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Oklahoma, Utah same-sex marriage rulings could turn up heat on Supreme Court

Published: Tuesday, Sept. 1 2015 10:57 a.m. MDT

Shelly Eyre, left, and Cheryl Haws speak to reporters after receiving a marriage license from the Utah County Clerk's Office in Provo on Thursday, Dec. 26, 2013. Federal court rulings in Utah and now Oklahoma overturning bans on same-sex marriage could put more pressure on the U.S. Supreme Court to hear the issue. (Laura Seitz, Deseret News) Shelly Eyre, left, and Cheryl Haws speak to reporters after receiving a marriage license from the Utah County Clerk's Office in Provo on Thursday, Dec. 26, 2013. Federal court rulings in Utah and now Oklahoma overturning bans on same-sex marriage could put more pressure on the U.S. Supreme Court to hear the issue. (Laura Seitz, Deseret News)

SALT LAKE CITY — Federal court rulings in Utah and now Oklahoma overturning bans on same-sex marriage could put more pressure on the U.S. Supreme Court to hear the issue.

A federal judge in Oklahoma who struck down that state's voter-approved gay marriage ban used some of the same reasoning U.S. District Judge Robert J. Shelby did in striking down Utah's law last month.

Judge Terence C. Kern made several references to Kitchen v. Herbert in his ruling Tuesday that Oklahoma's voter-approved definition of marriage as between a man and a woman violates the equal protection clause of the 14th Amendment.

Kern immediately stayed his decision, citing Utah's appeal to the 10th Circuit Court of Appeals, which also sees Oklahoma.

"The fact that several judges have adopted the same rationale probably bodes well for the U.S. Supreme Court eventually taking one of these cases, particularly if the 10th Circuit were to affirm either one of the judges," said former Utah Supreme Court chief justice Michael Zimmerman.

Zimmerman said the equal protection ground is very broad and could set a precedent in other places because the reasoning isn't limited to one state. Laws that define marriage as between a man and a woman may not fare any better than Utah's did if challenged in court, he said.

"The more judges who adopt that analysis, the more pressure it puts on the U.S. Supreme Court to address that analysis," said Zimmerman, now an appellate lawyer in private practice.

As did Shelby, Kern found that lower courts must look to the Supreme Court's ruling in United States v. Windsor for guidance in state bans on same-sex marriage. The high court voided part of the federal Defense of Marriage Act that defines marriage as between a man and a woman for purposes of federal law.

"This court interprets Windsor as an equal protection case holding that (DOMA) drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples," Kern said, though, like Shelby, he didn't see the Supreme Court's ruling as a "perfect fit."

Kern noted in Shelby's opinion that same-sex couples were not seeking a "new" right to marry but an already established "fundamental right."

Salt Lake City attorney Greg Skordas said it's "inevitable" that judges in other states are going to have similar rulings on same-sex marriage as Utah and that appellate courts will stay those decisions. And at some point, he said, there will be a national standard.

"The U.S. Supreme Court is going to say either states can enact laws to restrict marriage or individuals have the right to marry anyone, even of the same sex," Skordas said.

Bill Duncan, a lawyer and founder of the Utah-based Marriage Law Foundation, said it's not inevitable but possible that judges inclined in that direction might be emboldened by the Oklahoma and Utah decisions. He said courts in Hawaii and Nevada came to the opposite conclusions the past two years.

"This isn't a ratchet that only turns one way. There's certainly room for courts to have a different take on it," Duncan said.

Don Holladay, an attorney for the Oklahoma plaintiffs, told the Tulsa World he hopes the Oklahoma and Utah cases are combined.

Duncan said that could happen, but it's hard to see anything coming out of an Oklahoma appeal that would change the Utah case.

"I don't know why they would want to consolidate those when they could just decide Utah's case since it's on a fast track already," he said.

Zimmerman agreed that it's possible but said there's no way to predict what the courts will do.

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