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Marriage Equality in Colorado – Part Two: Lawsuits

In part one of our Marriage Equality in Colorado series, we focused on how Colorado came to the point where we had two institutions that reflect the formal and lawful union between two people. In this segment, we’ll address the lawsuits and rulings that have had an impact on same-sex couples in Colorado.

Federal Gay Marriage Ban Unconstitutional

On June 26, 2013, by a 5-4 decision, the United States Supreme Court ruled the federal Defense of Marriage Act, which defines marriage as a union between one man and one woman, is unconstitutional. The court struck down the federal law because it denies same-sex couples the “equal liberty” guaranteed by the Fifth Amendment. Section 3 of the law defines marriage as “a legal union between one man and one woman as husband and wife.” This provision had been struck down by eight lower courts before the Supreme Court’s 5-4 ruling in United States v. Windsor settled the matter for good.

This Windsor decision means that legally married same-sex couples are now entitled to the same federal benefits as married opposite-sex couples. The decision does not, however, apply to the States. Therefore, the ban on gay marriage remains on the books in Colorado.

Colorado’s Gay Marriage Ban Unconstitutional

On October 13, 2013, a couple in Adams County filed a lawsuit seeking to overturn Colorado’s ban on same-sex marriage. On June 25, 2014, nine same-sex couples filed a similar lawsuit in the Denver District Court. The two cases were consolidated into one case in Adams County, the Honorable Judge C. Scott Crabtree presiding.

On July 9, 2014, Judge Crabtree ruled the ban violates the state and federal constitutions. In his decision, he stated that the law ”bears no rational relationship to any conceivable government interest…. [and] violate[s] plaintiffs’ due process and equal protection guarantees under the Fourteenth Amendments to the U.S. Constitution….”Judge Crabtree went on the say that the ”existence of civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans…. If civil unions were truly the same as marriages, they would be called marriages and not civil unions. If they were the same, there would be no need for both of them.”

He immediately put his ruling on hold pending an appeal. Judge Crabtree said he was issuing a stay to “avoid the instability and uncertainty which would result” without a stay.

On July 14, 2014, Attorney General Suthers appealed the decision to the Colorado Supreme Court. Ordinarily, the process would at least take several months, but the state Supreme Court can decide to move faster if asked by the parties involved.

Federal Courts Find Marriage Bans Unconstitutional

The 10th Circuit Court of Appeals is a federal court which has authority over Colorado, Utah, and Oklahoma, and three other states. On June 25, 2014, the 10th Circuit found that Utah’s ban on same-sex marriage is unconstitutional ( Kitchen v. Herbert). This decision has been appealed to the United States Supreme Court. Three weeks later, on July 28, 2013, it found that Oklahoma’s ban on gay marriage is also unconstitutional.

On July 1, 2014, six same-sex couples filed suit in the U.S. District Court for the District of Colorado alleging that Colorado’s ban on same-sex marriage is unconstitutional as well.

A status conference in the federal case was held on July 15, 2014. Attorney General John Suthers admitted that the ban is unconstitutional but wanted the decision stayed. Mari Newman, attorney for the plaintiffs, argued that “justice delayed is justice denied.” Judge Moore asked for further briefing on the issue which was due on Friday, July 18, 2014. Oral arguments were held on July 22, 2014, and the court issued its ruling by July 25, 2014.


On July 23, 2104, District Court Judge Raymond Moore declared Colorado’s ban on same-sex marriage unconstitutional, as well. The decision was stayed pending appeal to the 10th Circuit. Because the 10th Circuit has already determined that Utah and Oklahoma’s bans are unconstitutional, it must find the same for Colorado.

The Kitchen decision from Utah has been appealed to the U.S. Supreme Court. The next term begins in October, and at that time the court will decide whether to take up the gay marriage issue. If it refuses to do so, the rulings from the 10th circuit will stand and gay marriage will become legal across the 10th Circuit – including in Colorado. If the U.S. Supreme Court does take the case, it could be a year or more before a final decision comes down.

Stay tuned for more details as we wait for the Colorado Supreme Court and the U.S. Supreme Court to settle the question of gay marriage in Colorado for good.

If you have questions about how the current state of same-sex marriage relates to you, your relationship or your kids, our family law attorneys at Modern Family Law are here to help. Call today to schedule your free consultation.

Posted September 30, 2014
by: MFL Team

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