Boulder to Colorado on gay marriage: Sorry no, individual rights trump state laws

The gay marriage legal standoff unfolding in Colorado continues.

In a letter sent today to Colorado Solicitor General Dan Domenico, Boulder County Attorney Ben Pearlman wrote that Boulder County Clerk Hillary Hall is not going to stop issuing same-sex marriage licenses because she believes recent court rulings delivered around the country have made it clear that she must place priority on protecting the constitutional rights of individual Coloradans above her obligation to uphold Colorado law.

“Clerk Hall’s decision to begin issuing licenses was prompted by the 10th Circuit’s decision in Kitchen v Herbert, which found that same-sex couples have a fundamental federal constitutional right to marriage,” Pearlman wrote, going on to reference the landmark Supreme Court decision last year finding unconstitutional the federal Defense of Marriage Act.

“The [Kitchen] decision is consistent with the 23 cases since the Supreme Court’s decision in Windsor that have uniformly found same-sex marriage bans unconstitutional. As a result, the unconstitutionality of enforcing a same-sex marriage ban is established by both 10th Circuit law and the clearly established weight of authority‚Ķ Colorado’s marriage ban is no different in form or substance from those that have already been overturned. Clerk Hall is prohibited from knowingly violating an individual’s constitutional rights. Given all of the other law in this area, the 10th Circuit’s decision to stay its mandate is too fragile a shield to hide behind.”

Attorney General John Suthers has ordered Hall to stop issuing same-sex-marriage licenses. She has issued nearly 90 since the 10th Circuit ruling against Utah’s gay-marriage ban last Wednesday. Suthers says his office and clerks offices around the state are obliged to uphold Colorado’s 2006 gay-marriage ban until the state supreme court or the U.S. Supreme Court rule otherwise. He has threatened to take legal action to stop Hall from issuing any more licenses, but it’s unclear at this point what action he will take and to what effect.

Read the exchange of letters below.

Letter to Dan Domenico 7.2.14.PDF

Boulder Letter- Resp. to Req. for Extension.pdf

[ Image by Carlos Melia ]