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.
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