Lawyers for two Oklahoma women and the county clerk who would not give them a marriage license go before a federal appeals court with a familiar question for the judges: Did the state's voters single out gay people for unfair treatment when they defined marriage as a union between one man and one woman?
The Denver-based 10th U.S. Circuit Court of Appeals heard similar issues in a Utah case last week, giving Oklahoma lawyers 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."
Babione said Smith's legal team was encouraged by hard questions posed by the 10th Circuit judges last week, saying they seemed 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, who asked whether Utah's same-sex marriage ban was similar to Virginia's former ban on interracial marriage. The U.S. 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 equal protection clause in the U.S. Constitution. He immediately stayed his ruling, preventing any same-sex marriages from taking place while the ruling 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.
Kern rejected an attempt by another couple, Susan Barton and Gay Phillips, to have their California marriage recognized in Oklahoma. Kern said Barton and Phillips sued the wrong person.
The Utah and Oklahoma cases are very 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 one another in December and January. The legal arguments for and against the ban are also 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," said Baldwin. "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."
Alliance Defending Freedom, which also had a representative at the Utah oral arguments, left the court encouraged, Babione said.
"From our perspective, that is a good thing, because we don't think this is an issue that can be decided based on superficial sentiments, but really needs to be decided on the important government interest at stake," he said.
It's not clear when the three-judge panel of the 10th Circuit will issue its rulings. The judges will likely issue separate rulings, but they may 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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