OKLAHOMA CITY — In less than a month, two federal judges have struck down gay marriage bans in two conservative U.S. states for the same reason, concluding that they violate the Constitution’s promise of equal treatment under the law.
Experts say the rulings could represent an emerging legal consensus that will carry the issue back to the Supreme Court.
The decisions in deeply conservative Oklahoma and Utah offer new momentum for litigants pressing the same argument in dozens of other cases across the country.
The judge who issued Tuesday’s decision in Oklahoma “isn’t stepping out on his own,” said Douglas NeJaime, a professor of law at the University of California, Irvine. “He’s doing what a colleague in another court did not long ago.”
The fight to legalize same-sex marriage has rapidly gained momentum in the U.S. Seventeen states now allow gay marriage and a shift in public sentiment seems to be driving the movement. A third o f Americans oppose gay marriage, down from 45 percent in 2011, an AP-GfK poll showed in October.
In Utah and Oklahoma, the issue remains in limbo pending appeals.
In June, the Supreme Court, considering a legal challenge to California’s ban on gay marriage, decided not to weigh in on the constitutionality of defining marriage as being between a man and woman. Instead, the justices relied on a technical legal argument to resolve the issue in California and clear the way for same-sex marriage in that state.
That left the unanswered the question of whether state same-sex bans violate people’s constitutional rights.
Gay right advocates are hoping the series of recent court decisions will lead the Supreme Court to take up the issue. If the justices were to rule that the bans are unconstitutional, it could pave the way to make gay marriage legal across the country.
An attorney for the plaintiffs in the Oklahoma case said the most important question is whether the Supreme Court agrees to decide the legality of gay marriage bans now or whether the justices bide their time.
“Will they take these two decisions or will they wait for more?” asked Don Holladay.
Litigants in more than three dozen cases are challenging gay marriage bans in 20 separate states.
A federal judge in Ohio last month ordered state authorities to recognize gay marriages on death certificates and signaled that although his ruling is a narrow one, it would undoubtedly incite more lawsuits challenging the state’s ban.
In another landmark ruling last year, the Supreme Court also struck down a provision of a federal law that prevented legally married gay and lesbian couples from receiving a range of federal benefits. That decision triggered the series of rulings we’re now seeing, NeJaime said.
The judges in Utah and Oklahoma cited the Supreme Court decision heavily, essentially interpreting it to mean that same-sex bans are uncon stitutional, he said.
Attorneys for same-sex couples have reminded federal judges that the high court said denying the right to marry “demeans” gay and lesbian couples and “humiliates” their children.
Prior to Oklahoma’s ruling this week, judges in New Mexico, Ohio and even heavily Mormon Utah all ruled in favor of same-sex marriage. Gay marriages in Utah have been put on hold pending a decision from an appeals court.
The rulings in Utah and Oklahoma have added significance because they happened in states with histories of being strongly against gay marriage.
In 2004, Oklahoma’s same-sex marriage ban was passed by 76 percent of voters and Utah’s with 66 percent. Oklahoma also had a law that forbid state officials from recognizing adoptions by same-sex couples that were approved in other states. A higher court overturned that measure, NeJaime said.
“These decisions are coming out of states that didn’t seem like they were in play long ago,” NeJaim e said. “It expands the movement in a lot of ways.”
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