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Oklahoma same-sex marriage case will go to Supreme Court

LGBT Legal Cases Marriage equality Marriage Equality Trials

Bishop v. Smith, the challenge to Oklahoma’s same-sex marriage ban, is headed to the Supreme Court. The announcement came late Friday night in a statement to The Oklahoman:

Kerri Kupec, spokeswoman for the Alliance Defending Freedom, told The Oklahoman that the clerk will ask Supreme Court justices to review the July 18 decision by the 10th U.S. Circuit Court of Appeals. In that 2-1 decision, the court ruled that Oklahoma’s ban violates 14th Amendment guarantees of due process and equal protection under the law.

Mary Bishop and Sharon Baldwin, the Tulsa County couple who sued the court clerk when she refused to give them a marriage license, issued a joint statement Friday night.

“Although we aren’t surprised by the Alliance Defending Freedom’s decision to appeal our victory from the 10th U.S. Circuit Court of Appeals, neither are we disappointed,” the couple said.

The Oklahoma case, in which the Tenth Circuit ruled that the state’s ban is unconstitutional, will join two other cases at the Supreme Court in the coming weeks: Bostic v. Rainey, a case from Virginia, is headed to the Court, along with Kitchen v. Herbert, from Utah. Petitions are expected to be filed in all three cases within three months.

In addition, at least eleven cases will be heard in appeals courts over the next two months. Six cases are scheduled for arguments in the Sixth Circuit Court of Appeals next Wednesday; then, two cases will be heard in the Seventh Circuit on August 26. Following that, the Ninth Circuit will hear arguments in three cases on September 8.

Any of those cases could be decided in time for the losing party to file a petition asking the Supreme Court to review the decision.

Another possibility for these additional cases exists: a party to a case may choose to file a petition with the Supreme Court before judgment in the appeals court, so that the Court will have more cases to choose from. Those petitions, called petitions for “certiorari before judgment”, are only granted in exceptional circumstances. Given the importance of the issue, the people involved on both sides of these cases may want the Justices to have more choices in terms of which case they may ultimately choose.

The Sixth Circuit cases are from Ohio, Michigan, Tennessee, and Kentucky. The Seventh Circuit cases are from Indiana and Wisconsin. The Ninth Circuit cases are from Hawaii, Idaho, and Nevada.

Just last week, the opening brief was filed in a challenge to Texas’ marriage ban in the Fifth Circuit. Arguments have not been scheduled for that case as of this writing.


  • 1. Corey_from_MD  |  August 2, 2014 at 1:57 pm

    Utah is next??? The end of all this might be in sight…

  • 2. Scottie Thomaston  |  August 2, 2014 at 2:12 pm

    Utah officials had already said they are going directly to SCOTUS:

    So as of now, Utah, Virginia, and Oklahoma are filing petitions at SCOTUS. But I'm sure there will be more before the time runs out to file in time to have a case heard in the October '14 term.

  • 3. SethInMaryland  |  August 2, 2014 at 3:58 pm

    Breaking news in Austrailia: Australia Marriage Equality Conscience Vote Called Highly Likely
    Written by scott on August 2nd, 2014
    Sydney, AustraliaIt’s looking like we might get another vote on Australia marriage equality shortly – this time a “conscience vote”.

    Pink News reports:

    According to lone Liberal Democrat MP David Leyonhjelm, who first announced he would introduced a same-sex marriage bill last month, it is “highly likely” the government will allow MPs a free vote on the issue. Senator Leyonhjelm told the Sydney Morning Herald that he has sped up the process, while he previously only planned to introduce the bill after a conscience vote was secured. He said: “I have heard from Liberal senators that a conscience vote is highly likely.” Despite 72% of Australians supporting marriage equality, with just 21% opposed, Liberal Prime Minister Tony Abbott remains staunchly opposed.
    Amazing that a party can oppose something with 72% support. But then again, we see similar things here in the US – look at sensible gun legislation and the GOP.

  • 4. SethInMaryland  |  August 2, 2014 at 4:08 pm

    i'm glad for the vote, but i'm not to going lie , i don't like that labur and greens traded other important human rights vote

  • 5. bythesea66  |  August 2, 2014 at 4:16 pm

    What was the trade-off?

  • 6. SethInMaryland  |  August 2, 2014 at 4:34 pm

    some ppl believe that it something to do with asylum-seekers or refugees, it's not offically said or anything but that's what trade is

  • 7. bythesea66  |  August 2, 2014 at 5:38 pm

    If true that does really suck…

  • 8. hopalongcassidy  |  August 2, 2014 at 5:12 pm

    You might be surprised if you knew how many gay folks are ardent supporters of the right to keep and bear arms…which is something that actually IS in the Constitution. Far too many "progressives" think the only "sensible" gun legislation is a ban. Ain't gonna happen.

  • 9. SethInMaryland  |  August 2, 2014 at 5:47 pm

    i support gun rights strongly , that was from the artical

  • 10. hopalongcassidy  |  August 3, 2014 at 6:22 am

    Thanks, it looked at first blush like it was your own added comment. My apologies.

  • 11. MichaelGrabow  |  August 2, 2014 at 8:44 pm

    Is that emphasis to imply that you don't think marriage equality is a right afforded by the constitution?

  • 12. hopalongcassidy  |  August 3, 2014 at 6:20 am

    I know for certain that marriage is not mentioned in the constitution. Does your copy have something mine does not? I support marriage equality with great vigor…both with actions and money. I merely pointed out a fact, please do not infer anything different.

  • 13. SPQRobin  |  August 2, 2014 at 5:29 pm

    It would be breaking news if it were actually decided already instead of being called "highly likely".

  • 14. SethInMaryland  |  August 2, 2014 at 5:45 pm

    look i know that, but right now this is the closest marriage equality has been to being achieved in Austraila , the equality groups over there have been fighting for this a long time , they are feeling like it finally happen and now and , they going into active mode as of right to put pressure to allow and pull this vote over the finnish line

  • 15. DACiowan  |  August 3, 2014 at 3:15 pm

    If Australia comes on board, the Ireland referendum passes next year as expected, and we get a national decision for marriage, that means close to a clean sweep of the (native speaking) Anglosphere. Considering the damage old British sodomy laws are still doing in the former colonies, to see the first language English speaking countries go to marriage so quickly is a nice trend to see.

  • 16. Marekweber  |  August 3, 2014 at 7:14 pm

    Here's some quick math: If you add up the populations of all the primarily English-speaking countries with more than a million inhabitants (USA, UK, Canada, Australia, Ireland, NZ, Jamaica, Trinidad & Tobago), it turns out that 52% of these people live in jurisdictions with marriage equality. It was Pennsylvania that tipped the Anglosphere to majority-ME.

  • 17. StraightDave  |  August 3, 2014 at 7:51 pm

    Don't forget Northern Ireland is still odd man out, and likely to remain for quite some time. I have no idea whether its coming "pariah status" or religious intransigence will have the most influence in the next 2-3 years.

  • 18. F_Young  |  August 2, 2014 at 6:12 pm

    "Any of those cases could be decided in time for the losing party to file a petition asking the Supreme Court to review the decision."

    Do you guys agree that, apart from certiorari before judgment, the Ninth Circuit case being argued on September 8 could be decided, and all the documentation for appeal be filed in time for SCOTUS to grant cert, hear arguments and issue a decision in June 2015? Is that not too quick for even the Seventh Circuit, which is to be heard on August 26?

    Wouldn't certiorari before judgment be the only hope for those cases to get to SCOTUS in time for June 2015?

  • 19. Ragavendran  |  August 2, 2014 at 10:04 pm

    Well, we may be surprised by the Ninth Circuit. The Alaska Supreme Court took a year and a half after oral argument (and 2.5 years from the filing of the appeal) to decide Schmidt, but citing that precedent, unanimously decided Harris in just about two months from oral argument. Similarly, given that the Ninth Circuit has already finalized SmithKline, if we get the right panel, it may not take them long to unanimously strike down Idaho's ban in Latta. (Idaho's case is the only one that seems likely to get properly appealed to the Supreme Court.) But if there is a dissenter, that will delay the judgment because it takes time to write dissents, circulate and coordinate internally.

  • 20. DoctorHeimlich  |  August 3, 2014 at 8:41 am

    Looking back to Hollingsworth v. Perry, the case was granted cert by the Supreme Court on December 7th, 2012, then argued on March 26, 2013. In theory, it could have even been granted cert a month later and still have made it in under the wire. (In the just-completed term, for example, the Aereo case was argued on April 22, 2014 and decided two months later.)

    That suggests that, so long as the Supremes sit on Kitchen, Bishop, and Bostic for a few conferences and don't elect to hear any of them, they could take any case ready for conference pretty much any time up through the end of this calendar year.

    Those three cases (Kitchen, Bishop, and Bishop) were all ruled on by their respective circuits between two and three months after they were argued. So add 2-3 months to the dates Scottie provides above in the article. If it's closer to the 2 than the 3, and the lawyers involved rush to get their briefs in (which they might, because they'd all love to be the ones arguing at the Supreme Court), then they could conceivably be ready within the "by the end of the year" time frame.

  • 21. brandall  |  August 3, 2014 at 9:41 am

    Are any landmark cases ever argued and the decision issued earlier than the "grand dramatic" climax at the end of the court's year?

  • 22. DoctorHeimlich  |  August 3, 2014 at 10:14 am

    Yes, but under particular circumstances. For example, there was the McCutcheon case last term (the case that did away with aggregate limits for campaign contributions). The opinion was announced on April 2, 2014. But it was argued right at the start of the term, on October 8, 2013. Cert had been granted in July, so the case was ready to go right away. That obviously won't be the situation in any of these cases, so we probably shouldn't expect anything sooner than the end of the term.

  • 23. DaveM_OH  |  August 5, 2014 at 6:54 am

    You can't use McCutcheon to say anything about certiorari timelines – because the law that created the limits specifically called for SCOTUS review.

    There was no cert petition – instead, McCutcheon invoked appellate jurisdiction and SCOTUS noted its jurisdiction on February 19, 2013, on a petition that was originally filed in October 2012. Merits briefs were then received and the calendaring order was filed in July, not a cert granted order.

  • 24. Randolph_Finder  |  August 3, 2014 at 7:50 pm

    Roe v Wade was issued on January 22nd. DC has had years when the anniversary protests have been in blowing snow.

  • 25. ebohlman  |  August 3, 2014 at 1:52 pm

    Problem here is that the 4th and 10th are real fast circuits, whereas the 9th is the slowest and the 6th isn't too far behind. 2-3 months for a ruling from either strikes me as wildly optimistic.

  • 26. brooklyn11217  |  August 3, 2014 at 10:15 am

    Here is a (slightly old) good summary of the cert before judgment practice at SCOUTS:

    So, seems more likely to me that one of the yet to be argued cases might be companion cases, but not get to be THE case on its own….

    Also, ACLU filed cert before judgment in WIindsor:

  • 27. Ragavendran  |  August 3, 2014 at 11:54 am

    Good article! I agree that there is a good chance that the Sixth, Seventh and Ninth Circuit cases (maybe even the Fifth) could be granted cert before judgment if petitioned for, provided the Supreme Court agrees to take one or more of Utah, Oklahoma, Virginia cases during its upcoming term.

    The Windsor situation seems to have been unusual. Two cert for judgment petitions were filed. One By Windsor and one by DOJ, prompting my first question whether any party can file for cert before judgment, and not just the losing party? And second, before the Court could act on the petitions for certiorari before judgment, the Second Circuit issued its opinion. The Supreme Court then granted cert later, I guess treating the already filed petition as a regular petition for cert. Does this say anything about whether the Court would have granted certiorari before judgment had the Second Circuit not acted so quickly?

  • 28. JayJonson  |  August 4, 2014 at 6:31 am

    It is possible that SCOTUS granted cert to Windsor because some justices wanted to settle the questions of standing it posed–including, whether the DOJ could appeal a decision it won and whether BLAG had standing–rather than because they wanted to settle the question of whether DOMA was unconstitutional. We can only speculate as to what went on in the conferences, but it could be that those who wanted to protect DOMA voted to grant cert to Windsor precisely because it had standing issues that they thought might prevent the court from reaching the merits. As you will recall Chief Justice Roberts appointed a special umpire (a Harvard professor) to report on the question of standing in Windsor. She reported that she thought neither the U.S. nor Blag had standing. Roberts said the same thing in his dissent. Thus, it may be that he may again raise standing questions to avoid reaching the merits in any case that is granted cert though it would be hard to use the same ploy again, since presumably the 5 who voted in favor of Windsor ultimately had no problem with standing in that case.

  • 29. F_Young  |  August 2, 2014 at 6:46 pm

    Activists want gay rights on Africa summit agenda

    "Human rights and gay rights activists on July 29 urged President Barack Obama to ensure that the issue of anti-gay discrimination in Africa is on the agenda at next week’s summit in Washington with more than 40 African leaders."

  • 30. Dr. Z  |  August 3, 2014 at 4:33 am

    Has there been discussion here of the three judges who will hear the combined appeals in the Sixth Circuit? Looks like we may have trouble with the makeup: a Clinton appointee and two Dubyas, one of whom clerked for Scalia. The second Dubya judge was mentioned as a possible SCOTUS nominee for McCain if he'd been elected in 2008.

  • 31. Zack12  |  August 3, 2014 at 5:03 am

    There has been here
    and your fears are justified.
    Anything can happen but I'm not going to be shocked if they rule against us, not in the least.

  • 32. F_Young  |  August 3, 2014 at 6:34 am

    Dr Z: "Has there been discussion here of the three judges who will hear the combined appeals in the Sixth Circuit?"

    Yes, it was discussed a bit in comments under:
    Equality news round-up: Challenge to New Jersey law banning so-called LGBT ‘conversion therapy’ dismissed, and more

    …starting with the third top-row comment.

  • 33. Ragavendran  |  August 3, 2014 at 7:16 am

    See also the discussion that happened as soon as the panel was released, under:

    … second from last top-level comment

  • 34. Ragavendran  |  August 3, 2014 at 4:53 am

    About 1000 couples originally "auditioned" to be part of a Florida Marriage Equality Lawsuit:

  • 35. Oklahoma Marriage Equalit&hellip  |  August 3, 2014 at 6:53 am

    […] Equality on Trial reports: […]

  • 36. ragefirewolf  |  August 3, 2014 at 4:59 pm

    Gods, the 9CA has to be the slowest judicial anything in the country. Can someone give me a somewhat reasonable guess as to why the Ninth is such a slurry of slowpokes?

  • 37. Eric  |  August 4, 2014 at 8:10 am

    It is the largest and busiest circuit.

  • 38. SeattleRobin  |  August 3, 2014 at 7:56 pm

    I've been attempting to get caught up on case document reading and it's difficult. A lot of docs are only linked to in comments, and looking through hundreds of comments to see if the one I'm looking for is linked is frustrating.

    Does anyone know of a site that lists each of the cases along with links to all the filed docs for the case?

    Equality Case Files on Facebook is only marginally better than here, and their section at Scribd is almost impossible because the docs are only listed with numbers. If I want to find the plaintiff opening brief to the 7th for Wisconsin Wolf, I have to click open every document until I find it or decide it hasn't been filed yet.

    If I read things as they're posted here I'm fine. If I have to put it off for a few days I'm lost. (Aside from posts that state in the title they contain a link to a specific doc.)


  • 39. Ragavendran  |  August 3, 2014 at 11:19 pm

    I'm in the process of adding the links to federal appellate case briefs to their corresponding events in my calendar. The cases are color-coded by circuit, so, hopefully, the information you seek is better-organized here:

  • 40. SeattleRobin  |  August 4, 2014 at 9:22 am

    Thanks, that's a help!

  • 41. JoshLmno  |  August 4, 2014 at 8:42 pm

    Ok, I gotta say I appreciate the information shared on this website, but the headline of this post is misleading and I think this isn't the first time. "Oklahoma same-sex marriage case will go to Supreme Court" at first glance sounds like the case WILL be heard and decided by the USSC. That's not known at this point. I understand that technically the headline is true, but others may not. Let's not be like the tabloid world net daily or one news now. Unless I'm totally missing something, which is very possible, a better headline would have been, "Oklahoma Clerk Will Ask the USSC to Review the 10th U.S. Circuit Court Decision."

    Just sayin', anyway, love this site, keep up the great work!

  • 42. RnL2008  |  August 6, 2014 at 6:56 am

    Morning folks,
    I feel like I'm a couple of days behind, but I will get caught up soon.

    It appears as if SCOTUS will have several rulings to choose from…….all we can do now is hope that which ever case is granted cert (if any) will ask the right question and give the best argument for our side. The defendants more than likely will be using the same failed arguments that caused them to lose in the first place.

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