Tenth Circuit Rules Bans on Marriage Equality Unconstitutional

by Ianthe Metzger

U.S. Court of Appeals for the Tenth Circuit strikes down bans on marriage for same-sex couples; 17th consecutive federal court ruling in favor of marriage equality


WASHINGTON – Today the U.S. Court of Appeals for the Tenth Circuit issued a historic ruling affirming the January 2014 decision from U.S. District Judge Terence Kern in Bishop v. Smith that Oklahoma’s constitutional amendment barring marriage for same-sex couples violates the U.S. Constitution.  The 2-1 decision was authored by Judge Carlos Lucero, who was joined by Judge Jerome Holmes – a President George W. Bush appointee.

“For years, the plaintiffs in this case and their attorneys have argued on behalf of equality and justice in the court room. Today’s victory brings us ever closer to the day when all committed and loving gay and lesbian couples have the right to marry the person they love, regardless of what state they call home,” said Human Rights Campaign President Chad Griffin.  “There’s no question that the U.S. Supreme Court must take up the issue to decide once and for all whether or not states can continue to treat committed and loving gay and lesbian couples as second class citizens.”

On June 25th, the same three-judge panel of the Tenth Circuit issued a similar ruling in a case out of Utah – Kitchen v. Herbert – in which the court struck down Utah’s marriage ban.

The state of Oklahoma now has the option to request an en banc appeal before the full bench of the Tenth Circuit, which decides whether or not to grant that request. It may also bypass an en banc session and appeal directly to the U.S. Supreme Court.  Earlier this month the Utah attorney general announced the state would appeal the Tenth Circuit’s ruling in the Kitchen case to the Supreme Court.

In November of 2004, two couples – Mary Bishop & Sharon Baldwin and Gay Phillips & Susan Barton – sued the state of Oklahoma for enforcing an amendment to the Oklahoma Constitution that prohibits the state from performing or recognizing marriages between same-sex couples.  The suit also initially challenged the federal Defense of Marriage Act (DOMA), which was later mooted by the U.S. Supreme Court in United States v. Windsor, which struck down key sections of the law.  

Two days after Judge Kern’s January 14, 2014 ruling in favor of the plaintiffs, the state filed an appeal to the U.S. Court of Appeals for the Tenth Circuit.  The Bishop case in Oklahoma was scheduled for appeal with a similar marriage case – Kitchen v. Herbert out of Utah. The appeals on both cases were heard by the same three-judge panel of the Tenth Circuit, with Kitchen on April 10, 2014, and Bishop on April 17, 2014.  

Judge Paul Kelly Jr. was nominated by President George H.W. Bush and was confirmed to the Tenth Circuit in 1992.  Judge Carlos Lucero was nominated by President Bill Clinton and confirmed to the appeals court in 1995. And Judge Jerome Holmes was nominated by President George W. Bush and confirmed in 2006.  Judge Holmes was one of two judges who denied Utah’s request for a stay on same-sex marriages underway in Utah after a district judge ruled the state’s marriage ban unconstitutional. 

The plaintiffs in Bishop v. Smith are represented by attorneys from Holladay & Chilton PLLC, Jennings Cook & Teague PC, Studebaker & Worley PLLC, and Phillip Craig Bailey.

There are over 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico.  Cases from eleven other states are currently pending before five federal appeals court.  The Sixth Circuit holds the distinction of being the only federal appeals court to date that will consider marriage cases from all states within its jurisdiction.  In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in court.  Since the Supreme Court’s historic marriage rulings last year, there have been 17 consecutive federal court decisions that bans on marriage equality are unconstitutional.  These rulings have come from judges appointed by both Democrat and Republican presidents.

The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal. 

Cases pending before federal appeals courts:

·  Bostic v. Schaefer, Virginia [Arguments at the Fourth Circuit heard May 13, 2014]

·  DeLeon v. Perry, Texas [Argument date at the Fifth Circuit not set]

·  Tanco v. Haslam, Tennessee [Arguments at the Sixth Circuit set for August 6]

·  Bourke vs. Beshear, Kentucky [Arguments at the Sixth Circuit set for August 6]

·  Obergefell v. Kasich, Ohio [Arguments at the Sixth Circuit set for August 6]

·  Henry v. Himes, Ohio [Arguments at the Sixth Circuit set for August 6]

·  DeBoer v. Snyder, Michigan [Arguments at the Sixth Circuit set for August 6]

·       Wolf v. Walker, Wisconsin [Arguments at the Seventh Circuit set for August 13]

·       Baskin v. Bogan, Indiana [Arguments at the Seventh Circuit set for August 13]

·  Sevcik v. Sandoval, Nevada [Argument at the Ninth Circuit set for September 8, 2014]

·  Latta v. Otter, Idaho [Argument at the Ninth Circuit set for September 8, 2014]

·  Jackson v. Abercrombie, Hawaii [Argument at the Ninth Circuit set for September 8, 2014]

Cases petitioned to the U.S. Supreme Court:

·       Kitchen v. Herbert, Utah [Tenth Circuit struck down marriage ban June 25]

Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.  For more information on this and other marriage equality cases across the country, visit www.americansformarriageequality.org


The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.



Contact Us

To make a general inquiry, please visit our contact page. Members of the media can reach our press office at: (202) 572-8968 or email press@hrc.org.