U.S. District Judge Terence Kern ruled earlier this year that Oklahoma’s voter-approved ban on same-sex marriage was unconstitutional. Kern’s ruling was immediately stayed, and an appeal was filed with the federal appeals court in Denver.
It could take months for the circuit court to issue a ruling on Oklahoma’s case, and many believe the issue will eventually make its way to the U.S. Supreme Court. But as Oklahoma’s historic fight over same-sex marriage enters a new chapter, here are five things you should know about Thursday’s hearing.
The three judges
The same three judges that heard arguments last week on Utah’s same-sex marriage ban, which is very similar to Oklahoma’s, will hear Thursday’s arguments.
Judge Carlos F. Lucero, appointed by Bill Clinton, asked tough questions last week of the attorney representing Utah and the right to ban same-sex marriage. Judge Paul J. Kelly, appointed by George H.W. Bush, reserved most of his questions for the attorney arguing for the right of same-sex couples to marry.
If those two judges split in their decision, it could come down to Judge Jerome A. Holmes, a George W. Bush appointee. Despite being selected by a conservative president, Holmes questioned whether same-sex marriage bans were similar to state bans on interracial marriage in the Utah hearing, indicating he might lean toward the rights of same-sex couples.
What’s the main argument?
In briefs filed by attorneys for the Tulsa clerk, which is arguing in support of the state’s ban, the argument was made that same-sex marriage goes against the institution’s original intention to be based on procreation. The plaintiffs responded with a brief stating that is an outdated viewpoint in today’s modern understanding of procreation and marriage.
“Thanks to modern contraception, adult couples are empowered more than ever to decide for themselves whether and when best to have children,” the plaintiff’s final brief stated. “The majority of American women of child-bearing age do employ contraception to ‘sever’ the connection between their ‘male-female relationships’ and their ‘procreative potential.’ Consequently, Defendant’s real war is not with same-sex marriage, but with the procreative freedom made possible by modern progress.”
Updates won’t come quickly
If you are hoping to follow Thursday’s hearing via Twitter, you will be out of luck. The circuit court does not allow recording, broadcasting, blogging, tweeting or emailing from the courtroom. However, an audio recording of the hearing will be made available within 24 hours, and Oklahoma Gazette will provide post-hearing coverage.
When will a ruling come?
It’s hard to tell how quickly a ruling could come and whether the Utah and Oklahoma cases will be announced on the same day. However, it could take months.
What’s the next step?
The losing party will have the option to appeal to the full 10th Circuit Court of Appeals or go directly to the U.S. Supreme Court, which is where many legal experts believe the case will ultimately end up. Because Oklahoma’s case is only the second time a state ban on same-sex marriage has reached a federal court — Utah was the first — the state ban could be the case that ends up in the Supreme Court and be the vehicle for a historic ruling on same-sex marriage in America.