THE COLORADO INDEPENDENT
Tenth Circuit judges have what they need in gay-marriage cases
The hearings are over. A decision may come by June.
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...
...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.
Tenth Circuit judges have what they need in gay-marriage cases | The Colorado Independent