Voters in 2004 overwhelmingly approved a ban on same-sex marriage, but a state judge ruled in January that the ban was unconstitutional. The issue was argued in front of the court of appeals on April 17, marking only the second time a state same-sex marriage case has been heard by a federal court.
James Campbell, an attorney representing the state’s effort to maintain the ban, opened the hearing with an argument about why the marriage ban was not discriminatory. However, just a minute into his argument, he began receiving questions from Judge Jerome A. Holmes, who is viewed as the probable swing vote on the three-judge panel.
“The state cannot define marriage any way that it wants and trample constitutional rights, right?” Holmes asked.
Don Holliday, the attorney representing Mary Bishop and Sharon Baldwin, the couple who filed the original lawsuit challenging the state’s marriage ban, also received questions from the judges about why his clients were right to sue the Tulsa County Clerk’s office.
Following Holliday’s arguments, Campbell returned before the judges and was asked specific questions by Holmes on how granting same-sex marriage licenses would negatively impact the children they raise or other heterosexual couples.
“The burden would not be on the government to show the potential of harm to redefine marriage,” Campbell answered.
The same court heard arguments earlier this month in a very similar case concerning Utah’s samesex ban, which was also declared unconstitutional by a state judge. A ruling on both cases could come sometime over the next few months, and some legal experts believe the two rulings might be announced on the same day.
Oklahoma is one of five states that has pending legislation concerning a same-sex marriage ban that was struck down by a court.
The losing party in Oklahoma’s case will have the option to appeal to the full 10th Circuit Court or go directly to the Supreme Court of the United States, which is where many legal experts believe the case will ultimately end up. Either Utah’s or Oklahoma’s case could end up at the Supreme Court and be the vehicle for a historic ruling on same-sex marriage in America.
Troy Stevenson, executive director of the Oklahoma chapter of The Equality Network said there were reasons to be positive following last week’s hearing, but he cautioned against assuming one ruling over another.
“I think it’s always presumptuous to try to read into the judges’ comments,” said Stevenson, who has worked for marriage equality in Oklahoma.
Stevenson also acknowledged that whatever the ruling, the issue of same-sex marriage could very well be in front of the Supreme Court by next year.
“I would love for Oklahoma to have that place in history [in front of the Supreme Court],” Stevenson said. “But the victory for marriage equality is the most important part.”