WASHINGTON — The day after Oklahoma voters overwhelmingly approved a state question banning same-sex marriage in 2004, two lesbian couples filed a challenge in federal court in Tulsa.
Since then, nothing about the lawsuit has moved swiftly.
Some of the major players have changed, from the attorney who first filed the suit to the parties being sued. The arguments on both sides have evolved as laws and lawsuits in other states have advanced.
But after the U.S. Supreme Court ruled in two gay marriage cases last month, the central question in the Oklahoma lawsuit remains: Does the state ban on gay marriage violate the U.S. Constitution?
U.S. District Judge Terence Kern has that question before him and can answer it any time.
Mary Bishop, one of the women who filed the original suit, said the case got off to a rocky start but that Oklahoma City attorney Don Holladay “lit a fire under it” when he took over in 2009.
Then, in March of 2012, after major federal rulings in the case against California's same-sex marriage ban, the Oklahoma case ground to a halt.
Ken Upton, a senior staff attorney for Lambda Legal, a legal organization that defends the civil rights of gays and lesbians, said action in other gay marriage cases stalled as the California case progressed to the U.S. Supreme Court.
Had the high court ruled on the constitutionality of California's state ban, it would have provided guidance to judges examining the cases from Oklahoma and other states.
But justices left that issue for another day and another case.
Holladay said in an interview last week that he expects some “cleanup” motions to be filed in the Oklahoma case related to the recent Supreme Court decisions. After that, he said, Kern should be able to rule on the constitutional question that has been before him for nearly nine years.
Holladay said, it “simply doesn't matter” how Kern rules since the case ultimately will move to the 10th U.S. Circuit Court of Appeals and possibly become the one chosen by the U.S. Supreme Court to address the question of state bans.
Oklahoma's law would make for a good test of the constitutionality of such bans, Holladay said.
“It's very harsh and very clear,” he said.
Case falls apart
State Question 711 was approved in Oklahoma on Nov. 2, 2004, with 76 percent of the vote. On that same day, 10 other states passed similar bans.
The Oklahoma ballot question defined marriage as the union of one man and one woman and made it a misdemeanor to issue a marriage license to a same-sex couple. It also prohibited the recognition of same-sex marriages performed in other states.
Before the ballot question was approved, Tulsa attorney N. Kay Bridger-Riley, interviewed couples who might be interested in being plaintiffs in a challenge.
Bishop, an editor at the Tulsa World, said in an interview last week that some people were concerned about their professional futures and declined.
Bishop and her longtime partner, Sharon Baldwin, agreed to challenge the state question; Susan G. Barton and Gay E. Phillips, of Tulsa, challenged two sections of the federal Defense of Marriage Act, which denied federal benefits to same-sex couples and allowed states not to recognize gay marriages from other states.
Numerous legal filings from the state of Oklahoma and the U.S. Justice Department consumed the early years of the case, and Kern was required to rule on the fundamental question of whether the lawsuit could actually go forward against then-Gov. Brad Henry and then-Attorney General Drew Edmondson.
Kern ruled that the two state officials could be sued, but the state appealed that to the 10th Circuit.
In June 2009, more than four years after the case was filed, the 10th Circuit court ruled that the governor and attorney general weren't the right people to sue since handing out marriage licenses wasn't in their job descriptions.
“The case had really fallen apart,” Bishop said.
Holladay, a constitutional law expert whose son, David, is in a same-sex marriage, approached the couples who brought the suit not long after the 10th Circuit opinion.
At the time, the original attorney for the couples was trying to get out of the case, telling the judge in a court motion that professional difficulties had resulted in “subpar representation” for her clients.
Within a few weeks, Holladay had filed an amended complaint in the case, this time naming the Tulsa County court clerk, who is responsible for marriage licenses, in the challenge to the state question.
The suit named U.S. Attorney General Eric Holder in the challenges to the Defense of Marriage Act.
“The Oklahoma amendment was passed with a discriminatory interest, in that it was intended as public moral disapproval of gays and lesbians,” the complaint stated.
“Because Oklahoma law singles out gays and lesbians for a disfavored legal status, Oklahoma has by law created second-class citizens.”
The unequal treatment violated the due process and equal protection guarantees of the U.S. Constitution, the complaint said.
On the defense
The Tulsa district attorney's office is responsible for defending the county clerk in the suit, but most of the work in the last few years has been done by a Christian legal group based in Arizona.
The Alliance Defending Freedom, which has been involved in other gay marriage challenges, has a team of attorneys fighting the Oklahoma challenge and defending the state law.
According to the group's legal filings, states' “legitimate interest” in defining marriage has been recognized by courts throughout the United States and the U.S. Supreme Court in a case from Minnesota more than 40 years ago.
“In sum, it is rational, and therefore constitutional, for Oklahoma to maintain the millennia-old definition of marriage in light of its historic and still-vital purpose to steer naturally procreative relationships into marriage and to encourage the ideal that children have, wherever possible, both a mother and a father,” the group stated in urging the judge to uphold the state law.
“Moreover, it is rational to believe that changing the definition of marriage could alter or undermine those compelling social purposes for marriage.”
The alliance did not respond last week to questions about the case.
Cases in appeal
Though the U.S. Supreme Court last month struck down one section of the Defense of Marriage Act, another section is still at issue in the Oklahoma.
However, it's not clear how the Bipartisan Legal Advisory Group — representing some members of Congress in the case — will proceed now.
All of the parties will likely tell Kern in legal documents in the next few weeks how he should rule in light of the Supreme Court's decisions last month.
Upton, the attorney for Lambda Legal, said cases from Hawaii and Nevada — in which state bans on gay marriage were upheld by federal district judges — are already before a federal appeals court. The cases are being handled on a parallel track.
However, Upton said the 9th Circuit Court of Appeals often moves slowly and that it's at least conceivable that the Oklahoma case could catch up and be considered for U.S. Supreme Court review.
“It depends on how fast Kern rules,” he said.