Update below: The day after an Adams County judge ruled that Colorado's same-sex marriage ban is unconstitutional, a court in Boulder County has denied Colorado Attorney General John Suthers's bid to stop such licenses from being issued in that area.
Why? We've got details and the complete ruling below.
As we noted in June post, Boulder County Clerk Hillary Hall's action has a clear precedent. 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 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."
Such logic is rejected in the aforementioned Adams County opinion, penned by Judge C. Scott Crabtree and alluded to by Boulder County District Court Judge Andrew Hartman in his own ruling.
Hartman notes that the State of Colorado, as represented by Suthers, "does not seek review of the underlying legality or Constitutionality of same-sex marriage in Colorado. It only seeks a declaration whether Clerk Hall exceeded her authority and/or violated her duties as county clerk by issuing marriage licenses to same-sex couples in violation of state law and an order by the State to cease."
Even so, Hartman feels that Suthers and company failed to meet the high burden of proof required to grant a temporary restraining order at such an early stage of litigation. Hence, he denies the TRO request, thereby allowing Hall to continue issuing same-sex marriage licenses. But that doesn't mean they're automatically valid at this point. Here's an excerpt from the ruling:
As a temporary measure to protect all those affected by this case, the Court adopts the Boulder County Clerk and Recorder's recommendation and ORDERS that the Boulder County Clerk and Recorder identify all same-sex marriages and convey the information as part of its routine monthly reporting of nuptials to the Colorado Department of Public Health and Welfare, Center for Health and Environmental Information and Services, as well as to the Boulder County Vital Records Office in order to reduce any risk of irreparable harm. The Boulder County Clerk and Recorder shall forward the information prospectively and has up to and including July 17, 2014 to supply information on past same-sex marriages. These offices shall keep the information confidential.
In addition, as a temporary measure to protect same-sex couples, the Court further adopts the Boulder County Clerk and Recorder's recommendation and ORDERS that Clerk Hall provide reasonable notice to prospective and past recipients of same-sex marriage licenses that the validity of their marriages is dependent upon whether a court would find that Clerk Hall had authority to issue same-sex marriage licenses.
Update: Colorado Attorney General John Suthers has issued a statement about Judge Hartman's ruling. It reads: "It is the view of the Attorney General's Office that the uncertainty that has been created by these recent Colorado court rulings as to the propriety of county clerks issuing same-sex marriage licenses prior to final resolution of the issue, cries out for resolution by the state's highest court. It is paramount that we have statewide uniformity on this issue and avoid the confusion caused by differing county-by-county interpretations of whether same-sex marriage is currently recognized. Therefore, we will act swiftly in an attempt to prevent a legal patchwork quilt from forming."
Below, find Hartman's complete order and the aforementioned timeline of Boulder LGBT history.
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