Court rulings declaring a law to be unconstitutional skip the Colorado Court of Appeals in the appellate process and advance directly to the Colorado Supreme Court. Colorado Attorney General Suthers intends to appeal the ruling, despite the fact that Governor Hickenlooper, in a separate brief, expressed doubts about the constitutionality of Colorado's gay marriage ban. The ban was enacted by the Colorado General Assembly in the year 2000, and was made a part of Colorado's state constitution in 2006.
The core conclusion of the ruling is that the Colorado's Attorney General's argument that there is a compelling governmental interest in encouraging procreation and providing parenting for children by their biological parents was an after the fact pretext that was not important in the passage of either the law, or in the state constitutional amendment. He also noted that Colorado's marriage laws are not closely tailored to this purportedly compelling governmental interest, allowing marriage in many cases where the couple cannot or does not wish to have children (and although the Court does not really address it, doing little to discourage extramarital child bearing).
Instead, the ruling concluded that the principle reason for the ban was to uphold tradition, which standing alone, which precedent clearly holds is a legally insufficient reason for denying someone a fundamental right to marry that has been recognized in a broad variety of other contexts, and a fundamental right for people who are married (perhaps elsewhere) to remain married.
The Court also concluded that the availability of civil unions in Colorado, which provide marriage-like rights to couples entering into them under state law, are not an adequate substitute for marriage, because they do not confer upon couples the rights of married couples under federal law. Thus, this is a second class institution that is not an adequate substitute for marriage.
Following the lead of many other judges in similar cases, the ruling is stayed while appeals are pending.
Unless the U.S. Supreme Court overruled the 10th Circuit and/or other state and federal court rulings holding that gay marriage bans are not unconstitutional, four factors will probably lead the Colorado Supreme Court to uphold this ruling on appeal:
* The U.S. Supreme Court ruling in Windsor striking down the federal component of the Defense of Marriage Act, Lawrence, holding that criminalizing consensual sodomy involving consenting adults is unconstitutional, and Romer holding that a state initiative in Colorado prohibiting local governments from passing gay friendly laws was unconstitutional, have created a body of precedent whose logical conclusion is to hold that gay marriage bans by states are unconstitutional.
* There have been a large unbroken string of rulings holding that gay marriage bans are unconstitutional across the nation.
* The ideological makeup of the Colorado Supreme Court (probably best characterized as having 4 liberals, 1 moderate, and 2 conservatives), is liberal leaning.
* The United States Court of Appeals for the 10th Circuit has struck down a gay marriage ban in Utah and will probably strike down a similar ban in Oklahoma where the judges on the Court of Appeals panel are the same and the facts are essentially identical, before the Colorado Supreme Court has a chance to rule on the issue.
There is also a question of timing. The incumbent Colorado Attorney General, a Republican, is term limited. His successor will be elected in four months and will take office in six months.
If that successor in the open race for Colorado Attorney General in this November's general election is Democrat Don Quick, he will is likely to reverse the course taken by our incumbent Attorney General and abandon an any appeal of this ruling, or urge the Colorado Supreme Court to affirm the ruling if someone else is allowed to argue in favor of upholding the law on appeal.
In contrast, if Republican Attorney General nominee Cynthia Coffman wins in November, she will likely stay the course set by her predecessor.
UPDATE July 10, 2014: The Attorney General's effort to enjoin the Boulder Clerk's issuance of same sex marriage licences has failed on the grounds that repairable injury was not shown, despite the fact that it violates current state law since relevant court ruling have been stayed in this ruling. This ruling also recounts all of the cases holding same sex marriage bans unconstitutional in an unbroken streak in a footnote. The State of Utah has forgone en banc review in the 10th Circuit and is instead directly seeking U.S. Supreme Court review. Denver's Clerk and Recorder has also begun to issue same sex marriage licenses.
UPDATE July 14, 2014: The Pueblo County Clerk has followed the lead of Denver and Boulder on this issue. Governor Hickenlooper has asked the Attorney General to drop the appeals (although he doesn't have the authority to order him to do so). Governor Hickenlooper said:
I have urged the attorney general not to appeal Judge Crabtree’s ruling. If he feels he needs to continue to defend this discriminatory law, I urge him to seek final resolution at the Colorado Supreme Court.Cynthia Coffman, the Chief Deputy AG under Colorado Attorney General Suthers and Republican nominee for the post, favors continued appeals; Don Quick, the Democratic candidate for the Colorado Attorney General's office, would drop appeals of the District Court ruling.
UPDATE July 15, 2014: The 10th Circuit stay of its Utah gay marriage decision will expire at 8 a.m. on July 21, 2014 unless the U.S. Supreme Court intervenes, which is not automatic. According to the Desert News (a leading Salt Lake City newspaper):
The state's petition for a stay would be directed to Justice Sonia Sotomayor, who oversees the six states that make up the 10th Circuit. Sotomayor put the brakes on same-sex marriage in Utah last December with an order that appeared to have support of all nine justices because there were no dissenting votes. But that doesn't necessarily mean the court would intervene in the marriage recognition case, Evans v. Utah.Colorado Attorney General Suthers, meanwhile, has asked the Colorado Supreme Court to order the Boulder County Clerk and Record to stop issuing same sex marriage licenses until an appeal of Judge Crabtree's ruling is resolved, something that a District Court Judge in Boulder County refused to do.
This will be the first time that the Colorado Supreme Court will have had to address the gay marriage issue, although the issue presented directly will be a procedural one. Note that any decision of the Colorado Supreme Court, affirming or reversing Judge Crabtree's ruling must necessarily be based on the United States Constitution, because the gay marriage ban is part of the constitution of the State of Colorado.
UPDATE July 18, 2014: This afternoon, U.S. Supreme Court extended the stay of the Utah ruling which the 10th Circuit would have let expire on Monday morning. Also this afternoon, the Colorado Supreme Court ordered clerks in Denver and Adams County not to issue same sex marriage licenses pending any appeal of the Adams County District Court ruling striking down Colorado's gay marriage (the decisions is not directly applicable to the clerks in Boulder and Pueblo counties who are also issuing same sex marriage licenses at this time). Finally, unsurprisingly, the 10th Circuit panel that found a gay marriage ban unconstitutional in Utah came to the same conclusion by the same 2-1 margin today in a case from Oklahoma.
Recall that Utah's attorney general has already announced that the 10th Circuit ruling on gay marriage will be appealed directly to the U.S. Supreme Court without seeking en banc review in the 10th Circuit.
This afternoon's stays of lower court decisions pending appeals in the U.S. Supreme Court and Colorado Supreme Court are arguably merely questions of preserving the status quo pending appeal. But, the U.S. Supreme Court stay does suggest that the U.S. Supreme Court is likely to take up the issue.
These 10th Circuit rulings and the apparent pending U.S. Supreme Court review of one or more of the 10th Circuit decisions on gay marriage, is also pertinent to the Colorado Supreme Court. Because Colorado's state constitution prohibits gay marriage, any judicial action ending a gay marriage ban in Colorado must rely solely on federal law with regard to which the U.S. Supreme Court and 10th Circuit's rulings are precedents on these issues of federal law that are applicable to Colorado.
In contrast, in states where a gay marriage ban is not part of the state constitution, a state court ruling that a ban is unconstitutional under a state constitutional provision, even one identical in language to the federal constitution, cannot be reversed by the U.S. Supreme Court.
Gay marriage supporters want as much of a consensus as possible in the lower courts that gay marriage bans are unconstitutional before the U.S. Supreme Court weighs in on the matter. Right now, there is not a genuine split of authority on the issue. The U.S. Supreme Court is generally inclined not to reverse unanimous holdings of large numbers of lower courts on the same issue, even though it has the authority to do so and sometimes exercises that authority.
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