Lawyers for two Oklahoma women and the county clerk who would not give them a marriage license go before a federal appeals court with a familiar question for the judges: Did the state’s voters single out gay people for unfair treatment when they defined marriage as a union between one man and one woman?
The Denver-based 10th U.S. Circuit Court of Appeals heard similar issues in a Utah case last week, giving Oklahoma lawyers a preview of what questions they might face.
“Essentially, (the cases) are not that different,” said Alliance Defending Freedom senior counsel Byron Babione, who is representing Tulsa County Clerk Sally Howe Smith. “Both of them involve challenges to state marriage amendments that were passed by an overwhelming majority of the people.”
Babione said Smith’s legal team was encouraged by hard questions posed by the 10th Circuit judges last week, saying they seemed tailored to the argument that a state’s residents have the right to define marriage how they see fit.
But lawyers for Mary Bishop and Sharon Baldwin might look to questions posed by U.S. Circuit Judge Jerome A. Holmes, who asked whether Utah’s same-sex marriage ban was similar to Virginia’s former ban on interracial marriage. The U.S. Supreme Court struck down that ban 47 years ago.
Holmes also said, however, that gay marriages are a new concept for courts to address and that perhaps it is best to defer to the democratic process unless there is a compelling reason to step in.
U.S. District Judge Terence Kern of Tulsa ruled in January that Oklahoma’s ban violated the equal protection clause in the U.S. Constitution. He immediately stayed his ruling, preventing any same-sex marriages from taking place while the ruling was appealed. In contrast, more than 1,000 gay couples in Utah married before the U.S. Supreme Court stepped in to issue a stay.
Kern rejected an attempt by another couple, Susan Barton and Gay Phillips, to have their California marriage recognized in Oklahoma. Kern said Barton and Phillips sued the wrong person.