DENVER A county clerk in Colorado says she cannot deny gay couples their fundamental right to wed, according to court documents filed ahead of a hearing in a lawsuit by the state's attorney general to stop her issuing same-sex marriage licenses.
Emboldened by a regional appeals court ruling on June 25 that found in favor of gay nuptials in neighboring Utah, Boulder County Clerk Hillary Hall has given out more than 100 licenses, saying same-sex couples in Colorado have waited long enough.
In the court documents made public on Tuesday, she argued through a county attorney that gay couples have been stigmatized and made to feel inferior by the state's gay marriage ban.
"Clerk Hall concluded that if she were to deny marriage licenses to applicants based solely on their sex, she would be denying their fundamental rights under the United States Constitution," deputy county attorney David Hughes wrote.
Hall was sued by Colorado Attorney General John Suthers last week after she refused his request to halt the practice.
The elected county clerk argues that last month's ruling by the 10th U.S. Circuit Court of Appeals that struck down neighboring Utah's same-sex marriage ban is binding.
The 10th Circuit stayed its ruling until the U.S. Supreme Court ultimately decides the issue, and Suthers says that means Colorado's ban on same-sex nuptials remains in place.
The state has a constitutional amendment that defines marriage as between one man and one woman, but it does permit civil unions.
The attorney general is seeking a temporary restraining order and preliminary injunction against Hall, asking a judge to rule on whether a county clerk has the authority to give out licenses while the issue is in litigation.
Suthers has said the permits are invalid and that Hall was creating a "legal limbo" that could have unintended consequences for Colorado and for same-sex couples.
In his response, deputy county attorney Hughes said 23 judges across the country had overturned same-sex nuptial bans, and that Suthers is swimming against a legal tide.
"The state has all but admitted that in the absence of a final Hail Mary decision from the United States Supreme Court ... Colorado's marriage bans are unconstitutional and unenforceable," Hughes wrote.
The case is set to be heard before Boulder County District Court Judge Andrew Hartman on Wednesday.
It is not known if the judge will rule from the bench, or take the case under advisement and issue a written ruling at a later date.