Oklahoma is the latest state to have its ban on same-sex “marriage” struck down by a federal appeals court. On Friday, a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver voted 2-1 to uphold a previous lower court ruling declaring the state’s marriage protection amendment unconstitutional.
However, homosexual couples wanting to “marry” in the state will likely have to wait for the U.S. Supreme Court to settle the matter. Just as they did after striking down a similar law in Utah in June, the 10th Circuit has stayed their own ruling pending appeal.
The battle over same-sex “marriage” in Oklahoma began in 2004, when 76 percent of Oklahoma voters approved a constitutional amendment that defined marriage as a union between one man and one woman and stated that same-sex “marriages” granted by other states could not be recognized in Oklahoma. Shortly after the vote, two lesbian couples sued the state, arguing the law was discriminatory.
In January, U.S. District Judge Terence Kern, a Clinton appointee, ruled in the lesbians’ favor. “The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution,” Kern wrote. “Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions.”
On Friday, the 10th Circuit gave Kern’s ruling their stamp of approval, with the majority citing their “core holding that states may not, consistent with the United States Constitution, prohibit same-sex marriages.”
Despite the stay preventing immediate action on the ruling, the women who originally brought the case against the state say they are thrilled with the 10th Circuit’s decision.
“There are so many gay and lesbian Oklahomans who are celebrating, and they have every right to, because this is a victory for all of us,” plaintiff Sharon Baldwin told the Associated Press. “We may be the people at the front of the line holding the flag, but never think for one minute that there's not a huge army behind us. We are far from alone in this.”
“We could have been married by now in a number of other places,” Baldwin added. “[But] we are Oklahomans. This is where we're from and we really have no intention of leaving, and we want to be married here.”
Republican Gov. Mary Fallin, who strongly supports the marriage amendment, slammed the court’s decision in a statement, accusing the 10th Circuit of overstepping its bounds and engaging in judicial activism.
“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.” She vowed that the state would “fight back against our federal government when it seeks to ignore or change laws written and supported by Oklahomans.”
10th Circuit Justice Paul Kelly, an appointee of George H.W. Bush, agrees with Fallin. In his written dissent from the ruling, he argued that marriage recognition is a matter for the legislature, not the courts.
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“Same-gender marriage is a public policy choice for the states, and should not be driven by a uniform, judge-made fundamental rights analysis,” Kelly wrote. “At a time when vigorous public debate is defining policies concerning sexual orientation, this court has intervened with a view of marriage ostensibly driven by the Constitution. Unfortunately, this approach short-circuits the healthy political processes leading to a rough consensus on matters of sexual autonomy, and marginalizes those of good faith who draw the line short of same-gender marriage.”
“Simply put, none of the Supreme Court cases suggest a definition of marriage so at odds with historical understanding,” Kelly continued. “The Court has been vigilant in striking down impermissible constraints on the right to marriage, but there is nothing in the earlier cases suggesting that marriage has historically been defined as only an emotional union among willing adults. Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. …Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.”
Byron Babione, an attorney with Alliance Defending Freedom who represented the county clerk at the center of the original lawsuit, said he and his client were considering their options.
“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,” Babione said. “In his dissent, Judge Kelly correctly noted that ‘any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.’
“Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court. If the high court remains consistent with what it held in its Windsor decision, the states will ultimately be free to preserve man-woman marriage should they choose to do so,” he added.