A three-judge panel on the Tenth Circuit Court of Appeals heard oral arguments Thursday in a lawsuit seeking to overturn Oklahoma’s ban on same-sex nuptials.
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The hearing marks the second time a marriage equality case has reached the appellate level since June, when the U.S. Supreme Court handed down two landmark victories for the movement. Exactly one week ago, the same three judges presented a divided front during questioning over Amendment 3, Utah’s voter-approved definition of marriage as between one man and one woman.
As with oral arguments last Thursday, Judge Jerome Holmes — a 2006 President Bush appointee — appeared to once again be the swing. Holmes had tough questions for the plaintiffs, but hinted that he agreed marriage equality amounted to a constitutional right based on Supreme Court precedent. Last June, the nation’s highest court struck down a central provision of the Defense of Marriage Act, which barred federal recognition of same-sex nuptials, on the grounds that it violated basic equality and human dignity. No argument for prohibiting gay couples from marrying has survived in state or federal court since.
“The state cannot define marriage in any way that would trample constitutional rights, right?” asked Holmes.
Defense attorneys conceded that voters had “limitations” in their right to define marriage, but argued that “the sex of the spouse is directly relevant to the government’s interest in procreation and child rearing.”
Following the hearing, Oklahoma attorneys said that reading into the judges’ questions was “a dangerous game,” according to Eric Ethington, communications director at Political Research.
There is no clear timeline on when the judges will issue their decision on either case, but it’s likely the Tenth Circuit will continue to treat them in an expedited manner. It’s also likely that whatever they rule will be appealed.
Like in Utah, Oklahoma’s Constitution prohibits gay couples from marrying and prevents the state government from recognizing such unions performed anywhere else. Oklahoma’s ban on same-sex nuptials passed in 2004 with 76% of the vote.
Shortly after a federal judge struck down Utah’s ban last December, U.S. District Judge Terence Kern – a President Clinton appointee – ruled that Oklahoma’s version violated the Equal Protection Clause of the Fourteenth Amendment. Unlike in Utah, however, Kern’s ruling was immediately stayed pending an appeal, keeping gay couples from the altar in that state ever since.
The Tenth Circuit fast-tracked both the Utah and Oklahoma cases. But before Judge Kern’s ruling in January, nothing had happened with that suit for years. The two plaintiff couples – Mary Bishop and Sharon Baldwin, and Gay Phillips and Susan Barton – began their legal battle a decade ago, immediately after Oklahoma approved its same-sex marriage ban. As state after state began to legalize marriage equality at warp speed, however, their case seemed stuck in slow motion.
“We were surprised at the timing; it totally caught us off guard,” said Baldwin Wednesday of Kern’s ruling. “We joked after the Utah ruling came down in December that all we wanted for Christmas was a ruling. And it didn’t happen. Then it’s the New Year, and by that time you’re feeling kind of deflated, like it’s just never going to happen. Then totally out of the blue – January 14. Since then, it’s been a beehive of activity.”
Baldwin and Bishop met 17 years ago at the Tulsa World newspaper, where the two work as editors. They had a Unitarian commitment ceremony three years later, but have not been legally married. Even though they now have 17 states plus the District of Columbia to choose from for their wedding, the couple wants to wait to marry at home.
“Sharon is at least a 4th generation Oklahoman, and I’m at least a 6th generation Oklahoman,” said Bishop, shortly before boarding a plane to Denver for Thursday’s hearing. “Our families go back in Oklahoma to before statehood. There’s no reason we should be forced to leave our home to be treated differently under the law. Our state and our nation should treat us all equally.”
Gay Phillips and Susan Barton have been together for 29 years, and have been married twice – once in Canada, and then again in California. The couple is suing to have their marriage recognized by the state of Oklahoma.
“It has been a 9.5-plus year journey so that we could be able to protect one another and have the same rights, privileges, and responsibilities that go with any marriage anywhere,” said Barton Wednesday. “As we are getting older and looking at retirement, Social Security benefits, and caring for one another, it becomes critically important that those state and federal benefits are afforded to us. Our real issue is, we’re a long-term, committed couple, and we want to be able to live our lives out together and to be sure that the other one is taken care of.”
Public opinion on same-sex marriage has shifted dramatically over the last few years, with a majority of Americans now in favor of the idea, according to a recent survey by the Public Religion Research Institute. Even in Oklahoma, one of the reddest states in the country, marriage equality advocates are sensing a thaw in opposition.
As a newspaper editor, Bishop has seen her fair share of readers’ comments. “Ten years ago,” she said, “there were a lot of very negative ones regarding our case. And now 99% percent of the comments we see are very positive.”
“I’m certain we’re going to prevail,” she said.
Emma Margolin
Emma Margolin is a reporter at MSNBC.com.