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Topics In the News
Tenth Circuit Court of Appeals Hears Oklahoma Marriage Case
Posted by: Claude J. Summers on 04/17/14
Last updated on: 04/17/14
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On April 17, 2014, the same three-judge panel of the Tenth Circuit Court of Appeals that heard the Utah marriage equality case a week ago convened in Denver to hear the Oklahoma marriage equality case. As they had in the Utah case, the panel, consisting of Judges Carlos Lucero, Jerome A. Holmes, and Paul J. Kelly Jr., again appeared divided in sympathy as they considered the case of Bishop v. Smith.

On January 14, 2014, U.S. District Judge Terence Kern declared that Oklahoma's constitutional amendment banning same-sex marriage violates the equal protection guarantee of the U.S. Constitution. After concluding that the ban on same-sex marriage was motivated by impermissible "moral disapproval" of homosexuality and furthers no legitimate state interest, Judge Kern declared it unconstitutional and then stayed his ruling pending a review by the Tenth Circuit Court of Appeals.

The Bishop case was originally filed by Mary Bishop and Sharon Baldwin almost ten years ago. It was delayed by conflicting decisions as to questions of standing, but got new life after the U.S. Supreme Court's landmark decision in Windsor on June 26, 2013.

Bishop and Baldwin have been a couple for 17 years. They both work as editors at The Tulsa World.

In the hearing on April 17, Judges Holmes and Lucero seemed clearly supportive of the plaintiffs' contention that Oklahoma's ban on same-sex marriage is unconstitutional. Judge Holmes pointedly observed that states cannot define marriage in a way that tramples constitutional rights.

In contrast, Judge Kelly seemed dubious as to whether the plaintiffs had standing to sue and whether they were suing the right state official.

Judge Lucero expressed concern for the children of same-sex parents and appeared skeptical of the arguments presented by the state that allowing a same-sex couple to marry would have an adverse affect on opposite-sex couples. At one point he characterized Oklahoma's argument as saying that "if gay marriage is allowed, that somehow that's going to be a poison pill to marriage by heterosexual couples[.]"

Judge Holmes seemed skeptical of the amicus briefs suggesting that same-sex couples were not ideal parents and pointed instead to brief submitted by the American Sociological Association, which said that research shows that there's "no difference" in same-sex and opposite-sex parenting.

An audio tape of the hearing may be found here.

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