In Colo., An Effort To Ease Court Confusion Over Same-Sex Marriage

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Colorado's attorney general wants a clerk in Boulder County to stop issuing marriage licenses to same-sex couples. The A.G.'s taken the request to Colorado Supreme Court. The clerk had been issuing the licenses since the Tenth Circuit overturned Utah's gay marriage ban. Both states are part of the court's purview. Colorado Public radio's Megan Verlee reports on what's happened since the ruling.

MEGAN VERLEE, BYLINE: The Tenth Circuit Court of Appeals struck down Utah's same-sex marriage ban on June 25. Twenty-four hours later in Colorado, this was the scene at the Boulder County Clerk's office.

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UNIDENTIFIED WOMAN: Do you Nate choose to marry Mark, to speak the promises that will bind you to him in loving devotion for the rest of your life. If so, please answer I do?

NATE: I absolutely do.

VERLEE: Dozens of couples rushed to marry after Boulder County Clerk Hillary Hall announced she would give them licenses. Even though the Tenth Circuit decision is being appealed, Hall told reporters she isn't willing to wait for the Supreme Court.

HILLARY HALL: I have trouble squaring. You declare something as someone's constitutional fundamental right, and then you say, but not just yet.

VERLEE: The state's Republican Attorney General John Suthers is in a tough position. If the Tenth Circuit decision is upheld, then Colorado's ban will be struck down. So how do you argue for a law that the controlling court has already said is unconstitutional?

JOHN SUTHERS: We don't go into a federal district court and say, oh, judge ignore a Tenth Circuit court decision that tells you where they stand on same-sex marriage.

VERLEE: So the Attorney General has stopped defending the marriage ban, but he still wants judges to enforce it until there's a final ruling. Suthers says the momentum behind gay marriage may feel inevitable. But until the Supreme Court ways in, nothing has really changed in Colorado.

SUTHERS: It's very important that we respect the processes by which laws are changed, either politically or traditionally. And we're going through a process now where it seems very likely that the law will change, but the rule of law requires respect for those processes.

SUSANNAH POLLVOGT: Essentially, what you have it is Attorney General Suthers trying to have his cake and eat it too.

VERLEE: University of Denver law professor Susannah Pollvogt points out that if judges go along with Suthers' request to maintain the status quo, the practical effect is the same as if he'd won the case - no gay marriages, at least for now. But Pollvogt says upholding the current law isn't the only thing judges have to consider.

POLLVOGT: The balance there is between a sort of preference for maintaining the status quo unless the status quo is really actively harming people. And so, of course, the District Court here in Colorado concluded that the status quo was actively harming people.

VERLEE: The fact that Colorado judges are allowing marriages to happen while the ban is still on the books strikes Ned Flaherty as a turning point. He tracks court battles around the country for the group Marriage Equality USA. Flaherty says it's not just the judges agree the law hurts gay couples - they also aren't buying the argument that the marriages damage the state.

NED FLAHERTY: The basis for a stay, which is harm to somebody, is no longer tenable legal position for anyone to take, and that's the result of the last several years of that question coming up regularly in every single case.

VERLEE: Flaherty sees Colorado's strange legal situation as a sign that even the courts are coming to see gay marriage as inevitable - whether enough justices on the Supreme Court agreed with that feeling could be the big question of their next term. For NPR News, I'm Megan Verlee in Denver. Transcript provided by NPR, Copyright NPR.