly exposed — and typically by the courts. I have to laugh, frankly — and I don't suggest it's humorous — but when I'm listening to a lawyer, I think it was Mari Newman, she comes on and says, "John Suthers is a modern-day George Wallace standing in the door of the University of Alabama." I thought to myself, hold it. I want to make sure that everybody understands that George Wallace was defying a federal court order. I want to make sure that everybody understands that I want to advise everybody in Colorado to obey court orders. Everybody. Me, the clerk and recorder of Boulder County, and everybody else, to obey court orders, not to defy them.
How do you deal with the political flak?
You know, you just — it's her job to deal with it [he points toward Carolyn Tyler, his communications director, and laughs]. She'll tell you. She comes in and says, "Oh, they're saying this about you." And I say, "Hey, so be it." I told you I have 275 lawyers down here. Trust me, they're all over the political spectrum. I guarantee there are a hell of a lot more Democrats in this office than there are Republicans. It's very important for me to have their respect, it really is.
I am first and foremost a lawyer, and I'm asking them to be first and foremost a lawyer. There are people who are working on this case, I guarantee you, who feel very strongly that we ought to have same-sex marriage. But they understand what the role of the attorney general's office is. That's the way a public law office ought to operate. The only way that I can maintain their respect is to be consistent. I'm asking them to be a good lawyer, and I'm trying to be a good lawyer also. I personally interview every lawyer who comes into this office, and I have never asked a single lawyer: "What's your political affiliation?" I want the best lawyers I can have around me, and I've got some really, really good ones — very good ones.
In both Utah and Virginia, the plaintiffs and the defendants in those same-sex-marriage cases are asking for the United States Supreme Court to rule now.
In the vast majority of states, there's been this kind of uniformity of opinion: "Let's get this to the Supreme Court. Let's get this decided as soon as possible." I was a little surprised. I mean, do they really want me to not appeal an Adams County decision and say that should control the state of Colorado? I would think they want the imprimatur of the highest court saying this is the law going forward. But we'll see what happens, and I'm hoping that this time next year, we'll have a definitive answer to the issue. And I do want to remind everybody, that, right from the get-go, had attorney generals done what they were supposed to do under state law, this whole issue would have been decided two years ago.
Some say your political aspirations might be impacting your defense of the same-sex-marriage ban. Are you running for office in Colorado Springs? What's going on with that?
I haven't decided yet. I may. But anybody who says that I would take a legal position because I want to run in Colorado Springs or any place else simply doesn't know me. I have taken unpopular legal positions. What do you think is the most popular position to take in Colorado Springs on the gun laws? Trust me, they care a lot more about guns down there than they do about same-sex marriage. In fact, I'm not even sure what the politics of same-sex marriage are there.There are a lot of very conservative folks who lean toward libertarian who have no problem with same-sex marriage. The only folks who have problems with same-sex marriage are your social conservatives. And there are a lot of hard-core libertarians who think, clearly, it's the way we've got to go.
Trust me, if I was trying to politically ingratiate myself, defending the gun laws would not be the way to do it. Prosecuting this baker — I have gotten more e-mails and hate mail about that, and a lot more of them from El Paso County than anywhere else. If this were a politically motivated thing, I haven't handled it very well.
What's your own stance on same-sex marriage?
Okay. I'm going to say the same thing to you that I've said to every reporter who asks me that question. My position is irrelevant, as is my position on guns, as is my position on the public-accommodations law. Having said that, I have consistently said I think that same-sex marriage is inevitable in Colorado. I think that the majority of people in Colorado want same-sex marriage and that it's going to become the law, either judicially or politically. I've also stated that my preference for the society, going forward, is that it would be politically sanctioned as opposed to judicially sanctioned, because I think it would have better buy-in. But if it's judicially imposed, that's the law, and we'll move forward.
What are your thoughts on tensions in the Republican Party between social conservatives and libertarians, and how do you navigate that yourself?
I don't navigate that myself. I just be a lawyer. A wise lawyer told me early on, when you're holding a public job, sometimes elected and sometimes appointed, as a lawyer, in a political milieu, that being the best lawyer you can be is ultimately the best politics. I think that's proved pretty true for me.
I remember, as a district attorney, I shut down a Christian boys' ranch in El Paso County that was run by Ted Haggard. He had put this thing together. This was long before Ted's problems. We'd gotten some reports of abuse. So we went out and arrested some people and shut down this thing. By God, I was crucified — absolutely crucified! They ran an editorial in the Gazette and all that stuff. The case works its way through the courts. People were convicted for abuse. It's a bad scene, and everybody shuts up. No apologies from the newspaper or anything like that — that's not the nature of the game. But over time, people came to the conclusion: Hey, this guy's looking at the law and the evidence and trying to do what his role is in the system. I've been elected pretty overwhelmingly twice, and I think part of my appeal to unaffiliated voters has been that I am first and foremost a lawyer.
Going back to the question about the tensions in the party: Where do you fall on the line between social conservatism and libertarianism?
There are tensions. But what's funny to me — I have a lot of good Democratic friends. [Former secretary of state] Bernie Buescher, who was in this morning, who works for me, we talk politics all the time. There are some fairly significant fissures in the Democratic Party, also.
My personal feeling is that Democrats in Colorado have done a better job than Republicans mending those fissures and moving forward in general elections and stuff like that. It's just my personal opinion. And the Republican Party has paid a huge price for some of these primary riffs where the primary has been won, in a district that certainly has the possibility to go Republican, by a Republican candidate who simply cannot win that district. It's happened time and time again. We'll see whether that happens again this year. Then again, what tends to happen is, once a party has been out of power for a period of time, they seem to have done a little better job of consolidating and mending their fences in order to accomplish something. I think this election's going to be interesting. It's certainly a lot closer than I would have envisioned a year ago.
Have you had personal fallout from your stance on same-sex marriage in your own life and your own relations?
[Long pause.] That's a hard question to answer. I'm sure there are people, to the extent that there are people who are emotionally invested in the social issue, sure. I'm sure I have relatives who say, "Oh, what's he doing?" But the vast majority of people that I am closely affiliated with know me very well. They've watched me over years and years and years, and they know me very well and have a certain amount of confidence that I'm doing what I believe is the appropriate role for a lawyer to do and for the attorney general, specifically, to do in this case.
We've had tons and tons of calls and letters from both sides. Half the world's praising me and half the world's condemning me, but neither are doing it for the right purpose [laughs]. In other words, social conservatives may say, "Oh, Mr. Suthers, you're standing for the traditional family." Um, no, I'm not. I'm just defending the law. In the war of ideas that goes around out there, everybody's emotionally invested in their sides of it, but here, as Carolyn will tell you, it's all this narrow legal focus, and we don't jump up and high-five when we win, and we don't cry when we lose. We're just taking the battles as they come and trying to do the best job we can, given what our statutory and constitutional responsibilities are. And it is kind of humorous to watch the folks that are condemning you and the folks that are praising you. The folks that are praising me aren't praising me for the right thing.
Now, having said that, I have received some wonderful things from lawyers and judges. Good lawyers and good judges get it. I understand that the plaintiffs' lawyers have to say that I'm George Wallace and all that kind of stuff. But I've really received some wonderful comments that are meaningful to me, because they actually understand the situation. They're not these guys that are off into the emotional issue. They just say, "Hey, you're doing what lawyers are supposed to do." That's been reassuring.
What have your conversations with family been like?
[Pauses, then laughs.] I have a family that knows me and knows what I'm about. There's been: "Hey, Dad's under the gun again and plowing through." Having been in this business a long time, I do think some of the criticism — wicked letters and stuff like that — are tougher on your family and spouse than they are on you. But everybody's used to it.
How do they deal with that?
"What time are you going to be home tomorrow night?" No, seriously, we do what we have to do. If somebody calls in a death threat, then maybe we'll have to have a state patrolman over, but, you know, we just do what we have to do.
Read on for the same-sex marriage briefs that Suthers' office recently filed with the U.S. Supreme Court.
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