Mary Bishop v. United States ex rel. Holder

• Decision Date: 14 January 2014
• Docket Number: No. 04–CV–848–TCK–TLW.,04–CV–848–TCK–TLW.
• Citation: 962 F.Supp.2d 1252
• Parties: Mary BISHOP, Sharon Baldwin, Susan Barton, and Gay Phillips, Plaintiffs, v. UNITED STATES of America, ex rel. Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States of America; and Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendants, Bipartisan Legal Advisory Group of the U.S. House of Representatives, Intervenor–Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

962 F.Supp.2d 1252

Mary BISHOP, Sharon Baldwin, Susan Barton, and Gay Phillips, Plaintiffs,
v.
UNITED STATES of America, ex rel. Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States of America; and Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendants,
Bipartisan Legal Advisory Group of the U.S. House of Representatives, Intervenor–Defendant.

No. 04–CV–848–TCK–TLW.

United States District Court,
N.D. Oklahoma.

Jan. 14, 2014.

Held Unconstitutional
Okla.Const. Art. 2, § 35(A).

Recognized as Unconstitutional

1 U.S.C.A. § 7.

[962 F.Supp.2d 1258]

Don G. Holladay, James E. Warner, Holladay & Chilton PLLC, Laura Lea Eakens, Jennings Cook & Teague PC, Oklahoma City, OK, Timothy P. Studebaker, Studebaker & Worley PLLC, Phillip Craig Bailey, P. Craig Bailey, Tulsa, OK, for Plaintiffs.

Austin R. Nimocks, Alliance Defense Fund, Judson Owen Littleton, W. Scott Simpson, Washington, DC, Brian W. Raum, James A. Campbell, Byron J. Babione, Holly L. Carmichael, Alliance Defending Freedom, Scottsdale, AZ, Dale Michael Schowengerdt, Alliance Defense Fund, Leawood, KS, John David Luton, Tulsa, OK, for Defendants.

Kerry W. Kircher, U.S. House of Representatives Office of General Counsel, Washington, DC, for Intervenor–Defendant.

OPINION AND ORDER
TERENCE C. KERN, District Judge.

This Order addresses challenges to state and federal laws relating to same-sex marriage. The Court holds that Oklahoma's constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court lacks jurisdiction over the other three challenges.

I. Factual Background

This case involves challenges to: (1) both sections of the federal Defense of Marriage Act (“DOMA”), codified at 28 U.S.C. § 1738C and 1 U.S.C. § 7; and (2) two subsections of an amendment to the Oklahoma Constitution, which are set forth in article 2, section 35(A)-(B) (the “Oklahoma Constitutional Amendment”). All challenges arise exclusively under the U.S. Constitution.

A. DOMA

DOMA, which became law in 1996, contains two substantive sections. Section 2 of DOMA, entitled “Powers Reserved to the States,” provides:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Defense of Marriage Act § 2, 28 U.S.C. § 1738C. Section 3 of DOMA, entitled “Definition of Marriage,” provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Id. § 3, 1 U.S.C. § 7. This federal definition, which was declared unconstitutional during the pendency of this lawsuit, informed the meaning of numerous federal statutes using the word “marriage” or

[962 F.Supp.2d 1259]

“spouse” and functioned to deprive same-sex married couples of federal benefits. See United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 2683, 186 L.Ed.2d 808 (2013) (striking down DOMA's definition of marriage, which controlled “over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law,” as a violation of the Fifth Amendment to the U.S. Constitution).

B. Oklahoma Constitutional Amendment

On November 2, 2004, Oklahoma voters approved State Question No. 711 (“SQ 711”), which was implemented as article 2, section 35 of the Oklahoma Constitution.¹ The Oklahoma Constitutional Amendment provides:

“Marriage” Defined—Construction of Law and Constitution—Recognition of Out–of–State Marriages—Penalty

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.²

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.³

C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
Okla. Const. art. 2, § 35 (footnotes added). Part A of the Oklahoma Constitutional Amendment (“Part A”) is the definitional provision, which provides that marriage in Oklahoma “shall consist only of the union of one man and one woman.” Part B of the Oklahoma Constitutional Amendment (“Part B”) is the “non-recognition” provision, which provides that same-sex marriages performed in other states “shall not be recognized as valid and binding” in Oklahoma. Only Parts A and B are challenged in this lawsuit.

C. Procedural History⁴

In late 2004, Plaintiffs Mary Bishop and Sharon Baldwin (“Bishop couple”) and Susan Barton and Gay Phillips (“Barton couple”), two lesbian couples residing in Oklahoma, filed a Complaint seeking a declaration that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution. In August 2006, the Court denied a motion to dismiss filed by the Oklahoma Attorney General and Oklahoma Governor, rejecting their sovereign immunity argument. See Bishop I, 447 F.Supp.2d at 1255 (holding that suit was proper against these officials under

[962 F.Supp.2d 1260]

the Ex parte Young doctrine). The state officials appealed this Court's denial of sovereign immunity, and the Court stayed the proceedings pending appeal.

On June 5, 2009, the Tenth Circuit issued an unpublished decision reversing this Court's “failure to dismiss the claims against the Oklahoma officials” and remanding the “case for entry of an order dismissing these claims for lack of subject matter jurisdiction.” See Bishop II, 333 Fed.Appx. at 365. The Tenth Circuit's reversal was based on Plaintiffs' lack of standing to pursue their claims against the named state officials: ⁵

The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. SeeOkla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit. 43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk's ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk's administrative district.” Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma's government has no authority to issue a marriage license or record a marriage. Moreover, even if the Attorney General planned to enforce the misdemeanor penalty (a claim not made here), that enforcement would not be aimed toward the Couples as the penalty only applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an injunction (tellingly, not requested here) against them give the Couples the legal status they seek.
Id. at 365 (footnote omitted).

Following remand, Plaintiffs retained new counsel and were granted leave to file an Amended Complaint. As implicitly directed by Bishop II, Plaintiffs sued the Tulsa County Court Clerk in place of the previously named officials. Specifically, Plaintiffs sued “State of Oklahoma, ex rel. Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County,” alleging:

[Sally Howe Smith] is sued in her official capacity as Clerk of Tulsa County District Court. Pursuant to state law, she is the designated agent of the State of Oklahoma given statutory responsibility for issuing and recording marriage licenses.

(Am. Compl. ¶ 7.) The State of Oklahoma filed a second motion to dismiss, again asserting its immunity and arguing that it should be dismissed as a nominal party to the case. The Court granted this motion and dismissed the “State of Oklahoma” as a nominal party. See Bishop III, 2009 WL 4505951, at *3. Thus, the current Defendants to the lawsuit are: (1) United States of America, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America (“United States”); and (2) Sally Howe Smith (“Smith”), in her official capacity as Court Clerk for Tulsa County, State of Oklahoma.

[962 F.Supp.2d 1261]

Smith is represented by the Tulsa County District Attorney's Office and attorneys with an organization known as the “Alliance Defending Freedom.”

Smith and the United States filed motions to dismiss the Amended Complaint. The United States based its motion, in part, on the Barton couple's lack of standing to challenge Section 3 of DOMA.⁶ The Court ordered the Barton couple to provide more particularized facts regarding the federal benefits that were allegedly desired and/or sought but that were unavailable and/or denied as a result of Section 3. After the Barton couple submitted supplemental affidavits, the United States conceded that the Barton couple had standing to challenge Section 3 and abandoned this section of its motion to dismiss.

On February 25, 2011, prior to the Court's issuing a...