WASHINGTON — A federal appeals court should uphold Oklahoma’s ban on same-sex marriage because the U.S. Supreme Court ruled last year that states have the power to define marriage, attorneys defending Oklahoma’s ban law say in a new brief.
If the appeals court rules that the Oklahoma ban on same-sex marriage is unconstitutional, the decision “would permanently install a genderless-marriage institution as federal domestic-relations policy nationwide,” according to the brief filed by a Christian legal group representing Tulsa County Court Clerk Sally Howe Smith in the case.
“In that world, the People could never recapture the man-woman marriage institution, regardless of what the best interests of society might dictate,” the brief states.
U.S. District Judge Terence Kern, of Tulsa, in January struck down Oklahoma’s voter-passed ban on same-sex marriage, ruling that it violated a lesbian couple’s 14th Amendment right to equal protection under the law without a rational reason.
Smith, who denied a marriage license to the couple — Mary Bishop and Sharon Baldwin — has appealed Kern’s decision to the 10th Circuit Court of Appeals, based in Denver. The court is considering the Oklahoma case on a fast track with a similar case from Utah, where a state ban was also struck down by a federal judge.
Oral arguments in the Oklahoma case are set for April 17. The appeals court has no deadline for rendering a decision, but its ruling is expected to be appealed to the U.S. Supreme Court.
The U.S. Supreme Court last year struck down a provision of the federal Defense of Marriage Act that denied federal benefits to same-sex married couples.
Both sides in the Oklahoma case have used the Supreme Court decision to support their arguments.
In a brief filed last month, attorneys for Bishop and Baldwin say a trilogy of Supreme Court cases, culminating with the Defense of Marriage Act case, show high court justices have taken a strong position against discrimination against gays and lesbians.
Smith’s attorneys — with the Alliance Defending Freedom — argue in a brief filed Tuesday night that a key takeaway from the Supreme Court ruling is that justices reaffirmed states’ right to define marriage.
“The Supreme Court recently stressed that the States have ‘essential authority to define the marital relation’ ... that the power to define marriage is within the ‘province of the States’ ... and that the federal government traditionally ‘defer(s) to (such) state-law policy decisions,’” the brief states.
The Christian legal group defending Smith also took the position that the U.S. Supreme Court was right to strike down the Defense of Marriage Act (DOMA) provision.
The brief says “DOMA’s effect on same-sex couples was entirely gratuitous and unwarranted because it resulted from the federal government’s meddling with a topic, the definition of marriage, over which it has no authority.”
In contrast, the attorneys say, the effect of the constitutional amendment on same-sex couples in Oklahoma is the “incidental result” of Oklahoma exercising its authority to preserve marriage as a means of channeling couples who might create children into a stable union.
“In other words, while the federal government had no legitimate interest in enacting DOMA, the State ... has legitimate and compelling reasons for affirming the man-woman marriage institution,” the brief states.