Federal Court of Appeals Stays Same-Sex Marriages In Colorado

Daniel Noffsinger - Wednesday, September 10, 2014

Last month, a federal judge in Denver held that Colorado’s ban on same-sex marriages is unconstitutional. The judge, however, temporarily stayed enforcement of the ruling until August 25, which meant no marriage licenses could be issued to same-sex couples. The purpose of the stay was to permit the state to appeal the judge’s ruling.  Following the ruling, the Colorado Supreme Court had to order a county clerk in Boulder to stop issuing marriage licenses to same-sex couples. The clerk in Boulder issued 202 licenses to same-sex couples.

Court of Appeals Extends Stay

One month later, same-sex couples in Colorado seeking to take of advantage of the recent ban and to obtain marriage licenses will have to wait longer still. On August 21, 2014, the Tenth Circuit Court of Appeals extended last month’s ruling and has continued to stay the effect of the federal judge’s ruling that Colorado’s same-sex marriage ban is unconstitutional. The court noted that the State Supreme Courts in Oklahoma and Utah are concurrently addressing the constitutionality of the same-sex marriage bans in those states. And, “in the interests of consistency,” the Tenth Circuit Court of Appeals has decided to continue to stay the recent ruling. Ultimately, this is an issue that may eventually be addressed by the United States Supreme Court.

A useful map detailing same-sex marriage laws throughout the United States can be found here. The map shows that 19 states permit same-sex marriages. There are 14 other states, including Colorado, that have issued rulings in favor of same-sex marriages, but these rulings are still being litigated in the courts.

Effect of Stay on Same-Sex Marriage Licenses

The inability of Colorado same-sex couples to legally marry affects their ability to take advantage of rights that are afforded to heterosexual couples under Colorado law. For example, what are the parental rights for a child of a same-sex couple after the couple is no longer together?

This issue has been raised recently by a same-sex married couple who had a child together through assisted reproduction. The partners have split up, and the mother who gave birth to the child wants full custody of the child without any communication with the other partner.

For heterosexual married couples, Colorado law is clear on this issue: Under title 19 of the Colorado Children's Code, the husband would be the legal father and would have parental rights. The issue for same-sex married couples is not clear because, as described above, same-sex marriages are not yet recognized in Colorado. The issue may eventually be resolved if same-sex couples are afforded the same marriage rights as heterosexuals. In the meantime, however, the issue remains unresolved, and the person at the center of the dispute—the child—is not benefiting from this unsettled area of the law.

The laws governing same-sex couples in Colorado and throughout the United States are fluid and subject to change in the future. If you have any questions about Colorado’s laws for same-same sex couples, please contact our office. We are located in Colorado Springs, and our firm can help you answer these questions, as well as any questions you may have regarding other family issues.