Littwin: Same-sex marriage on winning streak


[dropcap]S[/dropcap]ame-sex marriage has finally come to Denver. It may not last forever or even till death do them part, although I’m guessing it probably will.

As of now, the licenses come with a caveat — that if same-sex marriage falters on its way through the judicial system, the marriage may no longer be valid.

It’s a risk, but it seems to be a small risk. At this point, it’s hard to think anything else.

For the chance to test that theory, we can thank Hillary Hall, the Boulder clerk and recorder and hero of the piece. She began it all by deciding, pretty much on her own, to issue marriage licenses to gay couples. When the state tried to stop her by taking her to court, Boulder District Court Judge Andrew Hartman ruled that Hall was within her rights to practice this little act of civil disobedience, at least for now.

And within hours of Thursday’s ruling, word had moved down the Denver-Boulder Turnpike, and same-sex couples were being married in Denver as well.

If you’re surprised by any of this, you need to keep up.

It isn’t just liberal Boulder after all. Same-sex marriage is on a huge winning streak in courts across liberal and conservative America. There’s the look of inevitability on this issue wherever you turn, and that now includes turning toward Denver, Boulder, Pueblo and Colorado counties still to come.

It was the conservative 10th Circuit Court of Appeals that that got Hall going when it upheld a District Court ruling that Utah’s ban on same-sex marriage was unconstitutional. The judges stayed their decision, pending a certain appeal to the Supreme Court, which will have to make the final call.

But Hall would have nothing to do with a stay. She just heard the unconstitutional part. And knowing that the 10th Circuit covered Colorado, she knew Colorado’s similar ban on same-sex marriage had to be similarly unconstitutional.

And so, she began issuing marriage licenses to same-sex couples. More than a hundred of them.

Colorado Attorney General John Suthers sought an injunction. But the court said that Hall could continue, and Suthers, who keeps losing on this issue and keeps appealing, now understands the meaning of a futile gesture.

Not long after Hartman ruled, Denver Clerk and Recorder Debra Johnson got the word from city attorneys that it was OK for her to go ahead and issue licenses. Naturally, she went straight to Twitter. The media rushed to her office. A few couples trailed only slightly behind. And history was made.

Argue if you will with Hartman’s decision. But it’s much harder to argue with the central fact behind it.

Hartman dismissed Suthers’ call for a injunction, saying that no one had been harmed by Hall’s actions. That’s because no one has been. The state hasn’t been harmed. Your marriage hasn’t been harmed. Mine hasn’t.

The only people who have been harmed, as Adams County Judge C. Scott Crabtree ruled the other day in striking down Colorado’s same-sex marriage ban, are those in an excluded class who haven’t been allowed to marry like everyone else.

The state argued before Crabtree that a one-man, one-woman construct had to be sustained in order to protect “the nature of marriage” and the ability to produce children within the traditional parental arrangement.

The argument was a sure loser. Crabtree dismissed it as a “pretext for discrimination” and nothing more. Crabtree said that the concept of civil unions was not unlike the concept of separate but equal, noting that if civil unions were the same as marriage then there would be no need to have civil unions.

Crabtree also issued a stay, however, understanding that his words would not be the final words.

The arguments against same-sex marriage keep changing, as each one is rejected by the courts or by state legislatures. It seems like a series of lightning rounds with the same side always getting the answer right. When the Supreme Court ruled — in the all-too traditional 5-4 decision — that the federal Defense of Marriage Act “demeans” same-sex marriage and “humiliates” children raised by same-sex couples, that was pretty much the ballgame. Now we’re just waiting for the final score.

In Boulder, Judge Hartman rejected the state’s argument that if Hall issued licenses to same-sex couples despite the judicial stays, it would cause people to lose faith in the rule of law. It’s a strange argument coming so soon after so many of Colorado’s sheriffs determined that they weren’t going to enforce the gun laws produced by the state legislature.

“The State makes assertions that Clerk Hall’s disobedience irreparably harms the people by causing loss of faith in the rule of law,” Hartman wrote. “However, the State has made nothing but assertions. An alternate public response is that the people of Colorado laud Clerk Hall for her pluck and/or condemn the Attorney General for his tenaciousness.”

If Suthers had any sense of history, he’d rein in the tenacity and give up the fight. Who wants to be remembered as having been on the wrong end of a civil rights battle?

And Hartman had it exactly right on Hall. But her pluck will not only be lauded. If the court ruling holds up, that pluck will be the stuff of legend.

[Fran, left, and Anna Simon at the Denver County Clerk’s office, where they were the first same-sex couple to get married, with their son Jeremy. Photo by Susan Greene] 

Correction: In an earlier version of this column, it said Colorado Attorney General John Suthers opposed same-sex marriage. Suthers says he has never publicly revealed his personal opinion on the issue. He does believe the Colorado ban on same-sex marriage is constitutional. The column has also been updated to reflect a correction in the amount of marriage licenses issued to same-sex couples by the Boulder County Clerk.