Boulder County clerk Hillary Hall sends formal response to state on same-sex marriage licenses

BOULDER, Colo. - The Boulder County Clerk said Wednesday that she feels she must continue issuing marriage licenses to same sex couples because "the harm caused by a continuing violation of their civil rights could be irreparable."

The state Attorney General's Office gave clerk Hillary Hall a deadline of noon Tuesday to stop issuing those marriage licenses or face legal action.

Hall, the only county clerk in Colorado currently issuing marriage licenses to same-sex couples, refused to stop.

"Our position is the same as previously stated," Hall said. "Same-sex licenses are legal and just licenses and we will continue to issue them.”

On Wednesday, Boulder County Attorney Ben Pearlman, writing on behalf of Hall, sent the state a formal response to their request that she stop.

The letter reiterates that Hall made the decision after the 10th Circuit Court's decision in Kitchen v. Herbert, "which found that same sex couples have a fundamental federal constitutional right to marriage," the letter said. "This decision is consistent with the 23 cases since the Supreme Court's decision in (the) Windsor (case) that have uniformly found same-sex marriage bans unconstitutional."

While the 10th Circuit Court put its decision on hold pending an expected appeal,  Pearlman's letter said, "Given all of the other law in this area, the 10th Circuit's decision to stay its mandate is too fragile a shield to hide behind."

The letter says Hall understands that the licenses she is issuing could be invalidated.

"She believes the applicants are capable of making their own decisions about the risks involved, and, in the extremely unlikely circumstances that these licenses are invalidated, they can take corrective action," the letter said. "In contrast, the harm caused by a continuing violation of their civil rights could be irreparable."

-- Boulder clerk started issuing marriage licenses last week --

Last Wednesday, in response to the historic ruling in the 10th Circuit Court in favor of gay marriage, Hall announced she would begin issuing marriage licenses to same-sex couples immediately.

Two licenses were issued before the office closed Wednesday. Hall said 88 licenses have been issued since then.

Hall said because 10th Circuit decisions are binding in the State of Colorado, the precedent established by a Utah case, Kitchen v. Herbert, is applicable to the same-sex marriage ban contained in the Colorado Constitution.

"The 10th Circuit Court covers Colorado and Utah, so we felt that the stay applied to the clerks in Utah and it didn't mandate that they start issuing licenses right away so we didn’t feel it applied to us," said Hall.

However, Colorado Attorney General John Suthers disagreed.

"Colorado’s constitutional prohibition on same-sex marriages remains in effect," Suthers said in a statement. "(Wednesday's) decision by the 10th Circuit Court of Appeals was stayed by the Court and has not gone into effect even in Utah, let alone in Colorado. Any marriage licenses issued to same-sex couples in Colorado before a final court resolution of the issue are invalid."

Neither the Solicitor General, nor the AG's office, have issued a statement since Hall said she will continue issuing licenses.

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