Same-sex marriage ban unconstitutional: DU prof on ruling and why attorney general is wrong
Last month, we interviewed DU law professor Kris McDaniel-Miccio about a lawsuit in Adams County challenging Colorado's ban on same-sex marriages. It's a matter with which she has more than a professional interest: She and her wife, Nan McDaniel-Miccio, are among the plaintiffs in the case.
Kris McDaniel-Miccio. Additional photos and more below.
Now, Judge C. Scott Crabtree has ruled that the ban is unconstitutional -- a decision that leaves McDaniel-Miccio feeling overjoyed even though the order (on view below) has been stayed for now. But she's disappointed that Colorado Attorney General John Suthers plans an appeal and argues that his reasons for doing so are dubious.
"I can't describe the emotion," McDaniel-Miccio says from Dublin, Ireland, where she's a visiting research professor at the Trinity College School of Law. "This has been something I've been waiting for all my life -- and it's not just about marriage. It's about validating who I am, validating that I'm not abnormal or outside the American family, validating that I'm a human being with rights.
"That's what Judge Crabtree said -- and his opinion is so well thought-out. It covers every conceivable base."
Judge C. Scott Crabtree.
Indeed, there's no ambiguity in Crabtree's opinion. Here's one of many telling excerpts:
The Court has previously found that the State's professed governmental interest was a mere pretext for discrimination against same-sex marriages created "post hoc in response to litigation." Thus, the Marriage Bans cannot even pass muster under the rational basis analysis. The sole basis for precluding same-sex marriage is self-evident -- the parties are of the same sex and for that reason alone do not possess the same right to marry (or remain married) as opposite-sex couples. The Court holds that the Marriage Bans are unconstitutional because they violate plaintiffs' equal protection rights.For McDaniel-Miccio, Crabtree's ruling is particularly powerful "because he said that this is a fundamental right and it's not conditioned in any way. It's part of what it means to be human. It's critical -- and God willing, the Gang of Five that produced the amazing Hobby Lobby decision will come to their legal and moral senses and reach the same conclusion."
McDaniel-Miccio is referencing the five U.S. Supreme Court justices -- Antonin Scalia, Samuel Alito, Clarence Thomas, John Roberts and Anthony Kennedy -- who recently ruled that closely held companies like Hobby Lobby may be exempt from laws to which their owners object on religious grounds. (In this case, the issue revolved around the Affordable Care Acts mandate for contraceptive insurance coverage.) She calls the Hobby Lobby ruling "a disaster" and believes it contradicts Scalia's opinion in a previous case: Employment Division v. Smith, which dealt with religious peyote use.
Will these justices use similarly controversial logic to keep bans on same-sex marriage intact? McDaniel-Miccio admits that's a concern, albeit one mitigated to some degree by the momentum established by societal changes and a growing number of opinions like Crabtree's. In the meantime, though, she's frustrated that Colorado Attorney General John Suthers, who defended the state in the Adams County case, plans to appeal Crabtree's ruling -- and she sees the statement he released in the wake of the decision as "patently wrong."
The U.S. Supreme Court circa 2014.
Continue for more about the same-sex marriage ban ruling in Adams County, including additional photos and the complete opinion.