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US appeals court tosses Oklahoma gay marriage ban

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By SEAN MURPHY and NICHOLAS RICCARDI
Associated Press

OKLAHOMA CITY (AP) - A federal appeals court ruled Friday that Oklahoma must allow gay couples to wed, prompting a fast, angry response from leaders of a state that has vehemently fought policy changes brought on from outside its borders.

A three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver upheld a federal judge's ruling striking down Oklahoma's gay marriage ban, which had been approved by more than 75 percent of voters in 2004. Friday's decision marks the second time the federal appeals court has found the U.S. Constitution protects same-sex marriage.

The court put its 2-1 ruling on hold pending an appeal, meaning same-sex couples won't be allowed to marry in Oklahoma for now.

"Today's ruling is another instance of federal courts ignoring the will of the people and trampling on the right of states to govern themselves," Gov. Mary Fallin said. "In this case, two judges have acted to overturn a law supported by Oklahomans."

She said she hoped the decision was overturned and pledged to "fight back against our federal government when it seeks to ignore or change laws written and supported by Oklahomans."

Oklahoma has made a habit in recent years of battling federal laws and policies, with the state suing over health care reform, Environmental Protection Agency requirements and the Dodd-Frank financial reform law. The state last year also refused to process benefits for same-sex couples in the National Guard, instead ordering that those workers' benefits be processed at federal facilities.

Friday's decision comes after the same three-judge panel ruled in June that Utah's ban on same-sex marriage violates the Constitution. That was the first time an appellate court determined that last year's U.S. Supreme Court decision striking down the Defense of Marriage Act meant states couldn't deny gays the ability to wed. That ruling also is on hold, and Utah's attorney general has said he plans to appeal to the U.S. Supreme Court.

Sharon Baldwin and Mary Bishop filed the Oklahoma lawsuit in 2004 shortly after 76 percent of Oklahoma voters approved a constitutional ban on gay marriage. After an appeals court ruled in 2009 that the couple lacked standing, they filed an amended complaint listing as the defendant the Tulsa County Court Clerk, since that is the person who issues marriage licenses.

A second claim, by Gay Phillips and Susan Barton, who had a civil union in Vermont and were legally wed in Canada, challenges a section of the Defense of Marriage Act that says individual states don't have to recognize same-sex marriages performed in other jurisdictions.

"We are so grateful that the 10th Circuit understands what more and more people across this country are beginning to realize - that gay and lesbian people are citizens who should enjoy the same rights as straight people under the law," Baldwin and Bishop said in a statement.

Attorneys representing the clerk said they were considering their options. They noted the panel's dissenting judge argued that changing the definition of marriage should belong to Oklahoma residents, not a federal court.

"Every child deserves a mom and a dad, and the people of Oklahoma confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union," said Byron Babione, senior attorney for the Alliance Defending Freedom, which is defending the county clerk.

Proponents of gay marriage quickly planned rallies Friday in Oklahoma City and Tulsa to celebrate.

"We're living in a time now that's a completely different Oklahoma than the one I was raised in," said Troy Stevenson, 36, who recently returned to head up The Equality Network.

He said he believes the ruling in a conservative state like Oklahoma, which is often referred to as the buckle of the Bible Belt, has a special significance.

Don Holladay, an attorney for Bishop and Baldwin, said the ruling bring the couple joy but is more than that. "I think Oklahoma should be proud of itself," he said.

In their ruling Friday, the judges dealt less with the constitutionality of same-sex marriages and more on arcane legal matters.

However, Justice Carlos Lucero reiterated that the court has already found that same-sex couples have a fundamental right to marry that cannot be breached by the state's concern with keeping the focus of marriage on the procreative potential of man-woman unions.

Oklahoma's ban, he wrote, "denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions."

The two decisions give increased momentum to a cause that has compiled a string of lower court victories. More than 20 courts have issued rulings siding with gay marriage advocates since the Supreme Court's DOMA ruling. The rulings have come in 17 states, with Florida being the latest.

On Friday, Colorado's state Supreme Court ordered Denver's clerk to stop issuing marriage licenses to gay couples while the state's ban against the unions remains in place. The clerk was one of three in the state who began issuing the licenses recently. The ruling noted that the judge who ruled the ban unconstitutional stayed his decision pending appeal.

In 2004, more than a dozen states passed bans outlawing gay marriage, including Oklahoma and Utah. Now same-sex marriage is legal in 19 states and the District of Columbia, and recent polls show a majority of Americans support it.

___

Riccardi reported from Denver. Associated Press writer Tim Talley contributed to this report.

Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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