760 F.3d 1070 (10th Cir. 2014), 14-5003, Bishop v. Smith

Docket Nº:14-5003, 14-5006
Citation:760 F.3d 1070
Opinion Judge:LUCERO, Circuit Judge.
Party Name:MARY BISHOP and SHARON BALDWIN, Plaintiffs - Appellees, v. SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendant - Appellant/ Cross-Appellee, and SUSAN G. BARTON and GAY E. PHILLIPS, Plaintiffs - Appellees/ Cross-Appellants, UNITED STATES OF AMERICA, ex rel. Eric H. Holder, Jr., in his official cap
Attorney: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...
Judge Panel:Before KELLY, LUCERO, and HOLMES, Circuit Judges. HOLMES, Circuit Judge, concurring. KELLY, Circuit Judge, concurring in part and dissenting in part. HOLMES, Circuit Judge, concurring. KELLY, Circuit Judge, concurring in part and dissenting in part.
Case Date:July 18, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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760 F.3d 1070 (10th Cir. 2014)

MARY BISHOP and SHARON BALDWIN, Plaintiffs - Appellees,

and

SUSAN G. BARTON and GAY E. PHILLIPS, Plaintiffs - Appellees/ Cross-Appellants,

v.

SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendant - Appellant/ Cross-Appellee,

UNITED STATES OF AMERICA, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America, Defendant,

and

BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES; THAD BALKMAN; OKLAHOMAN'S FOR PROTECTION OF MARRIAGE, Intervenors - Defendants

Nos. 14-5003, 14-5006

United States Court of Appeals, Tenth Circuit

July 18, 2014

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

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APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 4:04-CV-00848-TCK-TLW).

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.[*]

Before KELLY, LUCERO, and HOLMES, Circuit Judges. HOLMES, Circuit Judge, concurring. KELLY, Circuit Judge, concurring in part and dissenting in part.

OPINION

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LUCERO, Circuit Judge.

This appeal was brought by the Court Clerk for Tulsa County, Oklahoma, asking us to overturn a decision by the district court declaring unenforceable the Oklahoma state constitutional prohibition on issuing marriage licenses to same-sex couples. It followed quickly on the heels of an analogous appeal brought by State of Utah officials requesting similar relief. Recognizing that the ruling in the Utah case would likely control the disposition of her appeal, the Oklahoma appellant asked that we assign these cases to the same panel. Our court did so.

Preliminary to reaching the merits, we are presented with two arguments challenging the plaintiffs' standing. The first challenges whether plaintiffs may attack state constitutional provisions without simultaneously attacking state statutes to the same effect. The second challenges whether the Court Clerk is a proper defendant as to the non-recognition portion of the Oklahoma constitutional prohibition.

We hold that plaintiffs possess standing to directly attack the constitutionality under the United States Constitution of Oklahoma's same-sex marriage ban even though their claim does not reach Oklahoma's statutory prohibitions on such marriages. Under Oklahoma law, a constitutional amendment " takes the place of all the former laws existing upon the subject with which it deals." Fent v. Henry, 2011 OK 10, 257 P.3d 984, 992 n.20 (Okla. 2011) (per curiam) (quotation omitted). Because the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter's enforcement will redress the claimed injury.

An earlier appeal of this same case involving the standing inquiry led to a decision by a panel of our court that dismissed proceedings brought against the Governor and Attorney General of Oklahoma. That panel ruled that " recognition of marriages is within the administration of the judiciary." Bishop v. Okla. ex rel. Edmondson, 333 F.App'x 361, 365 (10th Cir. 2009) (unpublished) (" Bishop I" ). We conclude that the law of the case doctrine applies to Bishop I, but that the doctrine is overcome by new evidence demonstrating that the Tulsa County Court Clerk could not redress the non-recognition injury, thereby depriving Gay Phillips and Susan Barton (the " Barton couple" ) of standing to sue.

Our merits disposition is governed by our ruling in Kitchen v. Herbert, No 13-4178, 755 F.3d 1193, (10th Cir. June 25, 2014). In that companion case, we held that: (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. Exercising jurisdiction under 28 U.S.C. § 1291, and governed by our ruling in Kitchen, we affirm.

I

Mary Bishop and Sharon Baldwin are in a long-term committed relationship and seek to marry. They live together in Tulsa County, Oklahoma, where they both work for the Tulsa World newspaper. Bishop is a sixth-generation Oklahoman and Baldwin is " at least a fourth-generation Oklahoman." They jointly own their home and other property.

In March 2000, the couple exchanged vows in a church-recognized " commitment ceremony." They feel, however, that this ceremony fails to " signify the equality" of their relationship, and that marriage conveys

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a " level of commitment or respect" that is not otherwise available. Bishop and Baldwin sought a marriage license from the Tulsa County Court Clerk in February 2009, but were denied because they are both women. The couple identifies several discrete harms they have suffered because of their inability to marry, including $1,300 in legal fees to prepare a power of attorney form and healthcare proxies. Moreover, they explain that their inability to marry under Oklahoma law is " demeaning" and " signals to others that they should not respect our relationship."

Phillips and Barton have been in a committed relationship since 1984. They took part in a civil union ceremony in Vermont in 2001, were married in Canada in 2005, and wed again in California in 2008. The couple jointly owns a company that provides training and assistance to non-profit agencies that conduct youth out-of-home care. Barton also teaches classes at Tulsa Community College, including a course titled " Building Relationships."

Phillips and Barton have suffered adverse federal tax consequences as a result of the Defense of Marriage Act (" DOMA" ), as well as adverse state tax consequences stemming from Oklahoma's refusal to recognize their marital status. They say that having their relationship recognized as a marriage " should have been a dream come true." Instead, " the State of Oklahoma has said ours is not a real marriage, but something inferior to the relationships of married opposite sex couples."

In November 2004, plaintiffs Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma Governor and Attorney General, challenging Oklahoma's state constitutional ban on same-sex marriage. The Oklahoma prohibition, known as State Question 711 (" SQ 711" ), provides:

A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage. C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.

Okla. Const. art. 2, § 35. The suit also named the United States President and Attorney General as defendants in a constitutional challenge to DOMA.

A motion to dismiss filed by the Governor and State Attorney General was denied by the district court in 2006. That decision was appealed to this court. In 2009, a panel of our court concluded that " [b]ecause the plaintiffs failed to name a defendant having a causal connection to their alleged injury that is redressable by a favorable court decision, . . . the Couples do not have standing." Bishop I, 333 F.App'x at 364. The panel held that " recognition of marriages is within the administration of the judiciary," and thus " the executive branch of Oklahoma's government has no authority to issue a marriage license or record a marriage." Id. at 365.

On remand, the district court permitted the plaintiffs to file an amended complaint naming as a defendant the " State of Oklahoma, ex rel. Sally Howe-Smith, in her official capacity as Court Clerk for Tulsa County." The court granted Oklahoma's motion to dismiss the state as a nominal party, leaving Smith as the sole state defendant. The amended complaint also asserted challenges to § § 2 and 3 of DOMA against the United States ex rel. Eric Holder. However, in February 2011, the United States notified the district court that it would no longer defend § 3 of DOMA

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on the merits. The Bipartisan Legal Advisory Group was permitted to intervene to defend the law. The case then progressed to the summary-judgment stage. Smith submitted an affidavit describing her duties as they related to the plaintiffs' allegations. In that affidavit, Smith swore that she had " no authority to recognize or record a marriage license issued by another state in any setting, regardless of whether the license was issued to an opposite-sex or a same-sex couple."

After the Supreme Court issued its decision in United States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the district court entered an opinion and order disposing of the United States' motion to dismiss, as...

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