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Oklahoma gay marriage case drags on into ninth year

A federal ruling on Oklahoma's gay marriage ban has been elusive, but U.S. Supreme Court action on the issue last month may pave the way for a decision in the 2004 case
by Chris Casteel Modified: July 8, 2013 at 12:15 pm •  Published: July 8, 2013

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.

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by Chris Casteel
Washington Bureau
Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. After covering the police beat, federal courts and the state Legislature in Oklahoma City, he moved to Washington in 1990, where...
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