Tuesday, 28 January 2014

We can all achieve change



Big changes towards equality always make a splash. Small changes do not have the same impact, but are always welcome. Sometimes this incremental change enables big change. Sometimes, it follows in the wake of big change. Often when we seek change, we seem overwhelmed- how can little me effect change? This is the story of a small welcome change towards equality.

Vicki Mitchell-Taylor of Aussie is an excellent mortgage broker. I refer clients to her. Naturally, I send her emails.  My emails often bounced back, with an automatic disclaimer dreamed up by some IT wowser somewhere in the bowels of Aussie that they were “inappropriate” because they contained “sexual content”. There was no sexual content. My emails at the end refer to me being the author of three blogs, one being this blog, the Australian Gay and Lesbian Law Blog

This had happened to me a number of times until finally one day I had had enough. I had sent Vicki an email about a client I was referring to her. My email bounced back, for the usual reason. After speaking to Vicki, I contacted a higher up at Aussie, telling her that the screening was discriminatory and I would not stand for it any longer. I sought that Aussie change its settings. 

It took a week, but the Aussie higher up did so. The settings were changed. Now when I send Vicki emails, they go through. They don’t bounce back, saying that they were “inappropriate” because they contained “sexual content”. I still say, proudly, at the end of my emails that I am the author of the Australian Gay and Lesbian Law Blog. The mouse had roared- we are one small step closer to equality.

Wednesday, 15 January 2014

Oklahoma gay marriage decision

For the sake of completeness, here is the judgment in the Oklahoma marriage case decided this morning our time. My summary of the case is here.


IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF OKLAHOMA


MARY BISHOP, )


SHARON BALDWIN, )


SUSAN BARTON, and )


GAY PHILLIPS, )


)


Plaintiffs, ))


v. ) No. 04-CV-848-TCK-TLW


)


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. )


OPINION AND ORDER
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
Case 4:04-cv-00848-TCK-TLW Document 272 Filed in USDC ND/OK on 01/14/14 Page 1 of 68
“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 “spouse” and functioned to deprive same-sex married couples of federal benefits. See


United States v. Windsor, 133 S. Ct. 2675, 2683 (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).


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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 Outof-


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

1 SQ 711 passed by a vote of 1,075,216 to 347,303. (See Smith’s Cross Mot. for Summ.




J., Ex. 3.)

2 An Oklahoma statute also prevents same-sex couples from marrying. Okla. Stat. tit.




43, § 3(A) (“Any unmarried person who is at least eighteen (18) years of age and not otherwise

disqualified is capable of contracting and consenting to marriage with a person of the opposite


sex”) (emphasis added). This statute is not challenged.


3 An Oklahoma statute also prevents recognition of same-sex marriages. Okla. Stat. tit.




43, § 3.1 (“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.”). This statute is


not challenged.


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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 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, 2009 WL




1566802, at *4. The Tenth Circuit’s reversal was based on Plaintiffs’ lack of standing to pursue

their claims against the named state officials:5

4 This case has a lengthy procedural history. See Bishop v. Okla. ex rel. Edmondson, 447

F. Supp. 2d 1239 (N.D. Okla. 2006) (“Bishop I”); Bishop v. Okla. ex rel. Edmondson, No. 06-

5188, 2009 WL 1566802 (10th Cir. June 5, 2009) (“Bishop II”); Bishop v. United States, No. 04-

CV-848, 2009 WL 4505951 (N.D Okla. Nov. 24, 2009) (“Bishop III”). In this Opinion and




Order, the Court only includes background facts that are relevant to the currently pending


motions.

5 Because standing was not raised on appeal, the Tenth Circuit examined it sua sponte.

(See id. at *2.)




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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. See Okla. 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 *3 (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




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(“United States”); and (2) Sally Howe Smith (“Smith”), in her official capacity as Court Clerk for


Tulsa County, State of Oklahoma. 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 decision on the pending motions to


dismiss, the United States notified the Court that it would “cease defending the constitutionality of


Section 3 of [DOMA],” thereby abandoning other portions of its previously filed motion to dismiss.

(See Not. to Court by United States of Am. 1.) The United States informed the Court of the




possibility that members of Congress would elect to defend Section 3. On July 21, 2011, the


Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) filed a motion

to intervene “as a defendant for the limited purpose of defending Section 3.” (See Mot. of BLAG




to Intervene 1.) The Court permitted BLAG to intervene pursuant to Federal Rule of Civil


Procedure 24(b)(1)(A) and referred the matter to Magistrate Judge T. Lane Wilson for a scheduling


conference. Magistrate Judge Wilson conducted the conference and entered an agreed schedule.

6 The Barton couple challenges both sections of DOMA and both sections of the




Oklahoma Constitutional Amendment. The Bishop couple challenges only Part A of the


Oklahoma Constitutional Amendment.


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Smith and the United States withdrew their previously filed motions to dismiss, and the briefing


process began anew.


Although the Court did not issue a formal stay of the proceedings, the Court was aware that


the United States Supreme Court had granted certiorari in two cases presenting nearly identical


issues to those presented here – namely, the constitutionality of Section 3 of DOMA and the


constitutionality of Proposition 8, a California ballot initiative amending the California Constitution


to define marriage as between a man and a woman. The Court delayed ruling in this case pending


the Supreme Court’s decisions.

On June 26, 2013, the Supreme Court issued its heavily anticipated decisions in United


States v. Windsor, 133 S. Ct. 2675 (2013) (addressing Section 3 of DOMA), and Hollingsworth v.


Perry, 133 S. Ct. 2652 (2013) (addressing Proposition 8). In Windsor, the Supreme Court held that




Section 3 of DOMA “violates basic due process and equal protection principles applicable to the

Federal Government.” Windsor, 133 S. Ct. at 2693-94. This holding renders moot the Barton

couple’s challenge to Section 3. See infra Part III. In Hollingsworth, the Supreme Court held that

the official proponents of Proposition 8 lacked standing. See Hollingsworth, 133 S. Ct. at 2662-68




(reasoning that the proponents of Proposition 8 had not been ordered “to do or refrain from doing


anything” by the trial court and that “[t]heir only interest in having the district court’s holding


reversed was to vindicate the constitutional validity of a generally applicable California law”).


Therefore, the Court did not reach the constitutionality of Proposition 8.
D. Barton Couple
Plaintiffs Susan Barton and Gay Phillips have resided in Oklahoma for over fifty years and


currently own a home in Tulsa, Oklahoma. They also own Barton, Phillips, and Associates, Inc.,


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a company that provides training to agencies serving homeless teens. Ms. Phillips has a doctorate


degree in sociology, and Ms. Barton is an adjunct professor at Tulsa Community College, where she


teaches courses on “Building Relationships” and “Teaching Discipline.” The Barton couple has


been in a continuous, committed relationship since November 1, 1984. They were united in a


Vermont civil union in 2001 and were married in Canada on May 16, 2005. On November 1, 2008,


prior to filing their Amended Complaint, they were issued a marriage license by the State of

California and married under California law.7



As a same-sex couple that has been legally married in the United States, the Barton couple


challenges Sections 2 and 3 of DOMA as violative of equal protection and substantive due process


rights guaranteed by the Fifth Amendment to the U.S. Constitution. The Barton couple seeks a


declaratory judgment that DOMA is unconstitutional and a permanent injunction restraining


enforcement of DOMA. As a same-sex couple that is denied the right to marry in Oklahoma, the


Barton couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal


protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S.


Constitution. The Barton couple also challenges Part B, which prohibits recognition of their


California marriage in Oklahoma, as violative of equal protection and substantive due process rights

guaranteed by the Fourteenth Amendment.8 As remedies, the Barton couple seeks a declaratory


7 When this Court issued its decision in Bishop I, the Barton couple had entered into a




Vermont civil union and a Canadian marriage. The Court held that neither relationship was


“treated as a marriage in another State” and that the Barton couple lacked standing to challenge

Section 2. See Bishop I, 447 F. Supp. 2d at 1245-49. In their Amended Complaint, the Barton




couple includes allegations regarding their California marriage.

8 During the scheduling conference, Magistrate Judge Wilson raised the question of




whether the Amended Complaint asserted a challenge to Part B. The Barton couple asserted that


they intended to challenge Part B in their Amended Complaint and desired to address Part B in


their summary judgment brief. Smith did not object. Therefore, based on certain allegations in


8
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judgment that Parts A and B of the Oklahoma Constitutional Amendment violate the U.S.


Constitution and a permanent injunction enjoining enforcement of Parts A and B.
E. Bishop Couple
Plaintiffs Mary Bishop and Sharon Baldwin have resided in Oklahoma throughout their lives


and own a home in Broken Arrow, Oklahoma. They also jointly own a 1.3-acre lot in Osage

County, Oklahoma. Ms. Bishop is an assistant editor at the Tulsa World newspaper, and Ms.

Baldwin is a city slot editor at the Tulsa World. The Bishop couple has been in a continuous,




committed relationship for over fifteen years and exchanged vows in a commitment ceremony in


Florida in 2000. On February 13, 2009, the Bishop couple sought the issuance of a marriage license


from Smith. Smith refused them a marriage license based upon their status as a same-sex couple.


As a same-sex couple that is denied the right to marry in Oklahoma, the Bishop couple


challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and


substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.


The Bishop couple seeks a declaratory judgment that Part A is unconstitutional and a permanent


injunction enjoining enforcement of Part A.
F. Pending Motions
This Order substantively addresses the following pending motions: (1) the United States’


motion to dismiss, in which the United States argues that the Barton couple lacks standing to

challenge Section 2;9 (2) the Barton couple’s motion for entry of final judgment as to Section 3,




the body of the Amended Complaint and Smith’s lack of objection, the Court construes the


Amended Complaint as also challenging Part B.

9 The United States’ motion to dismiss only attacks standing and does not offer any




defense of Section 2 on the merits. BLAG intervened for the limited purpose of defending the


constitutionality of Section 3. Therefore, the only opposition to the Barton couple’s challenge to


9
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which they filed following the Windsor decision; (3) Plaintiffs’ Motion for Summary Judgment, in




which Plaintiffs argue that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma


Constitutional Amendment violate the U.S. Constitution; and (4) Smith’s Cross Motion for


Summary Judgment, in which Smith argues that the Barton couple lacks standing to challenge Part


B, and that Parts A and B do not violate the U.S. Constitution.


The Court holds: (1) the Barton couple lacks standing to challenge Section 2 of DOMA; (2)


the Barton couple’s challenge to Section 3 of DOMA is moot; (3) the Barton couple lacks standing


to challenge Part B of the Oklahoma Constitutional Amendment; (4) the Bishop couple has standing

to challenge Part A of the Oklahoma Constitutional Amendment;10 and (5) Part A of the Oklahoma




Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to


the U.S. Constitution.
II. Barton Couple Lacks Standing to Challenge Section 2 of DOMA
In its motion to dismiss, the United States argues that the Barton couple lacks standing to


challenge Section 2 because “any inability to secure recognition of their [California] marriage in


Oklahoma would be attributable, not to the United States, but to the appropriate Oklahoma state

official.” (United States’ Mot. to Dismiss 2.)11



Section 2 is the United States’ standing argument.

10 The Court reaches the merits of Part A based upon the Bishop couple’s standing and




does not reach the question of whether the Barton couple also has standing to challenge Part A.

See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) (“Because we find [one




plaintiff] has standing, we do not consider the standing of the other plaintiffs.”).

11 As explained infra Part IV, Smith testified that she is not the state official connected to




recognition of out-of-state marriages, and the Barton couple failed to controvert this evidence.


Thus, the identity of the “appropriate State official” remains unclear.


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A. Purpose of Section 2
Preliminary discussion of the purpose and legislative history of Section 2 is warranted.


Relevant to this case, Section 2 provides that no state “shall be required to give effect to” a marriage


license of any other state if the marriage is between persons of the same sex. 28 U.S.C. § 1738(C).


According to the House Report preceding DOMA’s passage, the primary purpose of Section 2 was


to “protect the right of the States to formulate their own public policy regarding legal recognition


of same-sex unions, free from any federal constitutional implications that might attend the

recognition by one State of the right for homosexual couples to acquire marriage licenses.” See H.R.

Rep. No. 104–664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906. More specifically,




Congress was concerned that


if Hawaii (or some other State) recognizes same-sex marriages, other States that do


not permit homosexuals to marry would be confronted with the complicated issue of


whether they are nonetheless obligated under the Full Faith and Credit Clause of the


United States Constitution to give binding legal effect to such unions.

Id. at 2913. The House Judiciary Committee (“Committee”) determined that states already




possessed the ability to deny recognition of a same-sex marriage license from another state, so long


as the marriage violated a strong public policy of the state having the most significant relationship

to the spouses at the time of the marriage. Id. However, the Committee also expressed its view that

such conclusion “was far from certain.” Id. at 2914; see also id. at 2929 (“While the Committee




does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would


require sister states to give legal effect to same-sex marriages celebrated in other States, there is


sufficient uncertainty that we believe congressional action is appropriate.”).


In order to address this uncertainty, Congress invoked its power under the second sentence


of the U.S. Constitution’s Full Faith and Credit Clause (the “Effects Clause”), which permits


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Congress to “prescribe the effect that public acts, records, and proceedings from one State shall have

in sister States.” Id. at 2929. The Committee described Section 2 as a “narrow, targeted relaxation

of the Full Faith and Credit Clause.” Id. at 2932. Consistent with this legislative history, Section




2 has been described by courts and commentators as permitting states to refuse to give full faith and

credit to same-sex marriages performed in another state. See Windsor, 133 S. Ct. at 2682-83




(“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex

marriages performed under the laws of other States.”); Smelt v. Cnty. of Orange, 447 F.3d 673, 683




(9th Cir. 2006) (explaining that “Section 2, in effect, indicates that no state is required to give full


faith and credit to another states’ determination that ‘a relationship between persons of the same sex

. . . is treated as a marriage’”); Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 378 (D.




Mass. 2010) (“In enacting Section 2 of DOMA, Congress permitted the states to decline to give


effect to the laws of other states respecting same-sex marriage.”) (footnote omitted); Gillian E.

Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1532 (2007)




(“Section 2’s purpose, evident from its terms, is to ensure that states will not be required to

recognize same-sex marriage by virtue of the Full Faith and Credit Clause.”).12

12 Since DOMA’s passage, some scholars have concluded that Section 2 was

unnecessary and simply reiterates a power that states already possessed. See Joshua Baker &

William Duncan, As Goes DOMA . . . Defending DOMA and the State Marriages Measures, 24




Regent Univ. L. Rev. 1, 8 (2011-2012) (“Over time, something of a consensus seems to have


developed among scholars that Section 2 of DOMA merely restates existing conflicts of law


principles with respect to interstate recognition of a legal status or license . . . .”); William

Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371, 1392




(2012) (“Section 2 of DOMA is expressly intended to ratify such [state public] policies (if any

ratification were needed).”); Mary L. Bonauto, DOMA Damages Same-Sex Families and Their


Children, 32 Fam. Adv. 10, 12 (Winter 2010) (“[S]tates have long possessed the power to decide




which marriages they would respect from elsewhere, a power that both proponents and

opponents of DOMA agree existed before and after DOMA.”); Patrick Borchers, The Essential


Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38 Creighton




Law R. 353, 358 (2005) (arguing that Section 2 of DOMA was unnecessary because it “simply


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B. Standing Analysis
The Barton couple bears the burden of proving that there is an actual “case or controversy”

regarding Part B. See Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 756




(10th Cir. 2010) (“Article III of the Constitution limits the jurisdiction of federal courts to actual


cases or controversies.”). This jurisdictional requirement is known as standing. “To establish


standing, plaintiffs bear the burden of demonstrating that they have suffered an injury-in-fact which


is concrete and particularized as well as actual or imminent; that the injury was caused by the

challenged [laws]; and that the requested relief would likely redress their alleged injuries.” Id. This




three-pronged inquiry seeks to resolve three questions:


Is the injury too abstract, or otherwise not appropriate, to be considered judicially


cognizable? Is the line of causation between the illegal conduct and injury too


attenuated? Is the prospect of obtaining relief from the injury as a result of a


favorable ruling too speculative?

Allen v. Wright, 468 U.S. 737, 752 (1984).




For purposes of standing, the Court examines the allegations in the Amended Complaint.

See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (explaining that, where an original




pleading has been amended, a court looks to the “amended complaint in assessing a plaintiff’s


claims, including the allegations in support of standing”). Because the United States’ standing


states what the law would be without it” and that “full faith and credit principles do not require

one state to give effect to a marriage celebrated in another state”); Metzger, supra, at 1532 (“[I]t




is unlikely that a state’s refusal to recognize same-sex marriages would have violated Article


IV’s full faith and credit demand even absent DOMA, at least as applied to same-sex marriage

involving state residents.”); Mark Strasser, As Iowa Goes, So Goes the Nation: Varnum v. Brien


and its Impact on Marriage Rights for Same-Sex Couples, 13 J. Gender Race & Justice 153, 158




(Fall 2009) (“[E]ven without DOMA, states could have refused to recognize their domicilaries’


marriages validly celebrated elsewhere if such marriages violated an important public policy of


the domicile. Thus, DOMA did not give states a power that they did not already possess with


respect to the power to refuse to recognize domiciliaries’ marriages that had been celebrated


elsewhere in accord with the latter states’s law.”).


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attack was made at the Rule 12(b)(6) stage, the Court “accept[s] the allegations in the [Amended

Complaint] as true for purposes of [its] standing analysis.” United States v. Rodriguez-Aguirre, 264




F.3d 1195, 1203 (10th Cir. 2001). Further, the Court must “presume that general allegations

embrace those specific facts that are necessary to support the claim.” Lewis v. Casey, 518 U.S. 343,




358 (1996) (internal citation omitted).


The Court construes the Amended Complaint as alleging three injuries flowing from Section


2. First, the Barton couple alleges the injury of being unable to obtain recognition of their California

marriage in Oklahoma (“non-recognition”). (See Am. Compl. ¶ 20.) Second, they allege the injury




of unequal treatment, flowing from the United States’ erection of Section 2 as a barrier to obtaining

the benefit of recognition of their California marriage in Oklahoma (“unequal treatment”). (See id.


¶ 12; see also Pls.’ Resp. to Mot. to Dismiss 12 (arguing that “[Section 2] operates as such a barrier




in that it officially sanctions the denial of equal treatment of Plaintiffs’ marriage and the attendant


recognition/status that springs from such recognition”).) Finally, they allege the injury of stigma

and humiliation. (See Am. Compl. ¶ 22; see also Pls.’ Resp. to Mot. to Dismiss 11-12 (“[Plaintiffs]




have a second-class marriage in the eyes of friends, neighbors, colleagues, and the United States of


America.”).)
1. Non-Recognition
The Court concludes that neither Section 2, nor the U.S. Attorney General’s enforcement


thereof, plays a sufficient “causation” role leading to the Barton couple’s alleged injury of nonrecognition

of their California marriage in Oklahoma.13 Section 2 is an entirely permissive federal


13 The United States also argues that the Baron couple has not suffered an injury in fact




based upon their failure to “have actually sought and been denied” recognition of their California

marriage in Oklahoma. (See United States’ Mot. to Dismiss 5.) For purposes of this motion, the




Court assumes without deciding that the Barton couple’s alleged injuries constitute injuries in


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law. 28 U.S.C. § 1738C (“No State . . . shall be required to give effect to any public act, record, or


judicial proceeding of any other State . . . that is treated as a marriage under the laws of such other


State . . . .”). It does not mandate that states take any particular action, does not remove any


discretion from states, does not confer benefits upon non-recognizing states, and does not punish


recognizing states. The injury of non-recognition stems exclusively from state law – namely, Part

B and title 43, section 3.1 of the Oklahoma Statutes – and not from the challenged federal law. Cf.


Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811, 818 (S.D. Ind. 1998) (city police officer was




convicted of domestic violence crime, prohibited by federal law from carrying firearm, and then


threatened with termination by the city) (court held that injury of threatened termination was “fairly


traceable” to federal firearm law because “a firearms disability operates as virtually a total bar to


employment as a police officer” and because any decision by local officials to fire the plaintiff


“stems from the federal statute and not the exercise of independent discretion”). In contrast to the

federal firearms prohibition, essentially mandating an officer’s termination in Gillespie, Section 2




does not remove any local, independent discretion and is not a fairly traceable cause of the Barton

couple’s non-recognition injury. See generally Bonauto, supra note 12, at 13 (explaining that




“[l]egal challenges to section 2 of DOMA have been few, and none have succeeded, at least in part


because it is the state’s nonrecognition law that presents the impediment to recognition, not section


2 itself”).

The Barton couple’s reliance on Bennet v. Spears, 520 U.S. 154 (1997), is misplaced. In


Bennet, the Supreme Court addressed whether the injury of reduced water for irrigation was fairly




traceable to a “Biological Opinion” authored by the Fish and Wildlife Service, where another agency


fact but concludes that none were sufficiently caused by Section 2.


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actually issued the final decision regarding the volume of water allocated. Id. at 168-71. The




Biological Opinion, although not the “very last step in the chain of causation,” had a “powerful


coercive effect” and a “virtually determinative effect” on the action ultimately taken by the other

agency. See id. at 169. While the other agency was “technically free” to disregard the Biological

Opinion, it would do so at its own peril, including civil and criminal penalties. Id. at 170. In




contrast to the Biological Opinion, Section 2 does not have any coercive or determinative effect on


Oklahoma’s non-recognition of the Barton couple’s California marriage. At a maximum, it removes


a potential impediment to Oklahoma’s ability to refuse recognition – namely, the Full Faith and

Credit Clause. See supra Part III(A) (explaining Section 2’s purpose); note 12 (explaining that Full




Faith and Credit Clause may not actually be an impediment). A federal law that removes one


potential impediment to state action has a much weaker “causation” link than a federal agency


opinion that has a coercive effect on another federal agency’s action.

The Court must address dicta in Bishop I that is inconsistent with the above reasoning

regarding Section 2. In 2006, this Court addressed standing issues sua sponte and implied that, if




the Barton couple obtained legal status that was “treated as a marriage” in another state, they would

have standing to challenge Section 2. See Bishop I, 447 F. Supp. 2d at 1246 (describing Section 2




as “preventing, or at least arguably preventing” the Barton couple from obtaining legal recognition


in Oklahoma). The Court’s use of the phrase “prevents, or at least arguably prevents” was in error.


Section 2 does not “prevent” or even “arguably prevent” Oklahoma from recognizing the Barton


couple’s California marriage. At most, Section 2 removes one potential impediment to a state’s


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ability to refuse recognition of the marriage. Therefore, the Court’s dicta in Bishop I has been

reconsidered and is superseded by this Opinion and Order.14





2. Unequal Treatment
The Barton couple also alleges the injury of unequal treatment resulting from the imposition


of Section 2 as a “barrier” to the benefit of recognition of their California marriage. In certain equal


protection cases, the right being asserted is not the right to any specific amount of denied


governmental benefits; it is “‘the right to receive benefits distributed according to classifications


which do not without sufficient justification differentiate among covered applicants solely on the

basis of [impermissible criteria].’” See Day v. Bond, 500 F.3d 1127, 1133 (10th Cir. 2007) (quoting


Heckler v. Mathews, 465 U.S. 728, 737 (1984)). In such cases, the “injury in fact . . . is the denial




of equal treatment resulting from the imposition of the [allegedly discriminatory] barrier, not the

ultimate inability to obtain the benefit.” Ne. Fla. Ch. of the Associated Gen. Contractors of Am. v.


City of Jacksonville, Fla., 508 U.S. 656, 666 (1993); Day, 500 F.3d at 1133 (explaining that the




injury in such cases “is the imposition of the barrier itself”). Although these standing principles are

most commonly applied to competitive benefit programs, i.e., those for which there are a limited




number of beneficiaries, the Tenth Circuit has also applied such principles to non-competitive

benefit programs. See Day, 500 F.3d at 1131-35 (applying “equal opportunity” standing analysis




to equal protection challenge to Kansas statute setting rules for receipt of in-state tuition at state


universities).

14 The Barton couple incorrectly argues that this dicta is controlling. The Barton couple




filed an Amended Complaint, which renders moot this Court’s analysis of standing allegations in

the original Complaint. See Mink, 482 F.3d at 1254. Further, the Court has an independent

obligation to satisfy itself of standing at all stages of the proceedings, see City of Colo. Springs v.


Climax Molybdenum Co., 587 F.3d 1071, 1078-79 (10th Cir. 2009), and this necessarily includes




reconsideration of prior reasoning.


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The Court concludes that these “discriminatory barrier” cases are not applicable due to the


permissive nature of Section 2. As explained above, Section 2 is not an allegedly discriminatory


policy that Oklahoma must follow in deciding what marriages to recognize, and it does not stand as


any significant obstacle between the Barton couple and recognition of their California marriage in

Oklahoma. Cf. Ne. Fla. Ch. of the Associated Gen. Contractors of Am., 508 U.S. at 666 (minority




set-aside program was “barrier” to non-minority gaining government contracts, the removal of which

would have allowed non-minorities to compete equally); Turner v. Fouche, 396 U.S. 346, 361-64




(1970) (law limiting school board membership to property owners was “barrier” to non-property


owners gaining election to school board, the removal of which would have allowed non-property

owners to compete equally); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 493 (10th Cir.




1998) (policy favoring long-term residents was “barrier” to short-term resident gaining access to


medical school, the removal of which would have allowed short-term residents to compete equally).


These cases are particularly unhelpful to the Barton couple because they have not challenged Part


B of the Oklahoma Constitutional Amendment (which prohibits recognition and is the more direct


cause of their injury) as violating the Full Faith and Credit Clause (which is the impediment to Part


B’s legality that Section 2 potentially alleviates). Instead, they only challenged Part B as violative


of their equal protection and substantive due process rights.
3. Stigma
The Barton couple also alleges that the mere existence of Section 2 – separate from any


impact it has on their legal status as married or unmarried – causes ongoing stigmatic harm by


indicating that their same-sex marriage is “second-class.” Stigmatic injuries are judicially

cognizable in certain circumstances, particularly those involving racial discrimination. See Allen,




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468 U.S. at 755 (explaining that “stigmatizing injury often caused by racial discrimination” is a

“sort of noneconomic injury” that is “sufficient in some circumstances to support standing”); Wilson


v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir. 1996) (explaining that




“stigmatizing injury often caused by racial discrimination can be sufficient in some circumstances


to support standing” and applying concept to advertising scheme that allegedly discriminated based

upon gender). Assuming these cases extend to stigmatic injuries to non-suspect classes, see infra



Part VI(D)(2)(a) (concluding that same-sex couples desiring a marriage license are not a suspect


class), the stigma still must be causally linked to some concrete interest discriminatorily impaired

by Part B of the Oklahoma Constitutional Amendment. See Allen, 468 U.S. at 757 n.22 (explaining




that a plaintiff premising standing on a stigmatic injury must (1) identify “some concrete interest


with respect to which [she is] personally subject to discriminatory treatment[;]” and (2) show that


this concrete interest “independently satisf[ies] the causation requirement of standing doctrine”).


For the same reasons explained above, Section 2 lacks a sufficient causal link to any stigmatic injury


the Barton couple is suffering due to non-recognition of their California marriage. The stigmatic


harm flows most directly from Oklahoma law and is only possibly strengthened in some manner by


Section 2. Therefore, the Barton couple’s allegations do not establish standing to challenge Section

2, and this claim is dismissed for lack of jurisdiction.15

15 The United States also argues that the Barton couple’s alleged stigmatic injury is not




cognizable because it is merely a “‘psychological consequence presumably produced by

observation of conduct.’” (See United States’ Reply in Support of Mot. to Dismiss 4 (quoting


Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464,

485 (1982), and also relying upon Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803,




806-08 (7th Cir. 2011).) However, the Court’s holding is premised on the Barton couple’s


inability to show causation. The Court is not persuaded that the United States’ cited cases would

extend to the more personal type of injury alleged here. Cf. Freedom from Religion Found. Inc.,




641 F.3d at 806-08 (concluding that the “perceived slight” or “feeling of exclusion” suffered by


one of many observers of President Obama’s remarks during National Day of Prayer did not


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III. Barton Couple’s Challenge to Section 3 of DOMA Is Moot
The Barton couple moves for entry of a final judgment on their challenge to Section 3 in light

of the Supreme Court’s decision in Windsor. The United States argues that Windsor moots the




Barton couple’s Section 3 challenge and that the Court lacks jurisdiction over this challenge.
A. Mootness Standard
“Mootness, like standing, is a jurisdictional doctrine originating in Article III’s ‘case’ or

‘controversy’ language.” WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182




(10th Cir. 2012). Thus, a court “must decline to exercise jurisdiction where the award of any


requested relief would be moot, i.e. where the controversy is no longer live and ongoing.”

Wirsching v. Colo., 360 F.3d 1191, 1196 (10th Cir. 2004). The defendant bears the burden of

proving mootness, WildEarth Guardians, 690 F.3d at 1183, and this burden is a heavy one, Rezaq


v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012). If a defendant carries its burden of showing

mootness, a court lacks subject matter jurisdiction. Rio Grande Silvery Minnow v. Bureau of


Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010).





B. Prayer for Relief
In their prayer for relief, the Barton couple seeks “a declaration that [Section 3 of DOMA]


violate[s] the U.S. Constitution’s Equal Protection and substantive Due Process Rights of Plaintiffs


Barton and Phillips.” (Am. Compl. 10.) They also seek an “award of their attorney fees and costs

in prosecuting this action” and “[s]uch other relief deemed proper.” (Id.) The Court will analyze

each request to determine if any “live and ongoing” controversy remains following the Windsor



decision.


confer standing).


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1. Declaratory Relief
“[W]hat makes a declaratory judgment action a proper judicial resolution of a case or


controversy rather than an advisory opinion is the settling of some dispute which affects the behavior

of the defendant toward the plaintiff.” Rio Grande Silvery Minnow, 601 F.3d at 1109-10. The




“crucial question is whether granting a present determination of the issues offered will have some

effect in the real world.” Id. at 1110 (internal citation omitted); see also Rezaq, 677 F.3d at 1008




(“[I]n the context of an action for declaratory relief, a plaintiff must be seeking more than a

retrospective opinion that he was wrongly harmed by the defendant.”); Wirsching, 360 F.3d at 1196




(same).


The Court concludes that there is no longer any live or ongoing controversy as to the Barton

couple’s request for declaratory relief regarding Section 3. In Windsor, the Supreme Court held that




Section 3 “violates basic due process and equal protection principles applicable to the Federal

Government.” Windsor, 133 S. Ct. at 2693-94 (reasoning that “DOMA’s principal effect is to




identify a subset of state-sanctioned marriages and make them unequal”). As a general rule, where


a law has been declared unconstitutional by a controlling court, pending requests for identical

declaratory relief become moot. Thayer v. Chiczewski, 705 F.3d 237, 256-57 (7th Cir. 2012) (claim




for declaratory and injunctive relief moot in light of Seventh Circuit’s invalidation of challenged law

in another case); Longley v. Holahan, 34 F.3d 1366, 1367 (8th Cir. 1994) (claim moot where

challenged statute was declared unconstitutional in companion case); Eagle Books, Inc. v. Difanis,




873 F.2d 1040, 1042 (7th Cir.1989) (claim moot where state supreme court had declared challenged

statute unconstitutional); see also Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248,




1257 (10th Cir. 2004) (claim moot where challenged statute was repealed). Because Section 3 has


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already been declared unconstitutional by the Supreme Court, an identical declaration by this Court

will have no further impact on the United States’ actions.16


Second, the United States has presented compelling evidence that, following Windsor, it has




ceased to enforce Section 3 and that the Barton couple will suffer no further injury as a result of


Section 3. In Revenue Ruling 2013-17, the U.S. Department of the Treasury and the Internal

Revenue Service (“IRS”) provided “guidance on the effect of the Windsor decision on the [IRS’]




interpretations of the [federal tax code] that refer to taxpayers’ marital status,” stating that


individuals of the same sex will be considered to be lawfully married under the Code


as long as they were married in a state whose laws authorize the marriage of two

individuals of the same sex, even if they are domiciled in a state that does not


recognize the validity of same-sex marriages.




(Rev. Ruling 2013-17, 2013-381.R.B.28 (emphasis added), Ex. B to United States’ Not. of Admin.


Action.) In a news release, the IRS stated that “same sex couples will be treated as married for all


federal tax purposes,” including “filing status, claiming personal and dependency exemptions, taking


the standard deduction, employee benefits, contributing to an IRA and claiming the earned income


tax credit or child tax credit.” (I.R.S. News Release, IR-2013-72 (Aug. 29, 2013), Ex. A to United


States’ Not. of Admin. Action.) Thus, Section 3 of DOMA will no longer be used to deprive the


Barton couple of married status for any federal tax purpose because (1) they have a legal California


marriage, and (2) Oklahoma’s non-recognition of such marriage is irrelevant for federal tax

16 BLAG, the only party defending the constitutionality of Section 3, has stated that “the




Supreme Court recently held that DOMA Section 3 is unconstitutional” and that its “justification


for participating in this case . . . has disappeared.” (BLAG’s Unopposed Mot. to Withdraw 1-2.)


BLAG’s disinterest in any further defense of Section 3 supports the Court’s conclusion that its


entry of a declaratory judgment would have no effect.


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purposes. Any ongoing threat of injury based upon deprivation of married status for tax purposes

has been rendered moot by Windsor and the IRS’ response thereto.17



In their evidentiary proffers regarding standing to challenge Section 3, the Barton couple


asserts harms other than adverse tax consequences, such as an inability to plan for Social Security

survivor benefits. The Barton couple argues that Windsor may affect the interpretation of the word




“married” by other federal agencies and that this Court must ensure that the Barton couple reaps the

full benefit of the Windsor decision. However, all evidence before the Court indicates that Section




3 will no longer be used to deprive married same-sex couples of federal benefits that are bestowed


upon married opposite-sex couples, even when those couples live in non-recognizing states such as

Oklahoma. The Windsor decision changed the legal landscape in such a drastic manner that the




Barton couple no longer faces any reasonable threat of being denied equal protection of federal laws


related to marriage. Were the Court to issue a declaratory judgment, it would be issuing an opinion

based on a hypothetical application of Section 3 that is no longer likely to occur. See Rio Grande


Silvery Minnow, 601 F.3d at 1117 (“A case ceases to be a live controversy if the possibility of




recurrence of the challenged conduct is only a speculative contingency.”) (alterations and citation


omitted).
2. Attorney Fees and Costs
The Barton couple also requests attorney fees and costs. However, the possibility of


recovering attorney fees or costs is not a sufficient reason to enter judgment in an otherwise moot

17 This is not a case in which the United States is showing any “reluctant submission” to

complying with Windsor. See Rio Grande Silvery Minnow, 601 F.3d at 1116 (explaining that a




case may not be moot if a governmental actor is showing “reluctant submission” or a “desire to


return to the old ways”). The United States has given every indication that the Supreme Court’s


ruling will be implemented in a manner that ceases to cause the Barton couple any injury related


to payment of federal income taxes.


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case. See R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1108 (10th Cir. 2007) (explaining that

a claim of entitlement to attorney fees does not preserve a moot cause of action); In re West. Pac.


Airlines, Inc., 181 F.3d 1191, 1196 (10th Cir. 1999) (“Precedent clearly indicates that an interest in




attorney’s fees is insufficient to create an Article III case or controversy where a case or controversy

does not exist on the merits of the underlying claim.”); 13C Charles Alan Wright, et al., Federal


Practice and Procedure § 3533.3 (3d ed. 2008) (“If the action is mooted before any decision on the




merits by the trial court, a statute that awards fees to the prevailing party does not justify decision


on the merits in order to determine if that party would have prevailed absent mootness.”) (“Claims


for costs traditionally have not been thought sufficient to avoid mootness, presumably on the theory


that such incidental matters should not compel continuation of an otherwise moribund action.”).

3. “Other Relief Deemed Proper




The Barton couple does not expressly request money damages as relief. However, they urge


the Court to construe their request for “other relief deemed proper” as a request for money damages.


They are now urging this construction because, unlike claims for declaratory or injunctive relief,

claims for damages are not mooted by subsequent events. See In re West. Pac. Airlines, Inc., 181




F.3d at 1196 (explaining that, although declaratory and injunctive relief was rendered moot by a


defendant’s release from prison, a damages claim was still viable because it would alter the

defendant’s behavior by forcing them to pay money); Charles Alan Wright, et al., supra, § 3533.3




(“Untold number of cases illustrate the rule that a claim for money damages is not moot, no matter


how clear it is that the claim arises from events that have completely concluded without any prospect

of recurrence.”). In the Tenth Circuit, this same rule applies to claims for nominal damages. Utah


Animal Rights Coal., 371 F.3d at 1257-58 (“It may seem odd that a complaint for nominal damages




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could satisfy Article III’s case or controversy requirements, when a functionally identical claim for


declaratory relief will not. But this Court has squarely so held.”) (internal footnotes omitted).


The Court does not construe the “other relief deemed proper” language as a request for


compensatory or nominal damages against the United States for three reasons. First, the Barton


couple has repeatedly argued, in response to certain ripeness and standing deficiencies raised by


BLAG, that their Section 3 injury was not any specific denial of monetary benefits but was instead

the ongoing injury of unequal access and/or unequal treatment caused by Section 3. (See, e.g., Pls.’




Resp. to BLAG’s Cross Mot. for Summ. J. (containing heading entitled “BLAG’s Argument


Regarding Standing is Without Merit, as Plaintiffs Do Not Request Monetary Damages and DOMA


Was the Cause of their Injury”).) This case has focused entirely on prospective declaratory relief,


rather than injunctive relief related to a specific tax refund, and the Court finds no legitimate basis


to now construe the Amended Complaint as seeking money damages. Second, the United States is


generally immune from suits for money damages, and the Barton couple has not identified any

waiver or statutory exception that would apply here. See Wyodak Res. Dev. Corp. v. United States,




637 F.3d 1127, 1130 (10th Cir. 2011) (explaining that suits for damages against the United States


must proceed under the Tucker Act in the Court of Federal Claims or under some other statutory


immunity waiver). Finally, the Barton couple has not urged the Court to construe the Amended

Complaint as requesting nominal damages. (See Pls.’ Reply in Support of Mot. for Entry of J. 7-10.)




Even if they had, these decisions generally require an express request, which was not made in the

Amended Complaint. See R.M. Inv. Co., 511 F.3d at 1107 (rejecting argument that suit should be




construed as one seeking nominal damages and stating that “[b]ecause [the plaintiff] has no claim


for nominal damages, it cannot rely on nominal-damages cases to overcome mootness”); Charles


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Alan Wright, et al., supra, §3533.3 (“But failure to demand nominal damages may lose the




opportunity to avoid mootness.”). Accordingly, the Barton couple’s Section 3 challenge is not saved


by the “other relief” language in the Amended Complaint.
C. Conclusion
The Barton couple has only requested prospective declaratory relief regarding Section 3, and

such request has been rendered moot in light of Windsor and the United States’ response thereto.




The United States has satisfied its burden of showing mootness, and the Court lacks jurisdiction to


enter any judgment in favor of the Barton couple. Based on this ruling, the Court agrees with


BLAG’s assertion that it has no further role to play in this litigation. BLAG’s motion to withdraw


as an intervening party is therefore granted, and its motion for summary judgment is denied as moot.


Although the Barton couple will not receive a judgment in their favor as to this claim, they


have played an important role in the overall legal process leading to invalidation of Section 3 of


DOMA. The Barton couple filed this lawsuit many years before it seemed likely that Section 3


would be overturned. Although other plaintiffs received the penultimate judgment finding DOMA’s


definition of marriage unconstitutional, the Barton couple and their counsel are commended for their


foresight, courage, and perseverance.
IV. Barton Couple Lacks Standing to Challenge Part B of the Oklahoma Constitutional


Amendment

Bishop II held that, in order to have standing in this case, Plaintiffs must establish a

connection between the state official sued and the alleged injury. See Bishop II, 2009 WL 1566802,




at *3 (holding that Plaintiffs lacked standing to sue Oklahoma Governor or Oklahoma Attorney


General in their challenge to Parts A and B because these officials did not have a sufficient


enforcement connection to the challenged Oklahoma laws). The Tenth Circuit indicated that district


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court clerks were the Oklahoma officials with a connection to Plaintiffs’ injuries because


“[m]arriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.”

Id. Notably, the statutes cited in Bishop II do not reference court clerks’ authority to “recognize”




an out-of-state marriage. In support of her motion for summary judgment, Smith submitted an


affidavit stating that she has “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 samesex


couple” and that “[t]here are no circumstances in which the Clerk of Court of Tulsa County

would be authorized to recognize a marriage license issued by another state.” (See Smith Aff. ¶ 5,




Ex. A to Smith’s Cross Mot. for Summ. J.) The Barton couple has not controverted this evidence

in any manner. Instead, the Barton couple argues that, in Bishop II, the Tenth Circuit “has deemed




[Smith] to be the appropriate party.” (Pls.’ Reply to Smith’s Cross Mot. for Summ. J. 27.)


Based upon the evidence before the Court, Smith is entitled to summary judgment. Although

Bishop II explained that clerks of court were generally the Oklahoma officials connected with the




types of injuries alleged in the Amended Complaint, that decision was at the Rule 12(b)(6) stage.


In her affidavit, Smith denies that she, or any other district court clerk in Oklahoma, has authority


to recognize any out-of-state marriage and therefore denies her ability to redress the Barton couple’s


non-recognition injury. The Barton couple has failed to controvert Smith’s testimony in any manner


or demonstrate that she would indeed be the proper official to “recognize” their California marriage.

Citation to Bishop II, and inconclusive Oklahoma statutes cited therein, is not sufficient to create




a question of fact in light of Smith’s uncontroverted denial of authority.


A recent case addressed the constitutionality of Ohio’s non-recognition provision, which was

identical to Part B. See Obergefell v. Wymyslo, --- F. Supp. 2d ----, No. 1:13-cv-501, 2013 WL




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6726688 (S.D. Ohio Dec. 23, 2013). In that case, the same-sex couples had been legally married


in states other than Ohio. Upon the death of their same-sex spouse, the surviving spouses sought

recognition of those marriages on Ohio death certificates. See id. at *1. The Obergefell plaintiffs

sued the “local and state officers responsible for death certificates.” Id. While Obergefell does not




stand for the proposition that local and state officials “responsible for death certificates” are the only


types of officials who may be sued in a challenge to non-recognition laws, it does highlight the

Barton couple’s evidentiary deficiencies in this case. Unlike the plaintiffs in Obergefell, who




attempted to obtain recognition on death certificates, the Barton couple has not taken any steps to


obtain recognition and has not shown that Smith is the proper official. While the Court does not


believe that a futile “trip to the courthouse” is required in every instance, the only evidence before


the Court is an uncontroverted denial of any connection to the injury by the sued state official.

Therefore, the Barton couple’s challenge to Part B is dismissed for lack of standing.18





V. Bishop Couple Has Standing to Challenge Part A
Smith has not attacked the Bishop couple’s standing to challenge Part A or raised any other


jurisdictional deficiencies. Nonetheless, the Court has independently satisfied itself that standing


and other jurisdictional requirements are satisfied. The Bishop couple has proven standing because


they sought an Oklahoma marriage license from Smith, Smith denied them such license, and Smith


did so based upon their status as a same-sex couple. Unlike with Part B, the Bishop couple has

18 This is an unfortunate result for the Barton couple, who have twice been turned away




based on standing. However, the Court notes that Part B was not the focus of this litigation. It


was unclear whether the Barton couple challenged Part B in the Amended Complaint, and they

devoted only one page of argument to it in their motion for summary judgment. (See Pls.’ Mot.




for Summ. J. 41-42.) In a proper equal protection challenge, portions of this Court’s analysis of


Part A would also seem applicable to Part B. The Court is reminded of a quote by Harriet


Beecher Stowe: “[N]ever give up, for that is just the place and time that the tide will turn.”

Harriet Beecher Stowe, Old Town Folks (1869).




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clearly demonstrated Smith’s connection to their injury. Further, in contrast to Section 2 of DOMA,


Part A of the Oklahoma Constitutional Amendment represents a significant cause of the Bishop


couple’s injury and, at a minimum, stands as a barrier between them and “married” legal status in


Oklahoma. A favorable ruling would enjoin enforcement of an enshrined definition of marriage in


the Oklahoma Constitution and bring the Bishop couple substantially closer to their desired

governmental benefit. See supra Part II(B) (explaining that, in equal protection cases, a plaintiff




need not show that a favorable ruling would relieve his every injury but must show that a favorable

ruling would remove a barrier imposing unequal treatment).19



The Court has also satisfied itself that Smith is properly sued. The Bishop couple may seek

relief from Smith under Ex parte Young, 209 U.S. 123 (1908), which permits suits where a plaintiff




is “(1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal

law, and (3) seeking prospective relief.” Cressman v. Thompson, 719 F.3d 1139, 1146 (10th Cir.

2013); see also Ky. Press Ass’n, Inc. v. Ky., 355 F. Supp. 2d 853, 861-62 (E.D. Ky. 2005) (applying


Ex Parte Young doctrine to permit suit against court clerk in her official capacity). The Court had

additional immunity concerns based on Bishop II’s holding that Smith acts as an arm of Oklahoma’s

judiciary when she issues (or denies) marriage licenses. See Bishop II, 2009 WL 1566802, at *3.




However, because the suit is one for declaratory and injunctive relief, Smith is not entitled to judicial

or quasi-judicial immunity. See Guiden v. Morrow, 92 F. Appx. 663, 665 (10th Cir. 2004)




(explaining that court clerk of Butler County, Kansas sued in her official capacity had quasi-judicial

19 As explained supra in footnote 2, there is an Oklahoma statute also impacting samesex

couples’ eligibility for a marriage license. See Okla. Stat. tit. 43, § 3(A). No party discussed




standing problems posed by this statute, and the Court is satisfied that enjoining enforcement of


Part A redresses a concrete injury suffered by the Bishop couple.


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immunity from suits for money damages but “would not be entitled to immunity in a suit seeking


injunctive relief”).
VI. Part A of the Oklahoma Constitutional Amendment Violates the U.S. Constitution
The Bishop couple argues that Part A is an unconstitutional deprivation of their fundamental


due process liberties and equal protection rights under the Fourteenth Amendment to the U.S.


Constitution. The Bishop couple and Smith filed cross motions for summary judgment, and both


parties urge the Court to decide the constitutionality of Part A as a matter of law. The Court

concludes: (1) Baker v. Nelson is not binding precedent; (2) Windsor’s reasoning does not mandate




a particular outcome for the Bishop couple or Smith; and (3) Part A intentionally discriminates


against same-sex couples desiring an Oklahoma marriage license without a legally sufficient


justification.
A. Baker v. Nelson

Smith argues that Baker represents binding Supreme Court precedent and should end this

Court’s analysis of Part A. In Baker, the Supreme Court dismissed, “for want of a substantial




federal question,” an appeal of the Minnesota Supreme Court’s holding that its state marriage laws


did not violate a same-sex couple’s equal protection or substantive due process rights under the U.S.

Constitution. Baker v. Nelson, 409 U.S. 810 (1972). This type of summary dismissal “for want of




a substantial federal question,” although without any reasoning, is considered a binding decision on

the merits as to the “precise issues presented and necessarily decided.” Mandel v. Bradley, 432 U.S.

173, 176-77 (1977); Okla. Telecasters Ass’n v. Crisp, 699 F.2d 490, 496 (10th Cir. 1983), rev’d on


other grounds, Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984).20

20 In 1972, the Supreme Court had “no discretion to refuse adjudication” of an appeal of

a state court decision upholding a state statute against federal constitutional attack. See Hicks v.



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Baker presented the precise legal issues presented in this case – namely, whether a state law




limiting marriage to opposite-sex couples violates due process or equal protection rights guaranteed


by the U.S. Constitution. This is evidenced by the jurisdictional statements submitted to the


Supreme Court. In relevant part, the appellants phrased the issues as whether Minnesota’s “refusal


to sanctify appellants’ marriage deprives appellants of liberty and property in violation of the due


process and equal protection clauses.” (Appellants’ Jurisdictional Statement, Ex. 4 to Smith’s Cross


Mot. for Summ. J.) Appellees similarly phrased the relevant issues as “[w]hether appellee’s refusal


to sanctify appellants’ marriage deprives appellants of their liberty to marry and of their property


without due process of law under the Fourteenth Amendment;” and “[w]hether appellee’s refusal


. . . to sanctify appellants’ marriage because both are of the male sex violates their rights under the


equal protection clause of the Fourteenth Amendment.” (Appellees’ Jurisdictional Statement, Ex.

4 to Smith’s Cross Mot. for Summ. J.)21 Therefore, barring application of an exception, Baker is


Miranda, 422 U.S. 332, 343-44 (1975) (explaining difference between this type of summary

dismissal and a denial of certiorari). Thus, despite its lack of reasoning, Baker is binding

precedent as to issues squarely presented and dismissed. Although Hicks remains the law, it has

been criticized. See., e.g., Randy Beck, Transtemporal Separation of Powers in the Law of


Precedent, 87 Notre Dame L. Rev. 1405, 1451 (2012) (“Just as we do not accord precedential

weight to a denial of certiorari, the Court should abandon Hicks and deny controlling force to




unexplained summary dispositions. . . . [T]he value of allowing thorough consideration of a legal


question outweighs any enhanced legal stability that flows from requiring lower courts to


decipher unexplained rulings and treat them as binding authority.”).

21 At the trial court level, the same-sex couple had challenged a Minnesota county clerk’s




refusal to grant them a marriage license. They argued that (1) same-sex marriage was authorized


by Minnesota law, and (2) alternatively, denial of a marriage license deprived them of liberty


without due process and equal protection in violation of their Fourteenth Amendment rights and


constituted an unwarranted invasion of privacy in violation of the Ninth and Fourteenth

Amendments. Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971) (explaining arguments made




in trial court). The Minnesota Supreme Court held that (1) Minnesota’s marriage statute, which


did not expressly prohibit same-sex marriages, only authorized marriages between persons of the


opposite sex; and (2) such an interpretation did not violate the plaintiffs’ equal protection, due


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binding precedent in this case. See Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1087 (D. Haw.




2012) (holding that Fourteenth Amendment challenge to Hawaii law limiting marriage to oppositesex

couples presented precise issues that had been presented in Baker); see also Windsor v. United


States (“Windsor I”), 699 F.3d 169, 178 (2d Cir. 2012) (addressing DOMA challenge) (defining

issue in Baker as “whether same-sex marriage may be constitutionally restricted by the states”); In


re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (addressing DOMA challenge) (“The issue

in Baker was whether a state licensing statute limiting marriage to opposite-sex couples, and thereby




excluding same-sex marriage, violated the due process and equal protection provisions of the


Constitution.”).


There is an exception to the binding nature of summary dismissals, however, if “doctrinal


developments indicate” that the Supreme Court would no longer brand a question as unsubstantial.

Hicks, 422 U.S. at 344-45 (stating that “unless and until the Supreme Court should instruct




otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question


as unsubstantial, it remains so except when doctrinal developments indicate otherwise”). The Court

concludes that this exception applies for three reasons. First, interpreting Hicks, the Tenth Circuit




has pronounced that a “summary disposition is binding on the lower federal courts . . . until doctrinal

developments or direct decisions by the Supreme Court indicate otherwise.” Okla. Telecasters


Ass’n, 699 F.2d at 495 (emphasis added). If an express overruling by the Supreme Court is the only




type of “doctrinal development” that qualifies for the exception, the disjunctive “or” would cease


to have meaning.

process, or privacy rights guaranteed by the U.S. Constitution. Id. at 186-87.




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Second, there have been significant doctrinal developments in Supreme Court jurisprudence


since 1972 indicating that these issues would now present a substantial question. The Supreme


Court has: (1) recognized a new form of heightened scrutiny and applied it to sex-based

classifications, see Craig v. Boren, 429 U.S. 190, 197-98 (1976); (2) held that a Colorado




constitutional amendment targeting homosexuals based upon animosity lacked a rational relation

to any legitimate governmental purpose, see Romer v. Evans, 517 U.S. 620, 635 (1996); (3) held that




homosexuals had a protected liberty interest in engaging in private, homosexual sex, that


homosexuals’ “moral and sexual choices” were entitled to constitutional protection, and that moral

disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy,


Lawrence v. Texas, 539 U.S. 558, 564, 571 (2003); and (4) most recently, held that the U.S.




Constitution prevented the federal government from treating state-sanctioned opposite-sex marriages


differently than state-sanctioned same-sex marriages, and that such differentiation “demean[ed] the

couple, whose moral and sexual choices the Constitution protects,” Windsor, 133 S. Ct. at 2694.

While none is directly on point as to the questions presented in Baker (or here), this is the type of




erosion over time that renders a summary dismissal of no precedential value. It seems clear that


what was once deemed an “unsubstantial” question in 1972 would now be deemed “substantial”

based on intervening developments in Supreme Court law. See Windsor I, 699 F.3d at 178 (holding

that Baker was not controlling as to constitutionality of DOMA, reasoning in part that “[i]n the forty

years after Baker, there have been manifold changes to the Supreme Court’s equal protection

jurisprudence” that would warrant an exception to the general rule). But see Mass. v. U.S. Dept. of


Health and Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (rejecting similar reasoning in DOMA

challenge and indicating that Baker limited the arguments in that case).




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Finally, although the Supreme Court’s decision in Windsor was silent as to Baker’s

impact,22 statements made by the Justices indicate that lower courts should be applying Windsor (and

not Baker) to the logical “next issue” of state prohibitions of same-sex marriage. See Windsor, 133

S. Ct. at 2696 (Roberts, C.J., dissenting ) (urging that the Windsor majority’s reasoning must not be

extended to state-law bans because the majority’s “judgment is based on federalism”); id. at 2709-10




(Scalia, J., dissenting) (stating his opinion that the majority decision “arms well every challenger


to a state law restricting marriage to its traditional definition”) (explaining that “state and lower

federal courts” will be able to distinguish Windsor due to its “scatter-shot rationales” and inviting

lower courts to “distinguish away”). If Baker is binding, lower courts would have no reason to apply

or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply


Windsor would be superfluous. Accordingly, the Court concludes that Baker is no longer a binding

summary dismissal as to those issues. See Kitchen v. Herbert, --- F. Supp. 2d ----, No. 2:13-cv-217,




2013 WL 6697874, at *8 (D. Utah Dec. 20, 2013) (reaching same conclusion in challenge to Utah’s

marriage definition in case issued after Windsor).23

22 Based on the Windsor I decision, it seemed likely that the Supreme Court would

address Baker’s precedential value. See Windsor I, 699 F.3d at 178-79 (majority concluding that

“doctrinal changes constitute another reason why Baker does not foreclose our disposition of this

case); id. at 195 n.3 (Straub, J., concurring in part and dissenting in part) (acknowledging that




“questions may stop being ‘insubstantial’ when subsequent doctrinal developments so indicate”

but concluding that Supreme Court decisions had not “eroded Baker’s foundations such that it no

longer holds sway”). However, no Justice mentioned Baker in any part of the Windsor decision.

At least one commentator criticized this silence. Jonah Horwitz, When Too Little is Too Much:


Why the Supreme Court Should Either Explain its Opinions or Keep Them to Itself, 98 Minn. L.

Rev. Headnotes 1, 2 (2013) (explaining that Baker was “examined in detail” in the Supreme

Court briefs and criticizing Supreme Court for failing to discuss Baker) (“For a case of such




length and significance, it is nothing short of amazing that no one refers, even in passing, to what


struck the lower courts and the litigants as a potentially dispositive case.”).

23 Lower court decisions issued prior to Windsor are split as to the applicability of the

doctrinal developments exception. Compare, e.g., Jackson, 884 F. Supp. 2d at 1085 (holding




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B. Windsor’s Impact

In Windsor, the plaintiff, a New York resident, inherited the estate of her same-sex spouse.




133 S.Ct. at 2682. The couple had entered into a Canadian marriage, which was recognized in New

York at the time of her spouse’s death. See id. (citing Windsor I’s reasoning regarding New York’s

recognition of the Canadian marriage).24 Upon inheriting her spouse’s estate, the plaintiff sought




to claim the federal estate tax exemption but was prevented from doing so by Section 3 of DOMA,

which defined marriage as between one and one woman for purposes of federal law. Id. The

plaintiff paid the taxes and then filed suit to challenge the constitutionality of Section 3. Id.


The Windsor majority opinion, authored by Justice Kennedy, held that: (1) when a state




recognizes same-sex marriage, it confers upon this class of persons “a dignity and status of immense

import;” id. at 2692; and (2) Section 3 of DOMA violated equal protection principles because the




“avowed purpose and practical effect” of that law was “to impose a disadvantage, a separate status,


and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned

authority” of a state, id. at 2693. This Court interprets Windsor as an equal protection case holding




that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and

lawfully married same-sex couples. See id. at 2694. (“DOMA’s principal effect is to identify a




subset of state-sanctioned marriages and make them unequal.”).

that the Supreme Court has not “explicitly or implicitly overturned its holding in Baker or

provided the lower courts with any reason to believe that the holding is invalid”) with Smelt v.


Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (“Doctrinal developments show it is

not reasonable to conclude the questions presented in the Baker jurisdictional statement would

still be viewed by the Supreme Court as ‘unsubstantial.’”), overr’d on other grounds, Smelt v.


Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006).


24 The Windsor I court based its conclusion upon rulings by New York intermediate




appellate courts, which indicated that the Canadian marriage was indeed recognized in New

York when the plaintiff inherited her spouse’s estate. Windsor I, 699 F.3d at 177-78.




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The Windsor Court did not apply the familiar equal protection framework, which inquires

as to the applicable level of scrutiny and then analyzes the law’s justifications. Instead, the Windsor


Court based its conclusion on the law’s blatant improper purpose and animus. See id. at 2693. The




Court reasoned that DOMA’s “unusual deviation” from the tradition of “accepting state definitions


of marriage” was “strong evidence of a law having the purpose and effect of disapproval of the

class.” Id. The Court concluded, based upon DOMA’s text and legislative history, that DOMA’s

principal purpose “was to impose inequality.” Id. Thus, Windsor does not answer whether a state

may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a




suspect class or discuss whether DOMA impacted a fundamental right, which would have provided


this Court with a clear test for reviewing Part A.

Both parties argue that Windsor supports their position, and both are right. Windsor



supports the Bishop couple’s position because much of the majority’s reasoning regarding the


“purpose and effect” of DOMA can be readily applied to the purpose and effect of similar or

identical state-law marriage definitions. See id. at 2693 (discussing “essence” of DOMA as




“defending” a particular moral view of marriage, imposing inequality, and treating legal same-sex


marriages as “second class,” ultimately concluding that DOMA was motivated by an “intent to

injure” lawfully married same-sex couples); id. at 2710 (Scalia, J., dissenting) (explaining that “the




majority arms well every challenger to a state law restricting marriage to its traditional definition”


and transposing certain portions of the majority opinion to reveal how it could assist these

challengers). However, Windsor’s “purpose and effect” reasoning is not a perfect fit, as applied to




Part A, because Part A does not negate or trump marital rights that had previously been extended


to Oklahoma citizens. Further, DOMA’s federal intrusion into state domestic policy is more


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“unusual” than Oklahoma setting its own domestic policy. See id. at 2692 (discussing DOMA’s




departure from the tradition of “reliance on state law to define marriage”).

Windsor supports Smith’s position because it engages in a lengthy discussion of states’




authority to define and regulate marriage, which can be construed as a yellow light cautioning

against Windsor’s extension to similar state definitions. See id. at 2692 (explaining that state




marriage laws vary between states and discussing states’ interest in “defining and regulating the


marital relation”). Again, however, the “yellow light” argument has its limitations. In discussing


this traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer

“subject to constitutional guarantees.” See id. at 2692 (citing Loving v. Virginia, 388 U.S. 1 (1967)




(holding that Virginia’s prohibition of interracial marriage violated equal protection and substantive

due rights)). A citation to Loving is a disclaimer of enormous proportion. Arguably, the “state

rights” portion of the Windsor decision stands for the unremarkable proposition that a state has




broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional


rights. New York had expanded its citizens’ rights, and there was no possible constitutional


deprivation in play.

This Court has gleaned and will apply two principles from Windsor. First, a state law




defining marriage is not an “unusual deviation” from the state/federal balance, such that its mere


existence provides “strong evidence” of improper purpose. A state definition must be approached


differently, and with more caution, than the Supreme Court approached DOMA. Second, courts

reviewing marriage regulations, by either the state or federal government, must be wary of whether




“defending” traditional marriage is a guise for impermissible discrimination against same-sex


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couples. These two principles are not contradictory, but they happen to help different sides of the


same-sex marriage debate.
C. Civil Marriage in Oklahoma
Before reaching its equal protection analysis, some preliminary discussion of civil marriage

in Oklahoma is necessary. In order to enter into a marital contract, see Okla. Stat. tit. 43, § 1




(explaining that marriage is a “personal relation arising out of a civil contract”), a couple must first


obtain a marriage license from the “judge or clerk of the district court, of some county in this state,


authorizing the marriage between the persons named in such license.” Okla. Stat. tit. 43, § 4. In


order to qualify for a marriage license, a couple must have the following characteristics: (1) the

parties must be “legally competent of contracting,” id. § 1; (2) each person must be “unmarried,”


see id. § 3(A); (3) the couple must consist of “one man and one woman,” see Okla. Const. art. 2, §

35(A); see also Okla. Stat. tit. 43, § 3(A) (indicating that marital contract must be entered “with a

person of the opposite sex”); (4) both parties must be of eighteen years of age, see Okla. Stat. tit. 43,

§ 3(A);25 and (5) the couple must not be related to one another in certain ways, see id. § 2.26 But for




the Bishop couple’s status as a same-sex couple, they satisfy the other eligibility criteria for


obtaining a marriage license.


The process of obtaining a marriage license requires the couple to “submit an application in


writing signed and sworn to in person before the clerk of the district court by both of the parties

25 Oklahoma permits persons between the ages of sixteen and eighteen to marry with

parental consent, see id. § 3(B)(1)(a)-(f), and persons under sixteen to marry if authorized by the

court in very limited circumstances, see id. § 3(B)(2).


26 Marriages between “ancestors and descendants of any degree, of a stepfather with a




stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in


cases where such relationship is only by marriage, between brothers and sisters of the half as


well as the whole blood, [or] first cousins” are prohibited. Okla. Stat. tit. 43, § 2.


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setting forth” certain information. Id. § 5(A). If the court clerk is satisfied with the couples’




application and the couple pays the appropriate fee, the clerk “shall issue the marriage license


authorizing the marriage and a marriage certificate.” Okla. Stat. tit. 43, § 5(B)(1). The “marriage


certificate” is a document with “appropriate wording and blanks to be completed and endorsed . .


. by the person solemnizing or performing the marriage ceremony, the witnesses, and the persons

who have been married.” Id. § 6(A)(6).




The couple may then choose how they will “solemnize” the marriage, which is when the


parties enter into the marital contract:


All marriages must be contracted by a formal ceremony performed or solemnized in


the presence of at least two adult, competent persons as witnesses, by a judge or


retired judge of any court in this state, or an ordained or authorized preacher or


minister of the Gospel, priest or other ecclesiastical dignitary of any denomination


who has been duly ordained or authorized by the church to which he or she belongs


to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.


Id. § 7(A). The judge, minister, or other authorized person must have possession of the marriage


license and must have good reason to believe that the persons presenting themselves for marriage

are the individuals named in the license. Id. § 7(C). Marriages between persons belonging to certain




religions – namely, “Friends, or Quakers, the spiritual assembly of the Baha’is, or the Church of


Jesus Christ of Latter Day Saints, which have no ordained minister” – may be “solemnized by the


persons and in the manner prescribed by and practiced in any such society, church, or assembly.”

Id. § 7(D). Following the ceremony, whether civil or religious, the officiant, witnesses, and parties

must complete and sign the marriage certificate. See id. § 8(A)-(C). Any person who performs or




solemnizes a marriage ceremony “contrary to any of the provisions of this chapter” is guilty of a

misdemeanor. See id. § 15.




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After the license is issued and the contract entered into (either by civil or religious


ceremony), both the marriage license and the marriage certificate are then returned to the court clerk

who issued the license and certification. See id. § 8(D). This must be completed within thirty days

of issuance of the marriage license. Id. § 6(A)(5). Once returned, the court clerk makes “a complete




record of the application, license, and certificate” and then returns the original license to the


applicants, “with the issuing officer’s certificate affixed thereon showing the book and page or case

number where the same has been recorded.” Id. § 9.27



Therefore, in Oklahoma, “marriage” is a three-step process consisting of: (1) applying for


and receiving a marriage license from the court clerk, which authorizes the couple to then enter the


marital contract; (2) entering the marital contract by civil or religious ceremony; and (3) having the


marriage license and marriage certificate “recorded” by the court clerk. This Court’s equal


protection analysis is limited to Part A’s alleged discriminatory treatment with respect to the first


and third steps – namely, Part A’s prevention of Smith from issuing a marriage license to same-sex

couples and then recording the license upon its return.28 Smith has no connection to the second step




(solemnization), and this Court’s equal protection analysis does not impact the second step.

27 Unlike some other states, Oklahoma does not offer any alternative scheme for samesex




couples, such as civil unions. The Supreme Court has stated, and this Court firmly agrees,


that “marriage is more than a routine classification for purposes of certain statutory benefits.”

Windsor, 133 S.Ct. at 2692. This Court’s opinion should not be read to mean that marriage is


nothing more than a contractual relationship or to mean that a civil union scheme would survive




constitutional scrutiny. However, because Oklahoma is an all-or-nothing state (marriage license


or no marital benefits), the equal protection violation is that much clearer, and this Court’s


opinion need not reach the legal viability of some alternative scheme.

28 When the Court refers to “obtaining a marriage license” throughout this Order, it




refers to both the initial issuance of the marriage license and the recording of the marriage


license by the court clerk after the marriage is solemnized.


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Therefore, the declaratory and injunctive relief granted by the Court does not require any individual


to perform a same-sex marriage ceremony.
D. Equal Protection Analysis
The Fourteenth Amendment mandates that no state shall “deny to any person within its


jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. The Tenth Circuit has


recently explained equal protection principles:


Equal protection is the law’s keystone. Without careful attention to equal


protection’s demands, the integrity of surrounding law all too often erodes,


sometimes to the point where it becomes little more than a tool of majoritarian


oppression. But when equal protection’s demands are met, when majorities are


forced to abide the same rules they seek to impose on minorities, we can rest much


surer of the soundness of our legal edifice. No better measure exists to assure that


laws will be just than to require that laws be equal in operation.


At the same time, it is of course important to be precise about what equal protection

is and what it is not. Equal protection of the laws doesn’t guarantee equal results






for all, or suggest that the law may never draw distinctions between persons in


meaningfully dissimilar situations—two possibilities that might themselves generate

rather than prevent injustice. Neither is the equal protection promise some generic




guard against arbitrary or unlawful governmental action, merely replicating the work

done by the Due Process Clause or even the Administrative Procedure Act. Instead,






the Equal Protection Clause is a more particular and profound recognition of the


essential and radical equality of all human beings. It seeks to ensure that any


classifications the law makes are made without respect to persons, that like cases are


treated alike, that those who appear similarly situated are not treated differently


without, at the very least, a rational reason for the difference.

SECSYS, LLC v. Vigil, 666 F.3d 678, 684-85 (10th Cir. 2012) (alterations and citations omitted)




(emphases added). A class-based equal-protection challenge, such as that raised here, generally

requires a two-step analysis. Id. at 685. First, the Court asks “whether the challenged state action

intentionally discriminates between groups of persons.” Id. Second, after an act of intentional




discrimination is identified, the Court must ask “whether the state’s intentional decision to

discriminate can be justified by reference to some upright government purpose.” Id. at 686. In




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conducting its analysis, the Court has been particularly mindful of the above-quoted portion of Vigil



and has closely adhered to its two-step test. This has helped the Court decide this controversial and


complex case as it would decide any other equal protection challenge.
1. Does Part A Intentionally Discriminate Between Groups of Persons?

“Intentional discrimination can take several forms.” Vigil, 666 F.3d at 685. “When a




distinction between groups of persons appears on the face of a state law or action, an intent to

discriminate is presumed and no further examination of legislative purpose is required.” Id. If the

law is instead one of general applicability, some “proof is required.” Id. Because “few are anxious




to own up to a discriminatory intent,” courts may “draw inferences about a law’s intent or purpose

from circumstantial evidence.” Id. at 686. A plaintiff may demonstrate that a generally applicable




law results in intentional discrimination by showing that the law “was adopted at least in part

because of, and not merely in spite of, its discriminatory effect on a particular class of persons.” Id.



(emphasis added).


The Court defines the relevant class as same-sex couples desiring an Oklahoma marriage

license.29 The Bishop couple has easily satisfied the first element – requiring a showing that Part




A intentionally discriminates against this class – for two reasons. First, Part A’s disparate impact


upon same-sex couples desiring to marry is stark. Its effect is to prevent every same-sex couple in


Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law

29 It is somewhat unusual to define a class of couples, but the Court finds it proper here.




The classification made by Part A is aimed only at same-sex couples who want to marry, rather


than all homosexuals. A couple must apply together in person for a marriage license, and it is


the fact that they are of the same sex that renders them ineligible. Further, Smith’s proferred

justifications are tied to alleged characteristics that two individuals have when coupled – i.e.,

their inability to “naturally procreate” and to provide an “optimal” parenting environment. See


infra Part VI(D)(2)(d) (setting forth Smith’s proferred justifications for the law).




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has a small or incidental effect on the defined class; it is a total exclusion of only one group. See


Vigil, 666 F.3d at 686 (explaining that a law’s starkly disparate impact “may well inform a court’s




investigation into the law’s underlying intent or purpose”).


Second, both the timing of SQ 711 in relation to certain court rulings and the statements


in the public domain before passage of SQ 711 raise the inference that it was adopted, at least in


part, for the purpose of excluding the class from marriage. SQ 711 originated from legislation


entitled the Marriage Protection Amendment, which passed the Oklahoma Legislature as part of

House Bill 2259 (“HB 2259”). (See Smith’s Cross Mot. for Summ. J., Ex. 1 to Ex. B.) Although




there is no “legislative history” for HB 2259 cited in the record, the Oklahoma House of


Representatives website provides a “history” of HB 2259, which (1) lists the title as “Marriage;


enacting the Marriage Protection Amendment;” (2) shows that the Oklahoma Senate passed the


measure by a vote of 38 to 7 on April 15, 2004; and (3) shows that the House passed the measure

by a vote of 92 to 4 on April 22, 2004. See History for HB 2259, available at www.oklegislature

.gov/BillInfo.aspx?Bill= HB2259&Session=0400.30



On April 15, 2004, the day HB 2259 passed the Oklahoma Senate, the Oklahoma Senate


issued the following press release:


Senate Passes Marriage Protection Amendment


Despite efforts by the Democrat leadership throughout the legislative session to kill


the issue, the Senate passed a bill that sends to a vote of the people a constitutional


amendment defining marriage in Oklahoma as only between one man and one

30 The Court takes judicial notice of information available on the Oklahoma House of




Representatives website and the Oklahoma Senate website pursuant to Federal Rule of Evidence


201, which allows courts to take judicial notice of adjudicative facts if they are “generally known


within the trial court’s jurisdiction; or (2) can be accurately and readily determined from sources

whose accuracy cannot be questioned.” Fed. R. Evid. 201(b); Winzler v. Toyota Motor Sales


U.S.A., Inc., 681 F.3d 1208, 1213 (10th Cir. 2012).




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woman and prohibiting the state from recognizing homosexual marriages performed


outside Oklahoma.


“I am thankful to the Senate’s Democrat leadership for finally giving up on their


efforts to keep the people from voting on the marriage protection amendment,” stated


Senate Republican Leader James Williamson, R-Tulsa. “All we wanted all along was


for the Democrat leadership to allow an up or down vote on this issue, and to allow


the Senate to work its will.


“This is a tremendous victory for the people of Oklahoma and for those of us here


at the state Capitol who fight for pro-family issues,” Williamson said.


Today’s vote was allowed as the result of an agreement on Tuesday between the


Senate Democrat leadership and the Senate Republicans to end a filibuster by


Senator Bernest Cain, D-Oklahoma City, the Senate’s leading supporter of legalizing


homosexual marriage in Oklahoma.


. . .


Today, Williamson succeeded in attaching the marriage protection amendment to


House Bill 2259 . . ., sending it back to the House of Representatives for their


approval of the Senate’s amendment to the bill.


. . .


If HB 2259 becomes law, the people of Oklahoma will vote on the proposed


constitutional amendment on this fall’s general election ballot. The constitutional


amendment would define marriage as only between one man and one woman,


prohibit the recognition of same-sex marriages in other jurisdictions, and make it a


misdemeanor to issue a marriage license in violation of the amendment’s definition


of marriage.

Many other states – from Ohio to Georgia – have taken action to provide






constitutional protections to traditional marriage to combat efforts by liberals and

activist judges seeking to redefine marriage by allowing same-sex unions.


Senate Passes Marriage Protection Amendment, available at www.oksenate.gov/news/pressreleases/




press_releases_2004/pr20040415.html (emphasis added).


The press release’s reference to judicial efforts to redefine marriage by allowing “same-sex


unions” came shortly after two Massachusetts Supreme Court cases were issued, which held that the

Massachusetts Constitution required that state to allow same-sex marriage. See Goodridge v. Dept.


of Pub. Health, 798 N.E.2d 941, 968 (Mass. Dec. 20, 2003) (holding that practice of denying




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marriage licenses to same-sex couples violated same-sex couples’ equal protection rights under

Massachusetts Constitution); In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 572




(Mass. Feb. 3, 2004) (providing opinion, in response to question from Massachusetts Senate, that


a bill prohibiting same-sex couples from marrying, but allowing same-sex couples to enter civil


unions, would also violate the Massachusetts Constitution). On February 6, 2004, three days after


the second ruling by the Massachusetts Supreme Court, Tulsa and Oklahoma City newspapers both


reported that State Senator James Williamson, author of the Marriage Protection Amendment, made


public statements regarding the need for a constitutional amendment in order to prevent a similar

ruling in Oklahoma. See Marie Price, Republican Legislators Wary of Same-Sex Ruling, Tulsa




World, Feb. 6, 2004 (“Legislative Republicans said Thursday that this week’s Massachusetts


Supreme Court ruling outlining constitutional protection for same-sex marriages puts Oklahoma in


jeopardy of a similar decision.”) (quoting Mr. Williamson as stating that “‘[Governor Brad Henry’s]


reluctance to protect traditional marriage could put Oklahoma at risk that a court will force same-sex

unions on us here’”);31 Ryan McNeil, Party Leaders Trade Barbs on Marriage, The Oklahoman,


31 The Bishop couple presented several newspaper articles in support of their Statement

of Facts 13-15. (See Ex. 5 to Pls.’ Mot. for Summ. J.) Smith does not dispute the factual




accuracy of the reporting in these articles but argues that they may not be considered because


they are: (1) irrelevant, and (2) inadmissible hearsay. The Court rejects both arguments.


First, the articles are relevant to both steps of the analysis – whether the law was passed,


at least in part, for the purpose of intentional discrimination and whether such discrimination is

justified. See Vigil, 666 F.3d at 685 (setting forth two-step test); see generally Windsor, 133 S.




Ct. at 2693 (discussing statements made by legislators supporting DOMA’s passage as relevant


to question of law’s purpose). Although the Court is addressing a constitutional amendment


enacted by a vote of the people, public statements made by the drafting and championing


legislators before the law’s passage are certainly relevant evidence.


Second, the articles do not pose hearsay problems because the Court is not relying upon


the articles, or quotations therein, for their truth. The Court is relying upon the articles to


demonstrate what information was in the public domain at the time SQ 711 passed. Whether the


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Feb. 6, 2004 (similarly reporting on Mr. Williamson’s public comments regarding “activist judges”


who seek to overturn Oklahoma’s definition of marriage). Similar public comments regarding the


need to protect marriage from same-sex couples were made closer in time to the law’s passage. In


a public debate held at the Tulsa Press Club between Mr. Williamson and Mark Bonney in October


2004, Mr. Williamson stated that “‘[i]t is one thing to tolerate the homosexual lifestyle and another

to legitimize it through marriage.’” Brian Barber, Ban on Gay Marriage Debated, Tulsa World,




(Oct. 13, 2004) (quoting Mr. Williamson).


Exclusion of the defined class was not a hidden or ulterior motive; it was consistently


communicated to Oklahoma citizens as a justification for SQ 711. This is simply not a case where


articles or quotations are accurate is of no moment; what matters is that these justifications were

offered to the voting public. See Benak ex rel. Alliance Premier Growth Fund v. Alliance


Capital Mgmt. L.P., 435 F.3d 396, 401 n.15 (3d Cir. 2006) (relying on articles for purposes of

determining what was in the public realm, not whether the contents were in fact true); Florida


Right to Life, Inc. v. Mortham, No. 98770CIVORL19A, 1998 WL 1735137, at *6 (M.D. Fla.




Sept. 30, 1998) (finding news articles non-hearsay) (“[T]he Court will consider the effect of the


newspaper articles in creating a perception by the public of corruption occurring in Florida,


which perception depends on the fact that members of the public have read the articles rather


than the truth of the matters contained therein.”). One important source of public knowledge and


opinion are news articles conveying statements by the legislators who originated, drafted, and


promoted SQ 711.


Alternatively, the Court finds that all news articles and quotations therein qualify


for the residual exception to the hearsay rule because: (1) the articles and quotations have


circumstantial guarantees of trustworthiness – namely, that they were made publically to large


groups, were consistently reported in Oklahoma newspapers, and are, in some ways, akin to


statements against interest; (2) the articles and quotations are relevant to ascertaining the


purposes and justifications for the law; (3) based on the lack of “legislative history” for a state


question, the articles and quotations are more probative than other evidence that can be obtained


through reasonable efforts; and (4) admitting the news articles, rather than requiring other forms

of evidence, serves the interest of justice. See Fed. R. Evid. 807(1)-(4); cf. New England Mut.


Life Ins. Co. v. Anderson, 888 F.2d 646, 650 (10th Cir. 1989) (finding that trial court properly




excluded news article reporting statements made by widow to one reporter that she conspired to


kill insured, where issue was fraudulent procurement of the insurance policy). Further, Smith


does not dispute or attempt to dispute their factual veracity in any manner; Smith just asks the


Court to disregard them. That does not serve the interest of justice in this case.


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exclusion of same-sex couples was a mere “unintended consequence” of the law. Cf. Vigil, 666 F.3d




at 686-87 (holding that any discriminatory impact on a certain class of persons by an extortionist


state action was an “unintended consequence” flowing from the ultimate goal of enriching the


extortioner). Instead, this is a classic, class-based equal protection case in which a line was


purposefully drawn between two groups of Oklahoma citizens – same-sex couples desiring an

Oklahoma marriage license and opposite-sex couples desiring an Oklahoma marriage license.32





2. Is This Intentional Discrimination Justified?
Not all intentional discrimination by a state against a class of citizens violates equal

protection principles. See Vigil, 666 F.3d at 686 (“The law . . . may take cognizance of meaningful



distinctions between individuals without violating the constitutional command of treating similarly


situated persons equally.”). “In determining whether distinctions between individuals are

‘meaningful,’ the degree of judicial scrutiny varies.” Id. If the discrimination is against a suspect




class or quasi-suspect class, it comes to courts “under grave suspicions and subject to heightened


review” because experience teaches that classifications against these groups is “so rarely defensible

on any ground other than a wish to harm and subjugate.” Id. at 687. “Laws selectively burdening


32 In some equal protection cases, the intentional discrimination imposed by the law is so




“unusual” in its character that improper purpose and motive are readily apparent, and there is no

need to determine whether the intentional discrimination is justified. See, e.g., Windsor, 133 S.

Ct. at 2693; Romer, 517 U.S. at 635. Because Windsor involved an unusual federal intrusion

into state domestic law (not at issue here) and Romer involved an unusual, total removal of any




equal protection of the law (not at issue here), the Court proceeds to conduct a more traditional


equal protection analysis by determining the proper level of scrutiny and then considering all

conceivable justifications for Part A. See generally Kitchen, 2013 WL 6697874, at *22




(discussing lack of guidance for determining whether a law imposes “discrimination of an


unusual character” and applying “well-settled rational basis test” to Utah’s same-sex marriage


prohibition).


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fundamental rights are also carefully scrutinized.”33 Laws discriminating against all other groups


33 The Court does not reach the question of whether Part A selectively burdens the

Bishop couple’s asserted fundamental “right to marry a person of their choice.” (See Pls.’ Reply




in Support of Pls.’ Mot. for Summ. J. 14.) Such a holding would be broader than whether Part A


intentionally discriminates against a defined class of Oklahoma citizens, and it would possibly

affect other Oklahoma laws burdening the “right to marry a person of [one’s] choice.” See supra



Part VI(C) (setting forth age, number, and other eligibility requirements under Oklahoma law).


If Part A does burden a fundamental right, it certainly would not withstand any degree of

heightened scrutiny. See supra Part VI(D)(2)(d).




Based upon its research on this topic, the Court offers two observations. First, whether or


not the right in question is deemed fundamental turns in large part upon how the right is defined.


If the right is defined as the “right to marry,” plaintiffs have thus far been more likely to win the

argument. See, e.g., Kitchen, 2013 WL 6697874, at *15 (holding that the plaintiffs do not “seek




a new right to same-sex marriage” and that “the right to marry has already been established as a

fundamental right”); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 994-95 (N.D. Cal. 2010)




(“Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to

strict scrutiny.”); Goodridge, 798 N.E. 2d at 959-61 (Mass. 2003) (stating in dicta that




“[w]hether and whom to marry . . . [is] among the most basic of every individual’s liberty and


due process rights” but then failing to decide whether the case merited strict scrutiny because the

law did not pass rational basis review); Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp.




2d 968, 983 (N.D. Cal. 2012) (stating in dicta that the right burdened by Section 3 of DOMA


was the fundamental “right to marry,” which had never been limited based upon the status of the


desired spouse). If defined as the “right to marry a person of the same sex,” plaintiffs have thus

far been more likely to lose the argument. See, e.g., Jackson, 884 F. Supp. 2d at 1096 (defining




right burdened as “an asserted new right to same-sex marriage” and holding that such right was

not deeply rooted in the nation’s tradition) (collecting cases); Lewis v. Harris, 188 N.J. 415, 441




(2006) (defining right burdened as the “right to same-sex marriage” and holding that “[d]espite


the rich diversity of this State . . . and the many recent advances made by gays and lesbians . . .,


we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and


conscience of the people of this State that it ranks as a fundamental right” under the New Jersey


Constitution).

Second, language in Windsor indicates that same-sex marriage may be a “new” right,




rather than one subsumed within the Court’s prior “right to marry” cases.


It seems fair to conclude that, until recent years, many citizens had not even


considered the possibility that two persons of the same sex might aspire to occupy

the same status and dignity as that of a man and woman in lawful marriage. For






marriage between a man and a woman no doubt had been thought of by most


people as essential to the very definition of that term and to its role and function

throughout the history of civilization. . . . The limitation of lawful marriage to






heterosexual couples, which for centuries had been deemed both necessary and
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of citizens “are reviewed to see if the distinctions they draw between persons are at least rational”


because “there is less reason from historical perspective to suspect a meaningless classification.”
Id.
a. Level of Scrutiny
The Bishop couple argues that Part A is subject to heightened scrutiny because it constitutes


gender discrimination. As explained above, the Court’s defined class is same-sex couples desiring


an Oklahoma marriage license. This class of individuals is excluded from marriage regardless of

their gender, i.e., regardless of whether they are two men or two women. Part A does not draw any




distinctions between same-sex male couples and same-sex female couples, does not place any


disproportionate burdens on men and women, and does not draw upon stereotypes applicable only


to male or female couples. The female couples in this case could readily be substituted for male


couples, and the male couples would be forced to make precisely the same “sex discrimination”


arguments. Common sense dictates that the intentional discrimination occurring in this case has


nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to

heightened scrutiny on that basis. See Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1005 (D. Nev. 2012)




(holding that Nevada’s prohibition of same-sex marriage was not “directed toward persons of any


particular gender” and did not “affect people of any particular gender disproportionately such that

a gender-based animus [could] reasonably be perceived”); Jackson, 884 F. Supp. 2d at 1099 (“The




Court thus agrees with the vast majority of courts considering the issue that an opposite-sex

definition of marriage does not constitute gender discrimination.”) (citing cases). But see Kitchen,


fundamental, came to be seen in New York and certain other States as an unjust




exclusion.

Windsor, 133 S. Ct. at 2689 (emphases added).




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2013 WL 6697874, at *20 (finding that Utah’s marriage definition constituted sex discrimination

and sexual orientation discrimination); Perry, 704 F. Supp. 2d at 996 (“Sexual orientation

discrimination can take the form of sex discrimination.”); Golinski, 824 F. Supp. 2d at 982 n.4 (“Ms.




Golinski is prohibited from marrying . . . a woman because [she] is a woman. . . . Thus, DOMA


operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”).


Instead of gender-based discrimination, the intentional discrimination occurring against


same-sex couples as a result of Part A is best described as sexual-orientation discrimination. The


conduct targeted by Part A – same-sex marriage – is so closely correlated with being homosexual

that sexual orientation provides the best descriptor for the class-based distinction being drawn. See


Lawrence, 539 U.S. at 583 (O’Connor, J., concurring) (explaining that conduct targeted by Texas




law criminalizing sodomy was so “closely correlated with being homosexual” that it amounted to

a class-based distinction); Sandoval, 911 F. Supp. 2d at 1005 (concluding that Nevada law

prohibiting same-sex marriage was “sexual-orientation based”); Varnum v. Brien, 763 N.W.2d 862,




885 (Iowa 2009) (“The benefit denied by the marriage statute – the status of civil marriage for


same-sex couples – is so ‘closely correlated with being homosexual’ as to make it apparent the law


is targeted at gay and lesbian people as a class.”). In this case, the Bishop couple self-identifies as

a homosexual couple and desires to marry each other due to their sexual orientation. (See Bishop




Couple Aff. ¶ 14, Ex. 1 to Pls.’ Mot. for Summ. J. (explaining that they “deeply desire” to marry the


“person [they] love and the “companion [they] have chosen,” which is driven by their sexual

orientation as lesbian).)34 Classifications against homosexuals and/or classifications based on a


34 Smith does not dispute that “sexual orientation” is the best descriptor for the




classification. Smith argues only that: (1) the Court should reject any attempt to “bootstrap” a


sex discrimination claim to what is actually a sexual orientation discrimination claim, and (2)

sexual orientation discrimination is subject to rationality review. (See Smith’s Cross Mot. for




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person’s sexual orientation are not subject to any form of heightened review in the Tenth Circuit.

See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 (10th Cir. 2008) (“A government official




can, therefore, distinguish between its citizens on the basis of sexual orientation, if that classification


bears a rational relation to some legitimate end.”) (citation omitted) (holding that county sheriff’s


refusal to enforce a lesbian’s protective order against her same-sex partner did not implicate any

protected class that would warrant heightened scrutiny); see also id. n.9 (noting cases rejecting “the

notion that homosexuality is a suspect classification”); Kitchen, 2013 WL 6697874, at *21 (finding


Price-Cornelison controlling as to this question in the Tenth Circuit). Therefore, Part A is not




subject to any form of heightened scrutiny based upon the Bishop couple’s membership in a suspect


class.
b. Rationality Standard
Because it disadvantages a non-suspect class, Part A does not come to this Court under

heightened suspicion.35 It comes to the Court on the same footing, for example, as laws intentionally




discriminating against the disabled or the elderly. Part A must be reviewed merely for “rationality,”


which requires the Court to uphold Part A “if there is any reasonably conceivable state of facts that

could provide a rational basis for the classification” that it draws between citizens. Copelin-Brown


v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005) (applying rational basis review

to legislation discriminating against non-suspect class of disabled persons); see also Price-


Cornelison, 524 F.3d at 1114 (inquiring whether classification based on the plaintiff’s status as a




Summ. J. 19-25.)

35 This distinguishes this case from Loving, in which the Supreme Court analyzed




Virginia’s miscegenation law under the “most rigid scrutiny” applicable to racial classifications.

See Loving, 388 U.S. at 11.




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homosexual bore a “rational relation to some legitimate end”). In conducting its review, the Court


must not only consider the actual purpose of the law but also whether there are any other

justifications that could “conceivably” provide a rational reason for its passage. See Schanzenbach


v. Town of Opal, Wyo., 706 F.3d 1269, 1276 (10th Cir. 2013) (explaining that a proferred




justification for a law need not have actually motivated the legislature). Further, “there need not be

a perfect fit between purpose and achievement for a law to pass constitutional muster.” Id. There




is no difference in the rationality standard where the law in question is a state constitutional

amendment enacted by a vote of citizens. See Romer, 517 U.S. at 631 (concluding that Colorado




constitutional amendment did not bear a “rational relation to a legitimate end”).


The Court’s ultimate task, even under rationality review, is to determine “whether there is


some ground of difference having a fair and substantial relation to at least one of the stated purposes

justifying the different treatment” between the included class and the excluded class. Johnson v.


Robison, 415 U.S. 361, 376 (1974); see also Vigil, 666 F.3d at 686 (“In any case, though, and




whatever the applicable standard of review, the aim is always to ensure that, while persons in


dissimilar situations may be treated differently, the law treats like alike.”). A state “may not rely


on a classification whose relationship to an asserted goal is so attenuated as to render the distinction

arbitrary or irrational.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985).




“By requiring that the classification bear a rational relationship to an independent and legitimate


legislative end, [a court] ensure[s] that classifications are not drawn for the purpose of

disadvantaging the group burdened by the law.” Romer, 517 U.S. at 634-35.




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c. Promoting Morality
The Court turns now to the conceivable justifications for Part A’s preclusion of same-sex


couples from receiving an Oklahoma marriage license. Although not advanced in this litigation as


a “justification,” the Bishop couple has shown, as a matter of law, that promoting or upholding

morality was at least one justification offered to the public prior to passage of the law.36 Just like

federal legislators who stated their purpose as “defending” the morality of marriage, see Windsor,




133 S. Ct. at 2693, Oklahoma legislators promoted Part A as upholding one specific moral view of


marriage. In February 2004, prior to HB 2259’s passage, House Minority Floor Leader Todd Hiett


stated that “‘[t]o recognize something other than what God has ordained as traditional marriage

obviously detracts or deteriorates the importance of the traditional marriage.’” Marie Price,


Republican Legislators Wary of Same-Sex Ruling, Tulsa World, Feb. 6, 2004 (quoting Mr. Hiett).




State Representative Bill Graves said, “‘This is a Bible Belt state . . . . Most people don’t want that


sort of thing here. . . . Gay people might call it discrimination, but I call it upholding morality.’”

David Harper, Focus: Gay Marriage Clamor Grows Louder and Louder, Tulsa World, Mar. 22,




2004 (quoting Mr. Graves). On April 15, 2004, the date HB 2259 passed the Senate, Mr.


Williamson stated that Oklahoma should not “‘legitimize that lifestyle by saying, ‘Yes, two


homosexuals can be just as married as two heterosexuals.’ That’s not right.’” John Greiner,

Marriage Vote Gets Backing of Senate, The Oklahoman, Apr. 16, 2004, at 5A (quoting Mr.




Williamson). On or around May 11, 2004, commenting on an advertisement paid for by Cimarron


Equality Oklahoma against SQ 711, Mr. Williamson stated that “‘there is a real hunger for a return

36 This is a different question than the threshold question of whether the Bishop couple

has shown intentional discrimination between groups, see supra Part VI(D)(1), although the




analyses overlap somewhat in this case.


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to traditional values and for leaders who will draw a line in the sand to help stop the moral decay

of this country.’” Judy Gibbs Robinson, Group Fights Marriage Plan With Print Ad, The




Oklahoman, May 11, 2004, 1A (quoting Mr. Williamson).


In August of 2004, approximately two months before the public vote, over forty Tulsa-area


churches organized a “pro-marriage rally,” during which Mr. Williamson promoted passage of SQ

711 and discussed Biblical prohibitions of homosexual acts. Robert Evatt, Local “Pro-Marriage


Rally” Takes Aim at Same-Sex Unions, Tulsa World, Aug. 25, 2004 (“‘As Christians, we are called




to love homosexuals,” Williamson said. “But I hope everyone at this rally knows the Scriptures


prohibit homosexual acts.’”). At this same rally, Tulsa Mayor Bill LaFortune stated: “‘If you


believe in Christ, if you believe in this country, and if you believe in this city, you believe that

marriage is a covenant between God, a man, and a woman.’” Id. (quoting Mr. LaFortune). An

editorial that ran in The Oklahoman on October 17, 2004 urged Oklahomans to pass SQ 711 because




“the idea that marriage is between a man and a woman is consistent with the citizenry’s morals and

beliefs.” Defining Marriage, The Oklahoman, Oct. 17, 2004, at 22A. The Bishop couple has




shown, as a matter of law, that “moral disapproval of same-sex marriage” existed in the public


domain as at least one justification for voting in favor of SQ 711.


The Court recognizes that moral disapproval often stems from deeply held religious

convictions. See Lawrence, 539 U.S. at 571 (explaining that moral disapproval of homosexual




conduct was shaped by “religious beliefs, conceptions of right and acceptable behavior, and respect


for the traditional family”). However, moral disapproval of homosexuals as a class, or same-sex

marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577




(“‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as


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immoral is not a sufficient reason for upholding a law prohibiting the practice.’”) (quoting and

adopting Justice Stevens’ dissent in Bowers v. Hardwick, 478 U.S. 186, 216 (1986)) (concluding that




“the majority may [not] use the power of the State to enforce [moral] views [disapproving of

homosexual conduct] on the whole society through operation of the criminal law”); id. at 582-83




(O’Connor, J., concurring) (explaining that “moral disapproval, without any other asserted state


interest,” is not a “sufficient rationale . . . to justify a law that discriminates among groups of

persons”); Mass. v. United States Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012)

(“Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis.

Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this

basis.”) (internal citations omitted).37 Preclusion of “moral disapproval” as a permissible basis for




laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage


advocates, and it forces states to demonstrate that their laws rationally further goals other than


promotion of one moral view of marriage. Therefore, although Part A rationally promotes the


State’s interest in upholding one particular moral definition of marriage, this is not a permissible


justification.
d. Other Justifications
The Court must also consider whether Part A rationally relates to the state interests now

being offered by Smith in this litigation.38 Smith asserts four justifications for Part A’s


37 Justice Scalia has repeatedly expressed his disagreement with this conclusion. See


Windsor, 133 S. Ct. at 2707 (Scalia, J., dissenting) (“As I have observed before, the Constitution




does not forbid the government to enforce traditional moral and sexual norms. . . .”). However,


these are dissenting opinions.

38 At the time of her concurrence in Lawrence, Justice O’Connor believed that “reasons




exist,” other than moral disapproval, for prohibiting same-sex marriage:


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discrimination against same-sex couples: (1) encouraging responsible procreation and child-rearing;


(2) steering naturally procreative relationships into stable unions; (3) promoting “the ideal that


children be raised by both a mother and a father in a stable family unit;” and (4) avoiding a


redefinition of marriage that would “necessarily change the institution and could have serious


unintended consequences.” (Smith’s Cross. Mot. for Summ. J. 38.) In support of these


justifications, Smith has provided twenty-five exhibits consisting primarily of articles and scholarly


writings on marriage, child-rearing, and homosexuality, ranging in date from the early twentieth


century to 2008, all of which this Court has carefully reviewed.
i. Encouraging Responsible Procreation/Steering Naturally

Procreative Couples to Marriage39



Smith argues that “through the institution of marriage, societies seek to increase the


likelihood that children will be born and raised in stable and enduring family units by both the


mothers and fathers who brought them into this world.” (Smith’s Resp. to Pls.’ Mot. for Summ. J.


27-28.) For purposes of its analysis, the Court accepts that Oklahoma has a legitimate interest in

encouraging “responsible procreation,” (i.e., procreation within marriage), and in steering “naturally




procreative” relationships into marriage, in order to reduce the number of children born out of


wedlock and reduce economic burdens on the State.


Texas cannot assert any legitimate state interest here, such as national security or


preserving the traditional institution of marriage. Unlike the moral disapproval of


same-sex relations – the asserted state interest in this case – other reasons exist to


promote the institution of marriage beyond mere moral disapproval of an


excluded group.

Lawrence, 539 U.S. at 585 (O’Connor, J. concurring). However, she did not explain or list what




these “other reasons” may be, and the Court has found none present in this case.

39 Due to their similarity, the Court addresses the first and second justifications together.




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However, Part A is not rationally related to these state interests for four reasons. First, the


wealth of scholarly articles in this section of Smith’s brief, which range from William Blackstone


to John Locke, simply demonstrate that state-recognized marriages developed in part as a means of

encouraging and incentivizing procreation within marriage. See, e.g., John Locke, The Second


Treatise on Civil Government, On Politics and Education, at 113-14 (1947) (“For the end of




conjugation between male and female, being not barely procreation, but the continuation of the


species, this conjugation betwixt male and female ought to last, even after procreation, so long as


is necessary to the nourishment and support of the young ones.”). (Smith’s Cross Mot. for Summ.


J. Ex. 5 to Ex. B.) These articles do not provide what is necessary in an equal protection case – that

is, a link between the legal classification now being drawn by Part A against same-sex couples and




a historical state objective of encouraging procreation to occur within marriage. Traditional


exclusion of the disadvantaged group from state-sanctioned marriage does not itself evidence a

rational link to the identified goal of promoting responsible procreation within marriage. See Heller


v. Doe, 509 U.S. 312, 326 (1993) (“Ancient lineage of a legal concept does not give it immunity

from attack for lacking rational basis.”); Williams v. Illinois, 399 U.S. 235, 239 (1970) (“Neither the




antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the

centuries insulates it from constitutional attack.”); Loving v. Virginia, 388 U.S. 1, 11-12 (1967)




(striking down Virginia’s miscegenation statute as violation of equal protection despite state’s


historical practice of prohibiting interracial marriage).

During oral arguments in Hollingsworth, Justice Scalia asked Mr. Theodore Olson, counsel




for the proponents of Proposition 8, when it became unconstitutional “to exclude homosexual

couples from marriage.” Tr. of Oral Argument 37-38 (March 26, 2013), Hollingsworth v. Perry, 133




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S. Ct. 2652 (2013). Mr. Olson responded with the rhetorical question of when did it become

unconstitutional “to prohibit interracial marriage” or “assign children to separate schools.” Id. at




38. As demonstrated by Mr. Olson’s response, the mere fact that an exclusion has occurred in the


past (without constitutional problem) does not mean that such exclusion is constitutional when


challenged at a particular moment in history. This Court has an obligation to consider whether an


exclusion, although historical, violates the constitutional rights of Oklahoma citizens.


Second, there is no rational link between excluding same-sex couples from marriage and the


goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering


the “naturally procreative” toward marriage. Civil marriage in Oklahoma does not have any

procreative prerequisites. See supra Part VI(C); see also Gill, 699 F. Supp. 2d at 389 (“[T]he ability




to procreate is not now, nor has it ever been, a precondition to marriage in any state in the


country.”). Permitting same-sex couples to receive a marriage license does not harm, erode, or


somehow water-down the “procreative” origins of the marriage institution, any more than marriages


of couples who cannot “naturally procreate” or do not ever wish to “naturally procreate.” Marriage


is incentivized for naturally procreative couples to precisely the same extent regardless of whether

same-sex couples (or other non-procreative couples) are included.40



Third, Part A’s failure to impose the classification on other similarly situated groups (here,

other non-procreative couples) can be probative of a lack of a rational basis. See City of Cleburne,




473 U.S. at 448 (finding that requiring special use permit for mentally handicapped occupants of a

40 If Smith’s unarticulated but underlying argument is that opposite-sex couples are more




likely to forego marriage because permitting same-sex couples erodes spiritual and religious


aspects of marriage, this devolves again to legislation driven by moral disapproval and not


legitimate state interests.


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home, but not for other potential occupants, was probative of a lack of rationality); Bd. of Trustees


of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (explaining Cleburne as reasoning that “the




city’s purported justifications for the ordinance made no sense in light of how the city treated other

groups similarly situated in relevant respects”). As in Cleburne, the purported justification simply




“makes no sense” in light of how Oklahoma treats other non-procreative couples desiring to marry.

See Varnum v. Brien, 763 N.W.2d 862, 884 (Iowa 2009) (applying Iowa Constitution) (concluding




that same-sex couples were, for purposes of state’s interest in regulating marriage, similarly situated

to opposite-sex couples despite their inability to “naturally procreate”); Goodridge, 798 N.E.2d at




962 (applying Massachusetts Constitution) (“The ‘marriage is procreation’ argument singles out the


one unbridgeable difference between same-sex and opposite-sex couples, and transforms that


difference into the essence of legal marriage.”). This asserted justification also “makes no sense”


because a same-sex couple’s inability to “naturally procreate” is not a biological distinction of


critical importance, in relation to the articulated goal of avoiding children being born out of


wedlock. The reality is that same-sex couples, while not able to “naturally procreate,” can and do


have children by other means. As of the 2010 United States Census, there were 1,280 same-sex


“households” in Oklahoma who reported as having “their own children under 18 years of age


residing in their household.” United States Census 2010 and 2010 American Community Survey,


Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own

Children, available at http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls. If a same-sex




couple is capable of having a child with or without a marriage relationship, and the articulated state


goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders


rather than promotes that goal.


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Finally, the Court rejects Smith’s “lack of interest” argument. Perhaps recognizing that


excluding same-sex couples does not promote the asserted justifications in any rational manner,


Smith argues that it is rational to exclude same-sex couples from marriage simply because the State


has no real interest in them:


Even though some same-sex couples do raise children, they cannot create them in the


same way opposite-sex couples do – as the often unintended result of casual sexual


behavior. As a result, same-sex relationships simply do not pose the same risk of


irresponsible procreation that opposite-sex relationships do. . . . Sexual relationships


between individuals of the same sex neither advance nor threaten society’s interest


in responsible procreation in the same manner, or to the same degree, that sexual


relationships between men and women do.


(Smith’s Cross Mot. for Summ. J. 34.) This “lack of interest” argument is ironic, given the history

surrounding Part A’s passage. See supra Part VI(D)(1). Nonetheless, the Court has considered




whether it applies to this case.

In Johnson v. Robison, 415 U.S. 361, 383 (1974), the Supreme Court stated that when




“inclusion of one group promotes a legitimate governmental purpose, and the addition of other


groups would not, we cannot say that the statute’s classification of beneficiaries and nonbeneficiaries

is invidiously discriminatory.” In Johnson, the Court held that exclusion of




conscientious objectors from veterans’ educational benefits was rational, in part, because the

benefits would not incentivize service for that class. See id. at 382-83. The classification here is




readily distinguishable. Assuming a state can rationally exclude citizens from marital benefits due


to those citizens’ inability to “naturally procreate,” the state’s exclusion of only same-sex couples

in this case is so grossly underinclusive that it is irrational and arbitrary. In Johnson, the “carrot”




of educational benefits could never actually incentivize military service for the excluded group due


to their religious beliefs. In contrast here, the “carrot” of marriage is equally attractive to procreative


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and non-procreative couples, is extended to most non-procreative couples, but is withheld from just


one type of non-procreative couple. Same-sex couples are being subjected to a “naturally


procreative” requirement to which no other Oklahoma citizens are subjected, including the infertile,


the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and


this well exceeds it.
ii. Promoting the “Optimal” Child-Rearing Environment
Smith also argues that excluding same-sex couples is rationally related to the goal of


“promoting” the “ideal” family unit. Smith defines this “ideal” in several different ways throughout


the brief, including: (1) “‘a family headed by two biological parents in a low-conflict marriage”


because “benefits flow in substantial part from the biological connection shared by a child with both


mother and father,’” (Smith’s Cross Mot. for Summ J. 35 (quoting Kristin Anderson Moore,
Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can

We Do About It?, Child Trends Research Brief (June 2002), Ex. 19 to Ex. B)); (2) a family unit

where children are being “raised by both a mother and a father in a stable family unit;” (id.); and (3)




a family unit with “‘gender-differentiated parenting’” because “‘the contribution of fathers to childrearing

is unique and irreplaceable;’” (id. 36 (quoting David Popenoe, Life Without Father, at 146




(1996), Ex. 23 to Ex. B)).


The Court assumes, for purposes of this motion for summary judgment only, that (1) the


“ideal” environment for children must include opposite-sex, married, biological parents, and (2) that

“promoting” this ideal is a legitimate state interest.41 Again, however, the question remains whether


41 The Court suspects that many adoptive parents would challenge this defined “ideal,”




and that many “non-ideal” families would question this paternalistic state goal of steering their


private choices into one particular model of child-rearing. The Court also notes that same-sex


couples are physically capable of satisfying many of the descriptors of the “ideal” environment


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exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex


couples for different treatment due to “moral disapproval” of a same-sex household with children.


Smith has not articulated, and the Court cannot discern, a single way that excluding same-sex


couples from marriage will “promote” this “ideal” child-rearing environment. Exclusion from


marriage does not make it more likely that a same-sex couple desiring children, or already raising


children together, will change course and marry an opposite-sex partner (thereby providing the

“ideal” child-rearing environment). See Mass. v. Dept. of Health and Human Svcs., 682 F.3d 1, 14-




15 (1st Cir. 2012) (addressing Section 3 of DOMA) (“Certainly, the denial [of marital benefits] will

not affect the gender choices of those seeking marriage.”).42 It is more likely that any potential or




existing child will be raised by the same-sex couple without any state-provided marital benefits and


without being able to “understand the integrity and closeness of their own family and its concord

with other families in their community.” Windsor, 133 S. Ct. at 2694 (explaining that DOMA




“humiliate[d] thousands of children now being raised by same-sex couples” and brought “financial

harm to children of same-sex couples”); see also Gill, 699 F. Supp. 2d at 389 (concluding that




Section 3 of DOMA did not nothing to help children of opposite-sex parents but prevented children

of same-sex couples from enjoying advantages flowing from a stable family structure); Goodridge,




explained in Smith’s cited literature – namely, a stable, low-conflict, non-violent, loving, and


nurturing environment.

42 The Bishop couple denies that their exclusion from marriage makes it more likely they

would marry a member of the opposite sex. (See Bishop Couple Aff. ¶ 14 (explaining that




marrying someone of the opposite sex would, in their opinion, be “emotionally unhealthy and


mentally damaging” and that, more importantly, they have already identified the “companion


[they] have chosen” to marry and established a long-standing relationship with them), Ex. 1 to


Pls.’ Mot. for Summ. J.)


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798 N.E.2d at 335 (employing same reasoning in conducting rationality review of state policy


prohibiting same-sex marriages).


In addition, Smith has not explained, and the Court cannot discern from any of Smith’s cited


materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex


marriages will stay in tact (thereby remaining “optimal” child-rearing environments). Excluding


same-sex couples from marriage has done little to keep Oklahoma families together thus far, as

Oklahoma consistently has one of the highest divorce rates in the country. See Table 133, Marriages

and Divorces – Number and Rate by State: 1990-2009, available at www.census.gov/compendia/




statab/2012/tables/12s0133.pdf (showing Oklahoma as ranking sixth in 2009 for divorce rates). The


Court concludes that denial of same-sex couples from marriage “does nothing to promote stability

in heterosexual parenting.” See Gill, 699 F. Supp. 2d at 389 (analyzing rationality of Section 3 of




DOMA).


After presenting the empirical support espousing the benefits of this “ideal” family unit,


Smith offers a one-sentence, conclusory statement that is supposed to provide the link between the


empirical data and the exclusion: “It is rational, then, for Oklahoma to give ‘special recognition’ to


relationships that are designed to provide children the optimal environment of both a mother and a


father.” (Smith’s Cross Mot. for Summ. 38.) Whether they are “designed to” or not, common sense


dictates that many opposite-sex couples never actually do provide this optimal child-rearing


environment, due to drug use, abuse, or, more commonly, divorce. As with “natural procreative”


abilities, Smith does not condition any other couple’s receipt of a marriage license on their


willingness or ability to provide an “optimal” child-rearing environment for any potential or existing


children. While there need not be a good fit between the exclusion of same-sex couples from


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marriage and the promotion of this “ideal” family unit, there does need to be some reason for


excluding the class. Such a reason is lacking here.
iii. Negative Impact on Marriage
Smith’s final argument is that “it is rational for Oklahoma voters to believe that


fundamentally redefining marriage could have a severe and negative impact on the institution as a


whole.” (Smith’s Cross Mot. for Summ. J. 38.) This argument is best summarized in an article

entitled Marriage and the Public Good: Ten Principles. (Witherspoon Institute, Marriage and the


Public Good: Ten Principles (2008), Smith’s Cross Mot. for Summ. J., Ex. 28 to Ex. B.) After




discussing the plethora of benefits that marriage offers adults and children, the article then explains


how same-sex marriage is one of four “threats” to the institution (along with divorce, illegitimacy,


and cohabitation):


[T]here remain even deeper concerns about the institutional consequences of samesex


marriage for marriage itself. Same-sex marriage would further undercut the idea


that procreation is intrinsically connected to marriage. It would undermine the idea


that children need both a mother and a father, further weakening the societal norm


that men should take responsibility for the children they beget. Finally, same-sex


marriage would likely corrode marital norms of sexual fidelity, since gay marriage


advocates and gay couples tend to downplay the importance of sexual fidelity in their


definition of marriage.

(Id. at 18-19.) See also, e.g., Sandoval, 911 F. Supp. 2d at 1015-16 (finding Nevada’s same-sex




marriage bans to pass rationality review because “extending” marriage to same-sex couples could


“conceivably” lead to an “increased percentage of out-of-wedlock children, single-parent families,


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difficulties in property disputes . . ., or other unforeseen consequences”);43 Jackson, 884 F. Supp.

2d at 1112-15 (same).44



The “negative impact” argument is impermissibly tied to moral disapproval of same-sex


couples as a class of Oklahoma citizens. All of these perceived “threats” are to one view of the


marriage institution – a view that is bound up in procreation, one morally “ideal” parenting model,


and sexual fidelity. However, civil marriage in Oklahoma is not an institution with “moral”

requirements for any other group of citizens. See supra Part VI(C). Smith does not ask a couple if




they intend to be faithful to one another, if they intend to procreate, or if they would someday


consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With


respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex


couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one


class of citizens from receiving a marriage license based upon the perceived “threat” they pose to


the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of


the defined class. It is also insulting to same-sex couples, who are human beings capable of forming


loving, committed, enduring relationships. “‘Preserving the traditional institution of marriage,’”


which is the gist of Smith’s final asserted justification, “is just a kinder way of describing the State’s

moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 602 (Scalia, J., dissenting).


43 The Sandoval court reasoned in part that “civil marriage is at least partially a public




activity, and preventing ‘abuse of an institution the law protects’” is a valid state interest.

Sandoval, 911 F. Supp. 2d at 1014. As demonstrated above, same-sex couples do not possess




any characteristic indicating they can or will “abuse” the institution of marriage any more or any


differently than other included groups.

44 Both Jackson and Sandoval were decided before Windsor.




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Having considered all four proferred justifications for Part A, the Court concludes that


exclusion of same-sex couples is “so attenuated” from any of these goals that the exclusion cannot

survive rational-basis review. See City of Cleburne, 473 U.S. at 447 (explaining that a state “may




not rely on a classification whose relationship to an asserted goal is so attenuated as to render the

distinction arbitrary or irrational”); Vigil, 666 F.3d at 685 (equal protection review “seeks to ensure




that “those who appear similarly situated are not treated differently without, at the very least, a

rational reason for the difference”); Price-Cornelison, 524 F.3d at 1114 (“[W]e cannot discern on




this record, a rational reason to provide less protection to lesbian victims of domestic violence than


to heterosexual domestic violence victims.”).
E. Equal Protection Conclusion
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.




Against this backdrop, the Court’s task is to determine whether Part A of the Oklahoma


Constitutional Amendment deprives a class of Oklahoma citizens – namely, same-sex couples


desiring an Oklahoma marriage license – of equal protection of the law. Applying deferential


rationality review, the Court searched for a rational link between exclusion of this class from civil


marriage and promotion of a legitimate governmental objective. Finding none, the Court’s


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rationality review reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma


citizens from a governmental benefit.


Equal protection is at the very heart of our legal system and central to our consent to be


governed. It is not a scarce commodity to be meted out begrudgingly or in short portions.


Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The


Bishop couple has been in a loving, committed relationships for many years. They own property


together, wish to retire together, wish to make medical decisions for one another, and wish to be


recognized as a married couple with all its attendant rights and responsibilities. Part A of the


Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible samesex


couples, from this privilege without a legally sufficient justification.
VII. Injunctive Relief and Rulings on Pending Motions
The Court declares that Part A of the Oklahoma Constitutional Amendment violates the


Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by precluding samesex


couples from receiving an Oklahoma marriage license. The Court permanently enjoins


enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the


U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court

of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order




in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final


disposition of any appeal to the Tenth Circuit Court of Appeals.


Plaintiffs’ Motion for Summary Judgment (Doc. 197) is GRANTED as to Part A of the


Oklahoma Constitutional Amendment and otherwise DENIED. Defendant Sally Howe Smith’s


Cross Motion for Summary Judgment (Doc. 216) is DENIED as to Part A of the Oklahoma


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Constitutional Amendment, and GRANTED as to Part B based on the Barton couple’s lack of


standing. The Barton couple’s challenge to Part B is dismissed for lack of standing.


The Barton couple’s Motion for Entry of Final Judgment (Doc. 257) is DENIED, and their


challenge to Section 3 of DOMA is dismissed based upon constitutional mootness. BLAG’s motion


to withdraw as an intervening party (Doc. 263) is GRANTED, and BLAG’s pending motion for


summary judgment (Doc. 214) is DENIED as moot. The Motion to Dismiss by United States of


America and Eric H. Holder, Jr., Attorney General (Doc. 211) is GRANTED, and the Barton


couple’s challenge to Section 2 of DOMA is dismissed for lack of standing.

IT IS SO ORDERED this 14th day of January, 2014.





____________________________________


TERENCE C. KERN


UNITED STATES DISTRICT JUDGE
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