Attorney General John Suthers, acknowledging the altered “reality of the legal landscape” brought to Colorado by recent federal court rulings, announced he is asking judges to suspend all litigation in gay marriage cases wending their way through the state and federal judicial systems here until higher courts decide with finality on the constitutionality of state gay marriage bans like the one voted into the Colorado constitution in 2006.
In a late-Wednesday afternoon release, the attorney general’s office included a first motion filed by Suthers with the U.S. District Court in Denver asking for an injunction in the Katherine Burns v John Hickenlooper case, which was filed yesterday.
“We hope and believe that if granted, today’s motion will help end the divisive, costly, and now unnecessary litigation regarding same-sex marriage in Colorado,” Solicitor General Dan Domenico is quoted in the attorney general’s release.
The argument in the motion refers specifically to the pathbreaking ruling handed down last Wednesday, June 25, in the Kitchen v Herbert case by the U.S. Court of Appeals for the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Utah, Wyoming and Oklahoma. A three-judge panel for the circuit affirmed a lower court decision that found Utah’s gay-marriage ban was unconstitutional. The Tenth Circuit ruling is being appealed by Utah — whether Utah appeals to the U.S. Supreme Court or to the full twelve-seat Tenth Circuit bench is yet unclear.
“Because the Utah decision will not go into effect until the higher courts, including the United States Supreme Court, have had a chance to decide the question, Colorado (and other states) must wait for that final decision,” said Domenico. “In other words, the legal debate about this question will be suspended in Colorado as we await finality from the 10th Circuit or U.S. Supreme Court.”
Governor John Hickenlooper, who supports gay marriage, welcomed the move.
“We joined with the Attorney General and the county clerks in Denver and Jefferson counties to ask the federal district court in Colorado to declare the state’s gay marriage ban unconstitutional and to stay its ruling until the U.S. Supreme Court addresses this issue,” he said in a release. “This is an important step that gets all Coloradans closer to receiving the same legal rights and opportunities.”
University of Denver Law Professor Thomas Russell, who is also a lawyer in an Adams County state-based suit against the Colorado gay marriage ban, told the Independent earlier Wednesday that he sensed the attorney general was retreating on an agreement parties to the Brinkman v Long Adams County lawsuit had reached seeking a fast-track course to the Colorado Supreme Court, where the question about gay marriage in Colorado could be resolved.
Judge Scott Crabtree is presently weighing arguments made last month in the case.
Russell said the attorney general’s move to stay whatever ruling Crabtree may deliver feels like a stall tactic.
“We originally agreed with the state to a stay on whatever decision Judge Crabtree delivers,” said Russell. “That seemed fully appropriate then. We no longer agree. We suspect the state may be trying to delay seeing an issuance of opinion on the state’s gay marriage ban.”
In Colorado’s Boulder County, Clerk Hillary Hall has made headlines over the last week by issuing marriage licenses to same-sex couples. She says the Tenth Circuit ruling that marriage is a fundamental constitutional right sets up an obligation on her part as an officeholder to put the rights of individual Coloradans above the laws of the state.
Suthers, who opposes gay marriage and argues that Colorado officials are obliged to uphold the laws of the state, has threatened vague “legal action” to halt Hall’s same-sex marriage license policy. Hall has issued 97 marriage licenses to same-sex couples so far.
Russell says that the most expeditious and typical course of action would have been for the attorney general to file a motion asking the Boulder district court to enjoin Hall from issuing any more licenses.
That is likely another of what now looks sure to be several gay-marriage motions Suthers’ office is set to file in courts this week.