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Oklahoma same-sex marriage case placed on fast-track at Tenth Circuit

LGBT Legal Cases Marriage equality Marriage Equality Trials

Same-sex marriage cases from Utah and Oklahoma will be heard by the same panel of judges at the Tenth Circuit Court of Appeals, and both cases are now on a fast-track, after the Tenth Circuit granted an order from Tulsa County Court Clerk Sally Howe Smith today.

Since that request was made, two of the plaintiffs filed a cross-appeal in the case, challenging the district court judge’s ruling that they lacked Article III standing to fight the part of Oklahoma’s marriage ban that denied recognition of same-sex marriages performed outside the state.

The court noted that Smith’s appeal and the cross-appeal will be considered together and that “the [Oklahoma and Utah] appeals will brief separately and be set for oral argument separately.” This means that the court declined to place the Oklahoma and Utah cases on a parallel briefing and argument track, as Smith originally requested.

Amicus briefs can be filed jointly, one brief for both cases.

Briefing in the Oklahoma case will be completed in early April. The briefing schedule is here:

The first brief and appendix, see 10th Cir. R. 30, shall be filed by Ms. Smith on or before Monday February 24, 2014. The second brief and any supplemental appendix, if needed, shall be filed on or before Monday March 17. The third brief shall be filed on or before Tuesday April 1st, and the final optional reply shall be filed on or before Monday April 7, 2014.

A separate order will be issued for the date and time of oral arguments.

Thanks to Kathleen Perrin for these filings

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

This is the last week of EqualityOnTrial’s fundraiser to keep the site going this year. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us travel to Denver, cover the appeals of the Utah and Oklahoma cases, and continue our in-depth, easy-to-understand coverage. Any amount helps!


  • 1. Seth From Maryland  |  January 28, 2014 at 1:39 pm

    hoping this would , this will speed things up

  • 2. peterplumber  |  January 28, 2014 at 4:13 pm

    Amicus briefs can be filed jointly, one brief for both cases.

    Because there is only so many times one can read the same story put out from the ANTI equality side.

  • 3. sfbob  |  January 28, 2014 at 4:28 pm

    How do you manage to get italics into your comment?

    Ah, I see you CAN use HTML code here after all.

  • 4. TimATL  |  January 28, 2014 at 4:58 pm

    In the Utah case, the final reply brief was due on March 4th; with oral arguments possibly during the March 17-21 sitting. Is that unchanged?

  • 5. Stefan  |  January 28, 2014 at 9:12 pm

    Likely unchanged, but a final ruling being handed down now appears to be delayed since they wouldn't hear the Oklahoma case until May (when the next hearing dates occur).

  • 6. Pat  |  January 29, 2014 at 5:28 am

    Mmmh, yeah so it indeed slows things down. Couldn't we imagine that they rule on the Utah case before the May Oklahoma hearing, though? (rending the OK case moot since a positive decision would apply to the entire circuit)

  • 7. Tyler O.  |  January 28, 2014 at 5:23 pm

    This actually slows things down, not speeds them up.

  • 8. Tim  |  January 28, 2014 at 9:02 pm

    Have the 3 judges on the panel been named?

  • 9. Stefan  |  January 28, 2014 at 9:13 pm

    It'll be the two that previously denied the stay plus one unknown.

  • 10. grod  |  January 29, 2014 at 11:01 am

    Stefan – of the four reasons the Appeals Court stated in their denial of request for " emergency motions for a stay pending appeal and for a temporary stay" was 'the likelihood of success on appeal" which might auger well for Utah's Kitchen et al.

  • 11. USA, Oklahoma: Marriage E&hellip  |  January 29, 2014 at 6:13 am

    […] Equality on Trial reports: […]

  • 12. grod  |  January 29, 2014 at 6:42 am

    To the Burtons, congratulation! Remember that Edith Windsor and Thea Spyer’s fight in NY was initially also about the rights to remain married and to have their marriage recognized, first by NY and subsequently by the Federal Government [Section3 DOMA]. When Section 3 was struck down, Justice A Scalia implied that section 2 was implicated – no state can continue to refuse to recognizing the valid marriage of other states [and by extension via international treaty] other countries. Ohio's Judge T. Black’s December 2013 decision on the right to remain married and to have valid marriages recognized in the state of residency quote Scalia's assertion in footnote # 1 p 3. In giving background to Scalia's observation, Black asserted the right to remain married & recognized is an aspect of a fundamental liberty interest protected by the Due Process clause of the Constitution. True Windsor also asserts that for federal purposes, all valid marriages must be treated the same. Hopefully you can use the non-recognition by Utah's own 1364 valid marriages as an additional illustration of States failure to safeguard Due Process and Equal Protection Interests of their citizens.

  • 13. Ranjit Bahadur  |  January 29, 2014 at 10:42 am

    Since any decision in either case would be immediately stayed and appealed to SCOTUS, a delay of a few months hardly matters.

  • 14. Mike in Baltimore  |  January 29, 2014 at 12:09 pm

    Besides, did anyone expect Utah and/or Oklahoma to allow ME in the near future before they were forced to allow ME? Without being forced, most people would have expected that to occur in those two states ten to fifty years in the future, if even then.

    A delay of a year (going to SCOTUS would delay it about a year, maybe less if SCOTUS denies cert) is peanuts compared to the ten, fifty, or more years most people would have expected.

    (I'm presuming the 10th Circuit will force the two states to recognize ME.)

  • 15. bythesea  |  January 29, 2014 at 2:04 pm

    I still think there's a real chance SCOTUS will deny cert if the lower court rulings are upheld.

  • 16. ebohlman  |  January 29, 2014 at 7:15 pm

    Agreed. I think they would at the very least want a case with a trial record (which the MI and PA cases will have, but they're extremely unlikely to be ready for the SCOTUS in the 2014-15 term) and probably a post-Windsor circuit split.

  • 17. Zack12  |  January 29, 2014 at 8:33 pm

    If the PA judge rules in our favor and the 3rd circuit agrees,it will be easy to punt on as the other two states under its jurisdiction already have marriage equality.
    You know Alito will be a jerk and drag it out as long as possible if that happens though.

  • 18. Eric  |  January 29, 2014 at 12:39 pm

    Why would any decision be immediately stayed? Stays are not automatically granted, they must pass a test first.

  • 19. Bruno71  |  January 29, 2014 at 1:58 pm

    Because SCOTUS made it pretty clear in Utah that marriage equality cases should be stayed pending appeal automatically. Judge Walker, the 9th Circuit, and the Oklahoma judge all enforced stays with no particular reasoning other than "that's the way these gay marriage cases are going to be handled."

  • 20. Ranjit Bahadur  |  January 29, 2014 at 1:08 pm

    As someone else eloquently pointed out, you can pretty much follow the guideline of "If it's Gay it must Stay". For whatever reason (wishing to avoid accusations of Judicial activism or whatever) the Courts will ALWAYS bend over backwards to accommodate ME opponents.

  • 21. Equality On TrialTenth Ci&hellip  |  January 29, 2014 at 2:27 pm

    […] cases were put on an expedited track, to be heard by the same panel, earlier this […]

  • 22. Policy and Legal Update &&hellip  |  February 9, 2014 at 10:30 pm

    […] OKLAHOMA  •  On 28 January 2014, in Mary Bishop, et al. v. United States and Tulsa County Court Clerk, et al., a case challenging the state constitution for denying the right to marry the person of one’s own choice, and for refusing to recognize same-gender marriages performed in other states, the Tenth Cicuit U.S. Court of Appeals decided to review the OK and UT appeals (a) on a fast-track schedule, and (b) by the same panel of judges.  The appeals will be briefed separately and argued separately.  The OK appeal schedule is:  cross-appeal 1st brief by 24 February, 2nd/supplemental briefs by 17 March, 3rd brief by 1 April, optional reply brief by 7 April, and oral arguments after 7 April.  •  MEUSA Summary  •  News Source […]

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