As state bans on same-sex marriage continue to fall like dominoes across the country, a particularly bizarre chapter in the saga is playing out in Colorado this week. State Attorney General John Suthers (R), who just last month defended Colorado’s ban in state court, has now asked the federal court hearing a separate case to overturn the ban, but seemingly only to stop the issuing of same-sex marriage licenses in the state.
That’s because Suthers is in a bit of a stand-off with Boulder County Clerk Hillary Hall, who arbitrarily began issuing marriage licenses to same-sex couples last week. She and her lawyers determined that the 10th Circuit’s ruling against Utah’s ban set a precedent indicating that Colorado’s was unconstitutional as well, but that the stay in that case only applied to Utah. Suthers has been threatening legal action against Hall to stop the marriages, but she has been unfazed, continuing to issue licenses. So far, he has not actually taken any action against her, but it seems like his new request from the federal judge is directly related to the stand-off.
Suthers personally believes that the Utah case was incorrectly decided, but is asking the judge to similarly rule against Colorado’s ban without taking the case to trial. But, he also doesn’t want marriage equality to arrive in Colorado just yet.
The emphasis of his filing is that the ruling should be stayed — so much so that he unnecessarily underlined the word “stayed.” This would be a new precedent unlike what has played out in other states. Suthers distinguishes his intent from the outcomes in Oregon, Illinois, and Pennsylvania, where marriage equality took effect after district court rulings because the states did not appeal nor seek a stay of the rulings. If he is no longer defending the ban, it seems unlikely he would appeal the ruling he is now asking for, but he is asking for a stay nevertheless.
This novel approach seems to be directly aimed at ending Hall’s actions. One of the other county clerks named as defendants in the case could still appeal, which would be grounds for a stay anyway, but Suthers’ emphasis is immediacy. A ruling that specifically says that Colorado’s ban is still in effect, even if it’s ruled unconstitutional, might stop Hall and prevent Suthers from having to take direct legal action against her.
The attorney general’s office is also planning to file a similar motion in the separate lawsuit playing out in state court, which has already been argued. This would be a reversal of the position Suthers took in the trial last month. If allowed to move forward, it could advance to the Colorado Supreme Court sooner than any federal case is resolved by the U.S. Supreme Court, but it could also be stalled by the federal court’s actions. Suthers’ intent seems to be to stall all proceedings in Colorado until the Supreme Court rules.
Amid this murky legal territory, Hall has issued nearly 100 marriage licenses to same-sex couples.