Same-sex marriage in Colorado

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Counties in Colorado that issued licenses to same-sex couples in response to Kitchen v. Herbert and/or Colorado v. Hall
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The U.S. state of Colorado does not currently recognize the validity of same-sex marriages.

The state's constitutional ban on same-sex marriage was struck down in state district court on July 9, 2014, and in federal court, U.S. District Court for the District of Colorado, on July 23, 2014. Furthermore, the Tenth Circuit Court of Appeals has already made similar rulings with respect to such bans in Utah and Oklahoma, which are binding precedents on courts in Colorado. All of these rulings have been stayed pending appeal; the U.S. district court ruling stay is temporary and expires on August 25, 2014. Colorado also recognizes civil unions, but the decision by the state court described them as "further evidence of discrimination against same-sex couples".

Following the ruling in the Utah case, marriage licenses were issued to same-sex couples in Boulder County. Attorney General John Suthers declared that they would be invalid. After a state district court judge refused, on July 10, 2014, to order the clerk to stop issuing the licenses, the Denver County clerk's office began issuing licenses as well. The clerk of Pueblo County began issuing licenses to same-sex couples the next day. The Colorado Supreme Court ordered clerks in Denver and Adams counties not to issue marriage licenses to same-sex couples. Adams County has not issued any marriage licenses to same-sex couples. On July 21, 2014, it was announced that Pueblo County would stop issuing marriage licenses to same-sex couples. The Colorado Court of Appeals has refused to stay Boulder County's issuance of such licenses, affirming the lower court ruling that doing so is a valid form of civil disobedience. On July 29, 2014 the Colorado Supreme Court ordered the clerk in Boulder County not to issue marriage licenses to same-sex couples.[1]

Legislation enacted in February 2014 links state tax filing status to federal tax filing status, thereby enabling same-sex couples married out-of-state to file joint state income tax returns. This does not apply to civil union partners, unless they marry outside of Colorado.[2][3]

Court cases[edit]

There are five court cases dealing with same-sex marriage in Colorado. They are Brinkman v. Long, a state district court case, ruling in favor of same-sex marriage and under appeal; Burns v. Hickenlooper, a U.S. district court (i.e. federal) case, ruling in favor of same-sex marriage and also under appeal; Kitchen v. Herbert and Bishop v. Smith, two decisions out of the U.S. Tenth Circuit Court of Appeals which affirm same-sex marriage and are binding precedent on Colorado courts, and Colorado ex rel. Suthers v. Hall, a state court case currently allowing Boulder County to issue same-sex marriage licenses, which was predicated upon events that transpired after Kitchen and is intertwined with the procedural history and rulings in Brinkman, but is subject to appeal.

Brinkman v. Long[edit]

Brinkman v. Long
Seal of Colorado.svg
No. 2013-CV-32572
Colorado Seventeenth Judicial District Court
Date decided July 9, 2014[4]
Judge sitting C. Scott Crabtree, District Judge
Case history
Prior actions Motion to consolidate with McDaniel-Miccio v. Hickenlooper, No. 14-CV-30731, granted, Order of Colo. Chief Justice (May 8, 2014).
Case holding
Colorado's ban on same-sex marriage violates plaintiffs' guarantees of Due Process and Equal Protection under the Fourteenth Amendment to the U.S. Constitution.

After being denied a marriage license, a lesbian couple filed a lawsuit on October 30, 2013 in the Seventeenth Judicial District. The case, Brinkman v. Long, seeks to overturn the state's constitutional ban on same-sex marriage.[5][6] The couple was joined on February 18, 2014, by nine other same-sex couples who filed a lawsuit, McDaniel-Miccio v. Hickenlooper, also in state district court, seeking the same outcome.[7][8] Four of the couples are raising children, and five of the couples have married in other states. The suit named Governor John Hickenlooper and Denver City Clerk Debra Johnson as defendants. Hickenlooper responded by noting Colorado's support for civil union. Johnson said she supported marriage rights for same-sex couples but was obligated to follow the law by denying them marriage licenses. Attorney General John Suthers, a Republican, announced he would defend the state's ban.[9]

Consolidation and hearing[edit]

Brinkman and McDaniel-Miccio were combined for argument in state district court. Written motions for summary judgment were submitted by May 2, 2014. A court hearing was held on June 16, 2014 in Adams County before state District Judge C. Scott Crabtree, who was reported to be skeptical about the state's position.[10][11]

District court ruling[edit]

(see On July 9, 2014, Judge Crabtree ruled that Colorado's same-sex marriage ban violated the plaintiffs' guarantees of equal protection and due process under the Fourteenth Amendment to the U.S. Constitution:

No state since U.S. v. Windsor has been able to justify its ban under even the rational basis test, much less under the strict scrutiny test.

The judge also noted that because Colorado's civil unions deny same-sex couples federal benefits provided to different-sex couples, "[t]he existence of civil unions [in Colorado] is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans."[4] This argument that civil unions are inherently inferior to marriage had been used successfully before—in Kerrigan v. Commissioner of Public Health, the case that recognized same-sex marriage in Connecticut, a decision which Judge Crabtree references; and in Garden State Equality v. Dow, the New Jersey case that led to marriage equality there. The judge stayed his ruling pending the outcome of appeals[4]

Effect of Colorado ex rel. Suthers[edit]

Judge Hartman's decision in Colorado ex rel. Suthers v. Hall (see below) provided legal cover for the Boulder County clerk to issue same-sex marriage licenses as a form of civil disobedience. After Hartman's decision was handed down, the Denver County and Pueblo County clerks began issuing licenses to couples regardless of gender as well, despite Judge Crabtree's stay. When asked to enjoin the Denver County clerk from issuing licenses to same-sex couples, Judge Crabtree refused to take action. On July 14, 2014, the state's attorney general appealed Judge Crabtree's inaction to the Colorado Supreme Court. In a separate filing, and seeking a reversal of Judge Hartman's ruling, the attorney general also asked the high court for an emergency injunction to stop all state clerks from issuing licenses.[12][13]

Colorado Supreme Court action[edit]

In a July 18, 2014 unanimous order issued en banc, the Colorado Supreme Court rejected the attorney general's request for an emergency injunction—one which would have statewide effect. However, in light of the previous stay entered by Judge Crabtree but thereafter left unenforced, the Colorado Supreme Court ordered clerks in Adams and Denver counties stop issuing licenses pursuant to Colorado Appellate Rule 8 . That rule grants the high court power to issue a stay where "the trial court … has failed to afford the relief which the applicant requested", Brinkman v. Colorado, No. 2014-SA-212.[14]

The Colorado Supreme Court is scheduled to hear oral arguments regarding the merits of the state's same-sex marriage ban on September 30, 2014[15]

Burns v. Hickenlooper[edit]

Burns v. Hickenlooper
U.S. Customhouse in Denver.jpg
No. 1:14-cv-01817
U.S. District Court for the District of Colorado
Date decided July 23, 2014
Judge sitting Raymond P. Moore, U.S.D.J.
Case holding
Plaintiffs' motion for a preliminary injunction is granted. Colorado is enjoined from enforcing its ban on same-sex marriage as such is unconstitutional.

Burns v. Hickenlooper is a same-sex marriage case filed on July 1, 2014 in the U.S. District Court for the District of Colorado. The plaintiffs are six same-sex couples who have been legally married in another state but whose marriage Colorado does not legally recognize or who have been refused a Colorado marriage license, solely because of who they are. The plaintiffs' initial complaint references the Tenth Circuit decision in Kitchen v. Herbert, sues for a civil rights claim under 42 U.S.C. § 1983, and alleges that the defendants violate the Fourteenth Amendment by denying plaintiffs the fundamental right of marriage.[16] The main defendants, the state governor and attorney general, agree with the plaintiffs insofar as having the court issue an injunction declaring the same-sex marriage ban unconstitutional, but they want a stay and swift resolution by the U.S. Supreme Court in order to avoid costly litigation.[17]

Status conference and hearing[edit]

On July 15, 2014, a expedited status conference was held in the case before U.S. District Judge Raymond P. Moore. As the defendants stipulate that the Colorado same-sex marriage ban cannot stand, the only issue before the court is the state's request for a stay of the injunction to be issued against the ban. The judge scheduled a hearing on the state's motion for July 22, 2014. During the hearing, Judge Moore heard oral arguments for and against a stay.[18][19][15]

District court ruling[edit]

Judge Raymond Moore issued an order in Burns v. Hickenlooper on July 23, 2014, granting the plaintiff same-sex couples' motion for a preliminary injunction. In his ruling, Judge Moore notices a split among the state defendants even though they agree with plaintiffs' motion: "Defendant Attorney General believes Kitchen is incorrect while Defendant Governor believes Kitchen was correctly decided. ... Nevertheless, Defendants collectively do not oppose entry of a preliminary injunction, but also ask that the injunction, as well as further proceedings in this matter, be stayed."

The judge finds the plaintiffs meet their burden for an injunction:

In this case, Plaintiffs rely on the traditional four requirements for granting injunctive relief. Although the Court finds Plaintiffs seek a disfavored injunction and, therefore, a heightened standard applies, it nonetheless concludes such standard is satisfied. First, Plaintiffs have made a strong showing of a substantial likelihood of success on the merits of their claims. ... The Court agrees with the analysis in Kitchen and Bishop that marriage is a fundamental right and that the Challenged Laws impermissibly infringe upon that right. ... Next, Plaintiffs have also shown that substantial irreparable injury will result if the injunction does not issue. Where the harm is “great” or “substantial,” the deprivation of constitutional rights, for even minimal periods of time, constitutes irreparable harm. ... Third, the threatened injury to Plaintiffs by the enforcement of Colorado laws which are unconstitutional outweighs any damage the injunction may cause to Defendants. Due to Defendants’ non-opposition to the granting of an injunction, they did not address in that context how this or any other factor favored them. ... Finally, the issuance of the injunction would not be adverse to the public interest as "it is always in the public interest to prevent the violation of a party’s constitutional rights." ... In summary, even under the heightened standard, Plaintiffs have shown that all the preliminary injunction factors tip in their favor and that an injunction should be entered.

As for the defendants' request for a stay, Judge Moore finds that: "[h]aving elected largely to stand silent with respect to such factors in the context of the injunction, Defendants have not put before this Court sufficient support for the factors determining entitlement to a stay of the injunction." He notes the defendants rely on the fact that most other U.S. courts considering same-sex marriage so far have issued stays "due to the 'unsettled' nature of the constitutional questions regarding same-sex marriage and the 'confusion, potential inequity, and high costs' that would likely result if the decision granting injunctive relief were reversed on appeal" (quoting the attorney general). Judge Moore agrees with the attorney general on this point, and notes that the U.S. Supreme Court has been staying same-sex marriage cases as well, most recently in Herbert v. Evans, No. 14A65, 2014 WL 3557112 (July 18, 2014). But he cannot be persuaded:

Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it "thinks" or "perceives" the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.

Judge Moore thus only issues a temporary, one-month stay so that defendants can appeal.[20]


Immediately after Judge Moore's order was issued, state defendants filed a notice of appeal.[21]

Colorado ex rel. Suthers v. Hall[edit]

The Boulder County clerk had been issuing licenses based on her own interpretation of the Tenth Circuit ruling in Kitchen soon after that ruling was handed down. The state attorney general filed a motion before the Twentieth Judicial District in an attempt to stay the clerk's actions. However, on July 10, 2014 (a day after the Brinkman ruling) District Court Judge Andrew Hartman found that while the Boulder clerk violated the law—

There is little argument that Clerk Hall is engaging in a form of civil disobedience. She apparently is taking the position posited by St. Augustine and followed notably by Martin Luther King, Jr. that, "an unjust law is no law at all."

—he refused to impose a restraining order or injunction upon her, as the state did not meet its high burden for a stay.[22]

District court ruling[edit]

Ruling in Colorado ex rel. Suthers v. Hall, No. 2014-CV-30833, and viewing the case as a procedural one, Judge Hartman applied the test set out in Rathke v. MacFarlane, 648 P.2d 648 (Colo. 1982). The judge found for the state on two of the Rathke factors: probability of success in finding that the clerk was violating current law, and certainty that an injunction would preserve the status quo. But Judge Hartman found that the other four factors outweighed this, in the clerk's favor: that no irreparable injury would occur by issuing licenses; that if marriage licenses were issued in error, the state had an adequate remedy—precedent existed in Lockyer v. San Francisco, 33 Cal. 4th 1055 (Cal. 2004)—of invalidating the licenses; that stopping the clerk would not serve the public interest as the ban had been found unconstitutional; and that a balance of the equities did not favor stopping the clerk, either, as "the law is hanging on by a thread."[23]

Denial of reconsideration and stay pending appeal[edit]

On July 21, 2014, the state defendants appealed Judge Hartman's ruling allowing the Boulder County clerk to issue marriage licenses despite the ban, Colorado v. Hall, No. 2014-CA-1368 (Colo. App.) [24] In light of the ruling by the state supreme court staying license issuance in Adams and Denver counties, the defendants also asked Judge Hartman to reconsider his ruling and stay it.

Judge Hartman denied the state's request on July 23, 2014; he dismissed the assertion that the Colorado Supreme Court ruling in Brinkman (see above) is binding on Boulder County as "an improper circular argument". Judge Hartman noted that the high court relied on Judge Crabtree's preexisting stay of the Denver and Adams county cases when ruling; however, no such stay exists in the Boulder case. Judge Hartman then finds that issuing a stay is now even more difficult since the last time he performed Rathke analysis, as "chances of prevailing are rapidly fading since two subsequent rulings ... have found same sex marriage bans unconstitutional." The rulings he notes are Bishop v. Smith and Huntsman v. Heavilin.[25]

Appeals court ruling[edit]

On July 24, 2014, in Colorado v. Hall, a three-judge panel of the Colorado Court of Appeals denied the attorney general's motion to stay the Boulder County clerk's issuance of same-sex marriage licenses on appeal. In a short opinion, the judges affirmed Judge Hartman and said that the state did not meet the factors in Romero v. City of Fountain, 307 P.3d 122 (Colo. App. 2011).[26]

Kitchen v. Herbert[edit]

Main article: Kitchen v. Herbert

On June 25, 2014, the U.S. Court of Appeals for the Tenth Circuit in the case of Kitchen v. Herbert ruled that Utah's ban on same-sex marriage violated the U.S. Constitution. The ruling in Kitchen is binding in every state within the Circuit, including the State of Colorado. Since the Court of Appeals stayed implementation of this ruling pending review by the U.S. Supreme Court, courts in Colorado have had to interpret the precedent that Kitchen sets and whether to also stay any newer rulings pending the expiration of that stay.[27][28]

Effect of ruling[edit]

As an immediate effect of Kitchen, the Boulder County clerk immediately began issuing marriage licenses despite the stay.[29] After a state district court refused to stop the clerk (see "Effect of Colorado ex rel. Suthers" above), Denver County and Pueblo County began issuing marriage licenses to same-sex couples as well.[30] They have since stopped following a ruling by the Colorado Supreme Court.

Economic impact same-sex marriage[edit]

The Williams Institute, a department of the UCLA School of Law, researched the economic impact on the state of Colorado, if same-sex marriage (not just civil unions) were permitted.[31] The study found that allowing same-sex couples to marry in Colorado would add $50 million to its economy and $3.7 million to the state's tax revenues.[32]


  1. ^
  2. ^ "Colorado bill would recognize gay marriage- in taxes only". January 7, 2014. 
  3. ^ "Colo. governor signs bill allowing joint tax-filing for married same-sex couples". LGBTQ Nation. February 27, 2014. 
  4. ^ a b c C. Scott Crabtree, Colorado District Judge (July 9, 2014). "Summary Judgment Order, Brinkman v. Long, No. 13-CV-32572, and McDaneil-Miccio v. Colorado, No. 14-CV-30731". Colorado Seventeenth Judicial District Court, Adams County ( 
  5. ^ "Couple files suit against Colorado gay marriage ban". FOX21 News. November 1, 2013. Retrieved April 8, 2014. 
  6. ^ "Brinkman v. Long". Retrieved April 3, 2014. 
  7. ^ Verlee, Megan (February 20, 2014). "Same-sex couples file suit to overturn Colorado gay marriage ban". Colorado Public Radio. Retrieved April 8, 2014. 
  8. ^ "McDaniel-Miccio v. Hickenlooper". Retrieved April 3, 2014. 
  9. ^ Mitchell, Kirk; Lee, Kurtis (February 19, 2014). "Nine couples seek to overturn Colorado's gay marriage ban". Denver Post. Retrieved April 8, 2014. 
  10. ^ Steffen, Jordan (June 16, 2014). "Colorado Defends Same Sex Marriage Ban in Court". The Denver Post. Retrieved June 17, 2014. 
  11. ^ Riccardi, Nicholas (June 16, 2014). "Colorado judge skeptical of gay marriage ban". Salt Lake Tribune. Associated Press. Retrieved June 17, 2014. 
  12. ^ Ingold, John (July 14, 2014). "Suthers asks Supreme Court to stop clerks from issuing licenses to gay couples". Denver Post. Retrieved July 14, 2014. 
  13. ^ Francisco, Michael (on behalf of Colorado Attorney General John W. Suthers) (14 July 2014). "Emergency Motion for Injunction Pending Appeal, Colorado ex rel. Suthers v. Hall, No. 2014-SA-212". Colorado Supreme Court ( 
  14. ^ Per Curiam (18 July 2014). "Order of Court, Brinkman and Burd v. Colorado, No. 2014-SA-212". Colorado Supreme Court, en banc (LGBTQ 
  15. ^ a b Mitchell, Kirk (16 July 2014). "Federal judge weighs arguments in Colorado gay marriage case". 
  16. ^ Newman, Mary (Attorney for Plaintiffs) (1 July 2014). "Complaint for Declaratory and Injunctive Relief, Burns v. Hickenlooper, No. 1:14-cv-01817". U.S. District Court for the District of Colorado (LGBTQ PACER Document 1. 
  17. ^ Moreno, Ivan (3 July 2014). "Colorado officials ask court to declare same-sex marriage ban unconstitutional". LGBTQ Associated Press. 
  18. ^ Pearson, Cathy (Courtroom Deputy for U.S. District Judge Raymond P. Moore) (15 July 2014). "Courtroom Minutes, Status Conference. Burns v. Hickenlooper, No. 1:14-cv-01817". U.S. District Court for the District of Colorado ( PACER Document 38. 
  19. ^
  20. ^ Raymond P. Moore, U.S. District Judge (23 July 2014). "Order, Burns v. Hickenlooper, No. 1:14-cv-01817". U.S. District Court for the District of Colorado ( PACER Document 45. 
  21. ^ Francisco, Michael (Assistant Solicitor General) (23 July 2014). "Notice of Appeal, Burns v. Hickenlooper, No. 1:14-cv-01817". U.S. District Court for the District of Colorado ( PACER Document 46. 
  22. ^ Steffen, Jordan (10 July 2014). "Judge rejects state attempt to stop Boulder clerk from issuing same-sex marriage licenses". The Denver Post. 
  23. ^ Andrew Hartman, District Judge (10 July 2014). "Order Denying Motion for T.R.O. and Prelim. Injunction, Colorado ex rel. Suthers v. Hall, No. 2014CV30833". Colorado Twentieth Judicial District Court, Boulder County (LGBTQ 
  24. ^ Francisco, Michael (Assistant Solicitor General) (21 July 2014). "Notice of Appeal, Colorado v. Hall, No. 2014-CA-1368". Colorado Court of Appeals ( 
  25. ^ Andrew Hartman, District Judge (23 July 2014). "Order: Denying Motion for Stay Pending Appeal / Reconsideration, Colorado ex rel. Suthers v. Hall, No. 2014-CV-30833". Colorado District Courts ( 
  26. ^ Casebolt, Gabriel, and Booras, Judges of the Court of Appeals (24 July 2014). "Colorado v. Hall, No. 2014-CA-1368". Colorado Court of Appeals ( 
  27. ^ "Nearly simultaneous decisions strike down gay marriage bans". CNYCentral. The Associated Press. June 25, 2014. Retrieved Jun 25, 2014. 
  28. ^ Canham, Matt (June 25, 2014). "Answering your questions on the same-sex marriage ruling". The Salt Lake Tribune. Retrieved Jun 25, 2014. 
  29. ^ Aguilar, John (June 25, 2014). "Boulder County begins issuing same-sex marriage licenses; AG says no". The Denver Post. Retrieved Jun 25, 2014. 
  30. ^ "Denver clerk begins issuing same-sex marriage licenses". The Denver Post. July 10, 2014. Retrieved July 10, 2014. 
  31. ^ "Same-sex marriage could add $50 million to Colorado economy". Retrieved April 3, 2014. 
  32. ^ "Estimating the Economic Boost of Marriage for Same-Sex Couples in Colorado". UCLA Williams Institute. Retrieved April 3, 2014. 

See also[edit]