Colorado’s same-sex marriage ban ruled unconstitutional, but ruling stayed

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DENVER -- A judge in Adams County has ruled that Colorado's ban on same-sex marriage violates the U.S. Constitution's equal protection clause, agreeing with 23 federal courts that have so far come to the same conclusion on same-sex marriage bans in other states.

The ruling Wednesday is the first decision on the constitutionality of Colorado's voter-approved ban on same-sex marriage, which was passed in 2006.

District Judge C. Scott Crabtree ruled that the arguments for keeping the ban, that marriage is about the "protection of families" and "procreation of children", are "recently fabricated" arguments for the purpose of denying that discrimination is occurring.

"It is merely a pretext for discriminating against same-sex marriages," Crabtree wrote.

Crabtree cited the legislature's passage of civil unions, which stop short of offering same-sex couples the same degree of legal protections as marriage, as evidence that Colorado's ban is discriminatory.

But Crabtree stayed the ruling, which could be appealed to the Colorado Supreme Court.

The ruling won't affect the showdown in Boulder where Clerk and Recorder Hillary Hall has been issuing marriage licenses to same-sex couples ever since the 10th Circuit Court of Appeals threw out Utah's same-sex marriage ban.

Utah announced Wednesday it will appeal the case to the U.S. Supreme Court. Meanwhile, Colorado Attorney General John Suthers went to court to attempt to stop Hall from continuing to issue licenses until the issue has been resolved by a higher court.

He and Gov. John Hickenlooper, a Democrat who supports same-sex marriage, both agree that the state won't fight to defend its gay marriage ban but that clerks should wait to issue licenses until there's legal clarity on the issue.

Some LGBT advocates in Colorado were unhappy about that move, anticipating the decision from Adams County on the Colorado same-sex marriage ban.

Crabtree's ruling dismissed all claims against the governor, who will not be named in the lawsuit if it's appealed further.

Suthers released a statement on the Adams County decision saying Crabtree's order "reaffirms the fact that the fate of Colorado’s same-sex marriage law will rest with the United States Supreme Court."

"The Court properly found that the instability and uncertainty that would result from not staying the decision, including the issuance of marriage licenses by county clerks in the state, necessitated that the order be stayed," Suthers said. "The county clerks are agents of the state and should be bound by the stay order."

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