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Oklahoma clerk appeals on same-sex marriage

The nation’s longest-running federal court challenge to a state ban on same-sex marriage — now in its tenth year — reached the Supreme Court on Wednesday.  A county clerk in Oklahoma filed a petition seeking to defend that state’s ban, one day after a similar appeal was filed by Utah officials.  The Oklahoma case (Smith v. Bishop) has been docketed as 14-136.  Other cases are due at the Court soon.

The Oklahoma case has been underway since November 2004, and finally was decided by the U.S. Court of Appeals for the Tenth Circuit last month, in a split decision nullifying a state constitutional amendment approved by Oklahoma voters in 2004.  That same appeals court had issued the similar ruling that is being challenged in the Utah case.

Although the Oklahoma amendment both bars same-sex marriages and bars recognition of any such marriages performed in other states for Oklahoma couples, the Tenth Circuit ruling dealt only with the marriage ban.  It found, for procedural reasons, that it could not rule on the recognition question.   Both are at issue in the Utah case.

The Oklahoma filing was by lawyers for Sally Howe Smith, who is a court clerk in Tulsa County.  In lower courts, state officials supported Smith’s defense of the Oklahoma ban.

The petition argued that people across the nation are “engaged in an earnest public debate about the meaning, purpose, and future of marriage,” with varying results among the states.

But, it contended, the Tenth Circuit’s ruling nullifying the Oklahoma ban “would end this robust political debate.  That court expanded the fundamental right to marry to include all relationships that provide ’emotional support’ and express ‘public commitment.'”  (The quoted phrases were drawn from the opinion of the judge who dissented in the Tenth Circuit.)

The appeals court, the petition added, “broadly held that states may no longer define marriage as a man-woman union.”  The Supreme Court, it said, “should grant review and return to the people this critical issue of marriage policy.”

Oklahoma voters moved to amend their state constitution to formalize a ban on same-sex marriages, not long after the Massachusetts Supreme Court Judicial Court, in 2003, had become the first court to nullify a state ban.  Soon after the amendment passed, the Bishop lawsuit was filed.

The Tenth Circuit decision against the Oklahoma ban is on hold during the appeal to the Supreme Court.

Meanwhile, on Wednesday afternoon, the U.S. Court of Appeals for the Sixth Circuit held back-to-back hearings in Cincinnati on six same-sex marriage case taken to that court from each state in the circuit:  Kentucky, Michigan, Ohio, and Tennessee.  Two of the cases are from Ohio and two from Tennessee.

Among those six cases, both the marriage celebration and marriage recognition issues are at stake.

Recommended Citation: Lyle Denniston, Oklahoma clerk appeals on same-sex marriage, SCOTUSblog (Aug. 6, 2014, 2:53 PM),