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A gentle chiding of the Court on same-sex marriage

Gently chiding the Supreme Court for not making itself clear, a federal trial judge in Colorado refused on Wednesday to interpret the Justices’ recent actions on same-sex marriage as binding on lower courts.  U.S. District Judge Raymond P. Moore of Denver spoke out as he issued a ruling striking down Colorado’s ban on such marriages.  Refusing a formal plea by the state to put his ruling on hold, the judge nevertheless gave the state attorney general a month to ask a higher court to do that.

The Supreme Court has twice ordered delays in lower court decisions striking down state bans on same-sex marriage, but has never given reasons for doing so.  Several lower court judges, however, have interpreted those orders to mean that the Court does not want same-sex marriages to go forward while appeals are pending.  Not so Judge Moore.

The judge noted that the Supreme Court earlier this month had blocked a ruling requiring Utah to officially recognize same-sex marriages performed in that state last winter, but the judge frankly remarked that, while there might be a message in what the Court had done, he could not make it out.

“This court is not some modern haruspex, skilled in the art of divination,” he said.  (A haruspex was an ancient Roman figure who made predictions based upon examining the entrails of dead animals.)

He said he could not and would not “tell the people of Colorado that the access to this [marriage right] 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.”

Applying the more conventional analysis for deciding whether to delay a ruling, Judge Moore turned down the state attorney general’s plea for a stay of his ruling nullifying the state ban.  His order barring enforcement of the ban, however, will not be binding until August 25, to give the state time to ask for a delay either by the U.S. Court of Appeals for the Tenth Circuit or by the Supreme Court.

Judge Moore’s ruling came in a case filed by six same-sex couples — three seeking to be married, and three seeking to have their marriages (performed in other states) recognized by the state.

A state judge in Colorado has recently issued a similar decision against the state ban, but that was more limited in its reach.  Judge Moore’s ruling would extend all across the state.



Recommended Citation: Lyle Denniston, A gentle chiding of the Court on same-sex marriage, SCOTUSblog (Jul. 23, 2014, 9:48 PM),