Colorado clerk won’t halt marriage licenses for gays

The New York TimesJuly 2, 2014 

— County clerks like Hillary Hall tend not to be bomb throwers. “We’re procedural, and we’re cautious,” she said, noting that clerks are duty-bound to follow bureaucratic rules for counting ballots, recording property deeds and registering license plates.

But last week, after a federal appeals court struck down Utah’s ban on same-sex unions, Hall decided the time had come to start issuing same-sex marriage licenses in Colorado, where they are not allowed. The move drew 97 delighted couples to the clerk’s offices, but it also put this liberal college town in the Rocky Mountain foothills on a potential collision course with the state’s Republican attorney general, John Suthers.

Suthers’ office urged Hall to stop issuing licenses for same-sex marriages and warned of “further action” if she did not. He warned that the unions were invalid under Colorado’s Constitution, which limits marriage to one man and one woman. The 10th U.S. Circuit Court of Appeals in Denver, which struck down Utah’s ban, had also stayed its decision, Suthers pointed out. That meant its judgment had not gone into effect in Utah, he said, “let alone in Colorado,” which is in the jurisdiction of the same appeals court.

Suthers’ office said it would be willing to ask the Colorado Supreme Court for a ruling on whether Boulder had the authority to marry same-sex couples. But it said the marriages must end first.

A separate court struggle over the constitutionality of Colorado’s own ban on same-sex marriages took a dramatic turn late Wednesday as Suthers’ office announced that the Utah ruling – if upheld by the U.S. Supreme Court – meant that “Colorado’s marriage laws cannot stand.”

Suthers and Colorado’s Democratic governor, John W. Hickenlooper, asked a federal court to suspend federal litigation over Colorado’s marriage laws as the Utah lawsuit makes its way toward the Supreme Court. In court papers, Suthers says he believes the appeals court was wrong in overturning Utah’s ban while Hickenlooper said they believed the ban was rightly struck down.

Before his announcement on Wednesday, Hall said she would keep marrying same-sex couples until she heard from a judge that she ought not to. She consulted with the county attorney before issuing the licenses, and said she believed she had a solid foothold now that the appeals court that holds sway over Colorado has ruled that same-sex couples have a “fundamental right” to marry.

“I wasn’t looking for a fight,” Hall said Wednesday. “I was looking for a way to recognize unions that should be recognized.”

The attorney general is not the only one who has questioned and criticized her move. A prominent Republican district attorney south of Denver said in a post on Twitter that she was substituting personal feelings for existing law. An editorial in The Denver Post – which supports same-sex marriage – said she had “jumped the gun.” And no other county clerks in Colorado have followed Boulder’s lead.

A Boulder native who has a husband and two daughters, Hall moved back to Colorado after working and attending culinary school on the West Coast. She ran a catering business and cooking school, served as a local Democratic chairwoman, and ran for county clerk as a reform candidate in 2006.

In the last week, as the same-sex weddings and legal standoff have propelled Hall into the news, she said, “The introvert in me is screaming.”

But if any community in Colorado was going to step into this uncertain legal terrain, it was going to be Boulder. In March 1975, two men tried unsuccessfully to get married in the conservative area of Colorado Springs and were told to try their luck here, according to the newspaper The Daily Camera. The county clerk at the time, Clela Rorex, said there were no laws against such a union, and “it is not for me to legislate morality,” the newspaper reported. After six couples married, the attorney general’s office stepped in and ended the unions.

This time, the attorney general’s office said Boulder was stirring confusion and suggested that the marriage licenses could be raising false hopes in some newly married couples. Colorado’s solicitor general, Dan Domenico, detailed those concerns in a June 27 letter to Hall.

“You, alone, are issuing marriage licenses to same-sex couples, and many of those couples have declared they believe their licenses to be legal and valid,” Domenico wrote. “Yet the state’s constitutional and statutory prohibitions on such licenses remain in effect on the books.”

In Utah, state officials made similar arguments after a federal judge first declared the state’s same-sex marriage ban unconstitutional in December. As 1,000 couples poured into government offices to wed, the state warned that the nuptials were sowing legal chaos, and it successfully petitioned the U.S. Supreme Court to temporarily block the ruling as it appealed.

In Colorado, Ben Pearlman, the county attorney in Boulder, wrote in a letter that Hall believed the couples seeking to get married were able to make their own decisions about the legal uncertainties surrounding same-sex marriage, and the risks that their unions could be invalidated.

The fight comes as Colorado faces lawsuits in state and federal court challenging its constitutional ban on same-sex marriages. The state approved civil unions in 2013, but many same-sex couples have criticized that action as a weak half-step as more states allow same-sex marriage.

“I don’t want pretty equal or pretty good,” said Dana Derichsweiler, who runs the Walnut Cafe, a popular breakfast spot, and got married late last week. “I want equal.”

Many couples, like Olivia Johnson and Ariel Cook, just wanted to get something on paper while they could, even if their new marriage license is little more than a symbol.

“What are they going to do now?” Johnson asked. “Are they going to grandfather us in, or completely deny us? I can’t say. It felt like it was going to be a short window of opportunity, so I wanted to get it on the books.”

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