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Oklahoma’s same-sex marriage ban ruled unconstitutional by federal appellate court

A supporter of gay marriage waves his flag during a rally at the Utah State Capitol. Oklahoma on Friday joined Utah in being the only two states whose same-sex marriage ban has been ruled against at the federal appellate level since a landmark Supreme Court ruling last year.  (AP Photo/Rick Bowmer)

The same-sex marriage movement suffered setbacks in two states on Friday, while enjoying an advance in one.

A federal appeals court ruled Oklahoma’s same-sex marriage ban unconstitutional, affirming a federal judge’s January decision while keeping the state’s ban in place for now. Meanwhile, the Colorado Supreme Court ordered the Denver County clerk to stop issuing marriage licenses to same-sex couples and U.S. Supreme Court Justice Sonia Sotomayor ruled that the state of Utah may continue to deny marriage benefits to more than 1,000 married same-sex couples.

The Oklahoma ruling represents a safe advance for the movement, which has enjoyed a string of legal victories since the Supreme Court struck part of the Defense of Marriage Act last summer, thereby granting federal recognition of same-sex marriages. In its Friday ruling, the 10th Circuit Court of Appeals affirmed a January decision in which U.S. District Judge Terence Kern struck Oklahoma’s ban, writing at the time that the constitutional guarantee of equal protection under the law “is not a scarce commodity to be meted out begrudgingly or in short portions.” In a survey last year, Gallup found that 3.4 percent of Oklahomans identified as lesbian, gay, bisexual, or transgender.

The 2-to-1 ruling comes from the same panel that last month affirmed a similar decision striking Utah’s ban. That Utah ruling represented the first time an appellate court applied the Supreme Court DOMA decision to state marriage bans. In both cases, the panel stayed its own ruling, pending the state’s appeal. Oklahoma may now either ask the circuit court to reconsider the case “en banc” — i.e. before the full bench — or it can opt to appeal directly to the Supreme Court as Utah has, according to the Human Rights Campaign, a pro-gay marriage group.

The Supreme Court weighed in, albeit tepidly, on Utah’s ongoing fight over same-sex marriage. In a two-sentence Friday order, Justice Sonia Sotomayor put a lower court’s May decision on hold pending appeal, thereby allowing the state of Utah to continue denying marriage benefits to more than 1,000 same-sex couples wed during a 17-day window between late December and early January.

In a statement, Utah Attorney General Sean D. Reyes called the ruling “necessary to the overall process” while acknowledging the limbo it puts the same-sex couples in.

“While obtaining a clear and final decision by the highest court on all related issues is in the best interest of Utahns, we recognize that it does not make the waiting and uncertainty during that process any easier. Our internal team of attorneys have diverse personal beliefs about the issues in question, but unite in their dedication to seek final clarity and uphold Utah law,” he said.

In Colorado, the state Supreme Court ordered the Denver County clerk to stop issuing marriage licenses to same-sex couples. Shortly after the 10th Circuit’s Utah ruling last month, clerks in the state—which is also part of the 10th Circuit—began allowing same-sex marriages.

Niraj Chokshi is a general assignment reporter for The Washington Post.

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