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February 12, 2014 01:01 PM UTC

AG Candidate Quick Calls Out Suthers on Marriage Equality

  • 11 Comments
  • by: Colorado Pols
John Suthers, Don Quick.
John Suthers, Don Quick.

AP's Ivan Moreno reports via the Fort Collins Coloradoan:

The Democratic candidate for Colorado attorney general says the state’s voter-approved ban on same-sex marriage violates the constitutional rights of gay couples and that the law shouldn’t be defended.

Don Quick made the comments Tuesday morning, putting the issue into the spotlight in the state’s attorney general race months before voters head to the polls. Quick, the former Adams County district attorney and former deputy state attorney general, emphasized that those positions have a responsibility to defend state laws regardless of whether the officeholder agrees with them.

“But in extraordinary circumstances, extraordinary circumstances, when a Colorado law intentionally violates fundamental rights of its citizens, it’s the attorney general’s job to step up and stop that law,” Quick said.

As the Denver Post's Tom McGhee reports, outgoing GOP Attorney General John Suthers has a newly defensive response to the question of defending Colorado's constitutional ban on same-sex marriage, in contrast to much less equivocal justifications in the past:

Suthers' spokeswoman Carolyn Tyler said that her boss has little choice but to defend Colorado's Amendment 43, which defines marriage as a union between one man and one woman. It was approved by voters in 2006.

"The attorney general has an obligation to defend state laws until they are determined to be unconstitutional by the highest court, regardless of whether or not that puts the attorney general on the wrong side of history," Tyler said. [Pols emphasis]

Even an indirect acknowledgement that continue to defend the state's same-sex marriage ban places Suthers "on the wrong side of history" could be seen as a win for equality supporters. In a Washington Post guest opinion earlier this month, Suthers further explains his reasons for continuing to defend Colorado's ban on same-sex marriage–again, with no mention of his longstanding personal opposition to gay marriage:

I fear that refusing to defend unpopular or politically distasteful laws will ultimately weaken the legal and moral authority that attorneys general have earned and depend on. We will become viewed as simply one more player in a political system rather than as legal authorities in a legal system. The courts, the governments we represent and, most important, the people we serve will treat our pronouncements and arguments with skepticism and cynicism.

Quite the principled guy, right? There's just one problem: Suthers doesn't always follow his own rule. As Westword's William Breathes reported last June, Suthers certainly does feel entitled to make judgments on the constitutionality of some Colorado laws, and whether a law is "worth defending" in court:

Despite the attempts of Colorado lawmakers to put marijuana-centered magazines behind the counter at booksellers and convenience stores like pornography, pot publications won't have to be hidden from view.

Colorado Attorney General John Suthers ruled that the provision of Colorado's new recreational marijuana laws regulating how marijuana magazines are sold is unconstitutional and said he won't go to court to defend it… [Pols emphasis]

"No magazine whose primary focus is marijuana or marijuana businesses is required to be sold only in retail marijuana stores or behind the counter in establishments where persons under twenty-one years of age are present, because such a requirement would violate the United States Constitution, the Colorado Constitution, and section 24-4-103(4)(a.5)(IV), C.R.S."

To summarize: Suthers can't answer the question of the constitutionality of Colorado's same-sex marriage ban, even as courts across the nation strike down bans just like it as unconstitutional–but Suthers gets to decide another Colorado law on displaying marijuana magazines is unconstitutional, and opt out of defending it? How is this not a blatant double standard?

Don Quick isn't running against Suthers this year, but you can certainly see what he's getting at.

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11 thoughts on “AG Candidate Quick Calls Out Suthers on Marriage Equality”

  1. Not so. Suthers was very clear about the difference between the marijuana case and gay marriage in the Washington Post op-ed you cited. Bash him all your want for being "on thr wrong side of history," but he's right on legal principle.

    Recently, however, attorneys general in Virginia, Pennsylvania and California have given in to the temptation to abuse the power entrusted to our position by refusing to defend their states’ bans on same-sex marriage in court. Depending on one’s view of the laws in question, such a “litigation veto” may, in the short term, be a terrific thing; an unpopular law is defanged and the attorney general can take credit — indeed, he can be the hero to his political base and keep his political ambitions intact.

    But in the longer term, this practice corrodes our system of checks and balances, public belief in the power of democracy and ultimately the moral and legal authority on which attorneys general must depend.

    To be sure, there will be occasions where no attorney general can in good faith defend a law. There is clear high court precedent that decides some issues. Recently, my office was obliged to admit that the First Amendment prevents us from enforcing a Colorado law requiring marijuana-focused magazines to be hidden from children in stores. This was difficult, as I support efforts to shield children from what I view as the deleterious effects of our new world of state-legalized marijuana. But the binding precedent was clear, on point and unavoidable.

    That’s not yet the case with state laws banning same-sex marriage. While the Supreme Court has invalidated the federal Defense of Marriage Act, which denied federal benefits to gay couples who are legally married in their states, it declined to review the constitutionality of a state ban on gay marriage. In fact, the court declined to rule because the California attorney general refused to appeal a federal district court decision in favor of gay marriage and the justices found that the appellant had no standing to bring the issue to the high court. Attorneys general must play their assigned role in the system to ensure legal controversies are resolved.

  2. Agreeing with moderatus is a dirty job but someone has to do it.  

    Yes, there is a difference between a marijuana publication law that is in direct conflict with the U.S. First Amendment, the Colorado Equivalent to the first amendment and state law and a state constitutional amendment .banning gay marriage that has not been adjudicated before the U.S. Supreme and which, being in the state constitution,    obviously doesn't conflict with the state constitution or state law and can only be overridden by federal law or the federal constitution.

    the marijuahna rule is simple: three strikes and you're out — federal constitution plus state constitution and state law conflict.   A state ban on gay marriage is not adjudicated yet.   Suthers should hold his nose and represent the state as he is sworn to do.

     

     

    1. Wait, there has been a SCOTUS ruling on marijuana magazines? When was that?

      Sorry, Voyageur, can't agree. Suthers is being picky and choosy, and other AGs are in the right to not enforce an unconstitutional position. Gay marriage bans clearly violate the Equal Protection Clause, that's the decision of those AGs. I'm sure Suthers doesn't like marijuana or gay marriage, but this is a false distinction, and he could choose differently if he wanted to.

    2. Well, hell — I guess that makes two of us. 

      DQ's grasping at straws here (. . . it's one of his forte's . . . )!  Can't blame him for wanting desperately to kick start a lackadaisical campaign, I guess . . . 

    3. Not adjudicated, no. But more restrictive bans have just been struck down in two separate cases within our Federal Circuit and the Supreme Court's ruling in Windsor is pretty much writing on the wall.

      The AG's job is to enforce our laws. They have to be respectful of Federal law as well as state law, and that includes the Constitution. I think in this case Quick is in the right to challenge on the gay marriage ban.

  3. Suthers weighing in with an amicus brief in the Utah case goes a step beyond just defending the Colorado Constitution. I understand his position that upholding the Utah law could protect the Colorado provision. However, it is not something he has to do to carry out his legal obligation. It is something he is choosing to do, beyond just defending action against Colorado.

    So it is a political move on Suthers part–not "just doing his job." And when you read the amicus brief, you see it is a social document, not just a legal argument. Suthers' actions are no less political than Quick's.

    1. If Suthers is filing in the appeal of the Utah case, the outcome of that appeal directly affects the Colorado ban – he'd be within his duties as AG trying to defend it IMHO.

      However, I have yet to see a legal basis for the current state of discrimination against LGBT people that would even laughably stand up in a rational court of law. This is IMHO Quick's argument – that there's nothing defensible to defend.

      And the social (not legal) arguments in the amicus brief to me cross that line.

  4. Thank you for mentioning that, gaf. Throwing in his nickle's worth in the Utah case, reveals his position on the marriage question. This is situation harkens back to the Amendment 2 fight and Gail Norton's eagerness to have her office defend the indefensible 

  5. There's a difference between defending state laws and lobbying the courts to take a position on a political issue.  Suthers has signed onto amicus briefs in cases filed by right-wing activists (Prop 8; ACA challenge), which is absolutely not required by any colorable reading of the obligations of the Colorado AG.  The outcome of a case in another state might affect Colorado's gay marriage law, but that does not create any obligation to weigh in on that case.  Suthers signs those briefs because he wants the courts to adopt his political beliefs, not because he is making some high-minded attempt to defend Colorado's laws.

    Scalia said in one of his dissents that the SCt opinions in the gay marriage cases will make state bans on gay marriage untenable.  Several lower court judges have quoted Scalia's comment in their decisions striking state gay marriage bans.  Quick isn't exactly going out on a limb here.  

    So who do you want for your AG?  Do you want the guy who can read Supreme Court and other federal court opinions and figure out what they mean about the validity of a state law, or do you want another guy/gal who will let right-wing ideology drive the state's legal policy and decisions?

  6. The argument that is made by all the groups defending the definition of marriage as between one man and one woman only is always that conceiving, bearing and raising children is the purpose of marriage. If these groups really believe that then they ought to also be pushing for amendments banning women who are past menopause, couples consisting of a man and a woman, one or both of whom are incapable of reproducing, and couples consisting of a a man and woman who don't want to have children from entering into marriages. That would be logically consistent. Since they aren't asking for those types of marriages to be banned, one can only conclude that the whole biological child centered argument is an excuse for wanting to impose their personal religious beliefs on others.

    Voyageur is right but whatever Suthers and the other AGs involved do, their position is doomed. Ultimately all states will be required to honor same sex marriages legally entered into in other states just as they do all other legal marriages formed in other states. In the very near future they will not be allowed to discriminate between legal marriages. The next step… rulings against banning same sex marriage at all, will not be far behind. It's pretty much all over.

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