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READ IT HERE: Second brief in Oklahoma marriage equality case

LGBT Legal Cases Marriage equality Marriage Equality Trials

The second brief was filed late last night in Bishop v. Smith, the challenge to Oklahoma’s same-sex marriage ban. The first one was filed last month by the state of Oklahoma, in defense of the ban. The new brief, filed by the same-sex couples who are plaintiffs in the case, addresses two issues: (1) it responds to the state’s opening brief defending the marriage ban, and (2) it challenges the district court’s conclusion that one of the couples lacks standing to challenge Oklahoma’s refusal to recognize same-sex marriages performed outside the state.

The second aspect of the case was added in a cross-appeal filed by one of the couples who married outside of Oklahoma. This is the first brief on that particular issue. Two more briefs are expected in the case.

Here’s the filing, via Kathleen Perrin and Equality Case Files:

14-5003 #8185 Plaintiffs' Opening/Response by Equality Case Files

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


  • 1. Ragavendran  |  March 18, 2014 at 9:52 am

    I must have missed this punchline when the judgment came down in January, but now reading this brief, the District Court had disagreed with the Plaintiffs that intermediate scrutiny should apply, and instead concluded that rational basis review was appropriate under 10th Circuit precedent. Now I quote from the brief (pages 16-19 are a very good summary of the District Court's rational basis review, IMO):

    "Allowing for the deferential nature of rational basis review, the District Court nonetheless concluded after a thorough examination of conceivable and asserted justifications for the Oklahoma Marriage Ban that “[r]ationality has its limits, and this well exceeds it.”" (boldface to emphasize the punchline mine)

  • 2. davep  |  March 18, 2014 at 11:00 am

    I just finished reading the whole thing and I noticed that too. Made me smile.

  • 3. Rakihi  |  March 18, 2014 at 11:25 am

    "First, it goes without saying (though in light of Defendant’s reductionist view of the purpose of marriage, it needs to be said) that marriage is of profound importance to couples who exchange vows of lifelong commitment to each other.

    For millions of Oklahomans, like millions of other Americans, those vows no doubt have consisted of the traditional and enduring pledges (or variations of them) “to have and to hold,” “for better or for worse,” “for richer, for poorer,” “in sickness and in health,” “to love and to cherish,” “until death do us part.”

    For no Oklahomans, it is safe to say, have marriage vows consisted of “channeling” their “presumptively procreative potential” into a “man-woman relationship” to avoid “unintended children” outside of marriage."


  • 4. KarlS  |  March 18, 2014 at 1:33 pm

    Oklahoma has for many years been in the top 3 or 4 states for high divorce rates per capita and per married population…it's hovered around 50% during all these years when virtually unanimous opposition to SSM has been de rigeur…by the same people who can't make 'traditional' marriage work. It is no wonder they call us Okies.

  • 5. sfbob  |  March 18, 2014 at 3:45 pm

    The brief brings to light some facts of which I was previously unaware (and with good reason: they weren't likely to impact me personally). First off, Oklahoma was the SECOND state (I guess after Nevada) to allow for no-fault divorce, having done so in 1953 at a time when most states made divorce an extremely onerous process. Secondly, while I'm not sure how other states typically define marriage in their civil code, it seems from the brief that Oklahoma's basic definition is particularly and obviously contract-based. Both of these facts have the salutary effect of undermining even more the already ridiculous claims of those who are currently defending the state's marriage equality ban.
    The brief also goes on to note in various places that apart from denying marriage to those who are incapable of giving consent, to those who are too closely related by birth and to those who are currently married to someone else, the state also has the unfortunate history of having a ban on interracial marriage (nullified by Loving vs Virginia of course and I presume also abandoned by statute). The important thing to note is that the state is oddly permissive with regard to both marriage and divorce, which makes a ban on same-sex marriage even more difficult to justify.
    Finally, in discussion of the state's refusal to recognize same-sex marriages legally solemnized in other states, the brief notes that Oklahoma generally recognizes even out-of-state marriages which the state would not permit to be solemnized in-state, specifically marriages between first cousins.

  • 6. Ragavendran  |  March 18, 2014 at 4:01 pm

    Good points! For these reasons, and also because the Plaintiffs have waited 10 years already on this case, I really wish SCOTUS does take up this case on appeal.

  • 7. Equality On TrialREAD IT &hellip  |  August 7, 2014 at 1:06 am

    […] first brief was filed by Smith in defense of the ban. The second brief was filed by both sets of plaintiff couples: the couple who was successful in district court in […]

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