Wednesday, July 23, 2014

Colorado Federal Judge on Same-Sex Marriage Ban: Unconstitutional and Not Quite a Stay

In his relatively brief opinion today in Burns v. Hickenlooper, Judge Raymond Moore enjoined Colorado officials from enforcing or applying Article II, Section 31 of the Colorado Constitution and C.R.S. §§ 14-2-104(1)(b) and 14-2-104(2) as a basis to deny marriage to same-sex couples or to deny recognition of otherwise valid same-sex marriages entered in other states.

The injunction is supported by little Due Process or Equal Protection analysis; instead its determination is more than aptly supported by the mandatory precedent of the Tenth Circuit's decision in Kitchen v. Herbert.

More difficult than the merits issue was the procedural stay issue.  Judge Moore decided to issue only a temporary stay until Monday, August 25, 2014, to allow the parties to seek relief from the Tenth Circuit or the United States Supreme Court.  The judge noted that the Tenth Circuit had already spoken, but given the United States Supreme Court's stay regarding the Utah same-sex marriage case last week in Evans v. Herbert,  the directives regarding the appropriateness of a stay were less than clear.

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Etruscan inscriptions on a bronze sheep's liver as might be consulted by a haruspex via

As Judge Moore wrote:

Based on the most recent stay [in Evans v. Herbert], 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.

For further analysis of the problem on stays in the same-sex marriage litigation, take a look at LawProf Nancy Leong's great discussion of the stay factors and how they apply in same-sex marriage litigation.

http://lawprofessors.typepad.com/conlaw/2014/07/colorado-federal-judge-on-same-sex-marriage-ban-unconstitutional-and-not-quite-a-stay.html

Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Supreme Court (US) | Permalink

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