Judge considers Boulder gay marriage license fight

Photo: Boulder County Clerk Hillary Hall
Boulder County Clerk and Recorder Hillary Hall appears in court on July 9, 2014. Attorney General John Suthers is suing Hall for ignoring a federal court stay on a recent gay marriage ruling and issuing same-sex marriage licenses.

A judge heard testimony Wednesday from gay couples who married in Boulder as he considers whether to order clerk Hillary Hall to stop issuing same-sex marriage licenses.

Judge Andrew Hartman has indicated he won’t rule on the state’s request for an injunction during Wednesday’s hearing. The question of whether she overstepped her authority by handing them out in the first place will be debated down the road.

A lawyer for Attorney General John Suthers objected to the couples' testimony during the hearing, saying the proceeding isn't supposed to be about deciding the merits of gay marriage.

"It's just not appropriate in this case to have one clerk out of the 64 in Colorado violating her clear ministerial duty to follow Colorado law," Assistant Solicitor General Michael Francisco said, adding that the Boulder clerk is undermining the entire legal system by not waiting for a final ruling from the U.S. Supreme Court.

Suthers is suing Hall for ignoring a stay of the 10th Circuit Court of Appeals ruling against Utah's gay marriage ban. Suthers has maintained that Colorado's gay marriage ban remains in effect and that the licenses issued by Boulder are invalid.

Francisco reminded the court that the 10th Circuit's decision isn’t a final ruling. And as if to underline that -- right after today’s hearing, the Utah Attorney General announced he will be appealing that ruling straight to the Supreme Court.

After the hearing, Hall said she's not concerned that no other clerk in Colorado has started issuing marriage licenses to gay couples.

"I think I'm doing my job as I'm supposed to be doing it, which is to ensure the constitutional rights of the citizens of my county that elected me," she said.

Boulder Deputy County Attorney David Hughes claims there is precedent for not waiting for the Supreme Court when fundamental rights are at stake. He said it’s unjust to force clerk Hall to continue to violate her constituent's constitutional rights.

"The state cannot demonstrate that there will be simply no harm by these folks having to wait a little bit longer," Hughes said.

The courtroom was packed and some who wanted to watch the proceedings were turned away.

This isn't the first time Boulder has granted marriage licenses to same-sex couples. In 1975, clerk Clela Rorex issued licenses to six couples, after being told by the district attorney that nothing in Colorado law forbade it. Those marriages were later invalidated by the state's attorney general.

The Associated Press contributed to this report.