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Despite short-term wins, fate of gay marriage still unclear in Colorado

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DENVER -- The fact that Coloradans can now obtain same-sex marriage licenses in some select counties -- but not others -- certainly isn't typical.

"It's not the ideal situation, it leaves the couples who are marrying with some uncertainty,” said Nancy Leong, an Associate Professor at the University of Denver’s Sturm College of Law. “I think it creates the possibility of different practices in different counties, but I think that that could potentially be sustainable for a year."

That’s the amount of time that Leong and many other legal experts expect the Supreme Court to take before finally hearing and issuing a decision on gay marriage that will permanently resolve the questions that remain after the Court’s landmark ruling last summer.

"It will be argued, probably, next spring and we'll have a decision around this time next year," Leong said.

In the meantime, Leong says the Colorado attorney general will likely try again to stop select counties from issuing licenses by, this time, turning to the Colorado Supreme Court.

"I would think that he would probably seek some kind of temporary or an emergency restraining order,” Leong said. “But that's something we'll know in the next few days."

But Leong says there's no telling if the Colorado Supreme Court would even grant a restraining order or a stay, especially after a Boulder judge ruled Thursday that the state fell far short of proving that issuing same-sex marriage licenses is doing harm to the state.

"(The judge) said the state has completely failed to show that there is irreparable harm," Leong said. “I think just having a judge going on record and say that is something that is going to be potentially empowering to other jurisdictions."

That could mean even more counties opening their doors to same-sex couples in the short term.

"It may be a whole new kind of destination wedding," Leong said.

4 comments

  • Linda Giovanna Zambanini

    Colorado couples, Congratulations! You are on the cusp of TOTAL victory, and you have Boulder Clerk, Hillary Hall to thank for her extraordinary persistence in fighting for our “fundamental right” to marry! And AG Suthers, that despicable little man, is about to meet his well-deserved takedown into the gutter of homophobe history!

  • Judy Dehaven

    When the federal district court in Utah struck down Utah’s marriage law a few days before Christmas last December, and the State’s request for a stay was denied by both the district court and the court of appeals, the Supreme Court unanimously issued a stay, blocking the district court’s judgment. It is quite rare for the Supreme Court to issue a stay when both lower courts have refused to do so, and the standard that it applies is whether the state had demonstrated a likelihood of success on the merits. The stay issued by the Supreme Court in the Utah case therefore outweighs all of the district court decisions that have recent invalidate state marriage laws combined.

    • Zambanini4Equality

      I see you copy and paste this same comment all over the internet! That wouldn’t be such a bad thing IF it were TRUE, but it’s TOTALLY untrue on 2 counts! First, that SCOTUS issued its stay in the Utah decision “based upon the likelihood of success on the merits” and secondly that it “invalidated” the Utah ruling!

      First, a stay is just that, a temporary “stay” or “pause” in applying a ruling UPON APPEAL (ie: while it is being appealed to a higher court). A stay in NO WAY “invalidates” a ruling or implies anything negative about the merits of a ruling! It merely gives the opposing party time to appeal.

      Second, SCOTUS did NOT issue the stay in Herbert v. Kitchen (the Utah case) based upon “likelihood of success on the merits”! It issued a stay without ANY comment or statement of its rationale! At that time, since the Utah case was the very FIRST case heard since DOMA was struck down, there was no established federal court case law indicating success or lack of success on the merits, so maybe that is why SCOTUS wisely chose to issue a stay without stating their reasoning. Since that time however, there has been a tsunami of 24 consecutive federal and state court rulings in every corner of the nation—including Arkansas, Illinois, Indiana, Wisconsin, Kentucky, Michigan, New Mexico, New Jersey, Ohio, Oklahoma, Tennessee, Texas, Idaho, Oregon, Pennsylvania, Virginia and Colorado (there have been so many I’ve probably left some out!) — have come to the same conclusion: in the wake of Windsor, marriage equality is a constitutional imperative and a “fundamental right”. Not a single court in the nation has found to the contrary!

      Third, You simply have NO idea about the analysis the courts must use in deciding to issue a stay! There are 4 CRITERIA or FACTORS judges must consider and weigh in issuing a stay and “likelihood of success on the merits” is only ONE of them. In determining whether a stay is issued, the party requesting the stay must meet an exacting burden; courts consider the 4 following factors:

      (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
      (2) whether the applicant will be irreparably injured absent a stay;
      (3) whether issuance of the stay will substantially injure the OTHER parties interested in the proceeding; and
      (4) where the public interest lies.

    • Zambanini4Equality

      Cont’. Part II to my reply (due to WordPress’ character limits)
      Regarding the 4 factors used by judges in applying a stay:
      When a party seeks a stay pending appeal, the court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief”- hence the court must consider and weigh factors 2 and 3.

      Regarding the second factor in the list, the SCOTUS ruling in Nken v. Holder must be applied when considering the request for a stay:

      “Nken held that if the petitioner has not made a certain threshold showing regarding irreparable harm . . . then a stay may not issue, regardless of the petitioner’s proof regarding the other
      stay factors.” And according to Nken, a stay applicant’s “burden with regard to irreparable
      harm is higher than it is on the likelihood of success prong, as she must show that
      an irreparable injury is the more probable or likely outcome.”
      Moreover, with respect to irreparable harm, Leiva-Perez v. Holder established that the applicant “must show that there is a reason specific to his or her case, as opposed to a reason that would apply equally well to … all cases” why denial of a stay will irreparably harm the applicant.

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