Tenth Circuit Rules Okies Can Get Gay Married

Tenth Circuit Rules Okies Can Get Gay Married July 18, 2014


The tenth circuit has upheld a lower court ruling striking down Oklahoma’s Constitutional definition of marriage as between one man and one woman.

I am guessing that Oklahoma will take this to the Supremes.

it should be interesting to see if the Supreme Court agrees to hear this and, if they do, how they rule.

If they intended to destroy marriage by judicial fiat and not put their hands directly on it, they’ve succeeded brilliantly. However, if they really meant that marriage is not a federal issue and that the states should decide for themselves, they need to do some fine-tuning.

Either way, I am convinced that we are in for a long fight, probably a generational fight. But we will win in the long run. Of that I have no doubt.

To read the decision, go here.

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30 responses to “Tenth Circuit Rules Okies Can Get Gay Married”

  1. I have read the very complex decision. Mostly related to standing and statute. But the court got it right. The State of OK can certainly run to the SCOTUS but I believe this ruling too will be upheld. The sooner the better so we can move on and treat all our citizens equally.

  2. In about 30 years, opposing marriage equality will be about as socially acceptable as open membership in the Ku Klux Klan. And if you don’t like that, then you can move to Russia, comrade.

  3. We will be at the mercy of Justice Kennedy when the SCOTUS finally hears the case as to whether the states can define marriage in a way that discriminates against people based on sexual orientation. If he is consistent with the Windsor decision, in which he sided with the left, gays will finally have the marriage equality that they have been fighting for and so rightly deserve.

  4. According to the federal government, the states should decide for themselves, but only one decision is allowed. That’s the Orwellian state of things we find ourselves in.

  5. The key seems the pre-Windsor ruling against gay marriage from the 8th Circuit, back circa 2006 over Nebraska’s ban; that insures the existence of a circuit split. Last I looked, the only cases active in the 8th at the federal level were for North and South Dakota, which have just barely been started. This leaves it highly implausible that the 8th Circuit will overturn themselves any time soon, leaving the SCOTUS staring at a blatant circuit split.

    Contrariwise, no ban on gay marriage has survived either federal nor state challenge since the Windsor ruling. The Supreme Court might “resolve” the split by declining cert to the appeals from outside the 8th until such time as another ruling regarding gay marriage comes out from the 8th circuit court of appeals. If the ruling upholds bans, the split can be resolved (one way or another) by addressing the inevitable appeal that would trigger. If that ruling supports gay marriage, the split is ended without SCOTUS action — the essence of judicial restraint. If the current (long-shot) motion in the ND case for summary judgement against that ban is granted, the SCOTUS might well punt. (Though this might even me closer to letting the clock run out.)

    Nohow, Utah seems likely to be the first to file from the 10th, in which case the Oklahoma appeal may be consolidated in. This might not be good for Oklahoma, as news reports suggest the performance of the Utah AG office has been developing a superficial appearance akin to something from a Marx Brothers movie script.

  6. But we will win in the long run. Of that I have no doubt.

    Um, may I ask why you’re so confident?

  7. The 10th Circuit was bound to rule the way they did by their decision in the Utah case, so this one breaks no new ground. After the Utah case was decided, they could not do anything else.
    The Utah case is suspect, because there, the 10th circuit said that marriage was a fundamental right, therefore everyone gets to get married. Under the Utah ruling, polygamy would be legal, as would be virtually any other arrangement that people may desire to make. In other words, the decision entirely destroys marriage as a concept, and replaces it with “anything goes”.
    It is true the Supreme Court has, in the past, ruled that marriage is a fundamental right. However, the cases they have considered only concerned man-woman marriage. There is nothing in those cases to remotely suggest marriage is a right between any arrangement of people that desire it. In addition, in those decisions, procreation was discussed as a feature of marriage.

  8. Yes, the dominoes are falling. It’s predictable. I hope you’re right and we in time will win this. Unfortunately I’m not so sure. It’s rare that a “right” once given will be taken away. If it is I probably won’t live long enough to see it.

  9. A lie can not live forever. And gay marriage is a lie, based on the fantasy that two men or two women are somehow or other the same as a man and a woman. It is a form of cultural insanity. It will lead to so much harm that people will eventually sicken of it.

  10. Equality has nothing to do with this sister. It’s about a fantasy of sameness that is based on wishful thinking. That is not equality, it is emotional longing for a different reality.
    Codifying that longing does not change the reality, it only robs the law of its integrity. Any legislative body — or court bent on fiat — has the power to pass laws saying that water will boil at 32 degrees F at sea level and that there is plenteous oxygen on top Mt Everest. However, the reality will not change itself to conform to the law.

    We are already accepting massive human rights violations of whole classes of people in order to feed this fantasy.

    Over time, people will sicken of what they have wrought. This lie will not live.

  11. I think that in about 30 years, opposing gay marriage will be an obvious thing to do. Assuming, of course, that there is enough Western civilization left to oppose it. By that time, Europe may be heavily Muslim and Middle Eastern in its culture, rather than Christian and Western. That would certainly change the dynamic of gay marriage in Europe.

  12. It will lead to so much harm that people will eventually sicken of it.

    I ask this not to sound confrontational, I really don’t. I sincerely want to understand your position, and this is not meant to be argumentative at all – please don’t take it that way, but specifically what kind of harm do you propose it will lead to, exactly? Will data eventually show gay people to be bad parents (or worse than straight parents, particularly)? Or their children will be psychologically traumatized?

    Will gay people getting married somehow make straight people not (or less likely to) get married? Or make straight marriages unstable?

    Forgive me, I’ve just never been clear on what specific harms are predicted to come from same sex marriage.

  13. They’ve won, so let’s see if they are happy with what they’ve won.

    Can you come up with a specific reason why they wouldn’t be?

  14. First, the people who predicted a slippery slope are right. The push to legalize polygamy has already begun.

    Second, the use of women and children as breeders and chattel to further the fantasy of gay marriage is already well established.

    Third, the attacks on religious freedom and even in some instances, freedom of speech are going apace.

    Fourth, the use of our public schools to indoctrinate young children in what amounts to sexual identity confusion is going right along.

    Many of the seeds of why this whole thing will implode are sprouting right now.

  15. We have not won on abortion, and it led to gay marriage. A morally free people has no mechanism for regaining morality once it has been lost. The slippery slope exists, and is unidirectional.

  16. So, correct me if I’m wrong, but you’re saying gay people would be happier without the civil right to marry? That when they get married, they’ll be sorry because they’ll just find more things to criticize?

    Also, I’m sorry, but I must have missed all the miserable gay people in those states where they can marry. They all seemed pretty joyful about it to me.

  17. So, if I understand correctly, your primary argument against gay marriage is that it will open the door to, and facilitate horrible things, correct? I note you didn’t actually explain why same sex marriage is bad in and of itself, other than your position that it’s not “real” marriage.

    Is that a fair characterization of your argument?

  18. I challenge your first statement. There have ALWAYS been crackpots pushing for polygamy. And in the past 10 years there have been tens of thousands of gay marriages and marriage is legal in almost 20 states and more countries than I can count. Legislation allowing polygamy? Zero. Proposing it? Zero. At best, there are a few more crackpots than there was 10 years ago.

    Also, can you really blame they gays for all the surrogate parenting in the USA? Where are the numbers behind that statement?

  19. Calling marriage a “fundamental right” didn’t originate there with the 10th. As you allude, it comes from the language of the 1967 Loving v Virginia case on interracial marriage, in turn citing the 1942 Skinner v Oklahoma eugenics case; but while procreation was addressed in the Skinner case, it was not discussed in the ruling of Loving. As such, it is not the use of this language that would render the ruling suspect.

    Additionally, the SCOTUS has addressed bans on polygamy previously and upheld them. It is almost certain that there will be a court challenge to the polygamy bans in the next few years, but (unless Scalia is feeling really pissy afterward over how the gay marriage cases go) it’s also almost certain to fail. If nothing else, current political support for it is miniscule, even lower than 1980s support for gay marriage; a federal amendment to ban polygamy could pass lightning-quick today, aside from delays from fighting over whether or not its language would distinguish straight marriage and gay marriage.

  20. I agree that the babies-on-order thing is horrid. Horrid! I also see my sister and her partner (since they live in New York State, they are legally married) adopting out of the foster system. They used to say that they didn’t want to adopt anyone starting after infancy because attachment issues are so important and form so early — but that was easier in the abstract. Now that they are getting all these calls from social services involving specific children with names and faces, well it becomes a whole lot harder. And what’s going to happen to this six-year-old who needs a family? So now they’re thinking hard about how many children they can responsibly parent well. Right now their household has a baby and an 18-year-old who will be with them as she transitions to adulthood. And that seems 180 degrees away from design-to-order children.

  21. I have great admiration for your sister and her partner! There are so many children who need love and care in a “forever” home.

  22. Rep. Hamilton, you are free to choose not to engage in an ongoing discussion (as you note below), but that does nothing to validate your reasoning on the issue of LGBT rights.

    First, the people who predicted a slippery slope are right. The push to legalize polygamy has already begun.

    I’m aware of no such push here in Canada, where civil marriage has been legal for same-sex couples for nearly a decade. And, in any event, polygamy is a completely different issue with an entirely different set of arguments, both for and against it. Those who support polygamy may well try to employ some of the same reasoning as those who have been pushing for the legalization of same-sex civil marriage, but such argumentation will be entirely insufficient to win their case.

    Second, the use of women and children as breeders and chattel to further the fantasy of gay marriage is already well established.

    While this is true, and profoundly problematic, it is completely unrelated to same-sex relationships per se. The approach of artificial insemination and surrogacy as means of overcoming reproductive difficulties is used by vastly more heterosexual than homosexual couples. It is an issue in its own right, and should be approached as such. (And, for the record, you and I are probably not in complete disaccord on this issue.)

    Third, the attacks on religious freedom and even in some instances, freedom of speech are going apace.

    To the extent that “religious freedom” is used as a smokescreen to support intolerance and discrimination, it must be confronted and opposed. There must be reasonable limits on constitutional freedoms. LGBT people have civil rights too, and if it’s a choice between protecting their rights and protecting the “rights” of those who choose to act upon an irrational animus towards them, I am firmly on the side of the oppressed. And religion, especially the Christian faith, is no way, shape or form threatened in North America; any claim to the contrary is specious at best.

    Fourth, the use of our public schools to indoctrinate young children in what amounts to sexual identity confusion is going right along.

    Schools are addressing issues that had never been appropriately dealt with in the past. “Sexual identity confusion” has always been an issue for a very small minority of the population. In the past, the psychological and social pain of such confusion had to be borne in silence, or would result in tremendous, often violent, social opprobrium. Increasingly today, those having to deal with a sexual nature that is different from the norm are being offered support and empathy. That can hardly be characterized as a bad thing!

    Bottom line: none of your reasoning for opposing the legalization of same-sex civil marriage has any rational validity.

  23. I just finished it also. Too much standing boredom, but the crux of the holding seems to be that (1) people who wish to marry are seeking to exercise a “fundamental right”; (2) OK law denying gay couples a marriage license impinges on this fundamental right; (3) a prohibition on a fundamental right must be narrowly tailored to achieve the desired end (which seems to be promoting the procreative potential of straight marriages); and (4) banning all gay couples from marrying each other does not narrowly serve the goal of promoting the procreative potential of straight couples.

    #1 is settled law. #2 is patent. #3 is settled law and #4 is the only reasonable conclusion to the question.

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