Federal judge rules Colorado's ban on same-sex marriage is unconstitutional but puts order on hold

DENVER - A federal judge has ruled that Colorado's ban on same-sex marriage is unconstitutional but put his order on hold.

Colorado voters approved the same-sex marriage ban in 2006, making it Article II, Section 31 of the state constitution. It was challenged in this lawsuit by six same-sex couples.

U.S. District Judge Raymond P. Moore ordered Wednesday that the Governor, Attorney General and Jefferson County Clerk cannot enforce the ban or use it as reason to deny recognition of same-sex marriages licensed by other states. However, he agreed to put the decision on hold until 8 a.m. on August 25.

"The threatened injury to Plaintiffs (the six Colorado couples) by the enforcement of Colorado laws which are unconstitutional outweighs any damage the injunction may cause to Defendants (the state)," he wrote.

Moore's delay in enforcing the decision is related to his understanding that the final result will be tied to another case in the superseding 10th Circuit Court of Appeals. That case, a challenge against Utah's same-sex marriage ban, ignited the recent legal tug-of-war about Colorado's equivalent ban. 

Boulder County Clerk and Recorder Hillary Hall started issuing the licenses to same-sex couples following the 10th Circuit Court of appeals ruling that found Utah's ban on same-sex marriages was unconstitutional. That case is entitled Kitchen V. Herbert.

Because 10th Circuit decisions are binding in the State of Colorado, Hall took the position that the decision meant she could issue the marriage licenses to same-sex couples.

Subsequently, Hall won a legal challenge in state court and that led Denver and Pueblo clerks to follow suit for a while. Denver was ordered to stop issuing the licenses last week by the Colorado Supreme Court until the justices reach a wider ruling on the validity of the state's ban. Pueblo's clerk was not explicitly ordered to stop issuing the licenses, but did so "reluctantly."

Boulder, however, won a decision Wednesday in local district court against Attorney General John Suthers' second attempt to get Clerk Hall to stop issuing the licenses.

In the new federal decision, which was issued Wednesday evening, Moore notes that Suthers acknowledged in a hearing that if the Utah decision "is upheld or becomes final, the Challenged Laws are unconstitutional."

Moore continues, "Little would thus be served by requiring the parties to incur the costs and expenses of litigating to final proceedings in this case while trailing Kitchen."

So while ordering the state of Colorado cannot enforce the ban, his decision to stay the order will put it on hold until three days after the final mandate is issued in Utah's Kitchen V. Herbert.

A Colorado District Court judge has also ruled the ban unconstitutional, but also put his order on hold. That case is currently being considered by the Colorado Supreme Court and led to the order temporarily stopping Denver from issuing marriage licenses to same-sex couples.

More than 20 courts have issued rulings siding with gay marriage advocates since the U.S. Supreme Court's ruling last year striking down the Defense of Marriage Act, which denied federal benefits to married same-sex couples. The rulings have come in 17 states.

Suthers has already filed a notice of appeal to the 10th Circuit Court of Appeals.

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