5 Ways A Colorado Judge Destroyed Conservatives’ Arguments Against Marriage Equality

Rebecca Brinkman and Margaret Burd, plaintiffs in the Colorado marriage case. CREDIT: AP PHOTO/BRENNAN LINSLEY
Rebecca Brinkman and Margaret Burd, plaintiffs in the Colorado marriage case. CREDIT: AP PHOTO/BRENNAN LINSLEY

Colorado is the latest state where a judge has overturned a ban on same-sex marriage. Though most of the decisions over the past year have been made by federal judges, Wednesday’s Colorado decision comes from a state court. Adams County District Judge C. Scott Crabtree, who was appointed by Republican Gov. Bill Owens in 2001, ruled that Colorado’s constitutional and statutory bans violate the U.S. Constitution.

Crabtree’s immediately stayed his ruling, meaning that the status quo for marriage has not yet changed in the state. Though he did not employ any color commentary as some judges have, here are five highlights from how Crabtree laid out the case for marriage equality:

1. No Limitations On The “Fundamental Right To Marry”

One of the arguments against same-sex marriage is that the word “marriage” has inherent gender limitations in its definition. Referencing the recent Utah case, Crabtree dismissed the idea that the right to marry does not include the right to choose who to marry: “The Court heartily endorses the recent holding by the Tenth Circuit in Kitchen v. Herbert that the marital right at issue was never framed as the “right to interracial marriage in Loving or the “prisoner’s right to marriage” in Turner or the “dead-beat dad’s” right to marriage in Zablocki.


“Instead, the Supreme Court has repeatedly utilized the term ‘fundamental right to marry’ without any limitations. The Court rejects the State’s attempt to too narrowly describe the marital right at issue to the right to marry a person of the same sex.”

2. Protecting Children Is A “Pretext” For Discrimination

Crabtree describes Colorado’s defense of its ban as “post-hoc,” suggesting that the ideas were invented after the ban was passed, as opposed to being ideas to justify the ban in the first place. He was particularly unimpressed with the state’s arguments in favor of “encouraging procreation and marital commitment for the benefit of the children.”

“The problem with this post-hoc explanation,” he wrote, “is that it utterly ignores those who are permitted to marry without the ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages.”

3. The State Actually Passed The Ban Just To Protect “Tradition”

Investigating the legislative record, Crabtree uncovered what actually motivated Colorado to pass the ban in the first place. He quotes lawmakers making slippery slope arguments about polygamy and incest and suggesting same-sex unions will contribute “to the decay of society” and be “harmful to our state.” Only one lawmaker made any comments about marriage providing a stable environment for children, but even he was concerned that the state should “maintain that traditional definition.”


Crabtree dismissed these notions, concluding that “the State does not have a sufficiently important/compelling interest in forbidding same-sex marriages or nullifying Colorado residents’ valid out of-state same-sex marriages” and doing so thus violates same-sex couples’ due process rights.

4. Banning Same-Sex Marriage Does Nothing But Ban Same-Sex Marriage

Because the State could not establish a compelling interest for the ban, Crabtree concluded that it “cannot even pass muster under the rational basis analysis,” the lowest standard of judicial review. “The sole basis for precluding same-sex marriage is self-evident,” he wrote. “The parties are of the same sex and for that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples.”

Thus, he ruled, banning same-sex marriage also violates same-sex couples’ equal protection rights.

5. Civil unions are discriminatory.

Colorado was one of the very last states to pass civil unions, granting some of the rights of marriage to same-sex couples. Crabtree considered whether they constitute a legitimate alternative to civil marriage and found that they do not, particularly because they are not recognized by the federal government. “The fact is that those in a civil union do not and cannot obtain the same benefits and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and facing loss of social security and veterans benefits,” he wrote. “If civil unions were somehow the equivalent of marriage, there would be no real need for this second tier relationship.”


Thus, “The Court finds that confining same-sex couples to civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans.”

Crabtree’s decision follows several other state court decisions over the past year in New Mexico, New Jersey, and Arkansas.