Round 2: Court Takes up Oklahoma Gay Marriage Case

Lawyers for a couple challenging Oklahoma's ban on gay marriage and the clerk who refused to grant them a license head to a federal appeals court Thursday with the rare opportunity to build on arguments the judges heard in a similar case just a week earlier.

Judges at the 10th U.S. Circuit Court of Appeals in Denver heard arguments last week about Utah's gay-marriage ban, and on Thursday will take up the Oklahoma case with the same key issue: Did voters single out gay people for unfair treatment when they defined marriage as a union between one man and one woman?

Last week's arguments gave the Oklahoma legal teams a chance to fine-tune their arguments.

"Essentially, (the cases) are not that different," said Alliance Defending Freedom senior counsel Byron Babione, who is representing the Tulsa County clerk. "Both of them involve challenges to state marriage amendments that were passed by an overwhelming majority of the people."

Babione said the legal team for Clerk Sally Howe Smith was encouraged by hard questions posed by the 10th Circuit in the Utah case last week, saying they seemed tailored to their argument that a state's residents have the right to define marriage how they see fit.

But lawyers for Mary Bishop and Sharon Baldwin can point to a tack taken by U.S. Circuit Judge Jerome A. Holmes, who questioned whether Utah's same-sex marriage ban was similar to Virginia's former ban on interracial marriage. The U.S. Supreme Court struck down that ban 47 years ago.

U.S. District Judge Terence Kern of Tulsa ruled in January that Oklahoma's ban violated the equal protection clause in the U.S. Constitution. He immediately stayed his ruling, preventing any same-sex marriages from taking place while the ruling was appealed. In contrast, more than 1,000 gay couples in Utah married before the U.S. Supreme Court stepped in to issue a stay.

Kern rejected an attempt by another couple, Susan Barton and Gay Phillips, to have their California marriage recognized in Oklahoma. Kern said Barton and Phillips sued the wrong person.

The Utah and Oklahoma cases are very similar: both involve bans on same-sex marriage passed by a majority of voters in 2004 - 76 percent in Oklahoma and 66 percent in Utah - and both bans were struck down by federal judges within a month of one another in December and January. The legal arguments for and against the ban are also similar.

Baldwin said her lawyer attended last week's arguments and believes it went well.

"I think we were struck by how, frankly, it's the same old arguments they've been using all along that have been so unsuccessful," said Baldwin, who intended to travel with Bishop, Barton and Phillips to Denver on Wednesday. "They make it sound as though there are a limited number of marriage licenses and if they start handing out marriage licenses willy-nilly to same-sex couples who can't have a child, then what is that going to do to procreation? Well, it's not going to do anything to procreation. People who still want to have children will still have children."

Holmes, appointed by President George W. Bush, said that while the gay-marriage arguments could be akin to those over interracial marriages two generations ago, they are a new concept for the courts, which should perhaps defer to the democratic process unless there are pressing reasons to intervene.

Alliance Defending Freedom, which also had a representative present at the Utah oral arguments, left court encouraged, Babione said.

"From our perspective, that is a good thing, because we don't think this is an issue that can be decided based on superficial sentiments, but really needs to be decided on the important government interest at stake," he said.

It's not clear when the three-judge panel of the 10th Circuit will issue its rulings. The judges will likely issue separate rulings, but they may come on the same day. The losing sides could appeal to the full 10th Circuit Court of Appeals or directly to the U.S. Supreme Court.