Today, the Federal 10th Circuit Court of Appeals said "States can't ban gay marriage."

by Robin Dorner
Editor in Chief

Well, we knew it; we’ve known it for some time. At least at some level, that is. Those of us in the LGBT community have known, or at least felt in our hearts that the ban on gay marriage was unconstitutional.

Today, the Federal 10th Circuit Court of Appeals agreed with us as evidenced by a 2-1 ruling by a three-judge panel striking down Utah's ban on same-sex marriage representing the first appellate ruling since the Supreme Court last year declaring a portion of the federal Defense of Marriage Act unconstitutional.

"We hold that under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex," the panel ruled.

The decision was written by Judge Carlos Lucero, who was named to the appeals court by Bill Clinton, with Judge Jerome Holmes, a George W. Bush nominee (from Oklahoma City), agreeing. Judge Paul Kelly, who was named by George H.W. Bush, dissented — becoming the first judge in the past 18 months to come down against same-sex marriage.

“We are excited! We think it’s a good predictor of how it’s going to go in our case,” said Sharon Baldwin, one of the Oklahoma plaintiff’s. “The tricky part is when you get to the recognition issue, such as marriages performed elsewhere, like Gay & Sue’s.

“We hope it’s going to be tomorrow that they rule. Remember, it’s the merit part of it we needed to win. We need them to rule on a state appeal issue because that would make all the cases across the country fall,” Baldwin added. “There are all kind of reasons that this needs to be an equal law for us.”

The 10th Circuit appeals court includes Utah, Colorado, Kansas, Oklahoma and Wyoming, as well as New Mexico, where same-sex couples already can marry. Its precedent applies to all those states, but the panel blocked its ruling from taking effect pending appeal, and Utah's attorney general said he intended to seek Supreme Court review.

"Today's decision continues our string of victories, this year, and takes it to the next level. The 10th Circuit Court of Appeals is one step removed from the US Supreme Court, and has set precedent for many decisions to come. This is a great day, and this is how we win," said Troy Stevenson, Executive Director of TEN (The Equality Network).

The Equality Network is a 501 (c) (4) organization that lobbies for pro-equality legislation and public policies in the state of Oklahoma.

The Gayly placed a call to Governor Mary Fallin’s office at noon today, but at time of press did not receive a return call from her or the office spokesperson, Alex Weintz.

In January, Governor Fallin reacted to Federal District Judge Terence Kern’s ruling that Oklahoma’s same-sex marriage ban is unconstitutional by saying,  "In 2004, the people of Oklahoma voted to amend the state's constitution to define marriage as ‘the union of one man and one woman.’ That amendment passed with 75 percent support.

“The people of Oklahoma have spoken on this issue. I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government."

Fallin has a long record of making anti-gay statements and taking anti-gay actions. Earlier this year, when DOMA was rejected by the Supreme Court, Fallin said, "Like the vast majority of Oklahomans, I support traditional marriage. I do not and will not support expanding the definition of marriage to include same-sex couples.”

As a member of Congress, she:

·         Voted NO on prohibiting job discrimination based on sexual orientation (2007)

·         Amend Constitution to define traditional marriage (2008)

·         Voted NO against enforcement of LGBT hate crimes (2009)

The marriage equality issue brings the LGBT community one giant step closer to a return engagement at the Supreme Court.

Published – The Gayly, 11pm 6/25/14.