Soon after a judge ruled that the Boulder County clerk could continue issuing marriage licenses to same-sex couples while the courts considered Colorado's ban on gay marriage, clerks in Denver and Pueblo counties said they would do the same.
State Atty. Gen. John Suthers vowed a swift appeal to the state’s highest court on the recent Colorado gay marriage rulings. On Wednesday a U.S. District Court judge ruled that the state’s ban was unconstitutional.
“It is paramount that we have statewide uniformity on this issue and avoid the confusion caused by differing county-by-county interpretations of whether same-sex marriage is currently recognized,” Suthers said in a statement. “Therefore, we will act swiftly in an attempt to prevent a legal patchwork quilt from forming.”
Boulder County Clerk and Recorder Hillary Hall began issuing same-sex marriage licenses June 25, the same day the U.S. 10th Circuit Court of Appeals ruled that Utah's ban on same-sex marriage was unconstitutional. The 10th Circuit includes Colorado, which does not allow same-sex marriage but does recognize civil unions.
Although the appeals court stayed its ruling, Hall said the court had affirmed gay marriage, and she thus began issuing the licenses.
The state filed suit against Hall last week, seeking an injunction to force her to stop issuing the licenses and declare invalid about 100 she had already issued.
Boulder District Court Judge Andrew Hartman ruled Thursday that the state had failed to prove its claim that Hall’s “disobedience irreparably harms” the state and the couples.
“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,” he said.
Hartman ruled that Hall should report all the same-sex marriage licenses she issues to the Colorado Department of Public Health and Welfare, the Center for Health and Environmental Information and Services, as well as the Boulder County Vital Records Office as a temporary measure to protect “prospective and past recipients of same-sex marriage licenses.”
He also said Hall must warn the recipients that the validity of the licenses might be overturned by higher courts. He made it clear that he was not ruling on the legality of the same-sex marriage ban but only on whether Hall was overstepping her boundaries.
Hall praised the judge’s decision. “His opinion was very well-reasoned and we can easily accommodate working with the state to track these licenses. This is a victory for all loving couples wishing to marry.... I continue to be moved by the stories of so many families affected by this issue.”
The ruling comes one day after District Judge C. Scott Crabtree ruled that Colorado's 8-year-old ban on same-sex marriage was unconstitutional. He put his ruling on hold pending an appeal. Crabtree said provisions in the Colorado law violate the state and U.S. constitutions. “There is no rational relationship between any legitimate governmental purpose and the marriage bans,” he wrote.
Boulder County Deputy Atty. David Hughes, who represented Hall, said Hartman did “an excellent job” of balancing “the harms to the state itself versus the injuries that result from not issuing a marriage license. Judge Crabtree has also written a compelling opinion establishing the unconstitutionality of Colorado's marriage ban, which may have influenced Judge Hartman’s decision.”
Denver Mayor Michael B. Hancock said he supported Denver Clerk and Recorder Debra Johnson in issuing same-sex marriage licenses.
“As a city, we have stood together against injustice and for the rights of all people,” he said. “I stand proudly with her as we take another step toward marriage equality for every single resident of this great city.”
Pueblo County said it would begin issuing licenses Friday.
“No court has upheld the constitutionality of marriage bans for 23 consecutive rulings – at state or federal levels all over the nation – that’s significant and can’t be ignored," said Gilbert Ortiz, Pueblo County clerk and recorder. "Denying constitutional rights is an untenable position and I have to respect the Constitution, the courts and move forward.”
Other counties in Colorado told the Los Angeles Times that they were meeting with their attorneys to read over the decision and decide if they would follow suit in issuing marriage licenses to same-sex couples.
“I feel ecstatic,” Samantha Frazee said of the decision, who received her marriage license from Hall on July 1. “I feel really overjoyed that he made this decision and that he made it so quickly. We, for the first time, have a valid marriage license.”
Frazee and her partner, Vanessa, had a wedding ceremony in 2007. They have two adopted children, a 4-year-old and a 2-year old, and are adopting a 1-year old in the fall.
“We didn’t know then that Colorado would get to that point so we went ahead and had our wedding,” she said. “It was symbolic in 2007 and now we have the paper to make it legally binding. And being parents, we’re really going to benefit from this.”
Frazee testified on behalf of Hall and the Boulder County clerk’s office during Wednesday’s hearing.
Attorneys for the clerk's office, who defended Hall's action, and state attorneys had sparred in District Court on Wednesday over whether she was breaking the law.
Michael Francisco, assistant solicitor general for the Colorado attorney general's office, repeated that request at Wednesday's hearing.
He argued that Hall was creating a harmful situation for same-sex couples by ignoring Colorado's current ban on gay marriage instead of waiting for higher courts to rule on the issue, according to the Denver Post.
“Colorado isn't asking that anybody's rights be denied,” Francisco said.
Suthers had told Hall to stop as of noon last Tuesday, a deadline she ignored. She also rejected his proposed compromise to jointly ask the state Supreme Court to decide whether she had authority to issue the licenses.
Suthers contends the licenses are invalid as long as the appellate court's stay is in place.
Hughes, the clerk's office attorney, countered that Hall believed the state's request would require her to violate people's fundamental rights.
He later told The Times he called several witnesses who were in a same-sex relationship to testify about the hardship they faced because they weren’t able to get married in Colorado.
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