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READ IT HERE: Final brief in Bishop v. Smith, Oklahoma marriage equality case in Tenth Circuit

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The fourth and final brief has been filed in Bishop v. Smith in the Tenth Circuit Court of Appeals. The case is an appeal of the district court’s opinion striking down the ban on performing same-sex marriages in the state; a cross-appeal was also filed by one plaintiff couple, challenging the district court’s ruling that they lacked standing to challenge the state’s ban on recognition of their out-of-state marriage.

The appeal was filed by Tulsa County Court Clerk Sally Howe Smith.

The 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 getting the ban struck down replied to Smith’s first brief, while the second plaintiff couple addressed their opening arguments against the ruling that they lack standing. The third brief, filed by Smith, addresses both aspects of the ban.

The final brief is a reply, filed by both sets of plaintiff couples.

You can read the brief here, via Kathleen Perrin and Equality Case Files:

14-5003 #4199 Plaintffs' Reply by Equality Case Files

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


  • 1. Bose_in_SP_MN  |  April 7, 2014 at 1:06 pm

    I love the response to the "genderless marriage" nonsense:

    "Defendant’s repeated slander of same-sex marriages as 'genderless' […] demeans and dehumanizes—as if Plaintiffs both lost their XX chromosomes when they wed in California and became something less than women…"

  • 2. JayJonson  |  April 7, 2014 at 1:12 pm

    Me too. I also love the way the brief demolishes the "states rights" nonsense. This is a very strong brief. The attorneys who filed it are clearly in command of the case and confident that their position is right.

  • 3. bayareajohn  |  April 7, 2014 at 1:58 pm

    Nice job. Takes the State to school.

  • 4. AndyInCA  |  April 7, 2014 at 3:57 pm

    I love this brief… it's a great read. The language seems to reflect our collective exasperation at having to reply to, over and over again, the same tired-old arguments we've seen from the pro-Hate side:

    "Defendant’s second brief recycles many of the same unsound arguments
    and inapt authorities from her first brief."

    "Defendant takes issue
    not only with Plaintiffs’ reasoning—and of course with the reasoning of all eight
    federal court rulings against same-sex marriage bans after Windsor 2—but
    ultimately with the progress of history, of modern contraception and reproductive
    technologies, and of the constitutional understanding of freedom and equality."

    "impressively refusing to connect the dots, Defendant reduces
    Romer, Lawrence, and Windsor to random pinpricks of precedent"

    "Defendant displays a woeful (if not willful) obliviousness to the reality of modern
    contraception and reproductive technologies."

  • 5. montezuma58  |  April 7, 2014 at 6:20 pm

    I'm going to have to figure out how to work the term "quintessentially irrational" into my everyday conversation. That's the most succinct assessment of the state's position.

  • 6. Rik  |  April 7, 2014 at 6:36 pm

    BAM! Smackdown!

  • 7. ebohlman  |  April 7, 2014 at 6:53 pm

    What's with "for starters" (see top of page 11)? Didn't the appellants' reply brief also use that? Is that just so common in OK that it's OK (hehe) to use it in legal documents?

  • 8. davep  |  April 7, 2014 at 7:31 pm

    I saw that too, and was wondering if the use of it here was a sarcastic reference to the previous use. It certainly looks out of place in a brief.

  • 9. JimT  |  April 8, 2014 at 7:22 am

    I thought "for starters" came across as being "personal" if they were sparring. I loved their response to "genderless marriage" it was to the point and amusing as well "demeans and dehumanizes—as if Plaintiffs both lost their XX chromosomes when they wed in California and became something less than women…"

  • 10. Dr. Z  |  April 8, 2014 at 7:24 am

    It's a pretty common colloquial expression in Oklahoma, although it's a little informal. It's more common in spoken rather than written discourse.

  • 11. sfbob  |  April 8, 2014 at 7:45 am

    I've never set foot in OK but I use it fairly often. But I have to agree it seems a bit odd seeing a legal brief.

  • 12. ebohlman  |  April 8, 2014 at 8:15 am

    Well I suppose we'll have to wait and see if it appears in the 10th Circuit's decision.

  • 13. Mike in Baltimore  |  April 8, 2014 at 12:20 am

    The last full sentence on page 10 reads: "But despite Defendant’s efforts to cast doubt, Oklahoma caselaw on this point is clear and unbroken." Skipping the footnote, the next words (top of page 11) are 'For starters', what looks to me to be a continuation of the thought about Oklahoma case law. (By the way, is it 'caselaw' [one word] or 'case law' [two words]? Findlaw indicates one, Wikipedia indicates two, as does Legal Dictionary.)

    There are several terms and phrases in common use in NE Indiana that I don't use in Baltimore as they are not in common use here. Same in the reverse (my sister laughed out loud when I asked for a 'soda' instead of a 'coke' or 'pop' [the names used in most of Indiana for a carbonated beverage, no matter the brand] one time when I was visiting Indiana after I had moved to Maryland). I presume the same goes on in other parts of the country. And that is why some phrasings that seem 'strange' can be included in briefs, which are very stylized and generally conform to a specific pattern, but mostly use common, everyday, words (of a region) in their composition.

  • 14. Lucius  |  April 8, 2014 at 9:07 am

    But see Citizens United v. FEC, 130 S. Ct. 876, 943 (Stevens, J., dissenting) ("For starters . . .")

  • 15. PDx_Str8_Supporter  |  April 8, 2014 at 10:16 am

    I like the imagery …
    "But fully viewed, the trilogy emerges as a constellation in our constitutional system outlining a recognition that gays and lesbians too may not be made “unequal to everyone else” by the state, Romer v. Evans, may exercise “the autonomy of the person” in “decisions relating to marriage, procreation, contraception, family relationships, [and] child rearing,”
    Lawrence v. Texas, and must be accorded “equal dignity” under the law—including “[s]tate laws defining and regulating marriage.” Windsor. The course that constellation charts for this case could not be clearer.

  • 16. Mary Bishop  |  April 8, 2014 at 10:12 pm

    Aren't our lawyers brilliant?

  • 17. AndyInCA  |  April 8, 2014 at 10:48 pm

    Mary Bishop? as in Bishop vs Smith?!?? You're on EoT??? *hugs*

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