Appeals judges question right to sue in Oklahoma gay marriage case
Same panel that heard Utah appeal raises similar questions
Campbell said adoption and marriage are different laws with different policies. He said the purpose of marriage in Oklahoma is to "channel naturally procreative relationships into committed unions" to provide stability for children.
Holladay argued the case is about equality.
"There are so many things legally wrong with the Oklahoma same-sex marriage ban that it triggers and fails constitutional scrutiny for at least four different levels," he said.
Before he could speak to that, Kelly raised the legal standing question and much of the rest of the hearing stayed on that subject.
In 2009, the 10th Circuit sent the Oklahoma case back to the district court, saying it had wrongfully sued the governor of the state and the attorney general. The issuing of marriage licenses in Oklahoma rests with the judicial branch not the executive branch.
Holladay argued it was the court that instructed the plaintiffs to sue the court clerk who denied them the license. He said the only other defendant would have been the judiciary itself.
The Oklahoma case has been in the courts for 10 years. Bishop and Baldwin and Susan Barton and Gay Phillips have been challenging the state's same-sex marriage ban shortly after voters approved it in 2004. It is the oldest active gay marriage case in the country.
The 10th Circuit decision in the Oklahoma and Utah cases would become law in the six states in its jurisdiction — Colorado, Kansas, New Mexico and Wyoming are the others — unless it is stayed. New Mexico's Supreme Court has already legalized gay marriage in that state.
A ruling isn't expected for weeks, if not months.
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