UPDATE 1:55 p.m. Another state trial judge, District Judge Andrew Hartman of Boulder, ruled on Thursday that the Boulder County clerk may continue to issue marriage licenses to same-sex couples, but must notify those couples that “the validity of their marriages” depends upon whether the courts would later uphold the clerk’s power to issue them. The following post includes a brief reference to the legal controversy over the licenses that have been issued by Boulder County Clerk Hillary Hall.
Joining the lengthening list of courts striking down state bans on same-sex marriage, a state trial judge in Colorado ruled on Wednesday that a state constitutional amendment and laws imposing the ban are unconstitutional. Adams County District Judge C. Scott Crabtree of Brighton issued a forty-nine-page opinion, and then put his ruling on hold during a likely appeal by state officials.
So far, no state’s prohibition on same-sex marriage has been upheld in any court in the year since the Supreme Court’s decision in United States v. Windsor provided new guidance that judges are interpreting as strong arguments in favor of allowing gays and lesbians to share in a constitutional right to marry.
Perhaps illustrating that there is little new to be said about the constitutional issue after a string of decisions in test cases across the country, Judge Crabtree’s own analysis of the question took up less than ten pages — perhaps one-fifth — of the opinion. The bulk of the legal analysis consisted of quotations from other court rulings in the wake of the Windsor decision as well as earlier precedents going back to 1888.
Under the Colorado state court system, there are twenty-two district courts, and they serve as the basic trial court. Appeals from those courts can go to a middle-level appeals court and then perhaps to the state supreme court. Because the lawsuits decided by Judge Crabtree were pursued against the state, his decision presumably would be binding on state officials if upheld on appeal.
The judge postponed his decision, to avoid “instability and uncertainty” in the state. He noted that there is an ongoing dispute between the state attorney general and the county clerk in Boulder after that clerk began issuing marriage licenses to same-sex couples.
Colorado is one of the six states within the Tenth Circuit, and the U.S. Court of Appeals for the Tenth Circuit has struck down the same-sex marriage ban in Utah. It was on the basis of that decision that the clerk in Boulder began issuing marriage licenses to gay and lesbian couples. The clerk has now been sued by the attorney general, who has noted that the Tenth Circuit Court has put its Utah decision on hold. (See the update at the beginning of this post.)
Utah officials plan to file an appeal to the Supreme Court this summer on the state’s authority to prohibit same-sex marriages.
Judge Crabtree’s decision actually struck down two bans in Colorado: one, which he called the “celebration ban,” barred same-sex couples from getting married; the other, called the “recognition ban,” barred official recognition in Colorado of same-sex couples living in the state who have been married in other states.
Same-sex marriage is now legal in nineteen states and Washington, D.C.