WASHINGTON — The Tulsa County court clerk asked the U.S. Supreme Court on Wednesday to review a federal appeals court decision striking down Oklahoma’s ban on same-sex marriage.
The 10th U.S. Circuit Court of Appeals, which struck down Oklahoma’s ban last month, removed the right of citizens to debate the issue of same-sex marriage, and the U.S. Supreme Court should “return to the People this critical issue of marriage policy,” court clerk Sally Howe Smith says in the petition.
The Oklahoma same-sex marriage ban was the second this week to reach the U.S. Supreme Court. On Tuesday, the state of Utah asked the high court justices to review the decision by the same appeals court that struck down Oklahoma’s ban.
The same three-judge panel of the 10th Circuit court heard the Oklahoma and Utah cases, which were considered on a parallel track but decided separately. In both, the court ruled 2-1 that the state bans violated 14th Amendment guarantees to due process and equal protection under the law.
Voters in Oklahoma and Utah overwhelmingly approved the bans in 2004.
Mary Bishop and Sharon Baldwin, of Tulsa County, sued Smith when the clerk declined the couple’s request for a marriage license. A federal judge in Tulsa ruled in January for the couple and the appeals court upheld that ruling.
Smith is being represented by Alliance Defending Freedom, a Christian legal group based in Arizona.
Byron Babione, senior legal counsel for the group, said Wednesday, “The people of every state should retain the freedom to preserve marriage if they so choose.
“Courts shouldn’t decide the legal destiny of marriage in any state, let alone in every state.”
Norman attorney and law professor Joseph Thai, part of the legal team representing Bishop and Baldwin, said, “We will review this petition carefully and file an appropriate response.
“We are confident the highest court in the country will uphold the highest law of the land and affirm the constitutionally protected equality and fundamental right of all Americans — gay, lesbian, or straight — to marry the person whom they love. We look forward to the day — now closer than ever — when our clients and other same-sex couples will attain for themselves and their families the equal dignity and protections of marriage, and at the same time strengthen the institution of marriage through their committed unions.”
The Supreme Court last year struck down a federal law — the Defense of Marriage Act — that denied a range of benefits to same-sex couples but declined to rule separately on the question of whether states could ban same-sex marriage.
The 10th Circuit court was the first federal appeals court to rule on a state ban since the 2013 decision on the Defense of Marriage Act.
The 4th U.S. Circuit Court of Appeals last week struck down Virginia’s ban. That ruling is also expected to be appealed to the Supreme Court. Alliance Defending Freedom is representing a court clerk in that case. Other federal appeals courts have same-sex marriage bans before them.
No federal appeals court has upheld a state ban since the 2013 decision in the Defense of Marriage Act, so Supreme Court justices may not get the appeals court conflict they often prefer when taking on a major issue.
The Supreme Court is in recess until Oct. 6. Many court observers expect the justices to take on the issue of state same-sex marriage bans, though it’s not known whether they will do so in the upcoming term.
‘Concrete, adversarial dispute’
In the petition filed Wednesday, the attorneys for the Tulsa County court clerk say the Oklahoma case would be a good vehicle for the court to decide the 14th Amendment questions at issue. There are no technical matters that complicate the case, and a “concrete, adversarial dispute exists” between the couple and the court clerk.
The state case that the Supreme Court declined to review in 2013 was from California; state officials there declined to defend the constitutional ban, so the court had no adversarial dispute.
The petition filed Wednesday says the Oklahoma case “presents a constitutional question of pressing national importance.”
If states “must recognize all relationships as marriages, their purpose for having a marriage policy in the first place — to recognize and subsidize particular relationships because of the societal interests that they serve — would be eradicated,” the petition states.
“This far-reaching effect on the States’ marriage policy would unsettle well-established federalism principles in the area of domestic relations.”