Appeals court rules against another gay marriage ban

The 10th Circuit Court of Appeals on Friday affirmed a second decision striking down a state’s gay marriage ban — this time in Oklahoma. 

The decision was expected after the court issued a similar ruling last month finding a gay marriage ban in Utah also violated the U.S. Constitution’s Equal Protection and Due Process clauses.

The decision Friday was stayed to give time for appeal, possibly to the Supreme Court, as Utah has done.  

The court largely relied on its previous 2-1 ruling. Two judges affirmed the decision, while another dissented.

The majority wrote that while there were factual differences between the two cases, the question was the same.

{mosads}”Our core holdings are not affected by those differences,” according to the ruling. “State bans on the licensing of same-sex marriage significantly burden the fundamental right to marry.”

“And arguments based on the procreative capacity of some opposite-sex couples do not meet the narrow tailoring prong,” the majority added. 

The ruling can be appealed, either to all judges on the 10th Circuit or to the Supreme Court. Utah has already announced its intention to appeal last month’s ruling to the Supreme Court. 

Nineteen states and the District of Columbia have legalized gay marriage. A number of other state bans have been struck down as unconstitutional this year but have been stayed pending appeal. 

Gay marriage advocates have a perfect record in rulings since the Supreme Court struck down part of the Defense of Marriage Act last year.

The same three-judge panel on the 10th Circuit that decided the Utah case also ruled on the Oklahoma case Friday. 

Former President Clinton nominated to the court Judge Carlos Lucero, who wrote the opinion. Jerome Holmes, who joined in the decision, was appointed by former President George W. Bush. 

Paul Kelly, the only judge to dissent, was appointed by former President George H.W. Bush. 

In his dissent, Kelley wrote that he would not have decided the merits of the case because the plaintiffs lacked standing for failing to challenge the appropriate state laws. Nonetheless, he found that gay marriage is not a fundamental right granted by the Constitution and should be left to the state.