WASHINGTON — The decision by a federal judge in Utah to strike down that state's ban on same-sex marriage has prompted new legal arguments in the challenge to Oklahoma's law.
Though the two sides differ strongly on the implication of the Utah case, they agree on one thing. They want the federal judge in the Oklahoma case — Terence C. Kern — to make a decision.
The Oklahoma case was filed in 2004, just after state voters approved a constitutional amendment barring same-sex marriages in the state or recognition of same-sex marriages from other states.
That same year, Utah voters approved a similar ban. That ban was struck down three weeks ago by a federal judge who ruled that it violated the 14th Amendment's guarantees of due process and equal protection.
The 10th U.S. Circuit Court of Appeals is now considering the Utah case. Oklahoma is also part of the 10th circuit, meaning the appeals court decision will be binding on the judge in the Oklahoma case.
The two couples challenging Oklahoma's ban want a decision from Kern before the appeals court rules. They quickly filed a brief after the Utah decision arguing that the cases had several parallels and “virtually the same arguments.”
Don Holladay, attorney for the couples, told the judge their arguments should be heard since the appeals court decision would “undoubtedly govern the disposition and/or enforcement of their rights.”
Mary Bishop and Sharon Baldwin have waited nine years since the Tulsa County clerk denied them a marriage license, and Gay Phillips and Sue Barton have waited nine years to have their marriage recognized, Holladay said in his brief.
“Plaintiffs respectfully submit that fundamental fairness and the efficient administration of justice require them to have their day in court and be allowed to participate in the judicial resolution of their constitutional rights,” Holladay said.
Tulsa County Clerk Sally Howe Smith, who is represented in the case by an Arizona group called Alliance Defending Freedom, countered this week, telling the judge the “erroneous” decision in the Utah case has no bearing on the Oklahoma lawsuit.
The Utah judge “staggeringly opined that the United States Constitution includes a fundamental right to marry a person of the same sex,'' the group's brief states, adding that its own legal arguments have established that no such right exists.
The fact that the U.S. Supreme Court this week agreed to put a hold on the Utah judge's decision while the appeals court hears the case proves the high court doesn't agree with the judge, the group stated.
The clerk's brief echoes Holladay's call for an “expeditious resolution” of the case.
“Defendant Howe Smith has a sworn duty to uphold Oklahoma's Marriage Amendment, and by granting her motion for summary judgment, this Court will affirm her duty to do just that.”