Updated: Wednesday, July 23, 2014.
DENVER — A federal judge in Denver is expected to rule Wednesday whether Colorado’s same-sex marriage ban should be overturned immediately, or if the issue should be decided by the U.S. Supreme Court.
U.S. District Judge Raymond P. Moore’s decision will be in response to a lawsuit by six gay couples who want an injunction declaring Colorado’s ban unconstitutional.
While Moore indicated the injunction is expected to be granted, he said the question is whether to put his decision on hold.
Colorado Attorney General John Suthers, a Republican, is not opposing the injunction, but he wants it to be stayed until the nation’s highest court decides the issue. However, Mari Newman, the attorney for the gay couples, told the judge on Tuesday that “justice delayed is justice denied.”
During arguments before the court, Newman compared opponents of gay marriage to former Alabama Gov. George C. Wallace, who tried to prevent the integration of black students at the University of Alabama in 1963.
“I think it’s fair to say that in this topic, those who are opposing marriage equality are ultimately going to be viewed like George Wallace standing on the schoolhouse steps trying to keep people out,” she said.
A ruling in favor of the gay couples, without a stay, would open the door to allowing clerks statewide to issue marriage licenses to same-sex couples.
But Michael Francisco, assistant solicitor general in Suthers’ office, said they will continue to pursue a stay with a higher court if the judge denies it. “We will appeal to defend Colorado’s laws,” Francisco said.
Suthers’ office has maintained that Colorado’s ban should remain in place until a final decision by the U.S. Supreme Court. Francisco said in his arguments before Judge Moore that there’s legal precedent where stays have been issued when courts in other states have found same-sex marriage bans unconstitutional.
Colorado voters approved the same-sex marriage ban in 2006, but several recent court rulings have given gay rights advocates hope that the days of state’s law are numbered.
Clerks in Boulder, Denver, and Pueblo counties have already issued licenses to gay couples after court rulings saying same-sex marriage bans are unconstitutional. However, the Colorado Supreme Court last week ordered Denver to stop while the state ban remains in place, and the Pueblo clerk stopped on Monday because of that ruling.
The state Supreme Court ruling did not apply to Boulder’s clerk, however. A district judge ruled in the clerk’s favor this month, allowing same-sex marriage licenses to continue. On Wednesday morning, the same judge rejected the state’s appeal that he stay or reconsider his ruling.
More than 20 courts have issued rulings siding with gay marriage advocates since the U.S. Supreme Court’s ruling last year striking down the Defense of Marriage Act, which denied federal benefits to married same-sex couples. The rulings have come in 17 states.
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