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Federal judge grants preliminary order invalidating Colorado’s same-sex marriage ban

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Federal District Court Judge Raymond P. Moore, an appointee of President Obama, has just issued an injunction in a challenge to Colorado’s same-sex marriage ban in a fairly straightforward opinion. The injunction is a preliminary one, meaning that it’s in effect pending the outcome of the case. But the court also ruled that the proceedings will be put on hold until the Tenth Circuit Court of Appeals issues its mandate in Kitchen v. Herbert, the Utah marriage equality case. Colorado falls within the Tenth Circuit’s jurisdiction.

From the opinion:

Upon consideration of all relevant matters, including argument of counsel, and for the reasons stated herein, the Plaintiffs’ Motion for Preliminary Injunction is GRANTED; the Defendants’ Motion to Stay the preliminary injunction until resolution of Kitchen is DENIED, but instead only a temporary stay is GRANTED; and the Defendants’ Motion to Stay further proceedings in this matter, apart from the preliminary injunction, is GRANTED.

That latter part of the ruling was requested by state officials, who agreed that the ban is unconstitutional but wanted the case on hold until the Kitchen appeal is finalized. The court allowed the case to be placed on hold, but did not put the injunction against the marriage ban on hold pending appeal.

Colorado state sealThe court noted, about the request for a stay pending appeal:

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.

Thus, the only stay issued is a temporary one, “until 8:00 a.m. on Monday, August 25, 2014.”

A state judge in Colorado ruled that the ban is unconstitutional earlier this month.

The Utah case decided by the Tenth Circuit is headed to the Supreme Court. As we’ve reported, Utah officials will petition the Court to review the case. If the Court denies review, the case will be final in the Tenth Circuit. Under those circumstances, the Colorado case would continue. The Court could grant review, which would leave the ultimate fate of the marriage ban in Colorado up to the Justices.

Thanks to Equality Case Files for these filings

70 Comments

  • 1. Japrisot  |  July 23, 2014 at 4:55 pm

    "Where the harm is “great” or “substantial,” the deprivation of constitutional rights, for even minimal periods of time, constitutes irreparable harm. See ***Hobby Lobby Stores***, Inc. v. Sebelius, 723 F.3d 1114, 1146 (10th Cir. 2013)"

    I love judges with a sense of humor!!!

  • 2. JayJonson  |  July 23, 2014 at 4:58 pm

    This is the first decision I have read in which the word "haruspex" was used. The Court is not a "haruspex," the judge declared when trying to divine whether the Supreme Court was sending a message that gay means stay.

  • 3. Bruno71  |  July 23, 2014 at 5:04 pm

    It's a nice little jab at Scalia again, who used the word in FCC vs. Arlington, p. 10:

    "The federal judge as haruspex, sifting the entrails of vast statutory schemes to divine whether a particular agency interpretation qualifies as “jurisdictional,” is not engaged in reasoned decisionmaking."
    http://www.supremecourt.gov/opinions/12pdf/11-154

  • 4. Eric  |  July 23, 2014 at 5:08 pm

    It's unfortunate that despite the reasoning of the court, the judge still issues a 30-day gay means stay, continuing the irreparable harm to the plaintiffs.

  • 5. montezuma58  |  July 23, 2014 at 5:11 pm

    Nice to finally see someone call out the SC on the lack of rationale for stays.

  • 6. JayJonson  |  July 23, 2014 at 5:13 pm

    I love the remark even more now that I know it is a jab at Scalia! How wonderful to learn that. And how wonderful to learn that you know Scalia's writings so well, Bruno71. The commenters here are remarkable.

  • 7. Bruno71  |  July 23, 2014 at 5:19 pm

    LOL. THANKFULLY I don't know his writings well, but someone in a JMG comment mentioned that Scalia had used the word so I did a little research.

  • 8. TomPHL  |  July 23, 2014 at 5:25 pm

    I have been waiting for a judge to do exactly this and tell the SCOTUS that if it can't make it clear what the bases for the stays are he is not going to ignore the usual rules for granting stays based on speculation as to what they mean. For lower court judges to be bound by precedent the precedent must be clear. it's time someone go a little testy and I congratulate judge Moore on doing it well.

  • 9. debater7474  |  July 23, 2014 at 5:26 pm

    I don't really understand the process for appeal here, since this is a federal judge and the appeal would automatically go to the tenth circuit. Is the state seriously going to just file an appellate brief telling the tenth circuit their previous decisions don't count as controlling precedent? I imagine that such an appeal would receive an unpublished affirmance without oral argument.

  • 10. jpmassar  |  July 23, 2014 at 5:26 pm

    I'm lost. or perhaps it's a Rocky Mountain high.

    Can someone explain in less than 5000 words the state of marriage equality in Colorado right now?

  • 11. Japrisot  |  July 23, 2014 at 5:33 pm

    Sounds about right.

  • 12. davepCA  |  July 23, 2014 at 5:37 pm

    You're not alone. I was doing quite well at following the status of this situation – until now.

  • 13. BenG1980  |  July 23, 2014 at 5:38 pm

    Basically two courts, one state and one federal, have found Colorado's marriage equality ban unconstitutional, but both rulings have been stayed. Separately, another state court has ruled that Boulder County can continue to issue marriage licenses to same-sex couples, but couldn't guarantee that the licenses are ultimately valid.
    [That's fewer than 50 words!]

  • 14. brandall  |  July 23, 2014 at 5:39 pm

    Boulder continues to issue licenses (Go Deborah Hall!). Denver was stopped by the State Supreme Court last week. Pueblo stopped issuing licenses on Monday citing concern over a lack of clear direction. Do you want a summary of of the 4 cases currently driving all this mayhem?

  • 15. debater7474  |  July 23, 2014 at 5:40 pm

    Trolling level: master.

  • 16. davepCA  |  July 23, 2014 at 5:44 pm

    I'm good! Thanks BenG & Brandall!

  • 17. brandall  |  July 23, 2014 at 5:45 pm

    And we should also mention Judge Hartman (case against Clerk Deborah Hall) who denied a stay in his initial ruling and then denied the appeal for the stay this morning. Hartman clearly said the harm to the state was not sufficient enough to warrant a stay.

  • 18. Scottie Thomaston  |  July 23, 2014 at 5:51 pm

    Right now the federal injunction is stayed temporarily until the state asks the Tenth for a stay. So nothing can/will happen, no couples may marry. The Tenth can deny a stay but SCOTUS would probably grant it. If it is denied by everyone (unlikely), then couples can marry, despite the rest of the case being on hold.

  • 19. Fledge01  |  July 23, 2014 at 5:52 pm

    This was only a ruling on Plaintiffs motion for a preliminary injunction prior to the case being heard. The judge ruled on that motion that he will most likely rule that gay marriage is legal but he won't start forcing Clerks in Colorado to issue licenses until August 25th.

    The ability for this case to proceed any further with this judge is on hold until SCOTUS decides if it will take the Utah case (Kitchen). If SCOTUS hears Kitchen, then there shall be no more action taken on this Colorado case until after SCOTUS rules. If SCOTUS decides not to hear Kitchen, then this Colorado case will continue starting the date SCOTUS communicates that it won't here Kitchen.

    Regardless of what SCOTUS does, all Colorado county Clerks must start issuing licenses starting August 25th even while this case proceeds with this judge in Colorado. (As it stands right now, the 10th circuit appeals court ruling on Kitchen would be the bases from which this Colorado district court judge would review this case for a final ruling. So, unless either SCOTUS takes Kitchen and reverses the Utah ruling some day next year, or unless a higher court issues a longer stay than this current temporary stay of August 25th, then gay marriages in Colorado is here for good)

  • 20. jpmassar  |  July 23, 2014 at 5:53 pm

    Thanks.

  • 21. brandall  |  July 23, 2014 at 5:54 pm

    Scottie, do you see any of these actions stopping Boulder Clerk Hall? Or can she continue to read these rulings in her own way (along with the County's attorneys) and proceed?

  • 22. jpmassar  |  July 23, 2014 at 5:54 pm

    Except that any couple going to Boulder and getting a license there can still marry?

  • 23. Ragavendran  |  July 23, 2014 at 5:59 pm

    The denial of a stay pending final disposition of Kitchen will be appealed and, sad to say, will probably be granted by the Tenth Circuit. There is plenty of time for the AG to pursue that.

  • 24. Scottie Thomaston  |  July 23, 2014 at 6:01 pm

    Well those were ruled to be invalid licenses, right? I thought she was ordered that she can hand them out but she has to tell them they might not be recognized. Or am I mixing something up?

  • 25. BenG1980  |  July 23, 2014 at 6:04 pm

    Their validity hasn't yet been adjudicated, so she was ordered to issue them with some disclaimers if she continued to issue them at all, which she has.

  • 26. Ragavendran  |  July 23, 2014 at 6:06 pm

    A decision hasn't yet been made on the validity of those licenses by the Boulder Court. It's an ongoing case, and yes, in denying the emergency preliminary injunction / TRO against Clerk Hall, that court ordered her to inform the couples that their licenses might be eventually declared invalid.

  • 27. brandall  |  July 23, 2014 at 6:06 pm

    They are presently valid with the caution they could be made invalid at some future date. What is interesting is no one thought she had a chance in hell of proceeding for more than a few days and she's survived every legal challenge so far at the State Court level. While I don't want her stopped, I don't believe she is specifically named in any Federal case yet.

  • 28. brandall  |  July 23, 2014 at 6:08 pm

    Yes. Any Coloradan can drive to Boulder, get a license and then marry anywhere in the state.

  • 29. debater7474  |  July 23, 2014 at 6:10 pm

    Right, but I'm referring to an appeal of the judge's decision on the merits of the constitutionality of the state's marriage bans.

  • 30. StraightDave  |  July 23, 2014 at 6:16 pm

    Just like Judge Kern in OK who told SCOTUS that if they couldn't make themselves more clear then they should just "keep their opinions to themselves".

  • 31. StraightDave  |  July 23, 2014 at 6:34 pm

    That's only because that moron AG can't get his shit together. Any law school dropout could tell him what he has to do. Having said that, Boulder might be approaching the point of no return where the arguments for stopping Hall have just eroded away. A month ago they might have had a bit more credibility than today, even though her legal footing isn't really any different. Judge Hartman said as much in his stay denial, "the States chances of prevailing are rapidly fading ". Despite our idealized assumptions, sometimes the law is built on shifting sands.

  • 32. brandall  |  July 23, 2014 at 6:41 pm

    Meanwhile, in the 4 corners state of Arizona in Connolly v. Roche, defendants’ reply on their cross-motion for summary judgment was filed on Monday.

    "While the lawsuit is against the state, the case is being defended by the Alliance Defending Freedom, a self-described “legal ministry” formed by Christian leaders to advocate for religious liberty and marriage. Attorney General Tom Horne agreed to let that organization take the lead, naming their lawyers as special assistant attorneys general."

    Have we seen any other cases where the 3rd party opposition is joined with the AG?

    Read more: http://azcapitoltimes.com/news/2014/07/23/az-gay-

  • 33. SoCal_Dave  |  July 23, 2014 at 6:48 pm

    BenG, you rock! thanks!

  • 34. brandall  |  July 23, 2014 at 7:04 pm

    Freedom is Marry is tweeting the AG has issued a statement saying he will appeal.

  • 35. Bruno71  |  July 23, 2014 at 7:24 pm

    I'm just very confused why, after all this time, the AG hasn't managed to get the CO SC to look at the BOULDER clerk. I can only suppose that he thought they would rule more broadly when they addressed the doings of Adams & Denver Counties specifically. But it just seems like he's unable or unwilling as of yet to appeal to the CO SC in regards to Boulder.

  • 36. Bruno71  |  July 23, 2014 at 7:26 pm

    Leave it to Arizona. I suppose it helps that the ADF is from there.

  • 37. Zack12  |  July 23, 2014 at 8:10 pm

    Using the ADF arguments in Arizona, women post menopause and infertile couples should also be forbidden from marrying.

  • 38. RQO  |  July 23, 2014 at 8:10 pm

    I'll take a guess Suthers does not want to do anything that would prompt an expedited hearing of the underlying issue by the CO Supreme Court.. I used to think Suthers was doing better than just plotting delay of ME (and thus preferring SCOTUS). I no longer do. So Whack-a-Mole continues.

  • 39. Ragavendran  |  July 23, 2014 at 8:39 pm

    Appeal what? Like I said, he's going to appeal the denial of the stay. If he appeals the preliminary injunction that he didn't oppose in the first place, then he's truly lost his mind.

  • 40. SeattleRobin  |  July 23, 2014 at 8:49 pm

    I finally gave up a couple days ago. I decided I didn't want to invest in a white board and have to draw intricate diagrams, which would need daily updates, in order to keep it all clear to me.

  • 41. Zack12  |  July 23, 2014 at 8:50 pm

    I think they will expedite it anyway.

  • 42. sfbob  |  July 23, 2014 at 9:05 pm

    If SCOTUS were to decline to take Kitchen that would leave the original decision, upheld by the Circuit Court, as controlling precedent throughout the Tenth Circuit, would it not? In that case any and all remaining marriage equality bans in the Tenth would be null and void.

  • 43. sfbob  |  July 23, 2014 at 9:07 pm

    If that is the case, the ADF has proven their counsel to be utterly incompetent.

  • 44. sfbob  |  July 23, 2014 at 9:18 pm

    I really can't see this turning out badly for those couples who've gotten marriage licenses in Boulder. The only possible way would be for the Supreme Court to rule that states are free to exclude us from marrying (each other) which would resurrect any of the cases where there's any contention left at all, except for Hawaii which mooted Jackson vs Abercrombie by affirmatively legislating marriage equality. That's so unlikely it's not even worth worrying about.
    If Kitchen is upheld (either by SCOTUS not granting cert or by SCOTUS granting cert and ruling in our favor) then all of those licenses will have been valid from the get-go for the very simple reason that they all rest on a fundamental right which will be seen to have been abridged by the now-invalidated bans. The timing of those licenses really should not matter.
    While logical consistency has never been the current Supreme Court's strong point, it seems to me that there is no way SCOTUS can decline to grant cert on Kitchen (or alternatively on Bishop) since to do so would result in a completely absurd state of affairs for the circuits which have remaining cases.

  • 45. SeattleRobin  |  July 23, 2014 at 9:43 pm

    They claim it doesn't apply because fertile opposite sex couples who don't want to procreate could change their mind and decide to have children, and it would probably be unconstitutional to require a fertility test to weed out the infertiles. Only probably? (insert eye roll here at the twisted and highly selective logic.) edit to add: The law that allows infertile first cousins to marry got some other weird response that I can't recall at the moment.

  • 46. DACiowan  |  July 23, 2014 at 10:17 pm

    Yes, the 10th would have marriage equality, although I'd imagine Kansas and Wyoming would take some prodding from the Court.

  • 47. tornado163  |  July 23, 2014 at 10:24 pm

    I suppose 1 bonus from this whole series of lawsuits is showing that some states' AGs are surprisingly incompetent, especially with important lawsuits. We wouldn't be having this discussion if the Utah AG had just asked for an initial stay or the Colorado AG made sure to file a complaint against all county clerks. (Or if he hadn't admitted that he agreed that the marriage ban is unconstitutional, then asked the district court to ignore he said it).

  • 48. RobW303  |  July 23, 2014 at 10:50 pm

    It's not the first time; a couple other judges have commented in their rulings on the apparent unreason behind the SC's stay in the Utah case (now repeated in the 2nd Utah stay), but have caved in following suit.

  • 49. RobW303  |  July 23, 2014 at 10:58 pm

    That's what I don't understand. Since the AG mounted no defense, what arguments can he bring to an appeal, having effectively waived them all? And if there is an injunction (at his own request) of any further proceedings, how can he appeal before there's a ruling in Kitchen? Is it only HIS proceedings that can proceed?

  • 50. coolbanker  |  July 24, 2014 at 2:54 am

    There are so many cases pending it is making my head spin. It would be nice if there was a listing, state by state, the showed what has happened, what will happen next, and what date is next. Reading these rulings on this site is nice, but so many states are in play, and a status chart would be helpful.

  • 51. Ragavendran  |  July 24, 2014 at 3:36 am

    Pat's: https://docs.google.com/spreadsheet/ccc?key=0AsGe

    Mine (federal only): http://ecee.colorado.edu/ragad3/me.html

  • 52. Ragavendran  |  July 24, 2014 at 4:22 am

    The appeals court issued a one-sentence ruling that keeps the stay in place. Bernadette Restivo, attorney for Huntsman and Jones, said she will file a motion soon asking the 3rd District Court of Appeal to certify the overall same-sex case as one of great public importance and allow it to go directly to the Florida Supreme Court for a ruling that would affect the entire state rather than just Monroe County.

    http://abcnews.go.com/US/wireStory/appeal-court-a

  • 53. brandall  |  July 24, 2014 at 7:39 am

    Here is the confirmation Suthers filed a Notice of Appeal last night in the 10th. He should be able to deliver the motion in 1 day by using his previous motions that HAVE ALL FAILED. I'll bet he takes his time just to say out of the media for a few weeks.
    http://www.miningjournal.net/page/content.detail/

  • 54. StraightDave  |  July 24, 2014 at 7:48 am

    WY should be fine, if not exactly outracing CO to put in behind them. They're more libertarian than pure A-holes. It is The Equality State after all.
    OK, on the other hand, will surely drag their feet on the recognition issue, because the 10th let them off the hook. At a minimum, the Barton couple will have to go back to some court to get them to say it's all good now. I'd be shocked if OK just folds the entire hand "out of the kindness of their heart".

  • 55. StraightDave  |  July 24, 2014 at 7:51 am

    Uh, yeah, Utah did essentially the same thing, albeit with a bit of a veil. 90% of the labor and cost was outsourced to an LDS-approved atty who got a state employee badge to make it look legit.

  • 56. StraightDave  |  July 24, 2014 at 7:53 am

    this is news?

  • 57. MichaelGrabow  |  July 24, 2014 at 8:13 am

    Great!

    "We're not going to let the opposition dictate the pace. They could drag it out for months," Restivo said. "We're doing everything we can to move it along."

  • 58. MichaelGrabow  |  July 24, 2014 at 8:19 am

    But the lawyers also are arguing to U.S. District Court Judge John Sedwick there’s a public purpose in the state getting into the business of regulating private relationships: Ensuring that children are, whenever possible, raised by a biological mother and biological father.

    Yeah! And if the biological parents won't keep them, then they are better off in foster care then in a loving family goshdarnit!

  • 59. MichaelGrabow  |  July 24, 2014 at 8:21 am

    It almost makes it sound like they only reason they allow them to get married is because they MIGHT change their mind or accidently have a child.

    Regarding the "probably violate…" Why should we expect them to have any idea what violates the constitution?

  • 60. LK2013  |  July 24, 2014 at 8:36 am

    Thank you for these links – very interesting – I didn't realize that every District has at least one state with Marriage Equality except the 5th and 6th Districts.

  • 61. sfbob  |  July 24, 2014 at 9:02 am

    Well..no, not really.

  • 62. Bruno71  |  July 24, 2014 at 9:08 am

    We all know it was a desperate effort to make sure marriages don't happen before SCOTUS gets the case. However, properly defending the case isn't necessarily a requirement to appeal, if we go by what happened in Windsor .

  • 63. DACiowan  |  July 24, 2014 at 9:27 am

    11th too (FL, GA, AL)

  • 64. LK2013  |  July 24, 2014 at 11:13 am

    My mistake. I read the spreadsheet as though D.C. was in the 11th circuit. Apparently it has its own Circuit?

  • 65. DACiowan  |  July 24, 2014 at 11:29 am

    Yeah, DC is its own Circuit, and there's a Federal Circuit for cases involving select Federal agencies. So 13 Circuit courts in all, 12 that cover geographic areas.

    https://en.wikipedia.org/wiki/United_States_court

  • 66. _Schteve_  |  July 27, 2014 at 7:54 pm

    I get that argument, but how do you square it with the fact that marriages performed in San Francisco in 2004 were voided by the California Supreme Court (the same court that ruled such marriages must be allowed by the constitution!)? Two justices even dissented on the voiding aspect, saying it should wait until the court determines whether the bans are unconstitutional. They were, and always had been, but the San Francisco officials still lacked authority at the time to issue licenses. It doesn't seem like an automatic slam dunk argument to me.

  • 67. _Schteve_  |  July 27, 2014 at 7:56 pm

    I love when marriage opponents make this argument. They must think that a same-sex couple gets to kidnap a child from a different-sex couple on their wedding night to raise as their own. I can't think of any other explanation for how banning same-sex marriage will result in more children being raised by their biological parents.

  • 68. sfbob  |  July 27, 2014 at 11:22 pm

    Apparently not. I don't remember how the decision was framed at the time but it undoubtedly had some sort of separation-of-powers angle to it. Only the judicial branch can make a decision on what's constitutional; the mayor therefore lacked authority to order that marriages could take place. And the county clerks likewise were constrained from making independent decisions on the constitutionality of a law. There was certainly some questionable reasoning at work there and at the time we had only Prop 22, not Prop 8.

    Honestly I have no idea how many of the couples whose marriages were invalidated in 2004 married each other again either before the passage of Prop 8 or after Prop 8 overturned, or else who became CA domestic partners. Of the former I'd guess it would be a substantial number.

    I would guess that a couple who had married in 2004 and had not married again subsequently could attempt to re-litigate the court's determination though it would be a risk. Alternatively and perhaps less of a risk would be a surviving partner in a relationship where the other spouse died before they had the opportunity to marry either in 2008 or from last year onward could sue to gain survivor benefits they'd previously been denied. That would also be risky but maybe less so than for a couple to take it on.

  • 69. Equality On TrialColorado&hellip  |  August 7, 2014 at 1:30 am

    […] two recent cases, state and federal judges have struck down Colorado’s […]

  • 70. Equality On TrialEquality&hellip  |  August 7, 2014 at 1:31 am

    […] officials are asking the Tenth Circuit Court of Appeals to issue a stay pending appeal in the federal case brought against the state’s ban. Same-sex couples won a preliminary order against the ban, […]

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