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Media Alerts - Bishop v. Smith- 10th Circuit
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August 4, 2014
  Bishop v. Smith- 10th Circuit
Case Name: Bishop v. Smith -- 10th Circuit

Headline: Tenth Circuit upholds district court decision declaring Oklahoma state constitution prohibition on same-sex marriage unenforceable

Areas of Law: Constitutional Law

Issue Presented:

Is the State of Oklahoma's ban on same-sex marriage licenses unconstitutional?

Brief Summary:

The Tenth Circuit affirmed the Northern District of Oklahoma's ruling that Oklahoma's same-sex marriage ban was unconstitutional, using the court's previous decision in Kitchen v. Herbert. The court found that the plaintiffs had standing to challenge the laws, and that the Tulsa County Court Clerk was a proper defendant. The plaintiff's non-recognition claim, however, was not properly preserved for appeal.

Extended Summary:

The majority addressed the issue of standing prior to discussing the facts or the merits of the case. First, defendants challenged whether state constitutional provisions can be attacked without also challenging similar state statutes. Second, defendants challenged whether the Court Clerk is a proper defendant for the non-recognition aspect of the case. The majority concluded that state constitutional amendments subsume all existing state laws in Oklahoma. Therefore, an injunction against the constitutional provision would provide relief for the claimed injury. With respect to the second issue, the court held that because the Tulsa County Court Clerk does not have the power to redress the non-recognition issue, plaintiffs Gay Phillips and Susan Barton do not have standing to sue.

The majority noted that its ruling from Kitchen v. Herbert, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014) controls the outcome of the case. The majority noted its holdings from that decision:

(1) plaintiffs who wish to marry a partner of the same sex or have such marriages recognized seek to exercise a fundamental right; and (2) state justifications for banning same-sex marriage 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.

Using this criteria, the Court affirmed the district court's decision.

Plaintiffs Bishop and Baldwin sought a marriage license from the Tulsa County Court Clerk in February 2009 and were denied because they were of the same gender. Bishop and Baldwin alleged that they had to pay $1,300 in legal fees for power of attorney and health care proxy procedures because of their inability to marry. Additionally, they alleged that their inability to marry tells others that their relationship should not be respected. Plaintiffs Bishop and Barton took part in a civil union in Vermont in 2001, were married in Canada in 2005, and were married again in California in 2008. Oklahoma, however, refused to recognize their marriage. Bishop and Barton also alleged that they suffered tax consequences as a result of the Defense of Marriage Act ("DOMA").

Plaintiffs filed suit against the Oklahoma Governor and Attorney General in 2004 challenging State Question 711 (SQ 711), which bans the marriage or recognition of a marriage between a same-sex couple. Plaintiffs also named the United States President and Attorney General in their challenge to DOMA. The district court denied the Governor and State Attorney General's motion to dismiss in 2006. On appeal, the Tenth Circuit stated that the Plaintiffs did not have standing to sue because the recognition of marriages in Oklahoma was within the purview of the judiciary, not the executive branch. Plaintiffs then filed an amended complaint, naming Sally Howe-Smith as the defendant in her official capacity as Court Clerk for Tulsa County.

In 2011, the United States stated that it would not defend DOMA on the merits. Instead, the Bipartisan Legal Advisory Group intervened to defend the law. At summary judgment, Howe-Smith filed an affidavit stating that she had no power to recognize a marriage license issued in another state regardless of whether the couple were a same-sex or opposite-sex couple.

After U.S. v. Windsor, 133 S. Ct. 2675 (2013), was issued, the district court held that Plaintiffs Phillips and Barton lacked standing to challenge DOMA because state law, not federal law resulted in the non-recognition of their marriage; that any challenge to Section 3 of DOMA was moot under Windsor; that Phillips and Barton lacked standing to challenge the non-recognition part of the Oklahoma amendment because Smith was not involved in the recognition of marriages; and that Part A of SQ 711 violated the Equal Protection Clause, permanently enjoining it. The injunction was stayed pending appeal.

Howe-Smith asserted that Bishop and Baldwin lacked standing to bring the suit because they did not challenge a state statute that bars same-sex couples from marrying, thus failing to establish redressability. Howe-Smith relied on White v. U.S., 601 F.3d 545 (6th Cir. 2010), where a group of plaintiffs challenged the Animal Welfare Act. The plaintiffs alleged that they had suffered economic injury as a result of the Act, but the court found that the plaintiffs lacked standing because all fifty states and the District of Colombia banned cockfighting, so the plaintiffs' injuries would not have been redressed. Howe-Smith also relied on a number of sign ordinance cases.

The majority held that the cases relied on by Howe-Smith were distinguishable, because the Oklahoma statute banning same-sex marriage was not independently enforceable from SQ 711. SQ 711, the majority held, took the place of the state statute.

Next, Howe-Smith argued that the Supreme Court's summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is controlling because lower federal courts may not reject on-point summary dismissals regardless of doctrinal developments. The majority noted, however, that in Hicks v. Miranda, 422 U.S. 332 (1975), lower federal courts could reject a summary dismissal if doctrinal developments indicated that the decision is no longer controlling.

Howe-Smith then raised the argument that children have an interest in being raised by their biological parents, and that serving this interest is a compelling governmental goal. The majority responded by noting that banning same-sex marriage is not narrowly tailored to meet that goal. The majority noted several Oklahoma statutes that allow children to be raised by people other than their biological parents, including egg and sperm donation laws, human embryo transfer laws, and adoption laws. Furthermore, it noted that Oklahoma allows infertile opposite-sex couples to marry, even though they may raise non-biological children. The majority found that the law was both under-inclusive of couples who will raise children that are not their biological children, and over-inclusive of same-sex couples that have the fundamental right to choose not to raise children.

The majority then addressed a law of the case issue where, in Bishop v. Okla. ex rel. Edmonson, 333 F.App'x 361 (2009) (unpublished) ("Bishop I"), the court found that neither the Barton nor the Bishop couple had standing to bring the lawsuit because they could not prove redressability because the Governor and the Attorney General were not proper defendants. The majority noted that this conclusion did not necessarily become law of the case, because it could have been dicta, it could have dealt only with an older marriage of the Barton couple, or that, as a jurisdictional issue, it was not subject to law of the case. However, the majority found none of these reasons persuasive.

Applying the law of the case doctrine, the court determined that Bishop I did not require standing to sue on the non-recognition claim brought by the plaintiffs. Three exceptions apply to the law of the case - "(1) when new evidence emerges; (2) when intervening law undermines the original decision; and (3) when the prior ruling was clearly erroneous and would, if followed, create a manifest injustice." (Citations omitted.)

The majority stated that the first exception was the most applicable because Howe-Smith did not explain the "manifest injustice" required for the third exception on which she wished to rely. Additionally, the affidavit that she relied on to make her law of the case argument was not given to the court until after Bishop I was decided. The majority explained that the affidavit could properly be considered new evidence. However, the new evidence demonstrated that the Barton couple lacked standing to challenge the non-recognition aspect of the law. The majority considered and rejected a number of counter-arguments to their position.

Plaintiffs then attempted to establish standing by stating that Howe-Smith has "shut the courthouse doors" on them, and that an injunction against the non-recognition aspect of SQ 711 would redress this injury. Plaintiffs' failure to challenge the law on that ground, rather than on equal protection and due process grounds deprived the district court of the opportunity to evaluate standing on that claim. The majority found that the non-recognition challenge was properly dismissed.

Finally, the court addressed Plaintiffs' assertion that the non-recognition claim should be struck down under severability law regardless of standing. The majority concluded that this argument was not properly preserved for appeal, and that no sufficient reason for overlooking that lack of preservation was presented.

Judge Holmes issued a concurring opinion. Although Judge Holmes fully endorsed the reasoning of the majority, he wrote a concurrence to comment on the district court's decision not to rely upon animus doctrine in striking down SQ 711, noting that several district court opinions from other jurisdictions have done so. Judge Holmes reviewed what animus is, how it is found, and what a court must do if it is found. Judge Holmes concluded that applying the animus doctrine was inappropriate because the law was not broadly sweeping, and could not be considered unusual.

Judge Kelly concurred in part and dissented in part. Judge Kelly concurred that the Barton couple lacked standing to challenge the non-recognition provision, but disagreed with the majority on whether the law of the case doctrine applied. Additionally, Judge Kelly dissented that the plaintiffs had standing because they did not challenge the state statutes in addition to the constitutional provisions, and would have dismissed the appeal without reaching the merits of the case. On the merits, Judge Kelly disagreed with the majority and would have concluded that rational basis review applied and would have upheld Oklahoma's definition of marriage, using the same analysis he used in his dissent in Kitchen.

To read the full opinion, please visit:

Panel: Kelly, Lucero, Holmes

Date of Issued Opinion: July 18, 2014

Docket Numbers:
14-5003 & 14-5006

Decided: The District Court for the Northern District of Oklahoma was affirmed, but a stay was issued pending any potential writ of certiorari.


James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona (Byron J. Babione and David Austin R. Nimocks, Alliance Defending Freedom, Scottsdale, Arizona, and John David Luton, Assistant District Attorney, District Attorney's Office, Tulsa, Oklahoma, with him on the briefs), for Defendant - Appellant/Cross-Appellee.

Don G. Holladay, Holladay & Chilton PLLC, Oklahoma City, Oklahoma (James E.Warner III, Holladay & Chilton PLLC, Oklahoma City, Oklahoma, and Joseph T. Thai, Norman, Oklahoma, with him on the briefs), for Plaintiffs Appellees/Cross-Appellants.*

Author: Lucero

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 08/04/2014 09:25 PM     10th Circuit  

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