DENVER — The federal appeals court that has jurisdiction over Oklahoma ruled Wednesday that a ban on same-sex marriages is unconstitutional.
“Those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex,” judges of the 10th Circuit Court of Appeals ruled.
The 2-1 ruling by the Denver-based court pertains to a ban in the Utah state constitution against same-sex marriages, which is similar to a ban in Oklahoma’s constitution.
Wednesday’s ruling foreshadows a pending ruling by the appeals court on same-sex marriages in Oklahoma because of the similarity of the two cases and because the same judges who made the ruling will make the ruling in the Oklahoma case.
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Mary Bishop, a plaintiff in the Oklahoma case along with her partner Sharon Baldwin, said the Utah opinion “is an extremely good sign” because the two cases mirror each other. Bishop, who is a Tulsa World editor, said there is no reason for the court to rule differently in the Oklahoma case.
“We fully expect our side to win, but we’re thrilled for the Utah plaintiffs and other gay people in Utah that equality before the law has been upheld by the 10th Circuit,” Bishop said.
The Oklahoma case has wound its way through the court system for a decade after voters approved the state’s gay marriage ban in 2004. In January, U.S. District Judge Terence Kern in Tulsa ruled the measure violated the rights of gay and lesbian couples, which prompted an appeal and the pending decision.
The other plaintiffs in the state lawsuit, Susan Barton and Gay Phillips, are trying to get Oklahoma to recognize their legal California marriage.
Bishop and Baldwin have said they want to change state law to be married in Oklahoma, not leave the borders for a marriage elsewhere.
Mike Redman, an attorney and director of advocacy for Oklahomans for Equality, said the ruling in the Oklahoma suit, which could come as early as Thursday, “absolutely” will be in favor of Bishop and Baldwin. The Utah opinion is binding to all states within the 10th Circuit, he said, which includes Oklahoma.
“I can’t imagine them issuing in favor of marriage equality one day and then on the next day taking it back, at least with regard to the 14th Amendment issues,” Redman said, referencing the U.S. Constitution’s equal protection clause.
Redman says the court likely is working on the issues regarding Barton and Phillips’ portion of the lawsuit, which he said is distinct from the Utah decision. In that issue, the district court said the proper parties weren’t sued and dismissed the claims. The couple appealed that ruling.
The Utah ban “and similar statutory enactments do not withstand constitutional scrutiny” because they violate the due-process clause and the equal protection clause of the U.S. Constitution, the two 10th Circuit judges in the majority wrote.
The majority judges, in a 65-page decision for the six-state court, were Jerome Holmes of Oklahoma City and Carlos Lucero of Denver. Judge Paul Kelly of Santa Fe, New Mexico, wrote a 21-page dissent stating the voters and their representatives, not judges, have the prerogative to decide the issue.
“A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union,” the majority judges wrote.
Recognizing that voters in Oklahoma, Utah and other states have, at the ballot box, enacted the bans, the judges quoted a 1943 decision by the U.S. Supreme Court in an unrelated case: “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
However, Kelly, the dissenting judge, said the 10th Circuit’s judges “should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation.”
The judges put Wednesday’s decision on hold to give the state of Utah an opportunity to ask the U.S. Supreme Court to review the decision.
