Things are getting really weird in Colorado. Last week I blogged about a clerk in Boulder, CO who decided the 10th Circuit’s stayed opinion finding Utah’s ban on same-sex marriage was unconstitutional, compelled her to disregard Colorado’s ban–which was still valid. The clerk said that it “feels” right, and “I want to act immediately to let them carry out that wish.”
The Colorado Attorney General ordered her to stop, and she refused.
Colorado Attorney General John Suthers’s office has told Boulder County officials that they plan to go to court Wednesday if Boulder County Clerk Hillary Hall does not stop issuing marriage licenses to same-sex couples.
Suthers’s office responded Tuesday to county officials’ request for additional time to consider a proposal to allow the state’s supreme court to resolve the question of whether Hall can issue the marriage licenses. Colorado Solicitor General Dan Domenico wrote that the county could have until July 10 to respond to the proposal only if Hall stopped issuing marriage licenses to same-sex couples during that time.
“If she elects to continue after today, I am afraid we will be forced to take legal action,” Domenico wrote.
Boulder County’s county attorney, Ben Pearlman, wrote to the Colorado Attorney General’s Office on Wednesday, stating that the office has determined that the county is issuing marriage licenses because “the unconstitutionality of enforcing a same-sex marriage ban is established by both 10th Circuit law and the clearly established weight of authority.”
Specifically, Pearlman wrote, “Clerk Hall is prohibited from knowingly violating an individual’s constitutional rights.”
Perlman concluded by stating that the county officials would like to work with the attorney general’s office to resolve the situation but that they “are not willing to continue negotiating only on the condition that Clerk Hall immediately stop issuing licenses.”
And then things get really, really weird. Chris Geidner (whose reporting on this matter has been impeccable) summarizes the issue nicely:
In order to stop a county clerk from issuing marriage licenses to same-sex couples, the Colorado attorney general went to court Wednesday asking a federal court to strike down the state’s ban on same-sex marriages. …
In Wednesday’s filing, Colorado Gov. John Hickenlooper, who supports marriage equality, joined Suthers in asking the federal court to strike down the state’s ban on same-sex marriages — but, in doing so, also to enter a stay stopping same-sex couples from marrying at this time.
The newly filed lawsuit could thus reach a quick, although indefinite, resolution. The move, though, also is Suthers’s best way of seeking a clear legal basis for stopping Boulder County Clerk Hillary Hall from issuing marriage licenses to same-sex couples — something she has been doing for the past week.
Hickenlooper and Suthers disagree about whether the 10th Circuit Court of Appeals was correct in striking down Utah’s similar ban last week. In the Wednesday filing in federal court, though, they both agree to a ruling from the trial court that the appellate ruling in the Utah case means that Colorado’s ban also is unconstitutional.
“[T]he Defendants do not oppose the entry of a preliminary injunctive relief in favor of the Plaintiffs based on their constitutional claims at this time,” Suthers wrote, adding, however, that they wish for that injunction “to be stayed pending until all final appeals in the [Utah] case are resolved.”
This motion is surreal.
To provide a clear record – the Attorney General – speaking alone as Defendant, representing the interests of the State of Colorado, believes the majority in the Tenth Circuit’s 2-1 decision in Kitchen is incorrect for the reasons stated in his motion for summary judgment and reply in support thereof in the pending state case, (Brinkman et al. v. Long, et al. No. 13CV32572 (D. Ct. Adams Cnty Colo.)), and for the reasons stated in the amicus brief Colorado joined in the Kitchen case (Amicus Br. of Indiana et al., Case Nos. 13-4178, 14-5006 (10th Cir. 2014)). To further clarify the record – the Governor and Denver Clerk – speaking alone as Defendants, believe the majority decision in Kitchen was correctly decided.
In other words, Colorado is asking the court to strike down its ban on same-sex marriage, but stay such a ruling until the 10th Circuit, or the Supreme Court, finishes its disposition of the Utah case. They’ve given up their defense of the law. With this order, and stay, hopefully the Boulder clerk should, in theory at least, stop issuing the marriage licenses. But who knows, right?
We are through the looking glass. Or, as one essay recently put it in response to my posts, we are dealing with Schrödinger’s Constitution.