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Posts Tagged ‘Colorado same-sex marriage’

Iowa Appeals Court Affirms Ruling Against Lesbian’s Brother Attempting to Invalidate Bequest to Her Surviving Partner

Posted on: February 26th, 2018 by Art Leonard No Comments


David Lance Wilson struck out in his attempt to get the Iowa courts to hold that a provision in his late sister’s will leaving her entire estate to her long-time partner, Susan Woodall Fisher, was automatically revoked when the women allegedly split up nine years before the sister’s death. Affirming a summary judgment ruling by Crawford County District Judge Patrick H. Tott, the Iowa Court of Appeals ruled on February 7 in Estate of Wilson; Wilson v. Fisher, 2018 WL 739248, 2018 Iowa App. LEXIS 155, that Iowa’s Probate Code, Sec. 633.271(1), would only revoke such a bequest if a marriage was dissolved in a court action, but there is no court record of any such proceeding.


Although the court’s ruling was an unexceptionable interpretation of the statute on its face, the factual setting of the case is a bit odd, to say the least. In order to attempt to invoke the revocation statute, David Wilson had to allege in his petition for declaratory judgment that the women had been legally married, a contention that is demonstrably untrue, but which was accepted as an “undisputed fact” for purposes of this case in the responsive pleading filed by the co-executors of the estate, Fisher and John C. Werden, and thus by the court as well, in its opinion by Judge Christopher L. McDonald.


According to Judge McDonald’s summary of the factual allegations, Leslie Wilson and Susan Fisher, same-sex partners, were married in Colorado “sometime before November 6, 1991,” on which date Leslie “executed her last will and testament. Under the will, Susan was to receive Leslie’s entire estate.  Leslie’s brother, David, was listed as the successor beneficiary.”  After Leslie passed away in March 2014, Susan filed an application in the Crawford County District Court for probate of a “foreign probated will.”  District Judge Tott admitted the will into probate, and appointed Fisher and John C. Werden as “personal representatives” of the Iowa estate.  “Susan subsequently filed an election to take under the will as Leslie’s surviving spouse.  In June 2015, the personal representatives executed and recorded a court officer deed conveying an undivided one-half interest in real property owned by Leslie at the time of her death to Susan.”


David showed up six months later, filing his petition in the District Court alleging that Susan and Leslie had “dissolved” their marriage and that they “never cohabitated again and never remarried.” According to David, this dissolution, which involved terminating their relationship and dividing their assets, occurred in 2005.  He was relying on Code Section 633.271(1), titled “Effect of divorce or dissolution,” which states, “If after making a will the testator is divorced or the testator’s marriage is dissolved, all provisions in the will in favor of the testator’s spouse … are revoked by the divorce or dissolution of marriage, unless the will provides otherwise.”  Of course, this provision only applies if there was a marriage to begin with.


In a footnote, the court acknowledged that “same-sex marriages were not recognized in Colorado until October 2014. However, the parties stipulated in their pleadings that ‘Susan … and Leslie … were married in the state of Colorado’ prior to that time.  We need not address the issue of whether the parties were legally married in Colorado because it is immaterial to our resolution of the case.  If they were not legally married under Colorado law, then Iowa Code section 633.271(1)(2016) does not apply, and we would affirm.  Under the analysis used in this opinion, which assumes without deciding they were legally married, we also affirm.”


David sought to persuade the court that because the provision in question states “divorce or dissolution of marriage,” the words “divorce” and “dissolution” must refer to two different things. A “divorce” is obviously a legal proceeding terminating a marriage.  David argued that “dissolution” must, therefore, refer to an informal voluntary termination of a marriage by the parties without involving the courts.  But the court of appeals panel unanimously rejected this argument.


Judge McDonald referred to Chapter 598 of the Iowa code which “expressly defines a ‘dissolution of marriage’ as ‘a termination of the marriage relationship,’” and more specifically to Section 598.1(2), in which, he asserted, “The legislature has expressly directed that the term ‘dissolution of a marriage’ ‘shall be synonymous with the term ‘divorce.’” Thus, the court concluded, “the terms ‘divorced’ and ‘dissolved’ as used in Section 633.271(1) carry the same meaning – the statute uses the terms in the context of marital relations, and the legislature has expressly defined those terms in the context of marital relations to be synonymous.  In Iowa, a divorce or dissolution of a marriage may only be decreed by a court upon evidence ‘that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonably likelihood that the marriage can be preserved.’”


As to the contention that parties can voluntarily “dissolve” a marriage without involving the courts, McDonald quoted a 1966 Iowa Supreme Court ruling, stating “We know of no such thing as a common law divorce.” McDonald found similar authority under Colorado law.


“It is undisputed that no decree has ever been entered dissolving Susan and Leslie’s marriage. The facts which David argues are in dispute are legally immaterial to the issue of whether Susan and Leslie’s marriage was dissolved.”  Thus, the court affirmed Judge Tott’s ruling granting summary judgment in favor of the Estate and co-executors, denying David’s request for a declaratory judgment that the bequest to Susan was automatically revoked.


The court also denied David’s request to delay ruling on the co-executors’ motion for summary judgment until he could obtain discovery. Such discovery would be irrelevant to disposition of this motion, because David’s attempt to use the statute to get the bequest to Susan “revoked” must be rejected regardless of which version of the “facts” one accepts, so long as there is no record of any court decree “dissolving” the Fisher-Wilson “marriage.”  And, of course, even if David is correct in asserting that the women split up and divided their assets in 2005, Leslie’s failure to revoke her will would leave the bequest in place in the absence of a valid marriage and a legal divorce.


Aaron W. Ahrendsen of Eich, Werden & Steger, P.C., Carroll, Iowa, represents the co-executors. Bradley J. Nelson of Norelius Nelson Law Firm, Denison, Iowa, represents David.

Florida Federal Court Rules for Marriage Equality; 10th Circuit Stays Colorado Ruling; Virginia Clerk Petitions for Certiorari

Posted on: August 24th, 2014 by Art Leonard No Comments

There were several developments on the marriage equality front late last week.  On August 21, U.S. District Judge Robert L. Hinkle, of the Northern District of Florida, granted a preliminary injunction to the plaintiffs in Brenner v. Scott, 2014 WL 4113100, a consolidation of two marriage equality cases, but stayed his ruling pending the state’s appeal to the U.S. Court of Appeals for the 11th Circuit.  On the same day, two judges of the U.S. Court of Appeals for the 10th Circuit granted a motion by Colorado Attorney General John Suthers to stay a marriage equality Order by U.S. District Judge Raymond P. Moore, who had ruled on July 23 that Colorado’s same-sex marriage ban violates the 14th Amendment.  Finally, on August 22, Norfolk County, Virginia, Clerk of Court George E. Schaefer, III, one of the defendants in the Virginia marriage equality case, filed a Petition for Certiorari with the U.S. Supreme Court, seeking review of the 4th Circuit’s July 28 decision finding Virginia’s same-sex marriage ban unconstitutional.

Judge Hinkle’s ruling on the merits was relatively brief in light of the growing list of prior federal marriage equality rulings that has accumulated since the Utah decision from last December 20 by District Judge Robert Shelby.  In his introductory section, after briefly summarizing the background of the case, Judge Hinkle wrote, “Indeed, except for details about these specific parties, this opinion could end at this point, merely by citing with approval the circuit decisions striking down state bans on same-sex marriage,” citing the 10th Circuit’s Utah and Oklahoma cases and the 4th Circuit’s Virginia case.  But since Hinkle was the first district court to rule on a marriage equality claim within the 11th Circuit (which includes Alabama and Georgia as well as Florida), he clearly felt obliged to provide an explanation for his ruling.

He explained the obligation of federal courts to strike down unconstitutional state laws “when necessary to the decision in a case or controversy properly before the court, so the suggestion that this is just a federalism case — that the state’s laws are beyond review in federal court – is a nonstarter.”  He also noted that because 20 out of the 22 plaintiffs in the cases before him were seeking recognition of marriages performed in other states, “the defendants’ invocation of Florida’s prerogative as a state to set the rules that govern marriage loses some of its force.”  He also found that the “general framework” that applies to the plaintiffs’ rights to due process and equal protection “is well settled.”

Relying on the Virginia interracial marriage decision from 1967, Loving v. Virginia, and subsequent rulings by the Supreme Court, he agreed with the 10th and 4th Circuits that this case involves a fundamental rights claim, requiring strict scrutiny of the state’s purported justifications for denying marriage rights to same-sex couples.  Judge Hinkle provided a very clearly written argument as to why this is a fundamental rights case.

In discussing the application of strict scrutiny, he wrote, “A state may override a fundamental right through measures that are narrowly tailored to serve a compelling state interest.  A variety of justifications for banning same-sex marriages have been proffered by these defendants and in many other cases that have plowed this ground since Windsor [the Supreme Court’s 2013 DOMA decision].  The proffered justifications have all been uniformly found insufficient.  Indeed, the states’ asserted interest would fail even intermediate scrutiny, and many courts have said they would fail rational-basis review as well.  On these issues the circuit decisions in Bostic, Bishop, and Kitchen are particularly persuasive.  All that has been said there is not repeated here.”

However, Judge Hinkle was moved to address the state’s procreation argument.  “The defendants say the critical feature of marriage is the capacity to procreate.  Same-sex couples, like opposite-sex couples and single individuals, can adopt, but same-sex couples cannot procreate.  Neither can many opposite-sex couples.  And many opposite-sex couples do not wish to procreate.  Florida has never conditioned marriage on the desire or capacity to procreate.  Thus individuals who are medically unable to procreate can marry in Florida.  If married elsewhere, their marriages are recognized in Florida. The same is true of individuals who are beyond child-bearing age.  And individuals who have the capacity to procreate when married but who voluntarily or involuntarily become medically unable to do so, are allowed to remain married.  In short, the notion that procreation is an essential element of a Florida marriage blinks reality.”

“Indeed,” Hinkle continued, “defending the ban on same-sex marriage on the ground that capacity to procreate is the essence of marriage is the kind of position that, in another context, might support a finding of pretext. It is the kind of argument that, in another context, might be ‘accompanied by a suspicion of mendacity.’  The undeniable truth is that the Florida ban on same-sex marriages stems entirely, or almost entirely, from moral disapproval of the practice.  Properly analyzed, the ban must stand or fall on the proposition that the state can enforce that moral disapproval without violating the Fourteenth Amendment.”  And who is Judge Hinkle’s source for this assertion?  Our old unintended ally in the marriage equality struggle, Supreme Court Justice Antonin Scalia.  Judge Hinkle quotes his statements to this effect from Scalia’s dissent in Lawrence v. Texas, the 2003 sodomy law decision.

“In short,” wrote Hinkle, “we do not write on a clean slate.  Effectively stripped of the moral-disapproval argument by binding Supreme Court precedent, the defendants must fall back on make-weight arguments that do not withstand analysis.  Florida’s same-sex marriage provisions violate the Due Process and Equal Protection Clauses.”  The judge went on quickly to dispose of the state’s remaining argument that his ruling was precluded by the Supreme Court’s 1972 dismissal of a marriage equality appeal from Minnesota in Baker v. Nelson.  “Every court that has considered the issue has concluded that the intervening doctrinal developments — as set out in Lawrence, Romer, and Windsor – have sapped Baker’s precedential force,” he wrote.

He also rejected the argument that he was bound by an 11th Circuit ruling issued shortly after Lawrence, in which that court resisted a constitutional challenge to Florida’s statutory ban on gay people adopting children, pointing out that it was a rational basis case, and that the state courts had subsequently invalidated the statute under the state constitution.  According to Judge Hinkle, that 11th Circuit ruling makes it the “law of the circuit” that sexual orientation equal protection claims do not get heightened scrutiny, but since he was treating this case as a fundamental rights claim, that was not relevant to his decision.

Judge Hinkle concluded that plaintiffs were entitled to a preliminary injunction barring Florida from enforcing its ban.  However, he found that there is a “substantial public interest in implementing this decision just once – in not having, as some states have had, a decision that is on-again, off-again.”  Thus, although he might be inclined to deny a stay pending appeal, the examples from the past year counseled against that route.  “There is a substantial public interest in stable marriage laws,” he wrote.  “A stay thus should be entered for long enough to provide reasonable assurance that the opportunity for same-sex marriages in Florida, once opened, will not again close.  The stay will remain in effect until stays have been lifted in Bostic, Bishop, and Kitchen [the 10th and 4th Circuit cases that have been stayed pending Supreme Court appeals], and for an additional 90 days to allow the defendants to seek a longer stay from this court or a stay from the 11th Circuit or the Supreme Court.”

The judge did make one exception, however, for a plaintiff who was seeking to have a properly completed death certificate for her deceased spouse.  “There is little if any public interest on the other side of the scale,” wrote Hinkle.  “There is no good reason to further deny Ms. Goldberg the simple human dignity of being listed on her spouse’s death certificate.  Indeed, the state’s refusal to let that happen is a poignant illustration of the controversy that brings us here.”

In the course of his ruling, Hinkle dismissed as defendants the governor and attorney general, finding that other state officials who were responsible for administering the relevant laws directly were the most suitable defendants.  He directed that Florida’s Surgeon General “must issue a corrected death certificate for Carol Goldwasser showing that at the time of her death she was married to Arlene Goldberg,” and set a deadline of the later of September 22, 2014 or 14 days after all information is provided that would normally be necessary to complete a death certificate.

Florida Attorney General Pam Bondi reacted to the decision by reaffirming her commitment to defend the Florida marriage ban.  Appeals from four state court rulings are already pending in the Florida court of appeal, and Bondi has argued that these cases should be put “on hold” as other appellate cases are going forward to the Supreme Court.  Presumably she will notice an appeal of Judge Hinkle’s decision with the 11th Circuit, but she might ask the Circuit to delay scheduling consideration of the case until the Supreme Court acts on the petitions from Utah, Virginia, and one expected to be filed from Oklahoma.  However, the plaintiffs would be expected to strongly oppose any such request, arguing that any delay in vindicating their constitutional rights would impose irreparable injuries on the plaintiffs.

Judge Hinkle was nominated to the federal bench by President Bill Clinton in 1996.  The two cases the judge was deciding were brought by private attorneys and the ACLU of Florida.

The 10th Circuit’s decision to stay the Colorado ruling was fully expected, in light of that court’s decision to stay its own Utah and Oklahoma rulings while the defendants in those cases petitioned the Supreme Court for review.  The brief Order from the court cited those prior actions and said that this stay was being issued “in the interests of consistency,” noting as well that just the day before the Supreme Court had issued a stay in the 4th Circuit’s Virginia case.

In that Virginia case, George Schaefer’s petition for Supreme Court review sounded very much like the petition filed earlier by the state of Utah in seeking review of the 10th Circuit’s marriage equality decision.  Schaefer argued that this is at heart a federalism case — who decides whether same-sex couples can marry, federal courts or the Virginia legislature and electorate? — and, echoing Chief Justice John Roberts’ dissent in the Windsor case, that the 4th Circuit’s disposition of the case was inconsistent with Windsor.  He also argued that the 4th Circuit had not properly identified the right at issue, thus mistakenly holding that plaintiffs were not seeking the recognition of a new constitutional right, but rather the existing right to marry.  Perhaps the most salient part of Schaefer’s petition was his argument about why the Court should grant his petition rather than the one filed a few weeks ago by Virginia Attorney General Mark Herring.  Herring, who has become a marriage equality advocate and who directed that the state “change sides” in this lawsuit, filed his petition for review even though he agreed with the 4th Circuit’s ruling, pointing out that the state would continue to enforce the marriage ban until instructed not to do so in a definitive ruling and that he wanted to move the case forward expeditiously to the Supreme Court.  Schaefer point out that as a consistent, vigorous defender of the ban, he was the better party to appeal the 4th Circuit’s ruling to the Court.  He also pointed out that this would not preclude Herring from participating as an amicus on the side of the plaintiffs.

Schaefer hired S. Kyle Duncan of Washington D.C. and two lawyers from Chesapeake, Virginia, to represent him on the Supreme Court appeal.  The plaintiffs are represented by lawyers from the ACLU and Lambda Legal together with pro bono attorneys from private firms in the Harris case (Virginia class action) and Ted Olson and David Boies for the American Foundation for Equal Rights in the Bostic (individual plaintiffs) case.  If the state of Virginia gets to argue in the Supreme Court, it would be represented by Solicitor General Stuart Raphael, who signed Herring’s petition to the Court.

New Developments in Colorado on Same-Sex Marriage

Posted on: July 24th, 2014 by Art Leonard No Comments

Two trial judges in Colorado advanced the cause of same-sex marriage on July 23, as U.S. District Judge Raymond P. Moore in Denver issued an Order in Burns v. Hickenlooper, No. 14-cv-01817-RM-KLM, finding, in accord with recent 10th Circuit precedents, that Colorado’s ban on same-sex marriage violates the 14th Amendment, and Boulder County District Judge Andrew Hartman issued an Order in State of Colorado v. Hillary Hall, No. 2014CV30833, denying the state’s motion to order Boulder County Clerk Hillary Hall to stop issuing marriage licenses to same-sex couples.

The outcome of Judge Moore’s ruling on the merits of the plaintiffs’ motion for a preliminary injunction was foreordained, of course, by the 10th Circuit’s recent decisions holding similar marriage bans unconstitutional in Utah and Oklahoma.  The only suspense surrounding his decision concerned whether he would grant the state’s request for a stay until final resolution of the Utah case, Kitchen v. Herbert, which the state of Utah is appealing to the Supreme Court.  Moore denied the state’s motion, instead ordering a temporary stay that expires on August 25, to give the state time to seek relief from the 10th Circuit or the Supreme Court.  Moore’s preliminary injunction, if it goes into effect, would order the state not to enforce its marriage-ban, either respecting the right to marry or the right to recognition of out-of-state marriages.

Boulder County Clerk Hall had begun issuing marriage licenses to same-sex couples shortly after the 10th Circuit ruled last month that the Utah marriage ban was unconstitutional.  Since Colorado is in the 10th Circuit, she reasoned, the court’s ruling was binding there as well.  Although the 10th Circuit had stayed its order to give the state of Utah time to seek rehearing en banc at the 10th Circuit or to petition the Supreme Court for review, Hall, after consulting Boulder County legal officials, concluded that she could go ahead and ignore Colorado’s unconstitutional ban.  Judge Hartman had denied a request by Colorado Attorney General John W. Suthers for a preliminary injunction against Hall on July 10, the day after another Colorado trial judge, Scott Crabtree, issued a ruling in Brinkman v. Hickenlooper  finding the Colorado ban unconstitutional in a case against the Adams County clerk.  Crabtree’s decision led clerks in Denver and Pueblo counties to join Hall in issuing marriage licenses, even though Crabtree stayed his ruling with respect to the Adams County clerk.  The Colorado Supreme Court subsequently granted Suthers’ request to order the clerks in Adams and Denver Counties not to issue licenses, and a subsequent letter by Suthers threatening suit persuaded the Pueblo clerk to cease issuing them with an expression of reluctance.  That left Hall the only clerk still issuing licenses.

These and other developments persuaded Judge Hartman that, on balance, the state was not entitled to an order stopping Hall.  He noted Crabtree’s July 9 ruling, the 10th Circuit’s July 18 ruling that Oklahoma’s marriage ban was unconstitutional, the July 17 ruling from Monroe County, Florida, by a circuit court judge finding Florida’s ban unconstitutional, and the recent actions by Supreme Court Justice Samuel Alito, no supporter of same-sex marriage to judge by his dissenting opinion in U.S. v. Windsor, rejecting an attempt by a Pennsylvania clerk to stop marriage equality in that state while she tried to intervene to appeal a federal court decision there, noting as well that Alito had cited the Supreme Court’s prior action rejecting a stay of the Oregon marriage decision.  Had he known of Judge Moore’s decision, which was issued several hours later, he would undoubtedly have cited that as further evidence that the state’s case lacked merit.  He rejected Suthers’ argument that the Colorado Supreme Court’s order to the Adams and Denver county clerks was binding on his court in this case, observing that the Supreme Court had phrased its Order “in light of the stay entered by the Trial Court” in the Adams County case, and pointed out that he had previously denied the state’s demand for a preliminary injunction against Hall, so there was no injunction in this case to stay.

Hartman returned to the four-factor test used by Colorado courts to evaluate requests for injunctive relief, and found, as he had in his prior ruling, that each factor favored allowing Hall to continue issuing licenses: The state is unlikely to win on the merits of its defense of the marriage ban, especially in light of the recent 10th Circuit rulings; the state “has offered no additional support since this Court’s ruling two weeks ago that the same sex marriage licenses issued in Boulder County (or Denver and Pueblo Counties for that matter) had caused any harm to the State whatsoever, let alone irreparable harm”; an injunction against Hall would inflict the deprivation of constitutional rights on same-sex couples seeking to marry; and the public interest would not be advanced by denying the enjoyment of “fundamental” constitutional rights.  As to Suthers’ argument that “chaos” would ensue in the absence of an injunction, Hartman commented, “The State has simply offered no evidence of any confusion or disorder resulting from same sex couples obtaining marriage licenses in Boulder County.”

Suthers will appeal this, of course, despite Governor John Hickenlooper’s plea that he desist.  Hickenlooper is a named defendant in the pending Colorado marriage cases, although he has made clear that he supports same-sex marriage and is not interested in pursuing an appeal.  However, as the state’s chief legal officer, Suthers is autonomous in deciding whether to appeal these rulings, and has indicating his eagerness to do so.

The federal case was in a curious posture, as Suthers and the Denver county clerk had joined with Hickenlooper in asking Judge Moore to issue a preliminary injunction against enforcement of the marriage ban.  Suthers’ request was for strategic reasons: he wanted to get to the 10th Circuit to seek a stay, and the prerequisite for that was getting Moore to issue his injunction.  But, of course, Suthers had to request a stay from Moore before he could seek one from the 10th Circuit, so he did so in the course of litigating over the preliminary injunction motion.  Judge Moore devoted most of his opinion to explain why he would not stay the action pending final resolution as Suthers had requested.

Suthers had actually requested Moore to stay the entire proceeding, not just his preliminary injunction order.  Suthers was relying on the U.S. Supreme Court’s stay of the Utah marriage decision as his trump card, arguing that this was a signal to all lower courts that they must stay their marriage equality rulings until the Supreme Court was ready to resolve the matter at the national level.  And, of course, almost all lower courts have accepted this signal and stayed their decisions, apart from a few outliers that left it to appellate courts to grant stays.  But Moore was not ready to stay his preliminary injunction based on an unexplained Supreme Court order in another case, despite the July 18 Supreme Court stay issued in Herbert v. Evans, in which the trial court had ordered Utah to recognize same-sex marriages performed prior to the January 6 stay in Kitchen v. Herbert.

“There is at least one aspect of this case which differs from other same-sex marriage cases being litigated elsewhere in the federal system which has not been emphasized by the parties,” he wrote.  “Here, the applicable appellate court [the 10th Circuit] has already spoken — more than once.  Thus, it is conceivable that any perceived ‘directive’ from the Supreme Court to let appellate courts consider this issue does not apply here.  The Court has given strong consider to this difference.  The proverbial wild card in the analysis is the recent stay entered by the Supreme Court in Herbert v. Evans.”  However, he continued, “making extraction of the meaning of the stay in Evans more difficult, Evans is a ‘companion’ case to Kitchen, both addressing the application of Utah’s same-sex marriage laws.”

“Based on the most recent stay,” he wrote, “it appears to the Court that it may well be that a message is being sent by the Supreme Court.  But this Court is not some modern day haruspex skilled in the art of divination.  This Court cannot — and, more importantly, it will not — tell the people of Colorado that access to this or any other fundamental right will be delayed because it ‘thinks’ or ‘perceives’ the subtle — or not so subtle — content of a message not directed to this case.  The rule of law demands more.”

What the rule of law demands, according to Moore, is the court’s faithful application of the four-factor test set out in the Federal Rules of Civil Procedure and the precedents of the 10th Circuit.  And, he concluded, in harmony with Judge Hartman, that the state was not entitled to a stay order under that test.  “The Court recognizes that the Tenth Circuit or the Supreme Court may choose to issue a stay in this matter.  And this Court will not foreclose Defendants from having a fair opportunity to seek such a stay.  Accordingly, as it pertains to the preliminary injunction, this Court will temporarily stay the preliminary injunction order until 8:00 a.m. on August 25, 2014, to permit Defendants time to seek a stay of the injunction from a higher court.”

At the same time, Moore granted Suthers’ request that the remainder of this case at the trial level be put “on hold” rather than proceeding to a final ruling on the merits.  “Kitchen will ultimately decide this matter — by the denial of certiorari and issuance of the mandate from the Tenth Circuit or by Supreme Court ruling,” he observed.  “Indeed, Defendant Attorney General conceded at the July 22, 2014 hearing that if the Kitchen decision is upheld or becomes final, the Challenged Laws are unconstitutional.  And a final merits determination here based on Kitchen will only trail Kitchen in the appellate courts. Little would thus be served by requiring the parties to incur the costs and expenses of litigating to final proceedings in this case while trailing Kitchen.”  He rejected Suthers’ suggestion that he defer to whatever the Colorado courts decide in Suthers’ appeal of Judge Crabtree’s ruling to the Colorado Supreme Court, stating, “This Court declines to abstain from deciding, and thus defer to the state, matters of federal constitutional law.”

Thus, Judge Moore put the ball back in Attorney General Suthers’ court, and Suthers immediately announced that he would seek a stay pending final disposition from the 10th Circuit or, if necessary, the Supreme Court.  Meanwhile, same-sex couples who wish to marry in Colorado can still do so in Boulder County while Suthers appeals Judge Hartman’s ruling to the Colorado Supreme Court.

Judge Hartman was appointed to the Colorado District Court in 2013 by Governor Hickenlooper.   Judge Moore  was appointed to the U.S. District Court for Colorado in 2013 by President Barack Obama.

Plaintiffs in the federal case are represented by the Colorado law firm of Kilmer, Lane & Newman, LLP.

Colorado Trial Court Rules for Marriage Equality; Another Colorado Trial Court Refuses to Restrain Boulder Clerk

Posted on: July 10th, 2014 by Art Leonard No Comments

Adams County District Court Judge C. Scott Crabtree ruled on July 9, in Brinkman v. Long, 2014 WL 3408024,  that Colorado’s ban on same-sex marriage violates the 14th Amendment.  However, Judge Crabtree stayed his ruling pending appeal, and did not issue an injunction.  The next day, July 10, Boulder County District Judge Andrew Hartman rejected an attempt by Attorney General John Suthers to get the court to stop Boulder County Clerk Hillary Hall from issuing more marriage licenses to same-sex couples.

Crabtree was ruling on consolidated cases from Adams and Denver counties, involving some couples seeking to marry and others already married in other jurisdictions seeking recognition of their marriages.  Since Colorado adopted a constitutional amendment in 2006 providing that “only a union of one man and one woman shall be valid or recognized as a marriage in this state,” the plaintiffs were not attacking the marriage ban using state constitutional law, but were relying solely on the federal constitution.

Under the Supremacy Clause in the U.S. Constitution, state court judges have authority to interpret and apply the U.S. Constitution in cases challenging state constitutional and statutory law.  Of course, in doing so they are supposed to follow federal judicial precedents, but the only firmly binding precedents in this context would be U.S. Supreme Court decisions, since state court rulings on federal constitutional questions cannot be appealed to the lower federal courts. As such, the state’s appeal of Judge Crabtree’s ruling would be through the Colorado state court system, and the state could ultimately petition the U.S. Supreme Court to review the ruling of the highest Colorado court to consider the matter.  This is the route that was followed back in the 1990s in the constitutional challenge to Amendment 2, a Colorado initiative amendment that prohibited the state or its political subdivisions from protecting gay people from discrimination.  A challenge to Amendment 2 was filed in the Denver District Court, where the trial judge held that it violated the federal constitution, the state appealed that and the Colorado Supreme Court agreed with the trial court.  The state then appealed to the U.S. Supreme Court, which ruled in Romer v. Evans that Amendment 2 discriminated because of sexual orientation without a sufficient rational basis.

The two cases that Crabtree was ruling on, Brinkman v. Long and McDaniel-Miccio v. State of Colorado, are not the only pending cases.  A separate case was recently filed in the federal district court in Denver, and the state’s attorney general brought suit in Boulder County District Court against the Boulder County Clerk, who began issuing marriage licenses to same-sex couples immediately after the U.S. Court of Appeals for the 10th Circuit held on June 25 that Utah’s ban on same-sex marriage violated the 14th Amendment of the U.S. Constitution.  A hearing in that case, also on July 9, did not result in a ruling from the bench, but the trial judge indicated that he would rule soon.  In an unrelated development, Utah Attorney General Sean Reyes announced on July 9 that the state would forego a motion for rehearing en banc in the 10th Circuit, and would shortly file a petition asking the U.S. Supreme Court to review the Utah case.

Judge Crabtree was clearly impressed with the long string of federal and state trial court rulings that has accumulated since the Utah decision was announced in December, quoting extensively from those decisions in his opinion, and he also gave great weight to the 10th Circuit’s decision.  For example, on the question of how to characterize the right that was at issue in the case, he wrote, “The Court heartily endorses the recent holding by the Tenth Circuit in Kitchen v. Herbert that the marital right at issue was never framed as the ‘right to interracial marriage’ in Loving or the ‘prisoner’s right to marriage’ in Turner or the ‘dead-beat dad’s’ right to marriage in Zablocki,” referring to important Supreme Court precedents on the right to marry.  “Instead, the Supreme Court has repeatedly utilized the term “fundamental right to marry” without any limitations.  The Court rejects the State’s attempt to too narrowly describe the marital right at issue to the right to marry a person of the same sex.”  He also indicated that he agreed “with the growing number of courts which have held that the fundamental right to marry includes the right to remain married,” citing decisions from Utah, Idaho, and Ohio that ordered those states to recognize same-sex marriages contracted in other jurisdictions.

Having found that a fundamental right was at issue, Crabtree followed the path set down by the 10th Circuit, asking whether Colorado had shown that the ban on same-sex marriage was necessary to promote a compelling state interest.  The state argued that its interest was encouraging procreation and marital commitment for the benefit of children.  Crabtree concluded that this “interest” was concocted for purposes of defending the marriage ban in litigation, and was “merely a pretext for discriminating against same-sex marriages.”

“This notion of ‘responsible procreation’ has been raised many times before and been met without success,” he pointed out, citing seven prior federal marriage equality court decisions plus the New Mexico Supreme Court’s marriage equality decision from last year.  He then quoted from the Virginia marriage equality decision and pinned the point down with an extended quotation from the Supreme Court’s opinion in Lawrence v. Texas.  “The Court holds that the State does not have a sufficiently important/compelling interest in forbidding same-sex marriages or nullifying Colorado residents’ valid out-of-state same-sex marriages.  The Marriage bans are unconstitutional because they violate plaintiffs’ due process rights.”

Turning to the alternative equal protection theory, he found no need to determine what the appropriate level of judicial scrutiny should be.  “The Court has previously found that the State’s professed governmental interest was a mere pretext for discrimination against same-sex marriages created ‘post hoc in response to litigation,'” he wrote.  “Thus, the Marriage Bans cannot even pass muster under the rational basis analysis. The sole basis for precluding same-sex marriage is self-evident — parties are of the same sex and for that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the Marriage Bans are unconstitutional because they violate plaintiffs’ equal protection rights.”

Judge Crabtree also considered whether the state’s civil union law could survive as a “separate but equal institution,” and concluded that civil unions are not a viable alternative to marriage for same-sex couples, citing to Massachusetts and Connecticut high court decisions to that effect.  However, he did issue one ruling in favor of a particular defendant: Governor Hickenlooper.  Crabtree agreed with the governor that he had been improperly sued in this case because he had no direct responsibility for enforcing state marriage laws, so the complaint against him should be dismissed.

On the issue of a stay, Judge Crabtree was influenced not only by the fact that ultimately all trial court marriage rulings have been stayed pending appeal but also by his acceptance of the state’s argument that “the public has an interest in the orderly determination of the constitutionality of its laws and granting a stay will effectuate that end” since only a final appellate ruling will put the question to rest.  “This Court is under no delusion that the resolution of the issue of same-sex marriages will end with this Court’s decision or any lower courts’ decisions,” he wrote.  “The final chapter of this debate will undoubtedly have to be written in either Denver, Colorado, or Washington, D.C.  While the striking down of laws banning same-sex marriages has been progressing at a rapid rate, it will take time for this issue to be finally resolved,” so a stay was necessary “to avoid the instability and uncertainty which would result in the State of Colorado if the Court did not stay its ruling,” and he noted the litigation pending against the Boulder clerk as an example of this.

Unlike many of the other judges who have ruled in marriage equality cases, Judge Crabtree did not lard his opinion with big dollops of judicial eloquence.  Instead, his plain-speaking explanations were accompanied by an unusually large amount of extended quotation from prior decisions, placing his opinion clearly in the mainstream of a strong emerging nationwide trend of judicial support for the due process and equal protection claims of same-sex couples seeking to marry and have their marriages recognized wherever they go in the United States.

Boulder County Clerk Hall began issuing licenses to same-sex couples shortly after the 10th Circuit announced its decision in the Utah marriage equality case, Herbert v. Kitchen, on June 25.  When Hall refused to bow to threats from the Attorney General, he filed suit against her, seeking a temporary restraining order and preliminary relief.  The hearing on his motion was held July 9, the same date that Judge Crabtree issued his decision.  Judge Hartman refused to rule from the bench, waiting until the following day to issue a 43-page ruling explaining in detail how the state had failed to meet the factors necessary to justify preliminary relief of enjoining an elected official from performing her job.  While conceding that Hall’s actions were in violation of existing Colorado law, Judge Hartman said some would characterize her actions as “civil disobedience,” and in light of the long string of marriage equality rulings, suggested that the public interest was served in letting same-sex couples exercise their fundamental federal constitutional right to marry.  Hartman did require Hall to let the state know which marriage certificates submitted for state registration were those of same-sex couples, and also to notify all same-sex couples who received licenses that it was possible their marriages would be found invalid down the line.  Hartman did not rule on whether the state was required to recognize same-sex marriages while appeals are going on in the Brinkman and Herbert v. Kitchen cases.