Richard Wolf

USA TODAY

A federal appeals court in Denver struck down a second state ban on same-sex marriage Friday, ruling that Oklahoma -- like Utah before it - cannot prohibit gays and lesbians from marrying.

The decision by a three-judge panel in the 10-year-old lawsuit is likely to give the Supreme Court a choice: It can use either Utah or Oklahoma as its foil for judging the constitutionality of all such bans, or it can wait for more cases headed its way from Virginia and elsewhere.

The U.S. Court of Appeals for the 10th Circuit also has jurisdiction over Colorado, Kansas and Wyoming, as well as New Mexico, where same-sex couples already can marry. Its precedent applies to all those states, but the court blocked its ruling from taking effect while Oklahoma considers an appeal.

As was the case with Utah's appeal, the panel split 2-1, with Judges Carlos Lucero and Jerome Holmes voting to strike down the ban and Judge Paul Kelly dissenting.

"Oklahoma's ban on same-sex marriage sweeps too broadly in that it 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," Lucero, an appointee of President Bill Clinton, wrote. "As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation."

In his dissent, Kelly -- named to the bench by President George H.W. Bush -- said "any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court." He is the first federal judge to oppose same-sex marriage in any case since the Supreme Court ruled last June that the federal government must recognize such marriages.

"At a time when vigorous public debate is defining policies concerning sexual orientation, this court has intervened with a view of marriage ostensibly driven by the Constitution," Kelly said. "Unfortunately, this approach short-circuits the healthy political processes leading to a rough consensus on matters of sexual autonomy, and marginalizes those of good faith who draw the line short of same-gender marriage."

The panel's two rulings in three weeks represent the most important of more than 20 decisions that have been rendered against state gay marriage bans since the Supreme Court's landmark decisions, which struck down a key part of the federal Defense of Marriage Act and cleared the way for same-sex marriages in California.

In both 10th Circuit cases -- as in most federal district and state court rulings that followed the high court decisions -- the judges said gays and lesbians have a constitutional right to marriage that states cannot take away.

The lead plaintiffs in the Oklahoma case, originally filed in December 2004, are Mary Bishop and Sharon Baldwin of Tulsa. They were joined by Gay Phillips and Susan Barton, who were married in Canada and California but want to be recognized as married in Oklahoma.

The panel agreed with a federal district courrt judge in Oklahoma that the second couple lacked standing to sue -- but it noted that its ruling last month in Utah included a finding that the state must recognize marriages from other states.

Other appellate court cases involving marriage bans in Idaho, Indiana, Kentucky, Michigan, Nevada, Ohio, Tennessee and Wisconsin will be argued in August and September. Appeals also are pending from Arkansas, Texas and Colorado.

Byron Babione, senior counsel at Alliance Defending Freedom, which represented the Oklahoma county clerk sued by the gay couples, criticized the ruling.

"Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court," he said.

Since the Supreme Court decisions, six states have legalized gay marriages by legislative action or court order — New Jersey, New Mexico, Illinois, Hawaii and, most recently, Pennsylvania and Oregon. That brings to 19 the number of states where same-sex marriage is legal, along with the District of Columbia.

More than 70 lawsuits are pending in all 31 states that still have prohibitions.