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Oklahoma same-sex couple will ask Tenth Circuit to review part of district court’s ruling

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This month’s ruling by a federal district court judge holding that Oklahoma’s same-sex marriage ban is unconstitutional involved several distinct issues. The Oklahoma amendment has several parts, and two of them are at issue in this case, along with both sections of the federal Defense of Marriage Act (DOMA). “Part A” of Oklahoma’s constitutional amendment defines marriage as between a man and a woman. “Part B” of the amendment bars recognition of same-sex marriages performed outside of Oklahoma. Section 2 of DOMA allows states to refuse to recognize same-sex marriages performed in other states, and Section 3 defined marriage as between a man and a woman, until the Supreme Court’s decision in United States v. Windsor invalidated that section.

Two couples are involved in the Oklahoma case, and they raise some similar issues, as well as issues involving their own circumstances.

The district court judge’s ruling in the Oklahoma case held that the couple challenging Oklahoma’s refusal to recognize marriages performed outside of the state and Section 2 of DOMA lacks standing to pursue those claims. The court held that the challenge to Section 3 of DOMA is moot, because it’s already been struck down. And the court held that the couple challenging the definition of marriage, “Part A” of the amendment, has standing, and further, “Part A” is unconstitutional.

After the ruling, the state defendant, Sally Howe Smith, the Court Clerk for Tulsa County, filed her notice of appeal to the Tenth Circuit Court of Appeals of the ruling against her: that the state can’t define marriage to exclude same-sex couples. (She then asked the Tenth Circuit Court of Appeals to place the Oklahoma case on a parallel briefing track with the Utah appeal, and to have arguments heard by the same panel of judges.)

Now, the couple who brought the challenge to Section 2 of DOMA and the part of the Oklahoma amendment barring recognition of out of state same-sex marriages is appealing the judge’s ruling that the couple lacks Article III standing to pursue their claim against the Oklahoma amendment. They don’t appear to be appealing the claim that they lack standing to challenge Section 2 of DOMA.

The couple who raised the claim was married in California and wants to have their legal marriage recognized by Oklahoma, where they now live. The district court held they lack standing to challenge the part of the amendment forbidding recognition of out of state marriages because “the Barton couple has not taken any steps to obtain recognition and has not shown that (Sally Howe) Smith is the proper official” to sue.

The Tenth Circuit has yet to decide if it will put this case on a parallel track with the Utah challenge, though Utah officials were given seven extra days to file their opening brief.

Thanks to Kathleen Perrin for these filings

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

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  • 1. grod  |  January 24, 2014 at 5:23 pm

    Footnote 18 page 28, Judge T. Kean told the Burtons that they have a credible case against Part B of the Amendment, using the same arguments asserted by the Bishops against Part A. But the shortcoming of their filing had been a near total focus on Section2 of DOMA. In Judge Kean's view, Section 2 has minimal effect and no effect in OK. Judge Kean's sidebar was to continue to use the Court processes given the years committed to this case. The twice married couple [Canada and California] hav been resident of OK for over 50 years, and have been a couple for over 30 years.

  • 2. Christian  |  January 24, 2014 at 8:52 pm

    I was really hoping this would happen!

    Considering that Section 2 of DOMA affects *only* same-sex couples it clearly offends both the 14th and 5th amendments. I'm glad they appealed that part of the ruling.

  • 3. Marriage Equality Round-U&hellip  |  January 25, 2014 at 7:36 am

    […] USA, Oklahoma: The lesbian couple who sued for marriage equality in Oklahoma is asking the 10th Circuit to review a part of the district court’s ruling. full story […]

  • 4. Steve  |  January 25, 2014 at 8:05 am

    Why should they need to make steps to have their marriage recognized? Straight couples don't have to do anything.

  • 5. Marriage Equality Round-U&hellip  |  January 25, 2014 at 8:27 am

    […] USA, Oklahoma: The lesbian couple who sued for marriage equality in Oklahoma is asking the 10th Circuit to review a part of the district court’s ruling. full story […]

  • 6. Steve#2  |  January 25, 2014 at 9:10 am

    Straight couples get their marriage recognized all the time. Every time they file joint tax returns, get the "family" rate at a state park, etc, some part of the state government is recognizing their marriage.

    I think what the judge was saying is show us the explicit injury and sue the state official that used this amendment to justify that injury. Since no already married couple needs to get a marriage license from Sally Howe Smith, she is the wrong person to sue for this complain (perhaps one of her other job responsibilities might apply).

  • 7. sfbob  |  January 25, 2014 at 2:11 pm

    So the step they'd need to take would be to file their state taxes (OK has a state income tax; I checked) as "married." They could then sue whichever office regulates the state's income tax. Of course they would risk being prosecuted for filing a false return but presumably that could be dealt with simultaneously. And they could certainly say "how is our return fraudulent when we have not just one but TWO marriage licenses, either of which, were we heterosexual, would be recognized without comment."

  • 8. Steve#2  |  January 25, 2014 at 10:18 pm

    Exactly. Unfortunately, they would probably have to wait till their return is rejected before suing and that could take a while. It would be particularly poinient (and good publicity) if they ended up owning more money by filing jointly.

  • 9. grod  |  January 26, 2014 at 3:53 pm

    Steve: Last December, Ohio's Judge T. Black said that the Right to Remain Married and to have valid marriage Recognized in one's state of residency is an aspect of the fundamental right to marry. [Name ONE straight who would doubt it. O N E.] Fundamental rights are held by individual citizens and no state or people's majority can abridge that right. No-one!
    This January, in Oklahoma, Judge T. Kean reported he could not determine who the defendant should be in the 'compliant' brought by the Burtons ten years ago. Not the Clerk! Neither the Governor nor the AG could be named, as determined on Appeal. WHO??? Recognition of out-of-state is an aspect of the Kitchen case in Utah, but it is also an aspect of 15 other cases that are currently before the courts. Does anyone know who? In which State? To Judge Kean, go back to playing CLUE. Shame on you for using a bureaucratic excuse to deny the Burton's standing, a couple 30 years together, twice legally married, who had been fighting this case for near ten years. To his Honour: 'Grow a pair'! I'm pleased this couple, who have resident in OK for 50 years, are appealing to the 10th Circuit Appeals Court. To their clerk: Just grant it – on the grounds that the court’s “failure to do so would bring the Circuit's system of justice into disrepute”. Although they did attack Part B of the OK constitutional amendment, it hadn't been stridently enough.

  • 10. Seth From Maryland  |  January 26, 2014 at 4:04 pm

    the vote in the Indiana house monday is TIGHT right now the Of the 100 House members, 38 plan to vote for the measure, House Joint Resolution 3, while 38 plan to vote against it. The other 24 said they were undecided (13) or declined to comment (11). i think we might have a chance to kill this thing, many of the republicans have said they are not voting for unless the second sentence is amended which means another separately elected legislature would have to approve it

  • 11. Straight Dave  |  January 26, 2014 at 5:57 pm

    The IN House convenes Monday at 1:30 pm according to the state's website. The marriage bill, HJR3, is listed last of 26 items on page 3 of their calendar for the day. So it may take a while to get to the vote.

    A live webcast seems to be available at… though I can't prove it since it's not on right now. I'm sure a few of the members are likely to embarrass themselves in public, if you go in for that sort of thing..


  • 12. JayJonson  |  January 26, 2014 at 4:54 pm

    If they do pass it, I hope it bites them in the ass the way the Minnesota ban did.

  • 13. grod  |  January 26, 2014 at 5:45 pm

    Seth and Jay – as no doubt it will in OK, and Utah

  • 14. Zack12  |  January 26, 2014 at 5:23 pm

    I would say the most disguisting thing to come out of the hearings so far is the chairman of the cherry picked committee,Milo Smith, has a gay son.
    It goes to show once again that having a gay or lesbian relative doesn't change a darn thing for many.

  • 15. KarlS  |  January 26, 2014 at 5:33 pm

    A few years ago, a movie called "Prayers for Bobby" demonstrated how ugly a parent can be. It wasn't really done all that well but it did show how some people think.

  • 16. Policy and Legal Update &&hellip  |  February 2, 2014 at 11:37 pm

    […] OKLAHOMA  •  On 24 January 2014, 2 of the 4 plaintiffs appealed the district court’s ruling that they don’t have standing to challenge:  (1) OK’s refusal to recognize their CA marriage, (2) part B of the Oklahoma constitutional amendment, and (3) Defense of Marriage Act, Section 2.  •  MEUSA Summary  •  News Source […]

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