Outside the Beltway

10th Circuit Strikes Down Oklahoma’s Ban On Same-Sex Marriage

Another step closer to the Supreme Court.

Doug Mataconis · Saturday, July 19, 2014 · 2 comments

Just a few weeks after it issued a ruling striking down Utah’s ban on same-sex marriage, the 10th Circuit Court of Appeals issued a ruling yesterday striking down Oklahoma’s ban as well, setting up yet another case for potential consideration by the Supreme Court in its upcoming October 2014 Term:

DENVER — A federal appeals court here on Friday struck down a second conservative-leaning state’s voter-approved ban on same-sex marriage, 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 United States 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 United States Supreme Court.

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

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, Judge 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,” Judge 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.

Lyle Denniston analyzes the opinion:

The Oklahoma case is the longest-running same-sex-marriage lawsuit in the federal courts; it was originally filed in November 2004. The same Tenth Circuit panel that ruled against the Utah ban in a recent split decision divided again, two to one, in barring enforcement of the Oklahoma ban. Although the Oklahoma ban was nullified, the panel put its ruling on hold to allow an appeal in that case to the Supreme Court. The Utah decision is on hold for the same reason.

While the majority ruled against the Oklahoma marriage ban itself, as requested by a couple seeking to marry, it dismissed an already-married couple’s plea to require the state to recognize their California marriage of six years ago. The couple lacked a legal right (“standing”) to pursue that challenge because of procedural flaws in their lawsuit, the Tenth Circuit ruled; on that point, the panel was unanimous.

In November 2004, Oklahoma voters had approved a state constitutional amendment — State Question 711 — with more than seventy-five percent of the vote in favor. The constitutional challenge to it was filed promptly in federal court.

The decision on Friday against the ban was complicated by the scope of the legal challenges that the two same-sex couples had filed. While they challenged the constitutional amendment, they did not also challenge a state statute that banned such marriages. And the couple seeking to have their marriage officially recognized had initially sued the wrong state officials, and, when they sued a county clerk, that clerk was found not to have any power to recognize any marriage. Those aspects of the case led to disputes within the Tenth Circuit panel over who had a right to be in court and just what issues the panel could rule upon.

In the end, only the constitutional ban fell.

At an earlier stage of the case, the Oklahoma lawsuit also had challenged the federal Defense of Marriage Act, which barred all federal marital benefits to same-sex couples who were legally married under state laws. After the Supreme Court’s decision last year in United States v. Windsor, striking down the DOMA denial of benefits, that issue dropped out of this case.

Although the Supreme Court in the Windsor decision expressly avoided any ruling on states’ authority to ban same-sex marriage, federal and state courts have relied heavily on the reasoning that the Court used to invalidate the DOMA provision to nullify such state bans in some two dozen rulings over the past year.

That reasoning contributed to the Tenth Circuit’s rulings striking down, first, the Utah ban, and now, the Oklahoma ban. In Friday’s ruling, the panel majority relied largely upon its ruling in the Utah case in reaching the same result against the Oklahoma ban. However, it also rejected other arguments on the issue that it had not considered in the Utah decision.

“State bans on the licensing of same-sex marriages,” the majority wrote Friday, “significantly burden the fundamental right to marry.” Again applying the most demanding constitutional test, “strict scrutiny,” the majority said that Oklahoma officials could not satisfy that standard.

The decision in this case isn’t all that surprising given the fact that the three judge panel that heard this case is the same one that heard the appeal in the Oklahoma case. Even though there were some standing and other issues in the Oklahoma case that did not exist in the Utah case, it would have been unusual if the outcome had been any different, and especially if the panel had somehow managed to find a way to uphold Oklahoma’s ban less than a month after having struck down Utah’s ban.  Indeed, the reasoning in this opinion is hardly all that different from the panel’s reasoning in the Utah case, and the same goes for the dissenting opinion. In both cases, as in numerous cases before it, the Supreme Court’s decision in United States v. Windsor forms the basis of a holding that has at its core the idea that there is no basis for a state law restriction on marriage as being only between a man and a woman. In this case, as in court after court in which the arguments have been made, all of the arguments that have been advanced in favor of such restrictions — tradition, protection of “the family,” protection of children — have been rejected because there quite simply has never been a factual basis shown for any of these arguments.

As for the dissent’s argument that this is an issue that should be left to the voters, that strikes me as being little more than a willful abrogation of one’s duties as a Judge. Some things are beyond the control of even the largest democratic majorities, most especially issues involving the rights of minorities under the Constitution. In this case, we’re dealing with rights protected by the Due Process and Equal Protection Clauses of the 14th Amendment, and to argue that these matters should be left to voters strikes me as an argument that basically says that the Judicial Branch should stand aside while the majority runs roughshod over the rights of the minority. To be fair, there are legal thinkers who have held that position in the United States, most notably in recent member failed Supreme Court nominee Robert Bork, but it is hardly a majority position among American lawyers and judges. More importantly, it’s an attitude that reduces the Judiciary to a mere nullity in many cases, which is hardly what the Founding Fathers intended.

As with the Utah case, the next step for this case will likely be an appeal to the Supreme Court. Indeed, it’s likely that the two cases will end up being consolidated at the Court whether the Court grants the appeals or not. There are also likely to be additional Court of Appeals decisions on this issue before the summer is over, and they too will make their way to the highest court in the land. This will increase the pressure on the Justices to accept at least one of these cases in the coming term. They may not have intended it that way, but it’s rather obvious that the Court’s Windsor decision has set off a legal firestorm that has brought this issue to the Justice’s doorstep, probably much sooner than they anticipated.

Here’s the opinion:

Bishop Et Al v. Smith Et Al by Doug Mataconis