Editor's note: Kris McDaniel-Miccio is a University of Denver law professor and plaintiff in a lawsuit that sought to overturn Colorado's same-sex marriage ban. In July, Adams County Judge C. Scott Crabtree concluded that the ban is unconstitutional but stayed his ruling against the law, which Colorado State Attorney General John Suthers continues to defend.
McDaniel-Miccio challenges Suthers on this issue in an open letter. Read it below.
Dear Attorney General Suthers:
I am one of the plaintiffs in the case against the State of Colorado. I am also a professor of law at DU and an ordained Rabbi...and a spouse. I bring this to your attention so that you know that while I am a lesbian, I am much more than that. I have watched the rather frenetic filings undertaken by your office to stop recognition of my marriage and also to enforce Colorado's mini-DOMA [Defense of Marriage Act], which bars loving lesbian and gay couples from marrying.
You claim that you don't believe in the underlying premise of the Constitutional bar. You claim that marriage between two consenting adults should be permissible regardless of gender. You also claim, after your first defeat in the courts, that you actually know that Colorado's discriminatory amendment will inevitably fall. Yet you continue to defend the indefensible.
You have claimed that it is your duty to protect the laws of this State -- a rather admirable position and one that might be at once genuine and sincere. But I do question whether you assume this duty.
Let me explain.
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Article 12§8 of the Colorado Constitution states, "Every civil officer...shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States and of the State of Colorado...." Let's deconstruct this provision in the Colorado Constitution. First, as the AG you are a civil officer. Check. Second, unless you believe as Justice Scalia does that "shall" means "maybe," there is no discretion; as a civil officer you must swear an oath or make an affirmation. Check. Third, that oath or affirmation requires that you "support the Constitution of the United States." And herein lies the problem.
After the Tenth Circuit Court of Appeals struck down the State of Utah and Oklahoma's constitutional amendment barring same-sex marriages and recognition of legal same-sex marriages in sister states, you stated that our constitutional amendment would likely fail as well. Now, why did you think that? Would the Colorado Supreme Court or U.S. Supreme Court craft a ruling based on solicitous feelings toward the LGBT community? Not quite. Could it be because myriad federal Courts (e.g Tenth, Fourth etc.) and state Supreme Courts have found that such laws violate the Fourteenth Amendment to the American Constitution? BINGO!
Not only are you not defending Colorado's laws (Article 12§8 is part of the Colorado Constitution). Rather, by constructing roadblocks to issuance and recognition of same-sex marriage in the State of Colorado, you are violating your Oath of Office and the Colorado Constitution. And to make matters worse, the papers filed in our case and the Amicus Briefs that your office has signed onto raise the most specious arguments: that marriage is about protecting and encouraging procreation.
I trust you are aware of the federal decisions concerning marriage? The U.S. Supreme Court did not tie marriage to procreation in the Loving case (interracial marriage) or in cases involving inmates or deadbeat dads. They declared that marriage was a fundamental right because it is a vital to being human. I would also assume that when you tied the knot, as I did, you didn't promise to "love, honor and procreate." Thus to use the "marriage/ procreation" standard is not only culturally absurd but legally specious.
So...why are you taking this rather meaningless position? Perhaps politics takes precedence over law? Perhaps your desire to score points with some folks in Colorado Springs is more important than defending therights of all Coloradans? Winning the mayoral election in the Springs trumps protection of Constitutional rights?
One last thought...it is time for you to leave state office because it appears you will not or can not uphold your oath of office.
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Professor of Law Sturm College of Law University of Denver
Rabbi, JSLI, Rabbinic School NYC