DENVER (AP) — 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.
During Thursday's hearing, Holmes asked the attorney arguing Oklahoma's case: "The state cannot define marriage in any way that would trample constitutional rights, right?"
There was extra uncertainty in the case, however, because the judges argued among themselves about whether the plaintiffs sued the correct people and had legal standing for the court to intervene.
James Campbell, an attorney representing Oklahoma, argued that the court should defer to the decision of the state's voters in defining marriage. He also noted that the "natural procreative potential" of opposite-sex couples distinguishes them from same-sex couples.
Another judge on the panel has indicated he believes gay marriage bans are unconstitutional, while the third has hinted he would uphold the bans. Last week, Holmes sharply questioned both sides in the Utah case.
The two cases are the first to make it to an appeals court since the U.S. Supreme Court shook up the legal landscape by striking down the federal Defense of Marriage Act last year. Since then, eight federal judges have struck down bans on same sex marriage or in recognizing such unions from other states.
Legal experts say the Oklahoma and Utah cases are almost identical. The justices' decision likely will pivot on the level of deference they believe a court should give voters to deny a group of people the ability to marry.
Oklahoma voters overwhelmingly approved that state's gay marriage ban in 2004. A federal judge in January ruled that it violated the constitutional rights of gays, triggering the appeal.
It might be months before a written decision is issued. Similar appeals are working their way through four other appellate court circuits, and it is unclear which case would next reach the Supreme Court, which probably will have the final word on the issue.
Eaton reported from Oklahoma City.
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