DENVER — Colorado Attorney General John Suthers filled a motion with federal court Wednesday afternoon in response to a lawsuit filled in federal court yesterday asking for an overturn of Colorado’s same-sex marriage ban.
The motion asks for courts not to consider the lawsuit pending a Supreme Court decision on the issue in general.
“We hope and believe that if granted, today’s motion will help end the divisive, costly, and now unnecessary litigation regarding same-sex marriage in Colorado,” said Solicitor General Dan Domenico.
The motion cited the ruling by the 10th Circuit Court of Appeals in Denver overturning a gay marriage ban in Utah. That decision was stayed by the court pending an appeal.
“Because the Utah decision will not go into effect until the higher courts, including the United States Supreme Court, have had a chance to decide the question, Colorado (and other states) must wait for that final decision. In other words, the legal debate about this question will be suspended in Colorado as we await finality from the 10th Circuit or U.S. Supreme Court,” Domenico said.
While Suthers acted in coordination with Gov. John Hickenlooper asking for a delay in issuing marriage licenses to same-sex couples until a Supreme Court decision, it did reveal a split in each party’s thinking.
According to the filing, Suthers, a Republican, believes the ruling by the 10th Circuit of Appeals was “incorrect.”
Allowing same-sex couples to receive marriage licenses before a Supreme Court decision “would invite a race to the clerks’ office, result in irreparable injury to the State, licenses issued under a legal cloud of uncertainty, and undermine the predictable and standard judicial process for testing the constitutionality of state laws,” the motion said.
Gov. John Hickenlooper and the Denver County Clerk and Recorder both went on the record in the motion saying they agree with the 10th Circuit’s ruling. Denver is part of a state court case and the clerk and recorder’s office says if the state judge “finds that Colorado’s same-sex marriage ban is unconstitutional and issues his decision without a stay, (which Denver supports), we will issue marriage licenses until it is.”
“Today, we joined with the Attorney General and the county clerks in Denver and Jefferson counties to ask the federal district court in Colorado to declare the state’s gay marriage ban unconstitutional and to stay its ruling until the U.S. Supreme Court addresses this issue,” said Governor John Hickenlooper.
“We understand there is frustration with the lengthy judicial process, but waiting until the legal process is finished will ensure that marriage licenses issued to same sex couples are not clouded by uncertainty. We hope the U.S. Supreme Court will take this matter up quickly. Equality for everyone can’t come soon enough,” Hickenlooper said.
“We are pleased to see a bipartisan group of elected officials coming together to overturn Colorado’s discriminatory ban on same-sex marriages,” said Dave Montez, Executive Director of One Colorado, an advocacy group for the LGBT community.
“The Governor, Attorney General, Jefferson County Clerk, and Denver Clerk have said in one bipartisan voice that they will not defend this discriminatory ban that hurts real Colorado families every day. However, we’re disappointed they’re not seeking to end it immediately. Colorado families deserve to have their freedom, liberty and protections without delay,” Montez said in a statement.
Tuesday, six couples filed a federal lawsuit challenging Colorado’s same-sex marriage ban.
The couples are suing the state saying the ban is unconstitutional.
That ruling was the justification the Boulder County Clerk and Recorder used to start issuing same-sex marriage licenses there.
Suthers has said the licenses issued by the Clerk and Recorder Hillary Hall are not valid and gave a deadline of Tuesday at noon for her office to stop issuing them. Suthers threatened legal action if Hall did not comply.
Hall has said she would continue issuing the licenses despite Suther’s threat.
Hall started issuing the licenses June 25. Suthers said the licenses are invalid because the 10th Circuit issued a stay on its own ruling.
It’s not yet clear how the motion filled Wednesday will affect Hall’s decision to issue marriage licenses.
Couples have been lining up at clerk’s offices in Boulder County to receive licenses despite their legal uncertainty. As of Wednesday evening, a total of 97 marriage licenses had been issued to same-sex couples.
Federal lawsuit would apply to all counties in Colorado
Unlike the other case challenging Colorado’s same-sex marriage ban, the case filed Tuesday was in federal court. A ruling would apply to every county.
David Lane, one of the lawyers for the plaintiffs, said that a decision by a federal judge enabling gay marriage in Colorado could come within a month.
The lawsuit was filed by the Denver law firm of Killmer, Lane and Newman, includes a wide variety of plaintiffs, including government employees, educators and even rugby players.
It asks for a federal judge to validate out-of-state marriages and prevent any ban on marriage licenses for gay couples.
Named as defendants were Gov. John Hickenlooper, Attorney General John Suthers, Jefferson County Clerk and Recorder Pam Anderson and City and County of Denver Clerk and Recorder Debra Johnson.
Same-sex couples in Colorado are allowed to have Civil Unions after legislation was passed last year.