A press release this afternoon from the Colorado Attorney General’s office announces “regretful” legal action to stop Boulder County Clerk Hillary Hall from issuing marriage licenses to same-sex couples:
This action comes after attempts over the past several days to resolve this issue directly with the Boulder County Attorney and Clerk and Recorder were rejected. Boulder District Court Judge Andrew Hartman has set the matter for expedited briefing and a hearing on July 9, 2014 at 9:00 a.m.
“Regretfully, our office was forced to take action against Boulder County Clerk Hillary Hall due to her refusal to follow state law,” said Attorney General John Suthers. “While we would prefer not to sue a government official, Ms. Hall’s actions are creating a legal limbo for both the state and the couples whose relationships she wants to champion. That limbo could have tangible and unintended consequences.”
Today’s action follows a filing yesterday in federal court in which the Attorney General’s Office and the Governor’s Office asked a judge to suspend trial court litigation until the federal appeals court or the U.S. Supreme Court resolves the issue. Contrary to some news coverage and comments by public officials, yesterday’s federal filing is wholly consistent with the attorney general’s obligation to defend the constitutionality of Colorado’s marriage amendment. That position has not changed.
The current legal landscape is that Colorado’s marriage laws are still binding and in effect. Upon the decision of the 10th Circuit in the Kitchen case out of Utah becoming final and going into effect that position could change. The outcome of that case, most likely in the U.S. Supreme Court, will determine the fate of Colorado’s laws. For that reason, the Attorney General’s Office is attempting to suspend all the divisive, costly and unnecessary trial court litigation in Colorado while the appellate case reaches its conclusion.
Yesterday, as this statement explains, Attorney General John Suthers filed a joint motion with Gov. John Hickenlooper to halt legal action, including cases filed in Colorado to overturn our state’s constitutional same-sex marriage ban, and request a ruling on Colorado’s law specifically from the 10th Circuit Court of Appeals. That means Suthers’ office would no longer be required to argue its fairly embarrassing case in favor of banning same-sex marriage, which is increasingly a lost cause, but would also put a more legally specific halt to Boulder County’s issuance of same-sex marriage licenses–since the court would like stay its ruling for Colorado in the same manner as it did for Utah. That distinction, as those following this story know, is what Clerk Hillary Hall is relying on in continuing to issue these licenses.
We’re not lawyers, but as it’s been explained to us, as well as Democratic county clerks in Denver and Pueblo, the legal judgment employed by Boulder to issue these licenses is questionable. From the point of view of gays and lesbians who are fighting the end stages of a long struggle for marriage equality, though, what incentive is there to not push the boundaries? Same-sex marriage bans are falling across the nation as courts rule them a violation of basic constitutional protections. With a year, two at most, this will all be over, and Suthers will face the unkind judgment of history. On the other side, Clerk Hall, newly married Sen. Jessie Ulibarri, and everyone else who joined in this act of civil disobedience will be the heroes.
For the sake of an orderly transition, the courts may slow things up a little. But they can’t stop it.