Federal Judge Strikes Down Colorado’s Gay Marriage Ban


As expected, a federal judge in Colorado has struck down the state's gay marriage ban and issued an immediate stay, the AP reports:

Judge Raymond P. Moore's ruling Wednesday was in response to a lawsuit filed July 1 by six gay couples who asked the court for an injunction ordering that the state's ban no longer be enforced.

Colorado Republican Attorney General John Suthers and Democratic Gov. John Hickenlooper had requested a stay so the issue could eventually be decided by the U.S. Supreme Court — though both agreed the state ban should be declared unconstitutional.

The stay was issued until 8 am, August 25.

1:14-cv-01817 #45 by Equality Case Files

Posted July 23, 2014 at 7:19pm ETC by Andy Towle


  1. Ozu says

    **Colorado Republican Attorney General John Suthers and Democratic Gov. John Hickenlooper had requested a stay so the issue could eventually be decided by the U.S. Supreme Court — though both agreed the state ban should be declared unconstitutional.**

    That’s about the stupidest thing I’ve ever heard of. There are so many other states with retrograde bigots at the helm with stays already in place and on their way to the Supreme Court (I’m looking at you Utah, Arkansa, Oklahoma, Florida, Wisconsin etc.) that I don’t see the logic of denying people the right to marry in Colorado. Can someone explain the logic here?

  2. Zlick says

    What I LOVE about this one (I read all the rulings) is the judge rejects the “subtle or not-so-subtle” messages from the U.S. Supreme Court that, despite not meeting a single factor favoring a stay, the equal marriage cases should all be stayed. This judge says he doesn’t have a crystal ball. (Actually, he uses some other magic-device reference, but I’d never heard of that one).

    In doing so, he makes all the other judges look pathetic for blatantly ignoring the law and instead looking into the tea leaves of what the Supreme Court MIGHT be thinking.

  3. ben~andy says

    @Ozu, courts are hierarchical. So, this court is at the lowest level of the Federal Court system and they’re organized under the various Circuit Courts of Appeal. Colorado is in the 10th Circuit and the Circuits are under the Supremes. There are also District Courts [called different things] at the STATE level and each state has it’s own Supreme Court. We saw a ruling in Florida this week that only applied to the COUNTY that includes the Keys since it was a Florida District Court. However, the article is WRONG, if you read the judge’s decision. The Colorado AG believes that Kitchen was WRONGLY decided, he just understands that it is highly unlikely for CO to prevail at the 10th Circuit level when it has already found twice the other way and knows it will have to go to the Supremes to be decided. Note, that if the Supremes DENY, that is DO NOT take the case, it HAS been decided and there will be SSM in ALL of the 10th Circuit, UT, CO, OK, KS, WY and NM [already has it by action of their STATE Supremes].

    At the moment, the 10th Circuit Court of Appeals is LEADING the pack because Kitchen v. Herbert was decided in 2013 [before Xmas] and has already been appealed and ruled on by the 10th Circuit. There are only two next possible steps, either an “en banc” hearing by all or most of the judges in the 10th Circuit or a hearing by the Supremes. The state of Utah asked the Supremes to take the case on July 9th, so it is FIRST to the Supreme Court with a request, but not necessarily the only case they’ll elect to hear, nor is it necessarily true that they’ll take ANY of the SSM cases. 4 Justices vote to ACCEPT a case but it takes 5 Justices to DECIDE a case. Nobody likes to lose, so the 8 non-Kennedy Supremes are all looking to see where they think he’ll go on this [and really on anything].

    The 10th has actually ruled on TWO marriage cases from TWO states already, UT and Oklahoma. Even the 10th’s OK ruling [by the same 3 judges who ruled against UT] referred heavily to their ruling in the UT case. The supposition here for CO is that the 10th would simply say, “We’ve decided that twice already. How many times more do you want us to say ‘unconstitutional’?”

    So, the CO case is what is called “trailing”, in other words, this decision is really a foregone conclusion. The lower federal court would have to make a mighty big case to rule the opposite way that their Circuit Court had already ruled TWICE on.

    And it “trails” in time as well. By the time the CO case would be heard by the 10th [$$, $$$], the Supremes might have actually accepted the UT case. It takes a while to get all [or most] of the judges in a circuit to hold a hearing. It’s Summer, lots of vacations happen in Summer. Once ANY case gets to the Supremes and they accept it [called granting Certiorari], then pretty much EVERYTHING will stop where it is. This is just a case where 3 states in the same Circuit were fairly close in time [yes, 7 months to the court system is “fairly close in time, some of these marriage cases have been active for a DECADE as the one from OK has].

    One case that could get included in with the UT case might be the Indiana case were the AG has asked for an “en banc” hearing FIRST rather than waiting until he lost at the normal 3 judge Circuit level. That case [along with the Wisconsin case] was scheduled to have oral arguments on Aug 13th, but the Circuit Court pulled that date after the en banc request. The Prop 8 case from CA was DENIED an en banc hearing on June 5 2012 and appealed to the Supremes who denied the plaintiffs [those who put the initiative on the ballot] STANDING to sue and so it went all the way back to the original trial decision in Vaughn Walker’s Court [8/4/10] and the 9th’s upholding of it 2/7/12]. The Supremes gave that decision on June 28th, 2013 with the Windsor decision, so more than a year after the en banc was denied and almost 3 years after the original ruling. Prop 8 passed on 11/5/2008 so it was 5 years and nearly 8 months to finally get it overturned once and for all.

    The fastest way for us to get a national marriage ruling is for the Supremes to accept the UT [or the set of 10th Circuit] ruling for a hearing in the Fall term this year and issue an opinion before the end of the year. It is possible that there could be SEVERAL states cases from different Circuits all heard at once or the Supremes might just let one case “lead” meaning the ones who grant cert will pick the “best” case from their point of view [remember, even the 4 Horsemen of the Apocalypse have a point of view, ew]. If there was a Trial or Circuit Court case that we LOST, that might be added in as a disparate ruling [two cases that are very similar that had different outcomes, and it can be at any level, trial, appeal, en banc appeal, assuming it holds as a loss].

    And that is the US legal system in a nutshell. The states are players, as are all of us. The Justice Dept is too. The Supremes decide what it all means and can even decide THEY were wrong. Lawrence v. Texas overturned Bowers v. Hardwick separated by 17 only years. Plessy v. Fergusun [separate but equal] took 58 years to overturn [Brown v. Board of Education] from 1898 to 1954.

    Further, of ALL the cases submitted to the Supremes each year [something North of 15,000], it takes 70 or so. Of those 70, it typically REVERSES about 75% so that is about 53. It affirms and makes nationwide only about 17 cases. That’s it. If the annual number of cases they COULD review is 17,000, then they affirm only 1 in 1,000. That’s long odds in one sense, but they said you can have butt sex or mouth sex if you want and they said if you get legally married the congress can’t say you aren’t and the IRS can’t tax you as if you weren’t. So, I like our odds.

  4. ben~andy says

    @PPP, the 4th, you probably mean the Virginia case, will probably have a ruling before the end of the Summer [I mean Labor Day]. I was heard on May 13th so it is just about 40 days ago. As with the 10th, it was 3 judges, one was leaning against, one was leaning for and one was less obvious, but “seemed” to be leaning for. It takes two to agree on something to decide it. The one leaning against joked they might as well just say “we pass” and send it on to the Supremes, which would be his way of kicking the can down the road.

    Interestingly, the Colorado case was filed only on July 1st. I think it is kind of unheard of to get to a decision in 3 weeks, but I’ve seen that in 3 places and the last one commented that it was filed AFTER the 10th ruled against Utah. Simply incredible how fast this is moving now.

  5. More Justice Moore says

    Adverse decision for Utah by en banc 10th is pretty much game over not just for states in the 10th but nationwide. Every Federal Court stay granted thus far was based on SCOTUS stay of Shelby’s Kitchen ruling. But that stay is in effect ONLY until final disposition at 10th.

    If SCOTUS denies cert it’s game over.
    If en banc 10th denies cert (which I believe it’s common sense that they would have and is the reason why Reyes went directly to SCOTUS) that’s final disposition and game over.
    If en banc ruling upholds Shelby it’s game over.

    Once the Kitchen stay is lifted all the other stays that used that stay as a guideline would be lifted in quick order. Is SCOTUS going to grant another stay to another Circuit Court?

    If marriage is indeed a fundamental right regardless of sexual orientation and states have failed to show a valid reason for restriction why continue the charade of ‘stays’?

    Justice Moore got it right. He’s effectively calling out SCOTUS for it’s lack of clarity on a fundamentals rights issue.

  6. Jade says

    When the federal district court in Utah struck down Utah’s marriage law a few days before Christmas last December, and the State’s request for a stay was denied by both the district court and the court of appeals, the Supreme Court unanimously issued a stay, blocking the district court’s judgment. It is quite rare for the Supreme Court to issue a stay when both lower courts have refused to do so, and the standard that it applies is whether the state had demonstrated a likelihood of success on the merits. The stay issued by the Supreme Court in the Utah case therefore outweighs all of the district court decisions that have recent invalidate state marriage laws combined.

  7. simon says

    I rather believe Justice Scalia than your pseudo-analysis. This is what he said in case you forgot this when doing your “analysis”.
    “the court’s holding – while limited to the Defense of Marriage Act – is a sure sign that the majority is willing to declare gay marriage a constitutional right.”

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