Okla. same-sex marriage ban voided

Appeals court says law denies gays basic legal rights

Sharon Baldwin (left) and her partner, Mary Bishop, filed the case in federal court in Denver.
Brennan Linsley/Associated Press/file
Sharon Baldwin (left) and her partner, Mary Bishop, filed the case in federal court in Denver.

DENVER — A federal appeals court struck down a second conservative-leaning state’s voter-approved ban on same-sex marriage on Friday, ruling that Oklahoma could not deny gay couples their “fundamental right” to wed.

The 2-to-1 decision came less than a month after the same panel of judges for the US Court of Appeals for the 10th Circuit decided that Utah’s ban violated same-sex couples’ constitutional rights to equal protection.

It was another legal victory for gay couples as a range of legal challenges to state bans on same-sex marriage edge toward the US Supreme Court.


As in the Utah case, the panel of three judges — two Republican-nominated and one Democrat-nominated — were once again asked to weigh the constitutionality of same-sex marriage prohibitions that had passed with overwhelming voter support.

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Lawyers for the Tulsa County clerk, who was the lead defendant in the case, argued that limiting marriage to one man and one woman sought to reinforce traditional family bonds and encourage the raising of children by their biological parents. The judges rejected that view.

“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,” Judge Carlos F. Lucero wrote in the court’s majority opinion. “Oklahoma has barred all same-sex couples, regardless of whether they will adopt, bear, or otherwise raise children, from the benefits of marriage while allowing all opposite-sex couples, regardless of their child-rearing decisions, to marry.”

As in the Utah case, Lucero, who was nominated by President Bill Clinton, wrote much of the opinion and was joined by Judge Jerome A. Holmes, who was nominated by President George W. Bush.

Judge Paul J. Kelly Jr., who was nominated by the elder President George Bush, dissented in both the Oklahoma and Utah cases, saying it should be up to the voters of a state to define marriage.


“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.

The court, whose decision affirmed a federal judge’s ruling striking down Oklahoma’s ban, immediately put its ruling on hold pending an appeal.

Utah has said it will appeal its loss in the 10th Circuit directly to the Supreme Court.

Same-sex couples and their supporters have won a streak of victories in courtrooms across the country in the year since the Supreme Court issued landmark decisions striking down a crucial part of the Defense of Marriage Act and opening the way for same-sex marriage in California.

But so far, the Utah and Oklahoma cases are the only ones in which federal appeals panels have ruled on whether states may outlaw same-sex marriage.