Moving on to another state’s ban on same-sex marriage, the U.S. Court of Appeals for the Tenth Circuit on Friday for a second time struck down such a measure — this time, a constitutional prohibition in Oklahoma. That followed its earlier ruling nullifying a ban in Utah — a case that is headed to the Supreme Court later this year.
The Oklahoma case is the longest-running same-sex-marriage lawsuit in the federal courts; it was originally filed in November 2004. The same Tenth Circuit panel that ruled against the Utah ban in a recent split decision divided again, two to one, in barring enforcement of the Oklahoma ban. Although the Oklahoma ban was nullified, the panel put its ruling on hold to allow an appeal in that case to the Supreme Court. The Utah decision is on hold for the same reason.
While the majority ruled against the Oklahoma marriage ban itself, as requested by a couple seeking to marry, it dismissed an already-married couple’s plea to require the state to recognize their California marriage of six years ago. The couple lacked a legal right (“standing”) to pursue that challenge because of procedural flaws in their lawsuit, the Tenth Circuit ruled; on that point, the panel was unanimous.
In November 2004, Oklahoma voters had approved a state constitutional amendment — State Question 711 — with more than seventy-five percent of the vote in favor. The constitutional challenge to it was filed promptly in federal court.
The decision on Friday against the ban was complicated by the scope of the legal challenges that the two same-sex couples had filed. While they challenged the constitutional amendment, they did not also challenge a state statute that banned such marriages. And the couple seeking to have their marriage officially recognized had initially sued the wrong state officials, and, when they sued a county clerk, that clerk was found not to have any power to recognize any marriage. Those aspects of the case led to disputes within the Tenth Circuit panel over who had a right to be in court and just what issues the panel could rule upon.
In the end, only the constitutional ban fell.
At an earlier stage of the case, the Oklahoma lawsuit also had challenged the federal Defense of Marriage Act, which barred all federal marital benefits to same-sex couples who were legally married under state laws. After the Supreme Court’s decision last year in United States v. Windsor, striking down the DOMA denial of benefits, that issue dropped out of this case.
Although the Supreme Court in the Windsor decision expressly avoided any ruling on states’ authority to ban same-sex marriage, federal and state courts have relied heavily on the reasoning that the Court used to invalidate the DOMA provision to nullify such state bans in some two dozen rulings over the past year.
That reasoning contributed to the Tenth Circuit’s rulings striking down, first, the Utah ban, and now, the Oklahoma ban. In Friday’s ruling, the panel majority relied largely upon its ruling in the Utah case in reaching the same result against the Oklahoma ban. However, it also rejected other arguments on the issue that it had not considered in the Utah decision.
“State bans on the licensing of same-sex marriages,” the majority wrote Friday, “significantly burden the fundamental right to marry.” Again applying the most demanding constitutional test, “strict scrutiny,” the majority said that Oklahoma officials could not satisfy that standard.
The division in the panel on the issue of barring enforcement of the ban on new same-sex marriages was the same as in the Utah case: Circuit Judges Carlos F. Lucero and Jerome A. Holmes in the majority, Circuit Judge Paul J. Kelly, Jr., in dissent. Judge Lucero wrote much of the new majority opinion, but Judge Holmes drafted part of it.
Judge Holmes also wrote a separate, concurring opinion to explain why he had concluded that, in passing the state constitutional ban, Oklahoma voters had not acted out of “animus” toward homosexual persons.
Judge Kelly wrote a partial dissenting opinion.
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