SALT LAKE CITY — The legal fight over gay marriage in Oklahoma has a nearly 10-year head start over the one in Utah, but both cases found their way to a federal appellate court within a week of each other.
Oklahoma's turn before the 10th Circuit Court of Appeals on Thursday comes seven days after a three-judge panel heard arguments in the Utah case. The same judges — Paul Kelly Jr., Carlos Lucero and Jerome Holmes — will decide both cases.
"I suspect this hearing will be another opportunity to try and guess what the judges are thinking in the Utah case because the issues are so similar," said Bill Duncan, a lawyer and director of the Sutherland Institute's Center for Family and Society.
The judges can't completely separate the two cases in their minds, nor should they, he said. "While they're thinking about the one, the other one is right there waiting for a decision, too."
Lucero, Kelly and Holmes didn't pull any punches in their questioning of the lawyers in the Utah case last week, and it looks like Holmes might be the swing vote.
Kelly asked Utah's attorney Gene Schaerr only a couple of questions, while grilling the plaintiffs' lawyer Peggy Tomsic. Lucero, meantime, deflected difficult questions directed at Tomsic. Holmes asked tough questions on both sides, noting points of law on which either side could lose.
"The legal issues are very much in parallel, and I expect the questioning will be broadly similar," said Chris Stoll, senior staff attorney with the National Center for Lesbian Rights.
Some court observers now expect the panel to rule sooner than later because of same-sex marriage cases working their way through federal appellate courts in other parts of the country. The 10th Circuit put the Utah and Oklahoma cases on a fast track, and those are the first to reach oral arguments.
The judges likely would issue rulings in both cases on the same day. They could affirm or reverse the district court rulings or send them back for trial.
The decision would become law in the six states in the 10th Circuit's jurisdiction — Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming — unless it is stayed. New Mexico's Supreme Court has already legalized gay marriage in that state.
There are similarities between the Oklahoma and Utah cases, including the constitutional challenges to and defense of voter-approved laws that define marriage as between a man and a woman, which passed in both states in 2004. The two states also prohibit recognition of same-sex marriages performed in other states.
Like Utah, attorneys for Oklahoma say the authority to decide marriage laws rests with the states. They also argue that marriage exists for its procreative potential, not just as recognition of a loving relationship between two people.
"Governments have a compelling interest in having children raised by the mother and father that conceived them. The reality is men and women bring distinct irreplaceable gifts to family life especially for children who deserve both a mom and a dad," said Byron Babione, an attorney with the Alliance Defending Freedom.
The Arizona-based group represents Tulsa County Court Clerk Sally Howe Smith.
Mary Bishop and Sharon Baldwin sued Smith after she refused to grant them a marriage license. In Oklahoma, court clerks, not county clerks, issue marriage licenses. They and another lesbian couple have been challenging the ban since 2004, shortly after Oklahoma voters approved what is known as Amendment A.
That couple, Susan Barton and Gay Phillips, married in California in 2008 and sought to have it recognized in Oklahoma. Their lawsuit bogged down and had all but crumbled after the 10th Circuit ruled that the couples had wrongly sued the governor of the state and the attorney general.
Stoll said he believes the plaintiffs' arguments for same-sex marriage in the Oklahoma case are "every bit as strong" as the Utah case.
"The briefs reflect that both cases have presented very strong, well-thought out constitutional challenges and we hope that the court will take both of those cases with the same seriousness as we saw on display last Thursday," he said.
Similar circumstances spurred the Utah lawsuit, though it moved rapidly and without the same legal entanglements as the Oklahoma case.
Derek Kitchen and Moudi Sbeity, and Laurie Wood and Kody Partridge also challenged the Utah ban after a county clerk denied them marriage licenses last year. Another couple, Karen Archer and Kate Call, who were legally married in Iowa, claim Utah law bars them from being treated the same as heterosexual couples because it does not recognize their marriage as valid.
The plaintiffs in Utah sued the governor and the attorney because those positions are charged with seeing that state laws are executed.
In December, U.S. District Judge Robert J. Shelby ruled that Utah's Amendment 3 denied same-sex couples their constitutional rights of due process and equal protection under the law. About 1,300 couples were married until the Supreme Court issued a stay after the 10th Circuit declined to do so.
A few weeks later, U.S. District Judge Terence Kern found that Oklahoma’s ban violated equal protection guarantees. He delayed his ruling from going into effect while the case was appealed.
“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," he wrote in a 68-page decision.
Kern ruled that the U.S. Supreme Court's decision in U.S. v. Windsor props up both the couples challenging the law and state officials defending it.
The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the high court majority about the purpose behind the Defense of Marriage Act could also be applied to state bans on same-sex marriage. It also supports the state because of the lengthy commentary in the opinion about states’ primary power to define marriage.
Kern also ruled that the couple married in California was not in a legal position to challenge the lack of recognition in Oklahoma. That question also sits before the 10th Circuit judges.
Legal standing or whether the parties have the right to pursue the case could be an issue the 10th Circuit judges ask about Thursday. Holmes raised it last week in the Utah hearing. Both sides appeared to adequately explain why they have standing.
Contributing: Peter Samore
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