Denver, Boulder clerks battle attorney general on proposed halt to action on gay marriage
The movement to bring gay marriage to Colorado has proceeded at breakneck pace over the past month, in grassroots campaigns and in clerk’s offices and courthouses, building great momentum that critics of Attorney General John Suthers fear he is attempting in a recent legal maneuver to derail.
Suthers is filing motions to stay all court decisions and to effectively suspend at least three gay marriage cases presently moving through Colorado’s federal and state court systems.
In a release, the attorney general’s office explained that the move came in reaction to the altered “reality of the legal landscape” around gay marriage. The author referred to rulings around the country this year striking down same-sex-marriage bans like the one passed in Colorado in 2006 and to ongoing related litigation wending its way through the highest courts in the land, including the U.S. Tenth Circuit Court of Appeals in Denver. The goal, according to the release, was to simplify matters by waiting for the high courts to issue the rulings that will ultimately control marriage law in Colorado and around the country.
Solicitor General Dan Domenico is quoted to say the aim of the motions is to “help end the divisive, costly, and now unnecessary litigation regarding same-sex marriage in Colorado.”
In the media rush that followed the release, some outlets reported that parties to lawsuits in the state agreed with the motions and the effort to suspend legal debate in the state. But that is not the case.
Denver Clerk Debra Johnson, who is a defendant in a state lawsuit to lift Colorado’s marriage ban, filed a motion arguing against Suthers’s proposal and sent a release Thursday afternoon to restate her strong opposition to any halt in the cases concerning the ban.
She wrote that higher courts may take years to issue the relevant rulings and that such a delay is unnecessary and not in the best interest of the parties to the suit and the citizens of the state.
“That would be horribly unfair to Colorado’s same-sex couples,” Johnson said. “Not only do we want every couple in Colorado to be affirmed of their love, with zero doubt our state recognizes their devotion, but also without delay.”
As University of Denver Law Professor Thomas Russell — one of the lawyers in the Adams County Brinkman v Long suit against the marriage ban — told the Independent Wednesday, the move to pause action on Suthers’s part comes after the state made agreements to fast-track the case. The point was to move the case up the ladder without delay to the state Supreme Court, which could decide on the constitutionality of the ban this year.
Russell said new talk about asking for stays on rulings and relying on higher federal courts felt like stall tactics, especially given that Colorado District Judge Scott Crabtree is set any day to issue his decision in the Brinkman case.
“We suspect the state may be trying to delay seeing an issuance of opinion on the state’s gay marriage ban,” Russell said.
On a parallel track, Suthers on Thursday filed a motion with the Boulder County District Court aimed at stopping Boulder County Clerk Hillary Hall from issuing same-sex-marriage licenses, which she has been doing for more than a week now.
“Regretfully, our office was forced to take action against Clerk Hall due to her refusal to follow state law,” Suthers said. “While we would prefer not to sue a government official, Ms. Hall’s actions are creating a legal limbo for both the state and the couples whose relationships she wants to champion. That limbo could have tangible and unintended consequences.”
Boulder District Court Judge Andrew Hartman has scheduled an expedited briefing and a hearing on the matter for July 9.
Suthers’ motion is the latest in a series of thrusts and parries passed between the attorney general and the Boulder clerk.
Hall began issuing gay-marriage licenses last Wednesday after the pathbreaking ruling handed down in the Kitchen v Herbert case by the U.S. Tenth Circuit court, which covers Colorado, Kansas, New Mexico, Utah, Wyoming and Oklahoma.
Although that ruling has been stayed and is being appealed by Utah, Hall points out that it was a very strong ruling, that the three-judge panel found marriage a fundamental constitutional right, which she believes obliges her to put the rights of individual Coloradans above the laws of the state.
“How do you stay a fundamental right?” she asked reporters gathered in her office on Tuesday.
On Thursday Boulder County hit another milestone in the rush on gay-marriage licenses there. At the end of day Wednesday, the clerk’s office reported the county had issued a grand total of 97 same-sex-marriage licenses. End of day Thursday, the clerk reported the total had reached 105 licenses.
On Thursday, in response to Suthers’s motion to rein in the rush, Hall seemed unmoved.
“The Attorney General has filed suit against me seeking to force me to violate the fundamental rights of gay and lesbian couples who apply for a marriage license. Although I’ve had very little time to review the pleadings filed today, it appears that he is arguing that the constitutionality of Colorado’s same sex marriage ban simply isn’t relevant.
“It is unfortunate that our Attorney General is continuing to fight this fight instead of following the example of seven other state attorney generals who have refused to enforce their own state’s bans in similar situations. I believe it is a waste of resources for the Attorney General to keep denying people their constitutional right, but that is his prerogative until there is a Supreme Court case squarely addressing the issue.
“The question now is what public officials like me should do in the meantime. I think the least harmful and most sensible solution is to issue marriage licenses and avoid the potential of more civil rights violations while this plays out in court. I hope the court will agree with me.”
[ Top image John Suthers ]
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