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Tenth Circuit stays same-sex marriages in Colorado

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Colorado state sealThe Tenth Circuit Court of Appeals has issued an order granting a stay in a federal challenge to Colorado’s same-sex marriage ban. The order notes that the Tenth Circuit has issued stays in other marriage cases, and says “[i]n the interest of consistency” this case will be stayed as well.

A federal judge had issued a preliminary injunction against enforcement of the ban in July. The court then halted proceedings in the case, pending issuance of the mandate in Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban in the Tenth Circuit. A request to halt the injunction was denied, but a temporary stay, until August 25, was granted so that the state could ask the appeals court for a stay pending appeal.

Without this new stay, marriages could have begun in Colorado on August 25.

The Utah case is in the Supreme Court, and the Justices are likely to have their first opportunity to grant review during their conference on October 10. The mandate in the Kitchen case wouldn’t issue until the Supreme Court denies review or rules on the merits.

Thanks to Equality Case Files for these filings


  • 1. davepCA  |  August 21, 2014 at 3:31 pm

    Well fiddle de dee.

  • 2. RnL2008  |  August 21, 2014 at 11:25 pm

    My thoughts exactly!!!

  • 3. Ragavendran  |  August 21, 2014 at 3:32 pm


  • 4. DoctorHeimlich  |  August 21, 2014 at 3:44 pm

    Unsurprising, though still disappointing.

    At least the Wikipedia map is now an accurate reflection of reality.

  • 5. DACiowan  |  August 21, 2014 at 5:32 pm

    Keep in mind the Wiki map is by de jure status, not de facto. That's why states were being turned marriage blue as soon as rulings came down and laws were passed. The light blue transition color for Virginia and Colorado was a compromise for when de jure was ahead of de facto.

  • 6. RobW303  |  August 21, 2014 at 10:20 pm

    But since formal stays affect the coloring, I don't see why the temporary stays, granted beyond the usual procedural delays before rulings take effect, don't also affect the coloring.

  • 7. Rick55845  |  August 21, 2014 at 3:44 pm

    Good line, Scottie … "Another day, another stay" summarizes the standard response to the steady progression of favorable ME rulings quite well.

  • 8. sfbob  |  August 21, 2014 at 3:54 pm

    "If we don't stay the ruling SCOTUS will. So we'll save them the cost of the conference calls and do it ourselves."

  • 9. SeattleRobin  |  August 22, 2014 at 8:26 am

    Don't forget that they're also saving people money, both tax payers and plaintiffs. I agree with everyone that the stays are disappointing and aggravating. But the writing has been on the wall for a while now and I don't see any point to fighting a losing battle. The energy and resources of the queer community can be directed at other problems that need just as much attention in the meantime. Every single brief and motion costs dollars and personnel.

  • 10. brandall  |  August 22, 2014 at 12:26 pm

    And to your point, I found this today…Oregon state taxpayers fork out $133,567 to ME Plaintiff's Lawyers…and that was with no appeals.

    Once all of these cases are settled in our favor, there will be quite a bill if you tally up all the states that we are fighting right now. I am assuming a lot of the pro-ME legal work is pro bono until we win and they then have the option to collect their fees and other costs.

  • 11. SeattleRobin  |  August 22, 2014 at 4:33 pm

    A lot of the legal work for plaintiffs is bro bono, but it's only free to the party being represented. There's still a real cost in dollars for salaries, office supplies, etc. etc. We as a community are paying for every piece of paper filed with donations and fund raising efforts. And from what I've seen in my sister's more mundane work as a lawyer, being awarded fees by the court never covers all expenditures. And of course, as you point out above, everyone as tax payers are on the hook for the amounts awarded by the court.

  • 12. Jen_in_MI  |  August 23, 2014 at 8:01 pm

    "Bro bono" may be my favorite typo ever! 🙂

  • 13. Corey_from_MD  |  August 21, 2014 at 4:35 pm

    This trend will continue until SCOTUS steps in.

  • 14. Zack12  |  August 21, 2014 at 5:06 pm

    It could be a moot point if the CO Supreme Court rules in our favor.
    At that point, only SCOTUS could step in and I'm not sure if they will when dealing with state courts.

  • 15. StraightDave  |  August 21, 2014 at 5:22 pm

    It's a good thing SCOTUS can't just "step in [it]" here. They would have to be explicitly invited by an appeal from the state, which, after all the hoo-hah that's been going on out there, there might not be a large appetite for.

  • 16. LK2013  |  August 21, 2014 at 5:07 pm

    They might as well have just said "SCOTUS just made our decision for us. Thank you."

  • 17. LK2013  |  August 21, 2014 at 5:08 pm

    Yes, Zack12, I hope the Colorado Supreme Court rules in favor of ME and the show stops there.

  • 18. mario315  |  August 21, 2014 at 5:44 pm

    The last I read about the Colorado Supreme Court it was still not clear/ sure that they would take up a ME case this fall, but perhaps they would just punt to the US Supremes to see what they do with the Circuit appeals….. Is the thinking here that the Colorado Supremes will ignore what is going on in DC and take up the Colorado cases this fall ?…. Has any legal writer said anything about the odds of the latter happening ?

  • 19. Ragavendran  |  August 21, 2014 at 6:10 pm

    The Colorado Supreme Court has ordered that the civil disobedience appeal in Colorado v. Hall (2014-SC-582) be transferred directly to it from the Court of Appeals, and the records submitted by October 20. And according to an unconfirmed source (Wikipedia), the Colorado Supreme Court is already scheduled to hear oral argument in the ME appeal in Colorado v. Brinkman (2014-SA-212) on September 30. It is notoriously difficult for me to find out even how to access Colorado Supreme Court records online (free or paid). Anyone have any advice?

  • 20. RQO  |  August 23, 2014 at 5:32 am

    Not only is it difficult to find out, the press (including the pro-ME Denver Post and the Denver TV channels) has been incredibly MIA. It's as if they gave up coverage the moment marriages were finally halted in Boulder County. I was out of town a bit, but the first I heard of a definite CO SC hearing was on PBS, 8/22.
    CO politicians are spending record amounts this year, but the ads are strange – mostly everyone is running away from any mention of anything controversial. However, only one SC Justice (Boatwright?) is up for retention on the Nov. ballot, and unless AG Suthers can present a far better argument than he has to date for exactly why we have to wait for SCOTUS, we may well get lucky and have ME in CO long before June.
    Oddly, I don't think ME is/will be very controversial. The organized opposition – so fierce for those years up to passing civil unions in 2013 – seems to have died down to a murmur.

  • 21. F_Young  |  August 23, 2014 at 6:33 am

    RQO: "we may well get lucky and have ME in CO long before June. "

    Here's hoping you get lucky.

  • 22. Ragavendran  |  August 21, 2014 at 6:17 pm

    A hearing was held today in Michigan's Caspar v. Snyder, the case dealing with the recognition of the legally performed same-sex marriages in the window before a stay was issued by the Sixth Circuit. Does anyone have more info than those I find in the following news articles – specifically, there doesn't seem to be much information about the judge's reaction and his demeanor, any hints on how he might rule:

    Judge Goldsmith said he’ll rule soon on whether the marriages should be recognized.

    "He seemed to be very much engaged and understanding of what the different arguments were," Kaplan said in regards to the Judge presiding over the case.

  • 23. ragefirewolf  |  August 22, 2014 at 7:12 am

    This is the first I'm hearing about it, so you know more than I.

  • 24. Marriage Equality Round-U&hellip  |  August 22, 2014 at 6:14 am

    […] USA, Colorado: The 10th circuit has just issued a stay in a marriage equality case. Without the stay, weddings could have begun on August 25th. full story […]

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