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.