Lawyers for a couple challenging Oklahoma’s ban on same-sex marriage and the clerk who refused to grant them a license head to a federal appeals court Thursday with the rare opportunity to build on arguments the judges heard in a similar case just a week earlier.
Judges at the 10th U.S. Circuit Court of Appeals in Denver heard arguments last week about Utah’s gay-marriage ban, and Thursday will take up the Oklahoma case with the same key issue: Did voters single out gay people for unfair treatment when they defined marriage as a union between one man and one woman?
Last week’s arguments gave the Oklahoma legal teams a chance to fine-tune their arguments.
“Essentially, (the cases) are not that different,” said Alliance Defending Freedom senior counsel Byron Babione, who is representing the Tulsa County clerk. “Both of them involve challenges to state marriage amendments that were passed by an overwhelming majority of the people.”
Babione said the legal team for Clerk Sally Howe Smith was encouraged by hard questions posed by the 10th Circuit in the Utah case last week, saying they seemed tailored to their argument that a state’s residents have the right to define marriage how they see fit.
But lawyers for Mary Bishop and Sharon Baldwin can point to a tack taken by U.S. Circuit Judge Jerome A. Holmes, who questioned 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.
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.
The Utah and Oklahoma cases are similar: both involve bans on same-sex marriage passed by a majority of voters in 2004 — 76 percent in Oklahoma and 66 percent in Utah — and both bans were struck down by federal judges within a month of one another in December and January. The legal arguments for and against the bans are also similar.