We didn't think the battle for same-sex marriage could get any more odd than what transpired in Oregon: nobody but an openly gay judge argued in favor of that state's ban, at least until that same judge ruled against it a short time later, after noting that he had no plans to get married.
This might be close. In Boulder, Colorado, County Clerk Hillary Hall decided to start issuing marriage licenses to same-sex couples, even though that state's ban still stands. She did so after the Tenth Circuit ruled against a neighboring state, Utah, overturning that state's substantively similar ban. Interestingly enough, the Tenth Circuit also issued a stay in that case -- meaning marriage licenses still aren't being issued in Utah, though they are in Boulder, Colorado.
Hall argues that she is in the right by ignoring an "unconstitutional and unenforceable" state law. The state disagrees, and today a local court heard arguments over the state's request for an injunction to stop her.
Jumping the Gun or Avoiding Liability
The state's arguments are ones we've seen repeatedly: let this play out in the courts, preserve the status quo, etc.
Hall, who is represented by deputy Boulder County attorney David Hughes, presented a unique argument that she should not be required to enforce an unconstitutional law while the cases race to an inevitable conclusion, reports the Daily Camera.
Why? Doing so could get her sued.
"The state has all but admitted that, in the absence of a final Hail Mary decision from the United States Supreme Court that is contrary to the 23 courts that have thus far examined the constitutionality of state same-sex marriage bans, Colorado's marriage bans are unconstitutional and unenforceable," Hughes wrote.
"Hall ignores such laws at her peril," he continued. "Contrary to the state's position, Clerk Hall cannot fend off a challenge to her actions simply on the basis that a law is still on the books in Colorado."
In essence, Hughes is arguing that Hall shouldn't have to comply with the law because by doing so, she would violate the rights of others and open herself to a lawsuit, as there is no binding court order requiring her to comply. It's an interesting argument, one that University of Colorado law professor Jennifer Hendricks agreed with.
"A stay is not an order not to comply; it doesn't prevent voluntary compliance," Hendricks said. "A same-sex couple could sue (Hall) in federal court and look at the 10th Circuit Court decision very easily."
An Interesting Historical Parallel
Nearly forty years ago, Boulder Colorado County Clerk Clela Rorex, with no law explicitly prohibiting her from doing so, issued six marriage licenses to gay couples before the state's attorney general ordered her to stop. Rorex told The Associated Press that she received little support, from her own party, from the gay community, and especially not from the public. After a recall effort was launched against her, she resigned.
Today, Hall is doing the same. She told the AP that Rorex was ahead of her time, but her own decision was based on her legal and moral obligations.
"You cannot stay a fundamental right," Hall stated.
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