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10th Circuit hears Oklahoma gay-marriage case, and judges hint at their leanings

DENVER -- In the second gay-marriage case to hit the 10th Circuit Court of Appeals in Denver in the past week, the three-judge panel heard oral arguments in the federal case that challenges Oklahoma's ban on weddings for gay and lesbian couples.

A week ago today, the same judicial panel heard oral arguments in the challenge to Utah's gay-marriage ban. Last week, court observers said the panel seemed to be split with one judge (Paul J. Kelly Jr.) leaning strongly toward keeping the Utah ban; one judge (Carlos F. Lucero) bent on declaring it unconstitutional; and the third judge (Jerome Holmes) appearing to be a swing vote, even though he compared the Utah gay marriage case to Virginia's ban on interracial marriage that was overturned by the Supreme Court in Loving v. Virginia case.

But today, "swing vote" Judge Holmes pointedly queried whether the State of Oklahoma can legally prevent marriage equality. Holmes suggested that such a ban would "trample on constitutional rights" of gay and lesbian couples who wish to wed.

The Oklahoma case, Bishop v. Smith, is the oldest active gay-marriage case in the U.S., having been filed in 2004.

Both the Oklahoma and Utah cases, which have been expedited because district court judges have declared the laws unconstitutional, are the first to be heard by a federal appellate court since last year's historic Windsor decision that struck down a key portion of DOMA, the discriminatory Defense of Marriage Act.

Evan Wolfson, president of Freedom to Marry, reacted to today's oral arguments.

“Once again, it was clear in the light of a Denver courtroom that there is no good reason for denying loving couples like Mary Bishop and Sharon Baldwin the freedom to marry," Wolfson said.

"The 10th Circuit now has two freedom to marry cases before it, and other federal appellate courts will be hearing more in the weeks to come. But every day marriage is denied is a manifest hardship and unfairness for families and we hope the appeals courts will swiftly affirm the unanimous wave of lower-court rulings in favor of ending marriage discrimination. It's time for the freedom to marry throughout America, and America is ready."

The 10th Circuit will rule within months, and the decision is expected to be appealed to the U.S. Supreme Court.