OKLAHOMA CITY — In less than a month, two federal judges have struck down state bans on gay marriage for the same reason, concluding that they violate the Constitution’s promise of equal treatment under the law.
Although that idea has been the heart of the gay marriage debate for years, the decisions in deeply conservative Oklahoma and Utah offer new momentum for litigants pressing the same argument in dozens of other cases across the country. And experts say the rulings could represent an emerging legal consensus that will carry the issue back to the Supreme Court.
The judge who issued Tuesday’s decision in Oklahoma “isn’t stepping out on his own,” said Douglas NeJaime, a professor of law at the University of California, Irvine. “He’s doing what a colleague in another court did not long ago.”
The more judges who issue such rulings, the more authority other judges feel to render similar decisions, said NeJaime, who expects decisions soon from federal courts in Virginia and Pennsylvania.
An attorney for the plaintiffs in the Oklahoma case said the most important question is whether the Supreme Court agrees to decide the legality of gay marriage bans now or whether the justices bide their time.
“Will they take these two decisions or will they wait for more?” asked Don Holladay.
Litigants in more than three dozen cases are challenging gay marriage bans in 20 separate states.
A federal judge in Ohio last month ordered state authorities to recognize gay marriages on death certificates and signaled that although his ruling is a narrow one, it would undoubtedly incite more lawsuits challenging the state’s ban.
Ian James, co-founder and executive director of FreedomOhio, a civil-rights group collecting signatures to put the issue before voters, has also been working on a lawsuit to have that state’s gay marriage ban struck down.
James and his husband, who were married in Toronto in 2003, started working on their lawsuit long before the rulings in Utah, Oklahoma and Ohio. But those decisions have given their work renewed energy.
“Every step along the way actually helps to increase support because people just see the inequality and how we’re treating people differently,” he said.
Shannon Fauver, who represents two men seeking to have their marriage in Canada recognized in Kentucky, said the Oklahoma and Utah rulings do not directly affect the Kentucky cases, but he added: “Realistically, all the other judges are looking to see what’s going on. It is a sea change that all the states are going this way.”