Adams County Judge says civil unions do not substitute for marriage, rules bans 'unconstitutional'

BRIGHTON, Colo. - Colorado's gay marriage ban is called "discriminatory" and "unconstitutional" by an Adams County judge in his ruling on a lawsuit filed by a same-sex couple.

Rebecca Brinkman and Margaret Burd said they went to the Adams County Clerk and Recorder's Office on October 30, 2013 and asked for an application for a marriage license. According to their lawsuit, County Clerk and Recorder Karen Long said "they could not get married to each other because they were both female."

In a summary judgment order on the case issued Wednesday, District Court Judge C. Scott Crabtree wrote, "The Court holds that the Marriage Bans violate plaintiffs' due process and equal protection guarantees under the Fourteenth Amendment to the U.S. Constitution."

Adopted in 1868, the Fourteenth Amendment contains a section known as the "equal protection clause." It says state and federal government cannot "deny to any person within its jurisdiction the equal protection of the laws."

Wednesday is the 146th anniversary of the adoption of that amendment.

Crabtree's order goes on to call same-sex marriage bans "discriminatory" and compare civil unions to the "separate but equal" doctrine that allowed for racial discrimination in black and white educational systems.

However, the decision was immediately put on hold "pending a resolution of the issue on appeal."

Crabtree wrote, "This Court is under no delusion that the resolution of the issue of same-sex marriages will end with this Court's decision or any lower courts' decisions. The final chapter of this debate will undoubtedly have to be written either in Denver, Colorado or Washington, D.C."

The lawsuit also sought legal relief against Governor John Hickenlooper, but the judge did not grant that request. The complaint against the governor was dismissed "without prejudice" because Crabtree said he was not presented with sufficient facts to show the governor could be found liable.

In response to the order, Colorado Attorney General John Suthers issued this written statement:

"Judge 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. The county clerks are agents of the state and should be bound by the stay order.

Judge Crabtree provides additional clarity that until the high court rules on the issue of same-sex marriage, Colorado's current laws remain in place. While the legal debate regarding same-sex marriage continues, and many find the legal process frustrating, adherence to the rule of law will bring about the final resolution with the greatest certainty and legal legitimacy. That certainty and legitimacy is in the best interests of everyone, including gay couples who desire to marry."

Suthers is simultaneously awaiting a ruling in Boulder County, where his office is seeking an order temporarily stopping that county's clerk form issuing same-sex marriage licenses. The judge in that case is expected to rule "shortly" on whether Clerk Hillary Hall can keep issuing marriage licenses to gay couples.

*July 10 Update: On Thursday, the judge in Boulder referenced the Adams County decision in a decision allowing the clerk to continue issuing the licenses.

After Crabtree's ruling, Colorado House Speaker Mark Ferrandino, a Democrat and openly-gay legislator, issued a statement saying he wanted Suthers to stop efforts to block gay marriages.

"I'm calling on Attorney General Suthers not to appeal today’s decision and to let the ruling go into effect," Speaker Ferrandino said. "To oppose marriage equality is legally and morally wrong, and a waste of taxpayer dollars."

Rep. Jared Polis, Democratic congressman from Colorado's second district, also issued a written response praising the court's decision:

"I am thrilled that Judge Crabtree has recognized that the Colorado ban on same sex marriage is a violation of due process and equal protection guarantees under the Fourteenth Amendment. More than that, he has recognized, as many of his peers across the country have, that marriage should be an institution of love and commitment, not prohibition and discrimination. I look forward to his ruling being upheld by the higher courts, and am confident marriage equality in Colorado is within sight."

"Immediately, I was just jumping up and cheering," said Sandra Abbott, who sued the state along with eight other couples. "It's huge.  It's incredibly important for my family," she said.

While the judge issued a stay, putting the burden on someone else to enforce his ruling, Abbott doesn't see that as a defeat.

"Like any parent I worry about my children, 'are they protected?' And this ruling is another step closer to me feeling as if I have the same rights as any other married couple in Colorado to protect my family," she said.

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