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Same-sex marriage (SSM) in Oklahoma

Part 1: 2004 to 2014: Amendment to the state
Constitution bans SSM. A 9 year court battle in
federal court ends in a ruling by District Court.

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2004-NOV: Passage of the "Question 711," amendment to the Oklahoma Constitution that banned SSM:

Many states, including Oklahoma and Utah, held plebiscites on election day in 2004-NOV. Each involved a state constitutional amendment to ban same-sex marriage. All successfully passed with large margins.

Some of these amendments simply defined marriage as the union of one woman and one man. Others were stealth amendments that banned not only same-sex marriage but also prohibited civil unions and domestic partnerships. The latter were typically "sold" to the public as simple SSM bans, but actually prohibited any state recognition and protections of the relationships of loving, committed same-sex couples and their children.

"Question 711," the amendment to the Oklahoma Constitution, appears to be a stealth amendment. It was passed overwhelmingly by the voters by a margin of 76% to 24%.

Question 711 states:

(a.) Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

(b.) A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.

(c.) Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor. 1

(Emphasis by us)

It nay be worth noting that section "b" only bans recognition of same-sex marriages made in other states. It does not specifically ban recognition of same-sex marriages solemnized in the District of Columbia, in Canada or in another country.

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2004-NOV: The lawsuit:

Within weeks of the passage of Question 711 by the voters, two couples from Oklahoma filed a lawsuit in federal District Court in Tulsa OK. The lawsuit -- Bishop v. Oklahoma -- had two goals:

  • To to permit same-sex marriages, by repealing the Oklahoma constitutional amendment, and

  • To have parts of the federal Defense of Marriage Act (DOMA) also declared unconstitutional, particularly the clause that allows states to refuse to recognize same-sex marriages solemnized elsewhere.

One plaintiff couple is Susan Barton and Gay Phillips who were later married in California on 2008-NOV-01, while their Oklahoma lawsuit was underway. This was only a few days before Proposition 8 temporary banned same-sex marriages in California. The couple's goal in participating in the lawsuit is to have their marriage recognized in Oklahoma.

The other couple is Sharon Baldwin and Mary Bishop who have been in a committed relationship since 1997. Their goal was to be able to marry in Oklahoma. 2

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2004 to 2013: The lawsuit proceeds at a snail's pace for nine years!:

This lawsuit is an excellent example of the saying: "Justice delayed is justice denied." 3

  • 2006: The federal District Court denied the motion of the governor and the state attorney to dismiss the case. The lawsuit advanced to the 10th U.S. Circuit of Appeals.

  • 2009-AUG-11: The appeals court ruled that the defendants in the lawsuit -- the governor and attorney general -- lacked standing. The plaintiffs revised their lawsuit to replace the two defendants with the Tulsa County clerk, and restarted the lawsuit.

  • 2013-DEC: As their lawsuit passed its 9th anniversary without a definitive result, Evan Wolfson, president of Freedom to Marry, congratulated the two couples for their tenacity. He said:

    "Whatever the wisdom of a particular litigation in a particular state in the midst of a national movement for the freedom to marry, couples like Mary and Sharon who have gone the full mile to walk down the aisle attest to the undeniable fact that marriage matters, for gay couples as for non-gay." 4

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Speculation by the Webmaster:

Although many news sources have commented on the unusually long delay taken by the District Court to issue a ruling in this case, we have been unable to find any that have speculated on why the delay happened.

We are guessing that the court's decision was delayed on purpose until the climate in the U.S. in favor of same-sex marriage had reached the point where this case could be reasonably expected to receive a favorable review before the Tenth U.S. Circuit Court of Appeals. If a Court of Appeals upheld a decision of a District Court that legalized same-sex marriage, then the Attorney General's office in the state(s) involved might be very reluctant to appeal the case to the U.S. Supreme Court because of the fear that the highest court might possibly issue a ruling that legalized SSM across the entire country. It is extremely likely that no conservative state like Oklahoma or Utah would want to have that result as part of their state's heritage.

So, the Attorney General's office might not appeal the case to the Supreme Court and reluctantly accept the alternative, which would be marriage equality in their own state.

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2014-JAN-14: Federal District Court finally makes a ruling, declaring Question 711 unconstitutional:

The two couples finally experienced a degree of resolution to their lawsuit. Judge Terence Kern of the U.S. District Court for the Northern District of Oklahoma ruled that Oklahoma's state constitutional ban on same-sex marriage is unconstitutional. 5 His ruling stated:

"The Court holds that Oklahoma's constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. ... [that protection] is at the very heart of our legal system. ..."

"The Court's rationality review reveals Part A [of Question 711 to be] an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a government benefit. ... [Proponents of the state constitutional measure] purposefully [drew a line] between two groups of Oklahoma citizens -- same-sex couples desiring an Oklahoma marriage license and opposite-sex couples desiring [a] marriage license." 1

He also wrote that the state constitution:

"... intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification."

He commented that courts reviewing marriage regulations:

"... must be wary of whether 'defending' traditional marriage is a guise for impermissible discrimination against same-sex" couples. ... Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country." 6

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Oklahoma Question 711," Wikipedia, as on 2014-JAN-15, at: http://en.wikipedia.org/
  2. "Scott," "Oklahoma Women Challenge Federal Gay Marriage Ban," Gay Marriage Watch, 2009-AUG-11, at: http://purpleunions.com/
  3. The quotation has variously been identified as having originated in the writings of William Gladstone, William Penn, and the Mishnah -- an ancient Jewish writing.
  4. "Oklahoma gay marriage ban lawsuit pending 9 years," Tulsa World, 2013-DEC-15, at: http://www.tulsaworld.com/
  5. Text of Judge Kern's ruling is online at Think Progress.org, at: http://thinkprogress.org/
  6. David Harper, "Oklahoma ban on gay marriage ruled unconstitutional," Tulsa World, 2014-JAN-14, at: http://newsok.com/

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Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Oklahoma > here

Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally posted: 2014-JAN-16
Latest update: 2014-APR-14
Author: B.A. Robinson

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