Tenth Circuit judges have what they need in gay-marriage cases

 
DENVER — The U.S. appeals court here weighing two path-breaking cases in which Utah and Oklahoma same-sex marriage bans have been struck down was all business Thursday in court. The judges stuck mostly to specific questions on points of law directly tied to the Oklahoma case in front of them, apparently satisfied that they have gathered enough material on the broad question of whether or not state same-sex marriage bans are constitutional.

Only a few minutes in the hour-long hearing were spent on the wide-ranging questions that dominated last week’s hearing on the Utah case, when the judges explored the definition of marriage, state’s interests and the rights of minorities. In the Oklahoma case, by contrast, questions of legal “standing” dominated — as they have since the Oklahoma case was filed a decade ago.

The plaintiffs, two longtime lesbian couples from Tulsa — Mary Bishop and Sharon Baldwin and Susan Barton and Gay Phillips — have sued Tulsa County Clerk Sally Smith. Jim Campbell, arguing on defense of Clerk Smith, said the couples have to find someone else to sue partly because Smith has no power to address their complaint. He said Smith can’t change the law and that no couples are looking to her to recognize their out-of-state marriages.

The judges — Jerome Holmes, Paul Kelly and Carlos Lucero — took turns peppering Campbell with questions.

“But don’t we need a concrete problem to consider?” asked Judge Kelly, suggesting that a clerk who issues marriage licenses and who in 2009 denied the plaintiffs a marriage license would be the right person to sue.

Campbell cited an earlier district court ruling that said the plaintiffs should look to target some other state official. Judge Holmes’ eyes grew wide.

“Why wouldn’t the clerk be the face of the judiciary for the purpose of the case?” he asked. “This is us. The Tenth Circuit made this decision. Shouldn’t our decision [telling the plaintiffs] to sue the clerk overtake any [lower] district court’s ruling?”

When the couples originally filed their suit in 2004, weeks after Oklahomans voted for a state ban on gay marriage, they targeted the governor and the state attorney general. After years of legal back and forth, the case in 2009 came to the Tenth Circuit Court of Appeals, where an earlier three-judge panel told them, in effect, they couldn’t sue the state executives, that the governor and the attorney general had only tangential jurisdiction on marriage. They had to sue a clerk.

Five years later, after Thursday’s hearing, Campbell was standing in the shadow of the Tenth Circuit court house telling reporters he was confident in his argument, even though he was asking the Tenth Circuit judges to reverse a Tenth Circuit decision.

“This court previously only decided certain aspects of standing,” he said. “We believe we’re on solid ground.”

Campbell said he isn’t worried that winning at the Tenth on the question of standing would only draw additional lawsuits targeting the state ban and asking the main question about the constitutionality of denying same-sex couples the right to marry.

“Anyone has the right to sue,” he said.

Standing on the steps outside the court house, plaintiff Baldwin told The Independent she was buoyed by the fact that arguments today were pegged to the “narrow issue of standing.”

“I’m always the optimist,” she said. “I think history and the law is on our side. I think it’s a good sign the way it went today. To me it means the larger arguments last week in the Utah case went very well. They laid the groundwork, so the judges today could just focus on the quirks of our case.”

The Oklahoma case, now known as Bishop v. Smith, is the longest-running same-sex marriage case in the United States.

Baldwin has sat through many hearings in the case. She takes a long view, even if it pains her on a day to day level.

“I understand the need to see to the legal details of these cases,” she said. “But these [marriage bans] affect people every day. People are having trouble. We’re middle aged and healthy, but there are a lot of gay couples who aren’t healthy. They’re sick. People in 50-year relationships. They need these cases resolved. It has to happen soon. People are losing their homes.

“We’re just the faces of this case, but we stand for all the couples — gay people all across the state of Oklahoma and across the Tenth Circuit and across the country.”

The Tenth Circuit Utah and Oklahoma cases are the first federal cases to be weighed since the U.S. Supreme Court’s historic U.S. v. Windsor ruling in favor of gay marriage last summer.

“These cases signal the next chapter in the movement,” said Evan Wolfson, founder and president of national gay-rights group Freedom to Marry. There are seven additional cases lined up to be heard in federal courts around the country. Wolfson and many other court watchers say the wave of federal appeals cases are a prelude to a defining U.S. Supreme Court challenge in the coming years.

Court watchers expect the Tenth Circuit panel to issue a ruling on the Utah and Oklahoma cases this summer. The circuit hears cases from a conservative middle- and mountain-west region that includes, Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

If the panel decides in favor of the plaintiffs and against gay-marriage bans, Colorado’s 2006 ban also would be invalidated. States attorneys in Colorado as well as in the rest of the states of the Tenth Circuit would likely appeal such a decision to the U.S. Supreme Court, setting up a final legal showdown.

[ Image of of the plaintiffs in Oklahoma’s Bishop v. Smith case, from left, Dr. Gay Phillips, Susan Barton, Mary Bishop and Sharon Baldwin. ]