Colorado supporters of same-sex marriage applauded the U.S. Supreme Court’s decision Friday to take up the issue this term, and most predicted that gays across the nation will be allowed to marry in all 50 states within five months.
“The pace of this in terms of progress on civil rights is really unprecedented,” said Nancy Leong, a constitutional law professor at the University of Denver’s Sturm College of Law. “I really can’t think of anything like it. Gay marriage rights could be the law of the land at least by June and possibly sooner.”
Michelle Alfredsen, a plaintiff in one of the cases that challenged Colorado’s same-sex marriage ban this summer, said is a step in the right direction.
“I feel this is a step in finalizing equality. Marriage in this country will no longer be defined as marriage vs. same-sex marriage. It will be just marriage,” Alfredsen said. “When we stop dissecting equality, whether it be marriage, gender or by the color of our skin, is when the victory will truly be celebrated.”
Alfredsen and her wife, Wendy, were the first couple to receive a license this summer when Boulder County Clerk and Recorder Hillary Hall started issuing licenses to gay couples. On Friday, Alfredsen joked that the Supreme Court’s ruling might come down on her wedding anniversary.
“I think it is a great thing,” said Pueblo Clerk and Recorder Gilbert Ortiz. “It is important for the Supreme Court to make a decision for the rest of the United States.”
Ortiz was one of three county clerks in Colorado to begin issuing same-sex marriage licenses last year, despite former Attorney General John Suthers’ warnings that the licenses might not be valid. Suthers successfully stopped Ortiz, and clerks in Denver and Boulder counties, from issuing the licenses until the Supreme Court declined to hear the issue in October.
Ortiz was not surprised the high court picked up the same issue it failed to address just four months ago.
“We’ve seen a lot of states losing the court cases against the bans,” Ortiz said. “I think the Supreme Court recognizes that that question is being challenged in all these different courts and they need to set the standard.”
David Lane, in a lawsuit filed in U.S. District Court in Denver seeking to declare Colorado’s gay marriage ban unconstitutional, predicted that gay marriage supporters would prevail in the Supreme Court.
“You are going to see a 5-4 decision in favor of same-sex marriage. The only reason the Supreme Court took it is because of the split decision in the circuit courts,” Lane said.
Leong agreed.
She said four liberal justices are solidly behind gay marriage rights and Ronald Reagan-appointee Anthony Kennedy, viewed as the swing vote, has consistently sided in favor of gay rights, penning decisions striking down a Texas law banning sodomy and the federal Defense of Marriage Act.
“A big part of Justice Kennedy’s legacy is really these landmark cases he has written that establish civil rights for gays,” Leong said. “I would be very much surprised if he changed course at this stage.”
She said gay marriage is no longer a liberal versus conservation issue after conservative judges across the country, including Judge Jerome Holmes — appointed to the Denver-based 10th U.S. Circuit Court of Appeals by President George W. Bush — ruled against marriage bans.
Carl Tobias, a professor at the University of Richmond School of Law, said the court could affirm the 6th U.S. Circuit Court of Appeals and rely on the federalism arguments — that marriage traditionally is a state matter.
The justices would have to determine that marriage bans do not violate the 14th Amendment because there is no due process right to same-sex marriage and there is no equal protection violation because lesbian, gay, bisexual, and transgender people are not a suspect class, Tobias said.
“The people of every state should remain free to affirm marriage as the union of a man and a woman in their laws,” Austin R. Nimocks, senior counsel for the Alliance Defending Freedom, said in a statement. “We are hopeful the Supreme Court will uphold the freedom of the people to affirm marriage.”
The ADF presented brief arguments asking an Adams County District Court judge to uphold Colorado’s ban on same-sex marriage. Nimocks said allowing states to control their own marriage laws is consistent with the Supreme Court’s 2013 Windsor decision, which said “states have the essential authority to define the marital relation.”
Colorado took center stage in the national debate over same-sex marriage bans last year amid a struggle between Suthers and various county clerks. The Denver-based 10th U.S. Circuit Court of Appeals court to strike down bans on gay marriage.
Colorado began issuing marriage licenses to same-sex couples after Suthers on Oct. 7 gave clearance to all 64 county clerks.
The Supreme Court’s ruling will address inconsistencies around the country in which a number of states still ban gay marriage, Lane said.
“The Supreme Court’s decision will apply to all 50 states,” he said.
The justices said Friday they will review an appellate ruling that upheld bans on same-sex unions in four states. The case will be argued in April and a decision is expected by late June.
The number of states that permit same-sex marriage has nearly doubled in three months as a result of federal and state court rulings. The high court’s decision last October to turn away same-sex marriage appeals allowed some of those rulings to take effect. Florida last week became the 36th state to issue marriage licenses to same-sex couples.
“We hope the Supreme Court will finally bring an end to the harms that same-sex couples and their children face when they are treated unequally and excluded from marriage, ” said Shannon Minter of the National Center for Lesbian Rights, which co-litigated the gay couples that challenged Utah’s gay rights ban.
Minter, who helped defend Utah plaintiffs before the 10th Circuit, is also part of a group of attorneys representing plaintiffs in a case that challenged Tennessee’s gay marriage ban.
“Currently, same-sex couples in many states face a constitutionally intolerable situation because their home states treat them as legal strangers,” Minter said in a statement.
Even legally married couples can instantly lose the protections of marriage if they travel or move to a state that does not recognize their marriages, he said.
The United States is behind a trend across Europe and Scandinavia in which gays are already allowed to marry, Leong said. Even Vietnam recently legalized gay marriage, she said.
“It’s pretty remarkable that we’re behind Vietnam on a civil rights issue,” Leong said.
Leong said the fight to advance civil rights for gay and lesbian people will continue.
She said Title 7 of the 1964 Civil Rights Act prohibits discrimination on the basis of race, sex, religion and national origin, but does not protect people on the basis of sexual orientation. Workplace rights could be the next legal battleground, she said.
“There still is a lot of prejudice and discrimination,” Leong said.
Carolyn Tyler, communications director for the Colorado Attorney General’s office, said the court’s decision to hear the case had no effect on current Colorado law.
Kirk Mitchell: 303-954-1206, denverpost.com/coldcases or twitter.com/kmitchelldp
The Associated Press contributed to this report.
