The appeals court's turf includes Colorado, Utah and four other states, and Hall decided she would issue licenses even though the court had immediately issued a stay on its own ruling until it can be heard by the U.S. Supreme Court. Sixteen federal and state judges have previously ruled in various marriage equality cases, but the 10th Circuit's ruling was the first at the federal appeals level. It states:
"We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state's marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union."The Colorado constitution defines marriage as being between a man and a woman. It also recognizes civil unions between same-sex couples.
The court's stay makes Hall's decision to issue licenses iffy. Then, too, there is the lawsuit filed Thursday by Colorado Attorney Gen. John Suthers. He had warned Hall several times and given her a July 1 deadline to comply with his demand that she stop issuing licenses. She refused. By the time the suit was filed, the county had issued 105 licenses to same-sex couples. Hall still hasn't stopped issuing licenses. She went ahead with them in the first place because Boulder County attorneys told her the stay was "ambiguous." Said Hall to reporters two weeks ago, "How do you stay a fundamental right?"
A hearing on the lawsuit will take place Wednesday.
Hall has a predecessor of like mind who issued some of the nation's first same-sex licenses in 1975, a time when doing so was widely considered an outrageous act even by many liberal residents of the city of Boulder, the county seat.
That predecessor is an old friend of mine, Clela Rorex, the Boulder County clerk and recorder at the time who issued six same-sex marriage licenses before the state stopped her. You can read some details in this 2008 post, Clela Rorex: Gay Marriage Pioneer. Although she has always denied it, her action took an immense amount of political courage at the time.
Now 70, Rorex said two weeks ago, "I'm just elated that Hillary stepped up immediately. I'm just thrilled and happy about all this."
Please read below the fold for more on this subject.
The timing coincided with Rorex's trip to San Francisco to promote the film Limited Partnership. It documents the fight over marriage equality by Tony Sullivan and Richard Adams, two of the men she issued licenses to 39 years ago. Adams died two years ago, but Sullivan, an Australian, is continuing to try to get the marriage recognized so he can obtain a green card.
Six years ago when I spoke with her, Rorex said:
"If I had the opportunity to do it over again, I would do it with more conviction this time. Then I knew nothing about gay and lesbian relationships. I only knew one gay man. But I knew it was the right thing to do.
"My only regret in this is that people with long-term loving relationships still can't get married. I now know several gay and lesbian couples who have been together for years. They reaffirm to me that this is an issue of human rights, civil rights. All the fanatical hate-mongering about it is frightening and infuriating."
But Colorado Attorney Gen. J.D. MacFarlane said no. He said the same-sex licenses were misleading for suggesting that recipients had obtained all the rights the state afforded to opposite-sex spouses. The Boulder District Attorney went along with the attorney general and the licenses became void. But the matter was never contested in court. Suthers mentioned MacFarlane's legal opinion in his own statement after the 10th Circuit ruled:
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.”
Rorex responded in an interview with the Boulder Daily Camera:
"We never felt that those licenses were invalidated," she said, adding that they were issued before Colorado had any same-sex marriage law on the books. "They were never taken to court or challenged on any validity issues."Hall took a similar stand last week, saying "History will be on our side":
"I think that just because he says something is not valid, that's not really how the law works," Hall said, referring to Suthers. "It takes a court to say something is not valid."Colorado Gov. John Hicklenlooper, who has joined Suthers in seeking a quick ruling in the matter from the U.S. Supreme Court, said of Hall:
“She obviously feels very passionately about this,” Hickenlooper said about Hall. “In a way, I think you can argue it’s some form of civil disobedience.”Call it what you will, governor. But to repeat what I wrote six years ago here and in Boulder nearly four decades ago when Rorex took her bold stance, at its root, this struggle is not about "gay marriage." It's about civil rights. Equal rights. Everybody's rights. Not a luxury. Not an add-on. Bedrock, bottom-line, fundamental. That was so when Clela Rorex issued those six licenses 39 years ago, and it's still true today as Hillary Hall does so. Kudos to them both. History is on our side.