The U.S. Court of Appeals for the 10th Circuit has upheld the January 2014 U.S. District Court for Oklahoma ruling in Bishop v. Smith striking down that state’s same-sex marriage ban as unconstitutional, in a 2-1 decision. The opinion is by Judge Carlos Lucero. Read the opinion Here (.pdf).
The panel that decided this case, Judges Carlos Lucero, Jerome Holmes and Paul Kelly, are the same three judges who heard the Utah case of Kitchen v. Herbert. Judges Lucero and Holmes voted to strike down both states’ marriage bans. Judge Kelly dissented. The court has stayed its decision to allow the parties to seek U.S. Supreme Court review.
Lyle Denniston at SCOTUSblog.com reports, Appeals court nullifies another same-sex marriage ban:
The Oklahoma case is the longest-running same-sex-marriage lawsuit in the federal courts; it was originally filed in November 2004. The same Tenth Circuit panel that ruled against the Utah ban in a recent split decision divided again, two to one, in barring enforcement of the Oklahoma ban. Although the Oklahoma ban was nullified, the panel put its ruling on hold to allow an appeal in that case to the Supreme Court. The Utah decision is on hold for the same reason.
While the majority ruled against the Oklahoma marriage ban itself, as requested by a couple seeking to marry, it dismissed an already-married couple’s plea to require the state to recognize their California marriage of six years ago. The couple lacked a legal right (“standing”) to pursue that challenge because of procedural flaws in their lawsuit, the Tenth Circuit ruled; on that point, the panel was unanimous.
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The decision on Friday against the ban was complicated by the scope of the legal challenges that the two same-sex couples had filed. While they challenged the constitutional amendment, they did not also challenge a state statute that banned such marriages. And the couple seeking to have their marriage officially recognized had initially sued the wrong state officials, and, when they sued a county clerk, that clerk was found not to have any power to recognize any marriage. Those aspects of the case led to disputes within the Tenth Circuit panel over who had a right to be in court and just what issues the panel could rule upon.
In the end, only the constitutional ban fell.
At an earlier stage of the case, the Oklahoma lawsuit also had challenged the federal Defense of Marriage Act, which barred all federal marital benefits to same-sex couples who were legally married under state laws. After the Supreme Court’s decision last year in United States v. Windsor, striking down the DOMA denial of benefits, that issue dropped out of this case.
Although the Supreme Court in the Windsor decision expressly avoided any ruling on states’ authority to ban same-sex marriage, federal and state courts have relied heavily on the reasoning that the Court used to invalidate the DOMA provision to nullify such state bans in some two dozen rulings over the past year.
That reasoning contributed to the Tenth Circuit’s rulings striking down, first, the Utah ban, and now, the Oklahoma ban. In Friday’s ruling, the panel majority relied largely upon its ruling in the Utah case in reaching the same result against the Oklahoma ban. However, it also rejected other arguments on the issue that it had not considered in the Utah decision.
“State bans on the licensing of same-sex marriages,” the majority wrote Friday, “significantly burden the fundamental right to marry.” Again applying the most demanding constitutional test, “strict scrutiny,” the majority said that Oklahoma officials could not satisfy that standard.
The division in the panel on the issue of barring enforcement of the ban on new same-sex marriages was the same as in the Utah case: Circuit Judges Carlos F. Lucero and Jerome A. Holmes in the majority, Circuit Judge Paul J. Kelly, Jr., in dissent. Judge Lucero wrote much of the new majority opinion, but Judge Holmes drafted part of it.
In a related matter, Lyle Denniston of SCOTUSblog.com reports, Utah gets delay on same-sex marriages’ legality:
The Supreme Court on Friday afternoon spared the state of Utah, temporarily, from having to give official recognition to some 1,300 same-sex marriages that were performed last winter. In a two-sentence order, without noted dissent, the Justices put on hold a federal judge’s ruling in May requiring the state to validate those marriages.
This marked the second time the Justices have stepped in to put on hold a federal court ruling in favor of same-sex marriages in Utah. The delay ordered Friday will be in effect until the Tenth U.S. Circuit Court of Appeals rules on the state’s claim that those marriages did not have full legal status when performed. The state’s lawyers have called them “interim marriages.” The Circuit Court, however, has already given a strong hint that the state’s appeal is likely to fail.
The dispute over these marriages is separate from, but is related to, the controversy over the constitutionality of Utah’s ban on all such marriages. The ban has been struck down by a different federal judge, and Utah is planning to take that case to the Supreme Court in coming weeks.
The marriages at issue in the Court’s Friday order were performed between December 20, when the state ban was nullified, and January 6, when the Supreme Court — in an earlier order — put that decision on hold while the Tenth Circuit Court reviewed it. In June, the Circuit Court struck down the ban, but that order is on hold so that Utah can take that core issue to the Supreme Court.
After the Justices’ January 6 order, same-sex marriages stopped in Utah. But, in the meantime, some 1,300 marriage licenses were issued in the state, and most of those couples then got married. Some of those couples then filed a separate federal court case, seeking to have their marriages officially recognized.
On May 19, a judge in Salt Lake City ruled that the state had to accept those marriages as valid. The state then appealed that new decision to the Tenth Circuit Court, and asked it to delay the decision while the appeal proceeded.
On July 11, the Circuit Court said it would not grant a formal postponement, but gave the state time to ask the Supreme Court to do so. The state then asked the Justices for a delay, and that was granted in the Friday order.
When the Circuit Court took its latest action on July 11, it noted that — in order to get a stay of the recognition order — it had to show that it was likely to win the case ultimately. In an opinion issued on a two-to-one vote, the panel majority said that the state had “not made showings sufficient to warrant a stay pending appeal.” That was at least a strong indication that, when the Circuit Court actually rules, it may well reject on the merits the state’s protest over recognition of the winter marriages.
With the Supreme Court’s delay order on Friday, the state’s appeal on the marriage recognition issue will now go forward in the Circuit Court. That may take some weeks or months, but the issue probably will end up in the Supreme Court in the coming Term.
So the two cases before the 10th Circuit Court of Appeals are now decided and on their way to the U.S. Supreme Court, with another related case from Utah yet to be decided by the 10th Circuit.
There are several more cases in the pipeline before the Courts of Appeals to be heard in August and September.