Same-sex marriage in Colorado

Legal status of same-sex unions
Marriage
Performed

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· Denmark proper
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Finland*
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Recognized

  1. When performed in Mexican states that have legalized same-sex marriage
  2. When performed in the Netherlands proper
  3. Marriages performed in some municipalities and recognized by the state

* Not yet in effect

LGBT portal

Same-sex marriage has been legally recognized in Colorado since October 7, 2014.[1][2]

Colorado's state constitutional ban on same-sex marriage was struck down in the state district court on July 9, 2014, and by the U.S. District Court for the District of Colorado on July 23, 2014. Furthermore, the Tenth Circuit Court of Appeals had already made similar rulings with respect to such bans in Utah on June 25 and Oklahoma on July 18, which are binding precedents on courts in Colorado.

On October 6, 2014, the Supreme Court of the United States declined to hear the Tenth Circuit cases, and the Tenth Circuit lifted its stay. On October 7, 2014, the Colorado Supreme Court and the Tenth Circuit cleared the way for same-sex marriages to begin in Colorado.[3]

Counties in Colorado that issued licenses to same-sex couples in response to Kitchen v. Herbert and/or Colorado v. Hall
  County issued marriage licenses to same-sex couples

Same-sex marriage

Statute

In 1996, the Colorado General Assembly passed a bill banning same-sex marriage, but it was vetoed by Gov. Roy Romer.[4] In 1997, the Colorado General Assembly again passed a bill banning same-sex marriage, but it was again vetoed by Gov. Roy Romer.[5] In 2000, Gov. Bill Owens signed into law a bill banning same-sex marriage.[6]

Constitution

On November 7, 2006, Colorado voters approved Amendment 43, a state initiated constitutional amendment that prohibited the recognition of same-sex marriage in the Constitution of Colorado[7] The amendment passed by a margin of 56% to 44%.[8]

Lawsuits

There are five court cases dealing with same-sex marriage in Colorado. They are Brinkman v. Long, a state district court case, ruling in favor of same-sex marriage; Burns v. Hickenlooper, a U.S. district court (i.e. federal) case, ruling in favor of same-sex marriage; Kitchen v. Herbert and Bishop v. Smith, two decisions out of the U.S. Tenth Circuit Court of Appeals which affirm same-sex marriage and are binding precedent on Colorado courts, and Colorado ex rel. Suthers v. Hall, a state court case which previously allowed Boulder County to issue same-sex marriage licenses.

Adams v. Howerton

Main article: Adams v. Howerton

In 1975, Clela Rorex, the county clerk of Boulder County, Colorado, became the first county clerk in the nation to issue marriage licenses to same-sex couples.[9] She issued marriage licenses to several same-sex couples after the local district attorney interpreted Colorado's statutes, which used the phrase "any two persons", to be gender-neutral with respect to marriage. The state attorney general issued a contrary opinion that those marriages were invalid.[10] When one of those married in Boulder tried to use it to sponsor his husband for immigration purposes, he lost his case, Adams v. Howerton, in federal court.[11]

Brinkman v. Long

Main article: Brinkman v. Long

After being denied a marriage license, a lesbian couple filed a lawsuit on October 30, 2013 in the Colorado District Court. The case, Brinkman v. Long, seeks to overturn the state's constitutional ban on same-sex marriage.[12][13] The couple was joined by nine other same-sex couples who filed a lawsuit, McDaniel-Miccio v. Hickenlooper, also in state district court, seeking the same outcome.[14][15] The suit named the state's governor and a city clerk responsible for licensing marriages as defendants. Colorado's attorney general announced he would defend the state's ban.[16]

Brinkman and McDaniel-Miccio were combined for argument in state district court. On July 9, 2014, District Court Judge C. Scott Crabtree ruled that Colorado's same-sex marriage ban violated the plaintiffs' guarantees of equal protection and due process under the Fourteenth Amendment to the U.S. Constitution, stating: "No state since U.S. v. Windsor has been able to justify its ban under even the rational basis test, much less under the strict scrutiny test." The judge stayed his ruling pending the outcome of appeals[17]

Judge Hartman's decision in Colorado ex rel. Suthers v. Hall (see below) provided legal cover for the Boulder County clerk to issue same-sex marriage licenses as a form of civil disobedience. After Hartman's decision was handed down, the Denver County and Pueblo County clerks began issuing licenses to couples regardless of gender as well, despite Judge Crabtree's stay. When asked to enjoin the Denver County clerk from issuing licenses to same-sex couples, Judge Crabtree refused to take action. On July 14, 2014, the state's attorney general appealed Judge Crabtree's inaction to the Colorado Supreme Court. In a separate filing, and seeking a reversal of Judge Hartman's ruling, the attorney general also asked the high court for an emergency injunction to stop all state clerks from issuing licenses.[18][19]

On July 18, 2014, the Colorado Supreme Court ordered clerks in Adams and Denver counties stop issuing marriage licenses. The state supreme court was scheduled to hear oral arguments regarding the merits of the state's same-sex marriage ban on September 30, 2014.[20]

Burns v. Hickenlooper

Main article: Burns v. Hickenlooper

Burns v. Hickenlooper is a same-sex marriage case filed on July 1, 2014 in the U.S. District Court for the District of Colorado. The plaintiffs are six same-sex couples who have been legally married in another state but whose marriage Colorado does not legally recognize or who have been refused a Colorado marriage license, solely because of who they are.[21] The main defendants, the state governor and attorney general, agree with the plaintiffs insofar as having the court issue an injunction declaring the same-sex marriage ban unconstitutional, but they want a stay and swift resolution by the U.S. Supreme Court in order to avoid costly litigation.[22]

U.S. District Judge Raymond Moore found in favor of the plaintiffs in Burns on July 23, 2014, granting their motion for a preliminary injunction. In his ruling, Judge Moore notices a split among the state defendants even though they agree with plaintiffs' motion: "Defendant Attorney General believes Kitchen is incorrect while Defendant Governor believes Kitchen was correctly decided. ... Nevertheless, Defendants collectively do not oppose entry of a preliminary injunction, but also ask that the injunction, as well as further proceedings in this matter, be stayed." After finding that the plaintiffs meet their burden for an injunction, he rejects the defendants' request for a stay.

Immediately after Judge Moore's order was issued, state defendants filed a notice of appeal and asked the U.S. Court of Appeals for the Tenth Circuit for a stay. The appeals court granted the stay on August 21, 2014.[23][24]

When the United States Supreme Court dismissed requests to hear appeals from similar cases from the Tenth Circuit on October 6, Colorado Attorney General John Suthers asked the Tenth Circuit to lift the stay in this case as well, which would allow the district court's order that Colorado recognize same-sex marriages to take effect.[25] On October 7, the Colorado Supreme Court removed the legal obstacles preventing Colorado's county clerks from issuing marriage licenses to same-sex couples, legalising same-sex marriage in the state.[3]

Colorado ex rel. Suthers v. Hall

The Boulder County clerk had been issuing licenses based on her own interpretation of the Tenth Circuit ruling in Kitchen soon after that ruling was handed down. The state attorney general filed a motion in the Colorado District Courts in an attempt to stay the clerk's actions. However, on July 10, 2014, a day after the Brinkman ruling, District Court Judge Andrew Hartman found that while the Boulder clerk violated the law—"There is little argument that Clerk Hall is engaging in a form of civil disobedience. She apparently is taking the position posited by St. Augustine and followed notably by Martin Luther King, Jr. that, 'an unjust law is no law at all.'"—but he refused to impose a restraining order or injunction upon her, as the state did not meet its high burden for a stay.[26]

On July 21, 2014, the state attorney general appealed the ruling; in light of the ruling by the state supreme court staying license issuance in Adams and Denver counties, the attorney general also asked Judge Hartman to reconsider his ruling and stay it. Judge Hartman denied the state's request on July 23, 2014; the next day, a three-judge panel of the Colorado Court of Appeals again denied the attorney general's motion.[27] The Colorado Supreme Court, sua sponte on July 29, 2014, decided to hear the case and ordered it transferred and requested the record on appeal to be filed before it by October 20, 2014. The state supreme court stayed the Boulder clerk from issuing same-sex marriage licenses in the meantime.[28]

Kitchen v. Herbert

Main article: Kitchen v. Herbert

On June 25, 2014, the U.S. Court of Appeals for the Tenth Circuit in the case of Kitchen v. Herbert ruled that Utah's ban on same-sex marriage violated the U.S. Constitution. The ruling in Kitchen is binding on courts in every state within the Circuit, including Colorado. Since the Court of Appeals stayed implementation of this ruling pending review by the U.S. Supreme Court, courts in Colorado have had to follow the precedent that Kitchen sets and stay subsequent rulings pending the expiration of that stay.[29][30]

Immediately following the decision in Kitchen, the Boulder County clerk immediately began issuing marriage licenses despite the stay.[31] After a state district court refused to stop the clerk (see Colorado ex rel. Suthers v. Hall), Denver County and Pueblo County began issuing marriage licenses to same-sex couples as well.[32] All Colorado counties stopped issuing same-sex marriage licenses following stays issued by the Colorado Supreme Court.

When the United States Supreme Court dismissed requests to hear an appeal of the Kitchen case on October 6, Colorado Attorney General John Suthers asked the Tenth Circuit to lift the stay in this case as it related to Colorado, which would allow the district court's order that Colorado recognize same-sex marriages to take effect.[25] On October 7, the Colorado Supreme Court removed the legal obstacles preventing Colorado's county clerks from issuing marriage licenses to same-sex couples, legalising same-sex marriage in the state.[3]

Public opinion

Public opinion for same-sex marriage in Colorado
Poll source Date(s)
administered		 Sample
size		 Margin of
error		 % support % opposition % no opinion
Public Policy Polling October 16–19, 2014 778 likely voters ± 3.5% 54% 39% 7%
New York Times/CBS News/YouGov September 20–October 1, 2014 1634 likely voters ± 2.9% 54% 35% 12%
Public Policy Polling July 17–20, 2014 653 voters ± 3.8% 55% 38% 7%
Quinnipiac University April 15–21, 2014 1,298 registered voters ± 2.7% 61% 33% 7%
Public Policy Polling March 13–16, 2014 568 registered voters ± 4.1% 56% 36% 8%
Public Policy Polling December 3–4, 2013 928 voters ± 3.2% 53% 38% 9%
Public Policy Polling April 5–7, 2012 542 voters ± 4.2% 53% 40% 7%
Public Policy Polling December 1–4, 2011 793 voters ± 3.5% 47% 43% 10%
Public Policy Polling August 4–7, 2011 510 voters ± 4.3% 45% 45% 10%

See also

References

  1. ↑ Colorado AG: County clerks must issue gay marriage licenses
  2. ↑ Same-sex marriage now officially legal in Colorado
  3. 1 2 3 Statement of the Colorado Attorney-General - October 7, 2014
  4. ↑ Marriage veto
  5. ↑ Gay marriage ban vetoed
  6. ↑ Governor signs gay-marriage ban among flock of other bills
  7. ↑ "Colorado Amendment 43, Definition of Marriage (2006)". Ballotopedia. Retrieved January 24, 2013.
  8. ↑ Simpson, Kevin (November 9, 2006). "Colorado Amendment 43: Gay marriage banned; domestic partnerships also defeated". Denver Post. Retrieved October 5, 2014.
  9. ↑ Harris, Kyle (August 13, 2014). "Clela Rorex Planted the Flag for Same-Sex Marriage in Boulder Forty Years Ago". Westword Newsletters. Retrieved August 22, 2014.
  10. ↑ Eskridge, Jr., William N.; et al. (2006). Gay Marriage: for Better or for Worse?: What We've Learned from the Evidence. NY: Oxford University Press. pp. 22–3.
  11. ↑ Leagle, Inc.: Adams v. Howerton, 486 F. Supp. 1119 (C.D.Cal.1980). Accessed July 30, 2011
  12. ↑ "Couple files suit against Colorado gay marriage ban". FOX21 News. November 1, 2013. Retrieved April 8, 2014.
  13. ↑ "Brinkman v. Long" (PDF). Retrieved April 3, 2014.
  14. ↑ Verlee, Megan (February 20, 2014). "Same-sex couples file suit to overturn Colorado gay marriage ban". Colorado Public Radio. Retrieved April 8, 2014.
  15. ↑ "McDaniel-Miccio v. Hickenlooper" (PDF). Retrieved April 3, 2014.
  16. ↑ Mitchell, Kirk; Lee, Kurtis (February 19, 2014). "Nine couples seek to overturn Colorado's gay marriage ban". Denver Post. Retrieved April 8, 2014.
  17. ↑ C. Scott Crabtree, Colorado District Judge (July 9, 2014). "Summary Judgment Order, Brinkman v. Long, No. 13-CV-32572, and McDaneil-Miccio v. Colorado, No. 14-CV-30731" (PDF). Colorado Seventeenth Judicial District Court, Adams County. courts.state.co.us.
  18. ↑ Ingold, John (July 14, 2014). "Suthers asks Supreme Court to stop clerks from issuing licenses to gay couples". Denver Post. Retrieved July 14, 2014.
  19. ↑ Francisco, Michael (on behalf of Colorado Attorney General John W. Suthers) (July 14, 2014). "Emergency Motion for Injunction Pending Appeal, Colorado ex rel. Suthers v. Hall, No. 2014-SA-212". Colorado Supreme Court. Scribd.com.
  20. ↑ Mitchell, Kirk (July 16, 2014). "Federal judge weighs arguments in Colorado gay marriage case".
  21. ↑ Newman, Mary (Attorney for Plaintiffs) (July 1, 2014). "Complaint for Declaratory and Injunctive Relief, Burns v. Hickenlooper, No. 1:14-cv-01817" (PDF). U.S. District Court for the District of Colorado. LGBTQ Online.com. PACER Document 1.
  22. ↑ Moreno, Ivan (July 3, 2014). "Colorado officials ask court to declare same-sex marriage ban unconstitutional". LGBTQ Nation.com. Associated Press.
  23. ↑ Francisco, Michael (Assistant Solicitor General) (July 23, 2014). "Notice of Appeal, Burns v. Hickenlooper, No. 1:14-cv-01817". U.S. District Court for the District of Colorado. Scribd.com. PACER Document 46.
  24. ↑ Shumaker, Elisabeth A. (Clerk of Court) (August 21, 2014). "Order (Granting Motion for Stay), Burns v. Suthers, No. 14-1283". U.S. Court of Appeals for the Tenth Circuit. Scribd.com. PACER Document 01019298948.
  25. 1 2 Draper, Heather (October 6, 2014). "AG Suthers: Supreme Court decision clears way for gay marriage in Colorado". Dever Business Journal. Retrieved October 6, 2014.
  26. ↑ Steffen, Jordan (July 10, 2014). "Judge rejects state attempt to stop Boulder clerk from issuing same-sex marriage licenses". The Denver Post.
  27. ↑ Casebolt, Gabriel, and Booras, Judges of the Court of Appeals (July 24, 2014). "Colorado v. Hall, No. 2014-CA-1368". Colorado Court of Appeals. Scribd.com.
  28. ↑ By the Court, En Banc (29 July 2014). "Order of Court (Transferring Record and Issuing Stay), Colorado v. Hall, No. 2014-SC-582". Colorado Supreme Court. Scribd.com.
  29. ↑ "Nearly simultaneous decisions strike down gay marriage bans". CNYCentral. The Associated Press. June 25, 2014. Retrieved Jun 25, 2014.
  30. ↑ Canham, Matt (June 25, 2014). "Answering your questions on the same-sex marriage ruling". The Salt Lake Tribune. Retrieved Jun 25, 2014.
  31. ↑ Aguilar, John (June 25, 2014). "Boulder County begins issuing same-sex marriage licenses; AG says no". The Denver Post. Retrieved Jun 25, 2014.
  32. ↑ "Denver clerk begins issuing same-sex marriage licenses". The Denver Post. July 10, 2014. Retrieved July 10, 2014.
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