September 04, 2014 10:18 AM UTC

Suthers not duty-bound to defend CO same-sex marriage ban

• 4 Comments
• by: Jason Salzman

(Promoted by Colorado Pols)

In a long question-and-answer story in Westword, Attorney General John Suthers once again lays out his case that he is duty-bound to defend Colorado’s same-sex marriage ban until the bitter end. (Which isn’t bitter, actually, because everyone expects the U.S. Supreme Court to overturn such bans.)

Sounding all above-the-fray and bipartisany, Suthers tells Westword about his high-minded commitment to defend Colorado’s laws, even when he disagrees with them.

It sounds like maybe a beautiful thing, if it were true. But it’s not.

Left out of the Westword interview (and other media coverage of Suthers’ position) is the fact that under Colorado law, our Attorney General doesn't have to defend laws (and constitutional amendments) that he deems unconstitutional. In fact, he’s supposed to go after those laws.

As former Deputy Attorney General Don Quick, a Democratic candidate for Attorney General, wrote in The Colorado Springs Gazette in July:

Quick: First, the Colorado Supreme Court unanimously ruled in 2003 that it is the attorney general's job to challenge a law when there are concerns about its constitutionality. I remember it well, as I was chief deputy to Attorney General Ken Salazar when the court ruled in our favor. Coffman knows this also, as her office did the same thing last year. The Legislature passed a law restricting the display of marijuana-related magazines, and the Attorney General's Office refused to defend it because it believed it was unconstitutional.

Quick is referring Cynthia Coffman, a Republican who’s running against Quick to replace Suthers. Coffman, who believes marriage is between a man and a woman and works in Suthers’ office, has embraced the Attorney General’s view that he had no choice  but to defend Colorado’s ban on same-sex marriage.

The 2003 Colorado Supreme Court ruling, to which Quick refers, involved the infamous effort by Colorado Republicans, challenged by Salazar at the time, to change Colorado’s congressional districts after they’d been established by court order subsequent to the 2000 Census. The decision delivered by Chief Justice Mullarkey stated that if the Attorney General has “grave doubts” about the constitutionality of a law (in this exact case an election-related law affecting an upcoming election) he or she must, “consistent with his ethical duties and his oath of office,” seek to “resolve those doubts," meaning, in this narrow case, file a lawsuit (consolidated cases 03SA133 and 03SA147).

What’s more, attorneys general in at least six states, decided not to defend their states' same-sex marriage bans. And U.S. Attorney General Eric holder has advised state attorneys general, like Suthers, that they are not obliged to defend state laws they see as discriminatory.

Against this backdrop, Suthers’ high-minded rhetoric about his duty to defend the constitution starts to look dark, even self-serving, especially when you hear he’s running for mayor of Colorado Springs, which is one of the few places where a crusade against gay marriage counts in your favor. That's also essential context for any future stories on Suthers' current defense of Colorado's constitution.

Here’s what Suthers told Westword:

Westword: Colorado law requires the attorney general's office to be responsible to federal constitutional law. How do you navigate loyalties between state and federal law?

Suthers: It's quite simple: If a higher court tells us that our state law is unconstitutional under federal law and that's the final decision, then that's the deal. If the U.S. Supreme Court denies cert [request for judicial review] in the Tenth Circuit decision, [Colorado’s law banning same-sex marriage] is invalid and we accept that. But I think what you're driving at is that some of my colleagues are saying that I've decided that this law's unconstitutional under the federal constitution. I don't think that's my job.

Could you imagine if I selectively say: "You know, I think those gun laws passed by the legislature last year are unconstitutional. I agree with David Kopel [the attorney representing the plaintiffs in that case], so I'm not going to defend those laws." Could you imagine the outrage in your newspaper if I did that? I frankly have a little bit of sympathy with this ma-and-pa baker out in Lakewood, who my office is prosecuting on behalf of the Colorado Civil Rights Commission for not selling a cake to a same-sex couple. I understand why he thinks this is real governmental intrusion on his life. That's the law in Colorado. We passed a public-accommodations law that protects sexual orientation as well as gender and ethnicity and religion. It's my job to defend that statute, despite the fact that I'm getting tons and tons of criticism from certain circles about that. If I saw my role as something other than being the best lawyer and started deciding and picking and choosing because I don't think this law's right, I think this law's unfair, despite the fact that the court hasn't told me that this law is unconstitutional, and I decided not to defend that, that is a very slippery slope.