WASHINGTON — A federal appeals court agreed Tuesday to expedite the challenge to Senior U.S. District Judge Terence C. Kern's ruling that Oklahoma's ban on same-sex marriage is unconstitutional.
The 10th U.S. Circuit Court of Appeals, in a brief order, put the Oklahoma case on the same fast track as a similar appeal from Utah. Both cases will be heard by the same panel of three judges but will not be combined into a single appeal.
The order lays out a schedule for legal briefs to be filed by early April. No date for oral arguments was set, but the order says oral arguments in the Oklahoma and Utah cases will be separate.
There is no timetable for a decision by the appeals court. However, any decision reached is expected to be appealed to the U.S. Supreme Court, which has yet to address the question of whether states can ban same-sex marriage.
The 10th Circuit court, based in Denver, is one step below the Supreme Court and hears appeals from Oklahoma, Colorado, Kansas, New Mexico, Wyoming, and Utah. The court's decisions are binding in those states. The names of the judges who will hear the marriage cases were not available Tuesday.
Kern issued his ruling Jan. 14 that Oklahoma's ban — approved overwhelmingly by state voters in 2004 — violated the 14th Amendment's equal protection rights of Mary Bishop and Sharon Baldwin, who were denied a license to marry by Tulsa County Court Clerk Sally Howe Smith.
Kern put his ruling on hold pending the appeal to the 10th Circuit court, meaning same-sex couples in Oklahoma were not allowed to marry after it was issued.
Kern's ruling came less than a month after U.S. District Judge Robert J. Shelby struck down Utah's ban on same-sex marriage on 14th Amendment grounds. Utah's law was also approved by state voters in 2004. The U.S. Supreme Court put Shelby's ruling on hold early this month after hundreds of same-sex couples married.
Attorneys for Smith, the Tulsa County court clerk, filed an appeal of Kern's ruling and asked the 10th Circuit court to hear the case on the same track as Utah's appeal of Shelby's ruling.
“This case, at bottom, raises the question whether the 14th Amendment to the United States Constitution prohibits the people from defining marriage as an opposite-sex union,” Smith's attorneys told the appeals court.
“That ultimate question is the same ultimate issue presented in the Kitchen appeal, which involves a challenge to the constitutionality of Utah's marriage laws.”
Many other legal questions will be common to the two cases, the attorneys argued, and should be heard at the same time. Doing so would promote judicial “efficiency” and prevent a situation where the appeals court reached two different conclusions in the cases, Smith's attorneys said.
Don Holladay, the Norman attorney representing the couple denied the marriage license, agreed to the request for an expedited appeal.
Holladay has also filed a cross-appeal with the appeals court on behalf of Susan Barton and Gay Phillips, who were part of the original suit. Barton and Phillips, who were married in California, challenged the section of Oklahoma's law that prohibits the state from recognizing same-sex marriages from other states.
Kern ruled that Smith, the court clerk, was not the right person to sue over that issue because she doesn't have the authority to recognize marriages.