The same panel of three judges that ruled last month that Utah’s same-sex marriage ban is unconstitutional reiterated that ruling on July 18 in Bishop v. Smith, 2014 U.S. App. LEXIS 13733, holding that Oklahoma’s ban was unconstitutional for the same reason: it denies same-sex couples a fundamental right without sufficient justification. Once again, 10th Circuit Judge Carlos F. Lucero wrote for the majority of the court in Bishop v. Smith, devoting most of his opinion to procedural and jurisdictional issues and, in fact, ceding one portion of the opinion to Judge Jerome A. Holmes, who also authored a separate concurring opinion to address an issue that technically wasn’t before the court: whether the Oklahoma Marriage Amendment was the product of unconstitutional animus, which Holmes concluded it was not. As in the Utah case, Judge Paul J. Kelly, Jr., dissented, but the focus of his dissent this time was Article III standing of the plaintiffs, not the merits of their constitutional claim. And, also as in the Utah case, the court stayed the effect of its ruling “pending the disposition of any subsequently-filed petition for writ of certiorari” to the Supreme Court. The Oklahoma marriage case has the distinction of having taken longer to get to this point — a ruling on the merits by the U.S. Court of Appeals — than any other marriage equality case.
It was filed nearly ten years ago, in November 2004, by two same-sex couples, Mary Bishop and Sharon Baldwin, who were seeking the right to marry, and Susan Barton and Gay Phillips, who were civilly united in Vermont in 2001 and subsequently married in Canada in 2005. Barton and Phillips were originally concerned with the failure of the federal government to recognize their legal relationship. That original lawsuit was filed against the Governor and Attorney General of Oklahoma and the federal government, and specifically challenged the Oklahoma Marriage Amendment, known as State Question 711 (SQ711) and the federal Defense of Marriage Act.
The case actually got to the 10th Circuit when the state officials appealed District Judge Terence C. Kern’s refusal to dismiss the complaint against them. In an unpublished opinion, the 10th Circuit ruled that neither the Governor nor the Attorney General were appropriate officials to sue, because neither played a direct role in administering Oklahoma’s marriage laws. The 10th Circuit said in that opinion that in Oklahoma the marriage laws were administered by the court system, through the court clerks in each county, so a lawsuit challenging the laws must be filed against a clerk. The case was sent back to the district court, where plaintiffs filed an amended complaint against the Tulsa County Clerk, Sally Howe-Smith, who refused to issue Bishop and Baldwin a marriage license. By then Barton and Phillips had gotten married in Canada (in 2005) and in California (in 2008), so now they were specifically seeking recognition of their out-of-state marriages by both Oklahoma and the federal government.
The case sat before Judge Kern for years with nothing much happening, other than the Tulsa court clerk, Sally Smith, filing an affidavit swearing that her job had nothing to do with recognizing out-of-state marriages. In 2011, when U.S. Attorney General Eric Holder announced that the Justice Department would no longer defend Section 3 of DOMA, the House Bipartisan Legal Advisory Committee (BLAG) entered the case to defend DOMA. After the Supreme Court decided U.S. v. Windsor last June, holding Section 3 of DOMA unconstitutional and setting off the avalanche of new marriage equality lawsuits around the country, Judge Kern reactivated the dormant lawsuit, which had been “on hold” while the DOMA litigation was playing itself out.
Placing great weight on Smith’s affidavit, Judge Kern ruled that Barton and Phillips, who were suing for recognition of their out-of-state marriages, had failed to sue an appropriate defendant and thus lacked standing to attack the state’s law on marriage recognition. Under standing principles in federal court, the plaintiffs have to sue a party whom the court can order to do something to redress the plaintiff’s injury. Barton and Phillips had never produced any evidence to contradict Smith’s affidavit, so it stood uncontradicted. Thus, Kern refused to rule on the marriage recognition issue. As to Bishop and Baldwin’s claimed right to marry, Kern ruled in their favor, rejecting the Smith’s argument that they also lacked standing because their lawsuit challenged only the constitutional amendment and not Oklahoma’s marriage statute, which also provides that only different-sex couples can marry. Kern brushed that problem aside, and held that the ban on same-sex marriage violated the 14th Amendment.
Smith appealed, represented by lawyers from Alliance Defending Freedom, an anti-gay litigation group based in Scottsdale, Arizona, as well as the Tulsa County District Attorney’s Office. Barton and Phillips also appealed, represented by Don Holladay, the Oklahoma City lawyer who had initially conceived the lawsuit and represented the couples throughout the litigation with other lawyers from his firm, Holladay & Chilton PLLC. Among other things, Barton and Phillips argued that they had appropriately sued the clerk, because that’s what the 10th Circuit had told them to do in the prior opinion.
Judge Lucero started his opinion by referring to the court’s ruling in Kitchen v. Herbert, the Utah marriage case, and reiterated the court’s holding from that case: same-sex couples are seeking to be included in the fundamental right to marry, and the state’s justifications for refusing to let them marry “that turn on the procreative potential of opposite-sex couples do not satisfy the narrow tailoring test applicable to laws that impinge upon fundamental liberties.” Smith had attempted to raise some new arguments, but Lucero rejected them.
More significantly, Smith argued that the right to marry claim should be dismissed on standing grounds because the complaint had attacked only the marriage amendment, not the marriage statute. Judge Lucero found that under Oklahoma law the marriage amendment actually replaced the statute, so a ruling holding the amendment unconstitutional would completely resolve the issue. Lucero quoted a prior Oklahoma case on point: “A time-honored rule teaches that a revising statute (or, as in this case, a constitutional amendment) takes the place of all the former laws existing upon the subject with which it deals.” Thus, there was no need to specify the marriage statute in the plaintiffs’ complaint.
Lucero also rejected Smith’s challenge to Judge Kern’s conclusion that Baker v. Nelson, the Supreme Court’s 1972 dismissal of a marriage equality case from Minnesota as not presenting a “substantial federal question” was not binding on the court. “Her argument that doctrinal developments do not allow a lower court to reject the continued applicability of a summary disposition is undermined by the explicit language of the case creating the rule,” Lucero wrote, citing the Supreme Court’s 1975 decision, Hicks v. Miranda, where the Court said that lower courts should adhere to the Supreme Court’s view that a case does not present a substantial federal question “except when doctrinal developments indicate otherwise.” Doctrinal developments at the level of the Supreme Court since 1972 certain establish that a right to marry for same-sex couples now presents a substantial federal question. If there were any doubt, the Windsor decision would lay that to rest.
Smith tried to revive the procreation argument, but in the guise of suggesting that the interest of children in being raised by both of their biological parents justifies the marriage ban. Lucero easily rejected this, explaining: “Oklahoma’s ban on same-sex marriage sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions. As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation. But Oklahoma has barred all same-sex couples, regardless of whether they will adopt, bear, or otherwise raise children, from the benefits of marriage while allowing all opposite-sex couples, regardless of their child-rearing decisions, to marry. Such a regime falls well short of establishing ‘the most exact connection between justification and classification,” which is required where a fundamental right is at stake.
Judge Holmes wrote the next part of the opinion, dealing with Barton/Phillips’ appeal of Kern’s ruling that they lacked standing to challenge the marriage-recognition portion of the Oklahoma marriage amendment because they had sued the wrong defendant. In its earlier decision in this case, the 10th Circuit had identified the court system – and specifically the county court clerks – as the appropriate defendant because the courts administer the state’s marriage laws through the clerks. Ordinarily, this ruling would be treated as part of the “law of the case” and not subject to challenge later on. But Holmes pointed out that there is an exception to the law of the case rule when new evidence is presented to the court that requires reconsidering the issue. In this case, the new evidence was Smith’s affidavit, filed in response to the amended complaint, in which she swore that her duties did not involve recognizing out-of-state marriages. This information was not part of the record for the prior 10th Circuit ruling because Smith was not a defendant then, having only been sued in the amended complaint filed after the case was returned to Judge Kern’s court. This “new” information was dispositive of the standing issue, wrote Judge Holmes, because it was clear that the court could not redress the plaintiffs’ marriage claim by issuing an order to Smith.
So, who could be sued on the marriage recognition question? Holmes pointed out that in other marriage equality cases, the plaintiffs had sued state officials who had a direct role in marriage recognition. For example, in several cases the plaintiffs sued state tax officials after they had refused to accept joint tax filings from same-sex couples who had married out of state. In Tennessee, a couple sued the commissioner of the department of finance and administration after the department turned down their application to participate in a family health insurance plan provided by one of their employers, a state university. In another case, the defendant was the state registrar of vital records for refusing to issue an appropriate birth certificate for a jointly-adopted child, and in another, the director of the state health department for refusing to recognize the marriage on a death certificate.
The court rejected other arguments made by Barton and Phillips to try to resuscitate their challenge to the marriage recognition part of the Oklahoma marriage amendment. “No matter how compelling the equitable arguments for reaching the merits of the non-recognition claim,” wrote the court, “its fate must be determined by the law, and the law demands dismissal. The frustration that may be engendered by the court’s disposition today should be tempered, however. Although it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court’s decision in Kitchen [the Utah case] casts serious doubt on the continuing vitality” of the recognition ban.
Judge Holmes wrote an interesting and lengthy concurring opinion as well, explaining why the 10th circuit judges agreed with Judge Kern in not relying on “animus” as a basis to strike down SQ711. Holmes traced in detail the development of the animus doctrine by the Supreme Court as an alternative way of dealing with challenged federal statutes, observing that when the court concludes that a statute disadvantaging particular groups was tainted by animus, it was unconstitutional because animus against a group never suffices as a legitimate ground for legislation. The prime example of this doctrine is Romer v. Evans, the Supreme Court’s 1996 decision striking down Colorado Amendment 2, which prohibited the state from protecting gay people from discrimination. The Supreme Court concluded that Amendment 2 was motivated by animus because it was extraordinarily sweeping and that it was unprecedented for the state to single out a class of people and deny them all redress from any form of discrimination they might encounter. By comparison, said Judge Holmes, SQ711 was narrowly focused on marriage and was hardly unprecedented, inasmuch as it merely enacted in state constitutional law the definition of marriage that had prevailed in Oklahoma throughout its history. Gay people had no fewer rights after it was passed than they had before it was passed. By contrast, Colorado Amendment 2 effectively rendered unenforceable the gay rights law in several Colorado municipalities and appeared on its face to take away from gay people the protection of the state constitution’s equal protection requirement. Holmes also pointed to the example of California Proposition 8, which took away from same-sex couples in California a state constitutional right to marry that had been identified previously by the California Supreme Court. In the Prop 8 litigation, the 9th Circuit held that Prop 8 was unconstitutional on the theory of Romer v. Evans, an animus case in that it withdrew a previously identified right. Holmes joined with Lucero to make up a majority of the court.
Judge Paul J. Kelly, Jr., dissented in part, arguing that the majority had misapplied Oklahoma precedents in finding that a challenge to the marriage amendment would suffice and there was no problem with plaintiffs having omitted a challenge to the marriage statute from their complaint. He agreed, however, with the court’s ruling that Judge Kern lacked jurisdiction over the marriage recognition claim. Because he found that the district court did not have jurisdiction over any of the claims due to the plaintiffs’ lack of standing, he did not address the merits, but he had already made clear in his Utah dissent that he believes that state bans on same-sex marriage do not violate the 14th Amendment. So far, he is the only federal judge since the Windsor ruling to take that position.
As Utah officials have indicated they will be filing a petition to review last month’s ruling with the Supreme Court, it seems likely that Oklahoma will follow suit. It would make little sense to petition for en banc review when a cert petition to review a ruling by the same 10th Circuit panel on marriage equality is pending before the Supreme Court. It would be highly unlikely that the judges of the 10th Circuit would vote in favor of granting rehearing en banc in such circumstances. But stranger things have happened.Tags: Bishop v. Smith, Judge Carlos Lucero, Judge Jerome Holmes, Judge Paul Kelly, Judge Terence Kern, Oklahoma gay marriage, Oklahoma marriage equality, Oklahoma same-sex marriage