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And Another One: Oklahoma's Gay Marriage Ban Fails on Appeal

By William Peacock, Esq. | Last updated on

Okay, this is no surprise after Kitchen v. Herbert, the Utah gay marriage case that was argued at the same time as this appeal out of Oklahoma. But still, it's yet another chapter in the long battle for marriage equality, and the second federal circuit court of appeals ruling, both from the Tenth Circuit, to explicitly rule in favor of gay marriage.

Congrats, Oklahoma. Like it or not, you're second, and if we were putting bets on it, we'd guess you're headed for the Supreme Court, just like Utah is (and others will be).

Merits Disposition is Governed ...

What was the big ruling? It was rather simple:

"Our merits disposition is governed by our ruling in Kitchen v. Herbert, [citation]. In that companion case, we held that: (1) plaintiffs who wish to marry a partner of the same sex or have such marriages recognized seek to exercise a fundamental right; and (2) state justifications for banning same-sex marriage that turn on the procreative potential of opposite-sex couples do not satisfy the narrow tailoring test applicable to laws that impinge upon fundamental liberties.

So why did it take so long? And why is the opinion 106 pages long, including the appendix? Standing, mostly. There's some discussion over whether the county clerk was the proper defendant, stuff that anyone but the most ardent civil procedure nerds won't care about. Plus, the two couples challenged the constitutional amendment, but not the related statute, which caused significant confusion.

In the end, a couple challenging the state constitutional ban on in-state same-sex marriages won, a couple seeking to force the state to recognize their out-of-state marriage lost, and Judge Kelly, who dissented in Kitchen v. Herbert, reiterated his frustrations and compared gay marriage to polygamy and incest in arguing for a historical, gender-based interpretation backed by the will of the people of the state of Oklahoma.

Meanwhile, in Utah

Utah is not only planning to seek certiorari on its appeal in Kitchen v. Herbert, but the state is asking the Supreme Court to allow it to retroactively invalidate "interim marriages" that occurred during the brief window of legality between the time of the district court's opinion and the Supreme Court's stay of that opinion a few days later.

There are around 1,300 marriages at stake. SCOTUSblog has more on the "interim" marriages dispute.

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