Boulder Judge, Citing “Rule of Law,” Finds No “Irreparable Harm” from Boulder Clerk Issuing Same-Sex Marriage Licenses

July 10th, 2014

A judge in Boulder, Colorado has denied the Attorney General’s request to stop the Boulder County clerk from distributing same-sex marriage licenses. Chris Geidner has the report. Recall that the Boulder clerk started doing so, after the 10th Circuit struck down *Utah’s* same-sex marriage ban, and *stayed* its ruling.

In ruling against the Attorney General, the Boulder judge found no risk of “specific irreparable harm” by allowing the licenses to continue.

The State asserts that Clerk Hall is causing irreparable injury by issuing same-sex marriage licenses, namely, that she is causing ‘legal chaos and confusion.’ However, when pressed, the State does not identify specific irreparable harm, offering only speculation. This is a fatal flaw to the extraordinary relief it seeks.”

No “irreparable harm” by granting marriage licenses that may ultimately be voided? This judge can’t be serious. Was this not the entire scope of the Prop 8 judgment in the 9th Circuit? That people were granted a right, which was then taken away? Now we all know what’s going to happen, but at least pretend to be cognizant of the damages that can result here.

Yesterday, in an unrelated case, another Colorado judge found Colorado’s ban unconstitutional, but stayed its ruling. The court noted that the Boulder Clerk was “vindicated” by that decision, even though she decided to start issuing marriage licenses based on her own conscience.

As argued by counsel for the State at hearing, Clerk Hall did not follow established legal procedures and impugned the rule of law. She has apparently been vindicated, at least for now, by the holding in Brinkman.

We are through the looking glass. She was vindicated by ignoring the law, because another judge later said that the ban was unconstitutional. That judgment was also stayed, to avoid the very chaos the AG asserted, and the Clerk disregarded.

Towards the conclusion, the court finds that “rule of law” must give way to “upholding an individual’s constitutional rights.”

Clerk Hall argues that the equities are in her favor since a stay would deprive same-sex couples of their fundamental right to marry. Response at 17. As discussed in the public interest section above, every post-Windsor case that has addressed this issue has found in favor of same-sex litigants, including the only Colorado case. See note 10 and accompanying text. Also, while the people of Colorado deserve compliance with the rule of law, they have “a more profound long- term interest in upholding an individual’s constitutional rights.” Awad, 670 F.3d at 1132. As such, the Court cannot find that the balance of the equities favors granting the State’s request for expedited relief.