The Boulder County clerk and recorder vowed Tuesday to continue issuing marriage licenses to same-sex couples, defying the state attorney general, who had given her until noon to stop.
"We believe the licenses are legal and just," said Clerk and Recorder Hillary Hall outside her office as the noon deadline passed. She said the Boulder County Attorney’s Office had given her the green light, adding that "history will be on our side."
She and Atty. Gen. John Suthers have been in a showdown for six days since the U.S. 10th Circuit Court of Appeals in Denver struck down Utah’s ban on same-sex marriage last week, issuing a 2-1 opinion that it violated the U.S. Constitution’s guarantee of equal protection and due process.
Though the appellate court’s ruling involved a Utah case, its decisions are binding in Colorado, Kansas, New Mexico and Wyoming. Colorado currently does not allow same-sex marriage, but the state amended its constitution to recognize civil unions.
Within hours of the June 25 appellate ruling, Hall began issuing same-sex marriage licenses in Boulder County, saying the court had affirmed gay marriage in its ruling. Several couples got married on the spot in the days that followed. Through Tuesday afternoon, 88 couples had been issued marriage licenses by Hall’s office.
It was not immediately clear whether the marriages performed last week would qualify for federal benefits, even if illegal on the state level.
Almost instantly, Suthers warned Hall that she was acting outside Colorado law. In a June 27 letter, he told her she was misleading couples who came to her seeking marriage licenses.
“As things currently stand, nobody can be happy,” the letter began. Suthers offered to fast-track the disagreement to Colorado's Supreme Court, but only if she stopped issuing licenses.
The rhetoric took on more heat Tuesday morning when a second letter from Suthers’ office arrived threatening unspecified "legal action."
"We’ll wait for a court to decide this, and it looks like that is where it is headed,” Hall said Tuesday, just past noon, doubling down on her insistence that only a court order would alter her stance.
By late Tuesday, Carolyn Tyler, a spokeswoman for Suthers’ office, told the Los Angeles Times that it had heard of Hall’s defiance only through reporters' calls. While refusing to go into specifics, Tyler said the attorney general’s office was “focusing on securing a new legal strategy."
Adding further legal complications is that even though the appellate court said Utah’s ban on gay marriage was unconstitutional, it immediately stayed the ruling, putting on hold same-sex marriages awaiting further appeal. It is expected the case or a similar one will eventually land at the steps of the U.S. Supreme Court.
Currently 19 states and the District of Columbia have legalized gay marriage. Kentucky became the latest Tuesday to overturn a same-sex marriage ban. But in Kentucky, like in the Utah case, the decision was immediately stayed.
Hall said Tuesday she had been counseled by her county’s legal office that the stay in the Utah case did not affect her ability to issue marriage licenses in Colorado. She added, “How do you stay a fundamental right?"
Former prosecutor and now University of Denver law professor Kris McDaniel-Miccio agreed that the appellate court stay could be open to legal interpretation as to how it would be applied at the state level.
McDaniel-Miccio, who married her wife in New York in November, is a plaintiff in a lawsuit filed earlier this year in Denver by nine couples seeking to overturn Colorado’s ban on same-sex marriage. That lawsuit was later combined with another, and a decision is pending.
Meanwhile, six same-sex couples filed a lawsuit in federal court Tuesday seeking an injunction stopping the enforcement of Colorado's gay marriage ban.
McDaniel-Miccio, who spoke to The Times from Ireland, where she will be teaching, was barely able to contain the glee in her voice: “The dominoes are falling. All hell is breaking loose."