Same-sex marriage is headed to the U.S. Supreme Court. And with that, there is little reason for Colorado Attorney General John Suthers to spend his time – and a bunch of taxpayers’ money – appealing a state court ruling that struck down Colorado’s ban on same-sex marriage. He has done his duty and should now step aside.
The issue of same-sex marriage is unfolding at an unprecedented rate. Much of the legal activity stems from the U.S. Supreme Court’s ruling last year that struck down a key provision of the Defense of Marriage Act, or DOMA, which barred the federal government from recognizing same-sex marriage.
Wednesday, Adams County District Court Judge C. Scott Crabtree ruled Colorado’s ban on same-sex marriage violated the U.S. Constitution. The judge stayed his ruling, pending appeal – but that marked the 16th time a court had invalidated a same-sex marriage ban since the Supreme Court’s DOMA ruling.
Crabtree’s was only the latest such decision. On June 25, a three-judge panel of the 10th U.S. Circuit Court of Appeals struck down Utah’s ban on same-sex marriage. To appeal that, the usual practice would be for Utah to ask the court to hear the case before all 10 of its judges. Instead, Utah has appealed straight to the U.S. Supreme Court.
While the 10th Circuit Court’s ruling was specific to Utah, and was also stayed, that court’s jurisdiction includes Colorado and four other states. The Supreme Court’s jurisdiction is nationwide. If the high court upholds the 10th Circuit, same-sex marriage bans are out. If it simply chooses not to hear the case, the 10th Circuit’s decision would still be controlling in Colorado. And if the Supreme Court overturns the 10th Circuit, Crabtree’s ruling may not mean much anyway.
All this is complicated by the fact that, after the 10th Circuit decision, six couples filed a federal lawsuit in Denver challenging Colorado’s same-sex marriage ban. Suthers and Gov. John Hickenlooper were both named in that lawsuit, and both have agreed not to fight it if it can also be stayed. (Hickenlooper’s name was taken off the case Crabtree ruled on.)
Another wrinkle is that soon after the 10th Circuit ruling, the Boulder County clerk started issuing same-sex marriage licenses. Suthers tried to get a restraining order to make her stop, but a judge denied that Thursday. The Boulder County clerk, and the clerk in Denver, are now issuing same-sex licenses.
If this seems chaotic, it is. But that is no reason to make it worse or more costly.
In a Washington Post op-ed in February, Suthers wrote that attorneys general are elected to “enforce and defend laws created by the political process” and should not wield a “litigation veto” by choosing not to defend laws they do not like. It is a principled position, made all the more cogent by the fact that he also defended in court the controversial gun laws enacted last year – a position that was probably uncomfortable for an elected Republican.
He could also argue that the same-sex marriage ban deserves particular protection, in that it was enacted as a constitutional amendment by a vote of the people. But Colorado voters have no right to trample the Bill of Rights, and the DOMA decision suggests they did just that.
Suthers’ sense of duty is refreshing, but he did his job and now it is time to move on. There is no legal or moral imperative to fight to the last taxpayer dollar – especially not in a losing cause.
Attorney General Suthers should let Judge Crabtree’s ruling stand and let this issue play out as it will.