A federal judge this afternoon declared that tomorrow he will issue an injunction to overturn Colorado’s ban on same-sex marriage. But he added that he has still not decided whether to stay his decision pending a ruling by the US Supreme Court.
Colorado Republican Attorney General John Suthers is not opposing the injunction, but wants it to be stayed until the nation’s highest court decides the issue. However, the attorney for the gay couples told the judge repeatedly that “justice delayed is justice denied.” “Fundamental rights cannot be stayed,” said Mari Newman, one of the attorneys filing suit on behalf of the six couples. The judge said he is going to issue a ruling Wednesday. A ruling in favor of the plaintiffs, without a stay, would open the door to allowing clerks statewide to issue marriage licenses to same-sex couples. But Michael Francisco, the assistant solicitor general arguing on behalf of Suthers’ office, said they will continue to pursue a stay with a higher court if the judge denies it. Francisco noted there’s legal precedent where stays have been issued when courts in other states have found same-sex marriage bans unconstitutional. “The reason is that the stays are appropriate to preserve the status quo while the appellate courts hear these cases,” he said.
Colorado has been going through one of the most convoluted marriage battles yet seen, and that is saying something.
Clerks in Boulder, Denver, and Pueblo counties have already issued licenses to gay couples after court rulings saying same-sex marriage bans are unconstitutional. However, the Colorado Supreme Court last week ordered Denver to stop while the state ban remains in place, and the Pueblo clerk stopped on Monday because of that ruling. The state’s attorney general applauded Pueblo’s decision. The state Supreme Court ruling did not apply to Boulder’s clerk, however. A district judge ruled in the clerk’s favor this month, allowing same-sex marriage licenses to continue. Clerk Hillary Hall has issued 172 licenses to gay couples over the past month. She began issuing the licenses in late June after the 10th Circuit ruled on Utah’s ban, saying states cannot prevent people from marrying based on their gender.