State Judge: Colorado’s gay marriage ban “discriminatory”

On July 9, Adams County District Judge C. Scott Crabtree ruled that Colorado’s 2006 constitutional same-sex marriage ban violates the fundamental rights of gay and lesbian couples, adding that civil unions only reinforce the biased nature of the statute.

Rebecca Brinkman sat in her car in the parking lot and checked her voicemail — it was an urgent message from her partner of almost 35 years, Margaret Burd.

Last October, the couple sued Adams County when the county clerk politely refused to issue a marriage license, explaining that Colorado’s Amendment 43 prohibited same-sex marriage. They were offered a civil union license, which they politely refused. For the last nine months, Brinkman and Burd have spearheaded the challenge to the ban, and their lawsuit was recently combined with a similar case in which nine same-sex couples sued Denver County in February for the right to be married.

“It was very emotional. I called my partner back right away,” says Brinkman, overwhelmed with excitement when she heard Judge Crabtree ruled in their favor. She sat in her car phoning friends and family with the good news. “I just had to share it.”

Ralph Ogden, the couple’s attorney, received the news as he was leaving a theater. “I had a ton of emails about the ruling, and I couldn’t read the decision fast enough. Judge Crabtree was so thorough in taking apart the state’s argument. It was a very courageous thing for him to do.”

Though Crabtree immediately stayed his ruling, the state judge’s 49-page decision vigorously dismantled Colorado’s defense of the voter-approved gay marriage ban.

Colorado’s central argument revolved around what it called ‘responsible procreation,’ outlining that the optimal environment for child rearing required opposite-gender parents, and that it was in the state’s interest to promote that environment.

Judge Crabtree did not mince words in razing the state’s claim, asserting that the child-centric defense, utilized to deny gays and lesbians the right to marry, was nothing short of blatant discrimination.

“The avowed State interest can be distilled down to encouraging procreation and marital commitment for the benefit of the children,” writes Crabtree. “The problem with this post-hoc explanation is that it utterly ignores those who are permitted to marry without the ability or desire to procreate. It is merely a pretext for discriminating against same-sex marriages.”

Crabtree highlighted that the passage of civil unions in Colorado, which became legal last May, only serves as further evidence of a separate but not equal system of governing which “does not ameliorate the discriminatory effect of the Marriage Bans.”

In addition, the state judge emphasized that those who organized and backed Amendment 43 in 2006 pushed for the ban even though the Colorado legislature had already enacted a similar provision prohibiting gay marriage. “This historic fact evidences a clear intent to ensure that gay and lesbian Coloradans be preemptively denied rights under the Constitution.”

Ogden applauded Crabtree’s candid verbiage, emphasizing that the ruling echoes other federal and state court decisions in declaring gay marriage bans to be in violation of the 14th Amendment of the Constitution. “The standard for violation of fundamental rights,” says Ogden, “is that the government must show that the law which violates rights serves a compelling state interest and is narrowly tailored to serve that interest. What Judge Crabtree said was that the state law was invalid because it infringed on this fundamental right
[to marry] without any rational basis.”

Crabtree’s ruling came only a few weeks after the Denver-based 10th Circuit Court of Appeals, which has jurisdiction in Colorado and five other states, ruled that Utah’s marriage amendment ban was unconstitutional. On July 18, the 10th Circuit also ruled Oklahoma’s same-sex marriage ban unconstitutional. And on July 23, U.S. District Judge Raymond P. Moore ruled that Colorado’s Amendment 43 was unconstitutional. All three courts immediately stayed their rulings.

Since last June, when the U.S. Supreme Court struck down a section of the Defense of Marriage Act, there have been a total of 29 consecutive federal and state court decisions upholding the right for gay and lesbian couples to marry. A poll conducted in April of this year by Quinnipiac University revealed that 61 percent of Coloradans support the right of same-sex couples to marry. But despite the court of victories and public support, Colorado Attorney General John Suthers has appealed Crabtree’s ruling, taking the fight for marriage equality to the Colorado Supreme Court. Requests from Colorado Gov. Hickenlooper and LGBT organizations such as One Colorado to stop defending the ban have gone unheeded. Suthers shows no sign of relenting, as he recently joined nine other state attorney generals in filing a friend-of-the-court brief defending a same-sex marriage ban in Indiana.

“I don’t really understand [Suthers’] motivation,” says Brinkman, who pointed out that several attorney generals in other states have decided not to defend similar gay-marriage bans. “I can’t figure out why he is doing this, other than he might have political aspirations later. It’s a real waste of taxpayer money.”

The appeals process also takes time. Ogden explained that a ruling on Brinkman and Burd’s lawsuit by the Colorado Supreme Court won’t come until early next year — and that’s only if the courts decide to expedite the case.

“In the length of time it’s going to take to get this through the Colorado Supreme Court,” says Brinkman, “there are going to be gay people who die without protections, who miss out on Social Security benefits … there are going to be children who are confused whether their parents are married or not. It affects peoples’ lives on a very real level.”

But no matter how long it takes, Brinkman and Burd are committed to their goal to get married in Colorado and put an end to Amendment 43. Though the couple has been fighting for gay rights in the Centennial State since the early ’90s, they don’t see themselves as courageous.

“Everybody has thanked us for putting out the effort and [said] that we are brave to do this,” says Brinkman. “I really have to say that I don’t feel that brave. I feel like the trail had already been blazed by Edith Windsor.”

Brinkman added that although there’s been a flurry of court victories in the past 12 months, ending these discriminatory bans which violate the 14th Amendment is long overdue.

“Everybody’s talking about how fast this is going, but if you think about it, the Constitution has been here for more than 200 years.”