January 18, 2014
Tulsa County Court Clerk Sally Howe Smith is asking the Tenth Circuit Court of Appeals to fast-track the Bishop case, challenging Oklahoma’s same-sex marriage ban. Federal District Court Judge Terence Kern struck down the ban last Tuesday, and the Tulsa County Clerk filed her notice of appeal days later.
The request was filed shortly after Utah officials asked for a ten-day extension to file its opening brief in its own attempt to fight off a challenge to its same-sex marriage ban. The Utah request discussed the possibility of putting the two Tenth Circuit cases on the same track and the same three-judge panel, and the Tulsa County Clerk’s motion echoes that sentiment.
The Oklahoma case, the brief suggests, “raises similar issues to those presented in the Kitchen appeal; thus expediting the briefing schedule in this appeal, assigning this case to the same panel that will consider the merits of the Kitchen appeal, and permitting the joint filing of amicus briefs in both appeals will promote efficiency for this Court and the parties.” (The Utah request had noted that “the Court may want to place the Utah and Oklahoma appeals on similar briefing and argument tracks to conserve judicial resources and the resources of amici who will have the same interests in both matters.”)
The filing argues that both appeals raise issues about whether Baker v. Nelson is binding, whether Windsor was a federalism decision or not, and other questions.
The county court clerk “does not request a formal consolidation with the Kitchen appeal because it would not be feasible for her to comply with the already-established briefing schedule in that case, which would require her to file an opening brief by January 27, 2014,” the filing says, although it seems possible that if the time is extended in the Utah case, Oklahoma would have enough time.
As we reported previously, the Tenth Circuit’s March calendar from March 17-20 has been filled out, and Kitchen is not yet scheduled. The Tenth Circuit’s website says hearings in March will begin on the 17th and end on the 21st. The Tenth Circuit has previously cautioned against delaying the Utah appeal.
Thanks to Kathleen Perrin for this filing
For more information on Bishop v. United States from The Civil Rights Litigation Clearinghouse, click here.
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