Box Turtle Bulletin

Federal Judge Strikes Down Colorado’s Marriage Ban, Issues Stay Until August 25

As expected, Federal District Judge Raymond P. Moore has Issued an injunction against the State of Colorado, prohibiting it from enforcing its ban on same-sex marraige. Judge Moore has also issued a stay of his injunction until 8:00 a.m. on August 25.

Judge Moore’s ruling is rather brief, as he only considers two questions: whether to issue an injunction and whether to issue a stay. The first question was partly settled by the Tenth Circuit’s rulling in Kitchen v. Herbert, which last month upheld a lower court ruling which found Utah’s marriage equality ban unconstitutional. It was also partly settled by the fact that the state did not oppose the injunction, and that the plaintiffs have a high probablility of success in overturning Colorado’s marriage ban. Other factors which argue for issuing the injunction now, interestingly, is partly supported by the recent Hobby Lobby decision:

Next, Plaintiffs have also shown that substantial irreparable injury will result if the injunction does not issue. 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) (“establishing a likely [Religious Freedom Restoration Act] violation satisfies the irreparable harm factor”), aff’d on other grounds …Here, Plaintiffs’ establishment of a violation of their constitutional rights – their fundamental right to marry and to have their marriages recognized – satisfies the irreparable harm factor. See Hobby Lobby, 723 F.3d at 1146.

Third, the threatened injury to Plaintiffs by the enforcement of Colorado laws which are unconstitutional outweighs any damage the injunction may cause to Defendants. Due to Defendants’ non-opposition to the granting of an injunction, they did not address in that context how this or any other factor favored them. Nonetheless, in arguing for a stay of the injunction, Defendants contend that enjoining a state law as unconstitutional creates irreparable injury. But here, the Court is enjoining state laws without opposition from Defendants, which laws the Court has further found to be clearly unconstitutional. Thus, the equities tip strongly in favor of Plaintiffs.

Finally, the issuance of the injunction would not be adverse to the public interest as “‘it is always in the public interest to prevent the violation of a party’s constitutional rights.'” Hobby Lobby, 723 F.3d at 1147 (quoting Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). Accordingly, this factor also favors Plaintiffs.

As for the question of whether Judge Moore’s injunction should be stayed, he wrote:

In this case, in terms of a stay of the preliminary injunction, Defendants have not met their burden. As previously discussed, on the state of the record currently before the Court, it is Plaintiffs who have shown a likelihood of success on the merits; it is Plaintiffs who suffer irreparable harm if Colorado’s unconstitutional same-sex marriage ban is not enjoined; and it is Plaintiffs to whom the balance of harm and the public interest favor. Additionally, in light of Defendants’ express non-opposition to the entry of the injunction, Defendants cannot reasonably contend that this Court abused its discretion in granting the preliminary injunction and, concomitantly, no stay.

For these reasons, the posture of this case differs from many other cases being litigated in the federal court system where stays have issued. While the Court acknowledges that Defendants may file a protective appeal in this matter, Defendants cannot meet the burden required for a stay pending such appeal under the applicable standard. Defendants have elected to adopt a practical approach before this Court in recognizing the significance of Kitchen, but one consequence of that approach and the “non-opposition” to the requested injunction is that Defendants have not met their burden with respect to a stay pending appeal under the traditional rules. The factors used to assess whether an injunction should enter are largely the same as those used to determine whether a stay should enter. Having elected largely to stand silent with respect to such factors in the context of the injunction, Defendants have not put before this Court sufficient support for the factors determining entitlement to a stay of the injunction.

Judge Moore however noted that stays in marriage cases appear to be following a different standard, noting that the Supreme Court recently stayed an injunction requiring Utah to recognize same-sex marriages that took place before a stay was isssued on the marriages themselves:

The wild card in the analysis is the recent stay entered by the Supreme Court in Herbert v. Evans, No. 14A65, 2014 WL 3557112 (U.S. July 18, 2014). Evans involved a preliminary injunction issued by the district court to require Utah to recognize same-sex marriages resulting from licenses issued in the “gap” between the time that an injunction issued in Kitchen and the Supreme Court issued a stay. The Evans defendants requested a stay which the Tenth Circuit denied after analyzing the request under the accepted standards and concluding that defendants failed to meet their burden of showing a stay should be issued. Evans v. State of Utah, No. 14-4060 (10th Cir. July 11, 2014). Notwithstanding this denial, and the fact that the Tenth Circuit has already spoken in Kitchen, on July 18, 2014, the Supreme Court still issued a stay “pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.” Herbert v. Evans, No. 14A65, 2014 WL 3557112 (July 18, 2014). But, making extraction of the meaning of the stay in Evans more difficult, Evans is a “companion” case to Kitchen, both addressing the application of Utah’s same-sex marriage laws.

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.

I had to look up “haruspex”:

ha·rus·pex/həˈrÉ™sËŒpeks,ˈharəˌspeks/ noun. (in ancient Rome) a religious official who interpreted omens by inspecting the entrails of sacrificial animals.

Hah! Good one! So, at any rate, Judge Moore gave the state until Monday to seek a stay from the Tenth Circuit:

Defendants are not entitled to a stay order under the applicable rules. This is where this Court’s analysis must  end. The Court recognizes that the Tenth Circuit or the Supreme Court may choose to issue a stay in this matter. And this Court will not foreclose Defendants from having a fair opportunity to seek such stay. Accordingly, as it pertains to the preliminary injunction, this Court will temporarily stay the preliminary injunction order until 8:00 a.m. on August 25, 2014, to permit Defendants time to seek a stay of the injunction from a higher court.