Despite Tuesday’s ruling by Senior U.S. District Judge Terence C. Kern, same-sex marriages won’t happen anytime soon in Oklahoma.
Kern, who struck down Oklahoma’s ban on same-sex marriage, prevented his own ruling from going into effect while the issue makes its way through appeals.
The 10th U.S. Circuit Court of Appeals has already agreed to hear a very similar case from Utah on expedited schedule. It’s not clear whether Oklahoma’s case could be taken up at the same time or whether the decision in the Utah case will just apply to Oklahoma and other states in the 10th Circuit.
The U.S. Supreme Court is expected eventually to take up the issue of whether states can ban same-sex marriage, but no one knows what case the justices will use to address the question.
University of Oklahoma law professor Joseph Thai, who clerked for two U.S. Supreme Court justices, said in an email on Wednesday that “there is practically no chance” the high court could hear the issue in its current term.
The high court’s docket is almost full — it stops hearing oral arguments in April — and the timing of the 10th Circuit’s ruling is uncertain.
The chances of the court hearing either the Utah or Oklahoma case depends partly, Thai said, on how the 10th Circuit court rules.
“If the appeals court agrees with the lower courts that these same-sex marriage bans are unconstitutional, then the Court is more likely to take these cases and give the states a last chance to defend their laws before the high court out of a sense of respect due a sovereign state,” Thai said.
“If the appeals court reverses and upholds these bans, then the Court may wait for the issue to ‘percolate’ further in courts across the country and through the political process.
“Last year, based on a legal technicality in a case it heard, the Court dodged deciding whether the fundamental right to marry extends to same-sex couples, so it appears a majority of the justices are not eager to resolve this hot-button issue early.”
The holds placed on same-sex marriages in Oklahoma and Utah will remain in place, he said, “until the cases are resolved or denied review by the Supreme Court.”
The Tulsa County court clerk has not officially announced whether Kern’s ruling will be appealed to the 10th Circuit court.
The clerk, who is the lead plaintiff in the case because she denied a marriage license to the same-sex couple that brought the lawsuit, is being represented by an Arizona group called Alliance Defending Freedom.
Byron J. Babione, an attorney with the group, said in an email Wednesday, “The Alliance Defending Freedom and the Tulsa County Attorney’s office (are) considering the options with our client, the Tulsa County Clerk. We are very optimistic that this decision would be reversed on appeal.”