Oral arguments before the 10th U.S. Circuit Court of Appeals on Oklahoma’s ban on same-sex marriage Thursday had less to do with weddings than whether the plaintiffs sued the wrong person — again.
“We don’t believe the plaintiffs have standing,” said Jim Campbell, attorney for defendant Tulsa County Clerk Sally Smith.
But plaintiff attorney Don Holladay, who represents two Oklahoma lesbian couples, suggested an ironclad reason they sued Smith: a 10th Circuit panel of judges ordered them to sue the clerk in 2009.
The argument looms large because if the defense is correct, then the plaintiffs’ court odyssey that began in 2004 will have been in vain.
“If the court agrees on our issue, that will end the case,” Campbell said.
Thursday’s hearing in Denver was the second time in a week that the same panel of judges heard arguments on the issue of gay marriage. Utah’s case came April 10, but arguments in that case seemed to be more on point — whether gay marriage bans are unconstitutional or individual states have the right to define marriage.
Court watchers say it could take months for a decision in the cases, which are expected to eventually land before the U.S. Supreme Court.
“We’re ecstatic,” said Sharon Baldwin, standing alongside her partner of 17 years, Mary Bishop, after the hearing. “We think the hearing went well. We think justice is on our side.”
Her optimism came despite a long history of tough setbacks. Plaintiffs, who also include partners Susan Barton and Dr. Gay Phillips, first sued Oklahoma’s governor and attorney general the day after voters passed a constitutional amendment banning gay marriage Nov. 3, 2004.
But in 2009, the first panel of 10th Circuit judges to review the case ruled that they shouldn’t have named the governor and attorney general as defendants. So plaintiffs then sued Smith instead.
In January, U.S. District Judge Terence Kern struck down Oklahoma’s gay marriage ban, but in his ruling he pointed out that they should have sued the governor and attorney general.
Kirk Mitchell: 303-954-1206, denverpost.com/coldcases or twitter.com/kmitchelldp
