WASHINGTON — The Oklahoma legal team that scored two federal court victories against the state’s same-sex marriage ban has added a lawyer with extensive U.S. Supreme Court experience to persuade high court justices to review the case and affirm the ban is unconstitutional.
Jeffrey L. Fisher, law professor and co-director of the Supreme Court Litigation Clinic at Stanford University, is now the lead counsel for Mary Bishop and Sharon Baldwin, the Tulsa County couple at the center of the Oklahoma case.
“We’re just delighted,” Norman attorney Don Holladay, who took over the Bishop case in 2009 and revived it after nearly five years of procedural wrangling, said Monday. “Jeff has been to the Supreme Court many times. He is a very respected and successful litigator.”
Holladay said Fisher would represent the legal team at oral arguments if the high court accepts the case for review. Attorneys for the couple now are writing a brief that is due at the court by Sept. 5.
Holladay said the attorneys are “focused on filing the strongest response possible” to the petition filed early this month by Alliance Defending Freedom, the Christian legal group that has been representing Tulsa County Court Clerk Sally Howe Smith since she refused to grant a marriage license to Bishop and Baldwin and was named in the lawsuit challenging Oklahoma’s ban.
U.S. District Judge Terence Kern, of Tulsa, ruled in January that Oklahoma’s constitutional ban on same-sex marriage violates the 14th Amendment’s guarantee of equal protection under the law. In July, the 10th U.S. Circuit Court of Appeals agreed in a 2-1 ruling that the ban violated the 14th Amendment’s protections.
It is typically the case that the winning party in a lower court argues against Supreme Court review because of the possibility the high court will reverse the lower court’s decision.
However, parties that have successfully challenged same-sex marriage bans in Oklahoma and other states want the U.S. Supreme Court to settle the matter for the entire country. Because of that, the team representing the Tulsa County couple is expected to urge justices to review the 10th Circuit decision.
The Supreme Court is in recess until early October, but justices are scheduled to hold a private conference late next month to consider whether to accept some of the petitions pending before them. Attorneys involved in same-sex marriage cases from Oklahoma, Utah and Virginia appear to be filing their briefs quickly so they can be considered at that late September conference.
After Kern’s ruling for their clients, Holladay and Oklahoma City attorney James E. Warner III enlisted Norman attorney and law professor Joseph Thai to help with the case as it moved to the federal appeals court. Holladay said Monday that Thai had asked Fisher to join the team after the favorable appeals court ruling.
Thai and Fisher were clerks for former U.S. Supreme Court Justice John Paul Stevens. In 2013, the two were part of a legal team that sought U.S. Supreme Court review of former U.S. Army 1st Lt. Michael Behenna’s conviction of unpremeditated murder in a combat zone. The high court declined to review the case.
Fisher and the Stanford litigation clinic won a major Supreme Court victory this year when the justices ruled unanimously that police must get a warrant to search the cell phone of someone arrested. In 2008, Fisher successfully appealed the death sentence of a Louisiana man convicted of raping a child; in that case, the high court effectively ruled that states can’t impose the death penalty for crimes that don’t result in death.