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Breaking: federal judge rules Oklahoma marriage equality ban unconstitutional

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UPDATE 5:43PM ET: The ruling in Bishop v. United States (formerly Bishop v. Oklahoma) can be read here. Thanks to Kathleen Perrin and Equality Case Files for this filing.

Big news out of Oklahoma, where a federal judge has struck down the state’s marriage equality ban in an almost 10 year-old case, HRC reports on its blog:

Today U.S. District Judge Terence Kern ruled that Oklahoma’s ban on marriage equality is unconstitutional.  His ruling is stayed pending appeal, meaning marriages will not occur immediately in the Sooner State.

HRC President Chad Griffin issued the following statement:

“Judge Kern has come to the conclusion that so many have before him – that the fundamental equality of lesbian and gay couples is guaranteed by the United States Constitution.  With last year’shistoric victories at the Supreme Court guiding the way, it is clear that we are on a path to full and equal citizenship for all lesbian, gay, bisexual and transgender Americans.  Equality is not just for the coasts anymore, and today’s news from Oklahoma shows that time has come for fairness and dignity to reach every American in all 50 states.”

Two plaintiff couples, Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton, filed their case, Bishop v. Oklahoma, in the U.S. District Court for the Northern District of Oklahoma in November 2004.  Lead counsel in the case are Don Holladay and James Warner of the Oklahoma City law firm Holladay & Chilton PLLC.

The ruling comes on the heels of a year-long string of electoral, judicial and legislative victories for marriage equality.  In recent weeks both the New Mexico Supreme Court and a federal district judge in Utah have ruled in favor of marriage for lesbian and gay couples.

We’ll have more as this story develops.  For now, it’s worth noting that Oklahoma, like Utah, is under the jurisdiction of the Tenth Circuit Court of Appeals.  A federal judge in Utah invalidated that state’s equal marriage ban last month, and the appellate court has set an expedited scheduled in the appeal, with briefing to be completed by the end of next month.  With Judge Kern’s decision, it’s likely there will be two marriage equality cases before the Tenth Circuit quite soon.

For more information on Bishop v. United States from The Civil Rights Litigation Clearinghouse, click here.

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making.  Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!


  • 1. Dr. Z  |  January 14, 2014 at 2:45 pm

    Oh. My. God.

  • 2. davep  |  January 14, 2014 at 3:38 pm

    Yeah, pretty cool, huh?

  • 3. Dr. Z  |  January 14, 2014 at 5:00 pm

    I can't believe it. I moved out of Oklahoma for the tolerance of the West Coast. Now I live in Oregon and we still have a DOMA law! (And the strategy of pursuing a ballot solution is being rendered increasingly outdated by the pace of events.)

  • 4. Gregory in SLC  |  January 15, 2014 at 6:20 am

    We had a house lined up in Colorado since they "at least had Civil Unions" decided to stay in Utah 😉 (also cancelled Las Vegas New year's plans, opted to stay in Utah). It really changes your perspective and possibilities when Marriage in home state becomes (is becoming) a reality! Looking forward to Oregon in 2014! p.s. love the image…can relate!

  • 5. Anthony  |  January 14, 2014 at 2:48 pm

    God bless Justice Kennedy.

  • 6. James  |  January 14, 2014 at 2:48 pm

    I assume the state will appeal. Do we expect this to be consolidated with Kitchens vs Herbert on appeal? Or since the expedited schedule is already set for Utah, is it likely that the 10th circuit will just put this case on hold and ignore it until they've decided Utah?

    I guess what I'm really asking is if this case even matters, if the 10th will even consider it with another case already before them.

  • 7. Larry  |  January 14, 2014 at 2:51 pm

    The Oklahoma case is different in at least 1 regard. While it strikes down OK's ban on licensing same sex marriages, it leaves intact OK's ban on recognizing out of state same sex marriages (based on a standing technicality). That distinction would probably keep the cases from being consolidated. It also raises a can of worms of whether a married couple from Iowa would need to get a 2nd marriage license once they move to Oklahoma, and if that would result in bigamy (self-bigamy?) should they move back to Iowa.

  • 8. Lymis  |  January 14, 2014 at 3:15 pm

    I don't think you can be charged with bigamy if you marry your current spouse. That's come up occasionally in cases where US couples married in Canada and wanted to remarry in the US once the laws changed – and universally the answer is that as long as it's always the same person, you can (redundantly) marry the same person over and over.

    Since states have different laws, that could be different in different places, but since that sort of law is usually written specifically about straight marriages and nobody cares, it probably wouldn't be illegal. Most bigamy laws are written specifically about having a second spouse, not a second ceremony.

  • 9. Carol  |  January 14, 2014 at 5:16 pm

    The fact that the two cases don't have identical issues would not necessarily prevent consolidation. The common issue (equality) would be decided the same way in both cases, and the recognition issue of Kitchen would be decided even though the OK case didn't decide it the same way Kitchen did.

    It is wonderful that two conservative states are deciding for equality!

  • 10. bythesea  |  January 14, 2014 at 2:50 pm


  • 11. Anthony  |  January 14, 2014 at 2:54 pm

    They used rational basis plus. Kennedy needs to formalize heightened scrutiny in the next case.

  • 12. marvelmvs  |  January 14, 2014 at 3:49 pm

    It doesn't appear that the judge used anything other than ordinary rational basis to me. The analysis is very similar to that of the Utah decision. The judge is essentially saying "your reasons are great for why we should have opposite-sex marriage but doesn't say why these same-sex couples shouldn't be allowed to marry."

  • 13. Anthony  |  January 14, 2014 at 4:06 pm

    No, traditional rational basis means "Is there any rational basis for this statute?" If it was that, we would have lost. The reason Kennedy has used rational basis plus in Romer, Lawrence, and Windsor, was so we could win the case without having official heightened scrutiny, since the public would not be ready for such a revolutionary change so quickly. But now, it is all in the clear for Kennedy to declare full heightened scrutiny.

  • 14. davep  |  January 14, 2014 at 4:27 pm

    I don't think I follow your argument. While I agree that heightened scrutiny is deserved, and it's frustrating that the courts keep balking at that question, it looks to me like the OK court is saying that, like the other cases, there was not any justification for the statute which was even 'rationally related' to any of the proposed motives that were offered by the opposition. What part of the ruling is leading you to think the court applied 'rational basis plus'?

  • 15. Anthony  |  January 14, 2014 at 4:32 pm

    Because they said the law as applied to gays and lesbians is irrational. It is basically all but heightened scrutiny in name (i.e. rational basis plus). Once heightened scrutiny is officially declared, all bans on same sex marriage are instantly thrown out.

  • 16. Kevin  |  January 14, 2014 at 5:05 pm

    IAAL: 'Rational Basis Plus' or 'Rational Basis with Bite' is jargon we use to indicate situations where laws are struck even on the most deferential standard to the government.

  • 17. Ann_S  |  January 14, 2014 at 5:18 pm

    Do we? That sounds like ordinary rational basis to me.

  • 18. Kevin  |  January 14, 2014 at 6:43 pm

    Except that since it *is* the most deferential standard, that almost never happens.

  • 19. Kevin  |  January 14, 2014 at 6:43 pm

    So, yes.

  • 20. StraightDave  |  January 14, 2014 at 6:55 pm

    I always viewed "traditional rational basis" (at least the way it often got used), as just about any old half-assed excuse you might be able to come up with, with the burden on the plaintiff to prove a negative.

    I viewed "rational basis plus" as at least having an intellectually honest argument where the pieces fit together in a coherent way. The old Traditional RB was mostly crap, IMO

  • 21. Anthony  |  January 15, 2014 at 4:29 pm

    Eitherway, we meet all 4 criteria for heightened scrutiny, so SCOTUS (meaning Kennedy) is just trying to buy as much time as possible.

  • 22. Mackenzie  |  January 14, 2014 at 2:57 pm

    Holy Hell on the Highland! I would say OK is one of the top 5 most backwards states on this issue. Perhaps a appellate coupling with UTAH hearing scheduled for sometime in Feb? This is HUGE!

  • 23. Bruno71  |  January 14, 2014 at 3:10 pm

    My ex is from (and again resides in) Oklahoma, and I always jokingly refer to it with him as "Hell on Earth."

  • 24. kate  |  January 14, 2014 at 3:59 pm

    You know why Texas doesn't slide off into the Gulf? Because Oklahoma sucks…..

  • 25. Lymis  |  January 14, 2014 at 3:16 pm

    Not sure if it matters, but remember, the judges – especially the federal judges – in some of the more backward and bigoted states are used to dealing with discrimination and bigotry, and may actually be better prepared to know it (and rule against it) when they see it.

  • 26. StraightDave  |  January 14, 2014 at 6:58 pm

    Also, in those places it is often more blatant, unapologetic, and right in your face. Awful hard to miss it. Like shooting fish in a barrel.

  • 27. Colleen  |  January 14, 2014 at 2:58 pm

    I notice that here is yet another ruling that concludes "Baker v. Nelson" is no longer binding precedent.

  • 28. grod  |  January 14, 2014 at 7:49 pm

    Colleen – and another acknowledging Justice A. Scalia's opinion that the majority's decision “arms well every challenger to a state law restricting marriage to its traditional definition”,[explaining that “state and lower federal courts” will be able to distinguish Windsor due to its “scatter-shot rationales” and inviting lower courts to “distinguish away”] pg 36

  • 29. Deeelaaach  |  January 15, 2014 at 11:27 pm

    Would it be an oversimplification to say that the idiots who passed DOMA put the nail in the first (and maybe last) in the coffin of Baker? Baker noted no federal case – or something to that effect (sorry, I don't want to be able to quote Baker), but then Congress passed that dumb (federal) DOMA law, changing the political (and federal) landscape. Now there was a federal change and four justices plus Kennedy had something to sink their teeth into.

    Okay, maybe my thoughts aren't spot on here, but my heart is in the right place – go Kennedy!

  • 30. Weaver  |  January 14, 2014 at 3:08 pm

    Has Hell frozen over?

  • 31. Mike in Baltimore  |  January 14, 2014 at 3:41 pm

    Well, Tuesday of last week, Hell, MI had a low of 15 below and a high of 2 above (all temps Farenheit).

    So yes, I guess you could say that Hell has frozen over (both the town in MI, and the state of OK).

  • 32. Deeelaaach  |  January 15, 2014 at 11:30 pm

    Doesn't Hell, MI, freeze over every year pretty much? 32 degrees F (0 degrees C) is freezing… as opposed to 0 degrees F. <winks>

  • 33. SoCal_Dave  |  January 14, 2014 at 3:09 pm

    Utah?? Oklahoma?? Are we on Candid Camera? (oops, showing age)
    Are we being Punk'd? (ok, still dated but not as bad)

    I can hear them already…..
    A disaster of biblical proportions.
    Fire and brimstone coming down from the skies. Rivers and seas boiling.
    Forty years of darkness. Earthquakes, volcanoes…
    The dead rising from the grave.
    Human sacrifice, dogs and cats living together – mass hysteria.

  • 34. Anthony  |  January 14, 2014 at 3:46 pm

    The freepers are talking about secession on their board.

  • 35. Straight Ally #3008  |  January 14, 2014 at 3:59 pm

    You mean, more than usual? 😉

  • 36. Steve  |  January 14, 2014 at 4:46 pm

    Any state they'd run would go under within a few years.

  • 37. Bruno71  |  January 14, 2014 at 4:50 pm

    Let me guess…they're talking about "activist judges" and "socialist tyranny" as well?

  • 38. Mike in Baltimore  |  January 14, 2014 at 3:51 pm

    Candid Camera!

    One of my favorite 'stunts' was when they shut the MD/DE state line at one road crossing (the limit had been met in DE was the excuse). One motorist said she'd just go to PA then, and get some goods there that weren't available in MD or DE.

  • 39. ebohlman  |  January 14, 2014 at 5:00 pm

    Marriage licenses not being among those goods ….

  • 40. Mike in Baltimore  |  January 15, 2014 at 9:58 am

    The episode ran in the 1960s (it was in black and white – CC didn't go to color until the 1968 season), well before any state, or even any country, had Marriage Equality.

    So yes, you posted an accurate comment.

  • 41. ebohlman  |  January 15, 2014 at 4:27 pm

    I'm actually old enough to (vaguely) remember Candid Camera.

  • 42. Mike in Baltimore  |  January 15, 2014 at 9:36 pm

    Me, too, except my memory of that episode and the TV show 'Candid Camera' is a bit more clear than 'vague'.

    And I still lived in Indiana when the specifc episode (above) was originally broadcast, not yet having moved to Maryland. I know this since I moved from Indiana in 1973, and the episode was in black and white, which means it was broadcast prior to September 1967 (the beginning of the 1968 season, the first season that Candid Camera was broadcast in color).

  • 43. palerobber  |  January 15, 2014 at 10:00 am

    and the Satanist statue hasn't even been erected at the OK State Captiol yet!

  • 44. Bruno71  |  January 14, 2014 at 3:15 pm

    I was thinking Oklahoma would be a possible loss for us, especially since the case has dragged on for a decade. Obviously the judge had some timing issues in mind.

    There are 4 ultra-conservative states in the 10th Appeals Court circuit (OK, UT, WY & KS), and now half of them have had their bans declared unconstitutional at the district court level (while another, WY, doesn't have an anti-equality amendment). Looking good for us at the 10th, methinks.

    On a side note, we often talk about SCOTUS not acting, possibly until a circuit court split. If the 10th (or 9th) rules in our favor, would we already have that split? There was this case out of Nebraska in 2006 that went against us:

  • 45. Christian  |  January 14, 2014 at 4:00 pm

    Which reminds me,bwhy didn't we appeal 'En Banc' in 'Bruning'? I mean the same year the 8th slapped us down, the Constitutional Court of the RSA mandated a nationwide application of Marriage Equality. And the people of the RSA still hates gay people by and large (and even more so in 2006) but there was no feared backlash.

    I think we could've won then.

  • 46. Bruno71  |  January 14, 2014 at 4:17 pm

    I don't know but it seems like before the California prop 8 case, our side was extremely scared to litigate in federal courts. Must've felt it wasn't worth the risk.

  • 47. davep  |  January 14, 2014 at 4:29 pm

    Yup. And wow, things sure have changed quickly since then.

  • 48. Zack12  |  January 15, 2014 at 3:23 am

    Edie Windsor mentioned how none of the main gay groups wanted to help her.
    I think the fear of failure and another Bower V Hardwick was still on their minds.
    I will say this,they were right about the Bruning ruling. The backlash five years ago for gay marriage would NOT have been pretty.

  • 49. Zack12  |  January 14, 2014 at 4:15 pm

    I don't think so. I think they want to have at least half of the country with marriage equality before they rule.
    In the same breath,I hope they don't want too soon. I'd rather not see one of the justices on our side pass away and be replaced with a Scalia or Alito.

  • 50. Anthony  |  January 14, 2014 at 4:20 pm

    It's impossible at this point to wait any longer. Such a large amount of the country already has legal marriage, so these legal conflicts are happening everywhere where marriage is not legal yet. I think it will all be settled by June 2015.

  • 51. JayJonson  |  January 14, 2014 at 5:17 pm

    I think Oklahoma's stalling has backfired on them. Had they not stalled, they probably would have won within the tenth circuit. Now, after Windsor, the legal landscape has changed.

  • 52. Dr. Z  |  January 15, 2014 at 6:29 am

    Not sure it was stalling on Oklahoma's part. This couple seems to have been badly advised by their (first) lawyers on whom to sue. It tainted their case, delayed the proceedings, and ultimately got them thrown out of their own case for lack of standing. It was the second couple who were successful in their claims.

  • 53. Zack12  |  January 15, 2014 at 6:57 am

    Bad for the first couple but in the long run..better for all of us.

  • 54. TPAKyle  |  January 14, 2014 at 3:38 pm

    Hello Tenth Circuit, you're going to be making history this year!

  • 55. marvelmvs  |  January 14, 2014 at 3:44 pm

    "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."
    Opinion Page 63

  • 56. davep  |  January 14, 2014 at 3:54 pm

    Oh yeah, there are several good 'zingers' like that in this ruling : )

  • 57. Steve  |  January 14, 2014 at 5:22 pm

    I like the part where they are basically arguing for state-mandated shotgun marriages:

    "Perhaps recognizing that excluding same-sex couples does not promote the asserted justifications in any rational manner, Smith argues that it is rational to exclude same-sex couples from marriage simply because the Statehas no real interest in them. […] This “lack of interest” argument is ironic, given the history surrounding Part A’s passage"

  • 58. StraightDave  |  January 14, 2014 at 7:17 pm

    Good effing grief! People don't get married because "the state is interested" in them doing so. They get married because the individuals are interested. No wonder these morons always lose anymore. They can't deal with courts, the law, logic, anything sensible. You're not in Kansas anymore, Dorothy (or OK). Yer in a federal court.

    In retrospect, shouldn't we have gone after the "hard" states first? They look so easy.

  • 59. Dr. Z  |  January 14, 2014 at 7:30 pm

    Actually some people in Oklahoma are VERY VERY interested in us. They just won't admit it.

  • 60. Lymis  |  January 15, 2014 at 3:42 am

    They're only easy now, because the BS arguments they got away with were so transparent and they didn't feel any need to hide the fact that they were out to get gay people. It never occurred to them that either the courts or the public would decide to consider us people so soon.

  • 61. Straight Ally #3008  |  January 14, 2014 at 4:01 pm

    And one of the lowest? Massachusetts!

  • 62. Steve  |  January 14, 2014 at 4:31 pm

    He must have taken a look at governor Failings's family. She is an adulterer and all three of her children are divorced. One of them twice.

  • 63. Zack12  |  January 14, 2014 at 4:46 pm

    I think she only has two biological kids,a daughter and a son.
    But the daughter has already been divorced twice,just like her Mommy,and all while those icky gays and lesbians couldn't get married too.

  • 64. Jim  |  January 14, 2014 at 4:01 pm

    There are five comments posted at this point on's short story on the decision–and all five are pro-equality. Interesting and encouraging that even reader comments at conservative WSJ are pro-marriage-equality.

  • 65. Jim  |  January 14, 2014 at 4:02 pm

    Sorry, meant to include link:

  • 66. LK2013  |  January 15, 2014 at 8:43 am

    Unfortunately, some of the haters have emerged now at the wsj.

  • 67. davep  |  January 15, 2014 at 10:12 am

    …. And have they managed to construct a rational and legally valid argument against civil marriage for same sex couples yet? Something that none of the opposition's lawyers have been able to do in any of these trials? Do they actually have any valid point to make in their comments this time? I'm guessing no……. OK, just went to the link and checked the comments…… I guessed right!

  • 68. Zack12  |  January 14, 2014 at 5:08 pm

    By the way,it should be no surprise to anyone that Oklahoma was one of the states that had to be dragged into the 20th century by the courts on interracial marriage.
    If the will of the people had been upheld,I have no doubts interracial marriage would still be banned in Oklahoma.

  • 69. JayJonson  |  January 14, 2014 at 5:20 pm

    I love the fact that the judge quoted extensively from comments made by legislators and supporters of the amendment to prove that the only motivation for the amendment was religious conviction and moral disapproval of homosexuals and homosexuality. He also deftly dispatches all the manufactured ex post facto reasons give by the state to justify the amendment. He also beautifully demonstrates how Lawrence and Windsor have fundamentally changed the legal landscape for considering marriage equality cases.

  • 70. Zack12  |  January 14, 2014 at 5:24 pm

    I honestly think many of these bigots thought these bans would be in place forever and thus they didn't even bother to try hiding their animus towards us.
    It's why it's important to let these guys and gals talk,their own words hang them.

  • 71. JayJonson  |  January 14, 2014 at 5:27 pm

    So true. Scalia's dissents in Lawrence and Windsor have also been great boons.

  • 72. Bruno71  |  January 14, 2014 at 5:34 pm

    Exactly. And their arrogance has also caught them unawares in Utah, where they didn't even bother to request a stay, they were so confident that their state amendment was rock solid.

  • 73. Zack12  |  January 14, 2014 at 5:38 pm

    Yup,granted there was turmoil in the AG office there but deep down,they really thought that simple moral disapproval of gays and lesbians would be enough for the judge.
    That is the real reason they didn't ask for a stay. It wasn't inexperience or incompentance,it was pure arrogance as you said.

  • 74. Zack12  |  January 14, 2014 at 5:41 pm

    Ugh,now you have the bigots claiming the judge ignored the Windsor ruling. Yes it talked about the states but as Scalia made clear,the language used to strike DOMA made it clear you can't single out a group of people and deny them federal benefits because you don't like them.
    And if you can't do it on a federal level,hard to justify doing it on a state level.
    What's happening now is exactly what Scalia predicted would happen.
    He hates us more then anyone but doesn't live in fantansy land either. He WILL tell it like it is,even though he will rule against us in the future.

  • 75. Anthony  |  January 14, 2014 at 6:14 pm

    Nino will fight us until his last dying breath.

  • 76. Anthony  |  January 14, 2014 at 6:18 pm

    Isn't it amazing that Reagan gave us our worst enemy, Scalia, and also gave us Kennedy, our best ally? Thank God Bork got borked.

  • 77. Bruno71  |  January 14, 2014 at 6:40 pm

    Reagan was a product of California's "swing state" days.

  • 78. Zack12  |  January 14, 2014 at 7:32 pm

    Kennedy wouldn't have been on the bench if Robert Bork hadn't been denied confirmation. The second choice Douglas Ginsburg (no relation to Ruth) withdrew after admitting to using pot(wish THomas had done the same.)

  • 79. Anthony  |  January 14, 2014 at 7:52 pm

    What I want to know was how did Scalia and Thomas skate by, and Bork got denied confirmation if all of them have essentially the same extreme reactionary jurisprudence?

  • 80. Eric  |  January 14, 2014 at 9:01 pm

    Bork had other issues (i.e., Watergate), that made him unsuitable for SCOTUS.

  • 81. Zack12  |  January 14, 2014 at 9:32 pm

    Watergate was a big factor but by the time Bork came around,the liberal Democrats realized how far right Scalia was and were NOT going to make that same mistake twice.

  • 82. Steve  |  January 15, 2014 at 4:03 am

    Bork would have been worse than even Scalia.

  • 83. Dr. Z  |  January 15, 2014 at 6:23 am

    In those days the opposition couldn't just be based on objections to their politics (elections do have consequences.) They had to find other grounds. Bork was the assistant who fired the Watergate special prosecutor Archibald Cox after the AG refused to do it and was fired by Nixon. Thomas did not skate by, he was challenged by Anita Hill on grounds of sexual harassment (remember "Long Dong Silver"?) The confirmation process made Thomas very bitter and he has vowed to become the longest-serving SCOTUS justice. They will have to take him off the court in a pine box.

  • 84. Anthony  |  January 15, 2014 at 9:46 am

    Assuming he makes it that far. He and Scalia don't look too healthy in terms of weight.

  • 85. Guest  |  January 15, 2014 at 7:56 am

    Reagan didn't give us Kennedy. He tried to give us Bork but Ted Kennedy stood defiant until Bork was rejected. Bork made Scalia look like a progressive. A panel of Dem & Repub's convened to make a list of acceptable justices and that list included Kennedy who is an Independent. We wouldn't be having this discussion today if Ted Kennedy hadn't faced down the Bork nomination.

  • 86. Coronal  |  January 15, 2014 at 9:34 am

    Reagan did nominate Kennedy, who was appointed to the Court in 1988.

  • 87. Lymis  |  January 15, 2014 at 3:47 am

    That's because, like the Prop 8 ruling, people gave it an inaccurate simplified summary and then decided that's what the ruling actually said.

    Windsor did NOT say that states are completely free to decide who gets to be married. It said that the federal government doesn't have any say, and that once a state decides to marry people the federal government has to defer to that (and even that's a sweeping simplification.)

    The Windsor ruling did not say that the states are not constrained by the US constitution in treating citizens equally and fairly. Just that those would be separate lawsuits.

  • 88. LK2013  |  January 15, 2014 at 8:45 am


  • 89. palerobber  |  January 15, 2014 at 10:06 am

    Judge Kern:
    "Arguably, the “state rights” portion of the Windsor decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional rights."

  • 90. davep  |  January 15, 2014 at 11:53 am

    Hee hee. His inserting the word "unremarkable" there is the equivalent of adding "Well, duh" at the end.

  • 91. Bill  |  January 14, 2014 at 7:07 pm

    I had counted Oklahoma as one of eight likely to fall in 2014, the other seven being Nevada, Michigan, Virginia, Pennsylvania, North Carolina, and West Virginia (plus Oregon by ballot). Does anyone anticipate a 2014 Decision in TN, KY, CO, ID, SC, AR, or TX?

  • 92. Zack12  |  January 14, 2014 at 7:33 pm

    I don't think so but who knows? If the 10th circuit upholds these judges rulings and the Supreme Court denies Cert,it will be a moot point in CO.

  • 93. StraightDave  |  January 14, 2014 at 8:04 pm

    …dragging WY and KS along with them. I still think we need one more big population state to tip over the whole apple cart. VA is most likely, due to lack of an appeal, but may not be big enough. Need MI or PA, IMO.

  • 94. Zack12  |  January 15, 2014 at 3:52 am

    PA the court can punt on as well since the other two states in that jurisdiction already have marriage equality.

  • 95. ebohlman  |  January 15, 2014 at 8:05 am

    Not really: the right to appeal a district-level decision is automatic (assuming you have standing). Only the SCOTUS can refuse to hear an appeal (and actually does so about 99% of the time).

  • 96. Bruno71  |  January 14, 2014 at 7:39 pm

    There are suits out of LA & AZ too. And one with a narrower ruling out of Ohio, where they are considering a ballot question.

  • 97. grod  |  January 14, 2014 at 8:20 pm

    OKLAHOMA Governor M. Fallin released statement on Senior District Judge Terence Kern’s ruling that state's definition of marriage is unconstitutional:

  • 98. Richard Weath erwax  |  January 14, 2014 at 9:30 pm

    Governor Mary Fallin put it this way:

    "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."

    I am disappointed that once again the governor of a state ignores the US Constitution and the individual rights of the citizens.

  • 99. Dr. Z  |  January 15, 2014 at 6:37 am

    She's a tea partier's tea partier.

  • 100. Dr. Z  |  January 14, 2014 at 8:33 pm

    Finally plowed my way thru this opinion. It will not go down in history alongside Goodridge for its soaring rhetoric, nor will any couples be reading from it in their marriage ceremonies. My impression is that, deep down, this judge didn't want to rule for us, and was a little surprised that he had.

    Still: a win is a win.

  • 101. Zack12  |  January 14, 2014 at 9:34 pm

    Bottom line (even though Scalia will pull something out of his butt to rule against us) there is really no way a judge who will actually do his or her job can look at these bans and not conclude they are based on animus and in violation of the 5th and 14th amendments.

  • 102. Dr. Z  |  January 15, 2014 at 6:36 am

    Which may be why there was so much ink spilled on the question of standing. From our opponent's perspective there's no need to worry their lack of merits if they can get the lawsuits thrown out on a standing technicality.

  • 103. Colleen  |  January 14, 2014 at 9:53 pm

    It's not the page-turning thriller that was Kitchen, either.
    I was surprised by the Harriet Beecher Stowe reference on p. 28!

  • 104. Darrell  |  January 14, 2014 at 9:49 pm

    this is awesome!!!!

    …… what other cases do we have coming up about marriage equality?

  • 105. davep  |  January 14, 2014 at 10:01 pm

    Gosh there are about 20 of them….. The appeal of the Nevada case will be a big one, as well as the appeal of the recent Utah ruling. There's a very important case going on in Virginia, and the lawyers on our side are the same team that won the Prop 8 case…. Lots more….

    There's a link at the top of this page called "Current Cases" but it really needs to be updated. Many of those are now settled (and we won!) and there are may that aren't listed there.

    EoT – could we get that page updated? Thanks!

  • 106. StraightDave  |  January 14, 2014 at 11:40 pm

    The best up to date resource for ongoing cases is

  • 107. Mike in Baltimore  |  January 15, 2014 at 10:26 am

    An indication of how up to date the site Dave mentions is this from the Oklahoma decision of January 14, 2014:

    "On 14 January 2014, the federal district court ruled that the OK ban on same-gender civil marriage is unconstitutional. That ruling is stayed pending appeal(s)."

  • 108. Pat  |  January 15, 2014 at 1:23 am

    Actually, a suggestion for this "Current Cases" page: It would be great if they were displayed in a graphical form to let us grasp the timeline of each case more easily. Right now, it is hard to directly know which cases are more advanced, which cases are waiting for a trial.
    In particular, among all the cases going on, are there any others for which a ruling could come at any time? (i.e. cases that do not need further steps such as briefs, or court hearings)

  • 109. grod  |  January 15, 2014 at 7:14 am

    Pat this is an excellent suggestion given that there are 25 cases involving 20 states and 15 that have as an element the right to remain married and have valid marriages recognized. Would also be useful to identify states that have legislative action on marriage. Case law is being developed.
    In this OK case, senior judge T. Kern devoted 9 pages following pg 10 to the minor importance of DOMA Sect 2 and the importance yet vulnerable Part B of the OK constitutional amendment. In empathically dismissing the Berton case, footnote 18 [ pg 28] invites them to come back – soon. He provides a road map – the arguments against Part A are applicable to Part B. And while his reference to H. Beecher Stowe was addressed to the Berton couple, its applicable to those involved in this struggle for equality. “[N]ever give up, for that is just the place and time that the tide will turn.” Old Town Folks (1869).

  • 110. Darrell  |  January 14, 2014 at 10:06 pm

    when does the michigan and Virginia trails start?

  • 111. ebohlman  |  January 15, 2014 at 2:37 am

    MI (De Boer) goes to trial at the end of February. It's not yet established whether there will be a trial in either of the VA cases. PA goes to trial at the end of June.

  • 112. rob  |  January 15, 2014 at 8:03 am

    Well, in VA I believe there was a hearing a few months ago in one Fed District Court case, and in the other case, a hearing will be held at the end of January at another Fed District Court (this is the one Olsen, et al joined). A ruling by the Federal judge can come at any time. Given the support of SSM by top VA politicians, an appeal would be unlikely (assuming the ruling is favorable).

  • 113. Stefan  |  January 15, 2014 at 11:55 pm

    And thus, a stay is unlikely too.

  • 114. ebohlman  |  January 16, 2014 at 12:50 am

    One complication: Virginia, like Oklahoma but unlike Utah, is split into two Federal districts. A district court ruling is normally binding only within its district, so it's not entirely clear what happens to a state ban if it's struck down in one district but not another (are the two VA cases from different districts?).

    Of course California is split into four districts and the Prop 8 ruling eventually applied to the whole state, but there was still a fair amount of litigation even after the stay was lifted.

  • 115. Lymis  |  January 15, 2014 at 3:35 am

    I will have to read it repeatedly, but it sure sounds to me like the couple sued the state, and the court told them they couldn't sue the state but had to sue the district clerks, so they had to get new lawyers and amend their case and start over, suing the US and the district clerks. Now in the ruling, one of the couples is being told, "Sorry, you don't have standing, and we can't strike down the law, because you should have sued the state – as it stands, your suit doesn't include the right people."

    What am I missing? It sounds like the court did a bizarre runaround of the Barton couple in this one. AND it sounds like the court did not strike down the out-of-state recognition clauses because of it.

  • 116. Daniel  |  January 15, 2014 at 4:13 am

    I have the exact same question as you! You're right, the Court only struck down Part A of the Constitutional Amendment (restricting marriage to opposite-sex couples), and the Court did not strike down Part B (recognition of out-of-state same-sex marriages).

  • 117. Dr. Z  |  January 15, 2014 at 6:10 am

    The way I read it, the Barton couple may not have actually gone to the courthouse to be denied the marriage license. The first 40 pages of the opinion are a long, dull shaggy dog story that gives me the impression this couple walked into the middle of a running feud with the 10th Circuit.

  • 118. Daniel  |  January 15, 2014 at 4:09 am

    In reading the procedural history of this case, Bishop v. United States of America, it appears that the Tenth Circuit Court of Appeals previously stated that the same-sex couple in this case could not pursue their claims against the Governor and Attorney-General and that they would rather have to pursue them against a district county clerk. So the couples in this case revised their claim to name the district county clerk as the defendant. But then the judge declines to judge the same-sex couples recognition-of-out-of-state-marriage claim because the district county clerk has no authority to recognize out-of-state marriages. Appears to be circular and ineffectual logic from both the district federal court and the court of Appeals….

    1–Why would the Tenth Circuit Court of Appeals have held that the Oklahoma Governor and Attorney-General can not be named as defendants of the impugned constitutional provisions, when this did not seem to be a problem in either the California or Utah federal adjudications?
    2–Would such a determination affect the appeal of the Utah case currently under appeal?

  • 119. Dr. Z  |  January 15, 2014 at 6:15 am

    When Olsen and Boies brought the Prop 8 suit they sued everyone in sight. I always wondered why they did that, but now I think I understand. It's easier to release someone from the lawsuit that add them later.

    Something similar happened in the Pennsylvania suit, where the Governor was allowed to be dismissed from the lawsuit.

  • 120. Lymis  |  January 15, 2014 at 6:40 am

    But how bizarre to release someone from the lawsuit and then rule against the plaintiffs because the people they needed to sue are no longer a part of the suit.

  • 121. Dr. Z  |  January 15, 2014 at 6:44 am

    Apparently the idea is to shed defendants as you work your way up the judicial food chain. It works as long as you never get sent back the chain – but as soon as you do, you're vulnerable to these tit-for-tat games between district and appelate courts.

  • 122. grod  |  January 15, 2014 at 10:07 am

    Daniel Because recognition of the out of state marriage was not a duty of Clerk Smith, the question raised was who then – it appears not to be an answerable question.
    The ambiguity is magnified by the clerks having a reporting relationship to the courts, and not the AG. Kerns accepts this which seems analogous to the Clerk in Pennsylvania.
    On page 28 footnote 18 – Judge Kern having just concluded that the Burton do not having standing, he invites them to continue the court process – as Part B was just as vulnerable as Part A, was he encouraging them to appeal?

  • 123. palerobber  |  January 15, 2014 at 7:10 am

    talking point: "a disclaimer of enormous proportion"…

    "In discussing this traditional state authority over marriage, the Supreme Court [in Windsor] repeatedly used the disclaimer “subject to constitutional guarantees.” See id. at 2692 (citing Loving v. Virginia, 388 U.S. 1 (1967) […] ). A citation to Loving is a disclaimer of enormous proportion. Arguably, the “state rights” portion of the Windsor decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional rights."

  • 124. davep  |  January 15, 2014 at 10:22 am

    Yup. When a court rules that a state's use of civil marriage laws to deny equal treatment to same sex couples cannot stand because the law violates the U.S. constitution, this is what counters the anti-gay folks claims that "Marriage is controlled by the state! They state can do whatever it decides to do with its marriage laws!!". No, it cannot. ALL laws, EVERYWHERE, at EVERY level – state, county, city, you name it, must still comply with the principles of the U.S. Constitution. States can make whatever marriage laws they want as long as they still comply with the Constitution.

  • 125. Anthony  |  January 15, 2014 at 10:34 am

    That's where heightened scrutiny comes into play. It's all coming full circle now.

  • 126. Zack12  |  January 15, 2014 at 7:31 am

    It's amazing with all of this that Mike Pence is STILL pushing for a gay marriage ban in Indiana.

  • 127. StraightDave  |  January 15, 2014 at 8:44 am

    Part of their argument seems to be that it will somehow "insulate" them from attack by the courts. Of course, we know that only applies to state courts, not federal. So either he is too dumb to understand that, doesn't care, just wants to get in his last licks before the whole house collapses, or is trolling for votes. In any case, it's not likely to survive for very much longer, so I consider it mostly a sideshow.

  • 128. Bruno71  |  January 15, 2014 at 10:22 am

    I hope you're right about that. They are very close right now to putting us through another wringer of a vote.

  • 129. rwingfield  |  January 15, 2014 at 8:11 am

    Long time fan. First time poster! Having read the decision in Bishop v Oklahoma, one thing has left me a little puzzled. This is probably because I'm an English lawyer, not an American lawyer, and so I'm sure I'll be immediately corrected as to the error I've made.

    Oklahoma prohibits same-sex marriage both through its Constitution (Part A of the Constitutional Amendment challenged) and its statutes (Okla. Stat. tit. 43, § 3.1). However, in the court's judgment, the court states that only Part A of the Constitutional Amendment violates the US Constitution and makes no reference to the statutes. Indeed, at footnote 3, the court states that there was in fact no challenge to the statutes. In Kitchen v Herbert, however, the judge struck down both the Constitutional and statutory prohibitions in same-sex marriage in Utah.

    Does this not mean that, if the judgment is ultimately executed, that the statute prohibiting same-sex marriage still remains in force and that the situation is simply that as it was before the Constitutional Amendment was made i.e. same-sex marriage was prohibited by statute, not the Constitution in Oklahoma. Or is the statute struck down implicitly?

  • 130. sfbob  |  January 15, 2014 at 9:03 am

    I'm not a lawyer of any sort but that also struck me as odd.

    I can't see how a ruling striking the constitutional amendment wouldn't be just as fatal to the statute. But, as I said, I'm not a lawyer.

    As you are probably aware, in California, the language in Prop 8, which amended the state's constitution, was identical to the language of Prop 22, which was statutory and which the California Supreme Court struck down in 2008. I suppose it was felt at the time that all that placing the same language in the Constitution that had previously been a statute would tie the hands of the state Supreme Court, which did turn out to be the case.

    The history of the same-sex marriage ban in Oklahoma is different from what it was in California. OK's statutory ban was in no danger from its own courts. So the state legislature proposed the constitutional amendment as some sort of back-up plan. I don't know whether Oklahoma's constitutional amendment and its statutes mirror each other. It would seem to me that if it's the effect that matters, an adverse ruling against one would apply to the other as well. Were it otherwise then regardless of the subject it would require only a slight change in wording to get around a court's decision regarding either a statute or a constitutional amendment.

  • 131. Bruno71  |  January 15, 2014 at 10:26 am

    Hopefully there would be a clearer ruling from the 10th Circuit, perhaps in conjunction with the Utah case. Let's hope this ruling acts as a building block rather than an end result for Oklahoma.

  • 132. Colleen  |  January 15, 2014 at 1:40 pm

    Was the "Kitchen" lawsuit a complaint against statute as well as state constitutional amendment? Judge Shelby made it clear in his refusal of a stay that any state laws prohibiting services to SSM couples fell under the umbrella of his ruling.

  • 133. bendreyfus  |  January 16, 2014 at 7:01 am


  • 134. grod  |  January 15, 2014 at 3:45 pm

    As I understand it, like you being "from AWAY", Part A relates to solemnizing in-state marriages (Bishops), and Part B relates to Out of State Marriages (Burtons). Shelby in Utah deals with both in and out of state marriages. Judge Kerns is unhappy IMO that he can not deal with Part B -see footnote 18 pg 28. The Burton focus was on Section 2 DOMA. He more or less says bring the same case before the court after you fight out who is responsible for recognition, and focus it on the constitutional amendment Part B. He even guides them to use the same arguments that he deemed persuasive in invalidating Part A

  • 135. SeattleRobin  |  January 15, 2014 at 12:50 pm

    I admit that I skimmed much of the dry procedural stuff in the decision and only read the part dispensing with Part A in detail. Kern's writing style isn't nearly as entertaining as some that we've seen so far. But one thing that I really liked that he did was how he took the procreational stuff head-on.

    It's obviously a topic covered in most of these cases, but often the judges just kinda nibble around the edges. Kern didn't stint any in his comparisons between non-naturally procreating straight couples and same-sex couples. He plainly said that under Smith's arguments these groups have more in common with each other than they do with procreative straight couples, yet only a small subset of the non-natural procreators are being prevented from being married. The majority of the people in this group, supposedly not deserving of the special benefits of marriage, are still being provided those benefits.

    It was really nice to see this so baldly stated finally. In addition to his straight forward point about children being raised outside of marriage by same-sex couples goes against one of the stated purposes of the ammendment.

  • 136. StraightDave  |  January 15, 2014 at 2:39 pm

    While the writing might not be so entertaining, that may be a plus by not distracting from the real meat of the case. He really hit the legal points squarely on the nose, once he got around to them. I can imaging most fair-minded people thinking, "Yeah, you know, he's absolutely right. I never though of it that way". Likewise, I hope most appellate judges think, "Hey, awesome way to express that! Mind if I steal your words"?

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  • 138. Rick O.  |  January 16, 2014 at 8:39 am

    As noted by others above, it is refreshing that rationality has finally invaded judicial opinion, and I'll credit the NM Supreme Court (which, like everybody else in NM really didn't want to handle this hot potato) for being first to demolish all the opposition arguments as so much hogwash, including a dig at the Regnerus study. It was not even a year ago the fed. district judge in Nevada bought the argument SSM would somehow discourage opposite sex marriage.

    Someone asked about Colorado. First, don't count the 10th Appeals as anywhere close to an automatic. This is historically a conservative district. Second, there are a couple cases, the most recent filed late last year in state court by local lawyers. I have great hopes for it, though events are likely to overtake it before it reaches our high court. We finally got a very good civil unions bill enacted a year ago after a bitter 3 year fight. Ironically, the one small sop to the Republicans (a wholly owned subsidiary of Focus on the Family) was no mention of tax equality (it makes little or no difference with our tax structure). This could be the "separate but unequal" bit our Supremes could go for.

    Someone mentioned OK as one of 10 worst states – how about top 2? Since we are finally dealing with rational vs. "traditional" or non-rational worship of supernatural beings with moral disapprovals arguments, all one really needs to do is look at state church membership or attendance figures to know the politics. I know Tennessee ranks #1 on the voodoo list, and I think OK is #2. The McVeigh bombing site is the top tourist attraction. I'm hoping Judge Kern got extra 24 hour security – he needs it.

  • 139. Mike in Baltimore  |  January 16, 2014 at 1:02 pm

    The state court system (ANY state court system) is NOT the Federal court system.

    And the usual CONservative judge is much easier to sway with logical arguments than the foaming at the mouth tea bagger judge.

    If/when the Circuit Court of Appeals rules (remember, the Court placed the case on expidited basis), the ruling almost certainly will apply to Colorado and all other states in the Circuit. Such ruling could occur anytime between mid-March to the end of June, in time for an appeal to SCOTUS. If appealed to SCOTUS, there is a very good possibility of a SCOTUS decision by the end of June 2015. Since the Colorado case is NOT on expedited basis, and no hearings have yet to be held, the Colorado state Supreme Court, if it's lucky, will get the case in late 2014, probably sometime in 2015. Then the briefings, hearings, and decision. Maybe sometime in late 2015, probably in 2016 or later, for the state case to make it to an appeal to SCOTUS.

    I would rather have a SCOTUS decision in June 2015 than some unknown future date.

    And remember, the US Consitution, as stated in Article VI, Section 2, makes it VERY clear that the US Consitution is above any and all state laws and state constitutions, and that the Federal Court system is supreme over any state court ruling.

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