Colorado Attorney General John Suthers has learned not to flinch when an unpopular stance lands him in the cross hairs.
This year, he took heat from his own party when he defended the state’s new gun control laws, and for the past month he’s faced fire from the left side of the aisle for his decision to defend the state’s ban on same-sex marriage.
Even with a string of legal setbacks, requests from state officials to stop and a growing outcry from the public to stand down on gay marriage, Suthers maintains that selectively choosing to uphold some laws and not others creates a dangerous and slippery slope.
“I’m serious about my obligation to defend state laws,” Suthers said in an interview with The Denver Post. “If you’re serious about defending the law, you do it regardless of the public’s views about it at a particular time.”
But opponents to Suthers’ decision say the attorney general is acting inconsistently and ignoring the flood of court rulings in the past year striking down similar bans in other states. One week ago, the 4th U.S. Circuit Court of Appeals struck down Virginia’s ban on same-sex marriage, making it the second federal appellate court to do so.
In total, judges or courts in 20 states have struck down same-sex marriage bans. There is pending litigation in more than half of those states.
In June, the 10th U.S. Circuit Court of Appeals, which includes Colorado, found Utah’s ban unconstitutional. The U.S. Supreme Court upheld a stay, and will announce this fall whether it will hear arguments in the case. The 10th Circuit also tossed out Oklahoma’s ban.
“I don’t understand what he (Suthers) has to gain by continuing this,” Becky Brinkman said.
Brinkman and her partner, Margaret Burd, filed a lawsuit in October, challenging Colorado’s voter-approved ban. On July 9, Adams County District Court Judge C. Scott Crabtree found the state’s ban unconstitutional.
Despite a request from Gov. John Hickenlooper not to appeal the ruling, Suthers has taken the case to both the state’s appeals court and the Colorado Supreme Court.
“His (Crabtree) decision may reflect what every other judge does along the line, but you can’t say this one county court decided and therefore I’m going to bind the whole state of Colorado,” Suthers said.
Suthers is also appealing a similar ruling from a federal judge in a lawsuit filed last month. The judge granted a temporary stay in that case, so Suthers may file an appeal with the 10th Circuit.
As each ruling was handed down, Suthers faced harsh criticism from opponents, who claimed he was delaying the inevitable. But Suthers, who won by wide margins in both the 2006 and 2010 elections, said he has come to expect a mix of support and push-back on most of his decisions.
His office was flooded with vitriolic messages when he filed a discrimination complaint against a Lakewood baker who refused to make a wedding cake for a gay couple. The same happened when his office successfully defended the state’s gun control laws, which opponents argued impinged on their Second Amendment rights.
“Can you imagine what the gun control advocates’ reaction would have been to me saying I’m not defending these laws?” Suthers said. “They would have been outraged, and I wouldn’t have blamed them. It’s my job.”
Legal process
The precedent set by judges and courts repeatedly ruling against gay marriage bans, however, sets the issue apart, Brinkman said.
She and others have pointed to eight attorneys general — all Democrats — who have declined to defend similar laws in their states. On July 28, North Carolina Attorney General Roy Cooper announced his office would stop defending the state’s marriage ban.
Suthers, who acknowledges the courts appear poised to legalize gay marriage, emphasizes that if and when the U.S. Supreme Court picks up the issue, it’s still “not a slam dunk.”
Because the high court will likely decide the issue on a 5-4 vote, Suthers said, it’s vital that attorneys general fulfill their roles by defending bans and completing the legal process.
Suthers hasn’t limited his arguments in the same-sex marriage issue to Colorado. On July 22, along with nine other Republican attorneys general, he filed a brief in the 7th U.S. Circuit Court of Appeals, asking the court to uphold Indiana’s similar ban on gay marriage.
Arguments in the brief echo Suthers’ belief that same-sex marriage should be decided by the voters and not the courts. Several states have already legalized same-sex marriage.
Still, most attorneys general have elected to defend bans in their states, Suthers said. What has set Colorado apart — and put it in the spotlight — are three county clerks who began issuing marriage licenses to same-sex couples.
Licenses issued
Boulder County Clerk and Recorder Hillary Hall began issuing same-sex marriage licenses on June 25. Clerks in Denver and Pueblo counties joined Hall, after a Boulder District Court judge denied Suthers’ request to stop her.
In just over a month, about 350 same-sex marriage licenses were issued in Colorado. The validity of those licenses, something Suthers worries will affect couples in the future, has not yet been argued in court.
“That situation has created a lot of the confusion and chaos in Colorado,” Suthers said.
But Denver Clerk and Recorder Debra Johnson said the confusion was caused by Suthers using “every avenue to stop” them.
On July 18, the Colorado Supreme Court ordered Johnson to stop issuing the licenses , and Suthers persuaded the Pueblo clerk to stop shortly after. But it took more than a week and two additional court orders before the Colorado Supreme Court ordered Hall to stop.
“I understand he has an obligation to uphold the Constitution of the United States and the Constitution of Colorado, just like I do,” Johnson said. “But there has been precedent set by the U.S. Supreme Court where they have described marriage as a fundamental right.”
Jordan Steffen: 303-954-1794, jsteffen@denverpost.com or twitter.com/jsteffendp
