WASHINGTON — A lesbian couple challenging Oklahoma's ban on gay marriages say the U.S. Supreme Court has bolstered their arguments that the state prohibition is unconstitutional.
The high court's decision last month in a gay marriage case “provides clear and explicit guidance for concluding Oklahoma's marriage ban violates both (the couple's) fundamental right to marry, and the exercise of liberties inherent in such fundamental right,” according to a legal brief filed Monday in the case.
The U.S. Supreme Court struck down a federal law barring benefits for same-sex couples, ruling that it violated “basic due process and equal protection principles applicable to the federal government.”
The lawsuit against the Oklahoma ban was filed in federal court in Tulsa in 2004 and has been stalled for more than a year as same-sex marriage cases from other states moved toward consideration by the U.S. Supreme Court.
The high court's decision on the federal Defense of Marriage Act has sparked a flurry of activity in the Oklahoma case in the past two weeks, as the attorney for the couples has pushed U.S. District Judge Terence Kern to issue rulings.
The case was brought by Mary Bishop and Sharon Baldwin, a couple challenging the state ban on gay marriages; and Susan Barton and Gay Phillips, who were married in California and are challenging two sections of the Defense of Marriage Act.
Don Holladay, the attorney representing the couples, filed a motion urging Kern to render a final judgment in regard to the provision of the Defense of Marriage Act struck down by the Supreme Court.
In a separate motion, Holladay says the high-court opinion should also mean that another section of the federal law is unconstitutional; that section, which was not considered by the U.S. Supreme Court, allows states not to recognize gay marriages performed in other states.
The U.S. Justice Department stopped defending the Defense of Marriage Act in court but wants to file a response to Holladay's motion. Kern has given the department until Aug. 23 to do so. A group of House Republicans, known as the Bipartisan Legal Advisory Group, has been defending the law and is involved in the Oklahoma case.
Holladay also argues in the brief filed Monday that the Supreme Court's reasoning on the federal law should also guide Kern's decision on the state ban, which was overwhelmingly approved by voters in 2004.
“Only a constitutional removal of Oklahoma's marriage ban ... will provide same-sex couples in Oklahoma all the federal benefits and responsibilities that are available now in 13 states and the District of Columbia,” the brief says.
The Tulsa County clerk's office is defending the state law, since a federal appeals court ruled that the Oklahoma governor and attorney general had no authority to enforce the ban on gay marriage. The clerk's office is being represented by a Christian legal group, Alliance Defending Freedom.
The U.S. Supreme Court last month sidestepped the question of whether states could ban gay marriage, though that question is expected to make it back to the justices through one of the cases filed in lower courts.