WASHINGTON — The Tulsa County couple who challenged Oklahoma’s ban on same-sex marriage nearly 10 years ago urged the U.S. Supreme Court on Wednesday to use the case to decide the issue for the entire nation.
Mary Bishop and Sharon Baldwin, who have won favorable rulings this year from a federal judge in Tulsa and a federal appeals court, argued in a brief filed with the high court that the Oklahoma case presents an ideal vehicle for a far-reaching ruling.
“It was the first case in the country filed to challenge the spate of anti-gay-marriage laws enacted in 2004,” the brief states. “This case also lacks any alternative claims or procedural glitches that could prevent this Court from reaching and resolving the fundamental question whether states may deny same-sex couples the right to marry.”
The Supreme Court declined to rule on a California same-sex marriage ban in 2013 because of a key procedural matter — the state wasn’t defending the ban — but justices have been widely expected to revisit the matter.
The brief filed for Bishop and Baldwin states that the court shouldn’t wait.
“Public support for marriage equality for gay and lesbian Americans is rising dramatically — a fact that might tempt this Court to put off its consideration of this issue as the democratic march toward equality moves forward,” the brief states.
“But this Court should not defer final resolution of the question presented in this case. It is a bedrock principle of our constitutional system that ‘fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’”
Three states vie for attention
The brief was filed about three weeks after Tulsa County Clerk Sally Howe Smith — who was sued by Bishop and Baldwin for refusing to grant them a marriage license — urged the justices to take the Oklahoma case to reverse the July decision by the 10th U.S. Circuit Court of Appeals. That court said the Oklahoma ban violated 14th Amendment guarantees of equal protection and due process under the law.
It is unusual for the winning side — in this case, Bishop and Baldwin — to ask the Supreme Court to hear a case since there is a chance they could lose.
But there are sometimes issues, such as the Affordable Care Act’s contraception mandate, that are so pressing or are the subject of so many lawsuits around the country that a Supreme Court pronouncement seems both inevitable and necessary.
Since the Supreme Court struck down a federal law in 2013 that denied benefits to same-sex couples, federal judges across the country have ruled state-approved bans on same-sex marriage are unconstitutional.
The 10th Circuit court affirmed that the bans in Utah and Oklahoma violate the 14th Amendment. The 4th Circuit appeals court tossed out Virginia’s ban. Parties in all three states are asking the Supreme Court to take up their cases.
The brief filed by Bishop and Baldwin argues that the Virginia and Utah cases have wrinkles that make them less than ideal. Even if the justices decided to take one of those, the brief states, they should take Oklahoma’s case as well.
“Oklahoma is the only one of the three states before this Court that specifically makes it a crime — and a crime at the constitutional level at that — to issue a same-sex marriage license,” the brief states.
“The Oklahoma governor feels so strongly on the subject that she recently refused ... to allow the Oklahoma National Guard to process benefits for Guard members’ same-sex spouses on state property — an action that forced some individuals to travel considerable distances to federal military installations to obtain their federally guaranteed dispensations.”
Arguments about children
Smith, the Tulsa County court clerk, is being represented by Alliance Defending Freedom, which argued to the court this month that states should be able to restrict marriages to heterosexual couples to encourage procreation and provide a mother and father for children.
The response filed by the legal team for Bishop and Baldwin states Oklahoma allows “the infertile, the elderly, and every other class of heterosexual couples to marry” regardless of whether they intend to have children.
And, the brief states, Oklahoma denies marriage to same-sex couples based on assumptions about their inability to provide an optimal child-rearing environment, “while allowing virtually every other type of couple to marry regardless of such considerations, including (to name a few) drug users, physical abusers, and sex offenders.”