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(Steve Griffin | The Salt Lake Tribune) Utah Highway Patrol Troopers move into the audience to remove protesters, bottom center, as hundreds of advocates of traditional marriage fill the Rotunda during a rally at the Utah State Capitol in Salt Lake City on Wednesday, January 29, 2014.
Q&A: 10th Circuit on same-sex marriage in Utah and Oklahoma
Q&A » In both cases, 10th Circuit Court deemed same-sex marriage ban unconstitutional; what’s similar, what’s different, and what’s ahead?
First Published Jul 18 2014 02:48 pm • Last Updated Jul 19 2014 11:09 am

For the second time, the 10th U.S. Circuit Court of Appeals has ruled that states outlawing same-sex marriages are violating citizens’ rights.

The first decision came in Utah’s historic case last month. On Friday, the same three-judge panel came to the same conclusion in Oklahoma’s appeal.

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In the latest ruling, the judges noted that though some facts and arguments presented in the Oklahoma case differ from Utah’s, their "core holding" is not affected by those differences.

"State bans on the licensing of same-sex marriage significantly burden the fundamental right to marry," the opinion reads. "And arguments based on the procreative capacity of some opposite-sex couples do not meet the narrow tailoring prong."

Similar to Utah’s decision, the 10th Circuit’s ruling in Oklahoma was a 2-1 split, with Judges Carlos Lucero and Jerome Holmes with the majority ruling and Judge Paul Kelly dissenting.

Also similar to Utah’s outcome, the judges stayed their decision to allow Oklahoma to appeal to the U.S. Supreme Court.

• Is the Oklahoma ruling itself similar to the Utah one?

Yes. The judges ruled that they were governed by their previous ruling in Utah’s Kitchen v. Herbert.

Lucero writes that the appeals court had already found that the state’s concern of a link between marriage and procreation does not outweigh the right of same-sex couples to marry.

"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," the ruling reads. "As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation."

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In Kelly’s dissent, he sticks to his views in the Kitchen case — in which he notes the U.S. Constitution is silent on the regulation of marriage, and that power should be reserved for states to decide.

"Same-gender marriage is a publicpolicy choice for states, and should not be driven by a uniform, judge-made fundamental right analysis," he writes. " ... Any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court."

• How do the two rulings differ?

In the Oklahoma decision, the judges focus less on the constitutionality of same-sex marriage and more on legal matters unique to the Oklahoma plaintiffs, such as whether the couples sued the correct government officials. While Utah’s plaintiffs filed their lawsuit against Gov. Gary Herbert, the plaintiffs inOklahoma sued their county clerk.

Carl Tobias, professor at the University of Richmond law school, says he doesn’t believe the difference in named defendants is significant.

Unlike the Utah case, Holmes writes his own opinion in the Oklahoma case. Though he concurs with the ruling, he stresses that the court does not find that voters exhibited legal animus, of dislike, toward gay individuals when they outlawed same-sex marriage in 2004.

• Does Oklahoma’s case affect Utah’s?

Short answer: No.

"I don’t think so," Tobias says. "There isn’t that much difference on the substantive merits of the constitutionality of the bans. I don’t think it will play back [to Utah’s case] at all."

• Which case will reach the Supreme Court first?

Utah officials say they will appeal to the U.S. Supreme Court. It wasn’t immediately known whether Oklahoma will also appeal to the high court, or opt to ask the 10th Circuit for an "en banc" hearing, where the entire appeals court would hear the case.

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