Colorado court strikes down state marriage ban

Ruling stayed pending appeal to state Supreme Court

Colorado court strikes down state marriage ban

ADAMS County District Court Judge Scott Crabtree today ruled unconstitutional Colorado’s seven-year-old gay marriage ban. He joins the list of judges, now running to more than 20, who have recently issued decisions finding that same-sex-marriage bans violate the rights of gay Americans.

The ruling in Brinkman v. Long comes just weeks after the U.S. Tenth Circuit Court of Appeals in Denver issued an historic first-federal ruling against state bans in Kitchen v. Herbert, knocking down Utah’s version and setting strong precedent for the six-state circuit and beyond.

The Colorado gay-marriage ban was passed by a wide majority in 2006 and went into effect in 2007. Not even a decade later, it seems destined soon for the dust bin, with Boulder Clerk Hillary Hall already issuing marriage licenses to gay couples and with new legal action around the issue in the state coming at a weekly clip.

The Crabtree decision is another of the very strong rulings that have come in recent months, echoing one another and making a mockery of continuing partisan politics around the issue. Crabtree was appointed to the court in 2001 by Republican Governor Bill Owens. In his 48-page ruling, he takes apart each of the arguments made by lawyers for the state to defend the ban.

Marriage is a fundamental constitutional right, he wrote, and the state has not demonstrated any compelling interest in preventing gay couples from marrying.

“The Court heartily endorses the recent holding by the Tenth Circuit that the marital right at issue was never framed as the ‘right to interracial marriage’ in Loving or the ‘prisoner’s right to marriage’ in Turner or the ‘dead-beat dad’s’ right to marriage in Zablocki,” he wrote, stacking up references to the marriage cases that have shaped recent rulings.

Instead, the Supreme Court has repeatedly utilized the term “fundamental right to marry” without any limitations. The Court rejects the State’s attempt to too narrowly describe the marital right at issue to the right to marry a person of the same sex.

The Court holds that the State does not have a sufficiently important/compelling interest in forbidding same-sex marriages or nullifying Colorado residents’ valid out-of-state same-sex marriages. The Marriage Bans are unconstitutional because they violate plaintiffs’ due process rights..

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 pass muster… 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.

Crabtree also acknowledged that, should his ruling withstand a reportedly fast-tracked state Supreme Court appeal, Colorado’s same-sex civil unions would fall by the wayside. The hard-won state civil unions law was celebrated in 2013 when it passed as a needed albeit admittedly insufficient step toward equality. Crabtree clearly agreed that the need for civil unions only underlined the inequality gay couples face.

The fact is that those in a civil union do not and cannot obtain the same benefits and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and facing loss of social security and veterans benefits. If civil unions were somehow the equivalent of marriage, there would be no real need for this second tier relationship. The State paid only lip-service to the plaintiffs’ arguments that civil unions were not unlike the “separate but equal” black and white educational systems.

Especially in light of the long and undisputed history of invidious discrimination that gay persons have suffered…; we cannot discount the plaintiffs’ assertion that the legislature, in establishing a statutory scheme consigning same sex couples to civil unions, has relegated them to an inferior status, in essence, declaring them to be unworthy of the institution of marriage. In other words, “[b]y excluding same-sex couples from civil marriage, the [s]tate declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples. Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.

Attorney General John Suthers, who opposes gay marriage and who has been a strong supporter of the state ban, asked last week for a pause in litigation in the three cases targeting the 2006 amendment to the constitution. In a release following the ruling today, Suthers’s office highlighted the fact that Crabtree immediately stayed his decision in order to head off the kind of rush on marriages that have taken place in other states, creating in some cases marriages suspended in legal limbo.

“A stay is necessary to avoid the instability and uncertainty which would result in the state of Colorado if the Court did not stay its ruling and for the orderly administration of justice.”

Colorado has now joined 31 states that have either made same-sex marriage legal or have seen their marriage bans struck down in court. There have been 16 consecutive federal court decisions that bans on marriage equality are unconstitutional, according to the court trackers at equal-rights organization Freedom to Marry.

brinkman summary judgmentj july 9.pdf

[ Photo by Gerald Campbell. ]

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About the Author

John Tomasic

Writer, editor, teacher, web wrangler. He has worked for art, business, culture, politics publications, five universities and a UN war crimes commission. @johntomasic
jtomasic@coloradoindependent.com | 720-432-2128 |

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