In Colorado, same-sex marriage battle waged in county clerk's office

Nearly 40 years after a Boulder County clerk first issued marriage licenses to same-sex couples, a clerk here is taking a similar course, albeit in a much altered political climate.

Since June 25, Boulder County Clerk Hillary Hall has issued more than 100 marriage licenses to same-sex couples and has defied an order from the state attorney general that she cease doing so.

In response, Colorado Attorney General John Suthers filed suit last week, asking for a temporary restraining order and preliminary injunction to stop Hall from issuing more licenses to same-sex couples and invalidating those she has already issued. A judge who heard arguments in the lawsuit Wednesday morning called the case “complex” and said he would issue a ruling soon.

In the national landscape of gay-marriage politics and court cases, the Boulder showdown is, in some ways, a sideshow. The ruling in the lawsuit – which will likely be appealed no matter which way the decision goes – will have no impact on the federal cases likely to eventually make their way to the Supreme Court.

But it's bringing a national spotlight to the issue in a very human way, and raises the question of whether other clerks may take the marriage battle into their own hands.

"It’s not going to influence the course and path of the primary litigation on the validity of same-sex marriage bans," says Jennifer Hendricks, a law professor at the University of Colorado in Boulder. "If these issues all get flushed out, the most likely way it might have an effect is, if the judge rules for the clerk, then other county clerks in Colorado and maybe around the country might start saying, 'I need to think about what my obligations are. If this is something I can do, maybe it's something I ought to do.' "

Hall has said she based her decision to start issuing the licenses on the June 25 decision by a federal appeals court to strike down Utah's ban on same-sex marriage, which is very similar to Colorado's. While Colorado legalized same-sex civil unions last year, its constitution still prohibits gay marriage.

The 10th Circuit Court of Appeals covers six states, including Colorado, and ruled that Utah's gay marriage ban was unconstitutional. At the same time, the court stayed its own ruling pending an appeal. On Wednesday Utah’s state attorney general’s office announced it would appeal the 10th Circuit decision to the US Supreme Court in the coming weeks.

Hall has argued that regardless of the stay, the court ruling applies to Colorado and she believed she had a moral and legal obligation to begin issuing the licenses.

In front of the Boulder County Justice Center Wednesday morning, the mood was largely celebratory as dozens of people rallied with homemade signs in support of same-sex marriage, and cheered each time one of the newly married couples passed by into the courthouse.

A liberal bastion in a swing state, Boulder has a population that tilts decidedly toward gay marriage, and many of those rallying said they were proud of the stand Hall has taken.

"Boulder has led on many issues for the LGBT community," says Mardi Moore, executive director of Out Boulder, in between leading cheers for those rallying. She notes that Clela Rorex, the Boulder County clerk back in 1975 who chose to issue six marriage licenses to same-sex couples before the attorney general at the time stepped in and got her to stop, was attending the Wednesday hearing.

Jonathan Singer, a state representative for northern Boulder County, stopped by the rally on the way to the hearing. Wednesday is his eighth wedding anniversary, he notes, and he felt there was a special resonance to attending a court case about gay marriage.

"When [Attorney General Suthers] said that the Boulder County marriage licenses aren't worth the paper they're written on, that struck a chord with me," says Representative Singer. "I can't tell the difference between the commitment in my marriage and the commitment of my LGBT constituents."

But Suthers has said Hall's decision is creating "legal chaos," and said the marriage licenses need to stop until higher federal courts have a chance to decide the question definitively.

“While we would prefer not to sue a government official, Ms. Hall’s actions are creating a legal limbo for both the state and the couples whose relationships she wants to champion. That limbo could have tangible and unintended consequences," Suthers said in a statement.

Even some supporters of gay marriage, like Colorado Gov. John Hickenlooper, have called Hall's actions ill advised, saying same-sex marriages should wait until the US Supreme Court weighs in.

"Although we've long supported same-sex marriage, that doesn't mean we back extralegal means of achieving it," the Denver Post wrote in an editorial last week in which it said Hall was "jumping the gun on gay marriage."

Professor Hendricks says Hall may well be on solid legal ground, noting that a stay means a law doesn't need to be enforced while it's appealed, but it's not an order not to comply with the law. "That's essentially what Hillary [Hall] is doing – voluntarily complying with law," says Hendricks. "The 10th Circuit is binding on federal courts in Colorado, and their statement of what the law is, is that bans like this are unconstitutional."

"The whole idea that everything should be orderly and neat and to not do anything until litigation is over" is appealing to most lawyers, Hendricks adds. "But it's not as interesting as every county clerk in the country having to think about what their obligations are under the Constitution."

In the case Wednesday, Suthers is arguing for an injunction both because he believes the state is ultimately likely to prevail on the merits of the case, and because not issuing an injunction could cause "irreparable harm" – in part to couples who may have their marriages invalidated.

Colorado Assistant Solicitor General Michael Francisco told the judge that "Colorado asks for one simple temporary order to preserve the status quo" and said the 10th Circuit ruling didn't give Hall the authority to flout "currently valid state law."

But many of those couples were at the courthouse testifying Wednesday morning, and Boulder County Deputy Attorney David Hughes argued that the harm to same-sex couples not allowed to marry outweighed any harm or "administrative inconvenience" the state would suffer by Hall continuing to issue licenses.

Outside the courthouse, Hall's supporters led chants and waved signs. "I believe in equal rights," says Kathy Streid-Noe, a Boulder resident for more than 20 years whose daughter is in a same-sex relationship and whose aunt and uncle were in an interracial marriage when that was illegal in many states. "I have a strong belief that eventually, everyone who wants to get married will be able to do so. But sooner rather than later would be better."