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Boulder's same-sex marriage licenses invalid? Inside court ruling, John Suthers's objections

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Yesterday, the 10th U.S. Circuit Court of Appeals in Denver ruled that same sex couples have a right to marry under the Constitution -- and even though that judgment was stayed owing to the metaphysical certainty of an appeal, Boulder immediately began issuing marriage licenses based on the decision. The first to take advantage of this opportunity were Wendy and Michelle Alfredsen, who are among nine couples suing in Adams County court on the same subject.

Colorado Attorney General John Suthers, who is defending the state in the Adams County complaint, immediately declared the Boulder licenses invalid. Continue for explanations about his reasoning and the latest developments, including four documents, a video and comments from Kris McDaniel-Miccio, one of the Alfredsens' fellow plaintiffs.

Boulder has been at the forefront of progressive thought regarding same-sex marriage for decades. In 1975, as graphically depicted in "A Timeline of Boulder LGBT History," on view below, then-Boulder County Clela Rorex began issuing same-sex marriage licenses -- and one of them, involving Richard Adams and his beloved, Anthony Corbett Sullivan, became the basis of Adams v. Howerton, the first lawsuit in which plaintiffs challenged the federal government to recognize same-sex marriages.

The 1982 ruling, detailed in a document below, turned in part on Sullivan's status as an alien; he was a citizen of Australia. Nonetheless, the court dismissed the argument that the U.S. Constitution included a right for same-sex couples to wed in part because "[t]he legal protection and special status afforded to marriage (being defined as an union of persons of different sex) has historically...been rationalized as being for the purpose of encouraging the propagation of the race."

Attorney General Suthers included procreation in his defense of Colorado's same-sex marriage ban in Adams County court earlier this month -- and when Boulder again began issuing marriage licenses to same-sex couples yesterday, he issued a statement that rejected the rationale of Clerk Hillary Hall.

Kitchen v. Herbert, the case before the 10th Circuit, is rooted in Utah -- but because 10th Circuit decisions are binding in Colorado and several other states, Hall believes the precedent is applicable to the same-sex marriage ban here, a County of Boulder release points out. "Couples across Colorado have been waiting a long time to have their right to marry the person they love recognized," she's quoted as saying. "I want to act immediately to let them carry out that wish."

In response to Hall's move, Suthers wrote, "Colorado's constitutional prohibition on same-sex marriages remains in effect. Today's decision by the 10th Circuit Court of Appeals was stayed by the Court and has not gone into effect even in Utah, let alone in Colorado. Any marriage licenses issued to same-sex couples in Colorado before a final court resolution of the issue are invalid."

The AG's office also added a quote from J.D. MacFarlane, one of Suthers's predecessor as attorney general. When Boulder began issuing same-sex marriage licenses in 1975, MacFarlane said that "the issuance of a license under such circumstances is useless and an official act of no validity and may mislead the recipients of the license and the general public." Aforementioned Colorado plaintiff McDaniel-Miccio, a DU law professor, strikes a very different tone in her comments about the 10th Circuit ruling. Corresponding via e-mail from Ireland, where she's currently serving as a visiting professor at the University of Dublin, she writes:

"Although the 10th Circuit Court stayed its decision, this is a day when ALL Americans should be proud. Proud of a Court that found marriage to be a fundamental right regardless of gender; proud that our families and children will receive the same protection as straight families, and willing to reject the tired, unproductive, illogical and ridiculous claim that marriage is for the sole purpose of procreation. My hope and I suspect the hope of gay folks in Colorado is that the court in our case will follow suit and that the AG and Governor will not defend a losing and indefensible discriminatory constitutional amendment and state statute. Fundamental rights are just that...fundamental...and not dependent on a show of hands."

One more thing: Boulder intends to begin issuing more same-sex marriage licenses beginning at 8:30 a.m. this morning.

Continue for a 7News report about Boulder's response to the 10th Circuit case, the Boulder LGBT history timeline, the original Kitchen v. Herbert complaint, the court's ruling and excerpts from Adams v. Howerton.

A Timeline of Boulder LGBT History

Kitchen v. Herbert

Kitchen v. Herbert Appeal Decision

Adams v. Howerton Case

Send your story tips to the author, Michael Roberts.

More from our Follow That Story archive circa June 18: "Kris McDaniel-Miccio on why she's suing to end Colorado's same-sex marriage ban."

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