10th Circuit Decision Striking Down Oklahoma’s Gay Marriage Ban Heads to Supreme Court


Last month's decision by the 10th Circuit Court of Appeals striking down Oklahoma's ban on gay marriage will now be appealed to the highest court in the land, The Oklahoman reports:

Kerri Kupec, spokeswoman for the Alliance Defending Freedom, told The Oklahoman that the clerk will ask Supreme Court justices to review the July 18 decision by the 10th U.S. Circuit Court of Appeals. In that 2-1 decision, the court ruled that Oklahoma’s ban violates 14th Amendment guarantees of due process and equal protection under the law.

Mary Bishop and Sharon Baldwin, the Tulsa County couple who sued the court clerk when she refused to give them a marriage license, issued a joint statement Friday night.

“Although we aren’t surprised by the Alliance Defending Freedom's decision to appeal our victory from the 10th U.S. Circuit Court of Appeals, neither are we disappointed,” the couple said.

“We are ready to see the highest court in the land affirm that marriage equality is the law of the land. We have confidence in our case and our lawyers, and should the Supreme Court agree to hear our case, we anticipate a victory there, as well.”


  1. simon says

    Alliance Defending Freedom probably would also defend slavery in the old days. This case is a bit different since they chose to sue the clerk instead of the governor and AG. At least that saves taxpayers’ money as these freedom fighters will pick up the tab.

  2. woody says

    Alliance Defending Freedom is just itching to be the party that loses the gay marriage case at the supreme court. I guess it will be good for donations.

  3. GeoffreyPS says

    I’m just curious about something and would love to see a response from someone legal minded. I don’t understand the inconsistency that county clerks are sued because they don’t provide marriage licenses, but county clerks are not allowed to defend the existing law (at least in some locations). Is it basically its own form of middle management where you have all the responsibility but none of the authority?

  4. Lexis says

    “Alliance Defending Freedom” .. I think even the sourpuss Supreme Court justices who are against marriage equality would have to laugh at the sick irony in that name.

  5. Randy says

    “Heads to Supreme Court”

    Not necessarily. The court has not indicated they will accept the case.

    I would much prefer the Bostic case to go the Supreme Court. I don’t think the legal team on the Oklahoma case is up to the task, particularly given their loss for the Barton couple in the same case.

  6. BusterLA says

    GEOFFREYPS – Yes, I think you basically have it correct.

    It’s different in different states. Some states licenses are issued by COUNTY clerks. Some they are issued by COURT clerks. (And there are probably other variations.)

    Clerks “report” up to different “bosses.” County Clerks maybe to the County executive and/or the Governor. Court Clerks – maybe to the state Supreme Court or the state Attorney General. And in some states the AG may then report to the Governor. In others, the AG is an independent elected office and can ignore the governor. (And there are probably other variations.)

    But ultimately, each state probably has one single source for the law and decisions about how to enforce it which controls all the lower levels.

    When you file suit, you want to make sure you don’t get shot down at some point (especially not at some point far into the trial or on appeal) by a ruling that the proper party wasn’t in the case and you have to start over. So the rule of thumb (in this sort of case) is to sue every government person, party and department that MIGHT be a proper party and work it out later. Parties that truly don’t belong in the case can usually get themselves out if the judge agrees.

    If you are a Clerk and get sued (even when you are properly a party to sue) it’s like any other entity. You don’t have your own lawyers and you don’t get paid to make these sorts of decisions so normally you look to your boss/superiors for what to do. (Once in a while an uppity Clerk say “I’m an elected official and can make my own decisions” Usually they end up getting shot down.)

    It’s like if your choke on a bone in a Chik-Fil-A sandwich (which, of course, you should, if you dare go there. LOL) You might sue the cook, the manager, the owner of the local franchise and the national office of Chil-Fil-A. But you’ll probably end up dealing with a lawyer who represents all of them but who basically takes instructions and is paid by from the national office. This is fine because all the defendants have the same position in the case, just like a court clerk, country clerk, state legislature, and governor do (whether they like it or not) in an equal marriage case because they all are controlled by the same law.

    Also, when you see reports about cases, they almost NEVER list all the parties involved especially when the case has been going on. Even the court documents usually only list one plaintiff and one defendant. So other parties may very well still be in the case but nobody really talks about them much.

    Much more than you wanted to know I’m sure. But I hope it helps.

  7. Gary says

    Does the SCOTUS decision to refuse a stay in Santai-Gaffney v. Whitewood, after the Third Circuit ruled that Santai-Gaffney didn’t have standing to appeal Whitewood v. Wolf, mean that the Oklahoma case will be refused certiorari at SCOTUS? I can’t see how a court clerk would demonstrate standing.

  8. anon says

    It’s hard to keep track of all these cases. At some point the SC will accept one of these appeals. Note that almost none of the political battles have been won by pro-marriage forces (at least not without an initial court victory, as in CA) and none of the court cases were won by the anti-marriage crowd. The SC won’t like that. This will encourage the conservatives on the court to take the case.

  9. JJ says

    @GEOFFREYPS, I’m not a lawyer—I’m relying on my memory of news accounts—but I believe in the recent Pennsylvania case, the plaintiffs included the clerk in their suit because the court would have to order the clerk to do (or refrain from doing) something to redress the plaintiffs’ injury. However, Penn. law gives top state officials the authority to decide how to defend the state, and if they decide not to appeal, the clerk (who doesn’t represent the entire state) can’t override that decision. That’s my recollection, anyway.

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