TULSA, Okla. — Voters should decide how to define marriage, not federal judges, said attorneys who filed an appeal Wednesday asking the U.S. Supreme Court to decide whether Oklahoma’s ban on gay marriage is constitutional.
The 47-page appeal was filed by lawyers for Alliance Defending Freedom, an organization representing Tulsa County Clerk Sally Howe Smith, who was sued after refusing to grant a marriage license to a same-sex couple.
The 10th U.S. Circuit Court of Appeals sided with the couple last month, upholding a federal judge’s ruling that found the ban unconstitutional. However, those rulings were put on hold as the case makes its way through the courts, meaning same-sex couples haven’t been allowed to marry in Oklahoma.
The ban was approved by more than 75 percent of voters in 2004.
“The 10th Circuit … negated the exercise of this fundamental right (of voting) by more than 1 million Oklahomans and millions of voters in other states,” Wednesday’s appeal filing stated. “Invalidating the people’s voice on an issue as profound as the definition of marriage presents an important question that warrants this court’s review.”
ADF senior counsel Byron Babione said, “The people of every state should retain the freedom to preserve marriage if they so choose. Courts shouldn’t decide the legal destiny of marriage in any state, let alone in every state.”
The couple who sued the Tulsa County clerk challenged the ban shortly after the law was approved. After an appeals court ruled in 2009 that Sharon Baldwin and Mary Bishop lacked standing, they filed an amended complaint listing Smith as the defendant, since her office issues marriage licenses.
Smith said Wednesday she doesn’t make the laws, but added that it’s her responsibility under the oath of office she took “to follow the constitution and the state laws of Oklahoma.”
“Therefore, until the laws are changed, by those with the power to change the law, I can only do what the law dictates me now to do, which is, I can’t issue same-sex marriage licenses,” she said.
Baldwin said she wasn’t surprised the appeals court ruling was challenged. She said the day will come when marriage equality “is not an ‘if’ but a ‘when’” throughout the U.S.
“For far too long, we have had second-class citizens living within our borders,” she said.
On Tuesday, Utah officials filed an appeal with the U.S. Supreme Court asking it to uphold that state’s gay marriage ban.
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