DENVER — Gay marriage has its second hearing at the federal appellate level Thursday as lawyers for two Oklahoma women and the county clerk who would not give them a marriage license square off in a Denver courtroom.
The appeal of a lower court’s January ruling that struck down Oklahoma’s gay marriage ban is the second time the issue has reached appellate courts since the U.S. Supreme Court shook up the legal landscape last year by finding the federal Defense of Marriage Act was unconstitutional.
The same three-judge panel of the 10th U.S. Circuit Court of Appeals heard a similar Utah case last week, giving lawyers in the Oklahoma case a preview of what questions they might face.
“Essentially, (the cases) are not that different,” said Alliance Defending Freedom senior counsel Byron Babione, who is representing Tulsa County Clerk Sally Howe Smith. “Both of them involve challenges to state marriage amendments that were passed by an overwhelming majority of the people.”
The three judges were split in their questioning last week. One challenged attorneys who argued the state has the right to ban gay marriages. Another grilled the lawyer for gay couples who claimed they were being discriminated against. And the third judge had tough questions for both sides.
Babione said he and the others on Smith’s legal team thought the exchanges were tailored to the argument that a state’s residents have the right to define marriage how they see fit.
But lawyers for Mary Bishop and Sharon Baldwin might look to questions posed by U.S. Circuit Judge Jerome A. Holmes, an appointee of President George W. Bush, and the likely swing vote, who asked whether Utah’s same-sex marriage ban was similar to Virginia’s former ban on interracial marriage. The Supreme Court struck down that ban 47 years ago.
Holmes also said, however, that gay marriages are a new concept for courts to address and that perhaps it is best to defer to the democratic process unless there is a compelling reason to step in.
U.S. District Judge Terence Kern of Tulsa ruled in January that Oklahoma’s ban violated the U.S. Constitution’s equal protection clause. He immediately stayed his ruling, preventing any same-sex marriages from taking place while it 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.
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 each other, in December and January. The legal arguments for and against the bans also are similar.
Baldwin said her lawyer attended last week’s arguments and believes it went well.
“I think we were struck by how, frankly, it’s the same old arguments they’ve been using all along that have been so unsuccessful,” Baldwin said. “They make it sound as though there are a limited number of marriage licenses and if they start handing out marriage licenses willy-nilly to same-sex couples who can’t have a child, then what is that going to do to procreation? Well, it’s not going to do anything to procreation. People who still want to have children will still have children.”
It’s unclear when the three-judge appellate panel will rule. The judges likely will issue separate rulings, but they might come on the same day. The losing sides could appeal to the full 10th Circuit Court of Appeals or directly to the U.S. Supreme Court.
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