For the second time in less than two months, a federal appeals court panel in Denver has upheld same-sex marriage, giving gay couples another victory en route to a final decision by the U.S. Supreme Court.
In a 2-1 decision, a three-judge panel of the 10th Circuit Court of Appeals struck down Oklahoma’s ban on gay marriage and followed much of the reasoning it used when it struck down Utah’s ban last month. In the Oklahoma case, the panel also had to deal with a number of technical issues such as whether the correct officials had been sued.
In both cases, the judges ruled that individuals had a constitutional right to marry that superseded the state’s arguments that the bans were valid.
The decisions, which were put on hold by the appellate panel, mark the first and second time a federal appeals court has ruled on gay marriage since the Supreme Court said a year ago that the federal government had to extend benefits to legally married same-sex couples. Utah has already announced it will seek an appeal to the Supreme Court, which is expected to gather up a number of same-sex marriage cases, then decide the issue.
The Oklahoma “opinion closely tracks, is bound by, and reinforces the earlier ruling that affirmed the district court’s invalidation of Utah’s same-sex marriage ban,” said Carl Tobias, professor at the University of Richmond School of Law. “Judges on appeals courts, like the 4th, 5th, 6th and 7th Circuits, which will soon be resolving appeals of similar challenges to bans, may rely substantially on the legal reasoning in the majority and dissenting opinions in the two 10th Circuit cases.”
Same-sex marriage is legal in 19 states and the District of Columbia, but the issue is pending in courts across the nation. In some states, such as Florida, local judges have allowed gay marriage in at least one area, but lacked the jurisdiction to rule on the issue statewide. In federal jurisdictions, courts have ruled more than 15 times in favor of legalizing same-sex marriage.
In both Utah and Oklahoma, generally regarded as conservative states, voters had approved gay marriage bans and state lawyers argued that the people’s will should govern policy. Attorneys also argued that unions between a man and woman are best for successfully raising children, a state policy concern.
Lawyers for the other side argued the opposite: that voters cannot act to deny constitutionally guaranteed rights and that there is no proof that having same-sex parents is detrimental
In the majority ruling, Justice Carlos Lucero repeated that the court had found that same-sex couples have a fundamental right to marry. He wrote that Oklahoma’s ban “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.”
Justice Jerome A. Holmes concurred, while Justice Paul Kelly Jr. dissented, as he did in the Utah decision.
In that case, Kelly warned that the court was overstepping its authority and that states should be able to decide who can marry.
“We should resist the temptation to become philosopher-kings, imposing our views under the guise of the 14th Amendment,” he wrote.