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Boulder, CO, issuing marriage licenses to same-sex couples after Tenth Circuit ruling

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The county clerk in Boulder County, Colorado, has decided to issue marriage licenses to same-sex couples, although the state has a constitutional amendment banning same-sex marriage.

The decision to issue the marriage licenses is in response to the Tenth Circuit Court of Appeals’ decision yesterday in Kitchen v. Herbert. That decision invalidated Utah’s same-sex marriage ban. The Tenth Circuit has jurisdiction over Colorado, among several other states, as well, though the decision was stayed.

Buzzfeed spoke to the clerk:

“I started by reviewing the decision with my county attorney, and after our review, we felt even with the stay that we could move forward. We’re basing that on the 10th Circuit’s statement that marriage is a fundamental right, and that the stay, really, is for the officials in Utah who were part of the case,” Hall said. “Colorado being part of the 10th Circuit, the meat of their decision speaks to our ban and calls it unconstitutional. So, with that, we felt it was important to move forward.”

As to their ultimate validity, she said, “And, I do think they’ll be upheld, in the long run.”

Colorado’s attorney general issued a statement that the marriages won’t be valid:

“Colorado’s constitutional prohibition on same-sex marriages remains in effect. Today’s decision by the 10th Circuit Court of Appeals was stayed by the Court and has not gone into effect even in Utah, let alone in Colorado. Any marriage licenses issued to same-sex couples in Colorado before a final court resolution of the issue are invalid.

As Colorado Attorney General J.D. MacFarlane opined in 1975 when the Boulder County Clerk and Recorder issued same-sex marriage licenses, ‘the issuance of a license under such circumstances is useless and an official act of no validity and may mislead the recipients of the license and the general public.’”

There are challenges to Colorado’s same-sex marriage ban pending.

UPDATE: Two more Colorado counties will begin issuing marriage licenses to same-sex couples tomorrow.


  • 1. Roulette00  |  June 26, 2014 at 8:49 am

    I get the desire to be in the vanguard of the revolution. I just don't think this is an effective tactic. Even without the stay, the Tenth didn't explicitly invalidate the marriage ban in Colorado; even if the Supremes uphold Kitchen v Herbert, it won't backdate legality in Colorado to this moment. The lawsuit will still have to go through (at least as I understand it).

  • 2. MichaelGrabow  |  June 26, 2014 at 8:53 am

    The issue I have with the decision to do this is that the ruling regarding CO should be coming very shortly.

  • 3. ebohlman  |  June 26, 2014 at 4:00 pm

    Fully agreed. It's one thing to try to force an issue when any relief appears distant (e.g. SF in 2004 or even the action in St. Louis today); it's quite another to take desperate measures to accelerate an already fast-moving process.

  • 4. Mike_Baltimore  |  June 26, 2014 at 6:01 pm

    Similar to the lunch-counter protests in the South during the 1950s into the early 1960s.

    The protests were very peaceful, but the relief requested appeared to be very distant (and in fact, it was). Even Baltimore, Maryland had such protests starting in 1955 – segregation ended in the state just prior to the passage of the Federal Civil Rights Act in 1964 (same with interracial marriages just prior to the SCOTUS decision in the 'Loving' case).

    On the other hand, there were no, or extremely few, lunch-counter protests North of the Mason-Dixon line, since those states either didn't have much of a (if any) history of slavery and/or mandated segregation.

    Lunch-counter protests were never a major cause for the change in law, but without them, progress would almost certainly have been much slower.

  • 5. DocZenobia  |  June 26, 2014 at 7:48 pm

    Well said Mike.

  • 6. DocZenobia  |  June 26, 2014 at 7:47 pm

    I'm not sure on that one. The clerk in question seems to have gone out of her way to let the couples know they were entering a legal no-man's land. The SCOTUS needs to have its feet held to the fire and this is one way of doing it.

  • 7. brandall  |  June 26, 2014 at 8:59 am

    This morning, [County Clerk] Hall said she was prepared for a legal challenge from the state should that come….."We really feel these are legal, valid marriage licences," Hall said. "We wouldn't issue them if we didn't."……When asked about the state attorney general saying the marriages would be invalid under Colorado law, [groom] Hufford said: The stay (of Wednesday's 10th Circuit ruling) only applied to Utah and not other states."

    NOTE: There is a long set of comments on this under yesterday's Tenth Circuit Court article

  • 8. Fledge01  |  June 26, 2014 at 10:03 am

    You don't have to explicitly invalidate Colorado's ban. Either its constitutional or its not. 10th didn't make the ban unconstitutional. It just recognized what has already been then case. The stay only means that the courts won't force clerks to issue licenses yet. In other words, you won't get in trouble for defying the courts ruling that bans are unconstitutional until the stay is lifted. The Boulder clerk is following the law. The Colorado AG can't say all licenses issued before a final ruling are invalid because the final ruling doesn't change any state laws. It only recognizes what SCOTUS recognized last year. Discrimination is unconstitutional and all laws that do otherwise are invalid. Not invalid only when someone sues and wins. They are invalid from the date those bans were created. No court can "effectively" stop the Boulder clerk except SCOTUS. Its true that the appeals court stay means their ruling is not binding yet on lower courts, but what judge would rule otherwise knowing that their decision to the contrary would get appealed to the same 10th circuit court that just struck down the ban.

  • 9. Bruno71  |  June 26, 2014 at 5:42 pm

    I'd venture a guess that the Colorado Supreme Court can also stop the clerk. It may not be legally correct, but they can and probably will.

  • 10. Fledge01  |  June 26, 2014 at 6:59 pm

    I think the clerk would argue its a federal question and try to get it into federal court. Its unconstitutional for a state employee to enforce unconstitutional laws. Any judge would first have to answer that question of whether the law is unconstitutional. A state court would only look to see if there is a Colorado law says that any documents issued by county clerks, prior to a final ruling that overturns an invalid Colorado preventing those documents from being issued, is void. I doubt there is any such statute I'm I would go so far as to say that the same sex marriage licenses issued by Boulder in the early 1970s are also valid marriages, even though nobody recognized them as such until this past year. Read Eric's comment below "Fundamental rights don't exactly have a start date, otherwise they wouldn't be fundamental."

  • 11. montezuma58  |  June 26, 2014 at 7:57 pm

    It is not unheard of for state courts to decide state issues not solely on state laws/constitutions. The state courts are free to determine if any state provisions are in concert with the US constitution. The state courts decision would only be applicable to that state.

    In fact Colorado has a recent history of the state courts invalidating a state constitutional amendment on federal constitutional grounds.

  • 12. Bruno71  |  June 26, 2014 at 9:32 pm

    Also, if the state courts find that Colorado's law should be treated as constitutional under state law, the conflict can only be resolved in a binding way by SCOTUS.

  • 13. LK2013  |  June 26, 2014 at 10:16 am

    You know, I thought they were jumping the gun in Boulder, too. But the more I think about it, and the more I read the County Clerk and attorney's reasoning, the more I think "go for it." If more clerks in more states did this, it would push the process along. I know things are proceeding quickly for the legal world, but in the real world for real families, equality is so far past overdue that I can understand the drive to do the right thing NOW.

  • 14. DACiowan  |  June 26, 2014 at 10:21 am

    I don't know if it would have any effect, but I wonder if the other 10th Circuit states (besides New Mexico) having counties issuing marriage licenses would be a pressure on the Supreme Court to deny cert to Utah, since granting cert and putting the 10th Circuit on hold would entail stopping current issuance of licenses.

  • 15. Eric  |  June 26, 2014 at 10:28 am

    Fundamental rights don't exactly have a start date, otherwise they wouldn't be fundamental.

  • 16. DocZenobia  |  June 26, 2014 at 7:44 pm

    Exactly. Those of us whose marriages were invalidated in 2004 may live long enough to see our unions vindicated by the courts and recognized by our respective states.

  • 17. RnL2008  |  June 26, 2014 at 9:03 pm

    Just out of curiosity….have you since gotten married again in California?

  • 18. DocZenobia  |  June 27, 2014 at 5:41 am

    Multnomah County Oregon (Portland), and yes. 🙂 There were a few places that allowed SSM in the spring of 2004, just before Massachusetts. All were later invalidated except for the Sandoval 64 in New Mexico.

  • 19. RnL2008  |  June 27, 2014 at 9:29 am

    Congratulations to you both………those 64 marriages performed in Sandoval County, New Mexico FINALLY got legal recognition…….but I know that the 4200 marriage performed in SF NEVER did……..we knew a couple of folks who had to go and re-do their's in 2008.

    Thanks for the reply!

  • 20. scream4ever  |  June 27, 2014 at 9:58 am

    New Plaz, NY and somewhere in New Jersey as well.

  • 21. ragefirewolf  |  June 27, 2014 at 6:32 am

    The Tenth needn't explicitly invalidate Colorado's ban just like the Supreme Court needn't have explicitly invalidated any other "sodomy" ban outside of Texas, though they may explicitly exclude it (which if you read the ruling, they didn't). This issue here is the stay, not whether Kitchen v. Herbert covers Colorado's ban. The decision is stayed and that should be followed as valid. I realize that people want to get married and that some people would like to be out front on the issue, but the rules of jurisprudence still need to be followed or the other side may decide to not listen as well.

  • 22. Zack12  |  June 27, 2014 at 7:29 am

    Exactly. I'm NOT in favor of this clerk's actions at all.

  • 23. Ragavendran  |  June 27, 2014 at 7:48 am

    I don't know what legal advice the clerk got from her team. If they reasoned that the stay was only an injunctive stay that applied only to Utah, then the declarative opinion itself would still apply. But the judges stayed the mandate – meaning that the judgment is not final. Can some legal folk explain whether a mandate can be stayed while the declaratory portion of the judgment can still have effect?

  • 24. eizverson22  |  June 26, 2014 at 9:07 am

    Colorado State fantastic, there's people can free love married.<img src=>

  • 25. TomPHL  |  June 26, 2014 at 9:19 am

    Although I don't see how this can stand, If the clerk thinks she can make a valid legal case, I say go for it. The legal arguments will if nothing else be interesting to follow. I can't see any damage that will be done to other cases.

  • 26. Corey_from_MD  |  June 26, 2014 at 12:02 pm

    Agreed. The Colorado couples will receive federal benefits even if the CO AG continues with shenanigans. The smart move for a married CO couple is to get the domestic partner registration for state benefits and the (Boulder) marriage license for federal benefits….

  • 27. Corey_from_MD  |  June 29, 2014 at 3:31 pm

    The decision to throw out Colorado's unconstitutional amendment is coming very soon so Eric Holder will recognize the federal benefits shortly thereafter as he has done with Utah and Michigan even if there is another wasteful and pointless motion to stay (which will ultimately be lifted as all stays will)..

  • 28. kareninkalifornia  |  June 26, 2014 at 9:20 am

    Civil disobedience today in Missouri also. For what it's worth, this can only be a good thing moving forward in the court of public opinion. Plus no one gets hurt (physically) and no property
    is damaged.

  • 29. Jen_in_MI  |  June 26, 2014 at 11:03 am

    Here's the link:

  • 30. Ragavendran  |  June 26, 2014 at 9:37 am

    Scottie, the article you link to incorrectly interprets the original Denver Post article as saying that Longmont and Lafayette counties will start issuing licenses on Friday. Longmont and Lafayette are cities within Boulder County. The Boulder County Clerk has offices in Boulder, Longmont, and Lafayette, and the other two offices will begin issuing licenses on Friday.

  • 31. Waxr  |  June 26, 2014 at 9:46 am

    Lets see if counties in Oklahoma, New Mexico, Kansas and Wyoming follow the lead. This could get even more interesting. If nothing else, it makes a statement.

  • 32. OctaA  |  June 26, 2014 at 10:08 am

    All New Mexico counties already grant licenses to same sex couples and have done since a Dec 19 ruling from the New Mexico Supreme Court.

  • 33. KarlS  |  June 26, 2014 at 10:11 am

    I seriously doubt it will happen here in Oklahoma…or in Kansas. Hard to say about Wyoming, a lot of people up there are still smarting over the Matt Shepherd business and the negative publicity from it.

  • 34. Ragavendran  |  June 26, 2014 at 11:00 am

    Not remotely likely in Oklahoma. The district court's stay of its injunction is still in full effect until the Tenth rules there. This precludes the reasoning used by the Boulder County Clerk, even if it were legally sound.

  • 35. KarlS  |  June 27, 2014 at 5:43 am

    Right, I meant after the 10th rules (maybe today?…it's Friday now), and assuming it's essentially identical to the earlier one…would that 'automatically' void the district court's stay. I get the difference since Colorado isn't operating under a district court opinion. This whole thing has more twists than a Chubby Checker concert….heesh.

  • 36. Ragavendran  |  June 27, 2014 at 7:08 am

    Perhaps Lucero and Holmes divided the cases among themselves? From oral argument, Holmes seems to love standing issues, so I won't be surprised if he writes Oklahoma's opinion. Now that Utah is out, he could simply point to relevant passages there when dealing with the merits, instead of repeating. Oklahoma being a more complicated case, the panel could be more fractured, resulting in concurrences in judgment but different opinions. Lucero might even end up dissenting on standing – he seemed to be the lone supporter there for Oklahoma during oral argument.

  • 37. TomPHL  |  June 27, 2014 at 7:19 am

    If the case is decided on standing and the plaintiffs lose, does that send them back to square one? Considering the history of the case that would be cruel if usual punishment. Would this mean that there would be no decision on the merits?

  • 38. Ragavendran  |  June 27, 2014 at 7:28 am

    To understand the standing questions in Oklahoma, we have to split the issues into recognizing marriages performed outside the state and obtaining marriage licenses in the state. In Oklahoma, court clerks (not county clerks) issue marriage licenses. They are considered to be part of the judiciary and not executive branch. (This was why this lawsuit was delayed more than 9 years as they initially sued the wrong parties, and the Tenth Circuit explicitly said that they should be suing the court clerk and not the Governor/AG.) So there can be little doubt that Plaintiffs do indeed have standing in this lawsuit for the purposes of obtaining a marriage license in Oklahoma. There will be a decision on the merits for this part of the lawsuit.

    And here's the funny thing about Oklahoma. The court clerks do no such thing as "recognizing" out-of-state marriage licenses for anyone. It doesn't mean anything to them. They say – and I think they're right – that if the plaintiffs want their marriages recognized for some specific purpose, for example, tax filing, then they should sue the tax officials if they refuse to recognize their marriage. So it is very likely that the Plaintiffs will not have standing to challenge the marriage recognition portion of the ban.

    There is also a legal technicality called "severability" which is something to be discussed seriously when invalidating one portion of a law and not another. The judges have to make sure they do it in a way that doesn't render the remaining portion meaningless.

    All this makes Oklahoma a far more complicated case than Utah. I'm not surprised they decided to release Utah first without waiting for the writing on Oklahoma to get done.

  • 39. KarlS  |  June 27, 2014 at 7:47 am

    That makes me wonder if a bizarre situation like — allowing marriage but some parts of the state government wouldn't recognize them — could arise. As my old friend Jubal Harshaw observed, litigation is a way of swallowing camels and straining at gnats.

  • 40. Ragavendran  |  June 27, 2014 at 7:52 am

    Once the licensing ban is struck down, I think that the recognition portion of the ban will be, for practical purposes, toothless. How can a state agency refuse to recognize marriages issued in the same state! Like you say, it is possible that some stubborn official like the cranky Pennsylvania clerk could do so, but then that would be a brand new lawsuit that would hopefully be quick and clean the slate.

  • 41. TomPHL  |  June 27, 2014 at 8:07 am

    So we could see a decision that OK must perform same sex marriages but can refuse to recognize such marriages from other jurisdictions? One would think the judges would find a way to avoid this absurd situation, but of course they may feel they can't.

  • 42. debater7474  |  June 26, 2014 at 10:09 am

    The report that two more counties will begin issuing licenses tomorrow seems to be factually incorrect. The Denver Post report says that two branch offices of the Boulder County Clerk will begin issuing licenses tomorrow.

  • 43. F_Young  |  June 26, 2014 at 10:14 am

    Waxr: "Lets see if counties in Oklahoma, New Mexico, Kansas and Wyoming follow the lead."

    You probably meant Utah instead of New Mexico, since New Mexico already has marriage equality.

  • 44. FilbertB  |  June 26, 2014 at 10:30 am

    I am reminded here of the time when Gavin Newsom, then Mayor of San Francisco, instructed the clerks in that county/city to not discriminate against same sex couples in issuing marriage licenses. Those marriage eventually were invalidated- the mayor and clerks found not having the authority to issue those licenses. ( As a note for clarity, the marriages that were performed between the period of CA Supreme Court ruling that followed and the passage of prop 8 were found to be valid in a later court case.)
    I certainly remember that Valentine's Day when Newsom made his move, and my partner and i cheered on the celebrants as they emerged from SF City Hall.
    Personally, I think of Newsom's act like an act of civil disobedience- in standing up for what was right. For the first time many people were actually able to see Gay and Lesbian couples in a public context -to witness their joy and love. Newsom in a Salon article reflected on this when he said, " we put a human face on the issue, and that was the intention. It was not to look on the issue of discrimination in the abstract, as a legal brief, but to put a face, a narrative, a story behind that, and to look at a couple – of course, the first couple we married was with intention and purpose — Phyllis Lyon and Del Martin, who had been together more than half a century. And they were the physical manifestation, from my perspective, of love and fate and devotion and constancy, what marriage should be all about. So those 4,000-plus couples from almost every state in the nation, from countries around the world, did, I think, an extraordinary amount for the movement."
    In the same article, Newsom expand on this idea, "…All of the traditional bias and clichés about the gay community and gay lifestyle, none of the images can be exploited to play into that frame of fear. What people saw, and the chief justice of the California Supreme Court all but acknowledged this — and ultimately became a principal player in what is now in front of the U.S. Supreme Court. He saw mothers and brothers and sisters and uncles and kids and grandkids, and that was what was so remarkable — how unremarkable it was. People realized it was about them — it’s about their neighbors, about their friends and family. "
    Here is the full link:
    On another personal note, I do not wish for any couple to have to suffer the anguish of having their marriage invalidated. In a very poignant section of the recent HBO documentary, The Case Against Prop 8, one of the plaintiffs , Sandy Stier described what it was like getting an impersonal form letter in the mail saying their marriage was invalidated. This was then juxtaposed with footage of a home video of their wedding celebration, with their children and friends all dancing with joyous love and hope. The sickening and humiliating result of their marriage being invalidated in having to tell their family and friends about that was appalling to watch.
    What all of this says to me, personally, is that there is a legacy of harm with marriage equality bans. I am grateful and appreciative of county clerks who are taking a stand for justice, the constitution and human dignity.

  • 45. sfbob  |  June 26, 2014 at 10:54 am

    I appreciate your perspective on this. I'm also a San Franciscan and have been for many years. Any number of my friends got married in 2004 only to see their marriages invalidated later on. As painful as that was, my impression always was that most of the couples who went to City Hall between Valentines Day and the day the marriages were stopped understood that they were taking a risk.
    While the situation in Boulder is reminiscent in some respects of the situation in San Francisco back in 2004, there are some very significant differences. At the time only one court case had definitively ruled that a marriage equality ban was unconstitutional and that ruling was handed down by a state supreme court in Massachusetts. So while Goodridge laid the groundwork and provided a template for future rulings, it had no direct legal impact on circumstances outside of Massachusetts and most certainly not in California. Most pointedly, California law at the time did not allow for marriage equality and Mayor Newsom (to his great credit) was acting in defiance of state law. His actions indeed eventually lead the way for the subsequent court determination that CA Prop 22 was unconstitutional, which then led to Prop 8 which then as we all know led to last year's decision restoring marriage equality here in California. Still, Newsom was on shaky legal ground when he took his action and I am quite sure he knew that. By contrast, as has been noted, there have now been numerous district court rulings and now one circuit court ruling invalidating marriage equality bans, including the ban in Colorado which is part of the Tenth District. Absent the quite unlikely event that the review of Bishop will have a different conclusion, the current status of all marriage equality bans in the Tenth District is that they are unconstitutional. This is not merely the determination of a city or county official; it is the determination of the federal circuit court having jurisdiction over Colorado and all of its administrative subdivisions. It's quite possible that there will be further litigation as a result of the activity in Boulder but I strongly suspect that at the end of the day, the decision made there yesterday will turn out to have been the legally valid one.

  • 46. FilbertB  |  June 26, 2014 at 11:04 am

    Well said and excellent insights. It is a pleasure reading your comments. Thank you.

  • 47. sfbob  |  June 26, 2014 at 11:09 am

    On the internet, nobody can see me blush. 🙂

  • 48. brandall  |  June 26, 2014 at 1:05 pm

    So, they pulled a San Francisco, albeit much later in a vastly different social climate and legal wins. My husband and I (along with davepSF) listened to Boies/Olsen last night in SF. Boies stated, "the San Francisco marriages were what made me aware of the magnitude of the issue and is when the light bulb went off." Barring a court order that nullifies these marriages (and is tough on the newly married couples), each of these "breakouts" brings ME front and center in these cities and regional areas which personalizes the issue. A good thing.

    I do hope Boulder, St. Louis, et al are warning their SSM couples about the potential legal risks. In 1994 in SF, we could not marry during the Newsome marriages because my husband worked for the city. The handouts specifically told us to not marry because it could disrupt our city benefits under the State's Domestic Partnerships law. The handout was also very clear to everyone the marriages could be nullified. [REPOSTED since it fits this topic]

  • 49. FilbertB  |  June 26, 2014 at 1:18 pm

    I thought of you last night as you had mentioned you would be attending. I was not able to attend, but I am glad to know that you all did. Thank you for sharing that quote from Boies. In one of my favorite moments from the HBO documentary, Olsen hugs Kris Perry after she give practice testimony about what her life would have been like had marriage equality been around we she was a child. Perry is very moved afterwards, and Olsen's comforts her in a real hug – my partner cried at that moment when we watched it together. After so many people saying such awful things about us, then and now, some display of humanity is for me like rain in a parched landscape. Thank you for sharing your own story, Brandall.
    Warm regards,

  • 50. brandall  |  June 26, 2014 at 2:06 pm

    DavepCA was sitting next to us and is going to write up his observations soon. Look for that post! I will merely say it was awesome.

  • 51. scream4ever  |  June 26, 2014 at 5:46 pm

    I doubt the couples in Boulder or St. Louis will see their marriages invalidated. It's too far along now and opponents know further lawsuits will just be bad for them.

  • 52. weaverbear  |  June 26, 2014 at 9:33 pm

    My husband and I watched the weddings back in 2004 and did not drive south (we're 2 counties north of SF) because we didn't expect the weddings to stand the test of legality and we were domestically partnered already, and did not know if getting married would invalidate the domestic partnership. I know it sounds ludicrous now, but then, well I didn't want to risk it. My husband had suffered some major health problems in 1998 and had I not had the durable power of attorney for health care in my hands back then Kaiser would not have dealt with me. That experience made it clear to me just how important legal protections are for us and our community.

    In retrospect I am ever so grateful to those folks who made it down to SF city hall during that brief window. Y'all pushed the envelope, and got the ball really rolling that gave us the window in 2008. That time we did say "I do" – on our 27th anniversary. We'll mark 6 years (or 33!) next month. My only regret is we didn't do it sooner.

  • 53. FilbertB  |  June 26, 2014 at 9:39 pm

    It sounds very understandable why you would think that -there was so much uncertainty then, mixed with the first stirrings of hope and jubilation. It really is wretched what you, me and others have had to endure as you describe where kaiser would not have dealt with you without a durable power of attorney. That makes it very clear -and real. Weaverbear, my best wishes for continued happiness in your marriage. That is so beautiful.

  • 54. weaverbear  |  June 26, 2014 at 10:34 pm

    Many thanks!

    Kaiser has remained a thorn in my side. In the time post prop 8, but before it was overturned last June, we had a hand full of trips there, one of which was an ER visit early on a Sunday morning for a kidney stone (his, not mine) Given that he was in agony, and I'm not just his husband, but a non-Kaiser MD, I was answering all the questions at the check-in desk, much to the annoyance of the clerk who was busy trying to make eye contact with my husband, who was at the time valiantly trying not to vomit, due to the pain. After the 3rd or 4th question I answered for him, she looked at me & asked rather plaintively who I was, at which point my husband finally raised his head and said, "this is my husband." She said, "oh, you're domestic partners" and started typing that in. "NO," he said rather angrily, "we're MARRIED, not domestic partners," and she proceeded to argue with him that that wasn't legal. For G-D sakes, he was in the middle of passing a kidney stone – he didn't need our marital status challenged.

    At that second a nurse intervened and whisked the two of us into the ER and away from the clerk, and once we were out of the clerks earshot, she apologized for the interchange I'd just had with the clerk. As much as I dislike thinking it, reality is, we would not have been treated that way had I been a wife, taking care of an ill husband.

  • 55. JayJonson  |  June 27, 2014 at 7:08 am

    This entire discussion of the Boulder County clerks actions and its similarity to previous actions in Portland and San Francisco, and the human responses to marrying and then having one's marriage declared invalid, is what makes this blog so fascinating. Thanks to all of you who participated. I have learned a lot. I originally thought the Boulder clerk was on very shaky legal grounds. She may well be, but on the other hand, I now see that she may be right legally and certainly right in terms of taking a stand in favor of equal rights.

  • 56. coolbanker  |  June 26, 2014 at 11:03 am

    I wish they would wait until receiving an official ruling. Jumping the gun serves no purpose. It gives anti-gay pundits fuel to pour on their flames. As much as I want to see a resolve, this does more harm than good.

  • 57. Mike_Baltimore  |  June 27, 2014 at 12:38 pm

    Just like Christopher Columbus getting the financial, technical and materiel backing of the King and Queen of Spain before sailing West to get to the East, he should have waited until all people agreed that the Earth was round, not flat?

    If you didn't know, the Flat Earth Society still exists, and is accepting applications for membership.

  • 58. dingomanusa  |  June 27, 2014 at 12:53 pm

    The anti gay faction is going to throw whatever they can to fuel ANY legal decisions. One can choose to wait, so many people do, waiting and complacency leads to downfall.

  • 59. F_Young  |  June 26, 2014 at 11:06 am

    Puerto Rico: Four same-sex couples join Puerto Rico marriage lawsuit

    Americas: Former Chilean President Sebastián Piñera argued against the “new definition of marriage” in a brief filed with the Inter-American Court of Human Rights that became public earlier this week.

  • 60. davepCA  |  June 26, 2014 at 12:00 pm

    Regarding Puerto Rico, Does anyone know – does the issue of Civil Unions versus civil marriage in Puerto Rico have all the same issues that exist here in the states? Meaning does a civil union in Puerto Rico grant limited state-type rights and protections, but not U.S. Federal rights and protections? And when that changes in Puerto Rico, will it have the same effect as when those laws change in one of the 50 states, extending all of the U.S. Federal rights and protections of civil marriage? Since it is not a state, I'm not sure how that works…?

  • 61. Fledge01  |  June 26, 2014 at 12:23 pm

    Being American citizens, Puerto Ricans have all federal benefits as other Americans living within the 50 states.

  • 62. Mike_Baltimore  |  June 26, 2014 at 6:18 pm

    Interestingly, the American citizenship for Puerto Ricans was granted in 1917, just as the US was entering WW I. The purpose of the granting of citizenship was almost solely to gain possible conscripts (aka draftees) among the people of the island, and had almost overwhelming support by CONservatives. Funny how those same CONservatives almost universally now lump American citizens who are of Puerto Rican ancestry with those of Mexican, or Honduran, or other Central and South American ancestry.

  • 63. Eric  |  June 26, 2014 at 2:05 pm

    Civil unions in Puerto Rico are just as separate an unequal as civil unions in the 50 states.

  • 64. davepCA  |  June 26, 2014 at 2:08 pm

    Yes, I was mostly wondering what happens when Puerto Rico takes steps to fix that, and allows same sex couples to legally marry in PR. I was wondering of this would provide them with all the same U.S. federal benefits that are afforded to couples here in the states when their state allows them to legally marry. Should have been more clear. Thanks!

  • 65. MichaelGrabow  |  June 26, 2014 at 11:39 am

    University of Utah law professor Clifford Rosky called Wednesday’s ruling, "the most important victory of the entire gay rights movement."

    What does everyone think about this quote?

  • 66. MichaelGrabow  |  June 26, 2014 at 11:40 am

    To be fair, he did elaborate a bit.

    It is the first time a federal appeals court has recognized that same-sex couples have the same fundamental right to marry as all Americans, said Rosky, chairman of Equality Utah’s board of directors.
    "Very few courts have embraced the fundamental rights argument and this court seems to have completely embraced it and applied ‘strict scrutiny,’ the highest standard recognized under constitutional law," Rosky said.

  • 67. davepCA  |  June 26, 2014 at 11:55 am

    Sounds good to me!

  • 68. MichaelGrabow  |  June 26, 2014 at 12:28 pm

    So you would consider this more important than DOMA being struck down?

  • 69. davepCA  |  June 26, 2014 at 1:25 pm

    Now that you mention it, perhaps not. But it does still sound good, regardless of how we choose to rank our victories.

  • 70. Eric  |  June 26, 2014 at 2:07 pm

    Yes, DOMA was but one subset of the "will the fundamental right to marry be extended to same-sex couples" question.

  • 71. JayJonson  |  June 26, 2014 at 2:15 pm

    I would say that Windsor was more important because without it, the Fourth Circuit ruling could not have been made. Of course, one could say that Lawrence is the most important ruling to be handed down concerning gay rights, because it is the first time that gay relationships were given constitutional protection. In any case, Kitchen is a very important decision.

  • 72. SeattleRobin  |  June 26, 2014 at 4:04 pm

    Yeah, hard to rank, because if there had been no Lawrence, Bowers would still control. It's extremely difficult to imagine the current state of affairs being possible if sex between people of the same gender was still illegal in many states. If it's legit to arrest someone for having sex with their partner, it's hard to conceive of a winning argument for their right to get married.

    So if pushed, I would say that Lawrence was more important, but that Kitchen is more emotionally satisfying.

  • 73. EricKoszyk  |  June 27, 2014 at 10:17 am

    and Loving V Virginia ultimately, if states' bans on SSM fall at the SC

  • 74. JoshLmno  |  June 26, 2014 at 12:33 pm

    I must be missing something. Why wasn't the 9th circuit ruling on the Prop 8 case the first federal appeals court ruling on this issue? Is it because that one was invalidated due to the standing issue?

  • 75. FredDorner  |  June 26, 2014 at 1:04 pm

    IANAL, but my understanding of the 9th circuit ruling is that it concerned the withdrawal of an existing right from a disfavored class, with Romer being the precedent. It was a very narrow equal protection ruling and quite different from the basis the district court used.

    In contrast, the 10th circuit ruling is much broader and concerns the fundamental right to marry as well as equal protection.

  • 76. BenG1980  |  June 26, 2014 at 2:32 pm

    You're correct about the rationale employed by the 9th Circuit, but SCOTUS found the appellants lacked standing, so the decision was vacated.

  • 77. ebohlman  |  June 26, 2014 at 2:34 pm

    Very narrow indeed. So narrow that, if upheld, it would have applied only to California's ban and not to any other state ban then, now, or even in the foreseeable future. It would have set no usable precedent regarding the substantive issues (it would have set a precedent in the 9th regarding standing of initiative opponents to appeal, which could apply in other cases unrelated to marriage).

  • 78. JoshLmno  |  June 26, 2014 at 4:43 pm

    Ok, thanks for clearing that up. I knew I was overlooking something.

  • 79. BenG1980  |  June 26, 2014 at 2:30 pm

    Yes, the 9th Circuit's decision was vacated when SCOTUS ruled the appellants didn't have standing.

  • 80. DrPatrick1  |  June 26, 2014 at 7:00 pm

    9th circuit ruled you cannot take a given right away from a people. The ruling, while having had a positive end result while it lasted, was widely panned as contrived to yield a desired result.

    The 10th ruled that marriage is a fundamental right, and same sex couples were simply looking for this same right, marriage, and not a new right, gay marriage. In truth, this is all that was ever asked, but it is a very clean way of getting there. Sure, I really want a gays are a suspect class, so all laws that discriminate against us will more easily be stricken. But the reality is, our current SCOTUS is unlikely to get us there. However, this 10th opinion is likely one that can get majority support.

  • 81. mjnichol  |  June 26, 2014 at 1:13 pm

    Without Windsor (and all the subsequent district court rulings), this ruling may have not turned out this way, so Windsor is far, far more important.

  • 82. F_Young  |  June 26, 2014 at 3:15 pm

    "What does everyone think about this quote? "

    The professor got carried away or is ignorant of legal history, or possibly this was taken out of context.

    I would say that every SCOTUS decision apart from Baker was more important than Kitchen v Herbert; and most of them had nothing to do with marriage, which is relatively unimportant, historically speaking.

    One, Inc. v Olesen in 1958 decided that gay publications were not obscene and thus could be mailed; the LGBT movement would not even exist in the US were it not for this ruling. This was a revolutionary change since it was until then thought to be illegal to mail any gay rights literature.

    Bowers v. Hardwick in 1986 confirmed that sodomy laws were constitutional

    Romer v. Evans in 1996 struck down Colorado's Amendment 2 that denied gays and lesbians protections against discrimination

    Lawrence v Texas struck down all remaining sodomy laws in the USA in 2003

    Hollingsworth v. Perry struck down Prop 8 in 2013

    Windsor v. US struck down section 3 of DOMA in 2013

  • 83. mjnichol  |  June 26, 2014 at 5:08 pm

    Technically, Hollingsworth v. Perry struck down Prop 8 in 2010, since the 9th circuit judgement was vacated, and SCOTUS took no position on the merits.

  • 84. Fledge01  |  June 26, 2014 at 7:09 pm

    Romer didn't guarantee gays protection against discrimination, it just said you can't create a law that forbids protections against discrimination and have it only apply to gays. But your right, it was a very important step in getting this ball rolling.

  • 85. JayJonson  |  June 27, 2014 at 7:15 am

    Romer was especially significant coming as it did in 1996, ten years after Bowers v. Hardwick. It signaled that the Supreme Court might be changing in regard to gay rights. I suspect that it was a crucial factor in Lambda Legal deciding to go ahead with Lawrence in 1998, at a time when many legal experts said that SCOTUS would not reverse Bowers so (relatively) quickly.

    Romer also put an abrupt halt to what would have been a flurry of anti-gay referenda all over the country targeting local gay rights ordinances. They would have become as numerous as those that George W. Bush and Karl Rove instigated in 2000 and 2004 against marriage equality.

  • 86. JayJonson  |  June 26, 2014 at 7:16 pm

    You might find this blog at about the anniversary of Windsor and Lawrence interesting. I think Claude Summers would see Lawrence and Windsor as the two most significant rulings. Here is the link.

  • 87. DocZenobia  |  June 26, 2014 at 7:38 pm

    Lawrence is the foundation upon which all of our progress has been built. Romer stopped us from having to play defense; but Lawrence is what started us playing offense. Windsor would never have been possible without them.

  • 88. weaverbear  |  June 26, 2014 at 9:37 pm

    It's satisfying, but Windsor has been a damned important ruling for us, almost a cornerstone for everything that's come since. Almost every case we've won in the past year seems to be quoting from it.

  • 89. davepCA  |  June 28, 2014 at 10:31 am

    Silly troll. The court made it clear that DOMA could not stand because it failed to comply with the Equal Protection and Due Process mandates in the federal Constitution. And the court has made it very clear, in numerous trials, that ALL laws, including state-regulated civil marriage laws, must also comply with these constitutional mandates. Duh.

  • 90. MichaelGrabow  |  June 26, 2014 at 1:53 pm

    What does everyone feel the best way to keep up with new comments is? The 100 comment=collapsed threads does make it pretty difficult.

    I used to read SB Nation a lot and it highlights the unread comments (which is a viable option now that we have all signed up) and then you hit "z" to indicate you have read them. That process continues each time you click onto the article.

  • 91. brandall  |  June 26, 2014 at 2:08 pm

    I second the motion! Oh, and before anyone asks…I do have STANDING….yuck, yuck.

  • 92. StraightDave  |  June 26, 2014 at 2:13 pm

    I'd settle for an "Uncollapse-All" button

  • 93. davepCA  |  June 26, 2014 at 2:23 pm

    Apparently, the comments getting collapsed when they reach 100 is a limitation of the software that powers the site and is not fixable without a complete site overhaul, according to some explanations from the EoT site staff about this in the past. We're kinda stuck with it.

  • 94. MichaelGrabow  |  June 26, 2014 at 6:59 pm

    There has still got to be a better way for it to bring us to the new comments. I would think that would be easier now that we all log in.

  • 95. Mike_Baltimore  |  June 26, 2014 at 7:09 pm

    For those of us not raised on instant gratification, the uncollapsing of comments is a hassle, but NOT a major hardship.

    Go to the bottom of the comments, then scroll upwards. Every time you see a sideways facing arrow for comments, click it. By the time you've reached the top, all the comments should then be 'viewable' (unless you've missed one of the sideways facing arrows).

    OR click the 'latest comments' link, and the comments are resorted to show the comments in an order of most recently commented on to those commented on at an earlier time.

    Yes, both methods are a hassle, but not impossible to master (especially for those of us who were not raised on an 'instant gratification' basis).

    Imagine having ONLY land line phones, and not being able to call people except at pay phones between home, office and/or the store. Imagine no answering machines, but if a person wanted to leave a message, they had to leave it with a third party, or wait until they spoke directly with you (on the land line phone or in person). Imagine having a phone in the house, but it had to be shared with 9 other neighbor households (or having to require an operator to connect the call, whether it was local or long distance). There are many on this site old enough to remember those days, and yet we survived them. There were hassles yes, but things were NOT impossible.

  • 96. MichaelGrabow  |  June 26, 2014 at 8:14 pm

    Did you also have to walk to school in the snow uphill…both ways?!

    I am not 13 years old, I'm aware of life without the internet. Having said that…operators connecting the call? Come on, anyone complaining about nearly anything seems silly if you're going to take it back that far.

    More importantly, I never said it was a "major hardship" nor "impossible", simply that it made it pretty difficult. Even that, I clearly meant in a relative way…if there is a better option (which there are), why not take advantage of it?

    In all actuality, I'm fairly new to this site, and was just looking to find out if there was an easier way to have the new comments brought to my attention that I was overlooking. Neither of your suggestions are very helpful. I'm referring to the times when the threads become 200-400 comments…opening each arrow (at times, dozens) isn't simply time consuming, but a waste if I've already read those particular comments. In regards to the "last comments link", maybe it's just me, but that doesn't seem to work very well.

  • 97. Mike_Baltimore  |  June 26, 2014 at 9:20 pm

    "Did you also have to walk to school in the snow uphill…both ways?!"

    No. Elementary schools I attended were 3 and 5 miles distant; Jr. High was about 8 miles; and the High School was about 15 miles. For all three, I rode on a school bus, most years for as long as an hour. The above situation also applied for my father (who died in 1953), and both my step-fathers.

    ". . . operators connecting the call?"

    Yes, as recently as 1983 in certain portions of Maine. You can look up the information if you know how to use a good Internet search engine.

    I graduated from High School in 1969, and 1983 also isn't 'ancient history'. May be for you, but it's not for me and I would presume for several other commenters on this site.

    Oh, and you're not 13? You just turned 25? That could explain why you didn't know about the way telephones worked in some sections of Maine. After all, some parts of Maine didn't switch to direct dial until 31 years ago.

    And I did NOT say either option I presented was easy, but in fact a hassle, but you make it seem as if it's impossible to open collapsed threads. Opening threads that have been collapsed can be a hassle, but it IS possible to get them open (and if you pay attention to the 'last posted' note, and remember somewhat the last time you viewed the comments, you can save yourself a LOT of time reviewing new comments).

  • 98. MichaelGrabow  |  June 27, 2014 at 4:25 am

    I would like for you to point out where I made it "seem as if it's impossible to open closed threads".

  • 99. dingomanusa  |  June 27, 2014 at 4:50 am

    Everyone’s communication skills vary greatly and text conversation on the Internet doesn't always come across to others as intended. People can easily be misunderstood and may perceive differently than what is being intended.

    I wouldn't take it personally I think most of us got what you were saying.

  • 100. Mike_Baltimore  |  June 27, 2014 at 12:54 pm

    "I am not 13 years old. . . ."

    Exactly where did I say (or even hint) that you were 13 years old?

    I didn't. In fact, I asked if you were 25.

  • 101. Sagesse  |  June 27, 2014 at 3:55 am

    A sampling of the celebrations/commemorations of the Windsor/Perry decisions.

    Vanquishing Prop 8 & hate [Bay Area Reporter]

    "It's the High Holy Days for LGBT folks in San Francisco this week, and Out There is feeling that old-time religion! The gayest of gay weeks began for us last Thursday night at the Castro Theatre, which was opening night of Frameline 38, the San Francisco International LGBT Film Festival. Directors Ben Cotner and Ryan White were in the house for the screening of The Case Against 8, their chronicle of the five-year battle that toppled the California electorate's odious and happily now-defunct Proposition 8.

    Also attending the glamorous opening night were the four plaintiffs of the case, Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, and they were greeted with sustained, heartfelt ovations as they took the Castro stage along with the directors for a post-film Q&A. Other luminaries in the audience included Judge Vaughn Walker and Hollywood macher/LGBT ally Rob Reiner…."

  • 102. Sagesse  |  June 27, 2014 at 4:09 am

    Mass wedding at Casa Loma a highlight of WorldPride [Globe and Mail]

    "Toronto’s WorldPride may be past its halfway mark, but Thursday’s GrandPride Wedding at Casa Loma was definitely the festival’s most extravagant event to date, with roughly 120 couples tying the knot at Toronto’s urban castle.

    "The wedding ceremony, which began at 3 p.m., lasted about an hour and featured presentations by representatives of 12 faiths, as well as opening remarks from Deputy Mayor Norm Kelly and openly gay Ward 27 Councillor Kristyn Wong-Tam. It was followed by a reception on the castle’s grounds as well as dinner and dancing."

  • 103. Corey_from_MD  |  June 27, 2014 at 11:16 am

    Boulder is 37 minutes away from Denver so keep it going:

  • 104. Margo Schulter  |  June 28, 2014 at 2:10 am

    What Windsor did is expressly to reserve the question of state marriage bans for a future decision. The federal courts generally prefer to address one question at a time.

    If you read Justice Scalia’s oft-quoted dissent, you’ll see that he doesn’t mention Baker v. Nelson as a binding precedent on the question of state bans, but in fact suggests that people challenging such bans by extending the logic of Windsor will be in a very strong position. Evidently lots of district courts and now the Tenth Circuit agree, often quoting pertinent portions of his dissents in this case and/or Lawrence.

  • 105. Margo Schulter  |  June 28, 2014 at 2:15 am

    A relevant point here is that many States north as well as south of the Mason-Dixon line 50 years ago still had laws against consensual sodomy on the books — in California, often reputed a relatively progressive State, reform didn’t come until the early 1970’s. And the marriage bans logically followed: “Why should we grant recognition to a marriage whose consummation would involve a criminal act?”

    Fortunately, the marriage and privacy cases, including Lawrence and Windsor, allow us to look back and say, “That was then, this is now.” Another way of describing this process of looking back, and then ahead, is to say that “doctrinal developments” have indeed vitiated the viability of Baker.

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