Rumble in the Rockies
As Colorado’s attorney general’s office defends the statewide ban on same-sex marriage, two attorneys have gloved up to represent gay and lesbian couples for the right to marry.
“We are all persons. We are all human beings. We are all the same,” attorney Ralph Ogden told Judge Crabtree in a packed courtroom. “The U.S. Supreme Court has three times addressed discrimination against homosexual individuals since 2003, and all three times they’ve held that discrimination violates the 14th amendment.”
Ogden represents Rebecca Brinkman and Margaret Burd, who filed a lawsuit against Adams County last October when the county clerk refused to issue a marriage certificate. As well, nine same-sex couples filed a lawsuit in Denver for the right to marry. Both cases were consolidated under the Adams County District Court.
“I had mixed feelings about civil unions,” Brinkman told Out Front for an article last December featuring the case. “I really want to acknowledge the people who worked on that, and I’m really happy they did. But we don’t want to be a subset. Anytime in history when we’ve created separate but equal, it’s never equal.”
Ogden told Judge Crabtree that the only purpose of Colorado’s Amendment 43 — which defines marriage as a union between one man and one woman — is to purposefully segregate a small percentage of Coloradans and deny them the fundamental right to marry.
“What same-gender couples want,” Ogden emphasized, “is the status and dignity which is equal to the status and dignity of married heterosexual couples, a status and dignity they are entitled to under the due process and equal protection clause of the Constitution.”
John McHugh, attorney for the nine Denver couples, argued that banning gay marriage is injurious toward same-sex households, some of whom are raising kids. “Plaintiffs bring this claim because the marriage bans actively and significantly harm them and their children,” McHugh told the judge, adding that there are roughly 3,500 children in Colorado raised in households that lack sufficient legal protections because of the state’s same-sex marriage ban.
“The lack of rational relationship to any legitimate state purpose [for prohibiting gay marriage] must leave this court with the same conclusion that the Supreme Court reached in Windsor, as the sole purpose and effect of these laws is to demean and degrade same-sex couples.”
Though Gov. Hickenlooper has stated Colorado’s marriage equality ban is “bad public policy,” the Colorado attorney general’s office is defending the statute.
Michael Francisco, attorney for the state of Colorado, argued that the U.S. Supreme Court’s Windsor case, which struck down part of the Defense of Marriage Act (DOMA) last June, cannot be applied to invalidate state marriage laws.
“The lower federal courts have all misread the Windsor decision,” said Francisco, adding that “these recent decisions simply have it wrong. They’ve misinterpreted Windsor, and they have not even bothered to explain the persuasive federal court of appeals decision from the 8th circuit on why it’s wrong.”
Francisco referenced a 2006 case in which the 8th Circuit Court of Appeals reversed a federal court ruling in Citizens for Equal Protection v. Bruning that declared Nebraska’s marriage equality ban unconstitutional.
Since the 2013 Winsor decision, four state courts and 18 federal courts have struck down marriage bans across the nation — including a recent 10th Circuit Court of Appeals decision which ruled Utah’s same-sex marriage ban unconstitutional.
“You’re making the argument that they all got it wrong?” Judge Crabtree asked the Colorado attorney.
“None of them adequately dealt with the Windsor decision,” replied Francisco. “None of them bothered to talk about the Bruning decision.”
“What the state is trying to say is that domestic relations are the exclusive province of the state,” Ogden later told Out Front. ”And indeed that is part of what Windsor said, but Windsor said it is the province of the state subject to constitutional limitations.” Ogden also replied to Francisco’s statement that every lower court since Windsor has erred in striking down same-sex marriage bans, calling the argument desperate.
“You have the New Mexico Supreme Court, you have the New Jersey Supreme Court, you have a circuit court judge and trial judge in Arkansas, and you have 12 federal judges, appointed for life, some by President Reagan, some by the two Bushes, some by Clinton, and some by Obama — and they’ve all reached the same decision on the same argument.”
Jennifer Hendricks, an associate professor of law at the University of Colorado Boulder, emphasized that the core legal argument from the plaintiffs, taken from the Windsor case regarding equal protection, was aimed at Colorado’s atypical stance of invalidating out-of-state, same-sex marriages.
“It’s extremely unusual for a state to refuse recognition of each other’s marriages,” said Hendricks, citing that the only other major example of a state refusing to recognize a marriage from another state was when certain local governments banned interracial marriage.
“That’s really indicative of why this is an equal protection violation,” said Hendricks, “and that’s something I think the general public has really come to realize in a lot more depth in the last few years.”
Hendricks also commented on a particular justification for the ban, made by Francisco when he argued that marriage between one man and one woman “has historically served as a proxy for recognizing couples naturally capable of procreating.”
“That doesn’t explain why exclusion of same-sex couples is necessary for that purpose,” said Hendricks.
Judge Crabtree’s ruling is still forthcoming. Regardless, his decision will be appealed and the case will likely head straight to the Colorado Supreme Court. It is also likely that if Crabtree rules Amendment 43 unconstitutional, a stay will block same-sex marriages until the lawsuits are resolved in a higher court.
In the meantime, Brinkman and Burd — who have been together for almost 35 years — wait patiently for the day they can return to the Adams County clerk office and receive a Colorado marriage certificate.
“If God created man in his own image,” said Ogden, “then he created gay men and lesbian women in his own image — not to be treated as second class citizens. I believe with all my heart that that’s what the Constitution requires.”
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