State Judge Strikes Down Colorado’s Marriage Ban, Stays Ruling

Jim Burroway

July 9th, 2014

A state judge has declared Colorado’s ban on same-sex marriage unconstitutional. Adams County District Court Judge C. Scott Crabtree issued his ruling this afternoon, and accompanied that ruling with a stay pending appeal. He also declared Colorado’s civil unions law “further evidence of discrimination against same-sex couples” and is not a constitutionally-acceptable substitute for marriage.

Judge Crabtree’s ruling (PDF: 156KB/49 pages) begins with a comprehensive 28-page summary of the various briefs and reply briefs before delving into addressing the questions before the court. Judge Crabtree found that “There is no question that the right to marry is a fundamental right.” He then went on to agree with the recent Tenth Circuit Court of Appeals decision in the Utah case which struck down that state’s ban on same-sex marriage:

“The Court heartily endorses the recent holding by the Tenth Circuit in Kitchen v. Herbert that the marital right at issue was never framed as the “right to interracial marriage in Loving or the “prisoner’s right to marriage” in Turner or the “dead-beat dad’s” right to marriage in Zablocki. See Kitchen, 961 F.Supp.2d at 1200. Instead, the Supreme Court has repeatedly utilized the term “fundamental right to marry” without any limitations. The Court rejects the State’s attempt to too narrowly describe the marital right at issue to the right to marry a person of the same sex. The Court also concurs with the growing number of courts which have held that the fundamental right to marry includes the right to remain married.

The Court also concurs with the growing number of courts which have held that the fundamental right to marry includes the right to remain married.

He then addressed whether the state had a compelling interest in banning same-sex marriage:

The avowed State interest can be distilled down to encouraging procreation and marital commitment for the benefit of the children. The problem with this post-hoc explanation is that it utterly ignores those who are permitted to marry without the ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages.

This recently fabricated “state interest” is also belied by legislative history which accompanied the enactment of the 2000 amendments to C.R.S. § 14-2- 104. On February 21, 2000, at the second reading on HB 1249, Rep. Mark Paschall stated, “What we’re opening the door here to, and even though the issue is being framed around same sex relationships, we’re talking about opening the door to polygamy, polyandry, and polyamorous relationships.” Later in the debate, Rep. Paschall stated that “[t]his is going to allow incestuous relationships. We don’t want to be allowing any kind of solemnized relationship in the State of Colorado, and that’s what this is going to do.” Rep. Doug Dean stated, “[b]ut where I think it’s important for me as a legislator to say that we don’t want to recognize same-sex unions, same-sex marriages, because we believe that it contributes to the decay of society … it will be harmful to our state.” Out of more than a dozen comments on the bill, only one comment was made about marriage providing a stable environment for children to be brought into the world and raised. But that same senator, John Andrews completed his comments noting that, “marriage, as an institution, thousands of years old, I would argue, is strengthened, when we maintain that traditional definition.”

Likewise, when Amendment 43 was being submitted to the voters, the Amendment 43 Blue Book told voters that one reason to pass Amendment 43 was to “preserv[e] the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman.” …To the extent the State’s interest is in preserving the historical tradition of one-man one-woman marriage, it cannot survive any level of scrutiny.

…The Court holds that the State does not have a sufficiently important/compelling interest in forbidding same-sex marriages or nullifying Colorado residents’ valid out-of-state same-sex marriages. The Marriage Bans are unconstitutional because they violate plaintiffs’ due process rights.

Judge Crabtree also ruled that the marriage ban violated the equal protection clause for the same reasons. He then ruled on whether civil unions should survive “as a separate but equal institution.”

“The dissimilitude between the terms ‘civil marriage’ and ‘civil union’ is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status.” In re Opinions of the Justices to the Senate, 802 N.E.2d at 570. The fact is that those in a civil union do not and cannot obtain the same benefits and protections of federal law as married couples including filing joint tax returns, Family Medical Leave Act benefits, and facing loss of social security and veterans benefits. If civil unions were somehow the equivalent of marriage, there would be no real need for this second tier relationship. The State paid only lip-service to the plaintiffs’ arguments that civil unions were not unlike the “separate but equal” black and white educational systems. …The Court finds that confining same-sex couples to civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans.

During last month’s oral arguments, Judge Crabtree was pretty clear about his skepticism about the state’s arguments in support of the marriage ban:

During arguments last month, Suthers’ office defended the state’s ban on gay marriage, arguing that 15 state and federal judges who have struck down similar measures in other states were wrong.

But Crabtree mocked the state’s argument that Colorado’s ban on same-sex marriage protects the “nature of marriage” and the ability to produce children.

The judge also was skeptical of the state’s claim that previous judges had erred in their rulings.

“They all got it wrong?” Crabtree asked. “What am I supposed to do then when presented with this? Just punt?”

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