Judge allows Boulder Clerk to keep issuing gay marriage licenses, but validity still questioned

BOULDER, Colo. - A District Court Judge in Boulder County says the Clerk and Recorder can continue to issue marriage licenses to same-sex couples, but there is a catch.

Colorado Attorney General John Suthers was seeking an injunction against Clerk Hillary Hall who began issuing the licenses after the 10th Circuit Court of Appeals ruled against Utah's gay marriage ban. Suthers maintains that Colorado's gay marriage ban remains in effect and that the licenses issued by Boulder are invalid. Hall maintains that because Colorado is in that district, the ruling applies here.

The order from District Court Judge Andrew Harman denied Suthers' request but includes two temporary measures. The first instructs the Clerk to identify and report all marriage licenses to same-sex couples to the Colorado Department of Public Health and Welfare, Center for Health and Environmental Information and Services, as well as to the Boulder County Vital Records Office. The second measure instructs the clerk to notify all future and past recipients of the licenses "that the validity of their marriages is dependent upon whether a court would find that Clerk Hall had authority to allow same-sex marriages."

"We feel we can easily accommodate the requirements in his order," Hall said.

Later, with a smile, she said, "I'm going to continue moving forward issuing licenses."

Unlike the order from a judge in Adams County Wednesday, this order does not take a stand on the constitutionality of either civil unions or Colorado's constitutional ban on same-sex marriage.

The Boulder judge however, does reference the Adams County case in his decision and says that ruling appears to vindicate Hall's position. Consistent with his second temporary measure, Harman notes that the Adams County decision was stayed pending the decisions of higher courts.

The document also chronicles the rapid series of court rulings striking down same-sex marriage bans in several states following the Supreme Court's decision overturning California's Proposition 8. The decisions in those cases were based on the "equal protection clause" of the 14th Amendment to the U.S. Constitution.

The 146th anniversary of the amendment was celebrated Wednesday.

After the release of the court order, Hall and the county's attorney released the following written statements:

"I am very pleased with Judge Hartman's decision.  His opinion was very well-reasoned and we can easily accommodate working with the state to track these licenses. This is a victory for all loving couples wishing to marry. I want to thank all the witnesses again for sharing their personal stories with the public.  I continue to be moved by the stories of so many families affected by this issue." -Hillary Hall, Boulder County Clerk and Recorder

"We think that the judge did an excellent job applying the law to the circumstances of this case.  The challenge here was balancing the harms to the state itself vs the injuries that result from not issuing a marriage license.  Judge Crabtree has also written a compelling opinion establishing the unconstitutionality of Colorado's marriage ban, which may have influenced Judge Hartman’s decision."  -David Hughes, Deputy Boulder County Attorney

Gov. John Hickenlooper issued the following statement Thursday:

"I remain a strong advocate for marriage equality. The decision on marriage by Judge Crabtree puts Colorado on the right side of history. I have urged the attorney general not to appeal Judge Crabtree's ruling. If he feels he needs to continue to defend this discriminatory law, I urge him to seek final resolution at the Colorado Supreme Court."

Colorado House Speaker Mark Ferrandino, a Democrat and openly-gay legislator, also issued a written statement:

"Today's ruling is another step towards legal same-sex marriage in Colorado," Speaker Ferrandino said. "It is time for Attorney General Suthers to stop blocking loving LGBTQ couples from being protected equally under the law."

As of Thursday, approximately 120 marriage licenses were issued to same-sex couples in Boulder County.


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