Same-Sex Marriage Ban Appears Headed For Dustbin of History

John Suthers, Don Quick.

John Suthers, Don Quick.

​​As the Denver Post's Jordan Steffen reported from Adams County Court in Brighton yesterday:

The Colorado attorney general's office defended the state's ban on gay marriage on Monday, arguing that 15 state and federal judges who have struck down similar measures in other states were wrong.

But the judge hearing the case mocked the state's argument that Colorado's ban on same-sex marriage protects the "nature of marriage" and the ability to produce children…

"They all got it wrong?" Crabtree asked. "What am I supposed to do then when presented with this? Just punt?"

With same-sex marriage bans being ruled unconstitutional across the nation in rapid succession, Republican Colorado Attorney General John Suthers' stubborn insistence on defending Amendment 43, the same-sex marriage ban in the Colorado constitution, is becoming much harder to defend politically. The wisdom of Democratic AG candidate Don Quick in calling out Suthers early and loudly for continuing to defend Amendment 43 is becoming more apparent:

Colorado Attorney General John Suthers has faced criticism for his decision to defend the ban. Attorneys general have declined to defend against similar lawsuits in several other states.

That criticism of Suthers naturally extends to his chief deputy AG Cynthia Coffman, who is the Republican nominee to succeed him. Every day the AG's office continues what is in all probability a futile effort to defend Colorado's same-sex marriage ban, they surrender moral and political high ground to Cynthia Coffman's Democratic opponent. The only real division on the issue of marriage equality today is within the Republican Party.

Bottom line: the days of remaining on the wrong side of this issue as a viable candidate for office–especially statewide office in Colorado–are numbered.

23 Community Comments, Facebook Comments

  1. notaskinnycooknotaskinnycook says:

    I've been following this issue very closely as I have a dog in this fight. Reading APstory after AP story and legal brief after legal brief from the states' (weak) attempts at defending them it is clear to me that once again, the state's got nothing: marriage is about chldren, it contradicts religious teaching, and my personal favorite; the people voted for it. See? Nothing. The law's going down and any day a ruling is coming down from the 10th Circuit that will overturn Colorado's law anyway. Of course, they'll appeal. I'm taking bets on which Circuit's case will be heard by SCOTUS and drive the last nail into DOMA's coffin.

    • Urban Snowshoer says:

      How the U.S. Supreme Court rules is hard to predict: they've voided amendments in the past (e.g. Colorado's Amendment 2), however, part of me suspects that the court will be reluctant to outright strike down a state constutitional amendment.  It's something you want do sparingly–otherwise federlism is virtually meaningless, and if nothing else–the courts get accused of the dreaded "judicial activism."

      I'm completely in favor of the amendment banning same-sex marriage being removed; however, I'm not sure a court decision is the best way to do so.

      • notaskinnycooknotaskinnycook says:

        That's the only way it's ever going to happen, U.S. Besides, what these mini-DOMAs violate is the principle of comity. That is what Loving v. Virginia was partially about. The marriage was legal in D.C.; in Virginia it was a crime. In states with mini-DOMAs the same-gender marriages are void, thus violating the 14th Amendment right "freely to travel among the several states". If one's marriage ceases to exist when one crosses a border into a state that does not recognize it, one is limited in where one can go. 

  2. Arvadonian1Arvadonian1 says:

    The only division is in the Republican Party?  Really?  Who represents the pro-equality side within the Republican Party?  Is there a single elected republican…or republican candidate for any office in Colorado that is pro-equal marriage rights?  They seem pretty uniform to me and anyone else who is paying attention.  The only division on gay issues in the Republican party of late seems to be if gays are worthy of stoning or reparative therapy.

  3. My big worry about this is that there is no controlling Federal court decision to contradict the Colorado State Constitution. While Scalia's words are often quoted from the DOMA case, it was a dissent about a peripherally related issue. To date, Federal district courts are the highest level ruling on gay marriage rights. And that's not sufficient to overturn a Constitutional provision.

    While this state Court judge might rule against the state, it is an open question whether the state Supreme Court would uphold just a ruling overturning a provision in the state Constitution which they are obligated to uphold barring a ruling from above (US Court of Appeals or Supreme Court), or a finding that the Constitutional provision clearly violates the US Constitution. Since the court already ruled that Amendment 43 language was valid, such a finding would be a pretty severe turnaround.

    Of course, it's possible the 10th Circuit could rule on the Utah case in favor of gay marriage soon – and not issue a stay. In that case, the state court would be obligated to overturn Colorado's ban.

    Just MHO. I am not a lawyer, and I don't play one on TV.

    • notaskinnycooknotaskinnycook says:

      I'm not a lawyer either, Phoenix, but I've been watching these cases and the states haven't won one since Windor was handed down. !5 in a row have been stricken for being in conflict with SCOTUS' reasoning in that case. They are all based in "bare animus toward an unpopular group" as Justce Kennedy wrote.

       Oklahoma is also in the 10th Circuit and it's a bit of a race which of them will hit the Tenth Circuit first.   

      • Utah was heard April 10; Oklahoma on April 17. My guess is they'll rule on both at the same time, and soon.

        My point is that this case is being heard in the Colorado state court system. The state courts are limited in their ability to rule on things – and one of those limitations is that they can't just invalidate sections of our state Constitution. If a Federal court covering our state rules generally on gay marriage, then they'll have something to go on. If there were a clear ruling on the Constitutionality of gay marriage bans, they could rule.

        But simply having a plethora of Federal district courts (and state courts in states unlike Colorado that have broad grants of rights) ruling against the bans doesn't help our state courts overcome the hurdle that is presented by enshrining the ban into the state's Constitution. My hunch is that they need more than that.

      • notaskinnycooknotaskinnycook says:

        Phoenix, I just re-read your post and wanted to address your point about the court ruling on the acceptability of the language in Amendment 43. The court ruled on the wording of the question, but said nothing about its constitutionality as that would have been considered prior restraint. The language of Amendment 2 was also challenged and found to be acceptable, only to be enjoined the day after it passed at the ballot box. Again, I'm no lawyer, either, I just watched that case with as keen interest as I've been watching this drama play out and I see little chance for a different outcome. 


        • You are, of course, right on the Court's pre-ballot ruling – it's just the wording.

          However, I still maintain that there is no clear guidance at the Federal level for the state courts to follow in this case – but there will be by the time the case hits the Colorado Supreme Court.

          In the event that the US Court of Appeals rules for Utah and Oklahoma, Colorado's case becomes a separate issue – whether civil unions have any reason for being distinct from marriage. IMHO the CO Supreme Court would rule on this.

          In the more likely event that the 10th Circuit rules against Utah and Oklahoma, the Colorado Supreme Court will likely tie A43's fate to those cases. While they're stayed, the Colorado Supreme Court will probably await the Federal ruling. If there's no stay, the justices will probably overturn A43 based on the fact that the Appeals Court ruling is binding on the state.

  4. Urban Snowshoer says:

    John Suthers always seems to end up defending the losing side: e.g. Affordable Care, and now same-sex marriage.

  5. mamajama55mamajama55 says:

    Cook, you'd get married if you could? 

    I wonder how much the bans on gay marriage create impermanence and infidelity in gay culture. You and I know how prevalent that is. (I'm bisexual). 

    So far, all my long term marriages, straight and gay, have failed in the end, for similar reasons, but I did get two great kids out of the straight one. I wonder if gay marriage had been legal then, how that would affect commitment and quality of same-sex relationships. 

    • notaskinnycooknotaskinnycook says:

      MamaJ I have a secret. My spouse is a M-F TS. We were legally married over 20 years ago as male and female- long after she partially transitioned. We figured that if Colorado wouldn't allow her to change her documetation (which at the time, it would not) then we should hang 'em with their own rope. My interest in these cases now is actually in Virginia, where her company is based. They won't recognize the marriage as F-F so it affects my elegibilityfor health insurance on her company plan.

  6. gaf says:

    Doug Lamborn and Bentley Rayburn in their debate last night were trying to outdo each other in continuing to oppose same-sex marriage.

  7. Diogenesdemar says:

    Of course it's headed for history's dustbin — with or without Suthers, or Quick — as it should be. 

    Doesn't change anything about the fact that even in his wettest dream, Quick won't be AG — and could never be half the AG of Suthers, or even of Quick's opponent. 

    Too bad really.  There's dozens of Dems that would make great AGs for Colorado, and hundreds who could do better than Quick. I can't figure out why this chump is the best we could land this cycle???

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