WASHINGTON — A federal appeals court officially declared Oklahoma’s ban on same-sex marriage unconstitutional Friday but temporarily delayed the ruling to allow time for a possible appeal to the U.S. Supreme Court.
The 2-1 decision by the 10th U.S. Circuit Court of Appeals reinforced the court’s ruling last month in a similar case from Utah.
That ruling effectively made same-sex marriage legal in all six states that are part of the circuit: Oklahoma, Utah, Colorado, Kansas, Wyoming and New Mexico.
The court found in the Utah case that marriage is a fundamental right and that excluding gay couples violated their 14th Amendment guarantees of equal protection and due process under the law. Friday, the court applied the Utah ruling to Oklahoma’s ban, which was passed overwhelmingly by state voters in 2004.
Because the court put its ruling on hold, as it did in the Utah case, it was not known Friday when same-sex couples in Oklahoma will be allowed to marry.
The U.S. Supreme Court is expected eventually to decide the broad question of whether states can constitutionally ban same-sex marriage. With challenges active in courts across the country, justices potentially could put new marriages on hold in the 31 states where it’s illegal until that issue is resolved.
Read what local religious leaders had to say about the ruling.
However, if the Supreme Court isn’t ready to take up the issue and doesn’t put its own hold on lower court decisions, Oklahoma couples could get the green light to marry in a few months.
Utah officials already have signaled their intent to seek a high court review. The Tulsa County court clerk, who has been defending the Oklahoma ban in federal court, now has to decide whether to appeal to the nation’s highest court.
The Tulsa County couple who challenged the ban nearly a decade ago hailed the decision.
“We are so grateful that the 10th Circuit understands what more and more people across this country are beginning to realize — that gay and lesbian people are citizens who should enjoy the same rights as straight people under the law,” Mary Bishop and Sharon Baldwin said in a joint statement.
“We would like to thank the court for its time and careful consideration of our case, and we look forward to seeing Oklahoma gay and lesbian couples who love each other and want their relationships recognized by their government take part fully in that right.”
Norman attorney Don Holladay, who took up the couple’s case when it seemed to be unraveling five years ago, said the decision Friday wasn’t anti-climactic even though the Utah decision had settled the basic question in the 10th Circuit states.
“We wanted an Oklahoma decision,” Holladay said. “When you have two couples in committed, loving relationship who have waited so long ... it’s just a special day because this decision is about the Oklahoma ban.”
Only one of the couples won Friday.
The second couple involved in the long-running lawsuit, Gay Phillips and Susan Barton, again lost their challenge to the part of the state question that prevents state recognition of same-sex marriages performed out of state.
U.S. District Judge Terence Kern struck down Oklahoma’s ban on in-state marriages in January but ruled that Phillips and Barton — who were married in California — had sued the wrong person over recognizing their marriage. The Tulsa County court clerk has no authority in Oklahoma to recognize out-of-state marriages, Kern and the appeals court ruled.
Clerk’s attorney, Fallin respond
Tulsa County Court Clerk Sally Howe Smith has been represented, at no charge, in the federal case by an Arizona-based Christian legal group, Alliance Defending Freedom.
Byron Babione, an attorney with the group, said Friday, “Every child deserves a mom and a dad, and the people of Oklahoma confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union.
“In his dissent, Judge (Paul) Kelly rightly noted that ‘any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.’
“We are consulting with our client and considering her options. Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court.”
Oklahoma Gov. Mary Fallin, whose office is not involved in the legal case, ripped the decision Friday, calling it “another instance of federal courts ignoring the will of the people and trampling on the right of states to govern themselves.”
The two judges ruling against Oklahoma’s ban were the same two who struck down Utah’s law: Jerome Holmes, of Oklahoma City, who was nominated by former President George W. Bush; and Carlos F. Lucero, of Colorado, who was appointed by former President Bill Clinton.
Though the judges didn’t repeat their extensive constitutional analysis from the Utah decision, they addressed some specific questions argued in the Oklahoma case, including the Tulsa County court clerk’s contention that “children have an interest in being raised by their biological parents.”
The court said the state allows for adoption when the biological parents aren’t capable of taking care of their children and doesn’t predicate marriage for heterosexual couples on procreation.
Oklahoma’s ban “sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions,” the court stated.
Kelly, the judge who also dissented in the Utah case, reiterated his position Friday that same-sex marriage is a policy decision for states “and should not be driven by a uniform, judge-made fundamental rights analysis.”