Same-sex marriage in Oklahoma

Same-sex marriage has been legally recognized in Oklahoma since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, following the U.S. Supreme Court's refusal to review the case that found the ban unconstitutional, the federal Tenth Circuit Court of Appeals ordered the state to recognize same-sex marriage.

On January 14, 2014, Judge Terence C. Kern, of the United States District Court for the Northern District of Oklahoma, declared Question 711, which banned the recognition and performance of same-sex marriage, unconstitutional. The case, Bishop v. United States (formerly Bishop v. Oklahoma), was stayed pending appeal.^[1]

On July 18, 2014, a panel of the Tenth Circuit upheld Kern's ruling overturning Oklahoma's same-sex marriage ban. However, the panel put its ruling on hold pending disposition of petition for certiorari by the U.S. Supreme Court. On October 6, 2014, the U.S. Supreme Court rejected the request for review, leaving the Tenth Circuit Court's ruling in place. The Oklahoma Government responded by implementing the circuit court's ruling, recognizing same-sex marriage in the state.

Marriage

Non-binding resolutions

In May 2012, the Oklahoma Senate passed SCR 62, a non-binding resolution reaffirming marriage between one man and one woman. It passed 40-4, with 4 senators absent from the vote.^[2]

In April 2013, the Oklahoma House of Representatives passed HCR 1009, a non-binding resolution reaffirming marriage between one man and one woman, and urging the Supreme Court to uphold the Defense of Marriage Act and the right of states to regulate marriage. It passed 84-0, with 71 Republicans and 13 Democrats voting yes, while 16 Democrats walked out of the chamber instead of voting in protest. Republican John Trebilcock was also absent of the vote. The Oklahoma Senate later that month approved the non-binding resolution.^[3]

Statute

In 1975, the Oklahoma state legislature passed its first statute defining marriage as between one man and one woman.^[4]

In 1996, the Oklahoma state legislature passed its own Defense of Marriage act, which defined marriage as between one man and one woman and prohibited same-sex marriages from other states from being recognized in Oklahoma.^[5]

Constitution

In April 2004, the Oklahoma Senate, by a vote of 38 to 7, and the Oklahoma House, by a vote of 92 to 4, approved of a constitutional ban on same-sex marriage. On November 2, 2004, Oklahoma voters approved Oklahoma Question 711, a constitutional amendment which bans same-sex marriage and any "legal incidents thereof be conferred upon unmarried couples or groups".^[6][7][8]

Cheyenne and Arapaho Tribes

Three same-sex couples have been issued licenses through the Cheyenne and Arapaho Tribes, a sovereign nation within the borders of Oklahoma.^[9]

Bishop v. United States

On November 3, 2004, the day after Oklahoma voters overwhelmingly approved a constitutional amendment banning same-sex marriage, two lesbian couples, Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips,^[10] filed a challenge in federal court in Tulsa. The first couple was denied a marriage license by the Court Clerk for Tulsa County, Sally Howe Smith. The latter couple was married in Canada in 2005 and again in California in 2008. They were represented by Holladay and Chilton, an Oklahoma City law firm. County Clerk Smith was represented by the county's District Attorney and the Alliance Defending Freedom, a non-profit Christian advocacy organization. The case was originally Bishop v. United States and later Bishop v. Oklahoma when the part of the suit that named the federal government as a defendant was dismissed.

District Court decision

On January 14, 2014, U.S. District Court Judge Terence C. Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. He stayed enforcement of his judgement pending appeal.^[11] Kern wrote that the U.S. Supreme Court's dismissal of a similar case, Baker v. Nelson, in 1972 was not binding precedent because "there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question". He found that two of the plaintiffs, Barton and Phillips, lacked standing to challenge Section 2 of the federal Defense of Marriage Act because the federal officials they named as defendants had no responsibility for its enforcement and the record did not show that Oklahoma officials had failed to recognize Barton and Phillips' marriage in other jurisdictions. He noted that the couple "have played an important role in the overall legal process leading to invalidation of Section 3 of DOMA" and praised them and their attorneys "for their foresight, courage, and perseverance.^[12]

The Court agreed with the Bishop and Baldwin that Part A of the Oklahoma constitutional amendment banning same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court applied rational basis review and found the state's justifications inadequate, including encouraging responsible procreation, optimal child-rearing, and the impact on the institution of marriage. It said that part of the constitutional amendment was "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."^[13]

Of the Supreme Court's jurisprudence on the issue of sexual orientation discrimination and equal protection, the decision said:^[12][13]

The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.

Response

Governor Mary Fallin said: "I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government."^[14] Attorney General Scott Pruitt called the decision "troubling" and said that the Supreme Court would have to decide the constitutionality of state bans on same-sex marriage.^[15]

Appeal

The defendant, County Clerk Smith, filed a notice of appeal with the Tenth Circuit Court of Appeals on January 16^[16] and asked the Court to expedite the appeals process and hear the case along with a similar Utah case, Kitchen v. Herbert.^[17] The same 3-judge panel of the Tenth Circuit that heard oral arguments in Kitchen on April 10 heard oral arguments in Bishop on April 17.^[18] On July 18, the court upheld the District Court's ruling in a 2-1 decision, concluding that Oklahoma's same-sex marriage ban violates clauses of the United States Constitution, though it immediately stayed its ruling pending disposition of petition for review by the United States Supreme Court.^[19][20] Stanford Law Professor Jeffrey L. Fisher, an experienced Supreme Court litigator, joined as lead counsel for those challenging Oklahoma's denial of marriage rights to same-sex couples in August.^[21] The Supreme Court rejected Oklahoma's appeal on October 6, 2014 and the Tenth Circuit Court's ruling subsequently went into effect, thus legalizing same-sex marriage in Oklahoma. Governor Mary Fallin sharply criticized the Supreme Court's action, but announced that the state would comply and begin licensing and recognizing same-sex marriages.^[22][23]

Public opinion

According to an article in the Tulsa World, a June 2014 survey by SoonerPoll found that 23.3% of likely registered Oklahoman voters supported same-sex marriage, while 66.2% oppose, and 11% had no opinion on the issue. The same article also found that a Bloomberg News National Poll taken between May 31 and June 3, 2013, found that 52% of the nation supported allowing same-sex couples to marry.^[24]

See also

• LGBT rights in Oklahoma
• Same-sex marriage in the Tenth Circuit

References

1. Federal lawsuit renewed against Oklahoma's constitutional ban of same-sex marriage Accessed December 11, 2010
2. Dhanagon, Christine (May 21, 2012). "Oklahoma Senate defends marriage". LifeSiteNews. Retrieved October 3, 2014.
3. HCR 1009
4. SAME-SEX MARRIAGE LAWS IN THE UNITED STATES (Current as of December 31, 2013)
5. Section 3.1 - Marriage Between Persons of Same Gender Not Recognized
6. "Oklahoma Marriage/Relationship Recognition Law". Hrc.org. March 16, 2007. Retrieved November 2, 2013.
7. CNN: Ballot Measures, accessed May 15, 2011
8. US judge strikes down Oklahoma gay marriage ban as 'arbitrary, irrational' (+video)
9. Heide Brandes (November 1, 2013). "Oklahoma gay couple marry under Native American law". Reuters. Retrieved November 4, 2013.
10. Lavers, Michael K. (January 14, 2014). "Federal judge strikes down Oklahoma same-sex marriage ban". Washington Blade. Retrieved January 14, 2014.
11. Harper, David (January 11, 2014). "Oklahoma ban on gay marriage ruled unconstitutional". Tulsa World. Retrieved January 14, 2014.
12. Bishop v. United States, January 14, 2014
13. Geidner, Chris (January 14, 2014). "Oklahoma Ban On Same-Sex Marriages Is Unconstitutional, Federal Judge Rules". Buzz Feed. Retrieved January 15, 2014.
14. Peralta, Eyder (January 14, 2014). "Federal Judge Strikes Down Oklahoma Ban On Gay Marriage". NPR. Retrieved January 14, 2014.
15. Dunn, Tyler (January 14, 2014). "US District Judge rules Oklahoma ban on gay marriage unconstitutional, ban in effect pending appeal". KHRH Tulsa. Retrieved January 14, 2014.
16. Averill, Mike (January 16, 2014). "Appeal filed in Oklahoma same-sex marriage ruling". Tulsa World. Retrieved January 21, 2014.
17. Sanchez, Juan (January 21, 2014). "Court Clerk Requests Expedition of Gay Marriage Appeal". KTUL. Retrieved January 21, 2014.
18. Eaton, Kristi (April 17, 2014). "Judge seen as swing vote in Oklahoma gay marriage case sharply questions attorney about ban". Minneapolis Star Tribune. Retrieved April 18, 2014.
19. Murphy, Sean; Riccardi, Nicholas (July 18, 2014). "US appeals court tosses Oklahoma gay marriage ban". AP News. Retrieved July 18, 2014.
20. Associated Press (July 18, 2014). "Oklahoma same-sex marriages ruled constitutional for second time". The Guardian. Retrieved July 19, 2014.
21. Barnes, Robert (August 27, 2014). "Winning plaintiffs press Supreme Court to take up same-sex marriage cases". Washington Post. Retrieved August 29, 2014.
22. McCarthy, Tom (October 6, 2014). "Oklahoma governor sharply condemns gay marriage move as state complies with decision". The Guardian (UK). Retrieved October 7, 2014.
23. Casteel, Chris (October 6, 2014). "Same-sex marriage now is legal in Oklahoma". The Oklahoman. Retrieved November 29, 2014.
24. Opposition strong to gay marriage, according to poll

External links

• Tenth Circuit slip opinion