Same-sex marriage ban unconstitutional: DU prof on ruling and why attorney general is wrong

Last month, we interviewed DU law professor Kris McDaniel-Miccio about a lawsuit in Adams County challenging Colorado's ban on same-sex marriages. It's a matter with which she has more than a professional interest: She and her wife, Nan McDaniel-Miccio, are among the plaintiffs in the case.

Now, Judge C. Scott Crabtree has ruled that the ban is unconstitutional -- a decision that leaves McDaniel-Miccio feeling overjoyed even though the order (on view below) has been stayed for now. But she's disappointed that Colorado Attorney General John Suthers plans an appeal and argues that his reasons for doing so are dubious.

See also: Kris McDaniel-Miccio on why she's suing to end Colorado's same-sex marriage ban

"I can't describe the emotion," McDaniel-Miccio says from Dublin, Ireland, where she's a visiting research professor at the Trinity College School of Law. "This has been something I've been waiting for all my life -- and it's not just about marriage. It's about validating who I am, validating that I'm not abnormal or outside the American family, validating that I'm a human being with rights.

"That's what Judge Crabtree said -- and his opinion is so well thought-out. It covers every conceivable base."

Indeed, there's no ambiguity in Crabtree's opinion. Here's one of many telling excerpts:

The Court has previously found that the State's professed governmental interest was a mere pretext for discrimination against same-sex marriages created "post hoc in response to litigation." Thus, the Marriage Bans cannot even pass muster under the rational basis analysis. The sole basis for precluding same-sex marriage is self-evident -- the parties are of the same sex and for that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the Marriage Bans are unconstitutional because they violate plaintiffs' equal protection rights.

For McDaniel-Miccio, Crabtree's ruling is particularly powerful "because he said that this is a fundamental right and it's not conditioned in any way. It's part of what it means to be human. It's critical -- and God willing, the Gang of Five that produced the amazing Hobby Lobby decision will come to their legal and moral senses and reach the same conclusion."

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McDaniel-Miccio is referencing the five U.S. Supreme Court justices -- Antonin Scalia, Samuel Alito, Clarence Thomas, John Roberts and Anthony Kennedy -- who recently ruled that closely held companies like Hobby Lobby may be exempt from laws to which their owners object on religious grounds. (In this case, the issue revolved around the Affordable Care Acts mandate for contraceptive insurance coverage.) She calls the Hobby Lobby ruling "a disaster" and believes it contradicts Scalia's opinion in a previous case: Employment Division v. Smith, which dealt with religious peyote use.

Will these justices use similarly controversial logic to keep bans on same-sex marriage intact? McDaniel-Miccio admits that's a concern, albeit one mitigated to some degree by the momentum established by societal changes and a growing number of opinions like Crabtree's. In the meantime, though, she's frustrated that Colorado Attorney General John Suthers, who defended the state in the Adams County case, plans to appeal Crabtree's ruling -- and she sees the statement he released in the wake of the decision as "patently wrong." Continue for more about the same-sex marriage ban ruling in Adams County, including additional photos and the complete opinion. Here's Suthers's take:

"Judge Crabtree's order reaffirms the fact that the fate of Colorado's same-sex marriage law will rest with the United States Supreme Court. The Court properly found that the instability and uncertainty that would result from not staying the decision, including the issuance of marriage licenses by county clerks in the state, necessitated that the order be stayed. The county clerks are agents of the state and should be bound by the stay order.

"Judge Crabtree provides additional clarity that until the high court rules on the issue of same-sex marriage, Colorado's current laws remain in place. While the legal debate regarding same-sex marriage continues, and many find the legal process frustrating, adherence to the rule of law will bring about the final resolution with the greatest certainty and legal legitimacy. That certainty and legitimacy is in the best interests of everyone, including gay couples who desire to marry."

McDaniel-Miccio sees things differently.

"Colorado doesn't have to wait for the U.S. Supreme Court. Colorado can do its own thing," she maintains.

How so?

"This is basic first-year law school stuff," she continues. "There are two systems: the federal system and the state system. And a ruling in the federal court system may not have an effect on a Colorado Supreme Court ruling that our mini-DOMA" -- an allusion to the federal Defense of Marriage Act, which Colorado's same-sex marriage ban resembles -- "and the civil union bill are unconstitutional. The U.S. Supreme Court sets the floor, but states can give you more rights.

"We see that in cases that deal with criminal procedure. For example, the U.S. Supreme Court ruled that the right to counsel for misdemeanor cases only applies if the judge is going to give a jail sentence. New York said, 'That's nice, but that's not what we do in this state. We're going to give you more rights.' The states can't give you fewer rights, but they can give you more."

Regarding Suthers's plan to appeal, McDaniel-Miccio says, "I have to give him props for tenacity. But I don't give him props for defending the indefensible. His statement is confusing and also, if I interpreted it correctly, wrong."

Without an appeal, McDaniel-Miccio argues that Judge Crabtree's order stands. As such, she believes Boulder County Clerk Hillary Hall could continue issuing same-sex marriage licenses -- a hearing about a lawsuit filed against Hall by Suthers took place yesterday -- as Hall's colleagues would be able to follow suit across the state.

We shared McDaniel-Miccio's views with the AG's office. Here's the e-mail response from Suthers's spokeswoman, Carolyn Tyler:

I can confirm that Ms. McDaniel-Miccio is correct that if the AG did not appeal the decision, the stay would expire. However, Judge Crabtree's order staying his ruling recognizes that the attorney general takes an oath to defend Colorado law. The judge specifically wrote that, "The Court is under no delusion that the resolution of the issue of same-sex marriage will end this Court's decision or any lower courts' decisions. That entails appealing adverse rulings until the highest court with jurisdiction over the issue decides it." Given the myriad of rulings in favor of gay marriage around the country -- all of which have been stayed by the courts -- the reality is that the U.S. Supreme Court will decide the issues either by directly taking the case or denying certiorari. So per yesterday's statement, while the legal debate regarding same-sex marriage continues, and many find the process frustrating, adherence to the rule of law will bring about the final resolution with the greatest certainty and legal legitimacy. That certainty and legitimacy is in the best interests of everyone, including gay couples who desire to marry.

Meanwhile, McDaniel-Miccio describes the current situation as "chaotic, really chaotic. Those of us who want to marry, as well as those of us who are married and have lawful marriages in other states, are in a holding pattern. And that's not a comfortable place to be. It's my hope this gets resolved quickly and the process in terms of federal and state courts is expedited. Because people's lives are at stake."

Not that McDaniel-Miccio is downbeat about the latest developments. "Judge Crabtree's opinion was a breath of fresh air," she says. "If he were here, I'd buy him a Guinness." She calls his ruling "the first salvo to knock down the wall of discrimination. And it's time for that wall to be knocked down and destroyed."

Here's Judge Crabtree's ruling.

Judge C. Scott Crabtree Same Sex Marriage Order

Send your story tips to the author, Michael Roberts.

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