Boulder County Defies Colorado Attorney General, Won’t Stop Same-Sex Marriages

“As things currently stand, nobody can be happy.” The state’s attorney general is locked in a fight against a county clerk.

WASHINGTON — Colorado’s attorney general is in a legal standoff with Boulder County officials, where the county clerk has been issuing marriage licenses to same-sex couples since June 25.

The state attorney general’s office has set a deadline of noon MT Tuesday for a response to a recent proposal that would stop the marriages for now and send the dispute to the Colorado Supreme Court, but the Boulder County officials asked late Monday for that deadline to be delayed until July 10.

The dispute is an unexpected result of the June 25 decision of the 10th Circuit Court of Appeals that Utah’s ban on same-sex couples’ marriages is unconstitutional — and a sign of the growing difficulty that state and local officials could face as court cases remain in limbo during the slow appeals court process.

Boulder County Clerk Hillary Hall consulted with her county attorney on the afternoon of June 25 and decided that the county could legally issue marriage licenses to same-sex couples in Colorado because the 10th Circuit, which includes Colorado, had ruled that marriage is a fundamental right available to same-sex couples and opposite-sex couples alike.

That evening, Colorado Attorney General John Suthers shot back, saying that any such marriages were “invalid” because Colorado’s amendment “remains in effect.” Hall made clear in press statements, including to BuzzFeed, that she was going to continue issuing marriage licenses to same-sex couples despite the attorney general’s statement.

Suthers then took another shot at it, with his office sending a letter to Hall’s office late on the afternoon of June 27, stating, “As things currently stand, nobody can be happy.” In the letter, Solicitor General Dan Domenico put forth “a proposal” that Hall stop issuing marriage licenses and, in exchange, the state would agree “to file a joint petition with you to the Colorado Supreme Court … seeking expeditious resolution of the question of your authority to issue licenses to same-sex couples.”

Domenico also formally stated that the state’s position is that the same-sex couples’ licenses issued by Hall “are invalid and of no legal effect.” He also issued a threat to Hall, stating that agreeing to the proposal by noon July 1 would “obviate the need for us to take any further action regarding your issuance of licenses.”

Late Monday, Boulder County Attorney Ben Pearlman responded that Hall “has found one-and-a-half days insufficient for both her office and mine to consider and formulate a response” — noting that the June 27 letter was sent to the county clerk’s “generic e-mail box on Friday at 5:07 p.m.” The Boulder County officials have asked for the attorney general’s office to give them until July 10 to respond.

Pearlman made no reference to the county stopping the issuance of licenses to same-sex couples during that time.

update

Colorado Attorney General John Suthers’s office has told Boulder County officials that they plan to go to court Wednesday if Boulder County Clerk Hillary Hall does not stop issuing marriage licenses to same-sex couples.

Suthers’s office responded Tuesday to county officials’ request for additional time to consider a proposal to allow the state’s supreme court to resolve the question of whether Hall can issue the marriage licenses. Colorado Solicitor General Dan Domenico wrote that the county could have until July 10 to respond to the proposal only if Hall stopped issuing marriage licenses to same-sex couples during that time.

“If she elects to continue after today, I am afraid we will be forced to take legal action,” Domenico wrote.

Hall, in a statement provided to BuzzFeed, said that she has refused that secondary proposal — because she viewed the response as “essentially den[ying]” her request for additional time.

“Shortly after 11:00, we received a response from the Attorney General. Our request was essentially denied as the terms for more time were contingent on stopping the issuance of same-sex licenses,” Hall said. “Our position is the same as previously stated. Same-sex licenses are legal and just licenses and we will continue to issue them.”

update

Boulder County’s county attorney, Ben Pearlman, wrote to the Colorado Attorney General’s Office on Wednesday, stating that the office has determined that the county is issuing marriage licenses because “the unconstitutionality of enforcing a same-sex marriage ban is established by both 10th Circuit law and the clearly established weight of authority.”

Specifically, Pearlman wrote, “Clerk Hall is prohibited from knowingly violating an individual’s constitutional rights.”

Perlman concluded by stating that the county officials would like to work with the attorney general’s office to resolve the situation but that they “are not willing to continue negotiating only on the condition that Clerk Hall immediately stop issuing licenses.”

The Colorado Attorney General’s Office’s letter of June 27:

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The Boulder County officials’ letter of June 30:

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The Colorado Attorney General’s Office’s response on July 1:

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The Boulder County officials’ response of July 2:

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