Constitutional Law

10th Circuit strikes Oklahoma ban on same-sex marriage

An Oklahoma constitutional amendment that prohibits same-sex marriage was struck down Friday by the Denver-based 10th U.S. Circuit Court of Appeals.

According to the Associated Press, the panel that published the July 18 opinion (PDF) is the same panel that on June 25 found Utah’s same-sex marriage ban unconstitutional. Both cite U.S. v. Windsor, the 2013 U.S. Supreme Court opinion that struck down part of the federal Defense of Marriage Act.

Oklahoma argued that the plaintiffs lacked standing, which the majority rejected. Judge Carlos F. Lucero wrote for the majority in the Oklahoma opinion, with Judge Jerome Holmes submitting a concurrence.

“Oklahoma’s ban on same-sex marriage sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions,” Lucero wrote.

Judge Paul Joseph Kelly concurred in part and dissented in part.

“The most serious problem with this court’s analysis is that it is derived from cases where provisions conflict;” Kelly wrote. “It would be an extravagant reading to conclude that Oklahoma is not empowered to enact a consistent and clarifying constitutional provision without replacing the statutory provision.”

The court stayed the ruling, pending an expected appeal, National Public Radio reports. Earlier this month, Utah Attorney General Sean D. Reyes’ office announced that the state would appeal directly to the U.S. Supreme Court, forgoing an appeal for en banc review from the 10th Circuit.

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