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Appeals judges question right to sue in Oklahoma gay marriage case

Same panel that heard Utah appeal raises similar questions

Published: Tuesday, July 7 2015 5:07 p.m. MDT

Whether two lesbian couples have legal standing to challenge Oklahoma's ban on same-sex marriage dominated arguments in a federal appeals court hearing Thursday. (Elise Amendola, Associated Press) Whether two lesbian couples have legal standing to challenge Oklahoma's ban on same-sex marriage dominated arguments in a federal appeals court hearing Thursday. (Elise Amendola, Associated Press)

DENVER — Whether two lesbian couples have legal standing to challenge Oklahoma's ban on same-sex marriage dominated arguments in a federal appeals court hearing Thursday.

The same 10th Circuit Court of Appeals judges who heard Utah's similar case last week spent much of the 40-minute hearing questioning the plaintiffs' right to sue the Tulsa County court clerk who refused to grant Mary Bishop and Sharon Baldwin a marriage license. Though it came up briefly last week in the Utah hearing, it isn't at issue in that case.

"I'm a little concerned about standing in this case," Judge Paul Kelly Jr. told the couples' attorney, Don Holladay.

Should the three-judge panel conclude the appellate court can't intervene, the case could be sent back to the district court, which has already happened once in Oklahoma. The judges could also affirm or reverse a district court's ruling that struck down the state's gay marriage ban.

Aside from the issue of standing, attorneys for both sides touched on some of the same arguments lawyers in the Utah case made for and against same-sex marriage last Thursday. Judges, too, pursued some of the same paths but to a lesser degree.

Public interest seemed to have waned as well. There were a few empty seats in the gallery and far less media attention than a week ago. Opposing counsel in the Utah case, Gene Schaerr and Peggy Tomsic, were among the crowd.

Jim Campbell, an attorney with the Alliance Defending Freedom, thanked Schaerr after the hearing for a last-minute quote that he inserted into his argument. Schaerr declined to comment.

Campbell, who represents Tulsa County Court Clerk Sally Howe Smith, said he hopes the judges will "allow Oklahomans to write their own history on the future of marriage."

The couples said they believe they have justice and history on their side and no amount of tradition can overcome that.

"There is no reason that we as Oklahomans should be treated any differently than any other Oklahoman," Bishop said.

In court, Campbell argued that Oklahoma has the right to define marriage as between a man and a woman, and voters did so with a state constitutional amendment. He also said a man-woman marriage is the best environment to rear children.

"The state cannot define marriage in any way that it wants and trample on individual rights, right?" Judge Jerome Holmes asked.

District court judges in both the Utah and Oklahoma cases found that the states' voter-passed laws defining marriage violate equal protection guarantees under the Constitution.

As he did last week, Holmes compared denying marriage based on gender to denying it based on race.

Campbell contends that the U.S. Supreme Court has always treated racial and gender discrimination differently. He said the Oklahoma marriage law "treats men and women the same."

Judge Carlos Lucero again said he was concerned about children of gay married couples, asking "Are they recognized as legitimate children or not?"

Under Oklahoma law, same-sex couples can't adopt children. But Campbell acknowledged that if a same-sex couple legally adopts children in another state and moves to Oklahoma, they would be recognized.

"Doesn't that undermine all of your arguments about the fact that children should be raised by a mother and a father?" Lucero asked.

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.

Email: romboy@deseretnews.com, Twitter: dennisromboy; DNewsPolitics

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