WASHINGTON — Attorneys for the lesbian couples who challenged Oklahoma’s ban on same-sex marriage filed their final brief with a federal appeals court Monday, arguing the Tulsa County court clerk is trying to invoke “a runaway vision of states’ rights” in saying that Oklahoma has the power to define marriage.
In arguing that states have the right to prohibit same-sex couples from getting married, or having their marriages recognized, the court clerk ignores the Civil War and post-Civil War changes to the U.S. Constitution that prevent states from depriving people of the basic guarantees of due process and equal protection, the attorneys argued.
U.S. District Judge Terence Kern in January struck down Oklahoma’s constitutional ban on same-sex marriage, ruling that Tulsa County Court Clerk Sally Howe Smith violated the 14th Amendment rights of Mary Bishop and Sharon Baldwin when she denied them a marriage license.
Smith appealed the decision to the 10th Circuit Court of Appeals in Denver, which is hearing a similar case from Utah. Oral arguments are scheduled for Thursday in the Utah case and April 17 in the Oklahoma case.
The brief filed Monday focuses mostly on the aspect of the Oklahoma case that has gotten little attention since Kern’s ruling — whether the Oklahoma ban on recognizing same-sex marriages from other states also is unconstitutional.
Susan Barton and Gay Phillips, who were married in California, challenged the provision on recognition, but Kern ruled that Howe wasn’t the right person to sue.
The couple’s attorneys maintained in the brief filed Monday that the 10th Circuit court had — in an earlier appeal in the case — specifically denoted the court clerk as the person to sue because she is an “arm” of the branch of state government responsible for resolving legal disputes about the out-of-state marriage.
The attorneys also argue that the provision on recognizing same-sex marriages from out of state can’t be separated from the one on allowing same-sex marriages to be performed in Oklahoma and that the law should be struck down in its entirety.
“Consequently, if this Court finds either the licensing or the non-recognition provision of the Oklahoma Marriage Ban invalid, it should conclude that, as both must stand together in order to abolish same-sex marriage from Oklahoma, both must fall together as well,” the brief states.
The appeals court is considering the Oklahoma and Utah cases on a fast track, with the same three judges considering both. However, there is no timetable for the court to render a decision. Ultimately, the cases are expected to be appealed to the U.S. Supreme Court.