Same-sex marriage in Colorado

In 1996, the Colorado General Assembly passed a bill banning same-sex marriage, but it was vetoed by Governor Roy Romer.[4] In 1997, the General Assembly again passed a bill banning same-sex marriage, but it was again vetoed by Governor Romer.[5] In 2000, Governor Bill Owens signed a bill banning same-sex marriage into law.[6]

On November 7, 2006, Colorado voters approved Amendment 43, a state initiated constitutional amendment that prohibited the recognition of same-sex marriage in the Constitution of Colorado.[7] The amendment passed by a margin of 56% to 44%.[8]

There are five court cases dealing with same-sex marriage in Colorado. They are Brinkman v. Long, a state district court case, ruling in favor of same-sex marriage; Burns v. Hickenlooper, a U.S. district court (i.e. federal) case, ruling in favor of same-sex marriage; Kitchen v. Herbert and Bishop v. Smith, two decisions out of the U.S. Tenth Circuit Court of Appeals which affirm same-sex marriage and are binding precedent on Colorado courts, and Colorado ex rel. Suthers v. Hall, a state court case which previously allowed Boulder County to issue same-sex marriage licenses.

In 1975, Clela Rorex, the county clerk of Boulder County, became the first county clerk in the nation to issue marriage licenses to same-sex couples.[9] She issued marriage licenses to several same-sex couples after the local district attorney interpreted Colorado's statutes, which used the phrase "any two persons", to be gender-neutral with respect to marriage. The state Attorney General, J.D. MacFarlane, issued a contrary opinion that those marriages were invalid.[10] When one of those married in Boulder tried to use it to sponsor his husband for immigration purposes, he lost his case, Adams v. Howerton, in federal court.[11]

In 2016, U.S. Citizenship and Immigration Services granted permanent residency status to Australian national Anthony Sullivan, based on his marriage to Richard Adams in Boulder on April 21, 1975.[12]

After being denied a marriage license, a lesbian couple filed a lawsuit on October 30, 2013 in state district court. The case, Brinkman v. Long, sought to overturn the state's constitutional ban on same-sex marriage.[13][14] The couple was joined by nine other same-sex couples who filed a lawsuit, McDaniel-Miccio v. Hickenlooper, also in state district court, seeking the same outcome.[15][16] The suit named Governor John Hickenlooper and a city clerk responsible for licensing marriages as defendants. Attorney General John Suthers announced he would defend the state's ban.[17]

Brinkman and McDaniel-Miccio were combined for argument in state district court. On July 9, 2014, District Court Judge C. Scott Crabtree ruled that Colorado's same-sex marriage ban violated the plaintiffs' guarantees of equal protection and due process under the Fourteenth Amendment to the U.S. Constitution, stating: "No state since U.S. v. Windsor has been able to justify its ban under even the rational basis test, much less under the strict scrutiny test." The judge stayed his ruling pending the outcome of appeals.[18]

Judge Hartman's decision in Colorado ex rel. Suthers v. Hall (see below) provided legal cover for the Boulder County clerk to issue same-sex marriage licenses as a form of civil disobedience. After Hartman's decision was handed down, the Denver County and Pueblo County clerks began issuing licenses to couples regardless of gender as well, despite Judge Crabtree's stay. When asked to enjoin the Denver County clerk from issuing licenses to same-sex couples, Judge Crabtree refused to take action. On July 14, 2014, the state's Attorney General appealed Judge Crabtree's inaction to the Colorado Supreme Court. In a separate filing, and seeking a reversal of Judge Hartman's ruling, the Attorney General also asked the high court for an emergency injunction to stop all state clerks from issuing licenses.[19][20]

On July 18, 2014, the Colorado Supreme Court ordered clerks in Adams and Denver counties to stop issuing marriage licenses. The state Supreme Court was scheduled to hear oral arguments regarding the merits of the state's same-sex marriage ban on September 30, 2014.[21]

Burns v. Hickenlooper is a same-sex marriage case filed on July 1, 2014 in the U.S. District Court for the District of Colorado. The plaintiffs were six same-sex couples who had been legally married in another state but whose marriage Colorado did not legally recognize or who had been refused a Colorado marriage license.[22] The main defendants, the state Governor and the Attorney General, agreed with the plaintiffs insofar as having the court issue an injunction declaring the same-sex marriage ban unconstitutional, but they wanted a stay and swift resolution by the U.S. Supreme Court in order to avoid costly litigation.[23]

U.S. District Judge Raymond P. Moore found in favor of the plaintiffs in Burns on July 23, 2014, granting their motion for a preliminary injunction. In his ruling, Judge Moore noticed a split among the state defendants even though they agreed with the plaintiffs' motion: "Defendant Attorney General believed Kitchen [v. Herbert] was incorrect while Defendant Governor believed Kitchen was correctly decided. ... Nevertheless, the defendants collectively did not oppose the entry of a preliminary injunction, but also asked that the injunction, as well as further proceedings in this matter, be stayed." After finding that the plaintiffs met their burden for an injunction, he rejected the defendants' request for a stay.

Immediately after Judge Moore's order was issued, state defendants filed a notice of appeal and asked the U.S. Court of Appeals for the Tenth Circuit for a stay. The appeals court granted the stay on August 21, 2014.[24][25]

When the United States Supreme Court dismissed requests to hear appeals from similar cases from the Tenth Circuit on October 6, Colorado Attorney General John Suthers asked the Tenth Circuit to lift the stay in this case as well, which would allow the district court's order that Colorado recognize same-sex marriages to take effect.[26] On October 7, the Colorado Supreme Court removed the legal obstacles preventing Colorado's county clerks from issuing marriage licenses to same-sex couples, legalising same-sex marriage in the state.[3]

The Boulder County clerk had been issuing licenses based on her own interpretation of the Tenth Circuit ruling in Kitchen soon after that ruling was handed down. The state Attorney General filed a motion in state district court in an attempt to stay the clerk's actions. However, on July 10, 2014, a day after the Brinkman ruling, District Court Judge Andrew Hartman found that while the Boulder clerk violated the law—"There is little argument that Clerk Hall is engaging in a form of civil disobedience. She apparently is taking the position posited by St. Augustine and followed notably by Martin Luther King, Jr. that, 'an unjust law is no law at all.'"—but he refused to impose a restraining order or injunction upon her, as the state did not meet its high burden for a stay.[27]

On July 21, 2014, the state Attorney General appealed the ruling; in light of the ruling by the state Supreme Court staying license issuance in Adams and Denver counties, the Attorney General also asked Judge Hartman to reconsider his ruling and stay it. Judge Hartman denied the state's request on July 23; the next day, a three-judge panel of the Colorado Court of Appeals again denied the Attorney General's motion.[28] The Colorado Supreme Court, sua sponte on July 29, decided to hear the case and ordered it transferred and requested the record on appeal to be filed before it by October 20, 2014. The state Supreme Court stayed the Boulder clerk from issuing same-sex marriage licenses in the meantime.[29]

On June 25, 2014, the U.S. Court of Appeals for the Tenth Circuit in the case of Kitchen v. Herbert ruled that Utah's ban on same-sex marriage violated the U.S. Constitution. The ruling in Kitchen is binding on courts in every state within the Circuit, including Colorado. Since the Court of Appeals stayed implementation of this ruling pending review by the U.S. Supreme Court, courts in Colorado have had to follow the precedent that Kitchen sets and stay subsequent rulings pending the expiration of that stay.[30][31]

Immediately following the decision in Kitchen, Boulder County clerk Hillary Hall began issuing marriage licenses despite the stay.[32] After a state district court refused to stop the clerk (see Colorado ex rel. Suthers v. Hall), Denver County and Pueblo County began issuing marriage licenses to same-sex couples as well.[33] All Colorado counties stopped issuing same-sex marriage licenses following stays issued by the Colorado Supreme Court.

When the United States Supreme Court dismissed requests to hear an appeal of the Kitchen case on October 6, Attorney General John Suthers asked the Tenth Circuit to lift the stay in this case as it related to Colorado, which would allow the district court's order that Colorado recognize same-sex marriages to take effect.[26] On October 7, the Colorado Supreme Court removed the legal obstacles preventing Colorado's county clerks from issuing marriage licenses to same-sex couples, legalising same-sex marriage in the state.[3]

Colorado is one of a small number of states that recognizes common-law marriages. Common-law couples are considered legally married without having registered their relationship as a marriage with the state. Parties in a common-law marriage are entitled to all rights, privileges and responsibilities of a legal and binding marriage. Common-law marriages have been recognized in Colorado since 1887, and in 1987 the Colorado Supreme Court, in People v. Lucero, set out requirements for the existence of a common-law marriage. The decision held that couples' conduct, including cohabitation or taking the partner's surname, as well as their reputation in the community, were "factors that most clearly show an intention to be married".

Dean LaFleur and Timothy Pyfer held a commitment ceremony with family and friends in 2003. After the couple separated, Pyfer filed to dissolve the marriage in January 2018. LaFleur argued that he did not mutually agree to enter into a common-law marriage. A Jefferson County District Court judge found that the couple were married under the common law. The court awarded $50,000 of LaFleur's retirement to Pyfer and ordered spousal maintenance. Both parties appealed. On January 11, 2021, the Colorado Supreme Court upheld the marriage of LaFleur and Pyfer, and ruled that, pursuant to the U.S. Supreme Court's decision in Obergefell v. Hodges, same-sex couples must be allowed to enter into common-law marriages and the state must retroactively recognize common-law marriages of same-sex couples that occurred prior to the legalization of same-sex marriage. On the issue of division of property and spousal maintenance, the justices sent the case back to the Jefferson County District Court, ordering further review.[34][35]

Edi Hogsett and Marcia Neale, a couple for thirteen years, separated in January 2015. Hogsett believed the parties were common-law married and petitioned for a dissolution of marriage in Arapahoe County District Court. Neale disagreed and moved to dismiss the petition. The district court judge determined that the couple had not formed a common-law marriage, the Lucero text factors were outdated and granted Neale's motion to dismiss. The Colorado Court of Appeals agreed in December 2018 with the lower court's finding, and noted that pursuant to Obergefell v. Hodges the Lucero factors should be updated. On January 11, 2021, the Colorado Supreme Court agreed. The court noted that the test must be applied flexibly to the facts of each case, explaining that same-sex couples may not be fully open about their relationships due to fears of discrimination and thus may only discuss their relationship with a close community, and prior to the legalization of same-sex marriage, same-sex couples could not file joint taxes or refer to themselves as married on government forms.[34][36]