A provision of the Oklahoma constitution, providing that “[m]arriage in this state shall consist only of the union of one man and one woman” is unconstitutional, according to a decision handed down Friday by the United States Court of Appeals for the Tenth Circuit. The decision is not particularly surprising, given that the Tenth Circuit held last month in a case out of Utah that “those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as it is recognized by persons who wish to marry a person of the opposite sex.” Nevertheless, there were some procedural quirks about this case which called into doubt whether these particular plaintiffs would be allowed to move forward with their lawsuit.
Among other things, the plaintiffs in this case challenged Oklahoma’s constitutional ban on marriage equality, but they did not also challenge a state statute which enacted a similar ban. This created some doubt over whether the court would be able to grant relief to the plaintiffs, because a decision striking down the constitutional ban might leave the statutory ban in place. Ultimately, however, the court concluded that “[u]nder Oklahoma law, a constitutional amendment ‘takes the place of all the former laws existing upon the subject with which it deals,’” and thus “[b]ecause the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury.”
Due to another procedural quirk in the case, the Court also reached the unusual result that, while they could strike down the state’s ban on same-sex marriage, these particularly plaintiffs could not move forward with their suit challenging another provision of the state constitution. That provision provides that “[a] marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.” Thus, the court’s order achieves the odd result of requiring Oklahoma to marry same-sex couples without requiring them to recognize out-of-state marriages between the same couples. Nevertheless, the court strongly hints that it would strike down the ban on recognizing out-of-state marriages in a future case — “Although it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court’s decision in [the Utah case] casts serious doubt on the continuing vitality” of the ban.
The panel that decided this case, Judges Carlos Lucero, Jerome Holmes and Paul Kelly, are the same three judges who heard the Utah case. Judges Lucero and Holmes voted to strike down both states’ marriage bans. Judge Kelly dissented.
Despite the court’s decision, Lucero and Holmes did not order Oklahoma to immediately being issuing marriage licenses. Their decision is stayed pending Supreme Court review.