Attorney General John Suthers (left) and Gov. John Hickenlooper
Explaining Colorado's (Possibly Legal) Scheme to Stop Same-Sex Marriages

By Sunnivie Brydum

Originally published on Advocate.com July 03 2014 2:28 PM ET

Colorado's Democratic governor and Republican attorney general have both asked a federal court to strike down the state's prohibition on same-sex marriage, though they have different aims in doing so, according to a legal brief filed Wednesday. 

Attorney General John Suthers wants a federal court to declare Colorado's ban on same-sex marriage unconstitutional, but he wants that decision to come with a stay, which would require a county clerk in Boulder to stop issuing marriage licenses to same-sex couples, reports BuzzFeed's Chris Geidner

The state's brief was filed in response to a lawsuit filed in federal district court Wednesday by six same-sex couples seeking the freedom to marry in Colorado. Advancing a novel argument in the recent nationwide legal wrangling over marriage equality, the attorney general claims that the state takes no issue with a federal court finding in favor of the plaintiffs without going to trial as long as that ruling is accompanied by a hold while this case and a concurrent federal challenge to Utah's marriage ban work their way through the appeals process. The brief is also signed by Gov. John Hickenlooper, a Democrat who announced his support for marriage equality in March.

Not granting that stay, the attorney general argues, "would invite a race to the [county] clerks' office, result in irreparable injury to the State, licenses issued under a legal cloud of uncertainty, and undermine the predictable and standard judicial process for testing the constitutionality of state laws."

"The purely procedural issue of staying the judgment so the parties can seek an expedited review is simply the right thing to do," continues the state's brief. "The message of all these decisions is clear: rulings against traditional marriage laws in favor of same-sex marriage must be stayed pending final appeals."

Boulder County Clerk Hillary Hall and Attorney General Suthers have been in an increasingly tense legal standoff after Hall decided to begin issuing marriage licenses to same-sex couples in the wake of the 10th Circuit Court of Appeals' ruling last week affirming that Utah's ban on same-sex marriage violates the U.S. Constitution. Because decisions from 10th Circuit are binding in Utah and Colorado (in addition to parts of Oklahoma, Kansas, Wyoming, and New Mexico), Hall and her attorneys determined that the Utah decision, known as Kitchen v. Herbert, effectively invalidated Colorado's similar state constitutional prohibition on marriage equality. As a result, county clerks in Boulder began issuing marriage licenses to same-sex couples June 25 and have refused to stop doing so, even though the attorney general has said the marriages are invalid. 

After threats of unspecified legal action failed to convince the Boulder clerk to stop issuing marriage licenses to gay and lesbian couples, today's filing by the attorney general appears intended to require Hall to adhere to what the attorney general says is still-enforceable Colorado law. 

As Zach Ford at ThinkProgress keenly notes, the latest move by Suthers appears to be a direct effort to end the issuance of marriage licenses to same-sex couples in Boulder County. "One of the other county clerks named as defendants in the [federal] case could still appeal, which would be grounds for a stay anyway, but Suthers’ emphasis is immediacy," writes Ford. "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."

While the attorney general and governor both signed the brief, it does note that the two lawmakers have starkly divergent views on the legal rightness of same-sex marriage. 

"To provide a clear record — the Attorney General — speaking alone as Defendant, representing the interests of the State of Colorado, believes the majority in the Tenth Circuit’s 2-1 decision in Kitchen is incorrect for the reasons stated in his motion for summary judgment and reply in support thereof in the pending state case," reads the brief. "To further clarify the record — the Governor and Denver Clerk — speaking alone as Defendants, believe the majority decision in Kitchen was correctly decided."