Appeals court rules Oklahoma’s ban on same-sex marriage unconstitutional

BY Robert Pursell  July 18, 2014 at 2:54 PM EDT
Photo by David Paul Morris/Bloomberg

Photo by David Paul Morris/Bloomberg

In a decision that bolstered last year’s Supreme Court decision to strike down the Defense of Marriage Act, the 10th circuit federal court of appeals in Denver struck down a ban on same-sex marriage in Oklahoma Friday, declaring the ban to be unconstitutional. It was the second time the 10th circuit court has struck down such a ban, less than a month after the court declared Utah’s ban on same-sex violated citizens’ rights.

As with last month’s decision on Utah, the court ruled 2-1 in favor of striking down Oklahoma’s ban on same-sex marriage, with Judges Carlos Lucero and Jerome Holmes voting to strike down the ban and Judge Paul Kelly dissenting.

“Oklahoma’s ban on same-sex marriage sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions,” Lucero, an appointee of President Bill Clinton, stated in the majority opinion. “As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation.”

In his dissenting opinion Judge Kelly, a George. W Bush appointee, disagreed saying, “Any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.” Kelly is the first federal judge to oppose same-sex marriage in any case since the Supreme Court’s ruling last June that the federal government must recognize all such marriages.

Despite the two rulings, same-sex marriages in the two states will remain on hold pending appeals from both states, most notably in Utah where attorney general Sean Reyes has stated his intent to appeal the decision. Still, the two rulings in a three-week period by the 10th circuit court (which also represents Kansas, Wyoming, and New Mexico) represent a landfall of sorts in the movement for same-sex marriage equality that is rapidly gaining steam. The decisions are the largest of more than 20 rulings in defense of same-sex marriage that have come since the Supreme Court’s landmark decision last June. Since that time, six states — New Jersey, New Mexico, Illinois, Hawaii, Pennsylvania and Oregon — have legalized same-sex marriages bringing the total number of states where it is legal to 19, in addition to the District of Columbia. More than 70 lawsuits are still pending in all 31 states where same-sex marriage is still banned.