Same-sex marriage in Oklahoma

Same-sex marriage in Oklahoma has been legal since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, following the U.S. Supreme Court's refusal to review Bishop v. United States, a case that had found the ban unconstitutional, the Tenth Circuit Court of Appeals ordered Oklahoma to recognize same-sex marriages. On January 14, 2014, Judge Terence C. Kern of the U.S. District Court for the Northern District of Oklahoma declared the state's statutory and constitutional same-sex marriage bans unconstitutional. The case, Bishop v. United States (formerly Bishop v. Oklahoma), was stayed pending appeal. On July 18, 2014, a panel of the Tenth Circuit upheld Kern's ruling overturning Oklahoma's same-sex marriage ban. However, the panel put its ruling on hold pending disposition of a petition for certiorari by the U.S. Supreme Court. On October 6, 2014, the U.S. Supreme Court rejected the request for review, leaving the Tenth Circuit Court's ruling in place. State officials responded by implementing the Tenth Circuit's ruling, recognizing same-sex marriage in the state.

Legal history

Restrictions

In 1975, the Oklahoma Legislature passed its first statute defining marriage as between "one man and one woman". In 1996, the Oklahoma Legislature passed another piece of legislation, defining marriage as between "one man and one woman" and prohibiting same-sex marriages performed out-of-state from being recognized in Oklahoma.

In April 2004, the Oklahoma Senate, by a vote of 38 to 7, and the Oklahoma House of Representatives, by a vote of 92 to 4, approved a constitutional amendment banning same-sex marriage. On November 2, 2004, Oklahoma voters approved the ban as Question 711. The amendment added a ban on same-sex marriage and any "legal incidents thereof be conferred upon unmarried couples or groups", such as civil unions. or domestic partnerships, to the Constitution of Oklahoma.

Non-binding resolution

In April 2013, the Oklahoma House of Representatives passed HCR 1009, a non-binding resolution reaffirming marriage as "between one man and one woman", and urging the U.S. Supreme Court to uphold the Defense of Marriage Act and the right of states to regulate marriage. It passed 84–0, with 71 Republicans and 13 Democrats voting in favor. 16 Democrats walked out of the chamber instead of voting in protest. The Oklahoma Senate approved the resolution later that same month.

Background

On November 3, 2004, the day after Oklahoma voters overwhelmingly approved a constitutional amendment banning same-sex marriage, two lesbian couples, Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips, filed a challenge in federal district court in Tulsa. The first couple had been denied a marriage license by the Tulsa County Clerk, Sally Howe Smith. The latter couple had formed a Vermont civil union in 2001 and married in British Columbia in 2005 while deliberations were pending. They were represented by Holladay and Chilton, an Oklahoma City law firm. Smith was represented by Tulsa County's district attorney and the Alliance Defending Freedom, a non-profit Christian advocacy organization. The case was Bishop v. United States. The defendants were the Attorney General of Oklahoma, Drew Edmondson, Governor Brad Henry, the U.S. Attorney General, John Ashcroft, and President George W. Bush. The couples sought, inter alia, a declaration that the Oklahoma Amendment was unconstitutional under the Due Process, Equal Protection, Full Faith and Credit and Privileges and Immunities clauses of the U.S. Constitution. They also challenged the federal Defense of Marriage Act (DOMA), passed in 1996. The state sought to dismiss, arguing that the couples lacked standing and their suit was barred by the Eleventh Amendment.

On July 20, 2006 Judge Terence C. Kern issued a partial victory for the plaintiffs, holding that they could litigate various challenges to the state constitutional amendment; however, he reduced the scope of the case by eliminating certain legal theories from consideration. Citing Smelt v. Orange County, a California case, he ruled that the couples lacked standing to challenge DOMA as neither had entered into a legal marriage in the United States. Kern ruled that Bishop and Baldwin lacked standing to challenge the portion of DOMA that excluded same-sex marriage from being recognized by the federal government because they were not married. However, he ruled that Barton Philips did have standing, as the couple had married in Canada and entered into a civil union in Vermont, and so determined that it would be premature to dismiss their claims. Kern found that both couples had standing to challenge the state amendment prohibiting same-sex marriage, since both were interested in being legally married in Oklahoma. State officials appealed to the Tenth Circuit of Appeals. The Tenth Circuit issued an unpublished decision on June 5, 2009, reversing the district court's failure to dismiss the claims against the Oklahoma officials, and dismissed the plaintiffs' claims for lack of subject matter jurisdiction. The remaining defendants, the United States and the Tulsa County Clerk, filed a motion to dismiss on October 13, 2009.

On February 25, 2011, prior to the court issuing a decision on the motions to dismiss, the United States notified the court that it would cease defending the constitutionality of Section 3 of DOMA. The Bipartisan Legal Advisory Group of the United States House of Representatives sought to intervene to defend DOMA. On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of DOMA violated the Due Process and Equal Protection clauses of the Fourteenth Amendment. That same day, the court also ruled in Hollingsworth v. Perry, allowing same-sex marriages to resume in California.

District court decision

On January 14, 2014, Judge Kern granted summary judgement to the plaintiffs and ruled that Oklahoma's ban on same-sex marriage was unconstitutional under the Equal Protection Clause. He issued an order permanently enjoining enforcement of the state's same-sex marriage ban, but stayed enforcement of his judgement pending appeal, citing the U.S. Supreme Court's issuance of a stay in a nearly identical case in Utah, Kitchen v. Herbert. Kern wrote that the U.S. Supreme Court's dismissal of a similar case, Baker v. Nelson, in 1972 was not binding precedent because "there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question". He found that two of the plaintiffs, Barton and Phillips, lacked standing to challenge Section 2 of DOMA because the federal officials they named as defendants had no responsibility for its enforcement and the record did not show that Oklahoma officials had failed to recognize Barton and Phillips' marriage in other jurisdictions. He noted that the couple "ha[d] played an important role in the overall legal process leading to invalidation of Section 3 of DOMA" and praised them and their attorneys "for their foresight, courage, and perseverance". Kern agreed with Bishop and Baldwin that the Oklahoma constitutional amendment banning same-sex marriage violated the Equal Protection Clause. He applied rational basis review and found the state's justifications, including encouraging responsible procreation, optimal child-rearing and the impact on the institution of marriage, "inadequate". Kern ruled that the constitutional amendment was "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit". Of the Supreme Court's jurisprudence on the issue of discrimination based on sexual orientation and equal protection, the decision said: "The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one."

Governor Mary Fallin responded to the decision by stating, "I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government." Attorney General Scott Pruitt called the decision "troubling" and said that the Supreme Court would have to decide the constitutionality of state bans on same-sex marriage.

Appeal to the Tenth Circuit Court of Appeals

Smith filed a notice of appeal with the Tenth Circuit Court of Appeals on January 16, and asked the court to expedite the appeal process and hear the case along with Kitchen v. Herbert. The same 3-judge panel of the Tenth Circuit that heard oral arguments in Kitchen on April 10 heard oral arguments in Bishop on April 17. On July 18, the court upheld the district court's ruling in a 2-1 decision, concluding that Oklahoma's same-sex marriage ban violated the U.S. Constitution, though it immediately stayed its ruling pending disposition of petition for certiorari by the U.S. Supreme Court. Jeffrey L. Fisher, a law professor at Stanford University and an experienced Supreme Court litigator, joined as lead counsel for those challenging Oklahoma's denial of marriage rights to same-sex couples in August. The Supreme Court rejected Oklahoma's appeal on October 6, 2014, and the Tenth Circuit Court's ruling subsequently went into effect, thus legalizing same-sex marriage in Oklahoma. Governor Fallin sharply criticized the Supreme Court's action, but announced that the state would comply and begin licensing and recognizing same-sex marriages.

Mary Bishop and Sharon Baldwin were among the first same-sex couples to apply for a marriage license, doing so at the Tulsa County Clerk office on October 6.

Native American nations

Same-sex marriage is legal on the reservations of the Cheyenne and Arapaho Tribes, the Cherokee Nation, and the Osage Nation. The Cheyenne and Arapaho Tribes were the first Native American tribe in Oklahoma to legalize same-sex marriage. In October 2013, Jason Pickel and Darren Black Bear were issued a marriage license at the tribal courthouse in Concho. While this was the first public same-sex marriage performed on the reservation, tribal officials confirmed that two other same-sex couples had married prior to this. According to tribal law, parties who wish to marry must do so on sovereign land and one party must be a member of the tribes, but the Tribal Code does not specify the gender of the couple. Same-sex marriage is explicitly banned in the Chickasaw Nation, the Choctaw Nation, the Citizen Potawatomi Nation, the Muscogee (Creek) Nation, and the Seminole Nation.

The Cherokee Nation legalized same-sex marriage on December 9, 2016. In May 2004, a lesbian couple from Owasso, Dawn McKinley and Kathy Reynolds, were issued a marriage license by a tribal court deputy clerk. The tribe quickly placed a moratorium on additional same-sex marriages. On June 14, the Tribal Council passed a law banning same-sex marriage, and the Tribal Council Attorney, Todd Hembree, filed a petition on June 16 in court to nullify the marriage license issued to McKinley and Reynolds. On August 3, 2005, the Judicial Appeals Tribunal in Tahlequah ruled that Hembree lacked standing to sue and could not show that he suffered any harm from the legal recognition of the marriage. In December 2005, the tribunal rejected a second lawsuit challenging the validity of the marriage. In January 2006, the Cherokee Court Administrator, Lisa Fields, responsible for recording marriage licenses, filed a third lawsuit challenging the validity of the marriage. The petition remained unanswered. On December 9, 2016, the Attorney General of the Cherokee Nation, Todd Hembree, who had originally challenged the marriage of McKinely and Reynolds back in 2004, issued an opinion that the same-sex marriage ban was unconstitutional under the Cherokee Nation Constitution, legalizing same-sex marriage in the tribe. Chad Smith, who had served as principal chief of the Cherokee in 2004, welcomed Hembree's opinion, saying, "It as adhering to past Cherokee law. But our constitution incorporates the provisions of the US Constitution, and the Supreme Court (of the United States) has since made its ruling.", referencing the U.S. Supreme Court's decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide in the United States. As a result, McKinley and Reynolds were the first married same-sex couple in the Cherokee Nation. The Osage Nation held a referendum on March 20, 2017 on whether to legalize same-sex marriage on tribal land, and the measure passed with a 52% majority.

Public opinion

Public opinion for same-sex marriage in Oklahoma

Poll source	Date(s) administered	Sample size	Margin of error	% support	% opposition	% no opinion
Public Religion Research Institute	March 8–November 9, 2021	?	?	64%	35%	1%
Public Religion Research Institute	January 7–December 20, 2020	529 random telephone interviewees	?	66%	29%	5%
Public Religion Research Institute	April 5–December 23, 2017	794 random telephone interviewees	?	53%	36%	11%
American Values Atlas/Public Religion Research Institute	May 18, 2016–January 10, 2017	1,154 random telephone interviewees	?	52%	40%	9%
American Values Atlas/Public Religion Research Institute	April 29, 2015–January 7, 2016	1,038 random telephone interviewees	?	44%	48%	8%
American Values Atlas/Public Religion Research Institute	April 2, 2014–January 4, 2015	737 random telephone interviewees	?	47%	48%	6%
SoonerPoll	October 25–29, 2014	404 likely voters	± 4.87%	29%	62%	9%
New York Times/CBS News/YouGov	September 20–October 1, 2014	1,244 likely voters	± 3.3%	37%	51%	12%
SoonerPoll	June 4–12, 2014	393 likely voters	± 4.9%	23.3%	66.2%	11%

See also

• LGBT rights in Oklahoma
• Same-sex marriage in the Tenth Circuit
• Same-sex marriage in the United States