Archive for the 'Attorney General' Category

Reporters continue to overlook fact that Suthers not duty-bound to defend CO same-sex marriage ban

Thursday, September 4th, 2014

CORRECTION — A previous version of this post stated incorrectly that Cynthia Coffman is on record opposing same-sex marriage. In fact, there is no record of her position on this issue.

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In a long question-and-answer story in Westword, Attorney General John Suthers once again lays out his case that he is duty-bound to defend Colorado’s same-sex marriage ban until the bitter end. Which isn’t bitter, actually, because everyone expects the U.S. Supreme Court to overturn such bans.

Sounding all above-the-fray and bipartisany, Suthers tells Westword about his high-minded commitment to defend Colorado’s laws, even when he disagrees with them.

It sounds like maybe a beautiful thing, if it were true. But it’s not.

Left out of the Westword interview (and other media coverage of Suthers’ position) is the fact that under Colorado law, our Attorney General doesn’t have to defend laws (and constitutional amendments) that he deems unconstitutional. In fact, he’s supposed to go after those laws.

As former Deputy Attorney General Don Quick, a Democratic candidate for Attorney General, wrote in The Colorado Springs Gazette in July:

Quick: First, the Colorado Supreme Court unanimously ruled in 2003 that it is the attorney general’s job to challenge a law when there are concerns about its constitutionality. I remember it well, as I was chief deputy to Attorney General Ken Salazar when the court ruled in our favor. Coffman knows this also, as her office did the same thing last year. The Legislature passed a law restricting the display of marijuana-related magazines, and the Attorney General’s Office refused to defend it because it believed it was unconstitutional.

Quick is referring Cynthia Coffman, a Republican who’s running against Quick to replace Suthers. Coffman, who works in Suthers’ office, has embraced the Attorney General’s view that he had no choice  but to defend Colorado’s ban on same-sex marriage.

The 2003 Colorado Supreme Court ruling, to which Quick refers, involved the infamous effort by Colorado Republicans, challenged by Salazar at the time, to change Colorado’s congressional districts after they’d been established by court order subsequent to the 2000 Census. The decision delivered by Chief Justice Mullarkey stated that if the Attorney General has “grave doubts” about the constitutionality of a law (in this case an election-related law affecting an upcoming election) he or she must, “consistent with his ethical duties and his oath of office,” seek to “resolve those doubts,” meaning, in this narrow case, file a lawsuit (consolidated cases 03SA133 and 03SA147).

What’s more, attorneys general in at least six states, decided not to defend their states’ same-sex marriage bans. And U.S. Attorney General Eric holder has advised state attorneys general, like Suthers, that they are not obliged to defend state laws they see as discriminatory.

Against this backdrop, Suthers’ high-minded rhetoric about his duty to defend the constitution starts to look dark, even self-serving, especially when you hear he’s running for mayor of Colorado Springs, which is one of the few places where a crusade against gay marriage counts in your favor. That’s also essential context for any future stories on Suthers’ current defense of Colorado’s constitution.

Here’s what Suthers told Westword:

Westword: Colorado law requires the attorney general’s office to be responsible to federal constitutional law. How do you navigate loyalties between state and federal law?

Suthers: It’s quite simple: If a higher court tells us that our state law is unconstitutional under federal law and that’s the final decision, then that’s the deal. If the U.S. Supreme Court denies cert [request for judicial review] in the Tenth Circuit decision, [Colorado's law banning same-sex marriage] is invalid and we accept that. But I think what you’re driving at is that some of my colleagues are saying that I’ve decided that this law’s unconstitutional under the federal constitution. I don’t think that’s my job.

Could you imagine if I selectively say: “You know, I think those gun laws passed by the legislature last year are unconstitutional. I agree with David Kopel [the attorney representing the plaintiffs in that case], so I’m not going to defend those laws.” Could you imagine the outrage in your newspaper if I did that? I frankly have a little bit of sympathy with this ma-and-pa baker out in Lakewood, who my office is prosecuting on behalf of the Colorado Civil Rights Commission for not selling a cake to a same-sex couple. I understand why he thinks this is real governmental intrusion on his life. That’s the law in Colorado. We passed a public-accommodations law that protects sexual orientation as well as gender and ethnicity and religion. It’s my job to defend that statute, despite the fact that I’m getting tons and tons of criticism from certain circles about that. If I saw my role as something other than being the best lawyer and started deciding and picking and choosing because I don’t think this law’s right, I think this law’s unfair, despite the fact that the court hasn’t told me that this law is unconstitutional, and I decided not to defend that, that is a very slippery slope.

Media Omission: Mike Norton calls on Suthers to challenge bill allowing joint tax filings

Wednesday, February 26th, 2014

A bill cleared the General Assembly Friday allowing same-sex couples to file joint state tax returns, if they pay federal taxes jointly.

Hick is expected to sign it, presumably because he agrees with backers, like The Denver Post, who point out that the current tax rules make no sense, given that state taxes are based on the federal filings.

But the religious right, as represented below by former U.S. Attorney Mike Norton, is pissed. Norton got his back slapped blindly by KNUS’  Dan Caplis recently for saying the bill is a violation of Colorado’s ban on gay marriage:

Norton: You know, [we] have a constitutional amendment that was passed by the people of the state of Colorado in 2006, that really didn’t state anything new. It simply reaffirmed what has been the historic position of the people of Colorado, [and] the people of this nation, in fact, the western world, that marriage of a man and a woman is a foundational social relationship that is important for the survival of any society.

Listen to Norton here.

Even Amendment 23 isn’t that extreme, and it’s out there. But why not extremify extremism if no one, like Caplis, is going to call you on it?

In any case, the legislation is about tax law, not marriage. But Norton, who’s married to failed GOP Senate candidate Jane Norton, doesn’t get it:

Norton: “And I mean, everyone is in favor of marriage equality, but we have to pretty much know what a marriage is, before we can define whether it is equality. And by tradition, and throughout history, marriage is defined as a union of a man and a woman, and it exists for a single purpose, and that is to bear and raise children. There is no question that children do better when they are with a man – a husband and a wife, a father and a mother. Moms and dads are different. And children need both moms and they need dads, as well.”

Asked what he could do if the bill becomes law, Norton pointed out that Attorney General John Suthers joined a lawsuit challenging a court decision striking down Utah’s gay-marriage ban.

Norton: “So, I’m hopeful that John Suthers will look at…this law as an assault on Colorado’s marriage amendment and take steps. I think that’s a possibility.”

Reporters should ask Suthers: If your anti-gay legal brief isn’t anti-gay, what is it?

Wednesday, February 2nd, 2011

Colorado Attorney General John Suthers has offered different explanations for filing a legal brief in support of a section of the federal Defense of Marriage Act (DOMA) that bars gay and lesbian married couples from receiving  federal marriage benefits. Reporters should find out what Suthers is really thinking.

Massachusetts is suing the federal government to enable gay couples, married there, to receive the same benefits given to other married couples, and Suthers’ office joined the feds in defending DOMA against the Massachusetts challenge.

On KHOW’s Caplis and Silverman show, Suthers said Monday there was no anti-gay-marriage political agenda behind his action. It’s about federalism, he claimed.

He went on to say he’s trying to stop the feds from forcing Colorado to recognize a gay marriage performed in Massachusetts.

“I’m getting all kinds of grief about filing an amicus brief in Massachusetts’ constitutional challenge to the Defense of Marriage Act,” said Suthers on the radio. “And it’s very apparent to me that people are attributing political motives to me, being anti-gay marriage, when in fact I think this is another case that really bears upon federalism….We don’t want Massachusetts to be able to impose on the federal government or the state of Colorado its definition of marriage.”

So what’s motivating Suthers? The gay-marriage part? Or the states-rights/federalism part?

It’s confusing, especially to people like Brian Moulton, Chief Legislative Council for the Human Rights Campaign, which has been tracking the issue.

He told me that, in response to questions about the case, Suthers’ office has sent emails to constituents stating that Suthers decision to get involved in the Massachussets case was to defend Colorado’s Amendment 43, which defined marriage here as between a man and a woman. Moulton said that Suthers’ email stated that his office is obliged by law to defend Colorado’s laws, and that’s what he is doing.

Moulton told me:

“So certainly, at least initially, he was telling his constituents that he was defending Colorado’s marriage laws, and that was the initial response he gave to The Denver Post when they inquired about it. It’s all fine and good to say you’re concerned about federal involvement with the states….But certainly that was not the initial response of the AG’s office, and I’m finding it hard to square the circle. It’s hard to know which of the messages to believe.”

It’s particularly hard to square the circle because the case that Suthers has decided to join isn’t really about gay marriage. It’s about whether gay couples, who are already married in Massachusetts, have a legal right to federal marriage benefits.

We’re talking about stuff like allowing gay couples to be buried together (OMG, what will they do?) in a veterans’ cemetery and to get spousal benefits under Medicaid, according to Moulton.

Is Suthers, on behalf of the people of Colorado, saying gay couples from Massachusetts should not be allowed to be buried together in a veterans’ cemetery? We don’t know because neither Caplis nor Silverman asked him. But fortunately, Silverman promised on the radio to have Suthers back on the show to talk more about the DOMA issue.

Here are some questions Caplis and Silverman should ask him (And for you skeptics, these are the types of questions they ask regularly on the show.):

First, there’s the question above about how Suthers will feel if he successfully prevents gay veterans, married in Massachusetts, from being buried together.

Then there’s a question that flows from something both Moulton and Suthers’ office (as quoted in Tuesday’s The Denver Post) agree on: The Massachusetts case involving DOMA won’t invalidate Colorado’s marriage law, but, theoretically, if Massachusetts wins its case, Colorado’s ban on gay marriage could possibly be a little bit harder to defend down the road. Is it right to support a lawsuit that strips gay couples, married in another state, of the right to be buried together or to receive Medicaid benefits, simply because having those benefits might, theoretically, make Colorado’s ban on gay marriages slightly harder to defend? Does this put any stress on Suthers’ conscience?

Another question: If Suthers’ underlying motivation is related to states rights, why pick this case? As Moulton pointed out: “In this case, what Massachusetts is saying is, our state’s rights are being impinged upon because what the federal government is saying is, here’s some money for a federal program, but if you have to use it, you have to discriminate against some of your own lawfully married citizens under your own law. They are arguing that (DOMA) is infringing on their rights as a state. It does seem odd to have some other state [Colorado] say, no no, that’s not okay.”

And this question, posed by Moulton, gets to the heart of the matter: “At the end of the day, if what you’re really doing is just attacking Massachusetts because they’ve decided to stand up for their gay and lesbian married citizens, because you have some fear that one day in some hypothetical case that doesn’t exist, your marriage law might be in jeopardy, doesn’t this seem pretty mean-spirited and maybe not the best use of state resources right now in this time of fiscal stress?”

Partial Transcript of Appearance by Attorney General John Suthers on the Caplis and Silverman Show, 3 p.m. Hour, Feb. 1

Attorney General John Suthers: You know, you can’t get into these things based on what’s going to be the politically greatest route. I don’t know if you’re watching it today, but I’m getting all kinds of grief about filing an amicus brief in Massachusetts’ constitutional challenge to the Defense of Marriage Act. And it’s very apparent to me that people are attributing political motives to me, just being anti-gay marriage, when in fact I think this is another case that really bears upon federalism. The federal government in DOMA is not attempting to define marriages under state law. In fact they say, we’re simply defining marriage for purposes of federal law and federal benefits and for our purposes, marriage is between a man and a woman. States are free to do what they want. Massachusetts says, you can’t define it between a man and a woman. That discriminates against our gay couples in Massachusetts. And we in Colorado, the voters in 2006, chose to define in our constitution marriage as between a man and a woman, and we support the federal government and the states as being able to define it for their own purposes, and we don’t want Massachusetts to be able to impose on the federal government or the state of Colorado with the definition of marriage.

Craig: Mr. A. G., we can’t go on that tangent, though it’s interesting, and we’d like to talk to you about it on another day that’s not so newsy.