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Colorado same-sex marriage ban ruled unconstitutional

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A state court judge has struck down Colorado’s same-sex marriage ban. The ruling is stayed pending appeal:

Adams County District Court Judge C. Scott Crabtree issued his ruling Wednesday afternoon, but he issued an immediate stay.

“The Court holds that the Marriage Bans violate plaintiffs’ due process and equal protection guarantees under the Fourteenth Amendments to the U.S. Constitution,” Crabtree said in his ruling.

“The existence of civil unions is further evidence of discrimination against same-sex couples and does not ameliorate the discriminatory effect of the Marriage Bans.”

The judge acknowledged that his court would not offer the final word on the subject. The 10th U.S. Circuit Court of Appeals recently tossed out Utah’s similar ban on gay marriage.

“The final chapter of this debate will undoubtedly have to be written either in Denver, Colorado or Washington, D.C.,” the judge wrote. “While the striking down of laws banning same-sex marriages has been progressing at a rapid rate, it will take time for this issue to be finally resolved.”

The ruling in Brinkman v. Long can be read here. EqualityOnTrial will have more on this developing story…

Thanks to Kathleen Perrin for these filings


  • 1. DoctorHeimlich  |  July 9, 2014 at 3:47 pm

    It's not a very inspiring opinion, frankly. The vast majority of it is quotes and citations from the parties' briefs and other case rulings. There's very little of the judge's own writing in this opinion.

    Either Judge Crabtree has declined to join the nationwide contest for "loftiest marriage equality ruling", he feels he's too late to the party anyway, or his way of doing it differently was to present his case on more mechanical grounds than any other judge to date.

    But it IS the right result. So I'm hardly complaining.

  • 2. sfbob  |  July 9, 2014 at 4:17 pm

    At this point there are so many well-written and dispositive opinions in so many jurisdictions that perhaps Judge Crabtree didn't find it worth the effort to craft new language. And sometimes it's good to be plain-spoken. I do like this:

    "The fact that the state has created two classes of legally recognized relationships, marriages and civil unions, is compelling evidence they are not the same. If civil unions were truly the same as marriages, they would be called marriages and not civil unions. If they were the same there would be no need for both of them."

    Logic here trumps rhetorical flourishes. It may be blunt but it most certainly works. That and Judge Crabree's demolition of the whole "responsible procreation" argument in the paragraph above as "implausible."

    I also appreciate Judge Crabtree's willingness to call out the entire legislative history of Colorado's ban on marriage equality and on the recognition of same-sex marriages legally obtained elsewhere as being based on nothing other than "prejudice" which (as we know from Colorado already having given birth to Romer vs Evans) is just another word for "animus."

  • 3. JayJonson  |  July 9, 2014 at 5:01 pm

    Yes. This is a thoughtful and careful ruling.

  • 4. FredDorner  |  July 9, 2014 at 7:27 pm

    In 2005 Judge Kramer in California made the same observation – the very existence of two separate but purportedly identical contracts which apply to two different classes of people is prima facie evidence of bias against the second class. And that was before DOMA was struck down, so as the New Jersey courts noted last year there is no longer even the pretense of equivalence between civil unions and marriage.

  • 5. RCChicago  |  July 9, 2014 at 8:25 pm

    Oh, yes, I thought the direct quotes of the legislators from 14 years ago in urging the passing of the bans to be particularly satisfying. I wondered if any of these legislators now regret their words in the official record…But it points to further possibilities in the future when the destructive words of our opponents will come back to haunt them or their descendants.

  • 6. SeattleRobin  |  July 10, 2014 at 12:34 pm

    The thing is, the section you are quoting is in the summary of the plaintiffs' arguments that they made in their briefs and motion. It isn't part of Crabtree's actual opinion (which is the extremely sparse stuff at the end).

  • 7. KarlS  |  July 9, 2014 at 5:22 pm

    It isn't easy to sex up a bunch of dry established facts. ๐Ÿ™‚

  • 8. Dann3377  |  July 9, 2014 at 3:49 pm

    I'll take the win! Add one more ruling to the list. Come on Florida.

  • 9. RQO  |  July 9, 2014 at 3:54 pm

    Does this go first to CO court of appeals or direct to Supremes? Hope it's quick, but there are two other CO cases (completely unrelated to ME) I've been watching where the CO Supremes are moving glacially. Now THIS is something the Gov. and the AG could coordinate on and petition for expedition, and everyone would be pleased.

  • 10. Bruno71  |  July 9, 2014 at 4:07 pm

    My guess is the state may appeal directly to the CO SC (this happened last year in New Jersey). But normally this should go thru an appeals court first.

  • 11. RQO  |  July 9, 2014 at 4:18 pm

    If Suthers wants to just delay, I guess he'll go to Appeals. However, while he may be very conservative he has a stellar reputation for being straightforward, and I think he would go for a direct appeal to the Supreme Court, which the Gov. and the the plaintiffs would support, too.

  • 12. brandall  |  July 9, 2014 at 3:57 pm

    Crabtree's 4 reasons for granting a stay:

    1. the grant of a stay by the Supreme Court in the Utah district court case and the four federal circuit courts suggests that this issue is far from over.

    2. The Court has confirmed the cited holding in these cases and finds that the Court’s holding that the State’s Marriage Bans are unconstitutional may constitute irreparable injury.

    3. The Court cannot find that staying the effect of this Court’s Order will result in substantial injury to the plaintiffs.

    4. [summarized by me]..Every other court is issuing a stay, so I'm going to do the same thing

    How can you say #2 and then deny you said it in #3? While it's great to get this ruling, it is hard to follow Crabtree's logic on the stay. The dots are not connected.

  • 13. samg68  |  July 9, 2014 at 4:14 pm

    Because he's saying in #2 that declaring a voter amendment unconstitutional could be considered an irreparable injury to the STATE.

    In #3 he's saying because this isn't going to be resolved until a case reaches SCOTUS that him placing the stay isn't a substantial injury to the PLAINTIFFS.

  • 14. brandall  |  July 9, 2014 at 4:25 pm

    You are correct. Under 4c (other parties). "The Court cannot find that staying the effect of this Court’s Order will result in substantial injury to the plaintiffs."

    There is no basis for his conclusion. I was hoping a State court would not play "follow the leader" with the Federal courts.

  • 15. davepCA  |  July 9, 2014 at 4:56 pm

    Indeed. How can the court conclude that there's no harm caused by delaying their access to those rights and protections of civil marriage in the same ruling that concludes that this denial is an unconstitutional violation of Equal Protection? Uhhhhh….

  • 16. Zack12  |  July 9, 2014 at 7:18 pm

    It makes no sense to me either. Even though it deals with a federal question, it is highly unlikely SCOTUS would step in to stop a ruling like this, only the State Supreme Court could do that and I doubt they would.

  • 17. DrBriCA  |  July 9, 2014 at 7:51 pm

    I agree as well. The argument that the same-sex couples aren't harmed by a stay because other states have stays on their decisions is ridiculous and false. One just has to look at their neighboring state, Utah, and see how AG Reyes has been relentlessly sticking his nose into married same-sex couple adoptions and halting those proceedings to the point that a contempt of court hearing was nearly held…. Or how the 7th Circuit specifically ordered the one Indiana lesbian couple's marriage to be recognized, since the stay would otherwise cause harm on their protected rights in the event of (unfortunate) impending death.

    Also, it seems odd to issue a stay when the AG & Gov have just petitioned a federal district court to declare the same laws unconstitutional (albeit also requesting the stay there). The executives are technically already agreeing that the laws are unconstitutional…. It will indeed seem odd to have Suthers appeal this state court decision to the CO SC while concurrently dropping the fight in the federal court.

  • 18. D.Henderson-Rinehart  |  July 10, 2014 at 9:51 am

    The plaintiffs conceded at the hearing last month that, although they didn't prefer the judgment be stayed if the court ruled in their favor, staying it would be consistent with the decisions of other courts across the country. Given how judges tend to prefer consistency, I'm not at all surprised that the judge took them up on that.

  • 19. brandall  |  July 9, 2014 at 4:07 pm

    We started today with the Boulder hearing on County Clerk Hall. We ended the day with Crabtree's Colorado decision. I wonder if Hall will now amend her filing especially with Crabtree's statement: The State’s Marriage Bans are unconstitutional may constitute irreparable injury.

    Colorado is taking the cake for complexity of the moving parts.

  • 20. Bruno71  |  July 9, 2014 at 4:18 pm

    It's not so surprising that he issued a stay, but that he went through these four points to try and back it up. Maybe he felt a responsibility to explain "gay means stay," for a change. Though he doesn't do a great job of it imo.

  • 21. Zack12  |  July 9, 2014 at 6:31 pm

    No he doesn't other then put it on the Supreme Court.

  • 22. davepCA  |  July 9, 2014 at 4:23 pm

    Taking a step back, it's noteworthy how blasé we have become about a ban on same sex marriage being ruled unconstitutional. Things sure have changed fast!

  • 23. Bruno71  |  July 9, 2014 at 4:30 pm

    It's of course tempting to ascribe this blaseness to the multitudes of bans being overturned weekly, and surely that's a big part of it. But I also think it comes from the fact that we know that most of these decisions aren't final. "Gay means stay" is now firmly entrenched, so unless we have a situation where no one appeals, we naturally temper our excitement. Unfortunately. But every one of these cases IS something to be excited about, as they are building blocks to the greater whole.

  • 24. Sagesse  |  July 9, 2014 at 4:35 pm

    Religious Right Denies Claim Evangelicals Embracing Same-Sex Marriage – With A Regnerus Study [New Civil Rights Movement]

    Comic relief.

  • 25. DACiowan  |  July 9, 2014 at 5:03 pm

    Ban overturned – Yay!

    Ruling stayed – oh

    Article on the Boulder County clerk hearing:

    Countdown to the Wisconsin stay expiring: 8 business days (June 21)

  • 26. Margo Schulter  |  July 9, 2014 at 7:22 pm

    My reaction to the decision is that it follows a convention similar to that of some old SCOTUS reports of setting out the arguments for the parties (and here also amici) before coming to the Court’s decision itself. It was an interesting change of pace.

    And some of it was amusing: for example, Colorado’s proposed distinction between “Government marriage” designed to promote responsible procreation and minimize unplanned reproduction outside of wedlock; and something like “personal” or “emotional” marriage based merely on love and mutual commitment. Of course, much as in the Windsor arguments before SCOTUS, Judge Crabtree then goes over the actual legislative history and ballot arguments to show what a contrived “justification” this is.

  • 27. Margo Schulter  |  July 9, 2014 at 7:28 pm

    Judge Crabtree does play down the principle that every day in which citizens are denied a fundamental right or have their right to equal protection of the laws violated is an “irreparable injury,” just as much as every day a State is prevented from enforcing a valid law.

    The real psychology might be like this: “Well, Windsor did reserve the question of state marriage bans, so let’s regard the issue as momentous enough and carrying enough judicial doubt as to the ultimate outcome so as make sticking with the status quo until SCOTUS either rules or denies cert the better part of valor.”

    It’s maybe a quest for the appearance of decorum and a calm, orderly proceeding — as opposed to the reality of equal protection ASAP.

    At least in these cases, “with all deliberate speed” may be faster than in Brown v. Board of Education — although here it’s a stay, and there, de facto “massive resistance.”

  • 28. adjustable dumbbells&hellip  |  July 9, 2014 at 8:09 pm

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  • 29. eizverson22  |  July 9, 2014 at 8:34 pm

    Hope to have married lovers.<img src=>

  • 30. Ragavendran  |  July 9, 2014 at 10:15 pm

    I saw this news just before I left this morning for my visa interview, and that made my day, regardless of what might have transpired at my interview, which, by the way, went great, and my visa has been approved! I will make it back to the US as planned on August 9 ๐Ÿ™‚ ๐Ÿ™‚ ๐Ÿ™‚

    As I'm reading through the opinion, I'm just going to say it so I can get the frustration out of my system: this takes the cake for the most disorganized, dry and haphazard opinion ever. His attempts to justify the "gay-means-stay" doctrine through the four-factor-test is weak and flimsy at best and completely flawed and contradictory at worst. He simply filled up the opinions with quotes from others, reading much like a dictionary of "quotable quotes". No original wording. It seems like if the situation had been otherwise, that is, if all courts had upheld the bans, he would have upheld the ban too. A "yes man" opinion which reads much like a legalistic take on a schizophrenic role playing game – he writes as if he is the plaintiffs first, then the defendants, then as himself. There are unforgivable grammatical errors and typos. Just to name a few:

    (1) "The Supreme Court’s instruction in Windsor that the states can no longer single out gay and lesbian relationships for second-class status makes it unnecessary to apply traditional heightened scrutiny under the Equal Protection Clause."

    >> WTF? This is the first time anyone has every interpreted Windsor as directly "instructing" that states cannot ban gay marriage.

    (2) "The State’s second conceivable rationale for the Marriage Bans related to children is that restricting the institution of marriage to opposite-gender couples will “encourage potentially procreative couples to raise children produced by their sexual union together.” State’s Amicus Brief at 15. There is no logical reason to believe extending the marriage right to all couples would have this effect."

    >> Come again? I had to read this twice. He should have said "NOT have this effect" at the end.

  • 31. SeattleRobin  |  July 9, 2014 at 10:24 pm

    Haha! You were posting this at the same time I was posting mine. I'm so glad I'm not the only one! I was feeling a little like I was in the Twilight Zone when no one else was making any criticism other than boring and plain.

    Congratulations on being successful with your visa!

  • 32. BenG1980  |  July 9, 2014 at 10:40 pm

    It's probably relevant that most of the decisions we've been reading recently have been issued by federal judges whose qualifications have been scrutinized by the presidents who nominated them and the senators who confirmed them.

    That's not to say there aren't many well-qualified state district court judges, but they just aren't usually subjected to the same scrutiny in either their selections or their opinions, and state courts typically have fewer resources at their disposal.

  • 33. SeattleRobin  |  July 9, 2014 at 11:04 pm

    Yeah. And it may be that he's a very good judge but a terrible writer. But some of the mistakes were so glaring I wondered at the lack of proofreading. Crabb, who is a state magistrate, wrote like she should be on the bench of a federal court of appeals.

  • 34. Ragavendran  |  July 9, 2014 at 11:06 pm

    You mean Dale, not Crabb (see my reply below). Crabb did a fine job with Wisconsin's Wolf as well ๐Ÿ™‚

  • 35. SeattleRobin  |  July 9, 2014 at 11:10 pm

    Yeah, I just noticed that in your reply below and tried to edit this, but you were posting in reply so I couldn't. Thanks for the correction.

  • 36. BenG1980  |  July 9, 2014 at 11:52 pm

    And, actually, Dale is a federal magistrate judge. She's the chief magistrate judge for the United States District Court for the District of Idaho.

  • 37. SeattleRobin  |  July 9, 2014 at 10:18 pm

    Admittedly I'm no expert, but this Crabtree opinion seems really clumsy to me. He pastes in all sorts of quotations from other cases, but then does a poor job of connecting the dots or explaining how he's applying them to the specifics of this case. More than half of the pages are spent summarizing briefs and motions from the parties, but spends few words on his own responses.

    More than that, he botched things in the summaries. Some of the sentences are poorly worded or have missing or wrong words, so end up saying the opposite of what I'm sure was intended. Windsor was misconstrued in a couple places and I doubt the plaintiffs were that sloppy. And unless I misread, he attributes one quotation in the plaintiff's summary to SmithKline, but that case had nothing to do with same-sex couples and the quotation was about couples.

    Do I just have poor reading comprehension like Maggie Gallagher, or did others notice some of these things too?

    Judge Crabb's decision in Latta wasn't full of fancy rhetoric either, but it was still a thing of beauty and perfection in how she laid it all out and made use of impeccable logic.

  • 38. Ragavendran  |  July 9, 2014 at 10:47 pm

    I agree with you through and through. (Yeah, we must have been working on our comments at the same time!) And yes, Latta was boring and plain too, but one of the strongest written district court opinions to date – I recall how much in awe of Judge Dale (Crabb wrote the Wolf opinion and I would put that on par with Dale's too) I was when I read it. How thorough it was – an iron fortress. This, by comparison, is perhaps a rubber duck at best.

  • 39. bayareajohn  |  July 9, 2014 at 10:50 pm

    Being a Judge does not itself convey special skills in writing (or reasoning or consistency or anything else). They are not created equal in talent.

    Recall, by reference, that there is a special word applied to describe the student who graduates at the BOTTOM of the class in medical school.

    "Doctor". Same as the rest.

  • 40. KarlS  |  July 10, 2014 at 5:11 am

    Be advised there are plenty of staunch supporters of marriage equality who also strongly believe in the right to keep and bear arms. Your term "gun nuts" is every bit as insulting to us as the 'faggot' word. Please do not use it.

  • 41. Eric  |  July 10, 2014 at 7:40 am

    I wouldn't put "gun nuts" on the same par as faggot. It's more akin to reducing our relationships to "sexual urges."

  • 42. KarlS  |  July 10, 2014 at 9:52 am

    Oh, well…what was I thinking? Nobody should ever be offended by having their lives reduced to 'sexual urges'.

  • 43. MichaelGrabow  |  July 10, 2014 at 7:48 am

    I want to create ten thousand more accounts just to down vote this.

  • 44. KarlS  |  July 10, 2014 at 9:48 am

    Be my guest, gun grabber. I'd have been killed by a group of hompphobic kids years ago if I hadn't had a gun…you would probably have preferred that. I only regret I didn't kill them all.

  • 45. MichaelGrabow  |  July 10, 2014 at 10:24 am


  • 46. JohnnyInVA  |  July 10, 2014 at 7:49 am

    I definitely sympathize with you on gun rights, KarlS, but equating "gun nut" with "faggot" is quite a stretch. While both are certainly meant as insults and to denigrate a group of people, there are immense differences between the impact of the epithets. For one, the "gayness" of gay people inflicts no actual threat to others. The reason for using "faggot" is an attempt to keep a historically defenseless population in their place based on irrationally based cultural and religious fears. Gun owners on the other hand do pose an actual heightened threat merely by virtue of their ownership of guns. The reason for using "gun nut" is an attempt to diminish the physical and political power of a group based on a rational fear of violence. You can debate how much of a threat gun owners represent relative to those without guns, but there is legitimate reason to fear the use of guns. (And I'm not saying that ALL gun owners are bad, that's a separate argument.)

    So I agree that both "gun nuts" and "faggot" are insults but they are nowhere close to equal.

  • 47. KarlS  |  July 10, 2014 at 9:49 am

    You're a hypocrite. You admit we are "historically defensless" then you clutch pearls over the fact we insist on the right of self defense. Go to hell.

  • 48. JohnnyInVA  |  July 10, 2014 at 10:26 am

    Actually, I agree with you that we should and arguably do have the right to self defense via firearms (and other means), but that doesn't change my argument that the severity of "faggot" as an insult is worse than "gun nut". But don't mistake me, I agree that neither is polite or appropriate.

  • 49. Bruno71  |  July 10, 2014 at 12:52 pm

    Telling a man that he "clutches pearls" is a homophobic epithet.

  • 50. SeattleRobin  |  July 10, 2014 at 12:43 pm

    Equating the term "gun nut" to "faggot" is so nauseating I don't have the words. Besides that, "gun nut" doesn't apply to everyone who owns guns. It applies to paranoid nutjobs who own guns. I own a gun, and I recognize that the term has absolutely nothing to do with me.

  • 51. Bruno71  |  July 10, 2014 at 12:53 pm

    Thank you. My best guess is that Karl is more sensitive to that term since he likely is a "gun nut," from everything I can gather from his posts on the topic.

  • 52. RQO  |  July 10, 2014 at 12:47 pm

    Karl, I apologize; I was thoughtless, and offensive. Given half my family and most of my neighbors are the people you describe, I won't use it. I was recklessly conflating ideas with one unfortunate CO group in mind, and old enough (remember NAMBLA?) to know better. Thanks for pointing it out.

  • 53. RQO  |  July 10, 2014 at 12:55 pm

    Best to delete my prior post.

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  • 55. Ragavendran  |  July 10, 2014 at 7:17 am

    Judge John E. Jones III, Bush Jr. appointee, who threw out PA's gay marriage ban pleads guilty-
    -to interjecting personal opinion into the conclusion of his opinion. Remember "ash heap of history"?

  • 56. Fledge01  |  July 10, 2014 at 8:13 am

    I find it interesting in other situations where people get upset because a judge has a personal opinion: such as "We need a new judge because he is gay." Whereas they would never admit there is the same potential for personal bias when a judge is straight. Or saying a judge who owns property can't rule on a case involving property rights. Or a judge who is Christian can't rule on a case about religious freedoms. Or a judge that lives in a poor or rich neighborhood ruling on a case that affects people more or less based on their income. Judges are people who benefit from a just and well functioning society and therefore benefit personally from any ruling.

    Judge Jone's opinion is well based in reason and the law. As long as that reasoning exists, personal bias is irrelevant. Even Scalia has ruled a certain way various cases where he publicly admits he personally wished the law was different so he could have ruled differently.

    There is no piece of law that specifies how a judge should rely on strict tradition versus recognizing the role of a changing society on the law and thus a changing interpretation of the constitution. Even the role of relying on precedent in previous opinions is just itself tradition.
    The whole concept of law common law is just tradition.

    So its up to each judge to interject his life experiences, and his understanding of society and the role of law within society in whichever way that judge personally feels the law permits. That ability to add a statement of personal opinion to a conclusion, in a well reasoned opinion, is permitted under the law, at least under my opinion of the law. People who disagree can sue the judge and then see how successful they are in their lawsuit.

  • 57. brandall  |  July 10, 2014 at 8:42 am

    Getting your visa renewal…:-) ๐Ÿ™‚ ๐Ÿ™‚

    Interesting interview. Geez, we live in a video world and the courts need to join it.

    My favorite line in this interview was "the fundamental right to same sex marriage was always there just kind of hiding in plain sight".

  • 58. Zack12  |  July 10, 2014 at 9:54 am

    His critics need to look at the stuff Scalia writes and shut up.

  • 59. LK2013  |  July 10, 2014 at 12:38 pm


  • 60. labman57  |  July 10, 2014 at 9:16 am

    The argument that gays should be satisfied with civil unions because it provides most of the same protections as marriage is akin to suggesting that blacks shouldn't care whether they are required to sit in the back of the bus, since all of the passengers will arrive at the same destination.

  • 61. Zack12  |  July 10, 2014 at 9:34 am

    Indeed, plus as we've seen when these "equal" status have been put into place for us, they've been anything but equal.

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