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Judge ponders overturning state gay marriage ban

Tuesday - 7/22/2014, 8:30pm  ET

DENVER (AP) -- Gay couples seeking to strike Colorado's same-sex marriage ban urged a federal judge Tuesday to overturn the law immediately and reject the state's request to stay a ruling until the U.S. Supreme Court decides the matter.

U.S. District Judge Raymond P. Moore indicated that the injunction sought by gay couples declaring Colorado's law unconstitutional is certain to be granted. But he said what he's trying to decide is whether his ruling should be put on hold.

Colorado Republican Attorney General John Suthers is not opposing the injunction, but he wants it to be stayed until the nation's highest court decides the issue. However, the attorney for the gay couples told the judge repeatedly that "justice delayed is justice denied."

"Fundamental rights cannot be stayed," said Mari Newman, one of the attorneys filing suit on behalf of the six couples

The judge said he is going to issue a ruling Wednesday. A ruling in favor of the plaintiffs, without a stay, would open the door to allowing clerks statewide to issue marriage licenses to same-sex couples.

But Michael Francisco, the assistant solicitor general arguing on behalf of Suthers' office, said they will continue to pursue a stay with a higher court if the judge denies it. Francisco noted there's legal precedent where stays have been issued when courts in other states have found same-sex marriage bans unconstitutional.

"The reason is that the stays are appropriate to preserve the status quo while the appellate courts hear these cases," he said.

The lawsuit alleges the state's same-sex marriage ban violates due-process and equal-protection rights guaranteed in the U.S. Constitution.

Colorado voters approved the same-sex marriage ban in 2006, but several recent court rulings have given gay rights advocates hope that the state's law is on the verge of being overturned.

Clerks in Boulder, Denver, and Pueblo counties have already issued licenses to gay couples after court rulings saying same-sex marriage bans are unconstitutional. However, the Colorado Supreme Court last week ordered Denver to stop while the state ban remains in place, and the Pueblo clerk stopped on Monday because of that ruling.

The state's attorney general applauded Pueblo's decision.

The state Supreme Court ruling did not apply to Boulder's clerk, however. A district judge ruled in the clerk's favor this month, allowing same-sex marriage licenses to continue. Clerk Hillary Hall has issued 177 licenses to gay couples during the past month. She began issuing the licenses in late June after the 10th Circuit ruled on Utah's ban, saying states cannot prevent people from marrying based on their gender.

More than 20 courts have issued rulings siding with gay marriage advocates since the Supreme Court's ruling last year striking down the Defense of Marriage Act. The rulings have come in 17 states.


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