2014-APR-17: Hearings held by 3-judge panel of the U.S. 10th Circuit Court of Appeals in theBishop v. Smith case:
Back in 2013-JUN, the U.S. Supreme Court issued its ruling in Windsor v. United States. It declared Section 3 of the federal Defense of Marriage Act (DOMA)
to be unconstitutional. This was the act that had denied access by same-sex married couples to the 1,138 federal marriage protections and benefits. The majority ruling contained some arguments that gave support to the principle of marriage equality. This would allow loving committed couples whether opposite-sex or same-sex to marry the person that they love.
Windsor triggered subsequent lawsuits in many dozens of states. In the Oklahoma case, it breathed new life into a nine-year old lawsuit. By 2014-APR, from among the approximately 70 cases before state courts and federal District Courts, eight judges had issued rulings. All eight legalized marriage equality in their state. One of them was District Court Judge Terence Kern in Oklahoma. However, their decisions were all stayed pending appeal to higher courts.
A three judge panel, randomly selected from all of the judges of the 10th Circuit Court of Appeals, held hearings for the Utah case Kitchen et al v. Herbert et al on APR-10. The same panel held hearings seven days later in the very similar Oklahomacase: Bishop v. Smith (a.k.a. Bishop v. Oklahoma). In both states' cases, a federal District Court judge had declared a state Constitutional amendment to ban same-sex marriages to be void and unenforceable. Stays of their decisions have been issued so that same-sex couples cannot not marry in either state pending a Court of Appeals ruling.
Just before the hearing, plaintiff Sharon Baldwin in the Bishop v. Oklahoma case said that:
"Ours is the longest-running marriage equality case in the country."
Commenting on the Freedom to Marry blog the day after the hearing, she said:
"I think we were struck by how, frankly, it's the same old arguments they've been using all along that have been so unsuccessful. ... They make it sound as though there are a limited number of marriage licenses and if they start handing out marriage licenses willy-nilly to same-sex couples who can't have a child, then what is that going to do to procreation? Well, it's not going to do anything to procreation. People who still want to have children will still have children." 1
The Huffington Post suggests that U.S. Circuit Judge Jerome Holmes may be the swing vote on both the Utah and Oklahoma cases. 1
An interesting verbal exchange occurred between Circuit Court Judge Holmes and lawyer Jim Campbell who is representing defendant Sally Howe Smith, the Tulsa County Clerk. It penetrated immediately to the core of the conflict over marriage equality. That is, the status of the 2004 amendment to the state Constitution compared to the status of the equal protection and due process clauses of the 14th amendment of the U.S. Constitution. If they are in conflict, which amendment rules?
Circuit Court Holmes asked: "The state cannot define marriage in any way that would trample constitutional rights, right?"
Referring to the voters' passage of the 2004 amendment to the state constitution, Lawyer Campbell responded that the court must defer to the democratic process if there is a rational basis for the state to deny marriage to same-sex couples. He said:
"The natural, procreative potential of opposite-sex couples distinguishes that group from same-sex couples." 2
If procreation is considered to be a criteria by which marriage is to be denied, then it could be argued that infertile opposite-sex couples should be denied access to marriage. After all, they have no "natural procreative potential" by themselves. In the same way as for same-sex couples, they have to resort to adoption, or a surrogate, or to assistance from a fertility clinic to conceive via artificial insemination or in-vitro fertilization. Similarly, elderly opposite-sex couples who are infertile because of age or erectile dysfunction, and perhaps even opposite-sex couples who have no intention of procreating should also be banned from marriage. This path would be a dangerous one to go down.
The Huffington Post said that during the Utah hearing of the Utah Case, Circuit Court Judge:
"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. ... 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." 2
That is, the panel's decision will depend upon the level of scrutiny that same-sex marriages should receive. Unfortunately, the U.S. Supreme Court has never ruled on this specific matter.
Plaintiff Sharon Baldwin told reporters outside the courthouse that:
"We believe that history and justice are on our side, and that is something that no amount of tradition can overcome." 2
Lawyer for the defendant, Jim Campbell was asked how well he thought the hearing went for his side. He responded by saying that the hearing went well, but that he doesn't make predictions. He wisely said:
"I don't play the game of reading judges," Campbell said. "It's a dangerous game." 2
2014-JUL-25: Three-judge panel of the U.S. 10th Circuit Court of Appeals issued their ruling:
A group of three judges from the 10th Circuit Court -- the same judges who ruled in an almost identical case in Utah on 2014-JUN-25 -- issued a ruling in the Oklahoma case. The cases in both states involved:
The topic of same-sex marriage;
An amendment to the state Constitution banning same-sex marriage that was passed about a decade previously, in 2004-NOV;
A ruling by a District Court in favor of SSM;
A majority ruling by the same three-judge panel at the same Court of Appeals in favor of SSM;
The decision was based on the conflict between the state Constitution, as amended, and the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. This is the same basis as was used in the famous case Loving vs. Virginia in 1967 that legalized interracial marriage across the U.S.
A stay by the 10th circuit so that same-sex couples cannot marry, for now.
Because the cases were so similar, it would have appeared very strange if the judges had arrived at a different conclusion.
Judges Carlos Lucero and Jerome Holmes voted to declare the ban on SSM unconstitutional. Judge Paul Kelly dissented.
Judge Lucero wrote for the majority to declare Oklahoma's ban on same-sex marriage unconstitutional:
"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. ... As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation." 3
Judge Kelly became the first judge to oppose same-sex marriage in any case since the Supreme Court ruled in late 2013-JUN that the federal government must recognize same-sex marriages that have been legally solemnized in the U.S. He said that:
"... any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court. ... 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. 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." 3
The Associated Press reported a statement issued by plaintiffs Mary Bishop and Sharon Baldwin on JUL-19. They said:
"We would like to thank the court for its time and careful consideration of our case, and we look forward to seeing Oklahoma gay and lesbian couples who love each other and want their relationships recognized by their government [to take] part fully in that right." 4
Byron Babione is a senior attorney for Alliance Defending Freedom. This is the legal group that is defending Sally Howe Smith, the Tulsa County clerk. Babione said:
"Every child deserves a mom and a dad, and the people of Oklahoma confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union."
Toby Jenkins, executive director of Oklahomans for Equality, said:
"We're excited that Oklahoma will be counted among the places where all of its citizens are treated equally."
There is an interesting complexity in this case that has created mass confusion:
The office of Governor Mary Fallin (R) said that the case will be appealed.
The Attorney General, Scott Pruitt (R), has announced that he plans to appeal the case to the U.S. Supreme Court. 5
But neither the Governor or the Attorney General of Oklahoma are defendants in the case. Thus it would seem that neither can appeal the case. The sole defendant is the Tulsa County Court Clerk, Sally Howe Smith. It is her decision whether or not to appeal the case. She could appeal the case to the full Court of Appeals, or directly to the U.S. Supreme Court.
Chris Casteel of the Oklahoman comments:
More developments are certain in this lawsuit, if and
when the case is appealed to the U.S. Supreme Court.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.