Ban Against Okla. Gay Marriage Struck Down
(CN) - Less than a month after rejecting the ban on gay marriage in Utah, the divided 10th Circuit struck down a similar law in Oklahoma as unconstitutional.
Two lesbian couples - including Tulsa World journalists Mary Bishop and Sharon Baldwin - sued federal and state officials in 2004 after passage of a constitutional amendment that made it illegal for same-sex couples to marry.
After the Oklahoma governor and attorney general failed to have the case dismissed in 2006, the 10th Circuit first ruled that the plaintiffs lacked standing to sue them.
The plaintiffs then left the elected officials out of their amended complaint, replacing them with Tulsa County Court Clerk Sally Smith who refused to issue them marriage licenses.
U.S. District Judge Terrence Kern ruled for the plaintiffs again this past January, striking down the ban as an "arbitrary, irrational exclusion of just one class of Oklahoma citizens."
A panel with the Denver-based 10th Circuit affirmed, 2-1, Friday, just weeks after a split 10th Circuit panel invalidated Utah's similar gay marriage ban in Kitchen v. Herbert.
None of Oklahoma's arguments that the Kitchen ruling failed to address "persuade us to veer from our core holding" that states cannot ban gay marriages," Judge Carlos Lucero wrote for the majority.
Judge Jerome Holmes joined the opinion.
"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," the 46-page opinion states. "As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation."
The majority also affirmed the lower court's determination that the second lesbian couple - Gay Phillips and Susan Barton - lacked standing to sue. The women were married in Canada and California, as well as entering into a civil union in Vermont.
Echoing his dissent from the June 25 Kitchen ruling, Judge Paul Kelly said that "any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court."
"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," the 11-page dissent states. "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."
Also as with Kitchen, the 10th Circuit stayed its ruling regarding Oklahoma's law pending the state's appeal to the Supreme Court.
Oklahoma officials did not immediately respond to requests for comment Friday morning.