WASHINGTON — In a precedent-setting decision that applies to Oklahoma, the 10th U.S. Circuit Court of Appeals ruled Wednesday that state bans on same-sex marriage violate the U.S. Constitution.
Ruling 2-1 ruling in a case from Utah, the court agreed with decisions from federal judges in Utah, Oklahoma and several other states that 14th Amendment protections of due process and equal protection apply to same-sex couples seeking marriage licenses.
“We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children and enjoy the full protection of a state’s marital laws,” the court ruled.
“A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”
The 10th Circuit court, which is a step below the U.S. Supreme Court, is also considering the Oklahoma ban, which was struck down in January by U.S. District Judge Terence Kern. The Utah and Oklahoma cases were put on a fast track though they were not officially combined.
Experts said the court’s ruling Wednesday is binding on all states in the circuit, which includes Oklahoma, Utah, New Mexico, Wyoming, Colorado and Kansas. New Mexico does not have a ban on same-sex marriages.
Effect of ruling delayed
Joseph Thai, a University of Oklahoma law professor and co-counsel for the same-sex couples in the Oklahoma case pending before the appeals court, said Wednesday’s ruling “binds all states in the Tenth Circuit, including Oklahoma. But what that means for our particular case, I will defer to the Tenth Circuit to say.”
It is not known when the court will issue an opinion in the Oklahoma case.
Kerri Kupec, spokeswoman for Alliance Defending Freedom, the Arizona-based group representing the Tulsa County Court Clerk and defending Oklahoma’s ban, said it’s possible that the Oklahoma case was decided on different grounds and that’s why it wasn’t released with the Utah case.
She said, “We are disappointed that the 10th circuit did not uphold Utah’s voter-approved marriage amendment that affirmed marriage as a one-man, one-woman union. Every child deserves a mom and a dad, and the people of Utah confirmed that at the ballot box.
“Ultimately, the question whether the people are free to affirm marriage as a one-man, one-woman union will be decided by the Supreme Court.”
Utah Attorney General Sean Reyes said in a statement that his office plans to appeal the ruling to the U.S. Supreme Court.
The 10th Circuit court delayed its ruling from going into effect while it is under appeal, meaning the bans are effectively still in place.
Mary Bishop and Sharon Baldwin, the Tulsa couple that challenged the Oklahoma ban after being denied a marriage license, said Wednesday that the court’s stay would be lifted if the U.S. Supreme Court does not grant review of the decision and that they could then marry in Oklahoma, possibly as early as this fall.
Bishop and Baldwin noted that the Oklahoma case has an issue distinct from the Utah case; that involves another couple, Susan Barton and Gay Phillips, who were married in California and sued because Oklahoma would not recognize the marriage. The appeals court is wrestling with the technical question of whether Barton and Phillips should have the legal standing to sue the Tulsa County court clerk.
First appeals court ruling
The 10th Circuit decision was the first by a federal appeals court to give 14th Amendment protection to same-sex couples seeking to marry.
Troy Stevenson, spokesman for Freedom Oklahoma, said, “The 10th Circuit is the highest court thus far to rule on the freedom to marry, and its decision affirms what we have long known — the question is no longer ‘if’ marriage will be afforded to all, but ‘when.’ And we firmly believe that the answer is sooner rather than later.”
Judges Carlos Lucero, who was appointed by President Bill Clinton, and Jerome Holmes, of Oklahoma City, who was appointed by President George W. Bush, voted to strike down the Utah ban, which was passed by voters on the same day in 2004 that Oklahoma’s ban was approved. Judge Paul Kelly, appointed by President George H.W. Bush, dissented.
The Utah and Oklahoma bans were struck down by federal judges within a few weeks of each other.
The appeals court agreed with much of the reasoning from those federal judges, who rejected arguments that states intended for marriage to encourage procreation by opposite-sex couples and that children benefited from having parents of the opposite sex. They also disagreed with Utah’s contention that allowing same-sex marriage would threaten opposite-sex marriages.
“We cannot imagine a scenario under which recognizing same-sex marriages would affect the decision of a member of an opposite-sex couple to have a child, to marry or stay married to a partner, or to make personal sacrifices for a child,” the court said.
The judges said their decision did not affect clergy or religious institutions.
“We respect the views advanced by members of various religious communities and their discussions of the theological history of marriage,” the opinion states. “And we continue to recognize the right of the various religions to define marriage according to their moral, historical, and ethical precepts.”
In his dissent, Kelly wrote that the U.S. Supreme Court’s decision last year to strike down a federal law banning benefits for same-sex couples did not affect states’ rights to define marriage.
“If the States are the laboratories of democracy, requiring every state to recognize same-gender unions — contrary to the views of its electorate and representatives — turns the notion of a limited national government on its head,” Kelly wrote.