New Developments in Colorado on Same-Sex Marriage

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.

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