Federal appeals court rules Oklahoma same-sex marriage ban unconstitutional

Photo: Oklahoma State Capitol. Credit: flickr.

Photo: Oklahoma State Capitol. Credit: flickr.

A federal appeals court Friday affirmed a lower court’s ruling finding Oklahoma’s ban on same-sex marriage unconstitutional.

The 2-1 decision from the 10th Circuit Court of Appeals marks the second federal appeals court ruling since the U.S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act last year and comes after the same court ruled last month in Kitchen v. Herbert to uphold a lower court’s decision finding Utah’s ban on same-sex marriage unconstitutional.

“Facts and arguments presented in this case differ in some respects from those in Kitchen. But our core holdings are not affected by those differences,” the majority opinion, authored by Judge Carlos Lucero, states. “State bans on the licensing of same-sex marriage significantly burden the fundamental right to marry, and arguments based on the procreative capacity of some opposite-sex couples do not meet the narrow tailoring prong.”

In January, U.S. District Court Judge Terence Kern found Oklahoma’s ban on same-sex marriage in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The case was first filed by two same-sex couples in November 2004 after 75 percent of Oklahoma voters approved a constitutional amendment defining marriage as between a man and a woman.

“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 appeals court decision continues. “As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation.”

The decision is stayed pending appeal, so same-sex couples will not yet be allowed to marry in the state. The state of Oklahoma now has the option to request an en banc appeal before the 10th Circuit, which decides whether or not to grant that request, or the state can appeal directly to the U.S. Supreme Court.   Earlier this month the Utah attorney general announced the state would appeal the Tenth Circuit’s ruling in the Kitchen case to the Supreme Court.

Earlier this month, Utah officials announced they would appeal to the Supreme Court after the 10th Circuit upheld a ruling finding that state’s ban on same-sex marriage unconstitutional.

The decision is yet another victory for marriage equality in the year since the Supreme Court’s 5-4 decision in Windsor, which the federal government’s definition of marriage as between a man and a woman. Since that decision, marriage equality has not lost a single day in court. Federal courts have ruled in favor of marriage equality in Utah, Ohio, Oklahoma, Kentucky, Idaho, Illinois, Indiana, Michigan, Pennsylvania, Tennessee, Texas, Virginia, Oregon, Wisconsin and Indiana. The 10th Circuit Court of Appeals reaffirmed a lower court’s ruling that Utah’s same-sex marriage ban is unconstitutional and has now done the same in the Oklahoma case. State courts in Arkansas, New Jersey, New Mexico, Colorado and yesterday in Florida have also sided with marriage equality.  

“Today’s ruling arises out of the oldest active marriage case in the country, filed in Oklahoma ten years ago; and follows more than two dozen favorable rulings for marriage in the past year,” Evan Wolfson, president and founder of Freedom to Marry, said in a statement. “The legal consensus is clear: marriage discrimination is unconstitutional and inflicts concrete harms on committed gay and lesbian couples and their families. From the heart of the Southwest and as far as the Mountain West, the federal rulings from the 10th Circuit Court of Appeals from Oklahoma and Utah affirm that all of America is ready for the freedom to marry. It is time for the Supreme Court to end this patchwork of discrimination and bring our country to national resolution as soon as possible.”

Oklahoma Same-Sex Marriage 10th Circuit Decision

Justin Snow is Metro Weekly's political editor and White House correspondent. He can be reached at jsnow@metroweekly.com.

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