Same-sex marriage in Oklahoma

In May 2012, the Oklahoma Senate passed SCR 62, a non-binding resolution reaffirming marriage between one man and one woman. It passed 40-4, with 4 senators absent from the vote.

In April 2013, the Oklahoma House of Representatives passed HCR 1009, a non-binding resolution reaffirming marriage between one man and one woman, and urging the Supreme Court to uphold the Defense of Marriage Act and the right of states to regulate marriage. It passed 84-0, with 71 Republicans and 13 Democrats voting yes, while 16 Democrats walked out of the chamber instead of voting in protest. Republican John Trebilcock was also absent from the vote. The Oklahoma Senate later that month approved the non-binding resolution.[2]

In 1975, the Oklahoma State Legislature passed its first statute defining marriage as between one man and one woman.[3]

In 1996, the Oklahoma State Legislature passed its own Defense of Marriage Act, which defined marriage as between one man and one woman and prohibited same-sex marriages from other states from being recognized in Oklahoma.[4]

In April 2004, the Oklahoma Senate, by a vote of 38 to 7, and the Oklahoma House, by a vote of 92 to 4, approved of a constitutional ban on same-sex marriage. On November 2, 2004, Oklahoma voters approved Oklahoma Question 711, a constitutional amendment which bans same-sex marriage and any "legal incidents thereof be conferred upon unmarried couples or groups",[5][6][7] such as civil unions.[lower-alpha 1]

Same-sex marriage is banned by several Oklahoma tribes for their citizens and on their reservation territory. Tribal members and non-tribal members residents may still marry under state law, while the tribe will not recognize it.

Several same-sex couples have been issued licenses through the Cheyenne and Arapaho Tribes, a sovereign nation within the borders of Oklahoma, since 2013.[8]

The Cherokee Nation and the Osage Nation also perform and recognize same-sex marriages. The former overturned its ban in 2016, while the latter approved the move after a 2017 referendum found majority support for same-sex marriage.[9][10]

Of the other Native American tribes, same-sex marriage is explicitly banned in the Chickasaw Nation, the Choctaw Nation, the Citizen Potawatomi Nation, the Muscogee (Creek) Nation, the Seminole Nation, and likely is in Iowa. The situation in some of the smaller nations is unreported.

On November 3, 2004, the day after Oklahoma voters overwhelmingly approved a constitutional amendment banning same-sex marriage, two lesbian couples, Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips,[11] filed a challenge in federal court in Tulsa. The first couple was denied a marriage license by the Court Clerk for Tulsa County, Sally Howe Smith. The latter couple was married in Canada in 2005 and again in California in 2008. They were represented by Holladay and Chilton, an Oklahoma City law firm. County Clerk Smith was represented by the county's District Attorney and the Alliance Defending Freedom, a non-profit Christian advocacy organization. The case was originally Bishop v. United States and later Bishop v. Oklahoma when the part of the suit that named the Federal Government as a defendant was dismissed.

On January 14, 2014, U.S. District Court Judge Terence C. Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. He stayed enforcement of his judgement pending appeal.[12] Kern wrote that the U.S. Supreme Court's dismissal of a similar case, Baker v. Nelson, in 1972 was not binding precedent because "there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question". He found that two of the plaintiffs, Barton and Phillips, lacked standing to challenge Section 2 of the federal Defense of Marriage Act because the federal officials they named as defendants had no responsibility for its enforcement and the record did not show that Oklahoma officials had failed to recognize Barton and Phillips' marriage in other jurisdictions. He noted that the couple "have played an important role in the overall legal process leading to invalidation of Section 3 of DOMA" and praised them and their attorneys "for their foresight, courage, and perseverance.[13]

The Court agreed with the Bishop and Baldwin that Part A of the Oklahoma constitutional amendment banning same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court applied rational basis review and found the state's justifications inadequate, including encouraging responsible procreation, optimal child-rearing, and the impact on the institution of marriage. It said that part of the constitutional amendment was "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."[14]

Of the Supreme Court's jurisprudence on the issue of sexual orientation discrimination and equal protection, the decision said:[13][14]

The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.

Governor Mary Fallin said: "I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government."[15] Attorney General Scott Pruitt called the decision "troubling" and said that the Supreme Court would have to decide the constitutionality of state bans on same-sex marriage.[16]

The defendant, County Clerk Smith, filed a notice of appeal with the Tenth Circuit Court of Appeals on January 16[17] and asked the Court to expedite the appeals process and hear the case along with a similar Utah case, Kitchen v. Herbert.[18] The same 3-judge panel of the Tenth Circuit that heard oral arguments in Kitchen on April 10 heard oral arguments in Bishop on April 17.[19] On July 18, the court upheld the District Court's ruling in a 2-1 decision, concluding that Oklahoma's same-sex marriage ban violates clauses of the United States Constitution, though it immediately stayed its ruling pending disposition of petition for review by the United States Supreme Court.[20][21] Stanford Law Professor Jeffrey L. Fisher, an experienced Supreme Court litigator, joined as lead counsel for those challenging Oklahoma's denial of marriage rights to same-sex couples in August.[22] The Supreme Court rejected Oklahoma's appeal on October 6, 2014 and the Tenth Circuit Court's ruling subsequently went into effect, thus legalizing same-sex marriage in Oklahoma. Governor Mary Fallin sharply criticized the Supreme Court's action, but announced that the state would comply and begin licensing and recognizing same-sex marriages.[23][24]

Mary Bishop and Sharon Baldwin were among the first same-sex couples to apply for a marriage license, doing so at the Tulsa County Clerk office on October 6.[25]