Colorado Gov. and AG. Want Marriage Ban Declared Unconstitutional

DENVER -- Democratic Gov. John Hickenlooper and Republican Attorney General John Suthers asked a federal court Wednesday to issue an injunction declaring Colorado's same-sex marriage ban unconstitutional.

But they want the court to delay implementation of the ruling until the U.S. Supreme Court decides the issue.

The filing highlights what has been tumultuous and fast-moving legal wrangling in the state since last week, when the 10th Circuit Court of Appeals in Denver ruled in a Utah case that same-sex couples have the right to marry. The ruling was put on hold pending appeal.

Since then, Boulder County's clerk has been issuing marriage licenses to gay couples over Suthers' objections, and six couples filed a lawsuit in federal district court in Denver seeking to overturn the state's ban.

Hickenlooper and Suthers' request for an injunction is in regards to the federal lawsuit filed by the six gay couples Tuesday, but there are also pending cases in Denver and Adams County, which were filed months ago.

Although Hickenlooper and Suthers agree with the plaintiffs' request for an injunction in the federal case, the plaintiffs do not want a stay.

"It's time for Colorado to get in line with the tide of history and allow same-sex partners to marry," said Mari Newman, the attorney for the couples in the federal case.

Suthers' office said he wants to resolve the question of gay marriage and avoid costly litigation.

But while Hickenlooper and Suthers agree there should be an injunction and stay, they still disagree on same-sex marriage. Hickenlooper said he believes last week's federal appeals court decision against Utah's gay marriage ban was correct. Suthers does not, according to his court filing.

In a statement, Hickenlooper called the filing for an injunction "an important step that gets all Coloradans closer to receiving the same legal rights and opportunities."

"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," the statement continued. "We hope the U.S. Supreme Court will take this matter up quickly. Equality for everyone can't come soon enough."

Meanwhile, Boulder County has been issuing marriage licenses to gay couples after the Utah ruling despite Suthers telling officials to stop.

In a letter to Suthers Wednesday, Boulder County Attorney Ben Pearlman said that Clerk Hillary Hall will continue issuing marriage licenses to gay couples, saying that failing to do so would violate their constitutional rights.

Suthers has maintained that Colorado's constitutional ban on gay marriage remains in place until a definitive court ruling on the matter.

However, the letter from Pearlman, written on behalf of Hall, argues they are in the right, citing several court rulings finding that gay-marriage bans are unconstitutional.

"Clerk Hall is prohibited from knowingly violating an individual's constitutional rights," the letter said. "Given all of the other law in this area, the 10th Circuit's decision to stay its mandate is too fragile a shield to hide behind."

Hall's office has issued nearly 100 marriage licenses to gay couples since last Wednesday.

The attorney general's office did not immediately issue a reply to Boulder's letter. Suthers has said the licenses are invalid and that he and Hall should seek guidance from the Colorado Supreme Court on the matter.

Gay-rights activists applauded the signal from Suthers and the governor that Colorado's ban on same-sex unions won't stand. But they argued that the marriage prohibition should be lifted immediately.

In a state lawsuit in Adams County, a gay couple argued in a Wednesday filing that the Colorado Supreme Court could abolish the marriage ban independently of the federal case. The couple's lawyers argued that delaying marriage for a year or more while awaiting a ruling by the U.S. Supreme Court isn't necessary.

"That would be grossly unfair to Colorado's same-gender couples," the lawyers wrote in the filing Wednesday.

This story is part of our special report: "Gay Marriage". Want to read more? Here's the full list.