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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.