DENVER — A judge in Colorado who will play a pivotal role deciding whether gays should be allowed to wed in the United States asked pointed questions Thursday about whether Oklahoma can legally ban the unions.
U.S. Circuit Judge Jerome Holmes is seen as the swing vote on the three-judge panel that heard the Oklahoma appeal and a similar case from Utah last week.
The two cases are the first to reach an appellate court since the U.S. Supreme Court last year struck down the federal Defense of Marriage Act. Since then, gay rights lawyers have successfully convinced eight federal judges that the ruling means courts must strike down laws against gay marriage because they deprive same-sex couples of a fundamental right.
During Thursday's hearing before the 10th U.S. Circuit Court of Appeals panel, Holmes suggested he interpreted the Supreme Court's ruling the same way.
"The state cannot define marriage in any way that would trample constitutional rights, right?" Holmes asked Jim Campbell, the attorney representing the defendant in the case, the Tulsa County clerk.
Campbell, however, contended the court must defer to the democratic process if there is a rational reason for the state to choose who can marry and who cannot.
"The natural, procreative potential of opposite-sex couples distinguishes that group from same-sex couples," Campbell said.
With one judge strongly hinting he supported the lower court rulings that struck down the Oklahoma and Utah bans, and another appearing skeptical of them, all eyes were on Holmes to see where the panel might come down. Holmes last week said that if the yardstick is whether the state has a rational reason to single out gay couples, the same-sex plaintiffs would lose. But if the standard was any higher, they would win.