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Oklahoma's ban on gay marriage unconstitutional, federal appeals court rules

Oklahoma's ban on gay marriage unconstitutional, federal appeals court rules

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Video: Plaintiffs in the Oklahoma lawsuit talk about today’s decision

Read the 10th circuit court decision here


Oklahoma’s ban on same-sex marriages moved closer to being lifted Friday.

A federal appeals court struck down the ban as unconstitutional, bringing measured celebrations within Tulsa’s LGBT community and strong words from Gov. Mary Fallin.

The 10th Circuit Court of Appeals ruled 2-1 that the ban violates the U.S. Constitution’s guarantee of equal protection under the law for everyone.

“States may not, consistent with the U.S. Constitution, prohibit same-sex marriages,” the judges wrote.

The court stayed its opinion, putting it on hold pending an expected challenge.

The ban was challenged in 2004 in lawsuits by two Tulsa-area lesbian couples, the day after Oklahoma voters approved adding it as an amendment to the state Constitution. The ban passed by a 76 percent landslide.

Plaintiffs Mary Bishop and Sharon Baldwin sued for the right to be married in Oklahoma, while Susan Barton and Gay Phillips were suing to have their legal California marriage recognized in Oklahoma. Bishop is a Tulsa World editor; Baldwin is a former editor at the newspaper.

“Our goal from the beginning has been to establish marriage equality across this land, and today’s development is one more step along the road to getting there,” Bishop said during a news conference Friday afternoon at the Dennis R. Neill Equality Center.

“When we filed this case 10 years ago, we knew that we didn’t just want Oklahoma to have same-sex marriage equality,” Bishop added.

“We wanted this for our whole country because we are all Americans and we believe that as Americans we should all have the same rights no matter where we live.”

Bishop was flanked by her partner and the other plaintiff couple, who all spoke about what the ruling means and what is left to accomplish.

“We are in a contract with our government to protect us, to provide us with due process, to provide us with equal protection,” Barton said. “That’s really what this case has been about.”

Toby Jenkins, executive director of Oklahomans for Equality, said, “For the first time in Oklahoma, the law is in our favor.”

Fallin criticized the court’s decision in a prepared statement.

“Today’s ruling is another instance of federal courts ignoring the will of the people and trampling on the right of states to govern themselves,” Fallin said. “In this case, two judges have acted to overturn a law supported by Oklahomans. Their decision will be appealed and, I hope, overturned.”

The Denver-based court had ruled last month that a similar ban on same-sex marriages in Utah is unconstitutional. That ruling has also been stayed.

The U.S. Supreme Court is expected to have the final say on the nationwide dispute about same-sex marriage. Mike Redman, an attorney and director of advocacy for Oklahomans for Equality, during an evening celebration at the equality center told the crowd he expected such a decision could come down by June 2015.

More than 125 people gathered to hear the plaintiffs and other key figures speak amid a festive atmosphere, which featured an assortment of champagne bottles and a white cake with blue and green swirls that spelled out “Congratulations Oklahoma” in red frosting.

The Alliance Defending Freedom, which is defending the Tulsa County court clerk in the lawsuit, issued a statement saying it is now up to the U.S. Supreme Court to decide if states can define marriage.

“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,” said Byron Babione, senior attorney for the national Christian-based legal group, based in Arizona.

U.S. District Judge Terence Kern in Tulsa in January struck down Oklahoma’s marriage amendment. It declares that marriage “shall consist only of the union of one man and one woman.” His decision had been on hold pending Friday’s outcome.

Tulsa County Court Clerk Sally Howe Smith appealed Kern’s ruling. She was a defendant because her duties include issuing marriage licenses.

Attorneys defending the amendment argued to the appellate judges that states have the power to define marriage and that the court should defer to the democratic process. Those attorneys contended that the ban preserves “marriage’s efficacy in accomplishing the procreative institution and child-related interests.”

Attorneys representing the lesbian couples told the appellate judges that they wish to “share in” and “uphold” the institution of marriage.

Friday’s 46-page decision by the two-judge majority rejected arguments by opponents of same-sex marriages that children have an interest in being raised by their biological parents and that a ban on same-sex marriages is valid because only opposite-sex couples are capable of being procreative.

Tenth Circuit Judge Jerome Holmes of Oklahoma City joined the decision’s author, Judge Carlos Lucero of Denver, to create the majority for the six-state court.

The judge in the minority was Paul Kelly of Santa Fe, New Mexico. He said he “would uphold Oklahoma’s definition of marriage. Any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.”

Friday’s decision dismissed Barton and Phillips’ appeal to have out-of-state marriages recognized in Oklahoma. The decision states that Barton and Phillips did not have standing, or the legal right, to sue the court clerk because she had no power under state law to recognize their out-of-state marriage.

The judges left the door open to overturning the no-recognition law if Barton and Phillips sue a different agency of government that does have the authority to decide whether to recognize out-of-state marriages.

More than 70 court cases are challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico. Cases from 11 other states are pending before five federal appeals courts.

In an interview with the Tulsa World earlier in the day, Bishop said Friday’s ruling by the appeals court was important but nowhere near the end of the legal battle for gay and lesbian couples.

“We know that this is just one more step along the way,” she said. “We have to have a national ruling on this. We are all Americans and should all have the same rights.”

Baldwin said gay and lesbian couples shouldn’t have to worry about a “patchwork” of which states will and will not recognize their marriages.

“We need the Supreme Court to make this the law of the land,” she said.

The appeals court ruling is an important step because it tells gay and lesbian couples that “you matter, you’re important and you’re equal,” Baldwin said.

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