DENVER (AP) -- Colorado will have to answer a complaint about treating marijuana magazines like pornography, even though state officials have announced that the restriction is unconstitutional and won't be enforced.
A federal judge ruled Thursday afternoon that a lawsuit from three marijuana-themed magazines and a group of booksellers and newsstands can proceed. They want a judge to strike a recently enacted law forcing pot magazines behind the counter at stores that allow minors.
A lawyer representing Colorado asked for the suit to be dismissed because of an emergency rule the executive branch issued Wednesday. The rule strikes enforcement of the magazine restriction.
If it were enforced, the magazine restriction would be the first of its kind, lawyers on both sides have said.
U.S. District Judge Richard Matsch gave the state a June 28 deadline to answer the lawsuit seeking a permanent injunction.
Matsch pointed out that it's "a bit incongruous" for Colorado to allow marijuana magazines such as High Times to be sold without restriction while pot was illegal, but force them off bookshelves now that Colorado has voted to flout federal drug law and declare marijuana legal for recreational use.
A lawyer for the magazines, David Lane, urged the judge to let the request for a permanent injunction proceed despite the state's admission that the provision isn't constitutional.
"How close to the front door does the wolf need to come before you should fear an injury?" Lane asked.
Matsch agreed that the emergency order doesn't moot the magazine provision. The marijuana regulation bill signed into law last month clearly states that pot magazines must be kept behind the counter, Matsch pointed out, adding that the law takes precedence over a decision by an executive official about how to enforce it.
The state's decision to abandon the magazine rule expires in 120 days, unless it's renewed in formal rule review hearings scheduled for August.
The magazine requirement was part of a larger set of laws enacted to state how the newly legal drug should be grown and sold.
The behind-the-counter restriction was adopted after parents testified that their children should be protected from exposure to magazines touting the drug, which remains illegal under federal law. Some of the parents were dismayed Thursday by Colorado's decision not to enforce the decision.
Gina Carbone, a mother who asked lawmakers for the restriction, said magazine curbs are appropriate as the state pursues it valid interest in keeping the drug away from children.
"We are not saying these magazines shouldn't be allowed at all. There are nearly 300 marijuana stores in Denver alone that would happily sell or display these magazines. Why is it that they have to be available and sold where minors are present?" Carbone wrote in an email Thursday.
The state's decision to reject the magazine restriction was applauded by marijuana legalization activists.
"The idea that stores can prominently display magazines touting the joys of drinking wine and smoking cigars, yet banish those that discuss a far safer substance to behind the counter, is absolutely absurd," wrote Mason Tvert, who campaigned for Colorado's pot law and now is spokesman for the Marijuana Policy Project.