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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Same-sex marriage in Colorado is not currently recognized by the state or performed within the state.

In 1975, Clela Rorex, the county clerk of Boulder County, Colorado, became the first county clerk in the nation to issue marriage licenses to same-sex couples.[1]

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 had already made similar rulings with respect to such bans in Utah on June 25 and Oklahoma on July 18, which are binding precedents on courts in Colorado. All of these rulings have been stayed pending appeal; the U.S. district court ruling stay was temporary and set to expire on August 25, 2014 but was later extended. Colorado 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.[2]

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.[3][4]


In 1975, the Boulder County Clerk issued marriage licenses to several same-sex couples after the local district attorney interpreted Colorado's statutes, which used the phrase "any two persons", to be gender-neutral with respect to marriage. The state attorney general issued a contrary opinion that those marriages were invalid.[5] When one of those married in Boulder tried to use it to sponsor his husband for immigration purposes, he lost his case, Adams v. Howerton, in federal court.[6]

In 2006, a state referendum added language to the Colorado Constitution that restricted marriage and common law marriage to couples of different sexes, without mentioning civil unions or domestic partnerships.[7]

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 which previously allowed 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 was stayed and is under appeal before the Colorado Supreme Court.

Brinkman v. Long[edit]

Main article: Brinkman v. Long

After being denied a marriage license, a lesbian couple filed a lawsuit on October 30, 2013 in the Colorado District Court. The case, Brinkman v. Long, seeks to overturn the state's constitutional ban on same-sex marriage.[8][9] The couple was joined by nine other same-sex couples who filed a lawsuit, McDaniel-Miccio v. Hickenlooper, also in state district court, seeking the same outcome.[10][11] The suit named the state's governor and a city clerk responsible for licensing marriages as defendants. Colorado's attorney general announced he would defend the state's ban.[12]

Brinkman and McDaniel-Miccio were combined for argument in state district court. On July 9, 2014, District Court Judge C. Scott 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, stating: "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 stayed his ruling pending the outcome of appeals[13]

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.[14][15]

On July 18, 2014, the Colorado Supreme Court ordered clerks in Adams and Denver counties stop issuing marriage licenses. The state supreme court is scheduled to hear oral arguments regarding the merits of the state's same-sex marriage ban on September 30, 2014[16]

Burns v. Hickenlooper[edit]

Main article: Burns v. Hickenlooper

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.[17] 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.[18]

U.S. District Judge Raymond Moore found in favor of the plaintiffs in Burns on July 23, 2014, granting their 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." After finding that the plaintiffs meet their burden for an injunction, he rejects the defendants' request for a stay.

Immediately after Judge Moore's order was issued, state defendants filed a notice of appeal and asked the U.S. Court of Appeals for the Tenth Circuit for a stay. The appeals court granted the stay on August 21, 2014.[19][20]

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 in the Colorado District Courts 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.'"—but he refused to impose a restraining order or injunction upon her, as the state did not meet its high burden for a stay.[21]

On July 21, 2014, the state attorney general appealed the ruling; in light of the ruling by the state supreme court staying license issuance in Adams and Denver counties, the attorney general also asked Judge Hartman to reconsider his ruling and stay it. Judge Hartman denied the state's request on July 23, 2014; the next day, a three-judge panel of the Colorado Court of Appeals again denied the attorney general's motion.[22]. The Colorado Supreme Court, sua sponte on July 29, 2014, decided to hear the case and ordered it transferred and requested the record on appeal to be filed before it by October 20, 2014. The state supreme court stayed the Boulder clerk from issuing same-sex marriage licenses in the meantime.[23]

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 on courts in every state within the Circuit, including 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 follow the precedent that Kitchen sets and stay subsequent rulings pending the expiration of that stay.[24][25]

Immediately following the decision in Kitchen, the Boulder County clerk immediately began issuing marriage licenses despite the stay.[26] After a state district court refused to stop the clerk (see Colorado ex rel. Suthers v. Hall), Denver County and Pueblo County began issuing marriage licenses to same-sex couples as well.[27] All Colorado counties have since stopped issuing same-sex marriage licenses following stays issued by the Colorado Supreme Court.

Economic impact of 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.[28] 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.[29]


  1. ^ Harris, Kyle (August 13, 2014). "Clela Rorex Planted the Flag for Same-Sex Marriage in Boulder Forty Years Ago". Westword Newsletters. Retrieved August 22, 2014. 
  2. ^
  3. ^ "Colorado bill would recognize gay marriage- in taxes only". January 7, 2014. 
  4. ^ "Colo. governor signs bill allowing joint tax-filing for married same-sex couples". LGBTQ Nation. February 27, 2014. 
  5. ^ Eskridge, Jr., et al., William N. (2006). Gay Marriage: for Better or for Worse?: What We've Learned from the Evidence. NY: Oxford University Press. pp. 22–3. 
  6. ^ Leagle, Inc.: Adams v. Howerton, 486 F. Supp. 1119 (C.D.Cal.1980). Accessed July 30, 2011
  7. ^ "Colorado Amendment 43, Definition of Marriage (2006)". Ballotopedia. Retrieved January 24, 2013. 
  8. ^ "Couple files suit against Colorado gay marriage ban". FOX21 News. November 1, 2013. Retrieved April 8, 2014. 
  9. ^ "Brinkman v. Long". Retrieved April 3, 2014. 
  10. ^ Verlee, Megan (February 20, 2014). "Same-sex couples file suit to overturn Colorado gay marriage ban". Colorado Public Radio. Retrieved April 8, 2014. 
  11. ^ "McDaniel-Miccio v. Hickenlooper". Retrieved April 3, 2014. 
  12. ^ Mitchell, Kirk; Lee, Kurtis (February 19, 2014). "Nine couples seek to overturn Colorado's gay marriage ban". Denver Post. Retrieved April 8, 2014. 
  13. ^ 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 ( 
  14. ^ Ingold, John (July 14, 2014). "Suthers asks Supreme Court to stop clerks from issuing licenses to gay couples". Denver Post. Retrieved July 14, 2014. 
  15. ^ Francisco, Michael (on behalf of Colorado Attorney General John W. Suthers) (July 14, 2014). "Emergency Motion for Injunction Pending Appeal, Colorado ex rel. Suthers v. Hall, No. 2014-SA-212". Colorado Supreme Court ( 
  16. ^ Mitchell, Kirk (July 16, 2014). "Federal judge weighs arguments in Colorado gay marriage case". 
  17. ^ Newman, Mary (Attorney for Plaintiffs) (July 1, 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. 
  18. ^ Moreno, Ivan (July 3, 2014). "Colorado officials ask court to declare same-sex marriage ban unconstitutional". LGBTQ Associated Press. 
  19. ^ Francisco, Michael (Assistant Solicitor General) (July 23, 2014). "Notice of Appeal, Burns v. Hickenlooper, No. 1:14-cv-01817". U.S. District Court for the District of Colorado ( PACER Document 46. 
  20. ^ Shumaker, Elisabeth A. (Clerk of Court) (August 21, 2014). "Order (Granting Motion for Stay), Burns v. Suthers, No. 14-1283". U.S. Court of Appeals for the Tenth Circuit ( PACER Document 01019298948. 
  21. ^ Steffen, Jordan (July 10, 2014). "Judge rejects state attempt to stop Boulder clerk from issuing same-sex marriage licenses". The Denver Post. 
  22. ^ Casebolt, Gabriel, and Booras, Judges of the Court of Appeals (July 24, 2014). "Colorado v. Hall, No. 2014-CA-1368". Colorado Court of Appeals ( 
  23. ^ By the Court, En Banc (29 July 2014). "Order of Court (Transferring Record and Issuing Stay), Colorado v. Hall, No. 2014-SC-582". Colorado Supreme Court ( 
  24. ^ "Nearly simultaneous decisions strike down gay marriage bans". CNYCentral. The Associated Press. June 25, 2014. Retrieved Jun 25, 2014. 
  25. ^ Canham, Matt (June 25, 2014). "Answering your questions on the same-sex marriage ruling". The Salt Lake Tribune. Retrieved Jun 25, 2014. 
  26. ^ Aguilar, John (June 25, 2014). "Boulder County begins issuing same-sex marriage licenses; AG says no". The Denver Post. Retrieved Jun 25, 2014. 
  27. ^ "Denver clerk begins issuing same-sex marriage licenses". The Denver Post. July 10, 2014. Retrieved July 10, 2014. 
  28. ^ "Same-sex marriage could add $50 million to Colorado economy". Retrieved April 3, 2014. 
  29. ^ "Estimating the Economic Boost of Marriage for Same-Sex Couples in Colorado". UCLA Williams Institute. Retrieved April 3, 2014. 

See also[edit]