While some state attorneys general are willing to let the federal government battle Massachusetts in court of the Defense of Marriage Act, Colorado’s Attorney General John Suthers isn’t content sitting on the sidelines. So he joined four other AGs in filing a friend of the court brief, scared that a ruling in Commonwealth of Massachusetts v. HHS, where Section 3 of DOMA has been struck down by a federal judge is going to affect Colorado’s recognition of same-sex marriage. Fooey, says the wizards at the Human Rights Campaign.
The section, now under attack in the U.S. 1st Circuit Court of Appeals, bars same-sex couples from receiving federal benefits of marriage. Massachusetts is arguing that states should decide whether a couple is married. Both Suthers’ office and gay-rights advocates from the Human Rights Campaign agree that the language a U.S. District Court judge used in his ruling has the potential to provide fodder for a challenge to Colorado’s ban on same-sex marriage.
But Brian Moulton, chief legal counsel for the campaign [who heads up HRC's federal efforts], said that a decision in the Massachusetts case would not prevent Colorado from rejecting same-sex marriages performed elsewhere, as a spokesman for Suthers said Sunday. “That’s not an issue the court is looking at,” Moulton said. “To suggest the possibility that Colorado would be forced to recognize a same-sex marriage from Massachusetts, that’s a disingenuous response.”
Oh HRC, so sneaky! Moulton is correct: a ruling in the DOMA case almost certainly wouldn’t affect a state ban on recognizing gay marriage, unless the justices opted to go crazy and issue a ridiculously broad sweeping ruling; the case only seeks to force the federal government to recognize those marriages from states where they are legal. But let’s not pretend Massachusetts v. HHS isn’t going to set a major federal precedent, and a favorable ruling will go a long way to challenging state laws like Colorado’s.
Suthers isn’t stupid. He knows the case has little bearing on his state. But we need to give the plebes something to be scared of. Otherwise how will they know where to focus their vitriol?