DENVER — Gay couples can keep getting married in Colorado, even though the state’s gay marriage ban is still in effect, a judge ruled Thursday.
The decision added to the national confusion over same-sex marriage, as the judge said a county clerk can continue giving marriage licenses to gay couples despite what the state’s attorney general calls “legal chaos” as the issue makes its way to the U.S. Supreme Court.
An hour after the ruling, Denver’s clerk said she would join her counterpart in the liberal college town of Boulder in providing marriage licenses to same-sex couples. Pueblo County’s clerk said he will begin issuing same-sex marriage licenses Friday morning.
Couples began trickling into Denver City Hall to tie the knot Thursday afternoon.
Anna and Fran Simon rushed to city hall with their 7-year-old son, Jeremy, to wed. “We feel like this marriage license is valid, and that’s how were going to act,” said Fran Simon, 45.
Surrounded by reporters and TV cameras, Anna Simon, 44, added: “Every little girl dreams of getting married. I didn’t imagine it would be quite like this.”
District Judge Andrew Hartman’s decision said the Boulder County clerk can ignore a federal stay on a ruling from the 10th U.S. Circuit Court of Appeals in Denver, which found states cannot set gender requirements for marriage.
The judge said gay marriage is still technically illegal in Colorado but Clerk and Recorder Hillary Hall’s behavior was not harming anyone.
“She is apparently taking the position posited by St. Augustine and followed notably by Martin Luther King Jr. that ‘an unjust law is not law at all,’” Hartman wrote.
However, he warned that the licenses could still be invalid if a court later finds Hall lacked the authority to issue them.
Hartman also noted that every judge who has considered a gay marriage ban in the past year — including one in Colorado the previous afternoon — has found it unconstitutional. He said Colorado’s prohibition is “hanging on by a thread.”
Denver Clerk and Recorder Debra Johnson described the news as “awesome.”
“Finally, we can give out marriage licenses to all loving couples,” she said.
Samantha Getman, 33, and Victoria Quintana, 23, were first to receive a license in the state’s largest city.
“We wanted to come down and get it before someone started taking it away from us again,” Getman said shortly after 2 p.m., as she held up her paperwork in front of a bank of TV cameras.
In Boulder County, Hall has issued more than 100 same-sex marriage licenses since the 10th Circuit’s June 25 ruling. Republican state Attorney General John Suthers sued Hall, the only Colorado clerk who had defied the federal stay.
Hall argued that despite the stay, Colorado’s gay-marriage ban violates the U.S. Constitution.
Suthers said Hall’s behavior was causing “legal chaos” while the issue works its way through the courts. In a statement Thursday, Suthers said the issue “cries out for resolution by the state’s highest court.”
Nancy Leong, a University of Denver law professor, said Hartman’s ruling effectively allows government officials to sometimes disobey state law if they believe it violates the nation’s founding principles.
“I read his opinion to say a certain level of what we may call civil disobedience is permissible under the U.S. Constitution,” Leong said.
She said that, in the abstract, it seemed unlikely a judge would permit a government official to do something contrary to state law. But things play out differently in the notoriously liberal city known as “The Berkeley of the Rockies.”
“It’s Boulder,” Leong said.
Democratic Gov. John Hickenlooper appointed Hartman to the bench last year.
The decision from a three-judge 10th Circuit panel found states cannot deprive people of the fundamental right to marry simply because they choose partners of the same sex.
The ruling became law in the six states covered by the 10th Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming. However, the panel immediately put the decision on hold pending an appeal.
On Wednesday, the Utah attorney general’s office announced it will challenge the panel’s ruling directly to the U.S. Supreme Court, meaning the nation’s highest court will have at least one same-sex marriage case on its plate when it returns in October.
There is no guarantee the high court will take the case, but situations like the one in Colorado add to the pressure for a final, definitive ruling on gay marriage in the U.S.
Same-sex marriage is legal in 19 states and the District of Columbia, but it’s in legal limbo in much of the rest of the nation. Seemingly every week, a new gay marriage ban gets struck down. Sometimes marriages start immediately; other times the rulings are put on hold and nothing happens.
In Colorado, District Judge C. Scott Crabtree on Wednesday became the 16th judge to strike down a state’s gay marriage ban in the past year, but he also put his decision on hold pending an appeal.
Crabtree wrote that the provisions in Colorado law clearly violate the state and U.S. constitutions. His ruling will be appealed by Suthers’ office, which defended the ban.
But in a statement Thursday, the governor made clear he didn’t want Suthers to appeal that ruling. Hickenlooper said he is “a strong advocate for marriage equality.”
“The decision on marriage by Judge Crabtree puts Colorado on the right side of history,” he said. “I have urged the attorney general not to appeal Judge Crabtree’s ruling.”