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.