9 couples file lawsuit challenging Colo. gay marriage ban

DENVER — Nine Colorado gay couples filed a lawsuit in Denver District Court Wednesday morning challenging the state’s constitutional amendment banning same-sex marriage, FOX31 Denver is the first to report.

According to the complaint, “Colorado law creates two classes of citizens: those free to marry the person they love, and those denied that fundamental right.”

PDF: Same-sex marriage lawsuit

The couples named in the lawsuit all live in Denver and have been together ranging from 3 to 18 years.

Four of the plaintiffs are married in other states but live in Colorado.  They claim the Colorado ban prevents them from enjoying the benefits of their marriage.

The lawsuit, filed by the law firm Reilly Pozner, cites the fourteenth Amendment of the U.S. Constitution and argues the marriage ban violates the protection of equal protection clauses.  It names Gov. John Hickenlooper and Denver City Clerk Debra Johnson as defendants.

Johnson released a statement saying she personally believes “all adults should be able to marry the person they love regardless of sexual orientation.”

“However, as an elected official, under oath I am sworn to uphold the law as written, even when those laws are in direct conflict with my personal beliefs. I have a lawful duty to administer laws and policies regardless of when they are contrary to my personal beliefs,” Johnson said. “I wanted to issue marriage licenses to same-sex couples and spent many hours deliberating this decision before denying licenses to same-sex couples.  I understand why the lawsuit was filed and now it is up to the courts as a co-equal branch of government to decide the matter.  I am a longtime supporter of fair and equal treatment for all – regardless of one’s race, gender or sexual orientation.”

Amendment 43, passed in 2006 by voters, prohibits gay and lesbian couples from getting married. Last year, the state legislature went around the amendment by passing a civil unions bill that was signed by Hickenloooper.

The civil unions bill allows same-sex couples to have similar benefits as marriage, just without the name.

Overturning Amendment 43 and allowing gay marriage has been a goal of LGBT organizations since the successful civil unions passage.

“Just like thousands of other loving, committed couples across Colorado, the courageous plaintiffs who brought forth today’s case simply want to take care of their families and make a lifelong promise to the person they love,” said Dave Montez, Executive Director of One Colorado.

Four of the plaintiffs, Amy Smart and Sandra Abbott, Kevin and Kyle Bemis, G. Kristian “Kris” and Nan McDaniel-Miccio, and Sara Knickerbocker and Jessica Ryann Peyton, are married in other states.  They want their marriage recognized in Colorado.

The remaining named defendants are Tracey MacDermott and Heather Shockey; Wendy and Michelle Alfredsen; Tommy Craig and Joshua Wells; Jodi Lupien and Kathleen Porter; and Christopher Massey and James Davis.  They are unmarried and want to become so, the lawsuit said.

Lawsuit finally filled after dispute over timing

The lawsuit filed Wednesday came among backroom drama among LGBT rights groups and attorney John McHugh who planned to file a lawsuit challenging the marriage ban.

Monday McHugh sent out a news release annoucing a news conference on the lawsuit Tuesday morning. However two hours after that advisory went out, the press conference had been cancelled and the lawsuit itself was in limbo.  So what happened?

Sources told us that McHugh hadn’t conferred with the defendants, notably Denver Clerk and Recorder Debra Johnson, whose office denied a same-sex couple a marriage license last Friday, which was serving as grounds for the lawsuit.

McHugh wasn’t aware that Johnson, who was out of the office when a same-sex couple applied for a marriage license Friday, was herself open to issuing marriage licenses to same-sex couples, which would have rendered the lawsuit pointless.

After FOX31 Denver’s report Monday night confirming that the lawsuit would challenge Amendment 43 a number of prominent LGBT activists cautioned McHugh and the lawsuit was put on hold as Johnson continued to weigh her options.

But on Tuesday, Johnson said that she’d made up her mind to deny marriage licenses for same-sex couples — some of whom are likely to return to her office this week to make additional requests that will serve as grounds for the lawsuit.

The lawsuit will add Colorado to a list of states where groups have challenged bans on gay marriage in the courts.

Federal judges in Kentucky and Virginia have ruled that their states’ bans on same- sex marriage are unconstitutional. The rulings come on the heels of judges in conservative states of Oklahoma and Utah who ruled that marriage bans are unconstitutional.

The 10th Circuit Court of Appeals in Denver will review decisions to strike down constitutional bans against same-sex marriage in Utah and Oklahoma this summer.

Same-sex marriage is permitted by law in 17 states and the District of Columbia.

Worldwide, 16 other countries (and parts of Mexico) also have laws allowing same-sex marriage and domestic partnerships. Most of the nations are in Europe and South America.

This story will be updated as more information comes in including reaction from various groups.