Case 4:04-cv-00848-TCK-TLW Document 1 Filed in USDC ND/OK on 11/03/04 Page 1 of 6
'.

<, IN THE UNITEDOSTFATTHEESS<T::AOTUEROt'OFFOTKHLEANlIt"jO"iR\'tXfJ··l··:··ER.,N..P..D...t,S~tR~I:~ t

.

NO"

b

MARY BISHOP and SHARON

)

v

~':IJ

BALDWIN, individuals; SOSAN)

G. BARTON and GAY E.PlIILLIi'5, )

individuals,

)

"'C, v'.'.~;:'<"9",/'(,,S!~'09o/..g.j(?J''~~."e,la;l-

\\~/
Jj 1

PLAINTIFFS,
v.

)

iYlI'./'

(j)4C V 848K (d),

)

The STATE Of OKLAHOMA ex reI. )

DREW EDMONDSON, iobis officilll )

capacity as Attorney General of the

)

State of Oklahoma and BRAD'HENRY, )

in his Official capacity as Governor of )

the State of Oklahoma; The UNITED' )

STATES OF AMERICA, ex ret

)

JOHN ASHCROFT, in his .·fficial·

j

capacity as Attorney General ofthe

)

United States of America, GEORGE )

W. BUSH, in his offiCial capacitY as

)

President of the United·Staies··o1' America,)

)

DEFENDANTS.

)

COMPLAINT

This action seeks declaratory and injunctive relief for violations of the privileges and immunities and equal protection ofthe laws guaranteed by both the Constitution of the United States and the Constitution of the State of Oklahoma against the Defendant, The State
of Oklahoma through its duly elected officials Attorney Generalbrew Edmondson and
Governor Brad Henry and against the Defendant, the Umted "States o"f'Amedca thIough its
duly appointed official Attorney General John Ashcroft, arid President George W. Bush for
the deprivation ofsaid privileges, immunities, and equal protection guarantees to Plaintiffs,
So.~...~7!~7
(!J\ (' / '(!t''?\ y

Case 4:04-cv-00848-TCK-TLW Document 1 Filed in USDC ND/OK on 11/03/04 Page 2 of 6
Mary Bishop, Sharon Baldwin, Susan G. Barton, and Gaji'E.pliiirlps, as well as, others
similarly situated. JURISDICTION AND VENUE
1. This action arises under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States, the Full Faith and Credit Clause, Art. 4 §! of the United States Constitution, and Article 2, §§ 2, 7 of the Oklahoma Constitution.
2. Judsdiction is properly founded pursuant to 28 U.S.C. § 133 I, 1343, and 1367. 3. All of the Defendants' actions and omissions that are claimed herein occurred within
the Northern District of Oklahoma, in the State of Oklahoma. 4. This action properly lies in the Northern District, pursuant to 28 U.S.C. § 1391 (b),
because the claims arose in this judicial-district. PARTIES
5. Plaintiff Mary Bishop is an individual who resides in the -Chy of Broken Arrow,
County ofTulsa, Stale ofOklaboma. 6. Plaintiff Sharon Baldwin is an individual who resides in the City of Broken Arrow,
County ofTulsa, State ofOklaboma. 7. Plaintiff Susan G. Barton is an individual who resides in the City of Tulsa. County of
Osage, State ofOklahoma. 8. Plaintiff Gay E. Phillips is an individual whp resides in the City of Tulsa, County of
Osage, State of Oklahoma.
2

Case 4:04-cv-00848-TCK-TLW Document 1 Filed in USDC ND/OK on 11/03/04 Page 3 of 6
9. Defendant Drew Edmondson, is the duly elected Attorney General in and for the State of Oklahoma and is endowed with the powers and ~uthority to enforce the laws of the State of Oklahoma.
10. Defendant Brad Heory is the duly elected Governor of the State of Oklahoma and is authorized in his position as the State's Chief Executive to enforce the laws of the State ofOklahoma.
11. Defendant John Ashcroft is the duly appointed Attorney·General of the United States of America who has representatives within the state of Oklahoma and is endowed with the powers and authority to enforce the laws of the United States of America.
12. Defendant George W. Bush is the President of the United States of America and is
authorized in his position as this nation's Chief Executive to enforce the laws of the
United States of America. FACTS
13. Mary Bishop and Sharon Baldwin are and have been for many years living in a committed relationship, but because they are of the same sex, have been denied the rights and privileges ofother citizens within the State of Oklahoma and the United States of America.
14. Susan G. Barton and Gay E. Phillips were joined in a civil union conducted in the State of Vermont on August 4, 2001, but because they are of the same sex, have been denied the rights and privileges of other citizens within the State ofOklahoma and the United States ofAmerica.
15. On November 2, 2004 the voters of the State ofOklahoma approved and adopted
legislative referendum no. 334, State QuestIon no. 711~ implemented as Art. 2 §'"35,
3

Case 4:04-cv-00848-TCK-TLW Document 1 Filed in USDC ND/OK on 11/03/04 Page 4 of 6
.'
which amended the Constitution of the State ofOklahoma.to prohibit state recognition ofsame-sex marriages conducted in other states, prohibited the issuance
of marriage licenses to persons ofthe same-sex, and made such issuance a
misdemeanor. 16. Defendants are charged with enforcing the Constitution and laws of the State of
Oklahoma.
FIRST CAUSE OF' ACTION VIOLATION OF'THE PRIVILEGES ANDIMMlJNITIESCLAUSE
For their First Cause of Action, Plaintiffs fe-allege the allegations contained in the foregoing paragraphs and incorporated them as iffully set forth, and further allege as
follows against Defendants:
17. Art.2 § 35 ofthe Oklahoma Constitution violates the privileges and immunities
guaranteed to the Plaintiffs by the Constitution of the United States.
18. I U.S.C.A. §7, commonly known as the Defense of Marriage Act ("DOMA") violates
the privileges and immunities guaranteed to Plaintiffs by the Constitution of the United States.
SECOND CAUSE OF ACTION VIOLATION OF SUBSTANTIVE DUE PROCESS
For their Second Cause of Action, Plaintiffs re-allege the allegations contained in the
foregoing paragraphs and incorporated them as iffully set forth, and further allege as follows against Defendants:
19. Plaintifis are persons;
4

Case 4:04-cv-00848-TCK-TLW Document 1 Filed in USDC ND/OK on 11/03/04 Page 5 of 6
·,-
20. Plaintiffs seek to engage in a fundamental right: to wit, enter into a marriage contract and/or to have their civil union recognized by the State of Ok!ah6-rn.a:;·
21. Art.2 § 35 of the Oklahoma Constituti()n and the OOMA denies the Plaintiffs liberty
and property rights without due process oflaw, as guaranteed'under the Fourteenth Amendment to the Constitution of the United States 'llld Article 2 § 7 of the Constitution of the State o[Oklahoma.
THIRD CAUSE OF ACTION VIOLATION OF EOUAL I'l,{OTECTiON,,(lNDER THE LAWS' For their Third Cause of Action, Plaintiffs re-alJege the allegations contained in the foregoing paragraphs and incorporated them as if fully set forth, and further allege as
follows against Defendants: 22. Plaintiffs are members of a protected class, to wit: female;
23. Art. 2 § 35 of the Oklahoma Constitution and the DOMA deny Plaintiffs Mary
Baldwin and Sharon Bishop Equal Protection of the laws: fa wit, denial of a license to
marry a person, of the same~sex; 24. Art. 2 § 35 of the Oklahoma Constitution and the DOMA deny Plaii:ttlffs Susan O.
Barton and Gay E, Phillips Equal Protection of the laws: to wit, refusal to recognize their civil union as valid under the laws of the State of Oklahoma.
FOURTH CAUSE OF ACTION VIOLATION OF TilE FULL FAITHANDCR1WITCLAUSE
For their Fourth Cause of Action, Plaintiffs re~allcge the allegations contaIned in the
foregoing paragraphs and incorporated them as if fully set forth, and further allege as
5

Case 4:04-cv-00848-TCK-TLW Document 1 Filed in USDC ND/OK on 11/03/04 Page 6 of 6
, , .'
follows against Defendants: 24. DOMA, I U.S.C.A. §7 etseq., violates the Full Faith and Credit Clause ofthe United
States Constitution by prohibiting the federal government from acknowledging and recognizing the rights, privileges, and immunities to which Plaintiffs Susan Barton and Gay Phillips are entitled as a result of their civil union.
25. Art. 2 § 35 of the Oklahoma Constitution violates the Full Faith and Credit Clause of
the United States by prohibiting Oklahoma from recognizing ~ame~sex marriages created in other states.
WHEREFORE premises considered, Plaintiffs pray this Court declare Art. 2 § 35 of the Oklahoma Constitution and nOMA unconstitutional under the protections afforded them by the Constitution of the United States
RESPECTFULLY SUBMITTED,
yBri - ley BA#1 Roy D. reker, OBA #19958 Bridger-Riley & Associates, P. C. 7030 South Yale Avenue, Suite 306 Tulsa, Oklahoma 74146 (918) 494~6699-teJephone (918) 494-8825- fucsimile
6

 
 Case 4:04-cv-00848-TCK-TLW Document 211 Filed in USDC ND/OK on 10/19/11 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP and SHARON BALDWIN, )

et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES OF AMERICA, et al.,

)

)

Defendants.

)

)

No. 4:04-CV-00848-TCK-TLW

MOTION TO DISMISS BY UNITED STATES OF AMERICA AND ERIC H. HOLDER, JR., ATTORNEY GENERAL

The United States of America and Eric H. Holder, Jr., in his official capacity as Attorney

General of the United States (hereinafter collectively referred to as the United States), by their

undersigned counsel, hereby move to dismiss the claims of plaintiffs Susan Barton and Gay

Phillips against the United States regarding Section 2 of the Defense of Marriage Act

("DOMA"), 28 U.S.C. § 1738C, pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure.

1. Plaintiffs lack standing to pursue their claims regarding the constitutionality of

Section 2, in that they have not sought recognition of their California marriage in Oklahoma and

that, in any event, any refusal by Oklahoma to recognize plaintiffs' marriage would be attribu-

table to Oklahoma law rather than to Section 2. The grounds for this aspect of the United States'

motion to dismiss are more fully set forth in the accompanying Brief in Support of Motion to

Dismiss by United States of America and Eric H. Holder, Jr., Attorney General, and Brief in

Partial Opposition to Plaintiffs' Motion for Summary Judgment.

Case 4:04-cv-00848-TCK-TLW Document 211 Filed in USDC ND/OK on 10/19/11 Page 2 of 4
2. The United States also respectfully requests that the Court rule on plaintiffs' challenge to the constitutionality of Section 3 of DOMA, 1 U.S.C. § 7. As the President and the Attorney General have stated, the Department of Justice will no longer defend the constitutionality of Section 3 as applied to legally married same-sex couples. Pursuant to the President's direction, however, Executive departments and agencies will continue to comply with Section 3 unless and until it is repealed by Congress or there is a definitive ruling by the Judicial Branch that Section 3 is unconstitutional. The United States is named as a defendant in this case, and the Department of Justice represents this defendant. Only a judgment against the United States could afford plaintiffs the relief they seek, and only a judgment for or against the United States can definitively resolve the case or controversy between these parties.
The Bipartisan Legal Advisory Group ("BLAG") of the United States House of Representatives has intervened in this case for the limited purpose of defending the constitutionality of Section 3 of DOMA (Doc. 178). BLAG is scheduled to file a cross-motion for summary judgment as an intervenor regarding plaintiffs' constitutional challenge to Section 3 (Doc. 191). The Department of Justice believes that Congress's interest in the constitutional validity of a law does not itself confer standing to enter an action as a party. The Attorney General is committed, however, to providing Congress a full and fair opportunity to participate in this litigation. Accordingly, although the Department intends to file a brief, in response to BLAG's crossmotion for summary judgment, that presents the government's position on plaintiffs' constitutional challenge to Section 3 (Doc. 191), the United States submits this motion as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and to ensure that this Court has jurisdiction to enter judgment on the basis of those arguments.
2

Case 4:04-cv-00848-TCK-TLW Document 211 Filed in USDC ND/OK on 10/19/11 Page 3 of 4

If this Court agrees with BLAG on the constitutionality of Section 3 of DOMA, it should

dismiss plaintiffs' claim against Section 3 and enter judgment for the United States on that issue.

If this Court agrees with plaintiffs and the United States as to the constitutionality of Section 3, it

should not dismiss that claim, but rather should enter such relief as is appropriate given the

procedural posture of this action at the time of such determination.

Dated this 19th day of October, 2011.

Respectfully submitted,

TONY WEST Assistant Attorney General

THOMAS SCOTT WOODWARD United States Attorney

ARTHUR R. GOLDBERG Assistant Director

s/ W. Scott Simpson _______________________________ W. SCOTT SIMPSON Senior Trial Counsel

Attorneys, Department of Justice

Civil Division, Room 7210

Post Office Box 883

Washington, D.C. 20044

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

E-mail:

scott.simpson@usdoj.gov

COUNSEL FOR DEFENDANTS UNITED STATES OF AMERICA AND ERIC H. HOLDER, JR., ATTORNEY GENERAL

3

Case 4:04-cv-00848-TCK-TLW Document 211 Filed in USDC ND/OK on 10/19/11 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on October 19, 2011, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:
Phillip Craig Bailey H Christopher Bartolomucci James A Campbell Laura Lea Eakens Don G Holladay David Thomas Iski Kerry W Kircher Martha Ruth Kulmacz Austin R Nimocks Brently C Olsson Brian W Raum Sandra D Rinehart Dale Michael Schowengerdt Kevin Hayden Theriot Roy Duane Tucker James E Warner Andrea Marie Wyrick
s/ W. Scott Simpson W. SCOTT SIMPSON
4

 
 Case 4:04-cv-00848-TCK-TLW Document 214 Filed in USDC ND/OK on 10/19/11 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

__________________________________________

)

MARY BISHOP, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 4:04-cv-00848-TCK-TLW

)

UNITED STATES OF AMERICA, ex rel.

)

ERIC H. HOLDER, JR., et al.,

)

)

Defendants,

)

)

BIPARTISAN LEGAL ADVISORY

)

GROUP OF THE U.S. HOUSE

)

OF REPRESENTATIVES,

)

)

Intervenor-Defendant.

)

__________________________________________)

INTERVENOR-DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56(a) and LCvR 56.1, Intervenor-Defendant the Bipartisan

Legal Advisory Group of the U.S. House of Representatives (“House”) respectfully cross moves

for summary judgment in its favor on the claims of plaintiffs Susan G. Barton and Gay E.

Phillips – set forth in Counts One and Two of Plaintiffs’ First Amended Complaint (Aug. 10,

2009) (ECF No. 122) – that Section 3 of the Defense of Marriage Act (“DOMA”), Pub. L. No.

104-199, § III, 110 Stat. 2419 (1996), codified at 1 U.S.C. § 7, violates the equal protection and substantive due process components of the Fifth Amendment.1

1 The Bipartisan Legal Advisory Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and Democratic Whip decline to support the filing of this cross-motion.

Case 4:04-cv-00848-TCK-TLW Document 214 Filed in USDC ND/OK on 10/19/11 Page 2 of 3
The House does not seek summary judgment on plaintiffs’ constitutional challenges to
DOMA Section 2; that statute is being defended by the Executive Branch defendants,
represented by the Department of Justice. The House likewise does not seek summary judgment
on plaintiffs’ constitutional challenges to the Oklahoma Constitution.
A proposed Order is submitted herewith.
Respectfully submitted,
Paul D. Clement /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson
BANCROFT PLLC 1919 M Street, N.W., Suite 470 Washington, D.C. 20036 (202) 234-0090 (phone) (202) 234-2806 (fax)
Counsel for Intervenor Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives
Of Counsel Kerry W. Kircher, General Counsel Christine Davenport, Sr. Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel
Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building Washington, D.C. 20515 (202) 225-9700 (phone) (202) 226-1360 (fax)
October 19, 2011
2

Case 4:04-cv-00848-TCK-TLW Document 214 Filed in USDC ND/OK on 10/19/11 Page 3 of 3
CERTIFICATE OF SERVICE
I hereby certify that on October 19, 2011, I electronically filed the foregoing Intervenor-Defendant’s Cross-Motion for Summary Judgment with the Clerk of the Court for the U.S. District Court for the Northern District of Oklahoma using the appellate CM/ECF system. I further certify that all parties in this case are registered CM/ECF users and will be served by the appellate CM/ECF system.
/s/ H. Christopher Bartolomucci H. Christopher Bartolomucci
3

 
 Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP,

)

SHARON BALDWIN,

)

SUSAN G. BARTON, and

)

GAY E. PHILLIPS,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES OF AMERICA, ex

)

ret., ERIC H. HOLDER, JR., in his

)

official capacity as Attorney General of

)

the United States of America; and

)

SALLY HOWE-SMITH, in her official

)

capacity as Court Clerk for Tulsa County,

)

State of Oklahoma,

)

)

Defendants,

)

)

and

)

)

BIPARTISAN LEGAL ADVISORY GROUP, )

)

Defendant-Intervenor. )

No. 04-CV-848-TCK-TLW

MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT

Don G. Holladay, OBA No. 4294 James E. Warner III, OBA No. 19593
HOLLADAY & CHILTON PLLC 204 North Robinson, Suite 1550 Oklahoma City, Oklahoma 73102 Telephone:(405) 236-2343/Facsimile:(405) 236-2349
A TTORNEYS FOR PLAINTIFFS

September 28, 2011

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 2 of 52

TABLE OF CONTENTS

INTRODUCTION ....................................................... 1

STATEMENT OF UNDISPUTED FACTS ................................... 3

STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ARGUMENT AND AUTHORITIES ....................................... 15

I.

PART A OF THE OKLAHOMA AMENDMENT VIOLATES THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE IT PREVENTS

PLAINTIFFS BISHOP AND BALDWIN FROM EXERCISING THE

FUNDAMENTAL RIGHT TO MARRY THE PERSON OF THEIR CHOICE ...... 16

A. The Fundamental Right ofMarriage ....................... 16

B. Since the Oklahoma Amendment Infringes Upon a Fundamental Right, Strict Scrutiny Should Apply ........................ 18

C. The Oklahoma Amendment Serves No Compelling State Interest, Except Those Deemed Invalid by the United States Supreme Court ........................................ 19

II. PART A OF THE OKLAHOMA AMENDMENT VIOLATES THE EQUAL
PROTECTION CLAUSE BECAUSE IT DISCRIMINATES AGAINST GAYS AND LESBIANS BY DENYING THEM THE RIGHT TO MARRY THE PERSON OF THEIR CHOICE AND BECAUSE IT DISCRIMINATES ON THE
BASIS OF SEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Equal Protection Review Based on Strict Scrutiny ............ 22

B. The Oklahoma Amendment is Based on Sex, Therefore Requiring a Heightened Scrutiny Review .................... 24
C. Even if a Lesser Test of "Intermediate Scrutiny" or
"Rational Basis" is Employed, the Oklahoma Amendment Remains Unconstitutional . ............................... 25

-1-

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 3 of 52
III. SECTION 3 OF DOMA IS UNCONSTITUTIONAL ...................... 27 A. DOMA Unconstitutionally Burdens Plaintiffs Barton's and Phillips' Exercise ofLiberties Inherent in the Fundamental Right to Marry, a Right Protected by the Due Process Clause of the Fifth Amendment . ................................... 30 B. DOMA is Subject to Strict Scrutiny ........................ 31 (1) DOMA Was Motivated By Invidious Discrimination ..... 33 (2) DOMA's Substantive Provisions Are Unconstitutionally Discriminatory ................................... 36 C. DOMA Violates Plaintiffs Barton's and Phillips' Equal Protection Rights ............................................... 37 D. Section 3 ofDOMA Discriminates on the Basis ofSex ......... 38 E. DOMA Does Not Rationally Further A Legitimate Governmental Interest .................................. 39
IV. PART B OF THE OKLAHOMA CONSTITUTION AND SECTION 2 OF DOMA ARE UNCONSTITUTIONAL AS THEY BURDEN PLAINTIFFS BARTON'S AND PHILLIPS' FUNDAMENTAL DUE PROCESS LIBERTIES AND EQUAL PROTECTION RIGHTS ................................... 41
CONCLUSION ........................................................ 42
-11-

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 4 of 52
TABLE OF AUTHORITIES
CASES
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir. 1998) ....................................... 14
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................... 14
Baker v. Nelson, 409 U.S. 810 (1972) ............................................... 16
Baker v. State, 744 A.2d 864 (Vt. 1999) ............................................ 38
Bishop v. State of Oklahoma, 447 F. Supp. 2d 1239 (N.D. Okla. 2006) ................................ 5
Bolling v. Sharpe, 347 U.S. 497 (1954) ............................................... 37
Bowers v. Hardwick, 478 U.S. 186 (1986) ............................................... 21
Brown v. Ed. ofEducation, 347 U.S. 483 (1954) ............................................... 21
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ................................... 22,26-27,32,34
Cleveland Bd. ofEducation v. LaFleur, 414 U.S. 632 (1974) ............................................... 16
Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003) ....................................... 33
Frontiero v. Richardson, 411 U.S. 677 (1973) ............................................... 33
-111-

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 5 of 52
Gill v. Office ofPers. Mgmt, 699 F. Supp. 2d 374 (D. Mass. 2010) ................................. 2-4
Goetz V. Glickman, 149 F.3d 1131 (lOth Cir. 1998) ................................... 18,23
Goodridge V. Dept. ofPublic Health, 798 N.E.2d 941 (Mass. 2003) ..................................... 17,38
Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................ 17,21
Grutter V. Bollinger, 539 U.S. 306 (2003) ............................................... 33
Harris V. McRae, 448 U.S. 297 (l980) ............................................ 36-37
Herrick V. Garvey, 298 F.3d 1184 (lOth Cir. 2002) ................................... 14-15
Hicks v. Miranda, 422 U.S. 332 (l975) ............................................... 16
In Re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) .................................. 2
In Re Levenson, 587 F.3d 925 (9th Cir. 2009) ................................... 2,38-40
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........................................... 32
Kerrigan V. Comm 'r ofPublic Health, 957 A.2d 407 (Conn. 2008) ...........................,........ 32-33,38
Kimel V. Florida Bd. ofRegents, 528 U.S. 62 (2000) ................................................ 26
-lV-

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 6 of 52
Lawrence v. Texas, 539 U.S. 558 (2003) ........................... 16,20-21,26-27,33-34,40
Loving v. Virginia, 388 U.S. 1 (1967) ........................................ 16,21,25,37
Mandel v. Bradley, 432 U.S. 173 (1977) ............................................... 16
Milton v. Scrivner, Inc., 53 F.3d 1118 (10th Cir. 1995) ....................................... 14
Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996) ......................................... 33
Nelson v. Nelson, 1998 OK 10,954 P.2d 1219 ......................................... 23
Okla. Educ. Ass 'n v. Alcoholic Bev. Laws Enforce. Comm 'n, 889 F.2d 929 (10th Cir. 1989) ....................................... 18
Palmore v. Sidoti, 466 U.S. 429 (1984) ......................................... 20,26,34
Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) ........................... 20,24-25
Perry v. Sindermann, 408 U.S. 593 (1972) ............................................... 39
Plyler v. Doe, 457 U.S. 202 (1982) ......................................... 20,27,32
Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ...................................... 32
Railroad Retirement Bd. v. Fritz, 449 U.S. 166 (1980) ............................................ 26,34
-v-

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 7 of 52

Romer v. Evans, 517 U.S. 620 (1996)

16,23,26-27,33-34,36,41

Save Palisade FruitLands v. Todd, 279 F.3d 1204 (10th Cir. 2008) ................................... 19,23

Scott v. Harris, 550 U.S. 372 (2007)

14-15

Seegmiller v. La Verkin City, 528 F.3d 762 (10th Cir. 2008) ....................................... 26

Sherbert v. Verner, 374U.S. 398 (1963) ............................................... 37

Territory ofAlaska v. American Can Co., 358 U.S. 224 (1959) ............................................... 14

Thomas v. IBM, 48 F.3d 478 (10th Cir. 1995) ........................................ 14

Turner v. Safley, 482 U.S. 78 (1987) ............................................. 17,36

U.S. Dept. ofAgriculture v. Moreno, 413 U.S. 528 (1973) ................................... 26-27,33-35,40

United States v. McHorse, 179 F.3d 889 (10th Cir. 1999) ....................................... 31

United States v. 0 'Brien, 391 U.S. 367 (1968) ............................................... 26

United States v. Virginia, 518 U.S. 515 (1996) ......................................... 24,31,33

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ........................................ 38

-Vl-

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 8 of 52
W. Va. State Bd. ofEduc. v. Barnette, 319 U.S. 624 (1943) ............................................... 19
Walmer v. Dept. ofDefense, 52F.3d851 (10thCir.1995) ........................................ 24
Washington v. Davis, 426 U.S. 229, 239 (1976) ........................................... 31
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ............................................... 31
Williams v. Illinois, 399 U.S. 235 (1970) ............................................... 21
Zablocki v. Redhail, 434 U.S. 374 (1978) ............................................ 16-19
OTHER AUTHORITIES Fed. R. Civ. P. 56 ....................................................... 14 Fed. R. Evid. 201, Advisory Committee Notes ................................ 14 H.R. Rep. 104-664 ................................................... 35,39 Lawrence H. Tribe, The Constitutional Inevitability ofSame-sex Marriage (Aug. 26,2011) available at http://www.scotusblog.com/20 11l08!the-constitutional-inevitability-of-samesex-marriage! .......................................................... 31 U.S.CONST. AMEND. XIV, § 1 ............................................. 22
-Vll-

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 9 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP,

)

SHARON BALDWIN,

)

SUSAN G. BARTON, and

)

GAY E. PHILLIPS,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES OF AMERICA, ex

)

reI., ERIC H. HOLDER, JR., in his

)

official capacity as Attorney General of

)

the United States of America; and

)

SALLY HOWE-SMITH, in her official

)

capacity as Court Clerk for Tulsa County,

)

State of Oklahoma,

)

)

Defendants,

)

)

and

)

)

BIPARTISAN LEGAL ADVISORY GROUP, )

)

Defendant-Intervenor. )

No. 04-CV-848-TCK-TLW

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT

INTRODUCTION

Plaintiffs are two Oklahoma couples, American citizens, being denied both due

process and the right to equality under the United States Constitution because of their sex

and sexual orientation. The arguments that follow will demonstrate how, because of an

amendment made to the Oklahoma Constitution (the "Oklahoma Amendment") by

popular vote on the 2004 election ballot, Plaintiffs Mary Bishop and Sharon Baldwin are

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being denied the fundamental right to marry the person of their choice and being discriminated against based on their sex and sexual orientation, in violation of the Fourteenth Amendment's Due Process Clause and Equal Protection Clause. Part A of the Oklahoma Amendment defines "marriage" as only a legal union between "one man and one woman," thereby denying the issuance of a marriage license to a same-sex couple.
Plaintiffs Susan Barton and Gay Phillips, a same-sex couple legally married under the laws of the State of California, challenge Section 3 of the so-called Defense of Marriage Act ("DOMA") as unjustifiably burdening the exercise of their fundamental marital rights and - as several federal decisions and the Obama Administration have already concluded1 - violating core constitutional principles of equal protection. DOMA's Section 3 defines "marriage" as between one man and one woman; and Section 2 provides that no State shall be required to recognize a same-sex marriage celebrated in another State. Plaintiffs Barton and Phillips also challenge the non-recognition provisions found in Part B of the Oklahoma Amendment and Section 2 of DOMA. Both impennissibly burden the full exercise of the liberties inherent in their constitutional right to marry.
As addressed herein, both the Oklahoma Amendment and DOMA unconstitutionally create two classes of persons for purposes of marital rights, and both exclude persons such as Plaintiffs from the fundamental guarantees of the United States Constitution, according such libeliies instead only to similarly situated heterosexuals.
I Gill v. Office ofPers. Mgmt, 699 F. Supp 2d 374 (D. Mass. 2010); In Re Balas, 449 B.R. 567 (C.D. Cal. Bankr. 2011); In Re Levenson, 587 F.3d 925 (9th Cir. 2009); Letter from Attorney General Eric H. Holder to Congress (Feb. 23, 2011, Ex. 7 hereto).
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Neither the Oklahoma Amendment nor DOMA can meet any standard of constitutional review, particularly the strict scrutiny test required here.
STATEMENT OF UNDISPUTED FACTS nOMA
1. The Defense of Marriage Act, ("DOMA") was enacted in 1996. Section 3, codified at 1 U.S.C. § 7, excludes same-sex couples from the definition of marriage for all federal purposes:
In determining the meamng of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife. 2. Section 2 of DOMA, codified at 28 U.S.c. § l738C, entitled "Powers Reserved to the States," relieves a State from recognizing any same-sex marriage validly performed under the laws of another State: [No State] shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state.
3. DOMA creates two classes of marital citizens for purposes of all federal benefits. 1 U.S.c. § 7.
4. DOMA was passed in response to concerns that the State of Hawaii would soon be recognizing same-sex marriages. H.R. Rep. 104-664 at 5 (1996); see also Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 378 (D. Mass. 2010). Congress
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conducted virtually no fact-finding as to the scope or effect of the law. "Congress did not hear testimony from agency heads as to how DOMA would affect federal programs." Gill, 699 F. Supp. 2d at 379.
5. DOMA's legislative history shows the enactment was born out of strong disapproval on moral and religious grounds of homosexuality and same-sex marriage, and was intended to defend "traditional notions" of heterosexual marriages. It was meant to demonstrate a moral conviction held by the citizenship majority that heterosexuality, rooted in ludeo-Christianity, better comports with traditional morality. H.R. Rep. No. 104-664 at 16 (1996); Gill, 699 F. Supp. 2d at 378; Letter from Attomey General Eric Holder to Congress (Feb. 23, 2011) (Ex. 7).
6. In the floor debate, legislators referred to homosexuality as "immoral," "unnatural" and "an attack upon God's principles" and asserted that marriage by lesbians and gay men would "demean" marriage for heterosexuals. 142 CONGo REC. H7444, H7486 (1996).
7. Originally, III this lawsuit, the Executive Branch relied on two governmental interests, responsible procreation and child rearing, to justify DOMA. (Brief in Support of United States' Motion to Dismiss [Doc. 138] at 7 n. 4).
8. DOMA's provisions say nothing as to who can become a parent; neither does DOMA say anything to encourage heterosexuals to procreate within matTiage. DOMA applies only to couples already married. 1 U.S.c. § 7.
9. Section 3 of DOMA impacted and re-wrote over 1,000 federal laws dealing with those federal benefits potentially available to a "married" individual. (U.S General
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Accounting Office, Defense of Marriage Act: Update to Prior Report, GAO-04-353R (Washington, D.C.: Jan. 23, 2004) (Ex. 6).
10. During this lawsuit, the Executive Branch abandoned those legislative justifications for DOMA tied to rationales of responsible procreation and child rearing. (Brief in Support of United States' Motion to Dismiss [Doc. 13 8] at 7 n. 4).
The Oklahoma Constitutional Amendment 11. On November 2, 2004, Oklahoma voters approved and adopted Legislative Referendum No. 334, State Question No. 711, which was implemented as Article 2, §35 of the Oklahoma Constitution and states: "Marriage Defined-Marriage Between Persons of Same Gender Not Valid or Recognized
a. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that the marital status or the legal incidents thereof be conferred upon umnarried couples or groups.
b. A marriage between persons of the same gender perfonned in another state shall not be recognized as valid and binding in this state as of the date of the marriage.
c. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
Bishop v. State of Oklahoma, 447 F. Supp. 2d 1239,1253 (N.D. Okla. 2006). 12. The referendum for submitting State Question No. 711 to a vote of the people passed the Oklahoma House of Representatives by a vote of 92-4 and the Oklahoma Senate by a vote of38-7. (Joint Aff. of Mary Bishop and Sharon Baldwin, ~ 12) (Ex. 1).
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13. The legislative history of State Question 711 reflects its passage was marked by legislative animus toward homosexuality and same-gender marriage, and was justified on religious and moral grounds. The then-House Minority Leader stated "To recognize something other than what God has ordained as traditional marriage obviously detracts or deteriorates the importance of the traditional marriage." (Marie Price, Republican Legislators Wary of Same-Sex Ruling, TULSA WORLD, Feb. 6,2004, Ex. 5). The State Senate sponsor stated "It is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage." (Brian Barber, Ban on Gay Marriage Debated, TULSA WORLD, Oct. 13,2004, Ex. 5).
14. At a pre-vote rally, Tulsa's mayor urged passage of State Question No. 711 stating "If you believe in Christ, if you believe in this country, and if you believe in this city, you believe that marriage is a covenant between God, a man and a woman." At the same rally, the Senate's primary sponsoring legislator of State Question No. 711 stated: "As Christians, we are called to love homosexuals ... But I hope everyone at this rally knows the Scriptures prohibit homosexual acts." (Robert Evatt, Local 'Pro-Marriage Rally' Takes Aim at Same-Sex Unions, TULSA WORLD, Feb. 29,2004, Ex. 5).
15. Other legislators tied their votes for passage as a means to support their views of God's desires ("marriage is not just created by government but by God") and as necessary to uphold their view of morality ("Gay people might call it discrimination, but I call it upholding morality .....This is a Bible Belt state...Most people don't want that sort of thing here."). (David Harper, Gay-Marriage Clamor Grows Louder and Louder, TULSA WORLD, Mar. 22, 2004, Ex. 5).
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Plaintiffs Barton and Phillips 16. Susan G. Barton, age 57, and Gay E. Phillips, age 55, are consultants and adjunct professors and have resided in Oklahoma virtually all of their lives (Susan 51 years and Gay 45 years). (Joint Aff. of Susan Barton and Gay Phillips, ~~ 4-7, Exhibit 4). 17. Ms. Barton and Ms. Phillips have been in a continuous committed relationship since November 1, 1984. They were united in a civil union ceremony conducted in Vermont in 2001. Subsequently, they were married in Canada in 2005. When man·iage became available under California law, they traveled to California and were issued a marriage license by the State of California, and then malTied under California law on November 1,2008, during the pendency of this lawsuit. (Id., ~~ 5-6). 18. Between the years of their civil union (2001) and through 2010, Ms. Barton and Ms. Phillips have been required to file federal and state income tax returns using a "single" person status. Internal Revenue Service (IRS) regulations, based on DOMA, make them as a married couple ineligible for filing federal income taxes jointly with a same sex spouse. IRS Publication 501 at p. 5 (Dec. 18,2009) instructs that "[f]or federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife." (Aff. of Gay Phillips, ~ 4 (Ex. 2); Aff. of Susan G. Barton, ~ 4 (Exhibit 3), submitted pursuant to Order of Aug. 2, 2010). 19. Oklahoma regulations for the filing of tax returns mandatorily require taxpayers to use the same filing status on their state returns as used on their federal returns. (Barton and Phillips Joint Aff., ~ 10, Ex. 4).
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20. Ms. Barton and Ms. Phillips believe that being required to file as a "single" taxpayer when in fact they were married creates an aura of dishonesty, signaling to them as married taxpayers that the federal government believes their lawful marriage has no validity. (Phillips Aff., ~ 7 (Ex. 2); Barton Aff., ~ 7 (Ex. 3)).
21. If Ms. Barton and Ms. Phillips had been entitled to the same federal benefits available to similarly situated heterosexual couples (i.e., the filing of a joint return with one's spouse), they would have paid less federal and Oklahoma state income taxes. (Phillips Aff., ~ 5 (Ex. 2); Barton Aff., ~ 5 (Ex. 3); Barton and Phillips Joint Aff., ~ 11). Further, they would have saved the extra expense of filing separate returns which are not incurred by similarly situated heterosexual couples. (Phillips Aff., ~ 7 (Ex. 2); Barton Aff., ~ 7 (Ex. 3)).
22. The Social Security Administration has advised Gay Phillips that as of January 15,2010, over $90,000.00 in Social Security taxes had been paid by her and her employers into her Social Security account, and that she had earned enough "credits" to qualify her spouse to receive survivor's benefits of $1,726.00 monthly at her full retirement, in the event Ms. Phillips died. (Phillips Aff., ~~ 7-8 (Ex. 2)). Susan Barton has likewise earned enough Social Security credits to qualify her spouse for survivor's benefits in the event Ms. Bation dies. (Barton Aff., ~~ 7-8 (Ex. 3)).
23. Because of DOMA, neither Ms. Barton nor Ms. Phillips is eligible to be recognized as a surviving spouse. Consequently, if either were to die, unlike similarly situated heterosexual couples in identical situations, the "surviving spouse" benefit will
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not be available at age 60 (the age at which reduced benefits would otherwise be available) to the surviving spouse. (Barton Aff., ,-r 9 (Ex. 3)).
24. In the event of her death, Ms. Phillips has already earned enough "credits" for her spouse to receive a one-time death benefit of $255.00 if her spouse were of the opposite sex. Because of DOMA, Susan G. Barton, as the spouse of Ms. Phillips, will not qualify for this federal entitlement at the death of Ms. Phillips. Likewise, Susan G. Barton has already earned enough "credits" for her spouse to receive a one-time death benefit of$255.00 Because ofDOMA, Gay Phillips, as the spouse of Ms. Barton, will not qualify for this federal entitlement at the death of Ms. Barton. (Phillips Aff., ,-r 9, (Ex. 2); Barton Aff., ,-r 9 (Ex. 3)).
25. On August 18,2010, the federal government in this lawsuit conceded that Plaintiffs Barton and Phillips had suffered cognizable injury from the standpoint of having "standing" to address the constitutionality of Section 3 of DOMA. (Resp. of United States to Plaintiffs' Notice to Court [Doc. 169] at 1).
26. Despite Plaintiffs Barton and Phillips being in a continuous committed relationship for nearly half of their entire lives - approximately 27 years - and being legally married under the laws of the State of California, Sections 2 of DOMA and Part B of the Oklahoma Constitution Amendment cause non-recognition of their marriage. Specifically, DOMA's Section 2 affirmatively permits Oklahoma's mandatory prohibition against recognition of same-sex marriages. (Barton and Phillips Joint Aff., ,-r 13, Ex. 4). If either Barton or Phillips would have been a man, their marriage would have been entitled to recognition.
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27. Their sexual orientation is a fundamental part of their identity as persons. They have never considered their sexual orientation to be a matter of choice, and know that it was not. (Barton and Phillips Joint Aff., ,-r 13) (Ex. 4).
28. Plaintiffs Barton and Phillips have no interest in forcing a house of worship or any religious body to recognize their marriage. They seek not recognition by a religious body, but by the state and federal governments. (Id. ,-r 13).
29. They see their marriage as healthy and know of no rational basis for saying it threatens the marriages of opposite sex couples. They want their relationship to be treated equally and with the same respect as the marriages of opposite-sex couples. (Id. ,-r,-r 14-15).
30. Their sexual orientation as lesbians bears no inherent relation to their ability to perfonn in, contribute to or participate in society. (Id. ,-r 16).
Plaintiffs Bishop and Baldwin 31. Mary Bishop and Sharon Baldwin have resided in Oklahoma for nearly their entire lives. Ms. Bishop is 50 years of age. Ms. Baldwin is nearly 43 years of age. They reside in their home in Broken Arrow. (Joint Aff. of Mary Bishop and Sharon Baldwin, ,-r,-r 1 and 3-5, Ex. 1). 32. Both are employed at the Tulsa World, the second largest metropolitan newspaper in Oklahoma. Ms. Bishop is an assistant editor, and Ms. Baldwin is the city slot editor. (Id.,-r,-r 3-4). 33. Mary Bishop and Sharon Baldwin are lesbians. They followed the debate and passage of State Question 711 in the Legislature. The articles attached as Exhibit 5
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were published in the Tulsa World during the time that both were editors there, and reflect some of the accounts and statements made in connection with the passage. The anti-gay and anti-lesbian statements reflect the atmosphere of discrimination in which they live. They consider themselves members of a distinct minority due solely to their sexual orientation. To their knowledge, no one has ever disputed the fact that gays and lesbians occupy a minority of the population. Despite that minority status, they are unaware of any Oklahoma law, including Oklahoma's "hate crimes" statute, that offers protection based on sexual orientation. (Bishop and Baldwin Joint Aff., ~ 11, Ex. 1).
34. Mary Bishop and Sharon Baldwin are in a long-term committed relationship. On March 26, 2000, they exchanged vows in a church-recognized Holy Union commitment ceremony at Alligator Point, Florida. (Id. ~ 5).
35. Mary Bishop and Sharon Baldwin desire to be civilly married under Oklahoma law, but are precluded from doing so by Part A of the Oklahoma Amendment (Art. 2 § 35), which defines marriage as the union of "one man and one woman." (Id. ~ 7).
36. On February l3, 2009, Ms. Bishop and Ms. Baldwin sought the issuance of a marriage license from Sally Howe Smith, the court clerk for Tulsa County, Oklahoma. They were refused a license (although they otherwise qualified) because they were a same-gender couple and thus prohibited from marrying under Oklahoma's Constitution. (Bishop and Baldwin Joint Aff., ~ 9, Ex. 1).
37. Ms. Howe Smith is named as a defendant in her official capacity only.
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38. "Marriage" is how Ms. Bishop and Ms. Baldwin want the commitment and permanence of their relationship to be recognized by the State of Oklahoma. It is the only status that will signify the equality of their relationship. (Bishop and Baldwin Joint Aff., ~ 7, Ex. 1).
39. As a consequence of Part A of the Oklahoma Constitutional Amendment, Ms. Bishop and Ms. Baldwin believe the most important relation in their lives has been relegated to an inferior level. (Id. ~~ lO-II).
40. Ms. Bishop and Ms. Baldwin hold themselves out as a couple in the community in which they live, work and do volunteer activities, but are unable to call themselves "married" in the same sense as married opposite-sex couples. (Id. ~ 15).
41. Ms. Bishop and Ms. Baldwin's sexual orientation is a fundamental part of who they are and their identities as individuals. There was no particular time or place when either of them made some type of decision, i.e. choice, to become a lesbian, any more than heterosexual persons "choose" to become heterosexual. (Id. ~ 14).
42. There has never been an instance in their lives when their sexual orientation as lesbians prevented or hindered their ability to perform in, contribute to, or participate in society. (Id. ~ 15).
43. They consider their relationship to be healthy and see no rational basis for saying it threatens the marriages of opposite sex couples. Given their sexual orientation, marrying a person of a different sex would never be a realistic option for either of them. (Id. ~~ 13-14).
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44. Ms. Bishop and Ms. Baldwin do not seek to interfere with any other person's religious beliefs, nor the religious qualifications for being married in any particular house of worship ceremony. They seek a civil right in a civil ceremony that will result in marriage and recognition by the State of Oklahoma of that marriage. (Bishop and Baldwin Joint Aff., ,-r 13).
45. Oklahoma's ban on same-sex marriage has caused Ms. Bishop and Ms. Baldwin harm in other ways. They have incurred extra expense in the fonn of legal fees that would not have been necessary as a married couple. They are also unable to report an accurate marital status on legally binding forms, such as hospital forms, privacy forms,
banking forms, medical disclosure fonns, and workplace forms. (Id.,-r,-r 16-17).
46. Oklahoma's constitutional ban on same-sex marriage has caused Ms. Bisop and Ms. Baldwin emotional anguish, demeaned their relationship in the eyes of others, and made them to feel inferior to other married couples. They consider their relationship to be the most important relationship in their respective lives, and want the pennanence of the relationship to be recognized as "marriage" under Oklahoma law in the same manner as those relationships of similarly situated couples who are allowed under Oklahoma law to be "married." (Id. ,-r 14).
STANDARD Summary judgment is appropriate where the pleadings, the discovery materials, and affidavits show there is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)2. A fact is "material" if it might affect the outcome of the suit under the governing law, and a dispute is "genuine" only if the evidence is such that the trier of fact could find for the non-movant. Thomas v. IBM, 48 F.3d 478, 486 (lOth Cir. 1995). Thus, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-248 (l986) (emphasis in original).
Once the movant has demonstrated the absence of a genuine issue of material fact and entitlement to judgment as a matter of law, the burden shifts to the non-movant to go beyond the pleadings and set forth specific, admissible facts from which a rational trier of fact could find in its favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (lOth Cir. 1998). The non-movant "must do more than show that there is some metaphysical doubt as to the material facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted). Accordingly, unsubstantiated, conc1usory allegations are insufficient to create a genuine dispute. Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (lOth Cir. 1995). Also, "[t]he mere existence of a scintilla of evidence in support of the nonmovant's position is insufficient" to defeat a properly supported motion for summary judgment. Herrick v. Garvey, 298
2 In this regard, courts may take judicial notice of "legislative facts," such as legislative history and committee reports, when interpreting a statute or considering whether Congress has acted within its constitutional authority. Territory ofAlaska v. American Can Co., 358 U.S. 224, 227 (1959) (federal courts may take judicial notice of the legislative history of a bill); Fed. R. Evid. 201, Advisory Committee Notes. Similar considerations govemjudicial use of non-adjudicative facts, which have been described as a part ofthe judicial reasoning process. ld.
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F.3d 1184, 1189 (lOth Cir. 2002). When the record, taken as a whole, could not lead a trier of fact to find for the nomnovant, no genuine issue exists and summary judgment is proper. Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted).
ARGUMENT AND AUTHORITIES In many respects, the arguments presented by both Plaintiff couples overlap. In the interest of economy and to avoid duplication, where appropriate, arguments made on behalf of one couple will be incorporated by reference when feasible. This brief addresses first the challenge of Mary Bishop and Sharon Baldwin to Pali A of the Oklahoma Amendment. Following thereafter is the challenge of Susan Barton and Gay Phillips to Section 3 of DOMA. The brief concludes with the challenge of Plaintiffs Barton and Phillips to the non-recognition provisions of Part B of the Oklahoma Amendment and Section 2 of DOMA.
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I.

PART A OF THE OKLAHOMA AMENDMENT VIOLATES THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT BECAUSE IT PREVENTS

PLAINTIFFS BISHOP AND BALDWIN FROM EXERCISING THE FUNDAMENTAL RIGHT To MARRY THE PERSON OF THEIR CHOICE3

A. The Fundamental Right ofMarriage

The Supreme Court has repeatedly acknowledged the freedom sought here by

Plaintiffs Bishop and Baldwin, recognizing it as "one of the vital personal rights essential

to the orderly pursuit of happiness by free men." Loving v. Virginia, 388 U.S. 1, 12

(1967); Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 639-40 (1974) ("This

Court has long recognized that freedom of personal choice in matters of marriage and

family life is one of the libeliies protected by the Due Process Clause of the FOUlieenth

Amendment"). It is a right of liberty and of "fundamental importance for all

individuals." Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (emphasis added).

"Marriage" has been called one of the "basic civil rights of man, fundamental to our very

existence and survival. Id. (quoting Skinner v. OklahOlna ex rei. Williamson, 316 U.S.

535, 541 (1942)). "The right to marry is part of the fundamental 'right of privacy'

3 To the extent defendant Howe Smith asserts the nearly 40-year old decision of Baker v. Nelson, 409 U.S. 810 (1972) precludes Plaintiffs from challenging the Oklahoma Amendment on federal constitutional grounds, such contention must fail. Baker dismissed, without opinion, an appeal from the Milmesota Supreme Court rejecting federal equal protection and due process challenges to the refusal to issue a marriage license to a same-sex couple. However, the Supreme Court's summary dismissals are binding only "on the precise issues presented and necessarily decided" (Mandel v. Bradley, 432 U.S. 173, 176 (1977) (per curiam)) and only to the extent that they have not been undermined by subsequent "doctrinal developments" in the Supreme Court's case law. Hicks v. Miranda, 422 U.S. 332, 344 (1975) (internal quotation marks omitted). Here, Baker has no detenninative force for, among other reasons, it has been conclusively undennined by the Supreme Court's subsequent equal protection and due process precedent, most notably in Lawrence v. Texas, which invalidated a state prohibition on same-sex intimate conduct on due process grounds and Romer v. Evans, which struck down on equal protection grounds a state constitutional amendment prohibiting governmental action to protect gay and lesbian individuals against discrimination.
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implicit in the Fourteenth Amendment's Due Process Clause." Zablocki v. Redhail, 434 U.S. at 383-84; see also Turner v. Safley, 482 U.S. 78, 95-96 (1987); Griswold v. Connecticut, 381 U.S. 479, 486 (1965).
In short, marriage is an expression of public commitment, unity and fulfillment that confers substantial private and social benefit.4 In Griswold v. Connecticut, 381 U.S. 479,486 (1965), the Supreme Court stated:
We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Griswold, 381 U.S. at 486. See also Goodridge v. Dept. ~f Public Health, 798 N.E.2d 941, 954 (Mass. 2003) ("Marriage also bestows enormous private and social advantages on those who choose to marry. Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family.... Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition.") (citing Griswold). It is, therefore, "clear that among the decisions that an individual may make without unjustified government interference
4 The governmental benefits given to marriages between men and women are substantial. Currently, at least 1,13 8 statutory provisions are available to opposite sex couples that are unavailable to same sex couples. See U.S General Accounting Office, Defense of Marriage Act: Update to Prior Report, GAO-04-353R (Washington, D.C.: Jan. 23, 2004) (Ex. 6).
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are personal decisions 'relating to marriage.'" Zablocki, 434 U.S. at 385 (quoting Carey v. Population Services Int'l, 431 U.S. 678 (1977)).
This right to marry and to exercise the right in the same manner as afforded to opposite-gender couples, enjoying the same benefits, advantages, responsibilities, obligations and recognition is what Plaintiffs Bishop and Baldwin seek.5 It is a fundamental right granted to the elderly, the infertile, the incarcerated, as well as those with no intent of procreating or raising children - yet by popular vote in Oklahoma this fundamental right has been denied to gays and lesbians - primarily, if not solely, on religious and moral grounds.
B. Since the Oklahoma Amendment Infringes Upon a Fundamental Right, Strict Scrutiny Should Apply
Because Plaintiffs Bishop and Baldwin seek to exercise their fundamental right to marry, the Oklahoma Amendment must be reviewed under a strict scrutiny standard. Zablocki, 434 U.S. at 388. It is well established that whenever a challenged classification burdens the exercise of a fundamental right, the strict scrutiny standard will be applied. Goetz v. Glickman, 149 F.3d 1l31, 1140 (10th Cir. 1998) (laws that abridge fundamental rights are subject to strict scrutiny, and "must be precisely tailored to further a compelling governmental interest."); Okla. Educ. Ass 'n v. Alcoholic Bev. Laws Enforce. C0111m 'n, 889 F.2d 929, 932 (10th Cir. 1989) ("We will apply strict scrutiny ... if the state law impinges upon fundamental rights protected by the Constitution."). That a majority of
5 Plaintiffs do not seek to create some new constitutional right to same-sex marriage, as some confusingly suggest. Rather, they seek enforcement of their existing fundamental right to marry the person of their choice -- the same right afforded opposite-sex couples.
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Oklahoma voters supported State Question No. 711 is irrelevant, as "fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections." W Va. State Bd. ofEduc. v. Barnette, 319 U.S. 624, 638 (1943). Under strict scrutiny, the State bears the burden of showing the Oklahoma Amendment is narrowly tailored to a compelling interest. Zablocki v. Redhail, 434 U.S. 374, 388 (1978); Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir. 2008). If it is unable to do so, the challenged law must fail.
C. The Oklahoma Amendment Serves No Compelling State Interest, Except Those Deemed Invalid by the United States Supreme Court
Even the most generous analysis of the reasons given for State Question No. 711 show the Oklahoma Amendment was not narrowly tailored to a legitimate compelling interest. The only interests that proponents of the Oklahoma Amendment advanced as reasons for its adoption were of the type previously stricken down by the Supreme Court.
The legislative history of the Oklahoma Amendment shows the underlying referendum was driven and motivated almost exclusively by religious and moral views, and legislative animus toward homosexuality. Its strongest supporters urged passage to protect what "God has ordained as traditional marriage" and because "the Scriptures prohibit homosexual acts." The State Senate's primary sponsor urged adoption, stating "It is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage." (Undisputed Facts, ~~ 13-15). The Supreme Court has made clear that these types of objectives do not create an adequate reason for withstanding constitutional scrutiny. The justification that the Oklahoma Amendment was necessary to preserve
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"traditional notions of morality" had already been foreclosed before State Question No.

711 was even adopted. Lawrence v. Texas, 539 U.S. 558, 577 (2003)("[T]he fact that a

governing majority in a State has traditionally viewed a particular practice as iImnoral is

not a sufficient reason for upholding a law prohibiting the practice."). "[M]oral

disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a

relationship between a man and a woman is inherently better than a relationship between

two men or two women ... is not a proper basis on which to legislate." Perry v.

Schwarzenegger, 704 F. Supp. 2d 921, 1002 (N.D. Cal. 2010) (citing Romer v. Evans,

us. 517 U.S. 620, 633 (1996);

Dept. ~f Agriculture v. Moreno, 413 U.S. 528, 534

(1973)); Palmore v. Sidoti, 466 U.S. 429, 433 (1984) ("[T]he Constitution cannot control

[private biases] but neither can it tolerate them."). Indeed, "[l]egislation predicated on

such prejudice is easily recognized as incompatible with the constitutional understanding

that each person is to be judged individually and is entitled to equal justice under the

law." Plyler v. Doe, 457 U.S. 202,216 n. 14 (1982).

The justification that marriage has "traditionally" been between "a man and a

woman" is not enough to protect some perceived compelling interest. The traditional way of doing things has never been a banier to constitutional scrutiny. 6 "[N]either the

antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it

6 It should be observed that substantial cultural and societal changes since the filing of this lawsuit have taken place. Full same-gender marriage rights are now accorded in Massachusetts, New York, Connecticut, Iowa, New Hampshire, Vermont, and the District of Columbia. The military'S "Don't Ask, Don't Tell" policy has been recently repealed. Importantly, the Executive Branch has recently reexamined the lawfulness of Section 3 of DOMA and concluded it cannot withstand constitutional scrutiny. (Ex. 7).
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through the centuries insulates it from constitutional attack." Williams v. Illinois, 399
u.s. 235, 239 (1970). See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003); Loving v.
Virginia, 388 U.S. 1, 7 (1967);7 Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Brown v. Bd. ofEducation, 347 U.S. 483, 492-93 (1954).
Lawrence noted with approval the observation of Justice Stevens in his dissent in Bowers v. Hardwick, which stated "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack." Lawrence, 539 U.S. at 560 (citing Bowers v. Hardwick, 478 U.S. 186,216 (1986) (Stevens, 1., dissenting)). Certainly, the view that same-sex couples are inferior to opposite-sex couples should never constitute an acceptable compelling reason!s Even if a fundamental right was not implicated, any careful, searching review for a rational basis comes up exceedingly short. It defies rationality that denial of marriage to same-sex couples in a pennanent committed relationship will encourage homosexual persons to marry members of the opposite sex. Nor is there any nexus between denial of same-sex marriage and some purported goal of making heterosexual marriages more secure. Indeed, if there was some fathomed
7 Loving also noted that a State's traditional power to regulate marriage is not unlimited and is restricted by the Fourteenth Amendment. ld. at 8. 8 Oklahoma does not recognize "domestic partnerships" or "civil unions." Thus, the frail argument of available altematives to satisfy the fundamental right of mani.age is not an issue here.
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connection, the Oklahoma Legislature has achieved it only by punishing same-sex couples - a punishment that cannot survive any level of constitutional scrutiny.
Here, the plain truth is a majority of Oklahoma voters have used the power of the State to enforce, through the regulation of marriage licenses, profound and deep religious and moral views. This they cannot do without a showing of some compelling State interest. II. PART A OF THE OKLAHOMA AMENDMENT VIOLATES THE EQUAL PROTECTION
CLAUSE BECAUSE IT DISCRIMINATES AGAINST GAYS AND LESBIANS BY DENYING THEM THE RIGHT TO MARRY THE PERSON OF THEIR CHOICE AND BECAUSE IT DISCRIMINATES ON THE BASIS OF SEX
The Oklahoma Amendment creates two classes of similarly situated citizens for purposes of marriage. If a couple seeking "marriage" is one man and one woman, the threshold eligibility requirement under the Oklahoma Amendment is met. If the couple is of the same gender, they are automatically disqualified from eligibility. The Oklahoma Amendment eliminates the right to marry for gays and lesbians (and the non-recognition of same-sex marriages validly performed elsewhere), but does not affect any substantive right of heterosexual individuals.
A. Equal Protection Review Based on Strict Scrutiny The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S.CONST. AMEND. XIV, § 1. The Constitution's guarantee of equal protection of the laws rests on the mandate that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Because Part A
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implicates a fundamental right (i.e., the right to marry, including the freedom to marry the person of one's choice), it is subject to strict scrutiny. Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (lOth Cir. 2008) ("We subject governmental classifications to strict scrutiny under the Equal Protection Clause only if they target a suspect class or involve a fundamental right.") (emphasis added).
Laws that abridge fundamental rights, in addition to being subject to strict scrutiny, "must be precisely tailored to further a compelling governmental interest." Goetz v. Glic1onan, 149 F.3d 1131, 1140 (lOth Cir. 1998). "A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the l7'zost literal sense." ROlner v. Evans, 517 U.S. 620,633 (l996) (emphasis added). Beyond that, the "tradition" of restricting marriage does not fuliher any atiiculated compelling state interest. Rather, it harms the state's strong constitutional interest in equal protection because it mandates that men and women be treated differently based solely on notions of gender (the Oklahoma Constitution at Art. 2 § 7 embodies equal protection rights. Nelson v. Nelson, 1998 OK 10, ,-r 11, 954 P.2d 1219, 1223). Tradition has its importance, but it cannot be used to deny constitutional rights to selected individuals. As set forth under Paragraph L(C) above, the legislative history of the Oklahoma Amendment reflects its sole justifications were reasons which are invalid under CUlTent law.
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B. The Oklahoma Amendment is Based on Sex, Therefore Requiring a Heightened Scrutiny Review
The inescapable reality is that if either Ms. Bishop or Ms. Baldwin were a man, they as a couple would be entitled to marry under Oklahoma law, and Part A of the Oklahoma Amendment would not stand in their way.
The Equal Protection Clause prohibits sex-based classifications unless they are substantially related to an "important governmental" objective. United States v. Virginia, 518 U.S. 515, 533 (l996). Sex-based classifications require heightened scmtiny. Id. at 555 ("all gender-based classifications today warrant heightened scmtiny."). In this regard, the Supreme Court "underscored that a party seeking to uphold government action based on sex must establish an 'exceedingly persuasive justification' for the classification." Id. at 524 (citation omitted). The interests identified in the legislative history of the Oklahoma Amendment are not "governmental" interests-much less important interests substantially related to Part A's discriminatory and irrational sexbased classification.
Clearly, sex and sexual orientation are necessarily related, to the extent that, in certain circumstances "[sJexual orientation discrimination can take the form of sex discrimination." Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 996 (N.D. Cal. 2010). While plaintiffs recognize the Tenth Circuit has avoided "suspect" classification based solely on sexual orientation, Walmer v. Dept. of Defense, 52 F.3d 851, 854 (lOth Cir. 1995), such a holding does not reach the situation presented here. Pal1 A targets gays and lesbians in a manner specific to their sexual orientation, and because of the relationship
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addressed by Part A, targets them specifically due to sex. Peny, 704 F. Supp. 2d at 996. Stated another way, Part A is a law centered on a person and her same-sex partner which constitutes "discrimination based on sex." Id.
Plaintiffs Bishop and Baldwin anticipate Defendant Howe Smith will argue that because Part A allows a man or woman to marry a person of the opposite sex, the provision is not infinn from an equality analysis. In Loving, supra, the State of Virginia argued the prohibition on miscegenation punished members of both races equally. 388 u.S. at 8. However, the COUli rejected this approach to equal protection, explaining that the mere fact of equal application does not immunize a statute from the heavy burden of justification - which the FoUlieenth Amendment requires of state statutes drawn according to race. Id. at 9. Here, there is no difference between "race" and "sex" from the standpoint ofjudging Pali A's constitutional infinnity.
C. Even if a Lesser Test of "Intermediate Scrutiny" or "Rational Basis" is
Employed, the Oklahoma Amendment Remains Unconstitutional As recognized above, the Tenth Circuit has declined for equal protection purposes, in other situations, to find a classification based on sexual orientation to be a "suspect" class. For the reasons already stated, Plaintiffs submit such holdings are not relevant here because fundamental rights are implicated (i.e, the right to marry), and because discrimination based on sex underlies the Oklahoma Amendment. Neveliheless, Plaintiffs submit the Oklahoma Amendment fails scrutiny under even lesser examinations. Under intermediate scrutiny, the State must articulate an impOliant state interest, and the cOUli must determine whether the law is narrowly tailored to serve the
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important state interest. United States v. O'Brien, 391 U.S. 367, 376-77 (1968). Under rational-basis review, courts will sustain a law if it is rationally related to a legitimate state interest. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000); Seegmiller v. LaVerkin City, 528 F.3d 762,771-72 (10th Cir. 2008). However, the court must "insist on knowing the relation between the classification adopted and the object to be attained." Romer, 517 U.S. at 632.
The presumption against constitutionality falls away when a law is born out of "a bare congressional desire to harm a politically unpopular group." Us. Dept. of Agriculture v. Moreno, 413 U.S. 528,534 (1973); Romer v. Evans, 517 U.S. 620,634 (1996); Lawrence v. Texas, 539 U.S. 558, 580 (O'Connor, J., concurring); see also Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, 1., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect."). Such an interest cannot possibly constitute a legitimate governmental interest and is deemed to "reflect prejudice and antipathy - a view that those in the burdened class are not as worthy or deserving as others." Cleburne, 473 U.S. at 440.
Likewise, negative attitudes, fears or moral objections are not pennissible bases for discriminatory classifications. Id. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Id. at 448 (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)); Lawrence, 539 U.S. at 571 & 583 (moral disapproval of a group cannot be a legitimate governmental interest because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened
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by the law.") (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992); Romer, 517 U.S. at 633). Stated supra, "[l]egislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law." Plyler v. Doe, 457 U.S. 202,216 n. 14 (1982).
Accordingly, the Supreme Court has repeatedly struck down statutes which were aimed at and adversely affected a particular group, notwithstanding rational basis review. Romer, 517 U.S. at 635; Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 537; see also Lawrence, 539 U.S. at 580 (O'Connor, J., concurring) ("When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching fonn of rational basis review to strike down such laws under the Equal Protection Clause"). The instant case falls within this line of cases in that the Oklahoma Amendment has unlawfully singled out same-sex couples for purposes of denying them the fundamental right to marry.
As set forth above, Part A of the Oklahoma Amendment violates the fundamental due process and equal protection rights of Plaintiffs Bishop and Baldwin. There is no legitimate relationship between Part A and a lawful government objective. It fails all levels of scrutiny. III. SECTION 3 OF DOMA Is UNCONSTITUTIONAL
The claims of Plaintiffs Barton and Phillips as to Section 3 of DOMA straightforwardly ask: for purposes of federal benefits, should the federal government be pennitted to disregard matTiages that are valid under state law if the marriage is not
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between one man and one woman, or does doing so violate the due process rights and equal protection of the laws guaranteed by the Fifth Amendment of the Constitution?
Plaintiffs Susan Barton and Gay Phillips have spent nearly one half of their lives 27 years - in a continuous cOlmnitted union. After 17 years of holding themselves out as a couple, who dreamed of one day being able to enter into a marital union, they seized the opportunity in 2001 to be united in a civil ceremony conducted in Vennont. Because "marriage" was how they wanted to describe the permanence of their commitment to each other, they traveled to Canada in 2005 and were manied under Canadian law. But the dream of being malTied in America, as United States citizens, never left them. When maniage became available to them under California law, they obtained a marriage license, issued by the State of California, and were man"ied on November 1,2008 (during the pendency of this lawsuit). (Undisputed Facts, ~ 17). Despite their valid California maniage, the federal government refuses to recognize their maniage because of Section 3 of DOMA (which treats manied couple Barton and Phillips as legal strangers when it comes to federal benefits otherwise available to similarly situated opposite-sex "married" couples).
After initially defending Section 3's discriminatory application, the Attorney General informed Congress that the President of the United States had made the determination that Section 3, as applied to same-sex couples who are legally married under State law, violates the equal protection component of the Fifth Amendment. Consequently, the Executive Branch decided to stop defending Section 3 in this lawsuit, as well as in other cases cunently pending in other jurisdictions. Thereafter, the
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Bipartisan Legal Advisory Group was instmcted by the Speaker of the House of Representatives to defend the constitutionality of Section 3.
Because of DOMA, Ms. Phillips and Ms. Barton are ineligible for filing federal income taxes jointly as a married couple. If they had been eligible for the same benefit available to similarly situated heterosexual couples (i.e, the filing of a joint return with one's spouse), they would have paid $744.00 less in federal taxes for tax years 2003, 2005, 2006, 2007 and 2008. For the tax year 2008, if permitted to have filed a joint tax return as a married couple, the federal benefit would have been $324.00, in the form of reduced taxes. (Phillips Aff., ~ 5, (Ex. 2); Barton Aff., ~ 5 (Ex. 3); Undisputed Facts, ~ 21). For tax year 2009, they would have paid $605.00 less, ifpennitted to file jointly as a married couple (Balion and Phillips Joint Aff., ~ 11 (Ex. 4)). Instead, DOMA required each to fictionally state they were "single" and dishonestly represent that they are "single" taxpayers for purposes of their federal income taxes. Since 2001, they have undergone the expense of preparing separate returns at the federal and state level while the vast majority of persons similarly situated have not been required to do so. (Phillips Aff., ~ 7, (Ex. 2); Barton Aff., ~ 7 (Ex. 3); Undisputed Facts, ~ 21).
Through their employment taxes over the applicable years, they have now earned enough "credits" to qualifY for each spouse to receive reduced survivors benefits monthly at age 60 or unreduced at her full retirement age, in the event of death. Because of DOMA, each as a spouse is not eligible for recognition as a surviving spouse, in the event of the other's death. Heterosexual couples in identical situations are entitled to surviving spouse benefits. At death, both Plaintiffs have already earned enough "credits" for the
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spouse to receive a one-time death benefit of $255.00. (Phillips Aff. ~~ 7-10, Ex. 2);
Barton Aff. ~~ 7-10, Ex. 3); Undisputed Facts, ~~ 22-24)). Because of DOMA, both are
unqualified for federal entitlement.
A. DOMA Unconstitutionally Burdens Plaintiffs Barton's and Phillips' Exercise ofLiberties Inherent in the Fundamental Right to Marry, a Right Protected by the Due Process Clause ofthe Fifth Amendmenl
Susan Barton and Gay Phillips are legally married under the laws of California.
Such marriage to the person of their choice was the outcome of exercising a freedom
guaranteed by the Constitution. Now, having invoked their constitutional right to marry,
DOMA impermissibly burdens the exercise of the right by disallowing Ms. Balion and
Ms. Phillips the same benefits and advantages otherwise available to similarly situated
opposite-sex couples. It is as if their marriage is void in the eyes of the federal
government. As analogized by constitutional scholar Lawrence Tribe in another context:
Imagine what we would say if, after Loving v. Virginia, a state were grudgingly to pennit African Americans and whites to marry - but were to stamp the marriage licenses of such couples with an insignia designating official disapproval of their unions, or were to place signs in government offices dispensing marriage licenses voicing such disapproval. Who would defend the government's prerogative to engage in such demeaning labeling?
* * *
When that fateful day finally arrives, adherence to constitutional principle and respect for the fundamental dignity of all persons dictate a clear result. As Chief Justice Earl Warren wrote in Loving, "[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Those words ring at least as true today as they rang in 1967. If our Constitution's promises of liberty,
9 Plaintiffs Balion and Phillips incorporate by reference those authorities, supra, at 15-17, addressing the fundamental right to marry and its accompanying freedoms.
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equality, and dignity are to be realized for the millions of Americans whose most intimate lives are degraded by laws that set their love, their enduring commitments to one another, and their very sense of personhood apart as little more than second-class, then in the end the Court must do its duty and recognize a right to same-sex marriage. There is no other way.
Lawrence H. Tribe, The Constitutional Inevitability of Same-sex Marriage (Aug. 26,
2011) available at http://www.scotusblog.com/2011108/the-constitutional-inevitability-
of-same-sex -marriage/.
B. nOMA is Subject to Strict Scrutiny
Because the challenged government action implicates a fundamental right lO, strict
scmtiny is required. Supra, at 16-19. Likewise strict scrutiny/heightened scrutiny is
required for the reason that discrimination against gay and lesbian people because they
marry a person of the same sex constitutes sex discrimination. As argued, supra, at pp.
24-25, sex-based classifications require "heightened scmtiny." 11 United States v.
Virginia, 518 U.S. 515, 555 (1996).
10 "[T]he Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups." Washington v. Davis, 426 U.S. 229, 239 (1976); United States v. McHorse, 179 F.3d 889, 897 n. 1 (10th Cir. 1999) ("While the Fifth Amendment contains no equal protection clause, the equal protection standards of the FOUlieenth Amendment are incorporated into the Fifth Amendment's promise of due process") (citation omitted). Thus, courts approach Fifth Amendment equal protection claims the same as equal protection claims under the FOUlieenth Amendment. Weinberger v. Wiesen/eld, 420 U.S. 636,638 n. 2 (1975).
11 Plaintiffs Barton and Phillips urge a strict scrutinyiheightened scrutiny review of Section 3 of DOMA based upon the implication of both a fundamental right and sex discrimination. On different but overlapping grounds, the Obama administration has concluded a "heightened scrutiny" test is applicable to Section 3 because classifications due to sexual orientation are suspect in the circumstances here. The Executive Branch's determination was made after examining a traditional set of four factors recognized by some cOUlis for equal protection classifications. (See Ex. 7 hereto). The Tenth Circuit has declined to view sexual
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orientation standing alone as a suspect classification. Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n. 9 (10th Cir. 2008). The Supreme Court has not explicitly addressed the sexual orientation!classification issue.
Given the necessary interrelatedness between sexual orientation discrimination and sex discrimination within the context of the same-sex marriage issue, Plaintiffs submit the Tenth Circuit could be expected to reach a different result than the one in Price-Cornelison, supra, and earlier holdings. That aside, however, the Attorney General's factual analysis has clear relevance here, as it pertains to the discriminatory setting within which anti-homosexual legislation has been passed; the lack of pennissible rationale for treating gays and lesbians differently as members of society; their status as a minority group; and the connection between sexual orientation and gender. Plaintiffs urge a particular and careful consideration of the Attorney General's findings.
The four factors identified by the Attorney General's Letter to Congress are set forth below, and as to each, Plaintiffs herein tailor each factor to their case:
(1) History of discrimination It is undisputed, as well as a historical reality, that gays and lesbians have long been victims of purposeful and invidious discrimination because of their sexual orientation. The history of discrimination against gays and lesbians was epitomized by the criminalization of homosexual conduct in many parts of this country until very recently. Lawrence, 539 U.S. at 578-79. Until recently, gays and lesbians were dismissed from military service regardless of past dedication, valor, and courage in harm's way. Public employees identified as gay or lesbian were thought to pose security risks. Children identified as gay or lesbian have been severely bullied at school. Gays and lesbians continue to be frequent victims of hate crimes. Criminal Justice Infonnation Servs. Div., FBI, Hate Crime Statistics 2007, at www.fbi.gov/ucr/hc2007/victims.html. This history of discrimination suggests any legislative burdens placed on lesbian and gay people as a class "are more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective." Plyler v. Doe, 457 U.S. 202, 216 n. 14 (1982). This observation, clearly identical to the denied relationship under Part A, favors heightened scrutiny.
(2) Sexual orientation and the ability to contribute to society A classification unrelated to a person's ability to perform or contribute to society typically reflects "prejudice and antipathy-a view that those in the burdened class are not as wOlihy or deserving as others" or "reflect[s] outmoded notions of the relative capabilities of persons with the characteristic." Cleburne, 473 U.S. at 440-41. In the absence of credible authority that persons in a same-sex relationship lack an ability to contribute to society, a law based on prejudice and stereotype is incompatible with the constitutional understanding that persons are to be judged individually and are entitled to equal justice under the law. Plyler, 457 U.S. at 217 n. 14.
(3) Immutability of sexual orientation Courts have held the immutability "prong of the suspectness inquiry surely is satisfied when ... the identifying trait is 'so central to a person's identity that it would be abhorrent for government to penalize a person for refusing to change [it].'" Kerrigan v. Comm'r of Public Health, 957 A.2d 407,438 (Conn. 2008) (quoting Watkins v. Us. Army, 875 F.2d 699, 726 (9th Cir. 1989); see also In re Marriage Cases, 183 P.3d 384, 442 (Cal. 2008) ("Because a person's
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(1) DOMA Was Motivated By Invidious Discrimination
"A law declaring that in general it shall be more difficult for one group of citizens
than for all others to seek aid from the government is itself a denial of equal protection of
the laws in the most literal sense." Romer v. Evans, 517 U.S. 620, 633 (1996). Hence,
the presumption of constitutionality falls away when a law is borne out of "a bare
congressional desire to hann a politically unpopular group." Us. Dept. ofAgriculture v.
Moreno, 413 U.S. 528, 534 (1973); Romer, 517 U.S. at 634; Lawrence v. Texas, 539 U.S.
sexual orientation is so integral an aspect of one's identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment."). Plaintiffs' sexual orientation is an inherent part of their identity, and they do not experience their orientation as a matter of choice. To suggest that Plaintiffs could repudiate their fundamental identity and hold themselves out to the public in a false image - in order to obtain the benefit of a fundamental liberty - is abhorrent and irrational. (Undisputed Facts, ~~ 27, 41).
(4) Minority status or political powerlessness of lesbian and gay people "There can be little doubt that homosexuals are an identifiable minority subjected to discrimination in our society." Nabozny v. Podlesny, 92 F.3d 446, 457 (7th Cir. 1996); see also Flores v. Morgan Hill Un(fied Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003); Undisputed Facts, ~ 33. It therefore follows that gay and lesbian couples in committed relationships are likewise a minority group. In addition, absolute political powerlessness is not necessary to subject legislative burdens on a certain class to heightened scrutiny. For example, women enjoyed some political power when the Supreme Court first heightened its scrutiny of gender classifications. Frontiero v. Richardson, 411 U.S. 677, 685-88 & n. 17 (1973). Moreover, a group's current political powerlessness is not a prerequisite to enhanced judicial protection/scrutiny. Race continues to be a suspect classification, Grutter v. Bollinger, 539 U.S. 306, 326 (2003), despite racial minorities enjoying growing political power. Likewise, gender classifications receive heightened scrutiny, even though women continue to gain political power. United States v. Virginia, 518 U.S. 515, 532-33 (1996). Accordingly, the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness. Rather, the touchstone of the analysis should be "whether the group lacks sufficient political strength to bring a prompt end to the prejudice and discrimination through traditional political means." Kerrigan, 957 A.2d at 444. The overwhelming passage of the Oklahoma Amendment in the legislature and by popular vote stands as testimony to the lack of real political power of the gay and lesbian community in Oklahoma. Indeed, despite passage of the Matthew Shepard Act at the federal level, Plaintiffs and their counsel are not aware of a single Oklahoma protective statute mentioning the phrase "sexual orientation." (Undisputed Facts, ~ 33).
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558,580 (O'Connor, J., concurring); Railroad Retirement Ed. v. Fritz, 449 U.S. 166, 181 (1980) (Stevens, J., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impm1iality would be suspect."). Such an interest cannot possibly constitute a legitimate governmental interest and is deemed to "reflect prejudice and antipathy - a view that those in the burdened class are not as worthy or deserving as others." Cleburne, 473 U.S. at 440.
Likewise, negative attitudes, fears or moral objections are not permissible bases for discriminatory classifications. Id. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Id. at 448 (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)); Lawrence, 539 U.S. at 571 & 583 ("this Court's obligation is to define the liberty of all, not to mandate its own moral code ... Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be 'drawn for the purpose of disadvantaging the group burdened by the law. "') (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992); Romer, 517 U.S. at 633).
Accordingly, the Supreme Court has repeatedly struck down statutes which were aimed at and adversely affected a particular group, notwithstanding rational basis review. Romer, 517 U.S. at 635; Cleburne, 473 U.S. at 450; Moreno, 413 U.S. at 537; see also Lawrence, 539 U.S. at 580 (O'Connor, J., concurring) ("When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching fonn of rational basis review to strike down such laws under the Equal Protection Clause"). The instant case falls within this line of cases in that Congress has unlawfully singled out
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same-sex couples for purposes of denying them recognition of their legally performed marriages and the attendant federal benefits.
DOMA's legislative history shows it was born out of animosity toward same-sex couples, a preference for heterosexuality, and an intent to discourage same-sex maniage. The House Report devotes substantial discussion to its purported interests in defending "traditional notions" of heterosexual marriages and morality against a "legal assault" being waged by gay rights groups and their lawyers. The Committee stated DOMA should reflect moral judgments, held by the citizenship majority, which are rooted in Judeo-Christian traditions, and DOMA would preserve the State's legitimate interest in the freedom for people to refuse "to employ, rent an apartment to, or otherwise associate with homosexuals." H.R. Rep. 104-664 at 31. It presented other purported interests of(1) defending the institution of traditional heterosexual maniage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving government resources (Id. at 33). These interests, as shown below, are illusory as well.
Federal statutes must serve some legitimate purpose. "[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to hann a politically unpopular group cannot constitute a legitimate governmental interest." Moreno, 413 U.S. at 534. Thus, to recast the foregoing principle, applied here, "[a] purpose to discriminate against [lesbians and gay persons] cannot, in and of itself and without reference to (some independent) considerations in the public interest, justify [DOMA]." Id. at 534-35. Laws like DOMA
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"raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Romer, 517 U.S. at 634. DOMA has one purpose and one purpose only - discriminating against same-sex marriages. This unduly subjects lesbians and gays to discrimination. Lawrence, 539 U.S. at 575 (noting stigma associated with statute criminalizing homosexual conduct).
(2) DOMA's Substantive Provisions Are Unconstitutionally Discriminatory
In connection with the exercise of the fundamental right to marry, "marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), propeliy rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock)." Turner v. Sa/ley, 482 U.S. 78, 95 (1987). The right to marry encompasses a core set of basic substantive legal rights and attributes traditionally and intrinsically associated with marriage (i.e., receipt of benefits) that are so integral to an individual's personal autonomy they may not be eliminated by Congress. ld. If Turner held prohibitions against the fundamental right to marry cannot be arbitrarily established by the Government, how can the Government (as here) place irrational barriers which significantly interfere with the exercise of that fundamental right? "It would belabor the obvious to expound at any great length on the illegitimacy of a state policy that interferes with the exercise of fundamental rights through the selective bestowal of governmental favors." Harris v. McRae, 448 U.S. 297, 334 (1980) (Brennan, 1., dissenting). Indeed, the Supreme Court has "never hesitated to
36

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 45 of 52
invalidate any scheme of granting or withholding financial benefits that incidentally or intentionally burdens one manner of exercising a constitutionally protected choice." Id.
As an example, Harris cited Sherbert v. Verner, 374 U.S. 398 (1963) in which the Court invalidated a South Carolina unemployment insurance statute that required recipients to accept suitable employment when offered, even if the grounds for refusal stemmed from religious convictions. Although recipients possessed no entitlement to compensation, the Court held the State could not cancel the benefits of a Seventh-Day Adventist who had refused a job requiring her to work on Saturdays: "to condition the availability of benefits upon this appellant's willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." Id. at 406. Likewise, here, the Government "withholds financial benefits in a manner that discourages exercise of a due process liberty." Harris, 448 U.S. at 336.
Section 3 of DOMA has deprived Plaintiffs Barton and Phillips of substantive due process by burdening the exercise of their right to marry with a penalty because the exercise was not done in a government-favored heterosexual manner.
C. DOMA Violates Plaintiffs Barton's and Phillips' Equal Protection Rights12
Because of DOMA, unlawful restrictions have been placed on one of the most fundamental rights afforded to individuals. The situation here is comparable to that in
12 The U.S. Constitution's guarantee of equal protection is embodied in the Fifth Amendment. Bolling v. Shmpe, 347 U.S. 497, 499 (1954). The equal protection right is made applicable to the States by the Fourteenth Amendment. Equal protection asks whether the classification drawn by a statute constitutes arbitrary and invidious discrimination. Loving v. Virginia, 388 U.S. 1, 11 (1967).
37

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 46 of 52
Romer; DOMA effectively creates two classes of citizens for marital purposes. Its provisions adversely affect married same-sex couples but no other people. It unlawfully singles them out and tells them their relationships and their love for each other are unequal to heterosexual marriages and not worthy of the same treatment. Its purported interests, discussed below, are illusory, and reflect nothing more than an intent to relegate certain persons to second-class status.
Denial of benefits to legally married couples based on gender has no rational basis. In fact, the denial of marriage-based benefits to same-sex couples has been found to violate equal protection by several state supreme courts. Varnum v. Brien, 763 N.W.2d 862,906 (Iowa 2009); Kerrigan v. Comm'r ofPublic Health, 957 A.2d 407,481 (Conn. 2008); Goodridge v. Dept. ofPublic Health, 798 N.E.2d 941,969 (Mass. 2003); Baker v. State, 744 A.2d 864, 886 (Vt. 1999). A flat refusal to accord these benefits to same-sex couples denies associated fundamental rights. It reflects the kind of "broad and undifferentiated disability on a single named group" Romer held to be unconstitutional.
D. Section 3 ofDOMA Discriminates on the Basis ofSex Section 3 discriminates against Plaintiffs Barton and Phillips based on their sex, and in so doing denies each equal protection based on sex in relation to each's spouse. Applying Judge Reinhardt's analysis in Levenson, Ms. Barton's inability to secure federal benefits is due solely to her spouse's sex. If Ms. Barton were a male, her entitlements to federal benefits would be guaranteed. Vice versa, if Ms. Phillips were a male, her entitlement to federal benefits would be guaranteed. Thus, the denial of benefits at issue here are "sex-based." In re Levenson, 560 F.3d 1145, 1147 (9th Cir. 2009).
38

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 47 of 52
This is a much different issue than simply whether sexual orientation itself is a suspect classification. Instead, this is a law centered on a person and her spouse of the same sex. It is the equivalent of discrimination based on sex. See supra at 24-25. Plaintiffs Barton and Phillips are each being penalized solely because of sex in the choice of a spouse. Heterosexuals, similarly situated, are not. The only choice given to Ms. Barton and Ms. Phillips by the govermnent is to marry a man. While a person may have no "right" to a government benefit and a denial of benefits can be for a number of reasons, there are some reasons upon which the government cannot rely. "It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests." Peny v. Sindermann, 408 U.S. 593,597 (1972).
E. DOMA Does Not Rationally Further A Legitimate Governmental Interest The House Report noted several governmental interests justifYing DOMA' s passage: (1) defending the institution of traditional heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic selfgovernance; and (4) preserving government resources. H.R. Rep. No. 104-664 at 33. However, each of these purpOlied interests is illusory. The first, defending traditional marriage, is unfounded because thousands of same-sex couples have already been married. As Judge Reinhardt noted in the dispute resolution case of In re Levenson, 560 F.3d 1145, 1150 (9th Cir. 2009), "[g]ay people will not be encouraged to enter into marriages with members of the opposite sex by the government's denial of benefits to same-sex spouses, and the denial will not discourage same-sex couples from entering into same-sex marriages; so, the denial cannot be said to 'nurture' or 'defend' the institution
39

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 48 of 52
of heterosexual marriage." Moreover, Justice Scalia noted in Lawrence that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 601 (emphasis in original).
Lawrence determined the second purpose, moral justification, was an unconstitutional basis for discrimination against gay persons. Id. at 571-72. Denying same-sex couples federal benefits can hardly be considered to further this interest. As to the third, no substantiated reason has been given to show how recognizing same-sex marriages or affording federal benefits to those in same-sex marriages threatens the States' rights to govern themselves. Regarding the fourth, preserving governmental resources, Justice Douglass noted in his concurrence in Moreno that "[p]roblems of the fisc . . . are legitimate concerns of government. But government 'may not accomplish such a purpose by invidious distinctions between classes of its citizens. ", Moreno, 413 U.S. at 543 (Douglass, J., concurring) (citing Shapiro v. Thompson, 394 U.S. 618, 633 (1969); see also Levenson, 560 F.3d at 1150-51 ("that a government policy incidentally saves the government an insignificant amount of money does not provide a rational basis for that policy if the policy is, as a cost-saving measure, drastically underinclusive, let alone founded upon a prohibited or arbitrary ground.") (citing Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 590-91 (9th Cir. 2008)).
There is no rational relationship between the sex of an employee's spouse and the government's desire to preserve financial resources. As Judge Reinhardt noted, the government could save far more money by simply eliminating coverage for all spouses and in some cases, DOMA saves the govermnent no money at all. Id. at 1151 & n. 5.
40

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 49 of 52
Any attempt to downgrade what is a blatant act of discrimination to a preservation of traditional notions or protect democratic self-governance is constitutional mockery. The same canard could have conceivably been said about segregation, access to higher education, interracial marriages, and policies against the disabled. However, the courts stepped in, saw the legislation for what it really was, and ended the practice. The unlawful classification created by DOMA cannot be sustained by reference to these purported congressional interests. In sum, DOMA classifies lesbian couples "not to fmiher a proper legislative end but to make them unequal to everyone else." Romer, 517
u.s. at 635. Such actions, violative of the freedom to marry the person of one's choice,
cannot evade constitutional scrutiny. IV. PART B OF THE OKLAHOMA CONSTITUTION AND SECTION 2 OF DOMA ARE
UNCONSTITUTIONAL AS THEY BURDEN PLAINTIFFS BARTON'S AND PHILLIPS' FUNDAMENTAL DUE PROCESS LIBERTIES AND EQUAL PROTECTION RIGHTS
To ban recognition of civil marriage to couples based on gender denies them full access to their constitutional civil rights and liberties. If Plaintiffs Barton and Phillips are determined in this lawsuit to have access to the same constitutional marital rights and privileges enjoyed by opposite-sex "married" citizens, then recognition of those rights should not be curtailed in a way different from that of opposite-sex married couples. DOMA and the Oklahoma Amendment cannot operate in tandem to disregard full recognition of established libeliies. This would be akin to the State of Virginia simply ignoring the mandate in Loving, supra. Again, in the analogy of Professor Tribe, "Imagine what we would say if, after Loving v. Virginia, a state were grudgingly to pennit African Americans and whites to marry - but were to stamp the marriage licenses
41

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 50 of 52
of such couples with an insignia designating official disapproval of their unions[?]" Supra at 30. Burdening a constitutional liberty by governmentally refusing to "recognize" the liberty is a plain infringement on the exercise of one's constitutional rights. Part B places a "disapproval" stamp on the marriage of Ms. Phillips and Ms. Barton and DOMA' s Section 2 constitutes the federal government's acquiescence in such disapproval. If, as the Executive Branch now concludes, Section 3 unconstitutionally infringes, how can it approve a curtailment imposed through state action which reinforces the infirmity?
Presumably, the Executive Branch may argue that Section 2 has not caused Plaintiffs Barton and Phillips actual injury (Section 2 essentially states, "the federal government authorizes the State of Oklahoma not to recognize your malTiage, if it chooses to do so."). The flaw of such an argument, from an equality perspective, is that Section 2 has no counter-provision stating that each State is free to deny the validity of heterosexual malTiages perfonned elsewhere. This absence results in unequal protection and relegates one type of malTiage to second class status.
Part B of the Oklahoma Amendment and DOMA's Section 2 cannot do indirectly what Part A and Section 3 have attempted to do directly. Accordingly, if Susan Barton and Gay Phillips have a fundamental right of malTiage, both Pali B and Section 2 must fail as constitutionally impermissible.
CONCLUSION Regardless of the constitutional scrutiny standard utilized, DOMA and the Oldahoma Amendment were passed with the intent to deprive a minority of American
42

Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 51 of 52
citizens - who Congress and the Oklahoma Legislature view as infelior - of fundamental rights under the U.S. Constitution. The Oklahoma Amendment and DOMA proclaim that non-heterosexuals and their relationships are lesser valued than those of the majority. These enactments derive from nothing more than deep seated moral prejudice, and religious beliefs which the majority want to impose on all citizens as laws. This should not be permitted. A civilized society's justice system must be the protector of the minority. Laws based on a patiicular hostility toward a group of people do not (and should not) last long under judicial review. The promise of the Constitution guarantees that all citizens - lesbians, gays, bisexuals, and heterosexuals - enjoy the benefits of American citizenship without irrationally compromising the rights of anyone group.
When the veil is lifted, the purpose and intent behind the Oklahoma Amendment and DOMA is apparent: to relegate same-sex couples, whose sexual orientation differs from that of the majority, to second class citizenship. It lacks legal credibility to claim that equal protection of the laws, and the Constitution's protection of fundamental liberty interests, were fulfilled in the enactments of the Oklahoma Amendment and DOMA.
Accordingly, upon the above authorities and arguments, Plaintiffs request that their Motion for Summary Judgment be granted.
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Case 4:04-cv-00848-TCK-TLW Document 197 Filed in USDC ND/OK on 09/28/11 Page 52 of 52
Respectfully submitted, siDon G. Holladay Don G. Holladay, OBA No. 4294 James E. Warner III, OBA No. 19593 HOLLADAY & CHILTON PLLC 204 North Robinson, Suite 1550 Oklahoma City, Oklahoma 73102 Telephone: (405) 236-2343 Facsimile: (405) 236-2349 dholladay@holladaychilton.com jwarner@holladaychilton.com
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE I certify that on September 28, 2011, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the current parties of record.
siDon G. Holladay
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Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP, et at.,
Plaintiffs, v.
UNITED STATES OF AMERICA, et at.,
Defendants.

) ) ) ) ) No. 04-CV-848-TCK-TLW ) ) ) )

JOINT AFFIDAVIT OF PLAINTIFFS MARY BISHOP AND SHARON BALDWIN
COUNTY OF TULSA ) ) ss.
STATE OF OKLAHOMA)

EXHIBIT
I I

Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 2 of 12
Mary Bishop and Sharon Baldwin, being duly sworn, hereby depose and state as follows:
l. I, Mary Bishop, and I, Sharon Baldwin, (at left and right, respectively, in the above photograph) are two of the plaintiffs in this lawsuit.
2. Mary was born Sept. 12, 1961, and is 50 years of age. Sharon was born Sept. 29,1968, and will be 43 years of age tomorrow.
3. Mary is a sixth-generation Oklahoman with great-great-great grandparents who lived here before statehood. Oklahoma is where she was raised and where she has chosen to reside. She attended Hayes Elementary School in Ada, Oklahoma; and McLish Grade School and McLish High School near Fittstown, Oldahoma. She received her bachelor's degree from East Central University in Ada and, after earning her master's degree, completed her doctoral coursework at Oklahoma State University in Stillwater. She worked as a journalist at the Bristow News-Record in Bristow, Oklahoma, and at The Daily Oklahoman in Oklahoma City before joining the East Central University faculty as a journalism instructor in 1986. She was an assistant professor when she left East Central in 1995. For the past 16 years she has been employed at the Tulsa World, the secondlargest metropolitan newspaper in Oklahoma. Her current position is assistant editor.
4. Sharon is at least a fourth-generation Oklahoman whose paternal grandmother came as a young girl with her parents to this new state in a covered wagon. Oklahoma is where Sharon was raised and where she has chosen to reside. She attended Mark Twain Elementary School, Madison Middle School and Central High School, all in
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Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 3 of 12
Tulsa. She received two associate degrees from then-Tulsa Junior College and a bachelor's degree from the University of Oklahoma in Nonnan. She worked for one year after graduation in the Student Publications Department at OU before joining the staff of the Tulsa World as a copy editor in August 1993. She has worked there for the past 18 years. For the last nine years and nine months, she has been the city slot editor - in a midlevel management role.
5. We are in a long-tenn, cOlmnitted relationship. On March 26, 2000, we exchanged vows in a church-recognized Holy Union cOlmnitment ceremony at Alligator Point, Florida. (A copy of the document evidencing this ceremony is attached hereto as an Exhibit.) We live in Broken Arrow, in Tulsa County, Oklahoma, in a home Mary bought before she and Sharon met. Sharon's name has since been added to the property deed. In January 2011, we together purchased a 1.3-acre wooded lot in Osage County, Oklahoma, where we intend to build our dream home someday. In the meantime, we're spending many of our most special moments together there, from hikes and holiday picnics to meteor-shower watching.
6. Before our formal cOlmnitment ceremony, we lived together for three years and four months. In five weeks, we will celebrate our 15th anniversary of sharing a home and our lives together. We have a tradition of exchanging cards and enjoying a special meal together on our anniversaries, Valentine's Day and other special occasions and have at various times also included flowers and other gifts, such as jewelry and trips. We have one tradition - which even predates our living together - of a Valentine's Day picnic, no
3

Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 4 of 12
matter what the weather. The place and menu change from year to year, but a time of reflection on our relationship and appreciation for one another is a constant feature. Neither of us has ever been married to any other person.
7. During the entirety of our pennanent relationship, we have been legally precluded by the laws of the state of Oklahoma from marrying each other, which we deeply desire to do. "Marriage" is an institution to be respected. It is how we want the cOlmnitment and pennanence of our relationship to be recognized. It is, indeed, how we see our relationship, and it is the only status that will signify the equality of our relationship. No other categorization, such as "domestic partnership" or "civil union," conveys the same level of cOlmnitment or respect. As an example, when we announced to one of our work supervisors that we were having a cOlmnitment ceremony, the supervisor, not knowing how to respond, said, "How cute!" She would not have responded in like fashion to an employee who told her of an upcoming marriage.
8. Indeed, during our lifetimes, the majority of society has historically treated gay men and lesbians with discrimination. It is only within this century that we have seen the overturning of a law that criminalized homosexual acts. Within our lifetimes, the news has reported gay men and lesbians beaten to death, driven to addiction and even to suicide simply for being who they are. We personally have been subject to harassment from fellow students, co-workers and others. We have been assumed to be "twins," "sisters," "cousins," "mother and daughter" and just "good friends" by people who could not fathom why two women would be together otherwise. We have been estranged from
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Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 5 of 12
family members, churches and friends. We have publicly been called unworthy in the eyes of God. We have been blamed for the ills of a nation and state by those who cite homosexuality for God's wrath, and we have been ridiculed for desiring to legally marry each other by people who say such an action would bring about the downfall of Western civilization. Nationwide and locally, gay men and lesbians continually even today face denunciation by elected officials.
9. On Feb. 13, 2009, we sought the issuance of a marriage license from Sally Howe Smith, the court clerk for Tulsa County, Oklahoma. She refused to grant us a license because we are both female and Oklahoma's constitution prohibits marriage between people of the same gender.
10. In our view, the Oldahoma Amendment tells our fellow Oklahoma citizens - including our friends, co-workers, neighbors and family members - that the personal cOlmnitment between us has no value and is inferior to other pennanent commitments. In a very real sense, and in a demeaning way, this Oklahoma law signals to others that they should not respect our relationship.
11. When it comes to our inability to report our marital status accurately on legally binding forms, Oklahoma's prohibition against marriage for same-gender couples stigmatizes us and shows us that our state looks upon us as inferior to other Oklahomans. When we must declare our marital status on our income tax fonns, health insurance fonns and other such documents, we face the dilemma of lying under the letter of the law and declaring that we are married or denying our love for and commitment to each other and
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Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 6 of 12
saying we are single. Oklahoma's ban on marriage for same-gender couples also serves to institutionalize bigotry and prejudice toward gay people in such a way as to make it seem acceptable to persecute and demonize us. Oklahoma's ban against the marriage we seek codifies the subjugation of, prejudice against and disapproval of gay people in general and does so from the lowest levels of society to the very lawmakers who are supposed to represent us. While opinions differ as to what percentage of the population is composed of gay men and lesbians, it is indisputable that we are members of a distinct minority. In Oklahoma, we live and work knowing we are members of that minority class. Yet, despite our obvious minority status, even Oklahoma's "hate crimes" statute offers no protection based on sexual orientation.
12. We followed the debate and passage of Referendum No. 334, which sent the proposed Oklahoma constitutional ban on same-gender marriage and nonrecognition of same-gender marriages to a popular vote of the people. That debate, in and out of the legislature assembly, was but one more example of giving legislators a bully pulpit for anti-gay remarks and the opportunity to pass anti-gay legislation. The referendum passed the Oklahoma House of Representatives by a vote of 92-4 and the Oklahoma Senate by a vote of 38-7. Exhibit E is a sampling of the news articles published in the Tulsa World at the time of passage of Referendum No. 334 and then the vote on State Question 711. The constitutional amendment was overwhelmingly approved.
13. During the debate on State Question 711, some confused our desire for civil marriage with a desire to interfere with their own religious beliefs and rites and thought
6

Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 7 of 12
we wanted to force houses of worship to marry same-gender couples. Some also said allowing same-gender couples to marry would degrade the marriages of heterosexual couples and lead to the destruction of families. None of these asseliions has any basis in fact. We seek a civil right in a civil ceremony that will force the state of Oklahoma to recognize our pennanent cOlmnitment to each other as a marriage. Our pennanent commitment to each other or the state's recognition thereof couldn't possibly inflict harm on other people or interfere with the marriages of opposite-sex couples any more than their relationships affect ours.
14. Oklahoma's ban has caused each of us substantial emotional anguish. We find it demeaning and irrational to be told that we already have the right to marry - as long as we each marry someone of the opposite sex instead of the person we love, the companion we have chosen. Our sexual orientation is an inherent paIi of our identity, and we do not experience our orientation as a matter of choice. There was not a certain day in our lives when either of us decided to "become" a lesbian, any more than individuals who are heterosexual decided at a particular moment to be heterosexual. For us, our sexual orientation is just who we are. Our relationship is healthy and non-threatening to others. The suggestion that if we want to get married, we should just change our sexual orientation and find someone of the opposite sex IS perverse. To do so would be emotionally unhealthy and mentally damaging.
15. We are active in our cOlmnunity. We have participated in the construction of two Habitat for Humanity houses sponsored by the Tulsa World; we are blood donors
7

Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 8 of 12
with the Oklahoma Blood Institute; we have edited publications and other written materials for our church and other organizations with which we are involved on a volunteer basis; we have read to children's groups through the Tulsa City-County Library's Summer Reading Program; we are active members of Oklahomans for Equality, which honored us and our co-plaintiffs in 2010 as COlmnunity Heroes of the Year; we are working toward certification as wildlife rehabilitators and are raising five infant and juvenile raccoons for release; and we donate regularly to more than a dozen nonprofit organizations, including the Tulsa COlmnunity Foundation. Our sexual orientation has no bearing on our ability to be productive members of society, yet despite our cOlmnitment to our cOlmnunity, our inability to hold out our relationship as a marriage has relegated its status to an inferior level. Marriage is the most important relation in one's life, and we are being denied this right.
16. Oklahoma's ban on same-gender marriage has also caused us substantial hann in other ways. Simply taking legal steps that would not have been necessary for a married couple has made us incur extra expense. For example, we each must maintain current durable powers of attorney, living wills and health-care proxies and have together established a living trust, prepared by a licensed attorney. The preparation of these documents initially caused us to spend about $1,300 - an expense that would have been unnecessary if both of us had had spousal rights. Even with this planning, it is our understanding that powers of attorney stop at death - meaning our blood family members, not the surviving life partner, have the right to make our final arrangements and plan our
8

Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 9 of 12
funerals. It seems that no amount of planning can prevent these continued surprises. A marriage license offers the full array of protection that we are forced to seek through piecemeal efforts to provide for each other.
17. Oklahoma's prohibition hurts us monetarily in other ways and also because of the uncertainty of how our relationship will be treated by companies with which we do business and for which we work. For example, Mary is a member of an automobile club, yet in previous years she was told that she could not add Sharon to her policy as a family member because we were not legally married. Additionally, we both work for the same company. Although our employer's nondiscrimination policy now includes sexual orientation (it didn't for most of the years we have worked there), the company has not explicitly said it provides domestic-partner benefits. Therefore, we are left in the limbo of not knowing whether Mary could provide insurance coverage for Sharon through Mary's Tulsa World policy if Sharon left the employment of the Tulsa World - or vice versa. It is our intention to take care of each other in sickness and in health, yet we cannot be assured that medical facilities and other institutions will recognize our relationship and treat us as family. Because of that uncertainty, we carry copies of our living wills and powers of attorney in our car's glove compartment at all times and in our luggage when we travel so that we will be able to prove our right to make medical and other decisions for each other in the event that one of us is incapacitated.
18. As Oklahoma citizens we are suffering unequal treatment caused by Oklahoma's constitutional provisions toward same-gender marriage. We have been
9

Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 10 of 12
stripped of one of our fundamental rights by popular vote, and we have become secondclass citizens by being denied the right to many. The rights of the minority should never be detennined by a vote of the majority.
19. As professional journalists, we know that we are supposed to report the news - not make it. One tenet of journalistic ethics is that journalists will not become involved in any political or other activity that could present a conflict of interest or the perception of a conflict of interest. We entered this lawsuit with the knowledge that doing so could cost us our careers, but we felt that we had to do it anyway. We saw too many other gay couples who had even more to lose - children and homes, for example - to risk filing such an action. Because we believe so strongly that our state should treat us the same as all other Oklahoma residents, we knew that we needed to pursue this action in court. Equal treatment under the law is all that we are asking. It is a goal that is worth anypnce.
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Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 11 of 12
FURTHER AFFIANT SAYETH NOT.
"'~J.6d.k;= MARY ISHOP

NOTARY

this/q fA Subscribed and sworn to before me

day of September, 2011.

My Commission Expires:

NOTARYPU .-IC

FURTHER AFFIANT SAYETH NOT.

Notlry Public in and for STATE OF OKlAHOMA Commission 1/1 02004359 Expires: March 11, 2014

S ONBAL I

NOTARY

PP- Subscribed and sworn to before m~ this

day of September, 2(}11.

My Commission Expires:

~~ NOTARY PUB· C

Notary Public in and for STATE Of OKlAHOMA Commissiull 1/1 02004359 &pi(6$: March 11, 2014
11

Case 4:04-cv-00848-TCK-TLW Document 197-1 Filed in USDC ND/OK on 09/28/11 Page 12 of 12

Certificate of:J{o[y llnion
Whatgreater thing is there for two human soulS
than to bejoinedtogether.

Let it 6e known that

on tfie 2" r4

tIayof ~rq

in the year of2dtJO

2{~ ifirq.13i?JfJz

were 6y mejoinedinJ{o(tj l1nion
at 'if!tf!Jator Ei¢ 'HoriclCr.

EXHIBIT
I ~

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 1 of 13
Case 4:04-cv-00848-TCK-TLV\i Document 168 Filed in USDC ND/C In 08/11/2010 Page 3 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP, et al., Plaintiffs,
v. UNITED STATES OF AMERICA, et a!.,
Defendants.

) ) ) ) ) No. 04-CV-848-TCK-TLW ) ) ) )

AFFIDAVIT OF GAY E. PHILLIPS SUBMITTED PURSUANT TO COURT ORDER OF AUGUST 2,2010

STATE OF OKLAHOMA

)

) ss.

COUNTY OF OSAGE

)

Gay E. Phillips, being duly sworn, hereby deposes and states as follows:

1. I was born April 7, 1955, and am 55 years of age.

2. I am one ofthe plaintiffs in this lawsuit. This affidavit is submitted pursuant

to the Court's Order of August 2,2010.

3. Susan G. Barton, another plaintiff herein, and I have been in a continuous

committed relationship since November 1, 1984. We were united in a civil union conducted

by Justice Justine, in Vermont on August 4, 2001; we were subsequently married in

Vancouver, British Columbia, Canada, on May 16,2005. We were issued a marriage license

by the State of California and married under California law on November 1, 2008.

Loss ofFederal Tax Benefits

4. Between the years of our civil union (2001) and through 2008, Susan and I

EXHIBIT
12.

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 2 of 13
Case 4:04-cv-00848-TCK-TLV. Document 168 Filed in USDC NOll on 08/11/2010 Page 4 of 12
have been required to file our federal and state income tax returns using a single person
status. Internal Revenue Service (IRS) regulations, based on the Defense of Maniage Act
(DOMA), make us ineligible for filing federal income taxes jointly with a same sex spouse.
IRS Publication 501 (2009) instructs that "for federal tax purposes, a maniage means only
a legal union between a man and a woman as husband and wife." (Exhibit No.3 hereto).
5. In conjunction with the preparation of these affidavits, Susan and I engaged a certified public accountant to compare the federal maniage-based tax benefit we would have
received if we had been able to use the status of "married filing jointly." Due to time constraints, the accountant compared only five years (tax years 2003, 2005, 2006, 2007 and 2008) and did not compare earlier years. The filing dates for our 2009 returns have been extended and those returns have not yet been filed. 1 As reflected on Exhibit 1 hereto, if
Susan and I had been eligible for the same benefit available to similarly-situatedheterosexual couples (i.e., the filing of a joint return with one's spouse), for the tax years examined, we would have paid $744.00 less in federal taxes than we did by being forced to file separately
lWe were unable to locate and obtain copies of our 2004 returns. It is our cunent understanding that if an individual has filed a separate return for a year in which a joint return could have been made with a spouse, the couple may only file a joint return within three years after the filing of the original return. 26 c.P.R. § 301.6402-2(a)(l). IfDOMA is ultimately found unconstitutional, we would seek to file amended returns to the extent permitted. Even then, we would not be able to recoup all losses suffered. Under the tax scheme utilized by the federal government, a married individual who files jointly with a spouse is generally subject to a lower tax than an unmarried individual. 26 U.S.c. § 1(a), (b), & (c). Gillv. Office ofPersonnel Management, No. 09-10309-JLT, 2010 WL 269565, at *5 (D. Mass. July 8,2010).
-2-

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 3 of 13
Case 4:04-cv-00848-TCK-TLv\ Document 168 Filed in USDC NDIC.. on 08/11/2010 Page 5 of 12
as single individuals. For the tax year 2008, ifpennitted to have filed a joint tax return, our federal benefit would have been $324.00, in the fonn of reduced taxes. DOMA has increased the amount of federal income tax we have paid, and we have been denied the federal benefit of a tax rate available to heterosexual married couples.
6. For these returns, we were ready and would have elected in each tax year the more beneficial filing status, if the federal law had pennitted us to do so. Because of DOMA, we were ineligible, and it would have violated federal tax law to claim the status of "married filingjointly." We are also currently ineligible to file amended returns for tax years 2006 and 2008, for purposes of seeking a refund for overpayment of taxes.
7. Since 2001, we had undergone the extra expense ofpreparing separate returns at the federal and state level while the vast majority of heterosexual married couples in similar circumstances have not been required to do so. It is a stigmatizing aspect of our marriage that we are required to report our taxes to the federal government as single persons when we are legally married under the laws of the State of California. It is as if the federal government is saying our marriage has no value in the eyes of our country.
Social Security Survivors Benefits (Exhibit No.2)
8. The Social Security Administration has advised me that, as of January 15, 2010, over $90,000 in social security taxes have been paid by myself and my employers into my social security account. This amount excludes my 2009 earnings and social security taxes. I have now earned enough "credits" to qualify for my spouse to receive survivors
-3-

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 4 of 13
Case 4:04-cv-00848-TCK-TLV\ Document 168 Filed in USDC NOll on 08/11/2010 Page 6 of 12
benefits of $1,726.00 monthly at her full retirement, in the event of my death. 9. In the event ofmy death, because ofDOMA, my spouse Susan G. Barton is not
eligible for recognition as a surviving spouse. Susan is currently 56 years of age. In were to die, unlike heterosexual couples in identical situations, the "surviving spouse" benefit will not be available to Susan at age 60 (reduced benefits available) because the federal govel1lment recognizes this benefit only for spouses of the opposite sex.
Death Benefits 10. In the event of my death, I have also already eal1led enough "credits" for my spouse to receive a one-time death benefit of$255.00. Because ofDOMA, my spouse Susan G. Barton is denied the right to this federal entitlement at my death.
Retirement Planning 11. Because of DOMA, both my spouse and I are facing our senior years without the full support of our nation's social security laws. The impact of DOMA has severely impacted our ability to plan for retirement. Neither of us can afford to make the decision to quit working in reliance upon an entitlement to the survivors benefits of the other. For heterosexual couples, one spouse may choose to retire, knowing that while this will decrease the retiring person's own social securitybenefits, in the event ofdeath ofthe working spouse, the retired spouse will be given the option of stepping up to survivors benefits flowing from the one who worked longer and eal1led more credits. Here, we cannot utilize the social security laws in our current senior years retirement planning in the manner the federal laws
-4-

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 5 of

13

Case 4:04-cv-00848-TCK-TL\f\ Document 168 Filed in USDC NO/( on 08/11/2010 Page 7 of 12

Aug, 11. 2010 9:32AM

No, 1168 p, 1

allow for other married couples who are senior citizens. The sale reason we are disallo'wed this financial planning is that neither ofus married a man, and consequently under DOMA, no benefits··will flow from. one spouse to the other,
DOMA'S Stigmatizatio1l 12. Our legal status as a married couple is an important aspeot ofwho we are. The federal govemment to which we pay taxes officially refuses to recognize our malTiage, and this stigmatizes us as individuals and as a mfmied couple, Because of DOMA, we are unfairly forced to explain to people that even though we are legally mmTied, our marriage is not recognized by the federal government. FURTHER AFFIANT SAYETH NOT.

NOTARY

LL Subscribed and sworn to before me this

day of August, 2010.

\ " ~ 1 I: f
x . ---:-r---L...-=----r----7"~........:c'-""'--"'-'-=...:??.-;;::.-. .
, .\

Commission No,
7 / My commission e- xp-ir- es~: . _...~ ;.e- :,--- ;L_L- '--- "+-~- ....- ..L:../_

"~ ."

PAUL J. KASNIC
NOTARY PUBLIC ' ,

MONTGOMERY COUNTY \

MARYLAND

.

MY COMMISSION EXPIRES AUG. 21,2011

-5-

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 6 of 13

Kelly Kirby, CPA, PC

Certified Public Accountant a professional corporation 4815 South Harvard, Suite 424 Tulsa, Oklahoma 74135-3068 (918) 747-5466 Voice (918) 747-5499 Facsimile Email KeUy@KKirby.com

August 5, 2010
Sue Barton &Gay Phillips 2201 W Reading PI Tulsa, OK 74127-2238
Dear Sue & Gay:
In accordance with your request, I have prepared income tax returns using the married filing jointly filing status for 2003, 2005, 2006, 2007 and 2008. I have then compared the total tax on federal and Oklahoma returns for each year to the total tax on the corresponding returns which you previously filed using the single filing status. I have appended a table of the result of these comparisons.
Of the 10 returns prepared (five years federal and five years state), in 8 instances you paid more tax on using the single status than if you had been able to file married jointly filed returns, in 1 instance you paid less tax, and in 1 instance the tax was exactly the same. I have appended a table of the result of these comparisons.
As a reminder, we were unable to do a similar comparison for 2004 since you were unable to locate your file copies, and we were unable to do a similar comparison for 2009 since your original returns are currently on extension of time to file and have not yet been prepared.
Please let me know if I can be of further assistance in this matter.

EXHIBIT
i '1 i .J-

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 7 of 13

Year
2003 2004 2005 2006 2007 2008

Federal tax

Sue

Gay

2,420

889

Joint
3]137

Injury
172

583

846 1]393

36

164 1,471 1,423

212

4]588

4]264

324

Oklahoma tax

Sue

Gay

Joint

64

1

43

Injury
. 22

196

317

595

(82)

49

609

619

39

73

15

58

1J14

19 1]692

41

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 8 of 13
Prevent identity theft-protect your Social Security number
Your Social Security Statement
www.sociaisecurity.guv _1lIlIilIiI1IIIIIillll'lll1lllilll!lill!llli1lllllll_ _liIIIIIlIiIi!IIIIIIlillilllll_ _IIIlI!ilII_ _ _1llUl1lililii1lllillilil
Prepared especially for Gay E. Phillips

I III 111111111111111111111111111.1111111111111II1111111111 111111.1
000034795 01 AT 0.357 A1 R0124
GAY E. PHILLIPS 2201 W READING PL TIJLSA OK 74127-2238

January 15, 2010

See insidefor yourpersonal information

..

What's inside.•.
Your Estimated Benefits ...................................................2 Your Earnings Record..................................,....................3 Some Facts About Social Security ...................................4 If You Need More Information.........................................4 To Request This Statement In Spanish ...........................4 (Para Solicitar Una Declaraci6n en Espano!)

W h a t Social Security Means To You _6&li!illiiil!lll!TiiliBiiili!lll!illlllliliil!!IIiII1l!iiIm!lllll!lIlili\!lEl!Bl!iiiiill!_l!iilIIII!IiI1lilliBlell-

This Social Security Statement can help you plan however, the Social Security system is facing

for your financial future. It provides estimates of serious financial problems, and action is needed

your Social Security benefits under current law

soon to make sure the system will be sound when

and updates your latest reported earnings.

today's younger workers are ready for retirement.

Please read this Statement carefully. If you see

In 2016 we will begin paying more in benefits

a mistake, please let us know. That's important

than we collect in taxes. Without changes, by 2037

because your benefits will be based on our record of the Social Security Trust Fund will be exhausted*

your lifetime earnings. We recommend you keep a and there will be enough money to pay only about

copy ofyour Statement with your financial records. 76 cents for each dollar of scheduled benefits. We

Social Security is for people of all ages.•• We're more than a retirement program. Social Security also can provide benefits if you become

need to resolve these issues soon to make sure Social Security continues to provide a foundation ofprotection for future generations.

disabled and help support your family after you die. Social Security on the Net••.

Work to build a secure future.•. Social Security is the largest source of income for most elderly Americans today, but Social Security
was never .intended to beyour only.source of
income when you retire. You also will need other savings, investments, pensions or retirement accounts to make sure you have enough money to live comfortably when you retire.

Visit www.socialsecurity.gov on the Internet to
learn more about Social Security. You can read publications, including When To Start Receiving Retirement Benefits; use our Retirement Estimator to obtain immediate and personalized estimates of future benefits; and when you're ready to apply for benefits, use our improved online application-
It's so easy!

Saving and investing wisely are important not

only for you and your family, but for the entire

country. If you want to learn more about how and

why to save, you should visit www.mymoney.gov, a

federal government website dedicated to teaching all Americans the basics offinancial management.
About Social Security's future.•.

Michael J. Astrue Commissioner

Social Security is a compact between generations. Since 1935, America has kept the promise of security for its workers and their families. Now,

* Tashseusme petsitoimnsafterosmarethbeaSseodcioalnstehce~i-n~tEe~rmX~eHd!iIaIte!!IB!I!I!T~-'
Annual Report to the Congress.

Z.

01lS10R OlAl 3479ST

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 9 of 13

"Retirement

You have earned enough credits to qualify for benefits. At your current earnings rate, ifyou continue

wor.k:.ing until. ..

your full retirement age (66 and 2 months), your payment would be about. . . .. $ 1,539 a month

age 70, your payment would be about. .................................. $ 2,011 a month

If you stop wor.k:.ing and start receiving benefits at...

age 62, your payment would be about ................................... $ 1,148 a month

L[

"Disability

You have earned enough credits to qualify for benefits. If you become disabled right now...

ca:

.q

C"

"Family "Survivors

Your payment would be about ........................................... $ 1,726 a month Ifyou get retirement or disability benefits, your spouse and children also may qualify for benefits. You have earned enough credits for your family to receive survivors benefits. Ifyou die this year, certain members of your family may qualify for the following benefits:

• •

Your child .......................................................... $
~ Your spouse who is caring for your child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $ -----. Your spouse who reaches full retirement age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $
Total family benefits cannot be more than. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $

1,294 amonth 1,294 a month 1,726 a month 3,063 a month

I

Your spouse or minor child may be eligible for a special one-time death benefit of$255.

Medicare

You have earned enough credits to qualify for Medicare at age 65. Even if you do not retire at age 65, be sure to

contact Social Security three months before your 65th birthday to enroll in Medicare.

"'Your estimated benefits are based on current law. Congress has made changes to the law in the past and can do so at any time. The law governing benefit amounts may change because, by 2037, the payroll taxes collected will be enough to pay only about 76 percent of scheduled benefits. We based your benefit estimates on these facts:
Your date of birth (please verify your name on page 1 and this date of birth) ....................... , April 7, 1955 Your estimated taxable earnings per year after 2009 . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . $12,476 Your Social Security number (only the last four digits are shown to help prevent identity theft) ......... XXX-XX-5430

How Your Benefits Are Estimated
To qualify for benefits, you earn "credits" through your work - up to four each year. This year, for example, you earn one credit for each $1,120 ofwages or selfemployment income. When you've earned $4,480, you've earned your four credits for the year. Most people need 40 credits, earned over their working lifetime, to receive retirement benefits. For disability and survivors benefits, young people need fewer credits to be eligible.
We checked your records to see whether you have earned enough credits to qualify for benefits. If you haven't earned enough yet to qualify for any type of benefit, we can't give you a benefit estimate now. If you continue to work, we'll give you an estimate when you do qualify.
What we assumed - If you have enough work credits, we estimated your benefit amounts using your average earnings over your working lifetime. For 2010 and later (up to retirement age), we assumed you'll continue to work and make about the same as you did in 2008 or 2009. We also included credits we assumed you earned last year and this year.
Generally, the older you are and the closer you are to retirement, the more accurate the retirement estimates will be because they are based on a longer work history with fewer uncertainties such as earnings fluctuations and future law changes. We encourage you to use our online Retirement Estimator at www.socialsectlrity.govlestimator to obtain immediate and personalized benefit estimates.
We can't provide your actual benefit amount until you apply for benefits. And that amount may differ from the estimates stated above because:
(1) Your earnings may increase or decrease in the future. (2) After you start receiving benefits, they will be
adjusted for cost-of-living increases.

(3) Your estimated benefits are based on current law. The law governing benefit amounts may change.
(4) Your benefit amount may be affected by military servic~ railroad employment or pensions earned through work on which you did not pay Social Security tax. Visit www.socialsecurity.govlmystatement to learn more.
Windfall Elimination Provision (WEP) - Ifyou receive a pension from employment in which you did not pay Social Security taxes and you also qualify for your own Social Security retirement or disability benefit, your Social Security benefit may be reduced, but not eliminated, by WEP. The amount ofthe reduction, if any, depends on your earnings and number ofyears injobs in which you paid Social Security taxes, and the year you are age 62 or become disabled. To estimate WEP's effect on your Social Security benefit, visit www.socialsecurity.gov/WEP-CHART.In 20 I 0, the maximum monthly reduction is $381. For more information, please see Windfall Elimination Provision (Publication No. 05-10045) at www.socialsecurity.gov/WEP.
Government Pension Offset (GPO) - Ifyou receive a pension based on federal, state or local government work in which you did not pay Social Security taxes and you qualify, now or in the future, for Social Security benefits as a current or former spouse, widow or widower, you are likely to be affected by GPO. If GPO applies, your Social Security benefit will be reduced by an amount equal to two-thirds ofyour government pension, and could be reduced to zero. Even if your benefit is reduced to zero, you will be eligible for Medicare at age 65 on your spouse's record. To learn more, please see Government Pension Offset (Publication No. 05-10007) at www.socialsecurity.govIGPO.

I-

2

[ex]

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 10 of 13
Your Earnings Record.

Years You Worked
1976 1977 1978 1979
1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

Your Taxed Social Security Earnings

Your Taxed Medicare Eamings

$ 866 4,140 9,069 9,783
11,780 14,177 16,259 18,000 20,666 22,880 23,760 25,110 28,591 30,556

$

866

4,140

9,069

9,783

11,780 14,177
16,259 18,000 20,666 22,880 23,760 25,110 28,591 30,556

Years You Worked

Your Taxed Social Secwity Eamings

Your Taxed Medicare Earnings

1990 1991 1992 1993 1994 1995
1996 1997
1998 1999

$ 32,647 $ 32,647

34,154

34,154

34,847

34,847

35,194

35,194

36,229

36,229

37,431

37,431

38,243

38,243

40,162

40,162

44,298

44,298

34,764

34,764

2000 2001
2002 2003 2004 2005 2006 2007 2008 2009

22,333 19,397 15,415 9,707 18,768 17,040 28,613 11,354 12,476 Not yet recorded

22,333 19,397 15,415 9,707 18,768 17,040 28,613 11,354 12,476

Total Social Security and Medicare taxes paid over your working career through the last year reported on the chart above:

Estimated taxes paid for Social Security:

Es~ted taxes paid for Medicare:

You paid:

$45,613

You paid:

$10,705

Your employers paid:

$45,613

Your employers paid:

$10,705

Note: You currently pay 6.2 percent ofyour salary, up to $106,800, in Social Security taxes and 1.45 percent in Medicare taxes

on your entire salary. Your employer also pays 6.2 percent in Social Security taxes and 1.45 percent in Medicare taxes for you.

!fyou are self-employed, you pay the combined employee and employer amount of 12.4 percent in Social Security taxes and 2.9

percent in Medicare taxes on your net earnings.

Help Us Keep Your Earnings Record Accurate

You, your employer and Social Security share responsibility for the accuracy of your earnings record. Since you began w01xing, we recorded your reported earnings under your name and Social Security number. We have updated your record each time your employer (or you, if you're self-employed) reported your earnings.
Remember, it's your earnings, not the amount of taxes you paid or the number of credits you've earned, that determine your benefit amount. When we figure that amount, we base it on your average earnings over your lifetime. Ifour records are wrong, you may not receive all the benefits to which you're entitled.
Review this chart carefully using your own records to make sure our information is correct and that we've recorded each year you worked. You're the only person who can look at the earnings chart and know whether it is complete and correct.
Some or all ofyour earnings from last year may not be shown on your Statement. It could be that we still

were processing last year's earnings reports when your Statement was prepared. Your complete earnings for last year will be shmvn on next year's Statement. Note: Ifyou worked for more than one employer during any year, or if you had both earnings and self-employment income, we combined your earnings for the year.
There's a limit on the amount of earnings on which you pay Social Security taxes each year. The limit increases yearly. Earnings above the limit will not appear on your earnings chart as Social Security earnings. (For Medicare taxes, the maximum earnings amount began rising in 1991. Since 1994, all of your earnings are taxed for Medicare.)
Call us right away at 1-800-772-1213 (7 a.m.-7 p.m. your local time) ifany earnings for years before last year are shown incorrectly. Please have your W-2 or tax return for those years available. (Ifyou live outside the U.S., follow the directions at the bottom ofpage 4.)

3

011510R02A134795T

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 11 of 13

Some Facts About Social Security _ _ _ _ _ _ _ _ _ _ _ _ _ __

About Social Security and Medicare•••
Social Security pays retirement, disability, family and survivors benefits. Medicare, a separate program run by the Centers for Medicare & Medicaid Services, helps pay for inpatient hospital care, nursing care, doctors' fees, drugs and other medical services and supplies to people age 65 and older, as well as to people who have been receiving Social Security disability benefits for two years or more. Medicare does not pay for long-term care, so you may want to consider options for private insurance. Your Social Security covered earnings qualify you for both programs. For more infonnation about Medicare, visit www.medicare.gov or call 1-800-633-4227 (TTY I-S77-486-2048 if you are deaf or hard of hearing).
Retirement - If you were born before 1938, your full retirement age is 65. Because of a 1983 change in the law, the full retirement age will increase gradually to 67 for people born in 1960 and later.
Some people retire before their full retirement age. You can retire as early as 62 and take benefits at a reduced rate. If you work after your full retirement age, you can receive higher benefits because of additional earnings and credits for delayed retirement.
Disability - If you become disabled before full retirement age, you can receive disability benefits after six months if you have: - enough credits from earnings (depending on your age,
you must have earned six to 20 ofyour credits in the three to 10 years before you became disabled); and - a physical or mental impainnent that's expected to prevent you from doing "substantial" work for a year or more or result in death. Ifyou are filing for disability benefits, please let us know if you are on active military duty or are a recently discharged veteran, so that we can handle your claim more quickly.
Family - If you're eligible for disability or retirement benefits, your current or divorced spouse, minor children or adult children disabled before age 22 also may receive benefits. Each may qualify for up to about 50 percent of your benefit amount.
Survivors - When you die, certain members
~ ofyour family may be eligible for benefits: - your spouse age 60 or older (SO or older if disabled, or any age if caring for your children younger than age 16); and - your children if unmarried and younger than age 18, still in school and younger than 19 years old, or adult children disabled before age 22. If you are divorced, your ex-spouse could be eligible for a widow's or widower's benefit on your record when you die.

Extra Help with Medicare - If you know someone who

is on Medicare and has limited income and resources, extra

help is available for prescription drug costs. The extra help

can help pay the monthly premiums, annual deductibles and I

prescription co-payments. To learn more or to apply, visit www.socilllsecurity.gov or call1-S00-772-1213 (TTY

•

1-800-325-0778).

I

Receive benefits and still work•••

You can work and still get retirement or survivors benefits. Ifyou're younger than your full retirement age, there are limits on how much you can earn without affecting your benefit amount. When you apply for benefits, we'll tell you what the limits are and whether work would affect your monthly benefits. When you reach full retirement age, the earnings limits no longer apply.

Before you decide to retire•••
Carefully consider the advantages and disadvantages of early retirement. If you choose to receive benefits before you reach full retirement age, your monthly benefits will be reduced.
To help you decide the best time to retire, we offer a free publication, When To Start ReceivingRetirement Benefits (Publication No. 05-10147), that identifies the many factors you should consider before applying. Most people can receive an estimate of their benefit based on their actual Social Security earnings record by going to Www.sociaisecurity.govlestimator. You also can calculate future retirement benefits by using the Social Security Benefit Calculators at www.socialsecurity.gov.
Other helpful free publications include: - Retirement Benefits (No. 05-10035) - Understanding The Benefits (No. 05-10024) - Your Retirement Benefit: How It Is Figured
(No. 05-10070) - Windfall Elimination Provision (No. 05-10045) - Government Pension Offset (No. 05-10007) - Identity Theft And Your Social Security Number
(No. 05-10064) We also have other leaflets and fact sheets with infonnation about specific topics such as military service, self-employment or foreign employment. You can request Social Security publications at our website, www.socilllsecurity.gov, or by calling us at 1-800-772-1213. Our website has a list of frequently asked questions that may answer questions you have. We have easy-to-use online applications for benefits that can save you a telephone call or a trip to a field office. You may also qualify for government benefits outside of Social Security. For more information on these benefits, visit www.govbenefits.gov.

ITyou need more information- VIsit www.socialsecurity.gov/mystatementon the Internet, contact any Social Security office, call 1-800·772-l213 or write to Social Security Administration, Office of Earnings Operations, P.O. Box 33026, Baltimore, MD 21290·3026. Ifyou're deaf or hard of hearing, call TIT 1-800-325-0778. Ifyou have questions about your personal information, you must provide your complete Social Security number. Ifyour address is incorrect on this Statement. ask the Internal Revenue Service to send you a Form 8822. We don't keep your address if you're not receiving Social Security benefits.

I

Form SSA.7005-SM-SI(OllJO)

Para solicitar una Declaracion en espanol, Dame aI 1-800-772-1213
4

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 12 of

13

Social Security Online: Widows, Widowers & Other Survivors: Qualify and Apply

Page 2 of4

Definition of survivors benefits

When a person who has worked and paid Social Security taxes dies, certain members of the family may be eligible for survivors benefits.
Up to ten years of work is needed to be eligible for benefits, depending on the person's age at the time of death.

If you apply, please be ready to supply the information we need to approve your application for these benefits:

Who is eligible for survivors benefits

Social Security survivors benefits can be paid to:
• A widow or widower -- full benefits at full retirement age, or reduced benefits as early as age 60
• A disabled widow or widower -- as early as age 50
• A widow or widower at any age if he or she takes care of the deceased's child who is under age 16 or disabled, and receiving Social Security benefits
• Unmarried children under 18, or up to age 19 if they are attending high school full time. Under certain circumstances, benefits can be paid to stepchildren, grandchildren, or adopted children.
• Children at any age who were disabled before age 22 and remain disabled.
• Dependent parents age 62 or older

• Lump Sum Death Payment
• Widow's. Widower's. or Surviving Divorced Spouse
• Child's
• Mother's or Father's
• Parent's

Note: If you are divorced, you may still qualify for survivors benefits.

Our Benefit Calculators can help you figure how much your benefits will be.

How work affects survivors benefits

You can receive Social Security survivors benefits and work at the same time. However, depending on your age, your benefits could be reduced if you earn more than certain amounts.

For more information, we recommend our leaflet, How Work Affects Your Benefits, publication number 05-10069.

http://www.ssa.gov/ww&os2.htm

8/10/2010

Case 4:04-cv-00848-TCK-TLW Document 197-2 Filed in USDC ND/OK on 09/28/11 Page 13 of

13

Publication 501 (2009), Exemptions, Standard Deduction, and Filing Information

Page 4 of31

5. You qualify for the additional child tax credil. See the instructions in your tax forms package for more information on this credit.
6. You qualify for the refundable Amencan opportunity education credit. See Form 8863, Education Credils.
7. You qualify for the health coverage tax credit. For information about this credil, see Form BBBS, Health Coverage Tax Credit.
8. You qualify for the refundable credit for pnor year minimum tax. See Form BB01, Credit for Prior Year Minimum Tax -Individuals, Estates, and Trusts.
9. You qualify for the first·lime homebuyer credit. See Form 5405, First·Time Homebuyer Credit. Filing Status
You must determine your filing status before you can determine your filing requirements. standard deduction (discussed later). and correct tax. You figure your correcl tax by using the section of the Tax Computation Worksheet or the column in the Tax Table that applies 10 your filing status.
You also use your filing status in determining whether you are eligible to claim certain other dedUctions and credlls.
There are five filing statuses:
• Single,
• Married Filing Jointly.
• Married Filing Separately,
• Head of Household, and
• Qualifying Widow(er) With Dependent Child.
If more than one filing status applies to you, choose the one that will give you the lowesllax. Marital Status
In general, your filing slalus depends on whelher you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.
Unmarried persons. You are considered unmarried for the whole year If, on Ihe last day of your tax year, you are unmarried or legally separaled trom your spouse under a divorce or separate maintenance decree.
State law governs whether you are married or legally separated under a divorce or separate maintenance decree. Divorced persons, If you are divorced under a final decree by the lasl day of Ihe year, you are considered unmarried for the whole year. Divorce and remarriage, If you obtain a divorce in one year for the sale purpose of filing tax returns as unmarried individuals, and at the time of divorce you inlended 10 and did remarry each ather in Ihe next tax year, you and your spouse must file as married individuals.
Annul/ed marriages, If you obtain a court decree of annUlment, whiCh holds that no valid marriage ever exisled, you are considered unmarried even if you filed jOint returns for earlier years. You must file amended returns (Form 1040X) claiming single or head of household status for alila. years affecled by Ihe annulment thai are not closed by Ihe statule of limitalions for filing a lax relum. The statule of limitations generally does nat end unUi 3 years after your onginal relurn was filed.
Head of household or qualifying widow(erj with dependent chl/d, If you are considered unmarried, you may be able to file as a head of household or as a qualifying widow(er) with a dependenl Child. See Head of Household and Qualifying Widow!e,.1 With DeReMenl Child to see if you qualify.
Married persons. If you are conSidered married for the whole year. you and your spouse can file a joint return, or you can file separate returns.
Considered married. You are considered married for the whole year if on Ihe lasl day of your tax year you and your spouse meet anyone of Ihe following tests.
1. You are married and living together as husband and wife.
2. You are living together In a common law marnage that is recognized in Ihe state where you now live or in the stale where the common law marriage began.
3. You are married and living apart, but nollegally separated under a decree of divorce or separate maintenance.
4. You are separated under an interloculory (not final) decree of divorce. For purposes of filing a joint retum, you are not considered divorced.
Spouse died during the year. If your spouse died during the year. you are considered married for the whole year for filing status purposes.
If you did nol remarry before.lhe end of Ihe tax year, you can file a joinl return for yourself and your deceased spouse. For the next 2 years, you may be entitled to the special benefits described later under Qualifying Widow(erJ Vlith Oeoefldent Child.
If you remarried before Ihe end of the tax year, you can file a joint return with your new spouse. Your deceased spouse's filing status is married filing separately for that year.
Married persons living apart. If you live apart from your spouse and meel certain tests, you may be considered unmarried. If this applies 10 you, you can file as head of household even Ihough you are not divorced or legally separaled. If you qualify to file as head of household instead of as married filing separately. your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit. See Head of Household, laler. Single
http://www.irs,gov/publications/p501/ar02,html

EXHIBIT
J
8/912010

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 1 of 13
Case 4:04-cv-00848-TCK-TLv\' Document 168 Filed in USDC ND/( .:m 08/11/2010 Page 8 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP, et ai., Plaintiffs,
v. UNITED STATES OF AMERICA, et a!.,
Defendants.

)

)

)

)

)

No. 04-CV-848-TCK-TLW

)

)

)

)

AFFIDAVIT OF SUSAN G. BARTON SUBMITTED PURSUANT TO COURT ORDER OF AUGUST 2, 2010

STATE OF OKLAHOMA

)

) ss.

COUNTY OF OSAGE

)

Susan G. Barton, being duly sworn, hereby deposes and states as follows:

1. I was born May 20, 1954, and am 56 years of age.

2. I am one of the plaintiffs in this lawsuit. This affidavit is submitted pursuant

to the Court's Order of August 2, 2010.

3. I have read the affidavit of Gay E. Phillips and affirm the statements she has

made on our behalf. Gay and I have been in a continuous committed relationship since

November 1, 1984. We were united in a civil union conducted by Justice Justine, in Vermont

on August 4, 2001; then we were married in Vancouver, British Columbia, Canada, on May

16, 2005; and then we were issued a marriage license by the State of California and married

under California law on November 1,2008.

EXHIBIT
I 1

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 2 of 13
Case 4:04-cv-00848-TCK-TLv\ Document 168 Filed in USDC NO/( .)n 08/11/2010 Page 9 of 12
Loss ofFederal Tax Benefits 4. As reflected in the affidavit of my spouse, Gay E. Phillips, between the years of our civil union (2001) and through 2008, Gay and I have been required to file single individual federal and state income tax returns. The IRS regulations, based on the Defense of Maniage Act (DOMA) make us ineligible for filing federal income taxes jointly with a same sex spouse. IRS Publication 501 (2009) instructs that "for federal tax purposes, a maniage means only a legal union between a man and a woman as husband and wife." (Exhibit No.3 to Phillips Affidavit). 5. In conjunction with the preparation of these affidavits, Gay and I engaged a certified public accountant to compare the federal maniage-based tax benefit we would have received if we had been able to use the status of "married filing jointly." Due to time constraints, the accountant compared only five years (tax years 2003, 2005, 2006, 2007 and 2008) and did not compare earlier years. The filing dates for our 2009 returns have been extended and those returns have not yet been filed. 1 As reflected on Exhibit 1 to Gay's
lWe were unable to locate and obtain copies of our 2004 returns. It is our current understanding that if an individual has filed a separate return for a year in which a joint retum could have been made with a spouse, the couple may only file a joint return within three years after the filing of the original return. 26 C.P.R. § 301.6402-2(a)(1). IfDOMA is ultimately found unconstitutional, we would seek to file amended returns to the extent permitted. Even then, we would not be able to recoup all losses suffered. Under the tax scheme utilized by the federal govemment, a manied individual who files jointly with a spouse is generallysubjectto a lower tax than an unmarried individual. 26 U.S.C. § lea), (b), & (c). Gill v. Office ofPersonnel Management, No. 09-10309-JLT, 2010 WL 269565, at *5 (D. Mass. July 8, 2010).
-2-

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 3 of 13
Case 4:04-cv-00848-TCK-TL'v"v Document 168 Filed in USDC ND/C In 08/11/2010 Page 10 of 12
Affidavit, if Gay and I had been eligible for the same benefit available to similarly-situated heterosexual couples (i.e., the filing of a joint return with one's spouse), for the tax years examined, we would have paid $744.00 less in federal taxes than we did by being forced to file separately as single individuals. For the tax year 2008, ifperrnitted to have filed ajoint tax return, our federal benefit would have been $324.00, in the fOlm of reduced taxes. DOMA has increased the amount of federal income tax we have paid, and we have been denied the federal benefit of a tax rate available to heterosexual married couples.
6. For all of these returns, we were ready and would have elected the more beneficial filing status, if the federal law had pennitted us to do so, but we were ineligible because of DOMA, and we would have violated federal tax law by claiming the status of "married filing jointly." We are also currently ineligible because ofDOMA to file amended returns for the years 2006 and 2008 for the purpose of seeking refunds for overpayment of taxes.
7. Since 2001, we had undergone the extra expense ofpreparing separate returns at the federal and state level while the vast majority of persons similarly situated have not been required to do so. It is a dishonest representation required by DOMA that we are required to repOli our taxes to the federal government as single persons when we are married. It is as if the federal government is saying our marriage has no value in the eyes of our country. It is a stigmatizing aspect of our maniage.
.,3-

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 4 of 13
Case 4:04-cv-00848-TCK-TLVv Document 168 Filed in USDC NO/C. In 08/11/2010 Page 11 of 12
Social Security Survivors Benefits (Exhibit No.2 to Phillips Affidavit) 8. Through my employment taxes over the applicable years, I have now earned enough "credits" to qualify for my spouse to receive reduced survivors benefits monthly at age 60 or unreduced at her full retirement age, in the event of my death. 9. Because ofDOMA, my spouse Gay E. Phillips is not eligible for recognition as a surviving spouse, in the event of my death. Gay is currently 55 years of age. In were to die, unlike heterosexual couples in identical situations, my surviving spouse benefits would be removed because the federal government recognizes only spouses of the opposite sex.
Death Benefits 10. In the event ofmy death, I have already earned enough "credits" for my spouse to receive a one-time death benefit of $255.00. Because of DOMA, my spouse Gay E. Phillips is denied the light to this federal entitlement at my death.
Retirement Planning 11. My spouse Gay and I are facing our senior years without the full support of our nation's social security laws. The impact ofDOMA has severely impacted our ability to plan for retirement. Neither ofus can afford to make the decision to quit working in reliance upon an entitlement to the survivors benefits of the other. For heterosexual couples, one spouse can choose to retire, knowing that this will decrease the retiring person's own social security benefits but, in the event of death of the spouse continuing to work, the retired spouse will
-4-

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 5 of 13
Case 4:04-cv-00848-TCK-TLW Document 168 Filed in USDC ND/C In 08/11/2010 Page 12 of 12

8885555555

09:06:15a.m. 08-11-2010

1 /1

be given the option of stepping up to survivors benefits flowing from the one who worked

longer and earned more credits. Here, we do not have the financial security provided to other

married couples, the sale reason being that neither of us married a man, and consequently

under DOMA, no benefits will flow from one spouse to the other. DOMA has limited our

choices.

DOMA 'S Stigmatization

12. I agree and support my spouse Gay E. Phillips's statements that our legal status

as a married couple is an important aspect ofwho we are. The federal government to which

we pay taxes officially refuses to recognize our marriage, and this stigmatizes us as

individuals and as a married couple. Because of DOMA, we are unfairly forced to explain

to people that even though we are legally married, our marriage is not recognized by the

federal government.

FURTHER AFFIANT SAOY T E. ~. .
,.~
.
--SUSAN G. BARTON

NOTARY

Subscribed and sworn to before me this ~ day of August, 2010.
tbJ-~ 3.-~ '«-'1<-')"

NOTARY PUBLIC

.

~

TONY M. 8ROWN. PUBllC OlSTRICT OF COLUMBIA

"'I Commission Expires Aprll·14, 2015

Mycommtsslon

NI>tat\t explres

~Pu\W(c.

D.IC~.

11..0/5

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 6 of 13
Case 4:04-cv-00848-TCK-TLW Document 168-2 Filed in USDC NO. ( on 08/11/2010 Page 1 of 2

Kelly Kirby, CPA, PC

Certified Public Accountant a professional corporation 4815 South Harvard. Suite 424 Tulsa, Oklahoma 74135-3068 (918) 747-5466 Voice (918) 747-5499 Facsimile Email Keliy@KKirby.com

August5,2010
Sue Barton &Gay Phillips 2201 W Reading PI Tulsa, OK 74127-2238
Dear Sue & Gay:
In accordance with your request, I have prepared income tax returns using the married filing jointly filing status for 2003, 2005, 2006, 2007 and 2008. I have then compared the total tax on federal and Oklahoma returns for each year to the total tax on the corresponding returns which you previously filed using the single filing status. I have appended a table of the result of these comparisons.
Of the 10 returns prepared (five years federal and five years state), in 8 instances you paid more tax on using the single status than if you had been able to file married jointly filed returns, in 1 instance you paid less tax, and in 1 instance the tax was exactly the same. I have appended a table of the result of these comparisons.
As a reminder, we were unable to do a similar comparison for 2004 since you were unable to locate your file copies, and we were unable to do a similar comparison for 2009 since your original returns are currently on extension of time to file and have not yet been prepared.
Please let me know if I can be of further assistance in this matter.

EXHIBIT
/ ~~

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 7 of 13
Case 4:04-cv-00848-TCK-TLW Document 168-2 Filed in USDC NO, Zan 08/11/2010 Page 2 of 2

Year
2003 2004 2005 2006 2007 2008

Federal tax

Sue

Gay

2,420

889

Joint
3}137

Injury
172

583

846 1}393

36

164 1,471 1,423

212

4}588

4}264

324

Oklahoma tax

Sue

Gay

Joint

64

1

43

Injury
. 22

196

317

595

(82)

49

609

619

39

73

15

58

1}714

19 1}692

41

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 8 of

13

.< Case 4:04-cv-00848-TCK-TLV'v Document 168-3 Filed in USDC ND. on 08/11/2010 Page 1 of 5

~ '-~~-.e,

rn:ver" lUennr:y r:nerr:-prorecr your :;oclal Security number

75 ~ ~fJ,YsE~A<RSs '~

Your Social Security Statement

IliM@i@Wil.'

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fi#':-'MW'@i\t4! Wry"

/ www.socialsecurity.gov

8eK4t~ IfMYiea/

Prepared especially for Gay E. Phillips

111 11 1.1 •• 11 11 I1.11111,1,.1'111'11111'1111'111111111111111 1.11 III
m000034795 01 AT 0.357 Ai R0124 GAYE.PIllLLIPS ~ 2201 WREADING PL
TULSA OK 74127-2238

January 15, 2010

See insidefor yourpersonal information

~

What's inside...
Your Estimated Benefits ....... ___ .............___.......... ___ .... _____ ...2
Your Earnille-s Record................................................ __ .....3
Some Facts About Social Security ...................................4 If You Need More Informatioll.........................................4 To Request This Statement In Spanish ...........................4 (para Solicitar Una Declaracion ell Espano!)

This Social Security Statement can help you plan however, the Social Security system is facing

for your financial future. It provides estimates of serious financial problems, and action is needed

your Social Security benefits under current law

soon to make sure the system will be sound when

and updates your latest reported earnings.

today's younger workers are ready for retirement.

Please read this Statement carefully. Ifyou see

In 2016 we will beginpaying more in benefits

a mistake, please let us know. That's important

than we collect in taxes. Without changes, by 2037

because your benefits will be based on our record of the Social Security Trust Fund will be exhausted*

your lifetime earnings. We recommend you keep a and there will be enough money to pay only about

copy of your Statement with your financial records. 76 cents for each dollar of scheduled benefits. We

Social Security is for people of all ages... We're more than a retirement program. Social Security also can provide benefits ifyou become

need to resolve these issues soon to make sure Social Security continues to provide a foundation of protection for future generations.

disabled and help support your family after you die. Social Security on the Net•..

Work to build a secure future... Social Security is the largest source of income for most elderly Americans today, but Social Security was never.intendedto be your only.source of income when you retire. You also will need other savings, investments, pensions or retirement accounts to make sure you have enough money to live comfortably when you retire.

Visit www.socialsecurity.gov on the Internet to learn more about Social Security. You can read publications, including When To Start Receiving Retirement Benefits; use our Retirement Estirp.ator to obtain immediate and personalized estimates of future benefits; and when you're ready to apply for benefits, use our improved online application-
It's so easy!

Saving and investing wisely are important not

only for you and your family, but for the entire

country. Ifyou want to learn more about how and

why to save, you should visit www.mymoney.gov, a

federal government website dedicated to teaching all Americans the basics offinancial management.
About Social Security's future...

Michael J. Astrue Commissioner

Social Security is a compact between generations. Since 1935, America has kept the promise of security for its workers and their families. Now,

* These estimates are based on the intermediate

assumptions frOID the Social Sec Annual Report to the Congress.

EXHIBIT
~

01l51OR02A13479sT

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 9 of 13
Case 4:04-cv-00848-TCK-TLW Document 168-3 Filed in USOC NO, <on 08/11/2010 Page 2 of 5 Your Estimated Benefits JI!'.i!.I?'IiIiIII!!III~~~~asa.il!lillilliilIIIIIIiI~llIIII!I~Ii!II!DIII'JIiIIiIiIlliliEiillllli~~~.9'

""Retirement
""Disability

You have earned enough credits to qualify for benefits. At your current earnings rate, ifyou continue working until...
your full retirement age (66 and 2 months), your payment would be about ..... $ 1,539 a month age 70, your payment would be about ................................... $ 2,011 a month If you stop working and start receiving benefits at. .. age 62, your payment would be about ................................... $ 1,148 a month You have earned enough credits to qualify for benefits. If you become disabled right now...

Your payment would be about ........................................... $ 1,726 a month

""Family

If you get retirement or disability benefits, your spouse and children also may qualify for benefits.

"Survivors

You have earned enough credits for your family to receive survivors benefits. If you die this year,

certain members of your family may qualify for the follOWing benefits:

Your child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $ 1,294 a month

~ Your spouse who is cariugforyourchild .................................. $ - - - - Your spouse who reaches full retirement age. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $ Total family benefits cannot be more than . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $

1,294 amonth 1,726 a month 3,063 a month

Your spouse or minor child may be eligible for a special one-time death benefit of$255.

Medicare

You have earned enough credits to qualify for Medicare at age 65. Even ifyou do not retire at age 65, be sure to

contact Social Security three months before your 65th birthday to enroll in Medicare.

*Your estimated benefits are based on current law. Congress has made changes to the law in the past and can do so at any time. The law governing benefit amounts may change because, by 2037, the payroll taxes collected will be enough to pay only about 76
percent of scheduled benefits.
We based your benefit estimates on these facts:
Your date of birth (please verify your name on page 1 and this date of birth) ........................ April 7, 1955 Your estimated taxable earnings per year after 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12,476 Your Social Security number (only the last four digits are shown to help prevent identity theft) ......... XXX-XX-5430

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n

How Your Benefits Are Estimated

To qualify for benefits, you earn "credits" through your work - up to four each year. This year, for example, you earn one credit for each $1,120 of wages or selfemployment income. When you've earned $4,480, you've earned your four credits fOr the year. Most people need 40 credits, earned over their working lifetime, to receive retirement benefits. For disability and survivors benefits, young people need fewer credits to be eligible.
We checked your records to see whether you have earned enough credits to qualify for benefits. If you haven't earned enough yet to qualify for any type of benefit, we can't give you a benefit estimate now. Ifyou continue to work, we'll give you an estimate when you do qualify.

What we assumed - Ifyou have enough work credits,

we estimated your benefit amounts using your average

earnings over your working lifetime. For 2010 and later

(up to retirement age), we assumed you'll continue to work

and malce about the same as you did ill 2008 or 2009. We

also included credits we assumed you earned last year

and this year.

Generally, the older you are and .the closer you are to

retirement, the more accurate the retirement estimates

will be because they are based on a longer work history

with fewer uncertainties such as earnings fluctuations and

future law changes. We encourage you to use our online

Retirement Estimator at WlvJV.socialsecllTity.gov/estimator

to obtain immediate and personalized benefit estimates.

We can't provide your actual benefit amount until

you apply for benefits. And that amount may differ

from the estimates stated above because:

(1) Your earnings may increase or decrease in the future.

(2) After you start receiving benefits, they will be

adjusted for cost-of-living increases.

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(3) Your estimated benefits are based on current law. The law governing benefit amounts may change.
(4) Your benefit amount may be affected by military service, railroad employment or pensions earned through work on which you did not pay Social Security tax. Visit JVww.socialsecllrity.gop/ntystatement to learn more.
Windfall Elimination Provision (WEP) - Ifyou receive a pension from employment in which you did not pay Social Security taxes and you also qualify for your own Social Security retirement or disability benefit, your Social Security benefit may be reduced, but not eliminated, by WEP. The amount ofthe reduction, if any, depends on your earnings and number ofyears in jobs in which you paid Social Security taxes, and the year you are age 62 or become disabled To estimate WEP's effect on your Social Security benefit, visit www.socialsecurity.govIWEP-CHART.ln20IO. the maximum monthly reduction is $381. For more information, please see Windfall Elimination Provision (Publication No. 05-10045) at www.socialsecllrity.govIWEP.
Government Pension Offset (GPO) - Ifyou receive a pension based on federal, state or local government work in which you did not pay Social Security taxes and you qualify, now or in the future, for Social Security benefits as a current or former spouse, widow or widower, you are likely to be affected by GPO. If GPO applies, your Social Security benefit will be reduced by an amount equal to two-thirds ofyour government pension, and could be reduced to zero. Even if your benefit is reduced to zero, you will be eligible for Medicare at age 65 on your spouse's record. To leam more, please see Government Pension Offset (Publication No. 05-10007) at www.socialsecllrity.govIGPO.

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Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 10 of 13
Case 4:04-cv-00848-TCK-TLV'v Document 168-3 Filed in USDC ND. ,( on 08/11/2010 Page 3 of 5
~urEMnin~Record~¥~~mw~#~¥g-~*~Ee_~§~~~~AA~~~~~Ma~wa~m·~~!ME$e~~~~.§~•.~.. !~.¥

Years You Worked
1976 1977 1978 1979
1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

Your Taxed Social Security Eamings

Your Taxed Medicare Earnings

$ 866 4,140 9,069 9,783
11,780 l4.177 16,259 18,000 20,666 22,880 23.760 25,110 28,591 30,556

$

866

4,140

9,069

9,783

11,780 14,177 16,259 18,000 20,666
22,880 23,760
25,110 28,591 30,556

Years You Worked

Your Taxed Social Security Earnings

Your Taxed Medicare Earnings

1990
1991 1992 1993 1994 1995 1996
1997 1998 1999

$ 32,647 $ 34,154 34,847 35,194
36,229 37,431
38,243 40,162 44,298 34,764

2000 2001 2002 2003
2004 2005 2006 2007 2008 2009

22.333 19,397 15,415 9,707 18,768 17,040 28,613 11,354 12,476 Not yet recorded

32,647 34,154 34,847 35,194 36,229 37,431 38,243 40,162 44,298 34,764
22,333 19,397 15,415 9,707 18,768 17,040 28,613 11,354 12,476

&

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Total Social Security and Medicare taxes paid over your working career through the last year reported on the chart above:

Estimated taxes paid for Social Security:

Estimated taxes paid for Medicare:

You paid:

$45,613

You paid:

$10,705

Your employers paid:

$45,613

Your employers paid:

$10,705

Note: You currently pay 6.2 percent ofyour salary, up to $106,800, in Social Security taxes and 1.45 percent in Medicare taxes

on your entire. salary. Your employer also pays 6.2 percent in Social Security taxes and 1.45 percent in Medicare taxes for you.

If you are self-employed, you pay the combined employee and employer amount of 12.4 percent in Social Security taxes and 2.9

percent in Medicare taxes on your net earnings.

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Help Us Keep Your Earnings Record Accurate

You, your employer and Social Security share responsibility for the accuracy of your earnings record. Since you began walking, we recorded your reported earnings under your name and Social Security number. We have updated your record each time your employer (or you, if you're self-employed) reported your earnings.
Remember, ifs your earnings, not the amount of taxes you paid or the number of credits you've earned, that determine your benefit amount. When we figure that amount, we base it on your average earnings over your lifetime. If our records are wrong, you may not receive all the benefits to which you're entitled.
Review this chart carefully using your own records to make sure our information is correct and that we've recorded each year you worked. You're the only person who can look at the earnings chart and know whether it is complete and correct
Some or all ofyour earnings from last year may not be shown on your Statement. It could be that we still

were processing last year's earnings reports when your Statement was prepared. Your complete earnings for last year will be shown on ne:l>..'t year's Statement. Note: Ifyou worked for more than one employer during any year, or ifyou had both earnings and self-employment income, we combined your earnings for the year.
There's a limit on the amount of earnings on which you pay Social Security taxes each year. The Iimit.increases yearly. Earnings above the limit will not appear on your earnings chart as Social Security earnings. (For Medicare taxes, the maximum earnings amount began rising in 1991. Since 1994, all of your earnings are taxed for Medicare.)
Call us right away at 1-800-772-1213 (7 a.m.-7 p.m. your local time) ifany earnings for years before last year are shown incorrectly. Please have your W-2 or tax return for those years available. (!fyou live outside the U.S., follow the
directions at the bottom ofpage 4.)

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Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 11 of 13
Case 4:04-cv-00848-TCK-TLW Document 168-3 Filed in USDC NO. (on 08/11/2010 Page 4 of 5

Some Facts About Social Security mll!d~;g¥i¥far-EkiWi%i!fWlI':i.iilEm¥mtg.'mll"iiii\4i>m~",mg=!'ll!mlil!~DWdBd>l$I'm'fi§~*iNWl.l:ll!llfti!l!i@!i!i/,Wl!liiW!lll/l'.ll!mk¥_iiiIl!

About Social Security and Medicare..•
Social Security pays retirement, disability, family and survivors benefits. Medicare, a separate program run by the ~ent~rs for M~dicare & Medicaid Services, helps pay for mpatIent hospItal care, nursing care, doctors' fees, drugs and other medical services and supplies to people age 65 and older, as well as to people who have been receiving Social Security disability benefits for two years or more. Medicare does not pay for long-term care, so you may want to consider options for private insurance. Your Social Security covered earnings qualify you for both programs. For more information about Medicare, visit www.medicare.gov or call1-800-633-4227 (TTY 1-877-486-2048 if you are deaf or hard of hearing).
Retirement - If you were born before 1938, your full retirement age is 65. Because of a 1983 change in the law, the full retirement age will increase gradually to 67 for people born in 1960 and later.
Some people retire before their full retirement age. You can retire as early as 62 and take benefits at a reduced rate. If you work after your full retirement age, you can receive higher benefits because of additional earnings and credits for delayed retirement.
Disability - If you become disabled before full retirement age, you can receive disability benefits after six months ifyou have: - enough credits from earnings (depending on your age,
you must have earned six to 20 of your credits in the three to 10 years before you became disabled); and - a physical or mental impairment that's expected to prevent you from doing "substantial" work for a year or more or result in death. Ifyou are filing for disability benefits, please let us lmow if you are on active militaty duty or are a recently discharged veteran, so that we can handle your claim more quickly.
Family - If you're eligible for disability or retirement benefits, your current or divorced spouse, minor children or adult children disabled before age 22 also may receive benefits. Each may qualify for up to about 50 percent of your benefit amount.
Survivors - When you die, certain members ofyour family may be eligible for benefits: - your spouse age 60 or older (50 or older if disabled,
or any age if caring for your children younger than age 16); and - your children if unmarried and younger than age 18, still in school and younger than 19 years old, or adult children disabled before age 22. If you are divorced, your ex-spouse could be eligible for a widow's or widower's benefit on your record when you die.

Extra Help with Medicare - If you know someone who is on Medicare and has limited income and resources, extra help is available for prescription drug costs. The extra help can help pay the monthly premiums, annual deductibles and prescription co-payments. To learn more or to apply, visit www.socialsecurity.govorcalll-800-772-1213 (TTY 1-800-325-0778).
Receive benefits and still work..•
You can work and still get retirement or survivors benefits. Ifyou're younger than your full retirement age, there are limits on how much you can earn without affecting your benefit amount. When you apply for benefits, we'll tell you what the limits are and whether work would affect your monthly benefits. When you reach full retirement age, the earnings limits no longer apply.
Before you decide to retire...
Carefully consider the advantages and disadvantages of early retirement. If you choose to receive benefits before you reach full retirement age, your monthly benefits will be reduced.
To help you decide the best time to retire, we 'offer a free publication, When To Start Receiving Retirement Benefits (Publication No. 05-10147), that identifies the many factors you should consider before applying. Most people can receive an estimate of their benefit based on their actual Social Security earnings record by going to www.socialsecurity.gov/estimator. You also can calculate future retirement benefits by using the Social Security Benefit Calculators at www.socialsecurity.gov.
Other helpful free publications inClude: - Retirement Benefits (No. 05-10035) - Understanding The Benefits (No. 05-10024) - Your Retirement Benefit: How It Is Figured
(No. 05-10070) - Windfall Elimination Provision (No. 05-10045) - Government Pension Offiet(No. 05-10007) - Identity Theft And Your Social Security Number
(No. 05-10064) We also have other leaflets and fact sheets with information about specific topics such as military service, self-employment or foreign employment. You can request Social Security pUblications at our website, www.socialsecurity.gov, or by calling us at 1-800-772-1213. Our website has a list of frequently asked questions that may answer questions you have. We have easy-to-use online applications for benefits that can save you a telephone call or a trip to a field office. You may also qualify for government benefits outside of Social Security. For more information on these benefits, visit www.govbenefits.gov.

k§#Mk

Ifyou need more information- Visit IfTwlfT.socia/security.gov/mystatement on the Internet, contact any Social Security office, call 1-800.772-1213 or write to Social Security Administration, Office of Earnings Operations, P.O. Box33026, Baltimore, MD 21290-3026. Ifyou're deaf or hard of hearing, call TTY 1-800-325-0778. Ifyou have questions about your personal information, you must provide your complete Social Security number. Ifyour address is incorrect on this Statement. ask the Internal Revenue Service to send you a Form 8822. We don't keep your address if you're not receiving Social Security benefits.

SA FOIJII SSA.7(}{)!H>M-SI(OlilO)

Para solicitar una Declaracion en espaiiol, llame aI1-800·772-1213

Me

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4

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 12 of

13

Case 4:04-cv-00848-TCK-TLW Jocument 168-3 0U\,;HU 0C\,;UlllY Vlllll1C; YY1UUW~, YYIUUWI:Jl1i 01.- VU1I:J1

Filed in USDC NO, ~ on 08/11/2010

0UIYIYU1:>. \,,(uau1y allU 1"1.pp1Y

.1

o"Paae 5
et .<..'D1."'T

of

5

Definition of survivors benefits

When a person who has worked and paid Social Security taxes dies, certain members of the family may be eligible for survivors benefits.
Up to ten years of work is needed to be eligible for benefits, depending on the person's age at the time of death.

If you apply, please be ready to supply the information we need to approve your application for these benefits:

Who is eligible for survivors benefits

Social Security survivors benefits can be paid to:
• A widow or widower -- full benefits at full retirement age, or reduced benefits as early as age 60
• A disabled widow or widower -- as early as age 50
• A widow or widower at any age if he or she takes care of the deceased's child who is under age 16 or disabled, and receiving Social Security benefits
• Unmarried children under 18, or up to age 19 if they are attending high school full time. Under certain circumstances, benefits can be paid to stepchildren, grandchildren, or adopted children.
• Children at any age who were disabled before age 22 and remain disabled.
• Dependent parents age 62 or older

• Lump Sum Death Payment
• Widow's, Widower's, or Surviving Divorced Spouse
• Child's • Mother's or
Father's • Parent's

Note: If you are divorced, you may still qualify for survivors benefits.

Our Benefit Calculators can help you figure how much your benefits will be.

How work affects survivors benefits

You can receive Social Security survivors benefits and work at the same time. However, depending on your age, your benefits could be reduced if you earn more than certain amounts.

For more information, we recommend our leaflet, How Work Affects Your Benefits, publication number 05-10069.

http://www.ssa.gov/ww&os2.htm

8110/2010

Case 4:04-cv-00848-TCK-TLW Document 197-3 Filed in USDC ND/OK on 09/28/11 Page 13 of

13

Case 4:04-cv-00848-TCK-TLW Jocument 168-4 Filed in USOC NO, ~ on 08/11/2010 Page 1 of 1

Publication 501 (2009), Exemptions, Standard Deduction, and Filing Information

Page 4 ot::l1

5. You Qualify for Ihe addilional child lax crediL See Ihe inslruclions in your lax forms package for more informaLion on Ihis credit.
6. You Qualify for Ihe refundable American opportunity educaLion credit. See Form 8863, Educalion Credils.
7. You qualify for the health coverage lax credit. For information about this credit, see Form 8885, Health Coverage Tax Credit.
8. You qualify for the refundable credit for prior year minimum tax. See Form 8801, Credit (or Prior Year Minimum Tax -Individuals. Estates. and Trusls.
9. You qualify (or the firsl·time homebuyer crediL See Form 5405. First-Time Homebuyer Credit. Filing Status
You must determine your filing status before you can determine your filing requirements. standard deduction (discussed later). and correct tax. You figure your correct lax by using the section of the Tax Computation Worksheet or the cotumn in the Tax Table Ihal applies to your riling status.
You also use your filing stalus in determining whether you are eligible to claim certain other deductions and credits.
There are five filing staluses:
• Single.
• Married Filing Jointly,
• Married Filing Separately,
• Head of Household. and
• Qualifying Widow(er) With Dependent Child.
If more Ihan one filing stalus applies to you, choose Ihe one Ihal will give you Ihe lowest lax. Marital Status
In general, your filing status depends on whether you are considered unmarried or married. For federal tax purposes, a marriage means only a legal union between a man and a woman as husband and wife.
Unmarried persons. You are considered unmarried for the whole year if, on the last day of your tax year. you are unmarried or legally separated from your spouse under a divorce or separate maintenance decree.
State law governs whether you are married or legally separated under a divorce or separate maintenance decree. Divorced persons. If you are divorced under a final decree by the lasl day of Ihe year, you are considered unmarried for Ihe whole year. Divorce and remarriage. If you obtain a divorce in one year for the sale purpose of filing tax relurns as unmarried individuals, and at the lime of divorce you Intended 10 and did remarry each olher in Ihe neXI lax year, you and your spouse must file as married indiyiduals. AnnUlled marriages.. If you oblain a court decree of annulmenl, which holds Ihal no valid maroage ever existed, you are considered unmaroed even if you filed joint relurns for earlier years. You must file amended returns (Form 1040X) claiming single or head of household stalus for all tax years affecled by Ihe annulment that are not closed by the statule of limitalions for filing a tax return. The statute of limilations generally does not end unlil 3 years afLer your original relurn was filed. Head of household or qualifying widow(er} with dependent child, If you are considered unmarried, you may be able to file as a head of household or as a qualifying widow(er) with a dependent child. See Head of House/lOld and Qualifying Widow'er! Wit" Dependent Child 10 see If you qualify.
Married persons. If you are considered married for the whole year, you and your spouse can file a join! return, or you can file separate returns. Considered married. You are considered married for lhe whole year if on the last day of your lax year you and your spouse meet anyone of the following tests.
1. You are married and living logelher as husband and wjfe.
2. You are living together in a common law marriage that is recognized in Ihe state where you now live or in the state where the common law marriage began.
3. You are married and living apart, but not legally separated under a decree of divorce or separate maintenance.
4. You are separated under an inlerlocutory (not final) decree of divorce. For purposes of filing a joint return. you are not considered divorced.
Spouse died during the year. Jr your spouse died during the year, you are considered married for the whole year for filing status purposes.
If you did not remarry before.lhe end of the tax year. you can file a joinl return for yourself and your deceased spouse. For the neXI 2 years, you may be enlitled to the special benefits described later under Qua/ifo.1nq Widow!e,' With Deoendent Child.
If you remarried before the end of the tax year, you can file a joint return with your new spouse. Your deceased spouse's filing slatus is married filing separately for that year.
Marrjed persons living apart. If you live apart from your spouse and meet certain tesls, you may be considered unmarried. If this applies to you,
you can file as head of household even Ihough you are not divorced or legally separaled. If you qualify to file as head of household instead of as
married filing separately. your standard deduction will be higher. Also, your tax may be lower, and you may be able to claim the earned income credit See Head of HOUS0hc!d later.
Single
http://www.irs.gov/publications/p501lar02.html

EXHIBIT
~
8/912010

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP, et at.,
Plaintiffs, v.
UNITED STATES OF AMERICA, et at.,
Defendants.

) ) ) ) ) ) No. 04-CV-848-TCK-TLW ) ) ) ) )

SUPPLEMENTAL JOINT AFFIDAVIT OF PLAINTIFFS SUSAN G. BARTON AND GAY E. PHILLIPS

EXHIBIT

1

I if

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 2 of 12
COUNTY OF CREEK ) ) ss.
STATE OF OKLAHOMA)
Susan G. Barton and Gay E. Phillips (at right and left, respectively, in the above photograph), each being duly sworn, hereby depose and state as follows:
1. We each previously gave limited affidavits in this lawsuit m response to the Court Order of August 2,2010.
2. We reaffirm the content of our earlier affidavits submitted pursuant to the August 2, 2010, comi order, and which are Exhibits Band C to the motion on our behalf.
3. This joint supplemental affidavit is submitted in conjunction with the motion for summary judgment being presented on our behalf.
4. We have resided in Oklahoma for 51 years. We own our own home in Tulsa, Oklahoma.
5. We have been in a continuous cOlmnitted relationship for over half of our adult lives.
6. We were legally married in the State of California under California law on November 1, 2008, during the pendency of this lawsuit. Before that marriage, we were united in a civil union ceremony conducted in Vennont on August 4, 2001 and married in Vancouver, British Columbia, pursuant to Canadian law on May 16,2005.
2

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 3 of 12
7. We own Barton, Phillips and Associates, Inc, a company that provides training and technical assistance to agencies and organizations (particularly non-profit) that serve youth in "out of home" care. Gay has a PhD in the field of sociology. Our company trains foster parents for the Department of Human Services. We travel nationwide to train youth serving agency staffs, assist administrators in complying with federal grants, assist in formulating grants, and advise on board development matters. Additionally, Sue teaches courses as an adjunct professor at Tulsa COlmnunity College. Sue is cUlTently teaching an eightweek online course titled "Building Relationships" and is scheduled to do another class this semester titled "Teaching Discipline."
8. In a broad sense, our occupational field deals with mnaway, homeless and street youth, and those youth services involving youth in out of home care situations.
9. Because of Part B of the Oklahoma Constitutional Amendment, our California malTiage cannot be recognized in Oklahoma.
10. Because of Section 3 of DOMA, despite our "malTied" status, we are unable to file a joint federal tax return or a joint Oklahoma tax return as a malTied couple since Oklahoma law requires taxpayers to use the same filing status as used on the federal return. See Oklahoma Form 511 at p. 7 attached hereto.
11. In our earlier affidavits of August, 2010, we detailed the financial benefits we were forced to forego as a result of being unable to use the status of "malTied filing jointly," in the filings of our federal and state tax returns. Since
3

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 4 of 12
the filing of the August, 2010 affidavit, we have prepared federal tax returns for the tax years of 2009 and 2010. We were assisted in the preparation by a certified public accountant. We also, with the accountant's assistance, have computed the tax benefits we would have received if we would have been able to claim the status of "married filing jointly." Our inability to do so resulted in a loss of federal tax benefits for the year 2009 in the amount of $605.00 and a combined loss of federal and state tax benefits of $426.00 for the 2009 tax year. For the 2010 tax year, we would not have realized tax savings by a "married filing jointly" status. See correspondence from CPA Kelly Kirby, attached hereto.
12. The total lost tax benefits since our 2008 California wedding IS $750.00 (see paragraph of our August, 2010 affidavits), because we were prohibited from using the filing status of "married filing jointly" in 2008 and 2009.
13. For 27 years we have longed for the same rights, responsibilities and respect accorded a loving committed adult couple in regard to marriage. Both the federal government and the State of Oklahoma have withheld recognizing our relationship as one of "marriage" for the sole reason that we are of the same gender. Our sexual orientation is part of our sexual identity. We have never considered our orientation to be a matter of choice, and it is not.
14. We have no interest in challenging others religious beliefs regarding marriage between persons of the same gender. We have no interest in forcing a minister, priest or rabbi to perfonn a marriage ceremony that a church or congregation opposes. We do not seek recognition of our marriage from any
4

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 5 of 12
religious body. We seek recognition by the governments, both state and federal, for purposes of enjoying the rights, protections and guarantees afforded opposite sex couples.
15. We do not see how our married relationship is hanning the marnages of others. In our opinion, our relationship is healthy and nonthreatening to others.
16. Our sexual orientation has never been an impediment to our ability to work under governmental contracts, pmiicipate in, contribute to or participate in society.
17. As lesbians, we watched the debate and overwhelming passage of State Question 711 banning same-sex man-iages and banning the recognition of same-sex marriages. The debate that accompanied passage of the Oklahoma Constitutional Amendment subjected couples such as us to public scorn and ridicule. Our relationship of over two decades was equated to something of a type which threatened the nation; and against God's will. Exh. E (Article dated 4/16/04)
18. We know and recognize we are members of a minority because of our sexual orientation. We have never had any legal protections in Oklahoma in the workplace, for housing, or criminal hate speech. In fact, the passage of the Oklahoma Amendment banning recognition of same sex marriage demonstrates the opposite, i.e. legislative approval of discrimination against a minority group.
5

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 6 of 12
19. Being able to call our long-term relationship a "marriage" and hold ourselves out as married should have been a dream come true. But because we reside in Oklahoma, our valid marriage is expressly banned from recognition by the State of Oklahoma, and consequently we are subjected to unequal protection. In all respects, it is as if the State of Oklahoma has said ours is not a real marriage, but something inferior to the relationships of married opposite sex couples.
6

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 7 of 12

FURTHER AFFIANT SAYETH NOT.

SUSAN G. BARTON

NOTARY

~ Subscribed and sworn to before me this

day of September, 2011.

My Commission Expires:

J ~ o1.ltJ= ft" ! 1AA{jJ. J OTARY PUBLIC

Notary PubUc State of Oklahoma
TESSA REYNOlDS
CREEK COUNTY COMIItISS/ON 1010111'30

FURTHER AFFIANT SAYETH NOT.

\

JtJHI~~?

NOTARY

Subscribed and sworn to before me this

day of September, 2011.

Notary PubUc

State of Oklahoma

;.

TESSA REYNOLDS

.,..

~EEI( COUNTY

COMMISSION 107()1113O

•

Com x 12-12-2011

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 8 of 12

Kelly Kirby, CPA, PC

Certified Public Accountant a professional corporation 4815 South Harvard, Suite 424 Tulsa, Oklahoma 74135-3068 (918) 747-5466 Voice (918) 747-5499 Facsimile Email Kelly@KKirby.com

September 12, 2011
Sue Barton & Gay Phillips
3312 E 3r<i St Tulsa, OK 74112-2604
Dear Sue & Gay:
In accordance with your request, I have prepared income tax returns using the married filing jOintly filing status for 2009 and 2010. I have then compared the total tax on federal and Oklahoma returns for each year to the total tax on the corresponding returns which you previously filed using the single filing status. The results are as follows:

Year

Federal

tax

Sue

Gay Joint Injury

2009 5,631

5,026 605

2010 288 760

1,118 (70)

Oklahoma

tax

Sue

§~y

Joint Injury

1,991

2,170 (179)

29

204 222 11

ConSidering these two years of returns together, had you been able to file jOintly you would have saved $367.
Please let me know if I can be of further assistance in this matter.

Subscribed and sworn to this 12th day of September, 2011.

SHELBY COATS
Notary Public. State of Oklahoma
Commission 11 10000442 My CommiSSion expires JanuclIY 21. 2014

My commission expires

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 9 of 12

$ INCLUDES FORM 511 AND FORM 538-5

q~~""

(Oklahoma Resident Income Tax Return

and Sales Tax Relief Credit Form)

This packet contains: • Instructions for completing the Form 511: Oklahoma resident income tax return • Two Form 511 income tax forms • Two Form 538-S: Sales Tax Relief Credit • Instructions for the direct deposit option • 2010 income tax tables • One return envelope
Filing date: • Generally, your return must be postmarked by April 15, 2011. For further information, see the "Due Date" section on page 4.
Need assistance or a tax form? • Check out page 19 for contact methods for the Oklahoma Tax Commission.

Free File is e-fle, only better since it's free for
qualifying tapayers
!\sks simple questions, put",; your answers on the
right forms
[Joes the math for' you
Fast, Safe & Secure
Visit:
www.tax.ok.gov
for filing olltions
Yo ~~ . fll~ your s:.,ate !"eturn frBe, .y01) mLi6rpr"ep,,1re ls. 8-r~[~ beth th.~ F~ciera! .9n,-:' Ok~ahoma returns at the same time.

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 10 of 12

o The Oklahoma Standard Deduction now equals the basic Federal Standard Deduction. See instructions for line 10 on page 8 or for Schedule 511-0 on page 19.
o The percentage for federal Civil Service Retirement in Lieu of Social Security exclusion has increased. See Schedule 511-A, line A3 instructions on page 13.
o The Other Retirement exclusion is no longer subject to the modified Oklahoma Adjusted Gross Income limit. See Schedule 511-A, line A6 instructions on page 13.
o Payments received as a result of a Military member being killed in a combat zone may be exempt. See the instructions for Schedule 511-A, line A13, #5 on page 15.
o If your Military spouse was killed in a combat zone, you may be entitled to exclude your income. See the instructions for Schedule 511-A, line A13, #6 on page 15.
o Members of a pass-through entity which is a captive real estate investment trust should be aware of a possible addback. See the instructions for Schedule 511-B, line B8, #4 on page 16.
o Income from discharge of indebtedness which has been deferred and not included in Federal income must be added back. See instructions for Schedule 511-B, line B8, #5 on page 16.
o The Partial Military Pay Exclusion has increased; see the instructions for Schedule 511-C, line C1 on page 17.
o The EMT Death Benefit exclusion is now the Emergency Medical Personnel Death Benefit exclusion. The $5,000 exclusion has been expanded to include the death benefit paid to the beneficiary of a registered emergency medical responder who died in the line of duty. See the instructions for Schedule 511-C, line C7, #10 on page 18.
Determining Your Filing Requirement.. .............. 3 Residence Defined ............................................ 4 Due Date ........................................................... 4 Resident Income................................................ 4 Who Must File.................................................... 4 Not Required to File ........................................... 5 Refunds .......... " ..... ,.... ,......... ,.. " .. ,...... ,... ,.......... 5 Net Operating Loss ............................................ 5 Estimated Income Tax ....................................... 5 Extensions .... ,., .. " ............. ,................................ 6 Amended Returns., ...... ,..................... ,............. ,. 6 Top of Form Instructions .................................... 6-7 Form 511: Select Line Instructions ........... , ....... 8-12 When You Are Finished ..................................... 12 Schedule 511-A Instructions .............................. 13-15 Schedule 511-6 Instructions .............................. 15-16 Schedule 511-C Instructions .............................. 17-18 Schedule 511-0 Instructions .............................. 19 Schedule 511-E Instructions .............................. 19 Schedule 511-F Instructions .............................. 19 Schedule 511-G Instructions ............................. 19 Contact Information and Assistance .................. 19 Tax Table ., .. ,..................... ,.. ,' ...... ,..................... 20-31 Direct Deposit Information ................................. 32

o If you have a Federal Schedule C or Schedule F, you may be subject to the Oklahoma Business Activity Tax. For more information see the instructions for line 21 on page 11 and the Form 511-BAT.
o You have the opportunity to donate from your refund to three new organizations: the Support of Folds of Honor Scholarship Program, the Y.M.C.A. Youth and Government Program and the Multiple Sclerosis Society Fund. For further information, see the instructions on Form 511, Schedule 511-G, page 6.
o There are three new credits on the Form 511 CR: Wire Transfer Fee Credit, Credit for Manufacturers of Electric Vehicles and Business Activity Tax Credit. Form 511 CR may be downloaded from our website at www.tax.ok.gov,
o A moratorium has been placed on many Oklahoma credits. For more information see Form 511CR and, when applicable, the specific form for a particular credit.

o File your return by April 18, 2011. See page 4 for information regarding extended due date for electronically filed returns.
o If you need to file for an extension, use Form 504 and then later file a Form 511.
o Be sure to enclose copies of your Form(s) W-2, 1099 or other withholding statement with your return. Enclose all Federal schedules as required.

~

Important: If you fill out any portion of the Schedules 511-A through 511-G or Form 538-S, you are required to enclose those pages with

your return. Failure to include the pages will result in a

delay of your refund.

Be sure to sign and date the return. If you are filing a joint return, both you and your spouse need to sign.
o After filing, if you have questions regarding the status of your refund, please call (405) 521-3160. The in-state toll-free number is (800) 522-8165.
o Do not enclose any correspondence other than those documents and schedules required for your return.
o Regarding direct deposit of your refund, the Oklahoma Tax Commission will only issue one payment per bank account number. Therefore, if more than one refund is requested for direct deposit to the same bank account, the second and subsequent payments will be issued by paper check to the address shown on the tax return(s).

You must complete your Federal income tax return before beginning your Oklahoma income tax return. You will use the information entered on your Federal return to complete your Oklahoma return.
Remember, when completing your Oklahoma return, round all amounts to the nearest dollar.
Example: $2.01 to $2.49 - round down to $2.00 $2.50 to $2.99 - round up to $3.00

Case 4:04-cv-00848-TCK-TLW Document 197-4 Filed in USDC ND/OK on 09/28/11 Page 11 of 12

If you do not meet trle Federa! filing requirements as shown in either Chart A or Chart B on this page, you are not required
to file an Oklahoma tax return. However, if you have withholding or made estimated tax payments that you would like to
have refunded, please follow the instructions on page 5, "Not Required to File".
:

To use this chart, first find your filing status. Then read across to find your age at the end of 2010. You must file a return if your gross income was at least the amount shown in the last column.

If your Filing Status Is...

And your Age Is*...

And if your Gross Income Is...**

Single Married Filing Joint'"
Married Filing Separate Head of Household Qualifying Widow(er) with a Dependent Child

Under 65 65 or older Both under 65 One 65 or older Both 65 or older Any age Under 65 65 or older Under 65 65 or older

$ 9,350 $10,750 $18,700 $19,800 $20,900 $ 3,650 $12,050 $13,450 $15,050 $16,150

'If you turned age 65 on January 1, 2011, you are considered to be 65 at the end of 2010. "Gross income means all the income you received in the form of money, goods, property, and services that is not exempt from Federal tax.
Do not include any social security benefits unless (a) you are married filing separate and you lived with your spouse at any time in 2010 or (b) one-half of your social security benefits plus your other gross income is more than $25,000 ($32,000 is married filing jointly). If (a) or (b) applies, see the instructions for Federal Form 1040 or 1040A to figure the taxable part of social security benefits you must include in gross income.. "'If you did not live with your spouse at the end of 2010 (or on the date your spouse died) and your gross income was at least $3,650, you must file a return regardless of your age.

If your parent (or someone else) can claim you as a dependent, use this chart to see if you must file a Federal return. In these charts, unearned income includes taxable interest and dividends. Earned income includes wages, tips, and taxable scholarships and fellowships.

Were you either age 65 or older or blind?
D No. You must file a return if any of the following apply...
Your unearned income was over $950.
Your earned income was over $5,700.
The total of your unearned and earned income was more than the larger of:

This amount

OR $950
_ . _ _ _-_ _ - _ _._ _-_ _ ....._........-....

_ ..... ....- ..... ....

....

This amount

_-_ ...--

Your earned

.........

...- .......

.i..nco.....m...._.e_.....(..u..._p..._to--$-5--,4-0_0.)_p-l_u.s..- $.....3.-00- - - _.....

_ .. - -

You must file a return if any of the following apply...

Your unearned income was over $2,350 ($3,750 if 65 or older and blind).

Your earned income was over $7,100 ($8,500 if 65 or older and blind).

Your gross income was more than the larger of:

•• $2,350 ($3,750 if 65 or older and blind), or

.. Your earned income (up to $5,400) plus $1,700 ($3,100 if 65 or older and blind).

Were you either age 65 or older or !illn.d?
D No. You must file a return if any of the following apply...
Your gross income was at least $5 and your spouse files a separate return and itemizes deductions.
Your unearned income was over $950. Your earned income was over $5,700. The total of your unearned and earned income was more than the larger of:

This amount $950

OR

This amount Your earned income (up to $5,400) plus $300

Yes. You must file a return if any of the following apply...

Your gross income was at least $5 and your spouse files a separate return and itemizes deductions.

Your unearned income was over $2,050 ($3,150 if 65 or older and blind).

Your earned income was over $6,800 ($7,900 if 65 or older and blind).

Your gross income was more than the larger of:

.. $2,050 ($3,150 if 65 or older and blind), or

.. Your earned income (up to $5,

$1,400 ($2,500 if 65 or older and blind).

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The filing status for Oklahoma purposes is the same as on the Federal income tax retum, with one exception. This exception applies to married taxpayers who file a joint Federal return where one spouse is a full-year Oklahoma resident (either civilian or military), and the other is a full-year nonresident civilian (non-military). In this case, the taxpayers must either:
1. File as Oklahoma married filing separate. The Oklahoma resident, filing a jOint Federal return with a nonresident civilian spouse, may file his/her Oklahoma return as married filing separate. The resident will file on Form 511 using the married filing separate rates and reporting only his/her income and deductions. If the nonresident civilian also has an Oklahoma filing requirement, he/she will file on Form 511 NR, using married filing separate rates and reporting his/her income and deductions. Form 574 "Allocation of Income and Deductions" must be filed with the return(s). You can obtain this form from our website at www.tax.ok.gov.
-OR-
2. File, as if both the resident and the nonresident civilian were Oklahoma residents, on Form 511. Use the "married filing joint" filing status, and report ;ill income. A tax credit (Form 511 TX) may be used to claim credit for taxes paid to another state, if applicable. A statement should be attached to the return stating the nonresident is filing as a resident for tax purposes only.
If an Oklahoma resident (either civilian or military) files a joint Federal return with a nonresident military spouse, they shall use the same filing status as on the Federal return. If they file a joint Federal return, they shall complete Form 511 NR and include in the Oklahoma amount column, all Oklahoma source income of both the resident and the nonresident.
Check the box(es) if your, or your spouse's, age is 65 on or before December 31, 2010. If you turned age 65 on January 1, 2011, you are considered to be age 65 at the end of 2010.
Check the box, if you do not have sufficient gross income to require you to file a Federal return, and you had Oklahoma tax withheld, made estimated tax payments or qualify for Oklahoma earned income credit or Tornado Tax credit.
Finish the top portion of the return by completing the "Exemptions" section (part G on the diagram on page 6).
Complete line 1. Enter the amount of your gross income subject to the Federal filing requirement. In most cases this will be the same as your Federal Adjusted Gross Income. (Do not complete lines 2-19.)

Complete lines 20 through 39 that are applicable to you.
If you qualify for the Federal earned income credit, you qualify for the Oklahoma earned income credit. Enter 5% of the Federal earned income credit on Form 511, line 29 (do not complete schedule 511-F).
Sign and mail the return. Be sure to include your W-2, 1099 or other withholding statement to substantiate any Oklahoma withholding.
Note: If you do not have sufficient gross income to require you to file a Federal return and you did not have Oklahoma tax with· held, make estimated tax payments or qualify for Oklahoma earned income credit or Tornado Tax credit, do not file an Oklahoma income !.<i.u?tJJ.rI1_[EQUrL5.1l),
To the right of the word "Yourself" place a number "1" in all the boxes that apply to you. Next total the boxes. Then do the same for your spouse if applicable.
.1,;_li:eIn-P.t.LQl1_I!i:fm.J!
Regular': The same exemptions as claimed on your Federal return.
Special: An additional exemption may be claimed for each taxpayer or spouse who meets the qualifications based on filing status and Federal adjusted gross income limits" below and. who is 65 years of age or over at the close of the tax year:
(1) Single return with line 1 equal to $15,000 or less.
(2) Joint return with line 1 equal to $25,000 or less.
(3) Married filing separate return with line 1 equal to $12,500 or less.
(4) Head of household return with line 1 equal to $19,000 or less.
**Note: Ifyour Federal adjustedgross income includes income from the conversion ofa tradllionalindiVIdualretirement account to a Roth indiVIdualretirement account this income shallbe excluded in determining the Federal adjustedgross income limits. Enclose a copy ofyour Federal return and Form 8606.
Blind: An additional exemption may be claimed for each taxpayer or spouse who is legally blind.
Dependents: If claiming dependents, please enter the same number as on your Federal return. However, if the nonresident spouse also has an Oklahoma filing requirement and is filing separately on Form 511 NR, the dependency exemptions will be allocated between the resident's and nonresident's returns.
* Please note that if you may be claimed as a dependent
on another return, enter zero for your regular exemption. You still qualify for the Oklahoma standard deduction.

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Republican legislators wary of same-sex ruling
by: MARIE PRICE World Capitol Bureau Friday, February 06, 2004 7/16/200812:09:49 AM

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EXHIBIT
I if

State GOP lawmakers are urging constitutional approaches to strengthen laws regarding marriage.

OKLAHOMA CITY -- Legislative Republicans said Thursday that this week's Massachusetts Supreme Court ruling outlining constitutional protection for same-sex marriages puts Oklahoma in jeopardy of a similar decision.
Senate Minority Floor Leader James Williamson of Tulsa also took Gov. Brad Henry to task for what he termed the governor's silence in defense of traditional, heterosexual marriage.
"His reluctance to protect traditional marriage could put Oklahoma at risk that a court will force same-sex unions on us here," Williamson said.
But Henry said he supports a traditional marriage concept and "will do everything I can to protect it."
"We already have laws protecting traditional marriage in Oklahoma, but if there are ways to strengthen those protections, I am certainly willing to explore them," the governor said.
Williamson also aimed criticism at Senate President Pro Tem Cal Hobson, D-Lexington, for assigning a constitutional proposal backing traditional marriage to an unfriendly committee.
The measure has been assigned to the Senate Human Resources Committee, led by Sen. Bernest Cain, DOklahoma City.
Williamson said the assignment indicates that Senate Democratic leaders want to block efforts to protect traditional marriage.
He called on Henry to support the proposal and another calling on Congress to place similar language in the U.S. Constitution.
Williamson said the measures will protect Oklahomans from activist judges.
"This is probably the most important social issue facing America today," he said. "Hopefully, the governor will work as hard to protect marriage in Oklahoma as he has to expand gambling in Oklahoma."
House Minority Floor Leader Todd Hiett, R-Kellyville, agreed with Williamson's take on the Massachusetts court ruling.
The Massachusetts decision "just further emphasizes the need in the state of Oklahoma for us to address the issue constitutionally," Hiett said.
He said he has not found support for banning same-sex unions among Democratic leaders and added that it

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is important for state leaders to uphold the sanctity of traditional marriage.
"To recognize something other than what God has ordained as traditional marriage obviously detracts or deteriorates the importance of the traditional marriage," Hiett said.
Hobson said a Massachusetts court's ruling does not make gay marriage one of the most pressing issues facing Oklahoma.
"Oklahoma is not like Massachusetts," he said. "Our courts are not like their courts. Our judges are not like their judges. Suggesting that the Oklahoma Supreme Court would follow their example is an insult to our justices."
The Senate leader also said Cain's committee is the appropriate assignment for such legislation.
Oklahoma's law defining marriage as occurring only between a man and a woman has not been challenged, Hobson added.
"If he (Williamson) doesn't have faith in the historically conservative Oklahoma Supreme Court, maybe he should file a lawsuit and let our court rule on this issue," Hobson said. "If the court rules our law unconstitutional, which I don't believe they will, then this will be an issue in our state and we can move forward with the debate."
Hobson said Williamson's focus on gay marriage borders on hysteria.
"There's a mathematical probability that a comet will someday hit the Earth and wipe out life as we know it," he said. "Senator Williamson's logic would suggest that we start evacuating the planet now, just in case."
At least 10 measures have been filed in the House and Senate that would either strengthen Oklahoma law defining marriage as only between a man and a woman or specifically banning same-sex marriage.
Some would require votes of the people to amend the Oklahoma Constitution. Proposals have been filed by members of both parties.

Marie Price (405) 528-2465 marie.price@tulsaworld.com
Associated Images:

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His (Gov. Brad Henry) reluctance to protect traditional marriage could put Oklahoma at risk that a court will force same-sex unions on us here. -- JAMES WILLIAMSON
SENATE MINORITY FLOOR LEADER, RTULSA
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Ban on gay marriage debated
by: BRIAN BARBER World Staff Writer Wednesday, October 13, 2004 5/20/2008 12:38:53 AM

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A foe says the pro- posed amendment was not well-thought out, but its Senate author calls criticisms 'red herrings.'
The principal author of a proposed constitutional amendment to define marriage said Tuesday that allowing same-sex marriages would lead to a "no-rules mentality."
"This is not meant to be an attack on the gay community," state Sen. James Williamson, R-Tulsa, said at the Tulsa Press Club's "Two Views" luncheon. "This is meant to protect traditional marriage as the foundation of our society."
Tulsa Oklahomans for Human Rights President Mark Bonney said State Question 711 has legal ramifications that Williamson hasn't explored.
Appearing on the Nov. 2 general election ballot, the proposed amendment prohibits giving the benefits of marriage to unmarried people as well as writes a ban on same-sex marriages into the state constitution.
Bonney, a lawyer, argued that it could put all common-law marriages in jeopardy.
He also questioned whether companies such as QuikTrip and Whirlpool, which offer domestic-partner benefits, could continue to do so.
"This question was not fully studied or debated before it was rushed through the Capitol and onto the ballot," he said.
Williamson, also a lawyer, said he doesn't believe that the amendment would affect common-law marriages or prohibit companies from offering whatever benefits they want but that those issues could be decided by the courts.
"These side arguments are red herrings," he said.
Williamson said the amendment is necessary, even though Oklahoma. laws already define marriage as between one man and one woman.
A similar law in Massachusetts was declared unconstitutional by that state's Supreme Court and led to the legalization of gay marriage there, he said.
"It is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage," he said.
If same-sex marriages were legalized, Williamson said, it could lead to gay adoptions, multiple partners in marriages and more expensive health benefits.
Bonney criticized the system for allowing Williamson to marry multiple times and heterosexuals to marry mailorder brides but for not allowing him to marry his partner of seven years.

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"If Oklahomans approve this amendment in November as expected," he said, "they are saying, 'Mark Bonney, you are not welcome here. You can't have a recognized, valued relationship like the rest of us.' "

Brian Barber 581-8322 brian.barber@tulsaworld.com
Associated Images:

From both sides now
Tulsa Oklahomans for Human Rights President Mark Bonney speaks as state Sen. James Williamson listens during their Tulsa Press Club debate Tuesday on the proposed constitutional amendment to define marriage. Copyright © 2011, World Publishing Co. All rights reserved
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Local 'Pro-Marriage Rally' takes aim at same-sex unions
by: ROBERT EVATT World Staff Writer Wednesday,August25,2004 5/29/20087:45:05 AM

More than 4,000 people attended a "Pro-Marriage Rally" on Tuesday, an event organized by more than 40 Tulsa-area churches.
Nick Garland, pastor of the First Baptist Church of Broken Arrow, said in a press release that the purpose of the rally, held at the Union High School Performing Arts Center, was to "celebrate marriage between a man and a woman."
Many religious leaders spoke at the rally, along with author and minister Gary Chapman, state Sen. James Williamson, R-Tulsa, and Tulsa Mayor Bill LaFortune.
"If you believe in Christ, if you believe in this country, and if you believe in this city, you believe that marriage is a covenant between God, a man and a woman," LaFortune said.
Chapman, the keynote speaker, is the senior associate pastor of Calvary Baptist Church in Winston-Salem, N.C., and author of "The Five Love Languages" series of books. He speaks frequently on faith-based ways of building better marriages.
At the rally, he focused on strengthening marriages.
"We've got to do a better job in our churches of helping people have better marriages," Chapman said.
Many speakers expressed a belief that marriage is a religious bond that can be entered into only by heterosexuals.
"Marriage is still God's idea, and I don't think he'd change his mind," said Carmen Gill, a Victory Christian Center pastor.
However, much of the rally was devoted to discussing homosexuality and opposition to marriage between people of the same gender.
"As Christians, we are called to love homosexuals," Williamson said. "But I hope everyone at this rally knows the Scriptures prohibit homosexual acts."
He touted State Question 711, which would define marriage in the state Constitution solely as the union of one man and one woman. The question will be on the Nov. 2 ballot.
The crowd gave Williamson sustained applause when he said the bill would also prohibit the recognition of same-sex marriages that have been legitimized by other states.
Mark Bonney, president of Tulsa Oklahomans for Human Rights, a local gay rights group, attended the rally. He said he was disappointed that its focus wasn't on strengthening marriages of all types.
"I wish that rather than being two-thirds hatred and one-third love discussion, that it was all about what Chapman had to say," Bonney said. "Working on positive marriages is ... helpful to people."

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During a taped message, James Dobson, founder of the national advocacy group Focus on the Family, urged attendees to fight any attempt to extend to gay people the right to marry.
"We're engaged in a critical battle, and the fate of Western civilization hangs in the balance," Dobson said.
Lou Sheldon, chairman of the national lobbying group Traditional Values Coalition, said homosexuality, along with "fornication, adultery and sexual hedonism," threatens the nation.
Four people stood outside the auditorium Tuesday night and handed out flyers urging people not to back the amendment prohibiting same-sex marriage.
"We just want to show a different perspective in favor of civil rights," David Palinskee said. "If you spend your entire life with a partner and one passes, you lose everything the two of you have worked for."

Robert Evatt 581-8447 robert.evatt@tulsaworld.com
Associated Images:

A packed house listens to musician Dennis Jernigan during a rally to support both marriage and a state question that would write a ban on same-sex marriage into the state constitution.
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Focus: Gay-marriage clamor grows louder and louder
by: DAVID HARPER World Staff Writer Monday, March 22, 2004

To some people it's a matter of equal rights; to others it's about upholding their views of morality.
One thing is certain: The debate over whether same-sex couples should be allowed to marry has never been as loud as it is now.
People disagree even over how to refer to such unions. Mark Shields, a spokesman for the Human Rights Campaign -- a Washington-based gay and lesbian lobbying group -- says even the term "gay marriage" is misleading.
Shields says it suggests an effort to establish some sort of "separate and new institution."
Instead, gays and lesbians are merely trying to win the right to the same legal protections straight couples enjoy, he said.
On Feb. 24, President Bush urged approval of a constitutional amendment that would limit marriage to only heterosexual couples.
Democratic presidential candidate John Kerry is opposed to same-sex marriages, although he supports legal rights for gay couples through civil unions. He is opposed to amending the U.S. Constitution to bar gay marriages.
An effort to amend the U.S. Constitution ultimately would be decided by state legislators in at least 38 states, assuming that it could get enough support in Congress first. The rules for a constitutional amendment require a two-thirds majority in each house of Congress before it goes to the states.
All seven members of Oklahoma's congressional delegation have expressed opposition to marriages for same-sex couples, but not all have announced where they stand on a constitutional amendment.
U.S. Reps. John Sullivan and Ernest Istook, both Oklahoma Republicans, are co-sponsors of a resolution for such an amendment.
The Senate library notes that roughly 11,000 constitutional amendments have been proposed over the years. Only six have made it into the Constitution in the 70 years since the repeal of Prohibition. The last amendment was added in 1992, requiring that a general election pass before any congressional pay increase can take effect.
One of Bush's themes in the 2000 campaign was that he wanted to be a "uniter and not a divider." But Kerry said in February that by backing the proposed constitutional amendment, Bush "is looking for a wedge issue to divide the American people."
According to a poll released Feb. 27 by the Pew Research Center for the People & the Press, respondents opposed same-sex marriage by more than a 2-1 margin, but when asked if they consider a constitutional amendment a top priority, they placed it 21 st in a list of 22 choices.
Kerry's home state became the epicenter in the controversy in November when the Massachusetts Supreme

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Judicial Court ruled that the state's constitution guarantees gay and lesbian couples the right to marry.
In its 4-3 decision, the court gave the Massachusetts Legislature six months to rewrite the state's marriage laws.
The Massachusetts court definitively reaffirmed the decision in February, clearing the way for the first staterecognized marriages of same-sex couples in U.S. history to start taking place as early as May 17.
Oklahoma state Sen. James A. Williamson, R-Tulsa, said that after the Massachusetts court ruled, he asked his staff members to analyze whether Oklahoma's laws could be interpreted the same way by a court.
After hearing that they could, Williamson said he wanted the state constitution changed "to make it clear that marriage in Oklahoma is with one man and one woman."
Ultimately, Sen. Bernest Cain, D-Oklahoma City, refused to give the proposal a hearing in his Senate Human Resources Committee.
Cain said marriage already is defined in Oklahoma law and that adding language to the state's Constitution is unnecessary .
He said he doesn't think marriage between same-sex couples is "a real issue for the state of Oklahoma because we already have in statute that we don't accept same-sex marriages from other states."
Senate President Pro Tem Cal Hobson, D-Lexington, has blasted Republicans for showing "hysteria" over the issue. He said Oklahoma does not have the kind of judges who would overturn the ban in state law.
Earlier this month, Williamson again urged Democratic Gov. Brad Henry to "do the right and moral thing" by helping to pass a state constitutional amendment defining marriage.
Williamson said the governor had "not provided any assistance" in help ing to deliver the Democratic votes needed to get the measure out of committee.
The measure was one of several anti-gay-marriage proposals to die in House and Senate committees.
State Rep. Bill Graves, R-Oklahoma City, has said he is optimistic that such measures would be supported by most Oklahomans.
"This is a Bible Belt state," Graves said. "Most people don't want that sort of thing here."
When asked if such measures would translate to state-sanctioned discrimination, Graves replied, "Gay people might call it discrimination, but I call it upholding morality."
Shields, the Human Rights Campaign spokesman, said, "Civil rights shouldn't be a question of popularity; it should be a question of right and wrong."
After the 1996 federal Defense of Marriage Act was approved by President Clinton, many states passed their own "mini-DOMA" laws, University of Tulsa family law professor Marianne Blair noted.
The national Defense of Marriage Act denies federal recognition of same-sex marriages and allows states to do the same.
At least 38 states have laws that de fine marriage as a union between a man and a woman and that deny recognition to marriages of gay and lesbian couples performed in other states.
Some people say such legislation runs counter to the Full Faith and Credit Clause of the U.S. Constitution, which requires states to recognize the validity of each other's laws.
But Blair noted that the U.S. Supreme Court has recognized a "public policy exception" that applies if a state finds the legal pronouncements of another state to be in conflict with its own public policy.
However, a court in a state with a "mini-DOMA" could decide that such legislation runs counter to the Equal Protection Clause of the state's own constitution, she said.
Keith Smith, an Oklahoma City-based national board member of the Stonewall Democrats -- a gay and lesbian caucus -- said that if the efforts to amend national and state constitutions are successful, it would be the first time the documents have been changed to narrow human rights.

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"Intolerance and hatred should have no place in either document," he said.

David Harper 581-8359 david. harper@tulsaworld.com

Changing times
May 5, 1993: Hawaii Supreme Court rules that a prohibition on same-sex couples' marrying amounts to gender discrimination under the state constitution and can be upheld only if prohibition is justified by a compelling reason.
July 6, 1995: Tulsa County Court Clerk Sally Howe Smith refuses to grant a Tulsa lesbian couple's request for a marriage license.
April 29, 1996: Then-Oklahoma Gov. Frank Keating signs into law a bill denying recognition of same-sex marriages performed in other states.
Sept. 21, 1996: President Clinton signs federal Defense of Marriage Act.
Dec. 3, 1996: Hawaii judge says denying marriage licenses to gay couples is not justified and sends case back to state Supreme Court.
Nov. 3, 1998: Before Hawaii Supreme Court can issue final ruling, Hawaii voters approve a constitutional amendment against same-sex marriage. Hawaii now grants various rights to same-sex couples registered as domestic partners.
Dec. 20, 1999: Vermont Supreme Court rules that gay couples are entitled to the same benefits and protections as wedded couples.
July 1, 2000: Vermont begins granting civil union recognition.
May 21, 2003: Federal Marriage Amendment introduced in Congress.
Nov. 18: Massachusetts Supreme Judicial Court rules 4-3 that the state's ban on same-sex marriage is unconstitutional. The state is scheduled to begin granting marriage licenses to same-sex couples May 17.
Feb. 12: City and county of San Francisco Mayor Gavin Newsom authorizes the county clerk to begin issuing marriage licenses to same-sex couples.
Feb. 20: Sandoval County, N.M., Clerk's Office grants licenses to 26 same-sex couples before New Mexico Attorney General Patricia Madrid issues a late afternoon opinion saying the licenses are invalid.
Feb. 27: New Paltz, N.Y., Mayor Jason West begins officiating at weddings of same-sex couples.
March 1: Ithaca, N.Y., Mayor Carolyn K. Peterson announces that the city will begin accepting applications for marriage licenses from same-sex couples.
March 2: Ulster County, N.Y., District Attorney Donald Williams charges New Paltz Mayor West with 19 criminal counts of solemnizing marriages for couples who had no licenses, a misdemeanor, but says he lacks the authority to stop West from performing more weddings.
March 3: West pleads innocent to 19 criminal counts.
March 3: Hundreds of gay couples are issued marriage licenses at Multnomah County offices in Portland, Ore.
March 8: Seattle Mayor Greg Nickels orders the city to recognize same-sex marriages of municipal

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employees.
March 8: Asbury Park, N.J., begins issuing marriage licenses to same-sex couples.
March 9: New Jersey attorney general orders Asbury Park officials to stop issuing marriage licenses to same -sex couples and says those already issued are not valid.
March 9: San Jose, Calif., City Council authorizes the city to recognize city workers' same-sex marriages performed elsewhere.
March 11: The California Supreme Court halts same-sex weddings in San Francisco while it decides whether the city/county had the authority to issue the marriage licenses. The city files a lawsuit demanding that the marriages be declared constitutionally permissible.
March 12: Oregon Attorney General Hardy Myers issues an opinion that says banning same-sex marriage probably violates the state constitution.
March 15: Benton County, Oregon, announces that it will become the state's second county to begin issuing marriage licenses to gay couples.
Friday: Oklahoma Attorney General Drew Edmondson issues opinion that marriage is a civil contract between a man and a woman.

MAR~AGEANDTHELAW
What the federal and state governments say
U.S. Constitution Full Faith and Credit Clause Article IV, Section 1 "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.... "
Equal Protection Clause Amendment XIV, Section 1 "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Proposed Federal Marriage Amendment "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
Federal Defense of Marriage Act U.S. Code, Title 1, Chapter 1 "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
Title 28, Chapter 115 "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."
Oklahoma Constitution Equal Protection Clause Section 11-2 "All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of

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their own industry."
Oklahoma Statutes Title 43, Section 43-1 "Any unmarried person of the age of eighteen (18) years or upwards and not otherwise disqualified is capable of contracting and consenting to marriage with a person of the opposite sex .... "
Section 43-3.1 "A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage."

Associated Images:

Some 4,037 marriage licenses were issued to same-sex couples from mid-February through mid-March at San Francisco's City Hall. Here, Daniel Dominquez puts a ring on the finger of his partner, Edgardo
Moncada (right), as they are married by Deputy Marriage Commissioner James llligh upstairs in the City Hall Rotunda.

U.S. Rep. John Sullivan, R-Okla., a co-sponsor of a constitutional amendment that would bar states from allowing gay couples to marry, speaks last month at a state Capitol rally. Other Oklahomans rallied across the street in support of extending marriage to samesex couples.

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......
£ .. Q....A... Q...... Accountability * Integrity' Reliability
United States General Accounting Office Washington, DC 20548

January 23,2004

The Honorable Bill Frist Majority Leader United States Senate
Subject: Defense ofMarriage Act: Update to Prior Report
Dear Senator Frist:
The Defense of Marriage Act (DOfVlA) provides del~nitions or "lwlITiage" and "spclllse' thM are to be used in construing the meaning of a federal law and, thus, affect the interpretation of a wide variety of federal laws in which marital status is a factor. I Tn 1997, we issued a report identifying 1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor? In preparing the 1997 repoli, we limited our search to laws enacted priol' to September 21,1996, the date DOMA was signed into law, Recently. you asked us to update our 1997 compilation,
We have identified 120 statutory provisions involving marital status that were en,lCted between September 21, 1996, and Decel11bcl' 31.2003. During the same period, 31 statutm) provisions involving marital status were repealed or amencled in sue h a way as to eli 111 in~llC marital status as a factor. Consequently, as of December 31, 2003, our research identified a total of 1,138 federal statutory provisions classified to the United States Code in which marital status is a factor in determining or receiving benef~ts, rights, and privileges.
To prepare the updated list, we used the same research methods and legal databases that we employed in 1997, Accordingly, the same caveats concerning the completeness of our

I The Defense of Marriage Act defines "marriage" as "a legal union between one 111<1Il ami one IHJll1an as husband and wife"; it defines "spouse" as referring "only to a person of the opposite sex who is ,\ husband or a wife." The Act requires that these definitions apply U[i]n determining t.he meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States," 1 U.S.C. § 7.

2 U.S. General Accounting Office, Defense of Mcm"iage Act, GAOIOGC-97-16 (Washingtoll, D.C.:

January 31, 1997).

,EXHIBIT

GAO-04-353R De[eJl~c of 1VlmTiagl~ .-\('1

Case 4:04-cv-00848-TCK-TLW Document 197-6 Filed in USDC ND/OK on 09/28/11 Page 2 of 18
collection of laws apply to this updated compilation, as explained more fully in ollr prior report. For example, because of the inherent limitations of any global ekclronic search and
the many ways in 'vvhich the laws of the United States Code may deal with mmital status. we cannot guarantee that we have captured every individual law in the Uniled Stales Code in which marital status figures. However, we believe that the probability is high lhat the updated list identifies federal programs in the United States Cocle in \\hich Ill,U'it<l1 status is ,\ factor.
We have organized our research using the same 13 subject categories as the 1997 report. As agreed with your staff, in addition to providing you with a primary table ornew stalutOl"Y provisions involving marital status, we have prepared a second table identifying those provisions in our prior report that subsequently have been repealed or amencleci in a manner that el iminates marital status as a factor. Finally, in a th ird tab Ie, we ha ve listed those provisions identified in our 1997 report that have since been relocated to a diITerent section of the United States Code. We have also attached a brief summary of the 13 research categories; a full description of each category is set forth in the 1997 report.
We plan no further distribution of this report until 30 days after the date of this letter. At that time, we will send cop ies of th is letter to interested congressional com III itlces. The letter will also be available on GAO's home page at http://www.Q:ao.Q:~w.
If you have any questions, please contact me at (202) 512-8208 or by E-Ill(\ iI at shahdCQ)gao.Q:ov. Behn Miller Kelly and Richard Burkarclmacle key contributions to this project.
Sincerely yours,
Dayna K. Shah Associate General Counsel

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APPENDIX 1

Table of Statutol')' Provisions Involving Marital Status Added to the United States Lode Between September 2I, 1996, and December 31, 2003, by Category

CATEGORY I-SOCIAL SECURITY AND RELATED PROGRAMS, HOUSING, AND FOOD STAMPS

IrT_it'-.lc..e_4_2_-_T_h_e_P-"u",b..:cli:..::c.c:H=.;eac..:Ic..:th-,--,-a_ll""d_W,,---,-e=If""a=-re'--_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.__~ ------il!

Chapter 6A-Public Health Service

Ii

Subchapter II

Part D-Primary Health Care

1f-________.-I_S.::....:.cU"'bL)lJ_a:;..l.t:;..::..I--=H-"-'...ea:.:..l...ctI...c1-'C::....e:.:l.:..;lt"'e:;..rs=--_ _ _ _ _ _ _._____ -----.-.--.-.- ....- ..~: 11-§"_25_4d_ _ _ _ _ _"---_ _N_ ati_ ona_l _ He_ alt_ h S_cr_ vic_c C_o-r'-p-s_ _ _ _ _ _ _ _ _ _ _ _ _·_·_ _ _ _ _ _ _ _ -·--1!

Ji Subchapter IV-Grants to Stlltes(or Aid and Sen'ices to f\'eel(1' Filmilies with Childrell IIlId i;
(or Child-IVel(are Services

Plitt B-Cliild lind Fllllli(F Services

Ii

Subpal·t 2-Promotin a Safe and Stable Families

Iil!

§ 629a

I

Subchapter XI-General Provisions, Peer Review, and Administrative Simplification

!I

§ 1320a-7

Part A-General Provisions

Ii

--ji Exclusion of certain individuals and cntities from particip<1tioll ill lvlcliic<1I\: ,1I1e1 S[,He

health care programs ..- . - - - - -.... -" II--:--::-::-c::-:-:----:-::,-----t--=-'-'-------=-:::....:...-':'-'::'~-----=----_::_-__:_--:-_::_-·---·-------

I.

1§113-2-0b"-1-7- - - - - - - - - 'R-e-co-v-er-y -of"S-S!-o-ve-q-Ja-ym-e'n-t-s "fro-m-o-th-er-b-c-nc-li-ts - - - - - - - - - - - - - · - · - - - -~l!"
:~:§=1~3~9~5=W=-~2~2========~===~~B~eP~na~er~tfiC~l-tl~lsi~af~enCd~1~ibc~ea~nr~eet~+i:Ccih~ao~ircye~~Pp~rlorog~rt~acmc:t~io~I~1s~~============================-_.==_~_~_-_-__-_-__]I;i

11§ -1"3-9-5'w---2':3-'---=-----+--,.P:a.-y<m-e-n't.s.t:o.=M=ed-i.c:a.r.e=+--C-h-o'-ic-e--o=rg-a-n=iz-a't-i-o'n-s'-'---="--'--'-----------·-·----·------Ijii

§ 1395w-27

D-'';",I/",,,,,,,, Contracts with Medicare + Choice organizations

Pa,/

P,·.,;,;",,,

~I'

§ 1395x

Definitions

§ 1395ff

Determinations; appeals

,!

Chapter 35-Programs for Older Americans

Subchapter lII-Grants/or States and CO/11/11l1l1iZ!' Programs on Aging

i

Part C-Nutrition Services

!i

J 1r--::-:-::-:,.-.".-.,.____-,_ _-::-_S_lI_b-'-p'a_rt......,.lI...,I__G_e_l7_e_r...,a_I_-P-r-o_v_is_h_)'_l._\·_ _ _ _ _ _~___ ______ ._ _ _ _

- - I ' : I§I3-0" 30-g" -2-1~~------ I ~I- Ge-n- er- al~p~ro-v~is~ io-n" s-- nu~tr-it-io'n--~~~----------------------~·

,!

11-"§..c:3c.:O""3-'0.=.s_ _ _ _ _--'_--'D.:...e.:...f_·11c:..:1ic:..:ti.=.o:..:.ns=--_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.______._. ____..__..'i

Chapter 46-Justice System Improvement

Ii

Subchapter XlI-F-Public SI((e~)I Officers' Dellth Benefits

il

Part A-Death Benefits

__ -.Jli

1r-§-3-7~96~d~---------.-I~~p'-.ul-·p-o.-'se~s~~-'--'~~--------------------------------------~I

1f--"-§..::.3.:.7::..96::.:d::..-.:..l_ _ _,.--_L-I_-=8,::-3s=.:.·ic=-=:elc:;io;,:.i::..:bic:..:li::...!.lY_ _-,--_ _,-::-..,--_ _ _ _--,---,---,-_____._ _.__._ _ _-ii!l
._:! I f - : : - - : - : : - : : - : - - - :S- -u-b.c.h: :a.p. :t e. .r: .X. :l:I.-.H. . :-.G, -r"a- "n-t-s' -t,o: ,C- o- -m-b' -a-t-V- -io-l'e-n- t- -C' -r-im. .e. .s: a: .g.a. .il:l.s.t- W- ' -o-m-e-l-l" - - - - - " ' - - - - - - - - - - - - - - - I ,'I
11--"§.c:3..c7.c;.9..;.6-"""g!g-_I_ _ _ _--'-I_____S_ta_te.:...·""gl_·a_n_ts_________________________________

Chapter 84-Department of Energy

:

Part A-Establishment (~lCOl1lpellslltioll Progml11 IIlId CO/illJel/.\"IItioll Fllnd

"

Subelll/pter XVI-Eller"!, Emplo)lees Occuplltiol/alllllless Compellsatioll ProgJ:~J'l!___._.____J!

§ 7384s

I Compensation and benclits to bc provided

. .

:i

§ 7384u

I Separate treatment of certain uranium employecs---------··----;I

Part C-Trea(mellt, Coordinatioll, and Forfeiture of COl1lpensation Ill/d Benefits

i

§ 7385c

Exclusivity ofrcmedy against the United Statcs and <1gainst conlractms ,1I1e1

II

I subcontractors

i

Chapter I IO-Family Violence Prevention and Sel'vices

§ 10410

I

I~ I

§ 10421

I

Definitions

I

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Chapter 129-National and Community Service

Ii

Subchapter I-National and Comlllulli~)I Service State Gmnl Progmll/

Division F-Administrative Provisiolls

§ 12639

I Evaluation

Chapter 130-National Affordable Housing

... .. - ----~---- ---. .~-~-------.------.-

Subchapter I-Geneml Provisions al/d Policies

§ 12704

I Definitions

§12713

I Eligibility under first-time home-buyer programs

Chapter 136-Violent Crime Control and Law Enforcement

:;
'-'--~'-----
---.---------.-~~-
I1,, !I

Subchapter III-Violence against Womel/

Part C-Civi/ Riallts for Women

§ 13981 § 13992

I Civil rights I Training provided by grants

Chapter 143-Intercountry Adoptions

Subchapter V-General Provisions

§ 14952

I Special rules for certain cases

'i
II
II ,i , - ' - ' - - - - - - - - - l iI::' -------------,.,

CATEGORY 2-VETERANS' BENEFITS

Title 38-Veterans' Benefits

Part II-General Benefits

Chapter 17-Hospital, Nursing Home, Domiciliary, and Medical Care

Subchapter II-Hospital, Nursing Home, 01' Domicifilll:l' Care alld Medical

Treatment § 1710B

Extended care services

·-----Ji _.._____.___________ i!

Subchapter VIII-Health Care of Persons otlier thall Veteral/s -----.--------~i

§ 1781

Medical care lor survivors and dependcnls oi'ccrl:lin l'ctl'rallS ....._---- --_. ._------_•.. j":

Chapter I8-Benefits for Children of Vietnam Veterans

Subchapter III-General Provisions

Ii

§ 1821

Definitions

Chapter 19-Insurance

Subchapter III-Servicemembers' Group Life Insurance

§ 1967

Person insured; amount

§ 1969

Deductions; payment; investment; expenses

Chapter 23-Budal Benefits

jl
I:

§ 2306

Headstones, markers, and burial receplacles

II

Part III-Readjustment and Related Benefits

,i II

Chapter 30-AII-Volunteer Force Educational Assistance Program

Iit,

Subcl/(/pter II-Basic Educational /lssislallce

_____________ -i!

§ 3020

Transfer of entitlement to basic educational assistance: membcrs 01' thc ;\I'lllCd l:ol'Ccs i

with critical military skills

Chapter 42-Employment and Reemployment Rights of Members of the Uniformed Services

§ 4215

Priority of service for veterans in Department of Labor job training programs

Part IV-General Administrative Provisions

Cha~ter 53-Special Provisions Relatin o to Benefits

§ 5302

Waiver of recovery of claims by the Uniled Stales

,----_·_·---1

§ 5313B

Prohibition on providing certain bendils wilh respccllo pcrsons I\ho ~lrc I'ligililc iClolls 11

Part V-Boards, Administrations, and Services

!
"

Chapter 77-Veterans Benefits Administration

:i

Subchapter II-Veterans Olltreach Services Prouralll

Ii
··------------·------------l!

§ 7721

i Purpose; deiinitions

Ii

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CATEGORY 3-TAXATION

Title 26-Intemal Revenue Code Subtitle A-Income Taxes

- - - - - ----- --"-~----.-

"-----

--~---.-

Chapter I-Normal Taxes and Surtaxes

Subchapter A-Determination of Tax Liability

Part IV-Credits Against Tax

SUbp(lrt A-Nonre(undable Personal Credits

§ 24

Child tax credit

§25A

Hope and lifetime learning credits

§ 25B

Tax imposed on individuals

Subchapter B-Computation of Taxa ble Income

Part III-Items Specifically Excluded (rom Gross Income

§ 101

Ce11ain death benefits

§ 138 § 221
§ 408A

Part VII-Additional Itemized Deductions j()r Individuals I Medicare + Choice MSA I Interest on education loans
Subchapter D-Deferred Compensation, Etc. Part I-Pension, Projit-S/Ulring, Stock Bonus Plal/s, Etc. Subpart A-General Rille
I Roth IRAs Subchapter F-Exempt Organizations Part VIII-Hif?her Education Savings Entities

I - - "Ii
---------1i
I'
i!
11 i II -~--------.-.~---. ---- 1',i
"-"- ---·---ii
II !

§ 529

Qualified tuition programs

§ 530

Coverdell education savings accounts

Subchapter K-Partners and Partnerships

Part IV-Special Rules(or Electinf? Large Partnerships

i

§ 774

Other modifications

;

§ 775

Electing large partnership defined Subchapter a-Gain or Loss on Disposition of Property

I
I

Part II-Basis Rules of General Application

--jlI'

§ 1022

Treatment of property acquired by dcccdent dying alter Dccel11bcl' 3 I. 200t)

~:

Subchapter W-District of Columbia Enterprise Zone

--liIi

§ 1400C

First-time home-buyer credit for District of Columbia

Subtitle B-Estate and Gift Taxes

Chapter ll-Estate Tax

§ 2057 § 2210
§ 251 I

Subchapter A-Estates Of Citizens Or Residents Part IV-Taxable Estate
Family-owned business interests Subchapter C-Miscellaneous
Termination Chapter 12-Gift Tax
Subchapter B-Transfers Transfers in general Chapter 13-Tax on Generation-Skipping T,"ansfers Subchapter D-GST Exemption

--~--~I
I" i
-------~!"
_._--_._-_. ---- - ------·1:I.
!" ,
- ---------'1I I, _._-): , 1

§ 2632

Special rules for allocation of GST exemption

Subtitle F-Procedure and Administration

§ 6015

Chapter 61-Information and Retums
Subchapter A-Returns and Records Part II-Tax Returns or Statements Subpart B-Income Tax Returns
I Relieffrom joint and several liability on joint return
Part III-Information Returns

I
Ii
II II - - - - - - - - - - - - - - - - - - 1 1II
'I
--11

Subpart B-Information Concerning Transactiolls lVith Other Persolls

Ji

§ 6045

Returns of brokers

I:

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Chapter 62-Time and Place for Paying Tax

!i

Subchapter A-Place and Due Date {or Pa)ll11ellt o{ TIIX

i,

§ 6159

I Agreements for payment ortax liability in installlllcnts

':

..- i--"-------'------"'------'------------'---~----L..-------- - . - - - . - - - - - - - ..-.----- - . ,

Chapter 63-Assessment

1I-_ _ _ _ _ _"S:..clc..l'-1C:...'.:.cl(,:.Llp=-lf-=-eJ_'-"C_-=-J',.;;;;u.x:.c-,T=-J-'C'e.;;;;aco..-,l1=-e_n,-t-=.o/,-'-=-P.;;;;(],-rt=-lI:..::e_r,,-\-I_li.Lp)__I=-t~'-"-,1/,-S___________ ________ ---Ji

§ 6230

I Additional administrative provisions

Chapter 66-Limitations

Subchapter B-Limitations on Credit or Re{und

§ 6511

I Limitations on credit or refund

I

CATEGORY 4-FEDERAL CIVILIAN AND MILlTAR't' SERVICE BE~EFITS

Title 5-Government Organization and Employees

I" i

-_._----- --------

-

.

Part III-Employees

:1

Subpart A-General Provisions

Chapter 23-Merit system principles

§ 2301 § 2302

I Merit system principles
J Prohibited personnel practices

Subpart B-Employment and Retention

Chapter 33-Examination, Selection, and Placement

Subchapter I-Examination, Certificatio/1 alld Appointment

§ 3301

I Civil service; generally

Subpart D-Pay and Allowances

i,
--------jl
------"II I;

§ 5737

Chapter 57-Travel, Transpor'tation, And Subsistence

Ii

-I Subchapter II-TJ'avel And Transportation Expenses; Nell' Appointees, Stlldent Tmillees, ~I

And Trans{erred Emplovees

:

r R,I"",oo exp,",,, 0 '0 ''''ploy'' who " p,dom,'"g"0 ,,,,,;cleo ",,' g" m''''

Chapter' 59-Allowances

Subchapter III-Overseas Differentials And Allowallces

.

§ 5922

General provisions

Subpart G-Insurance and Annuities

Chapter 90-Long-term Care Insurance

§ 9001

Definitions

§ 9002

Availability of insurance

§ 9003

Contracti ng authority

!I
- - - : 1!'Ii
_.._ - - - - - - - - - - - - - .Ii
:1
ii
1

Title 6-Domestic Security Chapter I-Homeland Security Organization

--_ _ - " - - - - - - - - .._-- --.~.---

... . .---------

§ 33 I

I Treatl:len,t of charitable trusts for members orthe armed serl'iees ClI;;J-;thcr g~~I:;-~lcnt,i1-----

orgal1lzatlons

Title lO-Armed Forces Subtitle A-General Military Law

--------~--

Part I-Organization and General Militar'y Powers

II

Chapter 2-Department of Defense

§ 1I8a

Quadrennial quality of life review

Part II-Personnel

IIi' ~i,
-- ... ~"- _.. -- -------.. ~' Ii
II

Chapter 55-Medical and Dental Care

II

§ 1108

Health care coverage through federal employees' health belleiits progr,lll1: dClllllllstl-,lti()1l I I

project Chapter 73-Annuities based on Retired or Retainer Pa~'

_ _,IIi Ii

§ l448a

Subchapter I1-Survivor Bene/it Plan

Ii

Election to discontinue participation: one-year opp0rlun ity a/lei' sccolld an niICI-S,lI-Y () r

-l

commencement of payment of retired pay

!I

Chapter 88-Military Family Care Programs and Military Child Can~

11

Subchapter II-Military Child Care

JI,

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§ 1798

Child care services and youth program services for dependents: financial assist81lce Jor

I providers

Title 37-Pay and Allowances of The Uniformed Services
II-------=::c-''-------=----::::---------------------~

_____

-------

Chapter 7-Allowances

--J

§ 403 § 407

Basic allowance for housing Travel and transportation allowances: dislocation alIO\\ 8IlCC

Iii'
_

§ 41lf

Travel and transportation allowances: transportation Jor sun i\ ms 0 f deceased mcmbcr '0 II

attend the member's burial ceremonies

II

§ 427

Family separation allowance

CATEGORY 5-EMPLOYMENT BENEFITS AND RELATED STATUTORY PROVISIONS

Title 29-Labor

-_..- - - - -

..---

Chapter 30-Workforce Investment Systems

Subchapter I-Workforce Investment Definitiolls

§ 2801

Definitions

Subchapter IV-National Pro<Jrams

§ 2918

National emergency grants

Ii
Ii i:
Ii
-----~=]!
i
--

Title 30-Mineral Lands and Mining Chapter 25-SUl'face Mining Control and Reclamation

--"-------- ----"

-------

.~--.

---

Subchapter VII-Administrative and Miscellaneous Provisions

§ 1304

Surface owner protection

Title 42-The Public Health and Welfare Chapter 46-Justice System Iml)rOVement

.._------------ --.-------- -- -. ---

---

Subchapter XII-Public Safety Officers' DelltlI Bellefits

I

I

Part B-Educational Assistallce to Dependellts (~j' Civili(/II Fedeml Ll/lI' Ellfilrcelll(,l1/

Officers Killed or Disabled in the Line ofDuZv

I
1

§ 3796d

Purposes

§ 3796d-l

Basic eligibility

Chapter 84-Department of Energy

Subchapter XVI-Energy Employees Occupational Illness Compensation Pr!}gra/11

§ 7384s § 7384u § 7385c

Compensation and benefits to be provided

--,

Separate treatment of certain uranium employees

::

-.JI
Exclusivity of remedy against the United States anciagainst contractors ami SUbC\lIltr~lCl()I-S

CATEGORY 6-IMMIGRATION, NATlJRALIZATIO;'oi, Ai\D ALlEi\S

Title 8-Aliens and Nationality Chapter 12-Immigration and Nationality

.. _-" - - - - - - - - - ------

Subchapter /I-Immigration

Part /I-Admission Qualifications/For Aliens; Travel Control o.j'Citizens And Aliens ---~---".-.-----

§ 1183a

Requirements for sponsor's affidavit or support

--

Part IV-Inspection, Apprehension, Examination, Exclusion, lind Removal

§ 1227

General classes of deportable aliens

§ 1229a

Removal proceedings

§ 1229b

Cancellation of removal; adjustment of status

§ 1229c

Voluntary departure

Part IX-Miscellaneous

§ 1367

Penalties for disclosure of information

--

---J!i

- - - ------.-~ -~--'---

---,I
i

-II

§ 1375

Mail-order bride business

Page 7

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Chapter I4-Restricting Welfare and Public Benefits for Aliens

Subchapter IV-General Provisions

§ 1641

I Definitions

if
- - - 1: ...~-------
_ _ _ _ _ _ _ .11

Chapter IS-Enhanced Border Security and Visa Entry Reform

Subchapter V-Foreign Students and Exc/tal1!{e Visitors

§ 1761

I Foreign student monitoring program

Title I9-Customs Duties

il
-11II II

Chapter 24-Bipartisan Trade Promotion

._ - .._"_.--- -- ---.~ "- - .- --- - ----

I ----II § 3805note

United States-Chile Free Trade Agreement Implementation !\cl

I;

CATEGORY 7--INDIANS

Title 2S-Indians Chapter IS-Indian Health Care

-- _ - - - - - - - -----~------.-.-------

...

Subchapter II-Health Services

§ 1621h

Mental health services

Chapter 24-Indian Land Consolidation

§ 2206 § 2216
§ 4103
§ 4221

I Descent and distribution I Trust and restricted land transactions
Chapter 43-Native American Housing Assistance and Self-Determination
I Definitions
Subchapter VIII-Housin~ Assistance(or Native Hawaiians
I Definitions

;1
,I
---------1: II

CATEGORY S-TRADE, COMMERCE, AND INTELLECTUAL PROPERTY

Title 12-Banks and Banking Chapter 13-National Housing

--.---~---------------

_- - _..

- -- - -

§ 1701q

Supportive housing for the elderly

Subchapter II-Mort~a~e Insurance

§ 1707

Definitions

§ 1713

Rental housing insurance

§ 1715e

Cooperative housing insurance

Chapter 17-Bank Holding Companies

§ 1841

Definitions

Chapter 31-National Consumer Cooperative Bank

Subchapter I-Establishment and Operation

§ 3015

Eligibility of cooperatives

Chapter 32-Foreign Bank Participation in Domestic Markets

§ 3106a

Compliance with state and federal laws

Title IS-Commerce and Trade Chapter 14A-Aid to Small Business

_._- .

-_.-------

§ 632 § 696 § 1691

Small business concern Chapter 14B-Small Business Investment PI"ogram
Subchapter V-Loans to State and Local Development Companies Loans for plant acquisition, construction, conversion, and expansion
Chapter 41-Consumer Credit Protection Subchapter IV-Equal Credit Opportuni(F Scope of prohibition

--I
----- -11il
---- ---
II II

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CATEGORY 9-FINANCIAL DISCLOSURE AND CONFLICT OF INTEREST

Title 7-Agriculture

Chapter 50-Agricultural Credit

Subchapter VI-Delta ReJ;ional Authoritv

§ 2009aa-1

I Delta Regional Authority

Subchapter VII-Northern Great Plains Regional Authority

§ 2009bb-1

I Northern Great Plains Regional Authority

Subchapter IX-Rural StrateJ;ic Investment ProJ;ram

§ 2009dd-3

I National Board on rural America

.--~---.

~ ----

Ii

--

--

!i

Ii
.. _---_._------ Ii

I
----~-----II
I

CATEGORY 10-CRIMES AND FAMILY VIOLENCE

Title 18-Crimes and Criminal Procedure

_- .. __ ..
.----~-.---

-- --

;1

Part I-Crimes

Chapter 46-Forfeiture

§ 983

I General rules for civil forfeiture proceedings

Chapter 11 OA-Domestic Violence

§ 2261A

I Interstate stalking

Title 20

- - - - - - - - - -~---.--.------.

-,,-_.- ---

----

Chapter 28-Higher Education Resources and Studcnt Assistancc

Subchapter VIII-Miscellaneous

§ 1152

I Grants to combat violent crimes against women ()n campuses

Title 28-Judiciary and Judicial Procedure Part V-Procedure

-.- -----_ ..

Chapter lIS-Evidence; Documentary

- - - - . . . --------- ~-----~.-

-

. --

§ 1738C

I Certain acts, records, and proceedings and the effect thereof

...._---- .

Title 42-The Public Health And Welfare

Chapter 13S-Violent Crime Control and Law Enforcement

Subchapter III-Violence against Women

Subpart 3-Rural Domestic Violence and Child Abuse Enforcement

Part C-Civil Rightsfor Women

§ 13981

I Civil rights

Part D-Equal Justicefor Women in the Courts Act

Sub]Zart I-Education and Training (or Jud~es alld Court Personnel in Slatl! COllns

§ 13992

I Training provided by grants

CATEGORY ll-LOANS, GUARANTEES, AND PAYMENTS IN AGRICULTURE
No new provisions in this categorJl O(stlltlltes. CATEGORY 12-FEDERAL NATURAL RESOURCES AND RELATED STATUTORY PROVISIONS
No new provisions in this categorJl o(statlltes.

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CATEGORY 13-MISCELLANEOUS STATUTORY PROVISIONS

Title 20-Education

II

Chapter 70-Strengthening and Improvement of Elementary and Secondary Schools

I

Subchapter II-Preparing, Training, and Recruiting High Qualit)' Tellchers lind Principals I.

Part C-lnnovation for Teacher Quuli(l'

ill

Subpart I-Transition to Teaching

I

§ 6674

Participation agreement and financial assistance

il

Subchapter VII-Bilingual Education, Language Enhancement, lind Langllage

II

Acquisition Programs

IIi'

Part B-Native Hawaiian Education

§ 7512

Findings

Title 22-Foreign Relations and Intercourse

Chapter 75-Chemical Weapons Convention Implementation

Subchapter I-General Provisions

§ 6713

Civil liability of the United States

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APPENDIX 2
Tables of Statutory Provisions Identified in 1997 Report as Involving 'Vlarital Statll.~ That Have Been Repealed or Amended to Remove Reference to iVIa rital Status

Category l-Social Security and Related Programs, Housing, and Food Stamps

Subject Regulations pertaining to garnishments

1997 Statutory Citation 42 U.S.C. §§661-662

Status Repealed by Pub. L. No.1 04-193. § 362(b)( 1). elTeclive February 22. 1997. I 10 Stat. 22--l(,.

CategolJI 3-Taxation
Subject Collapsible corporations
Rollover of gain on sale of principal residence Tax on excess distribution from qualified retirement plans

1997 Statutory Citation 26 U.S.C. § 341
26 U.S.C. § 1034
26 U.S.c. § 4980A

Status

Repealed by Pub. L. No. 108-27.

-f

§ 302(e), May 28, 2003, 117 Stat. 763.

Repealed by Pub. L. No. 105-34,

§ 312(b). Aug. 5.1997.111 Stat. 8~(}.

,RepealecJ by Pub. L. No. I()5-34,
s 1073(a), Aug. 7, 19l J7. III St:lt. \)"IX.

Category 4-Federal Civilian and Military Service Bene/its

Subject

1997 Statutory Citation

Status

Employment of retired members of 5 U.S.c. § 5532

Repealed by Pub. L. No. 106-65,

the uniformed services; reduction

§ 651(a)(I), Oct. L 1999, 113 Slat. 664.

in retired or retainer pay

Assistance to separated members to 10 U.S.C. § 1151

Repealed by Pub. L. No. 106-655,

obtain certification and

§ 1707(a)( I), Oct. 5, 1999, 113 Stat.

employment as teachers or

823.

I

r--e:-:m:,:r:p:.:..lo"'y:..:.n:..:.1e;:.:l1.:.::t:..:.a:::.s:..:.t:.:..ea::..:c:..:.h:..:.e:..:.rs:,..':..:.a::..:id:..:e:..:.s--+----::-c,..,.....,,---:---,-_-:-_ _ _ _ _1-_ _ _,.--______ - - - -... ~-.~I

Military child care employees

10 U.S.C. § 1792

Amended by Pub. L. No. 105-26\.

II

§ 1106, Oct. 17. 1998. 112 Slat. 21"1::':

reJ"el-ence to m,u'ital status l'CIllO\·ed.

Job training partnership,

29 U.S.c. § 1706

Repealed by Pub. L. No. 105-220,

application of federal law

§ 199(b) (2), elTectivc July 1, :2000. 112

Rights, benefits, privileges, and

33 U.S.c. ~ 857a

I Stat. 1059.

I

Repealed by Pub. L. No. 107-372.

immunities; exercise of authority of Secretary of Commerce or

§ 271(2), Dec. 19.2002,116 Stat. 3004 II and replaced with silllilal' provisions th8l I

designee (National Ocean Survey employees)

omit any reference to 1ll,1I'ital status. ~_g I
~c~3tn~~;'~~~I~~~~lll:l~i~~::)tlll~::i~~~canic <1I1d Jill

oillmissionec 0 Illce!' ___:orps - Rights

and benefits).

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Category 5-Employment Benefits and Related Statutory Provisions

Jl--:=S~uc.:.b",-;j'le:...:c-'.t-:--;-_ _ _-----c;:---:-_ _+1::-:9:..::9:-,7:-S::-t::.::a:.:.tu=ct:.:o:.:.rL..CyC::.:i:.:.ta:.:,:t:.:.io::.:'cJ:.._ _rS:..:t.::a:..:tl::.::ls'----:--:---:-:--:-_--,--:-._ _---:-,--,-______ li

Youth training program for the

29 U.S.c. ~ 1644

Repealed by Pub. L. No. I()5-220.

Ii

disadvantaged

~ I99(b)(:2). ellcCli\c .Il1h I. ~()O(). 1 1'2 !I

IIJ-o-b:-C-:o--r=p-s---A--l:l-o:w-:a-n--c-e-s--a-n,d----+---::-c2-9-cU--.:sc.-c-.:-~--1-6-9--9c-:-------~...:S:·I~~l:C:. ICl'l:.:C. .e,.I:l(l)~5Jlt) ;:-i-;~;!~!~~l-)-i7l~--2-2()~-

-

-

-

:

;:
:

support

~ 199(b)(~). clleclin:.Il1i) I. ~()()(). 11'2 Ii

Stal. 1059.

Labor market information

29 U.S.c. ~ 1752

Repealed by Pub. L. No. 105-220,

~ 199(b)(2), effective July 1,2000, 112

Stat. 1059.

Category 6-Immigratioll, Naturalization, and Aliens

Sub.ject

1997 Statutory Citation

Suspension of deportation of aliens 8 U.S.c. ~ 1251

Status Repe,lied by I'lib. L.. ~'l. 11I4-~(IK. ~ 308(b)(7), Sep. 30.19%.110 StOlL 3009-615.

Category 9-Financial Disclosure and Conflict of Interest

SUb.ject Alternative Agricultural Research and Commercialization Corporation-Board of Di rectors, Employees, and Facilities

1997 Statutory Citation 7 U.S.c. § 5903

Status Repealed by Pub. L. No. 107-171. ~ 620 I(al. May 13. 200~. 116 Stal. "II X.
I

Category IO-Crimes and Family Violence

Subject Interstate violation of a protection order
Narcotic addict rehabilitationdefinitions
Model state leadership grants for domestic violence intervention

1997 Statutory Citation 18 U.S.c. § 2262
42 U.S.C. § 3411
42 U.S.c. § 10415

Status Amended by Pub. L. 106-3 86, ~ I 107, Oct. 28, 2000,114 Stal. 1464: reJCrencc to marital status removed. Repealed by I)ub. L. No. 106-.110. ~ 3405(b). Oel. 17. ~O()(J. I 14 Slell. 1221. Repealed by Pub. L. No. IOil-36. ~ .:I IO. June 25, 2003, 117 Stat. 827.

Category II-Loans, Guarantees, and Payments in Agriculture

Subject Paul Douglas Teaching Scholarships-exceptions to

1997 Statutory Citation 20 U.S.C. ~ 1104g

Status

JI

Amendcd by I)ub. L. No. I05-244. ~ !i

50 J. October 7. 1991L I I~ SUit 15X I: Ii

repayment provisions refercnce lo marital Slatll:; IClllO\ cd. "Ii ..- " , I~:...::..::c";=-':::'-'...L:..::___:_:.:..:.c=-:::--:c,.__---:-:--+--=-=---::-:--:::-:=---:----:--:-:-----_+--,:..:...~::..::..:,-:..::...:....:..:~·.:.:..:::.:::..:..::.:.....:..::.:..:.:,:-.:..:·-

Faculty Development Fellowship 20 U.S.c. § J 1341'-5

Repealed by I'lib. I.. i\o. I05-24·1. ~ "

Program-exceptions to repayment

70 J, October 7. J99S, 112 Stal. 15ill. I1I1

provisions

I

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Category 13-Miscellaneolls Statutol)' Provisions

Subject Vocational education state plans
Vocational education definitions
Agricultural Hall of Fame
Audits of Federally Chartered Corporations Gold Star Wives of America
Navy Wives Clubs of America
Aviation Hall of Fame
Membership of Martin Luther King, Jr., Federal Holiday Commission Testing and other early intervention services for state prisoners Programs for older AmericansDemonstration projects

1997 Statutory Citation 20 U.S.c. § 2323 20 U.S.C. § 2471 36 U.S.C. § 977 36U.S.C.§ 1101 36 U.S.c. § 1602
36 U.S.c. § 2802
36 U.S.c. § 4307 and § 4309 36 U.S.C. § 169j-3 42 U.S.C. § 300ff-48

Status

Amended by Pub. L. No. I05-33:!. ~

I(b), October 3 I. 1998.1 12 Stal. 3076;

reference to marital status removed.

Amended by Pub. L. No. I05-332, ~

l(b),October31, 1998, 112 Stat. 3076:

reference to marital status removccl.

Amended by Pub. L. No. I05-35·+' ~ I.

Aug. 12. 1998. 112 Slat. 32:lS: reICrcncc ! to marital status removcd.

Amended by Pub. L. No. I05-2h ~ I.

Aug. 12, 1998, 112Swl. 1253;rclcrence

to marital status l"CmolcLi.

/\mendccl by Pub. L. 1\!o. I05-225. ~ I. I

~ /\ ug. 12. 1998, I 12 Stal. I:!53: replaced II
pnwi,i,,,, -, ,"",-",,, '" --gold oi,,,--

with '·cmporation'·. (The naillc nl'the

organization continues to be the (,old

Star Wives 01' Amcrica.)

I

Amenclcd by Pub. L. ~o. 105-225. ~ I. ,i

Aug. 12. 1998. 112 Slat. 143(): ITpl<\ccd II pl"Ovision's rclCrencc ttl "NellY \vil'cs"' I with "corporation". (Thc name or thc

organization continues to be the Navy

Wives Clubs of America.)

Amcnded by Pub. L. No. 105-225. § I.
Aug. 12, 1998, 112 Stal. 1312. These l
pl"Ovisions' rclcrcnces to "slII"vivors" ,iI .1
\vcre deleted. Repealed by Pub. L. No. I05-225. ~ O. I'1,

Aug. 12, 1998, I 12 Stal. 1253.

I

I

I

Repealed by Pub. L. No. 106-345.

§ 30 I(a), Oct. 20, 2000, 114 Stal. 1345.

42 U.S.C. § 3035a

Provision was omitted by I)ub. L. No. 106-501, Nov. 13,2001. I 14Stal. 2257.

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APPENDIX 3
Tables of Statutory Provisions Identified in 1997 Report as lnvo\ying i\1arital Status That Have Been Relocated in the United States Code

Category l--Social Security IIl1d Related Programs, HOllsing, lind Food SllImps

Subject Alien's eligibility for benefits

1997 Statutol-y Citation 42 USC ~ 615

Status Relocated to 42 USC ~6mw)

Category 2-Veterans' Benefits
Subject Medical care for survivors and dependents of certain veterans

1997 Statutory Citation 38 U.S.C ~ 1713

Sta tus Relocated to 3g USC ~ Inl

-il

Category 4-Federal Civilian and Military Service Benefits

Subiect House of Representatives Child Care Center National Oceanic and Atmospheric Administration commissary privileges Gratuities for survivors of deceased House employees; computation Senate employee child care benefits

1997 Statutory Citation 40 U.S.C. § 184g 33 U.S.c. § 857-4
40 U.S.c. § 166b-4 40 U.S.C. § 214d

Status Relocated to 2 U.S.c. ~ 2062 Relocated (0 33 usc. ~ 3(J74
Relocated to 2 U.s.c. ~ 125 Relocated to 2 U.S.c. ~ 2063

Category 5-Employment Benefits and Refllted StiltutOIY Provisions

Sub.iect Job training partnershipdefinitions

1997 Statutory Citation

Status

1
i

29 U.S.C. § 1503

Relocateclto 29 U.s.c. ~ 280 I

II

Category 6-Immigration, Naturalization, and Aliens
1997 Statutor Citation 8 U.S-C. § 1251

Status Relocated to 8 U.s.c. ~ 1227

Category 7-Indians

Subject

1997 Statutory Citation

Status

j

Indian land consolidation-

25 U.S.C. § 2205

Relocated to 25 U.s.c. ~ 22C16

Descent and distribution

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Category 9-Finaneial Disclosure and Conflict of Interest

Subject

1997 Statutory Citation

Status

Appalachian Regional Commission-personal financial interests

40 U.S.c. § 108

Relocated to 40 U.S.c. ~ 14.109

I'I

:1

Category 10-Crimes and Family Violence

Sub.ject Family violence prevention and Services-definitions

1997 Statutory Citation 40 U.S.C. § 10408

Status Relocated to 40 U.S.c. ~ 10421

Category J3-Misce//aneolls StatlltOl:)) Provisions

Sub.jeet Marine Corps League
Veterans of Foreign Wars of the United States Legion of Valor of the United States of America Veterans of World War I of the United States of America The Congressional Medal of Honor Society of the United States Blinded Veterans Association
National Woman's Relief Corps, Auxiliary to the Grand Army of the Republic Gold Star Wives of America
American Ex-Prisoners of War
Catholic War Veterans of the United States of America, Inc. Navy Wives Clubs of America
Army and Navy Union oCthe United States Non-Commissioned Officers Association of the United States Retired Enlisted Association, Incorporated National Fallen Firefighters Foundation Public Health Service grants for services of substance abusers Programs for older Americansstate plans

1997 StatutoI)' Citation 36 U.S.c. § 57a
36 U.S.c. § 113

- - Status - -_ -----~

-~

_._~-~-_.-

--

..

_0. __------ __ . ~

Relucatcd t,) (h~\pICr 231) I

§ 140102
Rcloc,llCd to chapter no I
§ 230102

------~-li
II
i

36 U.S.C. § 633

Rclocated to chapter 1303 § 130302

36 U.S.c. § 763 36 U.S.C. § 793 and § 799 36 U.S.c. § 859 36 U.S.c. § 1005

Relocated to chapter 2303 § 230302 Relocatcd to chaptcr 405 § 40502 and ~ 4()50G
Rclocatcd to chapte\' .,0.1 § 3()307
Rclocated to chapter 15.,7 § 153703

1!II
--·~---i!
i
:!
-----1'
!!

36 U.S.C. § 1601 36 U.S.C. § 2103 36 U.S.c. § 2603 36 U.S.c. §280 I and § 2803 36 U.s.c. § 3903 36 U.S.C. § 4003 36 U.S.C. § 5103 36 U.S.C. § 5201 42 U.S.c. § 280d

Relocated to chapter 805 § 80502

Relocated to chapter 209 § 20903

Relocated to chapter 40 I § 40103

I
Ii

---.--~------<
Relocated to chapter 15-1:;. ~ 15-151):2

"

and ~15-15()3.

- - - -----~-----.---.-------.-.

-----

j:

Relocated tu (h~qllCI' :22')

§ 2:2903

'!

Relocatcd to chapter 1547 § 4003

Relocated to chapter 1903

§ 190303

Relocated to Chapter 15 I 3 § 151302

Relocated to 42 USc. § :290hb-:25

42 U.S.c. § 3035

Relocated to -12 liSe. ~ 30n

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APPENDIX 4 CATEGORIES OF STATUTORY PROVISIONS

CATEGORY I-SOCIAL SECURITY AND RELATED PROGRAMS, HOUSING, AND
FOOD STAMPS
This category includes the major federal health and welfare programs, particularly those considered entitlements, such as Social Security retirement and disability benefits, rood stamps, welfare, and Medicare and Medicaid. Most of these provisions are found in Title 42 ofthe United States Code, Public Health and Welfare; food stamp legislation is in Title 7, Agriculture.
CATEGORY 2-VETERANS' BENEFITS
Veterans' benefits, which are codified in Title 38 of the United States Code, include pensions. indemnity compensation for service-connected deaths, medical care, nursing home care, right to burial in veterans' cemeteries, educational assistance, and housing. Husbands or wives of veterans have many rights and privileges by virtue of the marital relationship.
CATEGORY 3-TAXATION
While the distinction between married and unmarried status is pervasive in federal tax law. terms such as "husband," "wife," or "married" are not defined. However, marital status figures in federal tax law in provisions as basic as those giving married taxpayers the option to file joint or separate income tax returns. It is also seen in the related provisions prescl'ibing different tax consequences, depending on whether a taxpayer is married filing jointly, married filing separately, unmarried but the head of a household . or unmarried and not the head of a household.
CATEGORY 4-FEDERAL CIVILIAN AND MILITARY SERVICE BENEFITS
This category includes statutory provisions dealing with current and retired federal officers and employees, members of the Armed Forces, elected officials, and judges, in which marital status is a factor. Typically these provisions address the various health, leave, retirement. survivor, and insurance benefits provided by the United States to those in federal service and their families.
CATEGORY 5-EMPLOYMENT BENEFITS AND RELATED PROVISIONS
Marital status comes into play in many different ways in federal laws relating to employment in the private sector. Most provisions appear in Title 29 of the United States Cocie. Labor.

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However, others are in Title 30, Mineral Lands and Mining; Title 33, Navigation and Navigable Waters; and Title 45, Railroads. This category includes laws that address the rights of employees under employer-sponsored employee benefit plans; that provide for continuation of employer-sponsored health benefits after events Iike the death or divorce 0 I' the employee; and that give employees the right to unpaid leave in order to carc 1'01" a seriously ill spouse. In addition, Congress has extended special benelits in connection with certain occupations, like mining and public safety.
CATEGORY 6-IMMIGRATION, NATURALIZATION, AND ALIENS
This category includes federal statutory provisions governing the conditions under which noncitizens may enter and remain in the United States, be deported, or become citizens. i\fIost are found in Title 8, Aliens and Nationality. The law gives special consideration to spouses of immigrant and nonimmigrant aliens in a wide variety of circulllstances. Under immigration law, aliens may receive special status by virtue of their emplo~mellt. C1ncirhal treatment may extend to their spouses. Also, spouses of aliens granted asylulll can be givcn the same status if they accompany or join their spouses.
CATEGORY 7-INDIANS
The indigenous peoples of the United States have long had a special legal relationshiri with the federal government through treaties and laws that are classified to Title 25, Indians. Various laws set out the rights to tribal property of "wh ite" men marrying "Ind ian" \vomen. or of "Indian" women marrying "white" men. The law also outlines the descent and distribution rights for Indians' property. In addition, there are laws pertaining to health care eligibility for Indians and spouses and reimbursement of travel expenses of spouses and candidates seeking positions in the Indian Health Service.
CATEGORY 8-TRADE, COMMERCE, AND INTELLECTUAL PROPERTY
This category includes provisions concerning foreign or domestic business and cOlllmerce. in the following titles ofthe United States Code: Bankruptcy, Title 11; Banks and Banking. Title 12; Commerce and Trade, Title 15; Copyrights, Title 17; and Customs Duties, Title 19. This category also includes the National Housing Act (rights of mortgage borrowers); the Consumer Credit Protection Act (governs wage garnishment); and the Copyright Act (spousal copyright renewal and termination rights).
CATEGORY 9-FINANCIAL DISCLOSURE AND CONFLICT OF INTEREST
Federal law imposes obligations on members of Congress, employees or ofl~cers oethe federal government, and members of the boards of directors of some government-related or government chartered entities, to prevent actual or apparent conflicts of interest. These individuals are required to disclose publicly certain gifts, interests, and transactions. Many of
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these requirements, which are found in 16 different titles of the United States Code. apply also to the individual's spouse.
CATEGORY lO-CRIMES AND FAMILY VIOLENCE
This category includes laws that implicate marriage in connection with crim inaljusticC' or family violence. The nature of these provisions varies greatly. Some deal with spouses as victims of crimes, others with spouses as perpetrators. These laws are found primarily in Title 18, Crimes and Criminal Procedure, but some statutory provisions, dealing with c:'illlc prevention and family violence, are in Title 42, Public Health and Weli'are.
CATEGORY ll-LOANS, GUARANTEES, AND PAYMENTS IN AGRICULTURE
Under many federal loan programs, a spouse's income, business interests. or assets ,liT taken into account for purposes of determining a person's eligibility to participate in thc program. In other instances, marital status is a factor in determining the amount of federal assistance to which a person is entitled or the repayment schedule. This category includes education loan programs, housing loan programs for veterans, and provisions governing agricultural price supports and loan programs that are affected by the spousal relationship.
CATEGORY 12-FEDERAL NATURAL RESOURCES AND RELATED PROVISIONS
Federal law gives special rights to spouses in connection with a variety or transactions
involving federal lands and other federal property. These transactions include JiLlI'chnse :1I1c1 sale ofland by the federal government and lease by the government of water ami III ineJ'al rights.
CATEGORY 13-MISCELLANEOUS PROVISIONS
This category comprises federal statutory provisions that do not fit readily in any of the other 12 categories. Federal provisions that prohibit discrimination on the basis of marital status are included in this category. This category also includes various patriotic societies chartcl'Cd in federal law, such as the Veterans of Foreign Wars or the Gold Star Wives of /\mcrica.

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Home » Briefing Room » Justice News

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DeparnnentofJustice

FOR IMMEDIATE RELEASE

Office of Public Affairs

Wednesday, February 23, 2011

Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act
WASHINGTON - The Attorney General sent the following letter today to Congressional leadership to inform them of the Department's course of action in two lawsuits, Pedersen u. OPMand Windsor u. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. A copy of the letter is also attached.

The Honorable John A. Boehner Speaker U.S. House of Representatives Washington, DC 20515

EXHIBIT
7

Re: Defense of Marriage Act

Dear Mr. Speaker:

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to ad\~se you of the Executive Branch's determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has pre,~ously defended DOMA against legal challenges invoh~ng legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are snbject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsoru. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen u. OPM, No. 3:1O-CV-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced argnments to defend DOMA Section 3 under the binding standard that has applied in those cases. ii
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual olientation warrant heightened scrutiny and that, as applied to same-sex couples legally manied under state law, Section 3 of DOMA is unconstitutional.

Standard of Review

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual olientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a histOlY of discrimination; (2) whether indh~duals "exhibit ob,~ous, immutable, or distinguishing charactelistics that define them as a discrete group"; (3) whether the group is a minolity or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen u. Gilliard, 483 U.S. 587, 602-03 (1987); City ojCleburne u. Cleburne Liuing Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of pnrposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes tl1at continue to have ramifications today. Indeed, until very recently, states have "demean[ed] theE] existence" of gays and lesbians "by making their private sexual conduct a crime." Lawrence u. Texas, 539 U.S. 558, 578 (2003). iii
Second, while sexual Oiientation carries no \~sible badge, a gro,,;ng scientific consensus accepts that sexual orientation is a characteristic tl1at is immutable, seeRichard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, seeDon't Ask, Don't Tell Repeal Act Of2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).

Third, the adoption oflaws like those at issue in Romer u. Euans,517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the militalY, and tile absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirelyto gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when tile Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

Finally, there is a gro,,;ng acknowledgment that sexual orientation "bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (induding the pending repeal of Don't Ask, Don't Tell), in community practices and attitudes, in case law (including the Supreme Court's holdings in Lawrenceand Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g.,Statement by the President on the Don't Ask, Don't Tell Repeal Act of 2010 ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.")

To be sure, there is substantial circuit court authority applying rational basis re,;ew to sexual-olientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensnal same-sex sodomy may be climinalized under Bowers u. Hardwick, then it follows that no heightened review is appropriate - a line of reasoning that does not sun~ve the overruling of Bowersin Lawrence u. Texas, 538 U.S. 558 (2003). iv Others rely on claims regarding "procreational responsibility" that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual Oiientation that we
do not believe can be reconciled with more recent social science nnderstandings. '" And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis re,~ew in its most recent decisions addressing
classifications based on sexual orientation, Lawrenceand Romer. ,i But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even sun~ve the more deferential rational basis standard.

Application to Section 3 ofDOMA

In re,~ewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state pnrposes, not rationalizations for actions in fact differently grounded." United Statesv. Virginia, 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." Id. at 533.

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US Justice: Print Friendly Version

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In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.
Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. ,.;; See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or fear" are not permissible bases for discriminatory treatment); see alsoRomer, 517 U.S. at 635 (rejecting rationale that law was supported by "the liberties oflandlords or employers who have personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsorand Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Noh,~thstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D] ifferent cases can raise very different issues ,,~th respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department ,~ll defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). 111is is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Depaltment's lawyers to immediately inform the district courts in Windsorand Pedersenof the Executive Branch's view that heightened scrutiny is the appropriate standard of re,~ew and that, consistent ,,~th that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3's constitutionality may be proffered under that permissive standard. Our attorneys "~ll also notifY the courts of our interest in prO\~ding Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States thronghont the litigation.
Furthermore, pursuant to the President's instructions, and npon further notification to Congress, I ,~ll instruct Department attorneys to ad'~se courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard shonld apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsorand Pedersencases would be dne on March n, 2011. Please do not hesitate to contact us ifyou have any qnestions.
Sincerely yours,
Eric H. Holder, Jr. Attorney General
;DOMA Section 3 states: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union behveen one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a ,~fe."
;;See, e.g., Dragovich v. U.S. Department qfthe Treasury, 2011 WL 175502 (N.D. Cal. Jan. 18, 20n); Gill v. Office qfPersonnel Management, 699 F. Supp. 2d 374 (D. Mass. 2010); Smelt v. Countlj of Orange, 374 F. Supp. 2d 861, 880 (C.D. Cal.,2005); Wilson v.Ake, 354 F.Supp.2d 1298, 1308 (M.D. Fla. 2005); In re Kandu, 315 B.R. 123, 145 (Bkrtcy. W.D. Wash. 2004); In re Levenson, 587 F.3d 925,931 (9th Cir. E.D.R. Plan Administrative Ruling 2009).
;;;While significant, that history of discrimination is different in some respects from the discrimination that burdened African-Americans and women. See Adm·and Constmctors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (classifications based on race "must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States," and "[t]his strong policy renders racial classifications 'constitutionally suspect."'); United States v. Virginia, 518 U.S. 515, 531 (1996) (obsen~ng that "'our Nation has had a long and unfOltunate history of sex discrimination'" and pointing out the denial of the right to vote to women until 1920). In the case of sexual orientation, some of the disclimination has been based on the incorrect beliefthat sexual orientation is a beha,~oral characteristic that can be changed or subject to moral approbation. Cj Cleburne, 473 U.S. at 44' (heightened scrutiny may be warranted for charactelistics "beyond the indh~dua]'s control" and that "velY likely reflect outmoded notions of the relative capabilities of' the group at issue); Boy Scouts qfAmerica v. Dale, 530 U.S. 640 (2000) (Stevens, J., dissenting) ("Unfavorable opinions about homosexuals 'have ancient roots.'" (quoting Bowers, 478 U.S. at 192)).
;VSeeEqualitlj Foundation v. City ofCincinnati, 54 F.3d 261, 266-67 & n. 2. (6th Cir. 1995); StGffan v. Perry, 4' F.3d 677,685 (D.C. Cir. 1994); Woodward v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989); Ben-Shalom v. Marsh, 881 F.2d 454,464 (7!I1 Cir. 1989); Padula v. Webster, 822 F.2d 97, 103 (D.C. Cir. 1987).
'See, e.g., Loftonv. Secretary ofthe Dep't ofChildren & Family Servs., 358 F.3d 804, 818 (nth Cir. 2004) (discussing child-rearing rationale); High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563,571 (9th Cir. 1990) (discussing immutability). As noted, this Administration has already disavowed in litigation the argument that DOMA serves a governmental interest in "responsible procreation and child-rearing." H.R. Rep. No. 104-664, at 13. As the Department has explained in numerous filings, since the enactment of DOMA, many leading medical, psychological, and social welfare organizations have concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.
';SeeCook v. Gates, 528 F.3d42, 61 (1st Gir. 2008); Citizens for Equal Prot. v. Bruning, 455 F.3d 859,866 (8th Cir. 2006); Johnson v. Johnson, 385 F·3d 503,532 (5th Cir. 2004); Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002); Equality Foundation ofGreater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289,292-94 (6th Cir. 1997)·
'·;;See, e.g.,H.R. Rep. at 15-16 Uudgment [opposing same-sex marriage] entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports ,,~th traditional (especially Judeo-Christian) morality"); id. at 16 (same-sex marriage "legitimates a public union, a legal status that most people ... feel ought to be illegitimate" and "put[s] a stamp of approval ... on a union that many people ... think is immoral"); id. at 15 ("Ch~llaws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality"); id. (reasons behind heterosexual marriage-procreation and child-rearing-are "in accord mth nature and hence have a moral component"); id. at 31 (favorably citing the holding in Bowersthat an "anti-sodomy law sen'ed the rational purpose of expressing the presumed belief ... that homosexual sodomy is immoral and unacceptable"); id. at 17 n.56 (favorably citing statement in dissenting opinion in Romerthat "[t]his Court has no business ... pronouncing that 'animosity' toward homosexuality is e,~l").

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 Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

__________________________________________

)

MARY BISHOP, et al.,

)

)

Plaintiffs,

)

)

v.

)

No. 4:04-cv-00848-TCK-TLW

)

UNITED STATES OF AMERICA, et al.,

)

)

Defendants,

)

)

BIPARTISAN LEGAL ADVISORY

)

GROUP OF THE U.S. HOUSE

)

OF REPRESENTATIVES,

)

)

Intervenor-Defendant.

)

__________________________________________)

NOTICE OF RECENT LEGAL DEVELOPMENTS OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE
U.S. HOUSE OF REPRESENTATIVES

Intervenor-Defendant Bipartisan Legal Advisory Group of the U.S. House of

Representatives (“House”) respectfully submits this Notice of Recent Legal Developments to

advise the Court of the United States Supreme Court’s grant of certiorari in United States v.

Windsor, No. 12-307, – S. Ct. –, 2012 WL 4009654 (Dec. 7, 2012), and to provide the Court

with new, relevant authority in support of its Consolidated Brief in Support of . . . Cross-Motion

for Summary Judgment and in Opposition to Plaintiffs’ Motion for Summary Judgment (Oct. 19,

2011) (ECF No. 215).

A. The Supreme Court Will Review the Constitutionality of DOMA Section 3.

This case concerns the constitutionality of Section 3 of the Defense of Marriage Act

(“DOMA”), 1 U.S.C. § 7, under the equal protection component of the Due Process Clause

of the Fifth Amendment. See, e.g., Mot. for Summ. J. and Br. in Supp. at 37 (Sept. 28, 2011)

Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 2 of 9
(ECF No. 197) (“Pls.’ Mot. for Summ. J.”) (“DOMA Violates Plaintiffs Barton’s and Phillips’ Equal Protection Rights”). On December 7, 2012, the Supreme Court granted a petition for a writ of certiorari following the Second Circuit’s decision in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012). The question presented in that case is: “[w]hether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.”1 Pet. For a Writ of Cert. Before J. at *I, United States v. Windsor, No. 12-307, 2012 WL 3991414 (Sept. 11, 2012). Like Windsor, this action also involves a challenge to DOMA Section 3 under the equal protection component of the Due Process Clause of the Fifth Amendment. See, e.g., Pls.’ Mot. for Summ. J. at 27-41. The Supreme Court’s resolution of the constitutionality of Section 3 of DOMA will have a direct and significant impact on this Court’s decision here.
Notably, several other courts addressing the constitutionality of DOMA Section 3 already have stayed their proceedings in light of the Supreme Court’s consideration of Windsor:
 Order at 2, Golinski v. United States, Nos. 12-15388 & 12-15409 (9th Cir. Dec. 11, 2012) (ECF No. 156) (“case will continue to be held in abeyance pending the decision of the United States Supreme Court in United States v. Windsor, No. 12-307”);
 Order, Pedersen v. OPM, Nos. 12-3273 & 12-3872 (2d Cir. Nov. 28, 2012) (ECF No. 114) (briefing schedule suspending pending consultation with staff attorneys to hold case in abeyance in light of the grant of certiorari in Windsor); 1 The Supreme Court also ordered the parties to brief and argue two additional questions:
(1) “[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case;” and (2) “whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.” Opinion Granting Cert., United States v. Windsor, No. 12-307, – S. Ct. –, 2012 WL 4009654 (Dec. 7, 2012). The Supreme Court has not acted on nine other pending petitions addressing the constitutionality of Section 3 of DOMA.
2

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 Order, Dragovich v. U.S. Dep’t of the Treasury, Nos. 12-16461 & 12-16628 (9th Cir. Sept. 21, 2012) (ECF No. 12) (stayed until February 26, 2013, and allowing for additional continuance of the stay);
 Order, Cardona v. Shinseki, No. 11-3083 (Ct. App. Vet. Cl. Dec. 18, 2012) (sua sponte staying case pending resolution of Windsor);
 Judgment, Massachusetts v. U.S. Dep’t of Health & Human Servs., Nos. 10-2204, 102207, & 10-2214 (1st Cir. May 31, 2012) (ECF No. 5645272) (stayed “pending further order” of that court);
 Electronic Order, McLaughlin v. Panetta, No. 1:11-cv-11905 (D. Mass. June 6, 2012) (granting opposed motion to stay until 30 days after First Circuit issues its mandate in Massachusetts v. U.S. Dep’t of Health & Human Servs., which has a pending writ of certiorari before the Supreme Court);
 Order, Cozen O’Connor, P.C. v. Tobits, No. 2:11-cv-00045 (E.D. Pa. Sept. 25, 2012) (ECF No. 137) (case placed on suspense docket pending outcome of relevant DOMA Section 3 cases);
 Minute Entry, Blesch v. Holder, No. 1:12-cv-01578 (E.D.N.Y. Dec. 18, 2012) (ECF No. 27) (stay continued pending Supreme Court decision in Windsor).
B. November 2012 Election Results Support the House’s Arguments. In support of its argument for the application of rational basis review in analyzing the
constitutionality of DOMA Section 3, the House asserted that supporters of same-sex marriage have ample and increasing clout in government and in the press, resulting in an active, public debate about same-sex marriage in America. See [House]’s Consolidated Reply . . . to CrossMot. for Summ. J. at 17 n.12. As a result of that increasing political power, the issue of same-
3

Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 4 of 9
sex marriage is being decided by voters, and that democratic process should be allowed to continue. See id.
The November 2012 election results illuminate these issues and support the House’s argument that heightened scrutiny should not apply here. In those elections, four ballot measures addressed the issue of same-sex marriage and, in each instance, the proponents of same-sex marriage prevailed.
 Maine voters passed a referendum, allowing the State of Maine to issue marriage licenses to same-sex couples;2
 Washington voters approved a referendum permitting marriage for same-sex couples;3  Maryland voters approved a referendum petition affirming Maryland’s civil marriage law
that allowed gay and lesbian couples to obtain a civil marriage license;4 and
2 Tabulation of Votes, Me. Dep’t of the Sec’y of State, available at http://www.maine.gov/sos/cec/elec/2012/refstate1112.xls at Question 1; see also Democracy and Gay Marriage, Wall St. J., Nov. 9, 2012, at A12, available at http://online.wsj.com/article/SB10001424127887323894704578104953714796998.html (“Whatever one’s views [of same-sex marriage], the process is itself a victory. A contentious issue is working its way through the political system and being resolved in a manner that both sides can accept as legitimate. This ought to give pause to judges who want to legislate a premature social consensus from the bench . . . .”).
3 November 6, 2012 General Election Results, Wash. Sec’y of State, available at http://vote.wa.gov/results/current/export/20121106_Measures_20121205_1451.csv at Referendum Measure No. 74.
4 Official 2012 Presidential General Election results for All State Questions, Md. State Bd. of Elections, available at http://elections.state.md.us/elections/2012/results/general/gen_qresults_2012_4_00_1.html at Question 6.
4

Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 5 of 9
 Minnesota voters rejected a ballot measure that would have amended the state constitution to provide that only marriage between a man and a woman shall be valid or recognized.5
C. Sevick v. Sandoval. In its Memorandum in Support of the Constitutionality of DOMA Section 3, the House
has argued, inter alia, that (1) the Court should review the law’s constitutionality under a rational basis standard rather than heightened scrutiny; and (2) DOMA Section 3 satisfies rational basis review. The recent ruling by the U.S. District Court for the District of Nevada in Sevcik v. Sandoval supports the House’s position. No. 2:12-cv-00578, 2012 WL 5989662 (D. Nev. Nov. 26, 2012), appeal pending No. 12-17668 (9th Cir.), pet. for a writ of cert. before j. pending sub nom. Coal. for the Protection of Marriage v. Sevcik, No. 12-689, 2012 WL 6054793 (Dec. 5, 2012).
In Sevcik, same-sex Nevada couples seeking the right to marry or have their existing marriage certificates recognized by the state argued that the Equal Protection Clause of the Fourteenth Amendment prohibits Nevada from maintaining laws and a constitutional amendment that reserve the institution of marriage to opposite sex relationships. See id. at *1, 4. Like the plaintiffs and the Executive Branch here, the Sevcik plaintiffs argued that same-sex marriage laws should be subject to review under heightened scrutiny analysis. See id. at *7-16. On November 26, 2012, U.S. District Judge Robert C. Jones rejected this precise argument and dismissed plaintiffs’ complaint, holding, inter alia, that (1) Nevada law and its constitutional amendment recognizing marriage as between opposite sex couples are subject to rational basis
5 Results for Constitutional Amendments, Office of the Minn. Sec’y of State, available at http://electionresults.sos.state.mn.us/ENR/Results/AmendmentResultsStatewide/1 at Constitutional Amendment 1.
5

Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 6 of 9
review rather than heightened scrutiny, and (2) Nevada had a rational basis for maintaining a distinction between domestic partnerships and marriage. See id. at *9-19. The court first held that the Supreme Court’s decision in Baker v. Nelson, 409 U.S. 810 (1972), summarily dismissing an equal protection challenge to Minnesota’s marriage laws, precluded any claim that same-sex couples have a right to marry under the Fourteenth Amendment’s Equal Protection Clause. See Sevcik, 2012 WL 5989662, at *5-7. Notwithstanding its conclusion that Baker precluded most of plaintiffs’ challenge to Nevada’s law and amendment, the court went on to conduct a full equal protection analysis to determine the level of scrutiny applicable to constitutional review of Nevada’s same sex marriage law. See id. at *7-16. In determining whether heightened scrutiny should apply, the court found that precedent requires rational basis scrutiny for sexual-orientation based distinctions. Id. at *9-11. Additionally, the court held that (i) while gays and lesbians have suffered a history of discrimination, public acceptance and legal protection from discrimination has increased substantially since the 1990’s, and thus this factor weighed less heavily towards heightened scrutiny, id. at 11-15; (ii) gays and lesbians do not lack political power, id. at *11; and (iii) application of a heightened scrutiny analysis would inappropriately remove a public issue from the democratic process, id. at *14-15. Finally, applying rational basis review, the court held that preserving the traditional institution of marriage and the state’s interests in traditional procreation were state interests adequate to sustain the Nevada law and amendment against constitutional attack. Id. at *16-19 (noting that the Supreme Court, in Lawrence v. Texas, 539 U.S. 558 (2003), “strongly implied that . . . the preservation of the traditional institution of marriage should be considered a legitimate state interest rationally related to prohibiting same-sex marriage”).
6

Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 7 of 9
CONCLUSION
The Court need not rule on the pending motions at this time. Prudence and judicial
economy suggest that it stay its hand in favor of the pending Supreme Court proceedings that
likely will control the outcome of this case. Should the court be inclined to rule on the motions,
however, recent developments only make clearer that the House’s motion for summary judgment
should be granted, and the plaintiffs’ claims dismissed with prejudice.
Paul D. Clement /s/ H. Christopher Bartolomucci H. Christopher Bartolomucci Nicholas J. Nelson Michael H. McGinley BANCROFT PLLC 1919 M Street, N.W. Suite 470 Washington, D.C. 20036 202/234-0090 (phone) 202/234-2806 (fax) Counsel for Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives6
Of Counsel: Kerry W. Kircher, General Counsel William Pittard, Deputy General Counsel Christine Davenport, Senior Assistant Counsel Todd B. Tatelman, Assistant Counsel Mary Beth Walker, Assistant Counsel Eleni M. Roumel, Assistant Counsel
6 The Bipartisan Legal Advisory Group, which speaks for the House in litigation matters, currently is comprised of the Honorable John A. Boehner, Speaker of the House, the Honorable Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. The Democratic Leader and the Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this case.
7

Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 8 of 9 OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 202/225-9700 (phone) 202/226-1360 (fax) January 4, 2013
8

Case 4:04-cv-00848-TCK-TLW Document 252 Filed in USDC ND/OK on 01/04/13 Page 9 of 9
CERTIFICATE OF SERVICE I hereby certify that on January 4, 2013, I electronically filed the foregoing Notice of Recent Legal Developments of the Bipartisan Legal Advisory Group of the U.S. House of Representatives with the Clerk of the Court for the U.S. District Court for the Northern District of Oklahoma using the CM/ECF system. I further certify that all parties in this case are registered CM/ECF users and will be served by the CM/ECF system.
/s/ Kerry W. Kircher Kerry W. Kircher

Bishop, et al v. Oklahoma, State of, et al, Docket No. 4:04-cv-00848 (N.D. Okla. Nov 03, 2004), Court Docket
General Information

Case Name Docket Number Court
Nature of Suit Related Opinion(s)

Bishop, et al v. Oklahoma, State of, et al 4:04-cv-00848 United States District Court for the Northern District of Oklahoma Constitutionality of State Statutes 2009 BL 251986

© 2013 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1OQVL4PDDBB? documentName=265.pdf&amp;fmt=pdf

 
 Bishop v. Oklahoma ex rel. Edmondson, Not Reported in F.Supp.2d (2006)

2006 WL 2045877 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
Mary BISHOP and Sharon Baldwin, individuals; Susan G. Barton and Gay E. Phillips, individuals.,
Plaintiffs, v.
The State of OKLAHOMA, ex rel. Drew EDMONDSON, in his official capacity as Attorney General of the State of Oklahoma and Brad Henry

in his official capacity as Governor of the State of Oklahoma; the United States of America, ex rel. John Ashcroft, in his official capacity as Attorney General of the United States of America, George W. Bush, in his official capacity as President of the
United States., Defendants.
No. 04-CV-848-TCK-SAJ. | July 20, 2006. | Opinion vacated and amended opinion filed August 16,
2006.For amended opinion, see 2006 WL 2376247.
	  

1

 
 Case 4:04-cv-00848-TCK-TLW Document 93 Filed in USDC ND/OK on 08/16/06 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP and SHARON BALDWIN, )

individuals; SUSAN G. BARTON and GAY )

E. PHILLIPS, individuals.

)

)

Plaintiffs,

)

)

v.

)

)

The STATE OF OKLAHOMA, ex rel. DREW )

EDMONDSON, in his official capacity as

)

Attorney General of the State of Oklahoma and )

BRAD HENRY in his official capacity as

)

Governor of the State of Oklahoma;

)

the UNITED STATES OF AMERICA, ex rel. )

JOHN ASHCROFT, in his official capacity

)

as Attorney General of the United States of

)

America, GEORGE W. BUSH, in his official )

capacity as President of the United States.

)

)

Defendants.

)

No. 04-CV-848-TCK-SAJ

AMENDED OPINION AND ORDER*

Before the Court are the Motion to Dismiss of Defendant the State of Oklahoma, ex rel.

Drew Edmondson, in his official capacity as Attorney General of the State of Oklahoma and Brad

Henry, in his official ca pacity as Governor of the State of Oklahom a (the “State Defendants”)

(Docket No. 7); the Motion to Dismiss of the United States of America, ex rel. John Ashcroft, in his

official capacity as Attorney General of the United States of America and George W. Bush, in his

official capacity as President of the United States (the “Federal Defendants”) (Docket No. 15); the

*This Amended Opinion and Order corrects pages 25-29 of the Opinion and Order dated July 20, 2006, in which the Court erroneously referred to Part A of the Oklahoma Amendment as Part B of the Oklahoma Amendment. This Amended Opinion supersedes the July 20, 2006 Opinion and Order, and the same (Docket No. 90) is vacated.
1

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Honorable Thad Balkman and Oklahomans For Protection of Marriage Inc.’s Motion to Intervene (Docket No. 4); and Plaintiffs’ Motion to Strike (Docket No. 33). I. Background
Plaintiffs Mary Bishop and Sharon Baldwin (“Bishop and Baldwin”) are a lesbian couple in a committed relationship who reside in the Northren District ofOklahoma. They exchanged vows in a church-recognized commitment ceremony in March of 2002 but desire to be civilly married in Oklahoma. Plaintiffs Susan Barton and Gay Phillips (“Barton and Phillips”) are a lesbian couple who were joined in a civil union conducted in the State of Vermont on August 4, 2001, a nd who were legally married in Vancouver, British Columbia, Canada, on May 16, 2005. 2 Barton and Phillips reside in the Northern District of Oklahoma and desire to have their Vermont civil union and/or Canadian m arriage recognized in the Stat e of Oklahom a. Both couples are referred to collectively as Plaintiffs.
In their Com plaint, Plaintiffs seek declar atory and injunctive relief that the Defense of Marriage Act (“DOMA”), codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, and Article 2, § 35 of the Oklahoma Constitution (the “Oklahoma Amendment”), violate the United States Constitution. Specifically, Plaintiffs allege that DOMA and the Oklahoma Amendment violate the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Full Faith and Credit Clause, and the Privilegseand Immunities Clause. The Federal Deefndants are the federal officials charged with enfor cement and execution of DOMA, and the State
2 The fact that Barton and Phillips were legally married in Canada was asserted in Plaintiffs’ Supplement of Facts and Law (Docket No. 71), which was submitted after the briefing on the Motions to Dismiss before the Court. The Federal Defendants did not address or dispute this fact in their Response to Plaintiffs’ Supplement of Facts and Law (Docket No. 82).
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Defendants are the state officials charged w ith enforcement and execution of the Oklahom a Amendment. The Federal Defendants and State Defendants have filed separate motions to dismiss. II. Motion to Dismiss Standard
For a motion made under FED. R. CIV. P. 12(b)(6) to succeed, a defendant must show that, as a matter of law, the plaintiff has failed to state a claim upon which relief can be granted. It must appear “beyond doubt that the plaintiff can prove noset of facts in support of his claimwhich would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In evaluating a m otion to dismiss, a court must accept all well-pled allegations as true and indulge all reasonable references in favor of plaintiff. See Schwartz v. Celes tial Seasonings, Inc., 124 F.3d 1246, 1251 (10th Cir. 1997); Weatherford v. Globe Int’l, Inc., 832 F.2d 1226, 1228 (10th Cir. 1987). III. DOMA - Federal Defendants’ Motion to Dismiss
DOMA, which became law in 1996, contani s two substantive sections. See Pub. L. No. 104199, 100 Stat. 2419 (1996). Section 2of DOMA (“Section 2”) is entitled “Powers Reserved to the States” and is codified at 28 U.S.C. § 1738C. Section 2 provides that no State “shall be required to give effect to any public act, record, or judicialproceeding of any other State, territory, possession, or tribe respecting a relationship between persons ofthe same sex that is treated as a marriage under the laws of such other State.” 28 U.S.C. § 1738C. Section 3 of DOMA ( “Section 3”) is entitled “Definition of Marriage” and is codified at 1 U.S.C. § 7. Section 3 provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various adm inistrative bureaus and agencies of the United States, the word “m arriage” means only a legal union between one m an and one woman as husband and wife, and t he word “spouse” refers only to a person of the opposite sex who is a husband or wife. 1 U.S.C. § 7. Plaintiffs challenge the constitutionality of both sections of DOMA.
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A. Standing - General Principles
Federal jurisdiction is limited to actual cases and controversies. U.S. CONST. art. III, § 2,
cl.1. The case and controversy requirem ent involves an analysi s of whe ther a plaintiff has
“standing” to bring her claim. “The standing requirement is born partly of an idea, which is more
than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential
limits to the powers of an unelected, unrepresent ative judiciary in our kind of government.” Elk
Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11 (2004) (inter nal quotation marks omitted).
There are three requirements to constitutional standing:
“First, the plaintiff must have suffered an ‘injury in fact’- an invasion of a legally protected interest which is (a) concrete and particul arized, and (b) actual or imminent, not conjectural or hypothetical.Second, there must be a causal connection between the injury and the conduct com plained of - the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Bear Lodge Multiple Use Ass’n v. Babbitt , 175 F.3d 814, 821 (10th Cir. 1999) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992)). “The party invoking federal jurisdiction bears the
burden of establishing these elements and of coming forward with evidence of specific facts which
prove standing.” Id. With respect to the pleading requirements for standing at the motion to dismiss
stage, the Supreme Court explained:
At the pleading stage, general factual a llegations of injury resulting f rom the defendant’s conduct may suffice, for on a m otion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” In response to a summary judgment motion, however, the plaintiff can no longer rest on such “m ere allegations,” but m ust “set forth” by affidavit or other evidence “specific facts,” which for purposes of the summary judgment motion will be taken to be true. And at the fi nal stage, those facts (if controverted) m ust be “supported adequately by the evidence adduced at trial.”
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Lujan, 504 U.S. at 561 (internal citations omitted). In addition to constitutional standing requirements, a court must also consider “prudential”
standing principles. See Board of County Comm’rs of Sweetwater County v. Geringer, 197 F.3d 1108, 1112 (10th Cir. 2002). “Under a prudential sta nding inquiry, a party that has satis fied the requirements of constitutional standing may nonetheless be barred from invoking a federal court’s jurisdiction.” Id. Prudential standing has three conditions a party must overcome before invoking federal court jurisdiction. First, a plaintiff must assert his own rights, rather than rights belonging to third parties. Second, a plaintiff' s claim must not be a “generalized grievance” shared in substantially equal measure by all or a large class of citizens. Third, the grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee involved in the suit. See id.
B. Standing to Challenge Section 2 The Federal Defendants argue that PlaintiffsBishop and Baldwin lack standing to challenge Section 2 because they have never entered into amarriage or other formal union in another state and therefore Section 2 could have no cognizable effect on them. Bishop and Baldwin conceded this point in their response brief. Therefore, Section 2 is challenged only by Plaintiffs Barton and Phillips. The Federal Def endants have not raised the issue of whether Barton and Phillips have standing to challenge Section 2. Regardless, the issue of standing must be addressed by the Court as an initial matter. See Smelt v. County of Orange, 447 F.3d 673, 682 (9th Cir. 2006) (noting that court must address standing even if not raised by theparties). It is undisputed that Plaintiffs Barton and Phillips were joined in a civilunion in the State ofVermont and were legally married in Canada.
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Each legal relationship will be addressed separately f or purposes of their standing to challenge
Section 2.
1. Vermont Civil Union
Section 2 recognizes that States are not required to give effect to a “public act, record, or
judicial proceeding . . . of [another] State. . .respecting a relationship between persons of the same
sex that is treated as a marriage under the laws of such other State.” See 28 U.S.C. § 1738C
(emphasis added). Barton and Phillips have not obtained a marriage license from another state in the United States.3 Instead, they have entered into a “civil union” under the laws of Vermont. This
leads to the question of whether a Vermont civil union qualifies as a “public act, record, or judicial
proceeding” that is “treated as a marriage” under Vermont law. If so, Plaintiffs have suffered a
concrete injury because Section 2 prevents, or at least arguably prevents, them from obtaining a marriage license in Oklahoma.4 If not, Plaintiffs lack standing to challenge Section 2 of DOMA
because Section 2 does not impact Oklahoma’s recognition or non-recognition oftheir Vermont civil
3 Currently, Massachusetts is the only state in the union that grants marriage licenses to same-sex couples. Some scholars have stated or implied that an actual marriage, rather than any other form of same-sex legal relationship or union, is required in order for a plaintiff to have standing to challenge DOMA. See, e.g., Mark P. Strasser, “Defending” Marriage in Light of the Moreno-Cleburne-Lawrence Jurisprudence, 38 CREIGHTON L. REV. 421, 436-37 (2005) (stating that “it is not clear that anyone had standing to challenge [DOMA] before Massachusetts recognized same-sex marriages”); Joanna L. Grossman, Resurrecting Comity: Revisiting the Problem of Non-Uniform Marriage, 84 OREGON LAW R. 433 n.128 (“Until Massachusetts began to permit same-sex couples to marry, no one had standing to challenge DOMA.”).
4 The Court uses the word “arguably” because it is debatable whether states would have been required under the Full Faith and Credit Clause or any other law to give effect to same-sex marriages or civil unions entered in other states. See Patrick Borchers, The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38 CREIGHTON LAW R. 353, 358 (2005) (arguing that DOMA was unnecessary because it “simply states what the law would be without it” because “full faith and credit principles do not require one state to give effect to a marriage celebrated in another state”).
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union. In 1999, the Supreme Court of Vermont ruled that the denial of benefits to same-sex couples
was a violation of the Verm ont Constitution and directed the Verm ont Legislature to adopt a domestic partnership statute or grant theright to marry to same-sex couples. See Baker v. Vermont, 744 A.2d 864, 866 (Vt. 1999). The Vermont Legislature responded by creating a new legal creature known as a “civil union.” The statute provides:
(1) “Certificate of civil union” m eans a document that certif ies that the persons named on the certificate have established a civil union in this state in com pliance with this chapter and 18 V.S.A. chapter 106. (2) “Civil union” means that two eligible persons have established a relationship pursuant to this chapter, and may receive the benefits and protections and be subject to the responsibilities of spouses. . . . (4) “Marriage” means the legally recognized union of one man and one woman. (5) “Party to a ci vil union” m eans a person who has established a civil union pursuant to this chapter and 18 V.S.A. chapter 106. VT. STAT. ANN. tit. 15, § 1201. In order to qualify for a cvi il union, a person must not be a party to another civil union or a marriage. See id. § 1202. Further, the couple must be of the same sex and therefore excluded from the marriage laws of Vermont. See id. Parties to a civil union “have all the same benefits, protections and responsibilities under law, whether they de rive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.” Id. § 1204. According to one commentator, Vermont “created a new type of quasi-marriage that granted to same-sex couples entering a civil union allthe benefits of marriage granted by state law to any oht er Vermont married couple.” See Lewis A. Silverman, Vermont Civil Unions, Full Faith and Credit, and Marital Status , 89 KY. L.J. 1075, 1079 (2001) [hereinafter “Silverman”]. Unlike domestic partnerships that had been established by other states, the Vermont civil union was meant to be an “official formof recognition granted to same-sex couples in a manner
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similar to that granted to married couples.” Id. at 1080-81. A civil union “cannot be terminated unless dissolved in a manner virtually identical to a civil divorce for married couples.” Id. Thus, for purposes of legal benefits and responsibilities,the Vermont civil union is in many ways “treated as a marriage.”
At the same time, it is clear that a Vermont civil union is not the equivalent of a marriage. The Vermont Legislature chose to create a “hybrid creature” that is something less than the fullscale legal marriage that is granted to opposite-sex couples. The legislature expressly clarified, in the civil union statute itself, that “marriage” was limited to one man and one woman. VT. STAT. ANN. tit. 15, § 1201(4). The legislative findings accompanying the Vermont statute noted that “‘a system of civil unions does not bestowthe status of civil marriage.’” See Burns v. Burns, 560 S.E.2d 47, 48 (Ga. App. 2002) (holding that a Verm ont civil union is not the equivalent of a m arriage) (quoting 2000 Vt. Act 91, § 1( 10)); see also Silverman, supra, at 1100-01 (“[B]y definition, a Vermont civil union is not a marriage. . . . [B]ecause the law limits the concept of the civil union to something less than marriage, couples who invoke the solemnization rituals of the Civil Union Law do not achieve the f ull title and status of marriage.”). Theref ore, in certain regards, the Vermont civil union is not “treated as a marriage.”
Because of the standing problems that DOMA presents, there is little jurisprudence to guide the Court’s decision. The only helpful precedent foundarose in a federal district court in California. In Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005) (S“melt I”), the court concluded that same-sex plaintiffs who had obtained a California “domestic partnership” lacked standing to challenge Section 2 of DOMA because a California dom estic partnership was not “treated as a marriage” under California law. In Smelt v. County of Orange, 447 F.3d 673, 683 (9th Cir. 2006)
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(“Smelt II”), the Ninth Circuit affirmed this decision regarding Section 2, although arguably on slightly different grounds. Insteadof discussing whether and to what extent a domestic partnership was “treated as a marriage,” the Ninth Circuit reas oned that the plaintiffs did not have standing because “[n]o state has determ ined that [they] are married.” Id. The court reasoned that “while Section 2 may affect someone who has been declaredmarried in some state, [plaintiffs] do not come within that category of people.” Id.
The Court concludes that Plaintiffs Barton and Phillips lack standing to challenge Section 2 because their Vermont civil union is not “treated as a marriage” under Vermont law, as that term was meant to be understood when Congress passedDOMA. The Court agrees with the commentator who stated:
DOMA did not anticipate the scenario of an alternate form of legally-cognizable relationship. It specifically limits its application to a “relationship between persons of the same sex that is treated as a marriage”; a civil union, however, is not treated as a marriage. The attempt to implicate the Defense of Marriage Act in determining the effect of a civil union should therefoer fail. The statute by its own words does not apply, and, therefore, no DOMA challengeshould arise under the Civil Union Law. Silverman, supra, at 1102. Instead, a civil union is its owncreature that is offered only to same-sex individuals and that is distinct from full-scale legal marriages. Further, the only existing circuit precedent addressing standing to challenge Section 2 of DOMA, theSmelt II decision, indicates that the Section 2 standing analysis is, in fact, limited to the question of whether a plaintiff has actually been “married” in another stat e. See Smelt II, 447 F.3d at 683. In this case, Verm ont has not determined that Barton and Phillips are legally married; it has only determined that they are entitled to the legal benefits of marriage by virtue of a civil union. Accordingly, although it presents a more difficult question than the standing of a couple thathas merely obtained a domestic partnership, the Court concludes that Plaintiffs Barton and Phillips lack standing to challenge Section 2.
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2. Canadian Marriage In addition to obtaining a Vermont civil union, Barton and Phillips were also legally married in Vancouver, British Columbi a, Canada, on May 16, 2005. In 2003, Canada becam e the third country to allow gays and lesbians to m arry, after a court in British Colum bia ruled that the common-law ban on same-sex marriage violated the equality rights of gays and lesbians under the Canadian Charter of Rights and Freedom s. See Deborah Gutierrez, Gay Marriage in Canada: Strategies of the Gay Liberation Movements and the Implications It Will Have on the United State,s 10 NEW ENG. J. INT’L & COMP. L. 175, 201(2004) [hereinafter “Gutierrez”]. Unlike the Vermont civil union, a Canadian marriage involves an actual “marriage,” issuance of a “marriage license,” and there can be no doubt that Plaintiffs’ legal reltaionship is “treated as a marriage” in Canada. See id. at 200-08. The issue, instead, is whether S ection 2 ha s any effect on the recognition of a Canadian marriage since Canada may not qualify as another “State,” as that termis used in Section 2. Section 2 was passed pursuant to the Full Faith and Credit Clause. See H.R. Rep. No. 104-664, at 25-26 (1996), reprinted in 1996 U.S.C.CA. .N. 2905, 2929-30 (“[T]his situation presents an appropriate occasion for invoking our congressional authority under the second sentence of the Full Faith and Credit Clause to enact legislation to prescribe what (if any) effect shall be given by the States to the publ ic acts, records, or proceedings of other States relating to hom osexual marriage.”). The Full Faith and Credit Clause applies only to “states” within the United States and does not mandate that a state give full faith and credit to a public act, record, or judicial proceeding of a foreign country. See Mark Wojcik, The Wedding Bells Heard Around the World: Years From Now, Will We Wonder Why We Worried About Same-Sex Marriage?, 24 N. Ill. U. L. Rev. 589, 646
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(2004) (“Although the word “State” may be understood in public international law to mean another country or nation, the context of word “State” as uesd in the Full Faith andCredit Clause of the U.S. Constitution is limited to other states of the United States.”). Instead, only principles of “comity” are relevant in determining what effect a state in the United States will give to a foreign marriage, and it is a discretionary decisi on of the forum state as to whether a Canadian m arriage will be recognized. See id. (explaining that the Full Faith and Credit Clause would not mandate recognition of a Canadian marriage but Canadian same-sex marriages could be granted legal recognition as a matter of comity, which is a “legal principle of accommodation that invokes ‘neighborliness’ and ‘mutual respect’ of one country for the other”); Gutierrez, supra, at 214 (“[B]ecause recognizing foreign law under com ity is not a binding obliga tion, but m erely a discretionary decision, recognizing same-sex marriages from Canada will be difficult, and will depend largely on where each claim is filed.”). Because Section 2 aims to relieve states of any potential obligation to comply with the Full Faith and Credit Clause, because Section 2 tracks the language of the Full Faith and Credit Clause, and because Section 2 was passed pursuant to Congress’ authority under the Full Faith and Credit Clause, the Court concludes that use of the word “State” in Section 2 of DOMA (like use of the word “State” in the Full Faith nad Credit Clause) was not intended to include foreign countries but instead was intended only to include states within the United St ates. Accordingly, Plaintiffs Barton and Phillips’ Canadian m arriage is also insuf ficient to provide standing f or a challenge to Section 2.
C. Standing to Challenge Section 3 The Federal Defendants have not raised the issue of whether any of the four Plaintiffs have standing to challenge Section 3, the definitionalprovision of DOMA. Nonetheless, the Court finds
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this issue should also be addressed as an initial matter. Plaintiffs Bishop and Baldwin have not entered into any type of legal union or relationship
that could potentially entitle them to federal benefits, even if the federal definition of marriage extended to same-sex unions, and therefore Congress is not refusing to recognize their legal “status” in any way. In the Ni nth Circuit’s decision in Smelt II, cited above, the court concluded that the couple that had entered into a California dome stic partnership also lacked standing to challenge Section 3 of DOMA for the following reasons:
We, therefore, do not see how they can claim standing to object to Congress’s definition of marriage for federal statutoryand regulatory purposes. It certainly is not a question of Congress’s refusal to recognize their status. DOMA itself simply does not injure them or exclude them from some undefined benefit to which they might have been or might someday be entitled. In fact, they do not suggest that they have applied for any federal benefits, much less been denied any at this point. That they might someday be m arried under the law of som e state or ask for som e federal benefit which they are denied is not enough. In short, th ey have not spelled out a legally protected interest, m uch less one that was injured in a concrete and particularized way. Smelt, 447 F.3d at 683-84 (citations omitted). Bishop and Baldwin have not entered into a domestic partnership or any other type of legal relationship, rendering their standing to challenge Section 3 even more tenuous than the plaintiffs inSmelt II. The Court concludes that Bishop and Baldwin lack standing to challenge the federal statutory definitoin of marriage because they cannot show that such definition has caused them or could imminently cause them a particularized injury. In contrast to Plaintiffs Bishop and Baldwin,Plaintiffs Barton and Phillips have entered into two types of legal unions: the Vermont civil union and the Canadian marriage. Therefore, Barton and Phillips’s legal status is clearly som ething more than a domestic partnership. In Smelt I, the district court concluded that the plaintiffs’ domestic partnership was not sufficient to confer standing to challenge Section 2 but was suffciient to confer standing to challenge Section 3. The district court
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reasoned:
Plaintiffs are registered dom estic partners in California, which is a “legal union” recognized by the state. For purposes of federal law, DOMA defines “marriage” as a legal union between one man and one woman. Plaintiffs’ legal union is excluded from the federal definition of marriage because it is not between a man and a woman. Because of DOMA’s definition, Plaintiffs’ legal union cannot receive the rights or responsibilities afforded to m arriages under federal law. This is a concrete injury personally suffered by Plaintiffs, caused by DOMA’s definition of m arriage. The United States concedes, and the Court agrees, Plaintiffs have standing to challenge section 3.
Smelt I, 374 F. Supp.2d at 871. However, the Ninth Circuit inSmelt II reversed, finding that status
as domestic partners under California law did not provide the plaintiffs with standing to challenge
DOMA’s definition of marriage. In addition to the reasons stated above regarding plaintiffs’ lack
of an actual “marriage,” the Smelt II court further reasoned:
We, of course, recognize that the distri ct court relied on the fact that Sm elt and Hammer had a kind of “legal union” unde r California law because they were registered domestic partners. However, that does not affect the alchem y at all. California does not use the phrase “legalunion”; it merely gives registered domestic partners certain legal rights and obligations. And, those are certainly not the only legal relationships or unions possible if, indeed, we are going to m ove beyond the kinds that have historically defined a marriage. An ordinary partnership is a kind of legal union; so, too, in a way, is that speciatlype of contract (or partnership) that can be formed when a man and a woman agree to live together outside of marriage. And when a group forms a corporation, there is a kind of legal union also. None of those possible relationships or unions can logically be said to confer standing to attack DOMA’s definition on its face simply because it refers to legal unions. There is no good reason to treat Sm elt and Hammer’s relationship any differ ently. Thus, the mere fact that Smelt and Hammer were in a kind of recognized legal relationship in California is not sufficient to confer standing upon them to attack Section 3 of DOMA on its face.
Smelt II, 447 F.3d at 684 (footnotes and citations omitted).
Applying the reasoning of Smelt II, the similarity between the pl aintiffs in that case and
Barton and Phillips is that a Vermont civil union, like a domestic partnership, is not equivalent to
a marriage and therefore they are not “married” under any state law of the United States. But there
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are also some distinctions. First, Barton and Phillips have been married in a foreign country. See Smelt II, 447 F.3d at 683 (reasoning that plaintiffs “are noteven married under any state law, or, for that matter, under the law of any foreign c ountry”). Second, unlike a Californi a “domestic partnership,” Vermont’s statute uses the phrase “civil union.” See id. (reasoning that “California does not use the phrase ‘legal union’; it merely gives registered domestic partners certain legal rights and obligations”). Third, the Ninth Circuit’s reasoning that “there is no good reason” to treat the plaintiffs’ domestic partnership differently from other types of legal unions, such as corporations or common-law marriages, for purposes of s tanding to challenge Section 3 is less persuasive as applied to a Vermont civil union. As explained above, a Vermont civil union is limited to members of the same sex who are excluded from Vermont’s definition of marriage. Vermont created civil unions in direct response to a court decision findnig that same-sex couples were entitled to the same rights as married individuals. A Vermont civil union can only be dissolved by a proceeding similar to a divorce proceeding. In this Court’s view, the status of two people who have joined in a Vermont civil union sim ply cannot be com pared to the status of two m embers of a corporate partnership. One couple is excluded frommarital or spousal benefits under federal law, which they desire based on their status as a committed, loving couple in a civil union recognized by the State of Vermont. The other “couple” is excluded frommarital or spousal benefits under federal law that they would never hope to receive or expect to receive, since their relationship has no indicia whatsoever of an opposite-sex marriage. It seems to ignore common sense and to elevate formover substance to equate these two types of legal re lationships for pur poses of analyzing the injury suffered as a result of the federal definition of marriage. Due to these distinctions, the Court does not find that Barton and Phillips lack constitutional sat nding as a matter of law at the pleading stage
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of the case and will reserve ruling on the standing issue until a factual record and legal arguments are before the Court.
With respect to prudential standing, the court in Smelt II decided that, even if the plaintiffs had constitutional standing, their claim was in the form of a “generalized grievance” that could not meet the prudential standing requirements. Specifically, the court reasoned that “Section 3 is merely definitional” and the “words it defines are found in well over one thousand federal statutory enactments.” Smelt II, 447 F.3d at 684-85. Because the plaintfifs did not identify a specific federal statute requiring cross-reference to DOMA’s definition that “may apply to them at this time,” the Court determined that it could not“know whether in the context of some particular statute as applied to some particular situation, Congress’s us e of the word ‘m arriage’ will am ount to an unconstitutional classification.” See id. at 685 & n.35. Again, the Court concludes that it cannot decide the issue of prudential standing at the motion to dismiss stage and will reserve ruling until a factual record and legal arguments are before the Court.
In summary, the Court concludes that no Plaintiff has standing to challenge Section 2, that Bishop and Baldwin lack standing to challenge Section 3, and that Barton and Phillips’ allegations are sufficient to survive a motion to dismiss on the issue of standing to challenge Section 3. The remaining discussion of the Federal Defendants’ Motion to Dism iss assumes, for purposes of deciding the legal issues raised, that standing exists to challenge Section 3.
B. Full Faith and Credit Clause Challenge to Section 3 The Complaint alleges that “DOMA, 1 U.S.C. § 7et seq., violates the Full Faith and Credit Clause of the United States Constitution by prohbiiting the federal government from acknowledging and recognizing the rights, privileges, and i mmunities to which Plaintiffs Susan Barton and Gay
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Phillips are entitled to as a result of thei r civil union.” (Com pl. ¶ 24.) 5 Section 3 of DOMA functions to define marriage for purposes of federal law, much like the Oklahom a Amendment defines marriage for purposes of Oklahom a law. The Federal Defendants argue tha t Section 3 cannot be challenged under the Full Faith and Credit Clause because Section 3 applies only to federal actors, and the Full Faith and Credit Clause is not binding on the federal government. With respect to whether the Full Faith and Credit Clause is binding on the federal government or binding only on the fifty states, the Ninth Circuit has explained:
The first sentence of this guarantee is clear that it does not bind the federal government but the many states. In context, it is ea ch of our fifty states who m ust give full faith and credit to the acts ofthe other states. The purpose of this clause was evidently to ensure a m easure of un ity for the United St ates by r equiring each formerly independent State to respect and give credit to the judgments of the others. By its terms, and in light of its purpose,the Full Faith and Credit Clause imposes no obligation whatsoever on the federal government. Taylor v. Sawyer, 284 F.3d 1143, 1152 (9th Cir. 2002) (citingBaker v. Gen. Motors Corp., 522 U.S. 222, 232-34 (1998); Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986)). Because Section 3 does not prevent a state from taking any action, and i nstead applies only to the actions of the federal government, the Court concludes that Section 3 cnanot be challenged under the Full Faith and Credit Clause.
C. Privileges and Immunities Clause Challenge to Section 3 The Privileges and Im munities Clause provide s: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. CONST. art. IV, § 2. It “has been int erpreted to prevent a state from imposing unreasonable burdens on citizens of another State.” See Baldwin v. Fish & Game Comm’n, 436 U.S. 371, 383 (1978); United States v.
5 At the time of filing the Complaint, Barton and Phillips had not yet been married in Canada.
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Rx Depot, Inc., 290 F. Supp.2d 1238, 1249 (N.D. Okla. 2003) (stiang that Privileges and Immunities Clause “requires a State to accord residents andnon-residents equal treatment when regulating the means of livelihood or doing business”). The Privileges and Immunities Clause does not affect the powers of the federal government and therefore does not provide a proper basis to challenge DOMA. See Nehme v. INS, 252 F.3d 415, 430 n.18 (5th Cir. 2001);Nevada v. Watkins, 914 F.2d 1545, 1555 (9th Cir. 1990) (“[T]he Privileges and Immunities Clause has been construed as a limitation on the powers of the States, not on the powers of the federal government.”).6
D. Equal Protection and Substantive Due Process Challenges to Section 3 Unlike Plaintiffs’ other legal challenges to Section 3, Pl aintiffs’ challenges based on the Equal Protection Clause and Substantive Due Process Clause are sufficient to survive a motion to dismiss. The Court concludes that such challenges are more appropriately decided at the summary judgment stage, because they m ay involve speci fic factual findings related to the purpose and justifications for the law. The Court would benefit from more developed arguments and citations to a record in deciding these issues. See Smelt I, 374 F. Supp.2d at 864 (deciding case based upon agreed factual record and cross motions for summary judgment). IV. Oklahoma Amendment - State Defendants’ Motion to Dismiss On November 2, 2004, the voters of Oklahoma approved and adopted legislative referendum no. 334, State Question no. 711, which was implemented as Article 2, Section 35 of the Oklahoma Constitution. The Oklahoma Amendment provides: “Marriage” Defined - Marriage Between Persons of Sam e Gender Not Valid or Recognized
6 To the extent Plaintiffs argue Congress exceeded its authority under the Privileges and Immunities Clause in passing DOMA, there is no evidence that Congress relied on this clause in enacting DOMA, and the scope of Congress’ authority under this clause is therefore irrelevant.
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A. Marriage in this state shall cons ist only of the union of one m an and one woman. Neither this Constitution nor any other provision of law shall be construed to require that m arital status or the legal incidents thereof be conferred upon unmarried couples or groups.
B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and bindingin this state as of the date of the marriage.
C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
OKLA. CONST. art. 2, § 35.7 The Oklahoma Amendment has, in actuality, four parts. First, Part A
contains a definitional provision, which definesmarriage as the union of one man and one woman.
This provision has the effect of preventing same-sex couples from receiving a marriage license and
from being married under the laws of the State of Oklahoma. Second, Part A contains a type of
reservation of power, which states that Oklahoma law shall not be construed to require that “marital
status” or the “legal incidents thereof” be conefrred upon those who are “unmarried.” This sentence
is not a model of clarity. However, it at least arguably has the effect of denying marital status or
legal marital benefits (such as those benefits that would be occasioned by some type of legal same-
sex union other than marriage) to those who do not fall within Oklahoma’s definition of “married”
as articulated in the previous sentence. That is, Oklahoma law does not require the granting of
marital status or the legal incidents thereof to those who are in a legal union consisting of soemthing
other than “one man and one woman,” such as Barton and Phillips. Third, Part B ofthe Oklahoma
Amendment contains an express statement of Oklahoma’s public policy against recognizing same-
sex “marriages” performed in another “state.” Part B is Oklahoma’s af firmation that it will, as
authorized by Section 2 of DOMA, refuse to honor same-sex marriages performed in other states.
7 Prior to the Oklahoma Amendment, an Oklahoma statute already defined marriage as limited to persons of the “opposite sex,” see OKLA. STAT. tit. 43, § 3 (1975) (superseded effective July 1, 2004), and had been interpreted by the Oklahoma Attorney General to limit marriages to unions of “one woman and one man,” see 2004 OK AG 10 (March 19, 2004).
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Finally, Part C contains a punishment provision, which makes it a criminal misdemeanor to issue a marriage license in violation of this subsection. Plaintiffs’ Complaint is not specific as to which provisions of the Oklahoma Amendment are being challenged. The briefing before the Court does not implicate the punishment provision, and the Court construes Plaintiffs’ challenge as being only to Parts (A) and (B) of the Oklahoma Amendment.
A. Procedural Arguments Raised by State Defendants 1. Venue
The Oklahoma Defendants raise three procedural arguments in support of their motion to dismiss. First, they argue that the Northern Disrtict of Oklahoma is an improper venue. Under the federal venue statute, an action may be brought in (1) a judicial district where any defendant resides, if all defendants reside in the sa me State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claimoccurred, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. See 28 U.S.C. § 1391(b). The Court concludes that venue is proper in the Northern District of Oklahoma under § 1391(b)(2) because it is a district in which a substnatial part of the events or omissions giving rise to the claim occurred. Although Defendants argue there are no “events” that have occurred in this case, the Court disagrees. In the context of declaratory judgments or prospective injunctive relief regarding unconstitutional statutes, it has been held that “suits challenging of ficial acts may be brought in the district where the effects of the challenged regulations are felt even though the regulations were enacted elsewhere.” Emison v. Catalano, 951 F. Supp.2d 714, 722 (E.D. Tenn. 1996) (emphasis added); see also Farmland Dairies v. McGuire, 771 F. Supp. 80, 82 n.3 (S.D.N.Y. 1991); Sheffield v. State of Texas , 411 F. Supp. 706, 713 (N.D. Tex. 1976) (concluding that a
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challenge to a state statute on constitutional grounds was properly brought in that district because “the effect of the statute’s passage and adm inistration ha[d] been clearly f elt in the Northern District” and that the “injury alleged in this casehas or will occur in the Northern District,” despite the fact that the statute was passed and signed into law in Austin); Johnson v. State of Mississippi, 78 F.R.D. 37, 41 (N.D. Miss. 1977) (although cause m ay have originated in state capital where legislation was passed, the injury of denying the planitiffs equal protection ofthe laws was inflicted in the forum and venue would have been proper in either district). This is consistent with the wellaccepted principle that “there can be more than one district in which a substantial part of the events giving rise to the claim occurred.” See Globe Glass & Mirror Co. v. Brown, 888 F. Supp. 768, 770 (E.D. La. 1995).
In this case, the effects of the Oklahoma Amendment will be felt in the Northern District in that Plaintiffs Bishop and Baldwin are de nied the right to m arry in Tulsa County based on their status as a same-sex couple. Plaintiffs Barton and Phillips are deniedthe right to marry in Oklahoma and/or to have their Vermont civil union and/or Canadian marriage recognized as a legal relationship in Tulsa County. I f the Court were to accept th e State Defendants’ position on this issue, every plaintiff who contests the constitu tionality of an Oklahoma statute would be f orced to sue in the Western District of Oklahoma simply because that is where the legislation was passed or because that is where the Governor and Attorney General maintain their “official offices.” The Court believes a federal court in the Northern District of Oklahoma is a fair and suitable venue to decide the constitutionality of Oklahoma statutes that impact its residents.
Alternatively, the Court concludes that it may exercise pendent venue over Plaintiffs’ claims related to the Oklahoma Amendment based on the existence of proper venue over Plaintiffs’ claims
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related to DOMA. “Under the doctrine of pendent venue, when two or m ore federal claims are brought and venue is properly laid as to one claim, that venue will support adjudication of the other related claim. The decision whether to exercise pendnet venue is a matter of judicial discretion based upon the relatedness of the claims, judicial economy, convenience, and fairness.” Jackson v. MCI Telecommunications Corp., No. 92-2503, 1993 WL 408332, at * 2 (D. Kan. Sept. 29, 1993). Under 28 U.S.C. § 1391(e), venue is proper in a civil actionin which an officer of the United States is sued in his official capacity in any judicial district where the plaintiff resides. Thus, venue is clearly proper for Plaintiffs’ claims related to DOMA. Plaintif fs have asserted sim ilar or identical arguments regarding the constitutionality of DOMA and the constitutionality of the Oklahom a Amendment. Thus, there is a “relatedness of claims” that supports the exercise of pendent venue. Further, the Court finds that the interests of judicial economy and convenience would be served by adjudicating the constitutionality of both laws in th is district, rather than transf erring the claims related to the Oklahoma Amendment to the Western District of Oklahoma. Finally, with respect to fairness, the State Defendants have not, and cannot, argue that litigating this case in the Northern District of Oklahoma, instead of the Western District of Oklahoma, imposes any burden or hardship on them. Accordingly, the court gives great weight to Plaintiff’s choice of forumand, to the extent necessary, would exercise pendent venue over the claim that the Oklahom a Amendment is unconstitutional.
2. Eleventh Amendment Second, the State Defendants argue that Palintiffs are procedurally barred from bringing their case against the State of Oklahoma based on the doctrine of sovereign immunity under the Eleventh Amendment. The Eleventh Amendment provides: “The Judicial power of the United States shall
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not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend. XI. United States Suprem e Court case law has clarified, however, that notwithstanding state sovereign immunity, “where prospective relief is sought against individual state officers in a federal forum based on a federal right, the Eleventh Amendment, in most cases, is not a bar.” Idaho v. Coeur d’Alene Tribe of Idaho , 521 U.S. 261, 276-77 (1997); Nelson v. Geringer, 295 F.3d 1082, 1096 (10th Cir. 2002) . This is based on the Ex parte Young doctrine, under which “individuals m ay bring suit for prospective injunctive relie f to prevent ongoing constitutional violations against individual state oficials named in their official capacity even ifthe state is immune.” Nelson, 295 F.3d at 1096.
The Tenth Circuit has interpreted the Supr eme Court’s decision in Coeur d’Alene as recognizing two limitations to the Ex parte Young doctrine: (1) where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right; and (2) where providing prospective injunctive relief would implicate “special sovereignty interests” and result in an intrusion that is the “functional equivalent” of a form of relief barred by the Eleventh Amendment. See id. at 1096-97. Neither lim itation discussed by t he Tenth Circuit is even potentially implicated here, and the Court concludes that the Ex parte Young doctrine allows Plaintiffs’ request for prospective relief against the State Defendants to proceed.8
8 In their brief, the State Defendants argue that Ex parte Young does not apply in this case because there is no “enforcement or threat of enforcement” by the relevant state officials. The State Defendants rely primarily on a Fifth Circuit case and Third Circuit case for these arguments. First, the Court is constrained to apply the Ex parte Young doctrine as interpreted by the Tenth Circuit, and the Court is aware of no case law in the Tenth Circuit recognizing a third “limitation” on the Ex parte Young doctrine. Second, these arguments relate more closely to the issues of standing and the requirement of a “case or controversy,” which are already addressed.
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3. Standing - Part B of Oklahoma Amendment9 Part B of the Oklahom a Amendment prohibits only the recogni tion of a “m arriage” performed in another “state.” For the same reasons explained above with respect to Section 2 of DOMA, Plaintiffs Bishop and Baldwin lack st anding to challenge Part B of the Oklahom a Amendment because they have no “marriage” they wish to have recognized in Oklahoma. Plaintiffs Barton and Phillips have entered into a Verm ont civil union and a Canadian marriage. Language in Part B of t he Oklahoma Amendment is more limited than language in Section 2 of DOMA in that it does not refer to any“public act, record, or judicial proceeding” that is “treated as a marriage.” Instead, it references only a “marriage.” In light of the Court’s holding that even Section 2's more broad language does not extend to or implicate a Vermont civil union, the Court easily concludes that the language ofPart B of the Oklahoma Amendment does not extend to civil unions. Therefore, Part B does not experssly prohibit recognition of the Vermont civil union, and Barton and Phillips cannot show that Part B has caused or could im minently cause them a concrete and particularized injury by preventing recognition of their Vermont civil union. The Court must also address whether the Ca nadian marriage confers standing. As with Section 2 of DOMA, the Court interprets Part B of the Oklahoma Amendments’ use of the word “state” to have the same meaning as that used in the Full Faith and Credit Clause, which is limited to “states” within the United States. See supra Section III.B. The Courtfinds this interpretation to be in accord with the general purpose of most “mini DOMAs” passed in several states, which are to make clear such states’ intent not to extend full faith and credit to same-sex marriages performed
9 The Oklahoma Defendants do not tie their standing challenge to specific provisions of the Oklahoma Amendment, but the Court finds it necessary to separate Parts A and B in order to address standing.
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in other states. Therefore, Part B doe s not expressly prohibit recognition of Plaintiffs’ Canadian marriage because it was not entered into i n another state within the United States, and Plaintiffs cannot show that Part B has caused or could imminently cause them a concrete and particularized injury by preventing recognition of their Canadianmarriage. Thus, as with Section 2 of DOMA, no Plaintiffs have standing to challenge Part B of the Oklahoma Amendment.
4. Standing - Part A of Oklahoma Amendment With respect to Part A of the Oklahoma Amendment, the definitional provision, the Court concludes that all four Plaintiffs have made sufficient allegations to survive a motion to dismiss on the issue of standing. All four Plaintiffs desireto marry in the State ofOklahoma but are prevented from doing so based on the definition of marriage in the Oklahoma Amendment. First, the alleged injuries in f act, which consist of various alleged invasions of their constitutional rights - are personal or particularized in that the Oklahoma Amendment applies to prevent themfrom taking an action and affects them in an individual way. In oht er words, they are not asserting injury based on the government’s action against a third party. See Lujan, 540 U.S. at 561-62 (discussing distinction between plaintiff himself being object of government action or inaction and plaintiff’s injury flowing from government’s regulation of a third party). The Court also views the alleged injury as actual or imminent, not m erely conjectural or hypothe tical. As argued by Plaintiffs, the Oklahom a Amendment is a “preemptive strike” which altogether prevents activities by Plaintif s in which they wish to engage. Second, the alleged injuries of not being able to marry someone of the same sex have a “causal connection” t o the Oklahoma Amendment before the Court in that, but for the Oklahoma Amendment, Plaintiffs would get married or at least have one less obstacle to getting married in Oklahoma. Finally, if the Court were to strike down Oklahoma’s current definition of
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marriage as unconstitutional, it is “likely,” and not merely speculative, that Plaintiffs’ injuries would be redressed. The Court will revisit this issue athe summary judgment stage, after the parties have had an opportunity to present factual allegations and legal arguments but concludes at this time that the allegations in the Complaint are sufficient. For purposes of the legal argum ents made by the State Defendants, which are addressed below, the Court assumes that all Plaintiffs have standing to challenge Part A of the Oklahoma Amendment.
B. Substantive Arguments Raised by State Defendants10 1. Privileges and Immunities Clause Challenge to Part A
To the ext ent Plaintiffs assert that Part A of the Oklahom a Amendment violates the Privileges and Immunities Clause of the Fourteenth Amendment, this argument is without merit. As stated by the Sixth Circuit: “The Privilege s and Immunities Clause has been largely dormant since the Slaughter-House Cases, 83 U.S. (16 Wall) 36, 21 L.Ed. 394 (1872), restricted its coverage to ‘very lim ited rights of national citizenship’ and held that clause [sic] did not protect an individual’s right to pursue an economic livelihood against his own state.” Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002). Although there has beensome recent speculation that the Privileges and Immunities Clause should have a broader m eaning, see Saenz v. Roe , 526 U.S. 489 (1999) (Thomas, joined by Rehnquist, dissenting) (speculating that the development of the Privileges and Immunities Clause was prematurely stifled by the Slaughter-House Cases), the Tenth Circuit has
10 The Court does not find it necessary to address Plaintiffs’ challenge to the Oklahoma Amendment based on the Full Faith and Credit Clause because the Court construes such challenge as being only to Part B of the Oklahoma Amendment. Although the Complaint is not specific as to which provision allegedly violates the Full Faith and Credit Clause (see Complaint ¶ 25), it is clear that such challenge does not relate to Part A, which merely defines marriage for purposes of Oklahoma law and does not mention what affect Oklahoma must give other states’ marriages.
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made clear that the Slaughter House Cases remain good law unless the S upreme Court rules otherwise. See Powers v. Harris, 379 F.3d 1208, 1214 (10th Cir. 2004) (holding that Slaughter House Cases remained good law and prevente d a Privileges and Im munities challenge to a state licensing law).
2. Equal Protection and Due Process Clause Challenge to Part A As with these challenges to Section 3 ofDOMA, the Court concludes that such challenges are more appropriately decided at the summary judgment stage. Because the decision may involve findings related to the purpose and justifications for the Oklahoma Amendment, the Court would benefit from more developed arguments and citations to a record in deciding these issues.See Smelt I, 374 F. Supp.2d at 864 (deciding c ase based upon agreed factual record and cross m otions for summary judgment). V. Motion to Intervene The Honorable Thad Balkm an (“Balkman”) and Oklahomans for Protection of Marriage (“OFPM”) (collectively “Proposed Intervenors”) have moved to intervene pursuant to Federal Rule of Civil Procedure 24. B alkman is the O klahoma State Representative representing District 45. Balkman supported the passage of House Bill 2259and the submission of Legislative Referendum No. 334, State Question 711, which ultimately passed and resulted in the Oklahoma Amendment at issue in this litigation. OFPM is a non-profit Oklahoma corporation organized to advocate passage of State Question 711 and familiarize voters withthe proposed constitutional amendment. Proposed Intervenors seek to defend the constitutionality of the Oklahoma Amendment. The Court first concludes that Balkman and OFPM do not qualify for intervention as a matter of right pursuant to Federal Rule of Civil Proceduer24(a) because the Court finds their interests will
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be “adequately represented” by the State Defendants. In order to show their interests will not be adequately represented, Proposed Intervenor s cite to an Oklahom a Attorney General Opinion concluding that the Oklahoma State Department of Health was required under the Full Faith and Credit Clause to recognize out-of-state adoption decrees of Oklahom a children by sam e-gender adoptive parents. They argue that this shows that the State Defendants will or might take a position contrary to their own on full faith and credit issues. For the reasons explained above, the Court has already disposed of all challenges based on the Full Faith and Credit Clause. There is no reason to believe, nor do Proposed Intervenors assert, the State Defendants will not adequately represent the their interests in the remaining aspects of the litigation. Instead, Proposed Intervenors and the State Defendants have identical objectives of defending the constitutionality of Part A of the Oklahoma Amendment. See Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Dep’t of the Interior, 100 F.3d 837, 845 (10th Cir. 1996) (“[R]epresentation is adequate ‘when the objective of the applicant for intervention is identical to that of one of the parties.’”).
The Court, in its discretion, declines to allow permissive intervention under Federal Rule of Civil Procedure 24(b) because it does not believeintervention by Balkman and the OFPM as actual parties to the litigation is necessary or valuable to resolving this case. The Court will, however, allow Balkman and/or the OFPM to file an amicus brief in support of the Oklahoma Amendment, setting forth any and all argum ents it wishes to a dvance. This process will af ford the Court the benefit of Proposed Intervenors’ arguments and expertise while avoiding the procedural difficulties and delays that could occur by making them formal parties to the case. VI. Conclusion and Further Orders
All Plaintiffs lack standing to challenge Section 2 of DOMA and Part B of the Oklahom a
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Amendment. There are no potential questions of fact that would preclude such a determination at this stage of the proceedings. The determination of whether Plaintiffs Barton and Phillips have standing to challenge Section 3 of DOMA, and the determ ination of whether all Plaintiffs have standing to challenge Part A of the Oklahoma Amendment, are more appropriately decided at the summary judgment stage.
The Federal Defendants’ Motion to Dismiss (Docket No. 15) is GRANTED in part AND DENIED in part. It is granted as to Plaintiffs’ challenge to Section 3 of DOMA based on the Full Faith and Credit Clause and the Privileges and Im munities Clause. It is denied as to Plaintif fs’ challenge to Section 3 of DOMA based on the Substantive Due Process Clause and the Equal Protection Clause.
The State Defendants’ Motion to Dismiss (Docket No. 7) is GRANTED in part and DENIED in part. It is granted as to Plaintiffs’ challenge to Part A of the Oklahoma Amendment based on the Privileges and Immunities Clause. It is denied asto Plaintiffs’ challenge to Part A ofthe Oklahoma Amendment based on the Substantive Due Process Clause and the Equal Protection Clause.
The Honorable Thad Balkman and Oklahomans For Protection of Marriage Inc.’s Motion to Intervene (Docket No. 4) is DENIED, but the Court will allow them to submit amicus briefs in support of the Oklahoma Amendment.
Plaintiffs’ Motion to Strike certain exhibits submitted by the Federal Defendants (Docket No. 33) is DENIED. All exhibits submitted were subject to judicial notice, were properly considered at the motion to dismiss stage, and did not convert the motion to one for summary judgment.
The parties are hereby ORDERED as follows: 1. The parties shall endeavor to submit a stipulated or at least partially stipulated statement of
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facts. 2. The parties shall submit cross motions for summary judgment, specifically limited to the
following remaining issues: a. Standing of Barton and Phillips to challenge Section 3 of DOMA; b. Equal Protection and Substantive Due Process Cha llenges to Section 3 of DOMA; c. Standing of all Plaintiffs to challenge Part A of the Oklahoma Amendment; and d. Equal Protection and Substantive Due Process Challenges to Part A of the Oklahoma Amendment.
3. Proposed Intervenors may submit amicus briefs. 4. Discovery will not be allowed except upon motion and approval by the Court. The parties are referred to Magistrate Judge Sam A. Joyner for a scheduling conference at which deadlines will be set for the above submissions.
The Clerk is directed to vacate the Opinion and Order, dated July 20, 2006, dkt. no. 90. ORDERED this 14th day of August, 2006.
____________________________________ TERENCE KERN UNITED STATES DISTRICT JUDGE
29

 
 Case 4:04-cv-00848-TCK-TLW Document 109 Filed in USDC ND/OK on 10/31/06 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP and SHARON BALDWIN, )

individuals; SUSAN G. BARTON and GAY )

E. PHILLIPS, individuals.

)

)

Plaintiffs,

)

)

v.

)

)

The STATE OF OKLAHOMA, ex rel. DREW )

EDMONDSON, in his official capacity as

)

Attorney General of the State of Oklahoma and )

BRAD HENRY in his official capacity as

)

Governor of the State of Oklahoma;

)

the UNITED STATES OF AMERICA, ex rel. )

JOHN ASHCROFT, in his official capacity

)

as Attorney General of the United States of

)

America, GEORGE W. BUSH, in his official )

capacity as President of the United States.

)

)

Defendants.

)

No. 04-CV-848-TCK-SAJ

ORDER

Before the Court is Defendants the State of Oklahoma, ex rel., Drew Edmondson and Brad

Henry’s Motion for Stay of Proceedings Against Oklahoma Defendants Pending Appeal (Docket

No. 97). According to the response briefs filed, neither Plaintiffsnor the Federal Defendants object

to the entry of a stay of all proceedings pendi ng the outcome of the State Defendants’ appeal of

immunity issues. (See Docket Nos. 106 and 107.) The Court finds that a stay of proceedings against

the State Defendants is appropriate pursuant to Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990),

and that a stay of all proceedings pending such appeal is in the interest of judicial economy.

1

Case 4:04-cv-00848-TCK-TLW Document 109 Filed in USDC ND/OK on 10/31/06 Page 2 of 2 Accordingly, the State Defendants’ m otion to stay (Docket No. 97) is GRANTED a nd all proceedings are stayed until the appeal is resolved. IT IS SO ORDERED this 30th day of October, 2006. ____________________________________ TERENCE KERN UNITED STATES DISTRICT JUDGE
2

 
 Case

4:04-cv-00848-TCK-TLW Document 114 Filed Case: 06-5188 Document: 01018077749

inDUatSeDFCileNdD: U0/O6nK/i0t5eod/n2S000t6a9/t0eF5s/I0CPL9aoEguDPer:ta1goef

1 of 11 Appeals

Tenth Circuit

June 5, 2009

UNITED STATES COURT OF APPEALESlisabeth A. Shumaker

TENTH CIRCUIT

Clerk of Court

MARY BISHOP; SHARON BALDWIN; SUSAN G. BARTON; GAYE E. PHILLIPS, individuals,
Plaintiffs - Appellees,
v.
OKLAHOMA, STATE OF, ex rel., DREW EDMONDSON in his official capacity as Attorney General and BRAD HENRY in his official capacity as Governor,
Defendants - Appellants.
UNITED STATES OF AMERICA, ex rel., ERIC HOLDER, in his official capacity as Attorney General and BARACK H. OBAMA in his official capacity as President,
Defendant

No. 06-5188 N.D. Okla. (D.C. No. 04-CV-848-TCK)

ORDER AND JUDGMENT*

Before O’BRIEN, McKAY and HOLMES, Circuit Judges.

* This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged, except when related to law of the case, issue preclusion or claim preclusion. Any citation to an order and judgment must be accompanied by an appropriate parenthetical notation -- (unpublished). 10th Cir. R. 32.1(A).

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After examining the briefs and appellate record, this panel determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case was therefore ordered submitted without oral argument.
In this case, we must determine whether appellants, the Governor and Attorney General of the State of Oklahoma (together, the Oklahoma officials), are sufficiently connected to the enforcement of the Oklahoma Constitution’s marriage provisions to establish plaintiffs’ Article III standing and, if so, whether the Ex parte Young exception to the State’s Eleventh Amendment immunity applies. Ex Parte Young, 209 U.S. 123 (1908). The district court denied the Oklahoma officials’ motion to dismiss, concluding the plaintiffs, two lesbian couples, had standing and the suit could go forward underEx parte Young. See Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp.2d 1239 (N.D. Okla. 2006). Exercising jurisdiction under the collateral order exception to 28 U.S.C. § 1291,2 we reverse.
I. BACKGROUND This lawsuit was brought by two lesbian couples (together, the Couples)
2 The collateral order exception to 28 U.S.C. § 1291 “provides for interlocutory appeal of orders denying motions to dismiss brought on the basis of Eleventh Amendment immunity as the basis for appellate jurisdiction.” Opala v. Watt, 454 F.3d 1154, 1157 (10th Cir. 2006).
-2-

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challenging the federal Defense of Marriage Act (DOMA)3 and Oklahoma’s
amendment to its Constitution (Oklahoma Amendment) prohibiting same sex
couples from being married in Oklahoma and the recognition of out-of-state same
sex marriages. Because the federal law is not at issue on appeal, we address only
3 The Couples’ complaint challenged the substantive provision of § 2, codified at 28 U.S.C. § 1738C, which provides:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
The Barton Couple also contest the substantive provision of § 3, codified at 1 U.S.C. § 7, which provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
The district court concluded neither couple had standing to bring suit based on § 2 of the DOMA – the Bishop Couple because they had not entered into a civil union in any State, and the Barton Couple because Vermont does not treat its civil union as a “marriage” and because the Full Faith and Credit Clause applies only to marriages in the United States. The court, however, found the Barton Couple had standing for purposes of their § 3 claim at the motion to dismiss stage and their Equal Protection and Due Process claims survived, at least until the summary judgment stage. Accordingly, the district court dismissed all the federal claims except the Barton Couple’s Equal Protection and Due Process claims challenging the substantive portion of § 3 of the DOMA. The federal defendants did not appeal this ruling.
-3-

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the Oklahoma Amendment. A. The Oklahoma Amendment
On November 2, 2004, Oklahoma voters approved legislative referendum No. 334, which amended the Oklahoma Constitution to add, in pertinent part:
Marriage defined–-Construction of law and Constitution–Recognition of out-of-state marriages--Penalty A. Marriage in this state shall consist only of the union of one m an and one woman . . . . [No] provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage. C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor. See Okla. Const. art. 2, § 35. B. Procedural Background Mary Bishop and Sharon Baldwin (the Bishop couple) exchanged vows in a church ceremony in March 2002 and now wish to be civilly married in Oklahoma. Susan Barton and Gay Phillips (the Barton couple) were joined in a civil union in Vermont and legally married in Vancouver, British Columbia, Canada. They wish to have either or both ceremonies recognized in Oklahoma. To achieve their goals, the Couples sought, inter alia, a declaration that the Oklahoma Amendment is unconstitutional, specifically, it violates the Due Process Clause, the Equal
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Protection Clause, the Full Faith and Credit Clause and the Privileges and Immunities Clause.
In response to the Couples’ complaint, the Oklahoma officials moved to dismiss, claiming venue was improper in the Northern District of Oklahoma, the Couples lacked standing and the suit was barred by the Eleventh Amendment. The district court determined the Couples lacked standing to challenge subsection B of the Amendment because neither couple were “married” in another state as required by subsection B. As to subsection A, the court concluded the Couples had standing because they wished to be married in Oklahoma but subsection A precluded them from being married; there is a causal connection between that injury and the Amendment; and a declaration that the Amendment is unconstitutional will redress their claims. The court further determined venue was proper and the Ex parte Young exception to sovereign immunity applied.
On appeal, the Oklahoma officials challenge only the ruling regarding the Ex parte Young doctrine. Unfortunately, the unique procedural stance of this appeal has deprived this Court of a full briefing of the issues. While the standing issue was briefed in the district court, it has not been raised on appeal. In addition, the Couples chose not to take advantage of several opportunities to file a compliant brief with this Court and the Oklahoma officials decided to forego oral
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argument.4 Nonetheless, jurisdictional considerations, while intertwined in the Young doctrine, remain our first order of business and we have authority to examine Article III standing sua sponte. See Alvarado v. KOB-TV, LLC., 493 F.3d 1210, 1214 n.1 (10th Cir. 2007). Because the plaintiffs failed to nam e a defendant having a causal connection to their alleged injury that is redressable by a favorable court decision, we conclude the Couples do not have standing. See Id.
II. DISCUSSION “Before we address the merits of [a] case, . . . we must first determine whether the federal district court, and likewise this court, has subject-matter jurisdiction over the dispute.” In re Aramark Leisure Serv’s, 523 F.3d 1169, 1173 (10th Cir. 2008). “Article III standing requires that a plaintiff allege an injury-in-fact that has a causal connection to the defendant and is redressable by a favorable court decision.” Opala, 454 F.3d at 1157. Bronson v. Swensen is a mirror-image of the case before us. 500 F.3d 1099 (10th Cir. 2007). There, we considered the constitutional challenge to Utah’s polygamy statutes naming Sherrie Swensen, the Clerk of Salt Lake County, Utah,
4 On January 5, 2007, the Couples were advised that their brief (due December 29, 2006) was late and unless a brief was filed within ten calendar days, we would apply Fed. R. App. P. 31(c), denying them an opportunity to participate in oral argument. On January 20, they filed a late and deficient brief. On January 23, we gave the Couples another opportunity, until February 6, to file a compliant brief. On February 9, we provided them with a final opportunity to file a compliant brief by February 19. On March 2, 2007, having received no response from the Couples, we deemed the appeal fully briefed.
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as the only defendant. The plaintiffs, a married couple and the husband’s fiancé,
claimed, inter alia, Utah’s criminal prohibition of polygamy violated the federal
constitution. We concluded the plaintiffs lacked standing because, among other
things, they could not show causation or redress ability in a suit against the
County Clerk. As to causation, they had not shown “a substantial likelihood that
the defendant’s conduct caused plaintiff’s injury in fact” because the County
Clerk had no authority to initiate a criminal prosecution against them. Id. at 1110
(quotations omitted). Similarly, because an injunction against the Clerk would
not shield them from the claimed injury, prosecution for bigamy, the plaintiffs
failed to establish redressability. Id. at 1111-12 (“Enjoining this defendant from
enforcing [Utah’s criminal prohibition of polygamy] would be a meaningless
gesture.”). Thus, without mention of sovereign immunity or Ex parte Young, we
determined the plaintiffs lacked Article III standing.5
5 On appeal, the Oklahoma officials argue only the improper application of the Ex parte Young exception. While we need not reach this issue, we note in Ex parte Young, the Supreme Court said: “In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” 209 U.S. at 157; see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007) (“[T]he state officer against whom a suit is brought must have some connection with the enforcement of the [unlawful] act.”) (quotations omitted).The “necessary connection” language in Young has caused some confusion. As one court has described the inquiry, the necessary connection between the state defendant and the subject of the suit is “the common denominator of two separate inquiries: first, whether there is the requisite causal connection between [the defendant’s] responsibilities and any injury that the plaintiffs might suffer, such that relief
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Here, the Oklahoma officials’ generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce. See Women’s Emergency Network v. Bush, 323 F.3d 937, 949-50 (11th Cir. 2003) (“Where the enforcement of a statute is the responsibility of parties other than the governor (the cabinet in this case), the governor’s general executive power is insufficient to confer jurisdiction.”);see also Waste Mgm’t. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330-31 (4th Cir. 2001) (concluding governor’s general duty to enforce the laws of Virginia insufficient when he lacks a specific duty to enforce the challenged statutes); Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th Cir. 2001) (en banc) (constitutional challenge to state tort statute against Governor and Attorney General not viable under the Ex Parte Young doctrine because no enforcement connection existed between Governor or Attorney General and the statute in question);1st Westco Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13, 116 (3d Cir. 1993) (“If we were to allow [plaintiffs] to join . . . [the State officials]in this lawsuit based on their general obligation to enforce the laws . . ., we would quickly approach the nadir of the slippery slope; each state’s high policy officials would be subject to defend
against the defendants would provide redress [Article III standing]; and second, whether our jurisdiction over the defendants is proper under the doctrine of Ex parte Young . . . . which requires some connection between a named state officer and enforcement of a challenged state law.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004) (citations and quotations omitted) (emphasis added). In other words, the Young doctrine does not relieve a plaintiff of the obligation to name a proper defendant.
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every suit challenging the constitutionality of any state statute, no matter how attenuated his or her connection to it.”).
The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit. 43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an armof the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk’s ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district.” Spreight v. Presley, 203 P.3d 173, 177 (Okla. 2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage. Moreover, even if the Attorney General planned to enforce the misdemeanor penalty (a claim not made here), that enforcement would not be aimed toward the Couples as the penalty only applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an
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injunction (tellingly, not requested here)6 against them give the Couples the legal status they seek.
Because the Couples lack Article III standing, we REVERSE the district court’s failure to dismiss the claims against the Oklahoma officials and REMAND the case for entry of an order dismissing these claims for lack of subject matter jurisdiction.
Entered by the Court: Terrence L. O’Brien United States Circuit Judge
6 Here, the Couples’ complaint failed to identify any action that would be taken by the Governor or the Attorney General which would affect them. They did not request the court order the Oklahoma officials to act or refrain from acting. Instead, the sole request for relief was that the Oklahoma Amendment be declared unconstitutional.
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Case 4:04-cv-00848-TCK-TLW Document 114 Filed in USDC ND/OK on 06/05/09 Page 11 of 11 Case: 06-5188 Document: 01018077751 Date Filed: 06/05/2009 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
June 05, 2009

Douglas E. Cressler Chief Deputy Clerk

Ms. Martha Ruth Kulmacz Attorney General for the State of Oklahoma 313 NE 21st Street Oklahoma City, OK 73105
RE: 06-5188, Bishop, et al v. State of Oklahoma, et al Dist docket: 04-CV-848-TCK
Dear Counsel:
Enclosed is a copy of the order and judgment.
Please contact this office if you have questions.
Sincerely,

cc: N. Kay Bridger-Riley Timothy P. Studebaker
EAS/cp

Elisabeth A. Shumaker Clerk of the Court

 
 Case 4:04-cv-00848-TCK-TLW Document 122 Filed in USDC ND/OK on 08/10/09 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(1) MARY BISHOP,

)

(2) SHARON BALDWIN,

)

(3) SUSAN G. BARTON, and

)

(4) GAY E. PHILLIPS,

)

)

Plaintiffs,

)

)

v.

) No. 04-CV-848-TCK-TLW

)

(1) UNITED STATES OF AMERICA, ex

)

ref., ERIC H. HOLDER, JR., in his

)

official capacity as Attorney General of

)

the United States of America; and

)

(2) STATE OF OKLAHOMA, ex reI.,

)

SALLY HOWE-SMITH, in her official

)

capacity as Court Clerk for Tulsa County,

)

State of Oklahoma,

)

)

Defendants.

)

PLAINTIFFS' FIRST AMENDED COMPLAINT

Plaintiffs Mary Bishop, Sharon Baldwin, Susan G. Barton, and Gay E. Phillips, for

their Amended Complaint herein, allege and state as follows:

JURISDICTION AND VENUE

1. This case presents questions under the Due Process and Equal Protection

Clauses of the Fourteenth Amendment to the United States Constitution, and challenges

recent amendments to the Oklahoma Constitution and the federal law known as the "Defense

of Marriage Act" (DOMA), codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C. Jurisdiction

exists over all claims pursuant to 28 U.S.C. § 1331.

Case 4:04-cv-00848-TCK-TLW Document 122 Filed in USDC ND/OK on 08/10/09 Page 2 of 11
2. Venue is proper in this Court pursuant to 28 U. S.C. § 1391, in that the effects of the laws challenged herein are present in and felt in this district.
THE PARTIES
3. Plaintiff Mary Bishop is an Oklahoma citizen and resides in Tulsa County, Oklahoma.
4. Plaintiff Sharon Baldwin is an Oklahoma citizen and resides in Tulsa County, Oklahoma.
5. Plaintiff Susan G. Barton is an Oklahoma citizen and resides in Osage County, Oklahoma.
6. Plaintiff Gay E. Phillips is an Oklahoma citizen and resides in Osage County, Oklahoma.
7. Defendant Sally Howe-Smith is sued in her official capacity as Clerk of Tulsa County District Court. Pursuant to state law, she is the designated agent of the State of Oklahoma given statutory responsibility for issuing and recording marriage licenses. Plaintiffs Bishop and Baldwin sought the issuance of a marriage license from Defendant Howe-Smith but were refused solely because they were of the same sex.
8. Defendant Eric Holder is sued in his official capacity as the appointed Attorney General of the United States, and is endowed with the powers and authority to enforce DOMA's provisions.
2

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9. Defendants, and those subject to their supervision, direction and control, are responsible for the enforcement ofthe laws challenged herein. The reliefrequested is sought against these Defendants, as well as against each Defendant's officers, employees, and agents, and against all acting under their supervision, direction or control.
NATURE OF THE DISPUTE
10. This action addresses whether the denial of access to civil marriage by lesbian individuals such as Plaintiffs Mary Bishop and Sharon Baldwin violates their Due Process and Equal Protection rights and whether the refusal to recognize the marriage of Plaintiffs Susan G. Barton and Gay E. Phillips, validly performed under the laws of the State of California, constitutes a violation oftheir Due Process and Equal Protection rights. Because marriage is a basic civil right, Plaintiffs allege their unequal treatment as lesbians violates their constitutional guarantees under the United States Constitution. In addition to declaratory relief, Plaintiffs seek injunctive reliefpreventing and restraining each Defendant from enforcing the constitutional and statutory provisions challenged herein.
Mary Bishop and Sharon Baldwin 11. Plaintiffs Bishop and Baldwin are lesbian individuals who have been in a longtenn committed relationship for more than twelve years. They exchanged vows in a churchrecognized commitment ceremony in March, 2000. They desire to express their love for and commitment to one another by getting married and obtaining official sanction for their family from the State of Oklahoma. However, Oklahoma's law challenged herein deny them that
3

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right. Plaintiffs Bishop and Baldwin challenge Part A of Oklahoma's Constitutional Amendment, Art. 2, § 35, which defines "marriage" as a legal union between one man and one woman, and effectively denies the issuance of a license to marry to a same-sex couple. Plaintiffs Bishop and Baldwin sought the issuance of a marriage license from Defendant Howe-Smith but were refused solely because they were of the same sex. Plaintiffs assert their claim against Ms. Howe-Smith in her official capacity as Oklahoma's statutory agent for the issuance of marriage licenses.
Susan Barton and Gay Phillips 12. Plaintiffs Barton and Phillips are lesbian individuals who have been in a committed relationship for twenty-five years. Since the original COlmnencement of this action on November 3,2004, Plaintiffs Barton and Phillips were subsequently issued a lawful marriage license by the State of Califomia and married on November 1,2008. Before their California marriage, they had been joined in a civil union conducted in Vennont on August 4, 2001, and were legally married in Vancouver, British Columbia, Canada, on May 16, 2005. They desire the validity of their California marriage be recognized in the same way and to the same extent it would be recognized if they were a heterosexual couple. However, Section 3 ofDOMA, 1 U.S.c. §7, which defines "marriage" as a legal union between one man and one woman, and Section 2 ofDOMA, 28 U.S.C. §1738C, whichpennits Oklahoma to refuse to give effect to their marriage, both operate to deny them such recognition.
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Plaintiffs Barton and Phillips assert their claims against the United States ofAmerica, by and through the Attorney General.
FACTUAL BACKGROUND
l3. On November 2, 2004, the voters of Oklahoma approved and adopted legislative referendum No. 334, State Question No. 711, which was implemented as Article 2, Section 35 ofthe Oklahoma Constitution (the "Oklahoma Amendment"). The Oklahoma Amendment (1) precluded same-sex couples from receiving a marriage license and from being married under the laws ofOklahoma; (2) denied marital status or legal marital benefits to same sex unions; (3) expressly stated Oklahoma's public policy is against recognizing a same-sex marriage performed in another State; (4) stated Oklahoma will refuse to recognize any such same-sex marriage; and (5) made it a criminal misdemeanor to issue a marriage license in violation of the Amendment's provisions.
14. Plaintiffs allege the Oklahoma Amendment was passed with a discriminatory interest, in that it was intended as public moral disapproval of gays and lesbians.
15. The Oklahoma Amendment was State-sponsored discrimination against gay and lesbian individuals residing in Oklahoma. Despite their significant societal contributions, they were singled out for discrimination by vote of the majority.
16. The State of Oklahoma has created a legal system in which civil marriage is restricted solely and exclusively to opposite-sex couples, and in which gay and lesbian
5

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Oklahoma citizens are denied the right to enter into a civil marriage with the person oftheir choice.
17. DOMA, which became law in 1996, contains two substantive sections. Section 2 pennits Oklahoma to refuse to give effect to same sex marriages. Section 3 defines "marriage" to mean only a legal union between one man and one woman. Nationally, the purpose ofDOMA was to make gay and lesbian couples the subject oflaws stripping them of rights afforded other citizens.
18. Plaintiffs Mary Bishop and Sharon Baldwin applied for a marriage license from Defendant Howe-Smith and were refused because of those prohibitions of Oklahoma law, found in Part A of the Oklahoma Amendment ("marriage in this state shall consist only of the union of one man and one woman."). As a consequence, Plaintiffs Bishop and Baldwin were barred from marrying and left instead with a separate and unequal cohabitation.
19. Plaintiffs Susan G. Barton and Gay E. Phillips likewise desired to obtain an Oklahoma marriage license and be married in Oklahoma, but were prevented from doing so because of Part A of the Oklahoma Amendment, and an earlier statutory prohibition found at 43 OKLA. STAT. § 3. Prior to the commencement of this action, Plaintiffs Barton and Phillips had been joined in a civil union conducted in the State ofVennont, and then legally married in Vancouver, British Columbia. On November 1, 2008, because an Oklahoma license could not be issued to them, they sought and obtained a lawful marriage license from the State of California and were married. As an intended consequence and direct result of
6

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Part A's prohibition against the issuance of an Oklahoma license to any same sex couple, their California marriage has not been recognized in the same way and to the same extent it would have been recognized for heterosexual couples. Part A ofthe Oklahoma Amendment, combined with Sections 2 and 3 ofDOMA, unconstitutionally operate to cause such denial.
20. Each couple's inability to have their relationship recognized has caused significant hardship, including but not limited to the deprivation of rights guaranteed by the United States Constitution and severe emotional stress, pain, suffering and societal stigma. Each couple has been, or will be, denied access to rights and benefits, both federal and state, provided to heterosexual couples based solely on their married status.
21. Marriage is one ofsociety's most important social institutions and the freedom to marry is recognized as a fundamental, vital personal right essential to happiness. The denial of Plaintiffs Bishop and Baldwin's freedom to marry and the denial of recognition of the marriage of Plaintiffs Barton and Phillips constitute irreparable hann. This hann is a direct result of the violations of Plaintiffs' constitutional rights.
22. The foregoing violations of Plaintiffs' Due Process and Equal Protection guarantees have injured and continue to injure through humiliation, emotional distress, pain, suffering, loss of dignity, inability to marry and loss of enjoyment of the same respect accorded opposite-sex unions.
23. An actual and justiciable controversy exists regarding whether Plaintiffs' Due Process and Equal Protection Rights are being violated.
7

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24. Unless enjoined, Defendants will continue to enforce these unconstitutional laws and provisions against Plaintiffs.
CLAIMS FOR RELIEF
Count One: Due Process 25. Part A of the Oklahoma Amendment, defining marriage in a manner that excludes Plaintiffs herein, and prevents Plaintiffs Bishop and Baldwin from marrying in the State of Oklahoma, violates liberties protected by the Due Process Clause ofthe Fourteenth Amendment both on its face and as applied to Plaintiffs Bishop and Baldwin. As the proximate cause of, and intended consequence ofPart A, Plaintiffs Barton and Phillips have been denied recognition oftheir California marriage, and their Due Process rights have been violated. 26. Sections 2 and 3 of DOMA, which constitute a refusal to recognize their California marriage, violate the substantive Due Process guarantees ofthe Fifth Amendment to the United States Constitution of Plaintiffs Barton and Phillips.
Count Two: Equal Protection 27. Part A of the Oklahoma Amendment, as applied to Plaintiffs Bishop and Baldwin, violates their Equal Protection guarantees to wit: denial of a license to marry a person of the same sex. 28. The intended consequence of Part A of the Oklahoma Amendment is to disallow the status of marriage to same gender couples residing in Oklahoma. This
8

Case 4:04-cv-00848-TCK-TLW Document 122 Filed in USDC ND/OK on 08/10/09 Page 9 of 11
consequence, as applied to Plaintiffs Barton and Phillips, violates their Equal Protection guarantees to wit: refusal to recognize their marriage solely because it is between persons of the same sex.
29. Sections 2 and 3 of DOMA deny Plaintiffs Barton and Phillips Equal Protection to wit: refusal to recognize their California marriage as valid under Oklahoma law.
30. The Oklahoma Amendment makes lesbians unequal to heterosexuals in the eyes of the law, and denies them the same respect officially sanctioned for opposite-sex individuals. By purposefully denying civil marriage to lesbian individuals, and consequently refusing to recognize such marriages no matter where perfonned, Oklahoma law discriminates on the basis ofsexual orientation. Because Oklahoma law singles out gays and lesbians for a disfavored legal status, Oklahoma has by law created "second class citizens."
31. The Oklahoma Amendment violates the Constitution's Equal Protection Clause because it discriminates on the basis of sex.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment as follows: l. For a declaratory judgment under 28 U.S.C. § 2201 that the Oklahoma law challenged herein, barring same-sex marriages and refusing to recognize such marriages, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment as to Plaintiffs Bishop and Baldwin; and violates the Due Process and Equal Protection clauses of the Fourteenth Amendment as to Plaintiffs Barton and Phillips, inasmuch as the same
9

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denied them access to an Oklahoma marriage and caused non-recognition oftheir California marriage; and for a declaration that Sections 2 and 3 of DOMA violate the U.S. Constitution's Equal Protection and substantive Due Process Rights ofPlaintiffs Barton and Phillips.
2. Entry of a permanent injunction enjoining enforcement of the Oklahoma law barring same-sex marriage.
3. An award of their attorney's fees and costs in prosecuting this action. 4. Such other relief deemed proper.
Respectfully Submitted,
s/ Don G. Holladav Don G. Holladay, OBA#4294 James E. Warner III, OBA#19593 HOLLADAY & CHILTON PLLC 204 N. Robinson, Suite 1550 Oklahoma City, OK 73102 (405) 236-2343 - office (405) 236-2349 - facsimile
ATTORNEYS FOR PLAINTIFFS
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Case 4:04-cv-00848-TCK-TLW Document 122 Filed in USDC ND/OK on 08/10/09 Page 11 of 11

CERTIFICATE OF SERVICE
I hereby certify that on August 10~ 2009, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:

Martha R. Kulmacz
OKLAHOMA ATTORNEY GENERAL LITIGATION SECTION
313 N.B. 21st Street Oklahoma City, OK 73105 martha_kulmacz@oag.state.ok.us

W. Scott Simpson
UNITED STATES DEPARTMENT OF JUSTICE FEDERAL PROGRAMS BRANCH-CIVIL DIVISION
P.O. Box 883 Washington, DC 20044 scott.simpson@usdoj.gov

siDon G. Holladay

11

 
 Bishop v. U.S., Not Reported in F.Supp.2d (2009)

2009 WL 4505951 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
(1) Mary BISHOP; (2) Sharon Baldwin; (3) Susan G. Barton; and (4) Gay E. Phillips, Plaintiffs, v.
(1) UNITED STATES of America, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America; and (2) Sally Howe Smith, in her official capacity as Court
Clerk for Tulsa County, State of Oklahoma, Defendants.
No. 04–CV–848–TCK–TLW. | Nov. 24, 2009.
Attorneys and Law Firms
Don G. Holladay, James E. Warner, Holladay & Chilton PLLC, Oklahoma City, OK, Laura Lea Eakens, Gibbs Armstrong Borochoff Mullican & Hart, Phillip Craig Bailey, P. Craig Bailey, Timothy P. Studebaker, Tulsa, OK, for Plaintiffs.
Martha Ruth Kulmacz, Sandra D. Rinehart, Office of the Attorney General, Oklahoma City, OK, W. Scott Simpson, U.S. Department of Justice, Washington, DC, David Thomas Iski, District Attorney’s Office, Tulsa, OK, for Defendants.
Opinion
OPINION AND ORDER
TERENCE KERN, District Judge.
*1 Before the Court is the Motion to Dismiss Governor Brad Henry and Attorney General W.A. Drew Edmondson for Lack of Subject Matter Jurisdiction and to Dismiss the State of Oklahoma as a Potential Party Defendant (Doc. 128).
I. Procedural History On November 3, 2004, Plaintiffs, two lesbian couples, filed a Complaint seeking declaratory relief that the Defense of Marriage Act (“DOMA”), codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, and Article 2, § 35 of the

Oklahoma Constitution (the “Oklahoma Amendment”), violate the United States Constitution. Plaintiffs originally brought suit against (1) the State of Oklahoma, ex rel. Drew Edmondson, in his official capacity as Attorney General of the State of Oklahoma (“Edmondson”) and Brad Henry, in his official capacity as Governor of the State of Oklahoma (“Henry”) (collectively “Oklahoma Officials”); and (2) the United States of America, ex rel. John Ashcroft, in his official capacity as Attorney General of the United States of America and George W. Bush, in his official capacity as President of the United States. On August 16, 2006, the Court ruled on several pending motions, including motions to dismiss (“8/16/06 Order”). See Bishop v. Okla. ex rel. Edmondson, 447 F.Supp.2d 1239 (N.D.Okla.2006). Relevant to the currently pending motion, the Court allowed certain of Plaintiffs’ constitutional challenges to proceed against the Oklahoma Officials over their objections. Specifically, the Court ruled that the Ex Parte Young doctrine applied, such that the Eleventh Amendment did not bar the relief sought against the Oklahoma Officials, see id. at 1255, and that Plaintiffs had constitutional standing to challenge one part of the Oklahoma Amendment, see id. at 1256–57. The Oklahoma Officials appealed this Court’s application of the Ex Parte Young doctrine to deny the Oklahoma Officials their alleged sovereign immunity. The Court stayed the case pending a ruling by the Tenth Circuit.
On June 5, 2009, the Tenth Circuit issued an unpublished decision reversing this Court’s “failure to dismiss the claims against the Oklahoma officials” and remanding the “case for entry of an order dismissing these claims for lack of subject matter jurisdiction.” See Bishop v. Okla. ex rel. Edmondson, No. 06–5188, 2009 WL 1566802, at * 4 (10th Cir. June 5, 2009). The Tenth Circuit’s reversal was based on Plaintiffs’ lack of standing to pursue their claims against Edmondson and Henry.1 The Tenth Circuit reasoned that its decision in Bronson v. Swenson, 500 F.3d 1099 (10th Cir .2007), decided after this Court’s 8/16/06 Order, was the “mirror-image” of the present case and controlled the outcome. See Bishop, 2009 WL 1566802, at * 2. In Bronson, the Tenth Circuit held that a couple lacked standing to challenge Utah’s criminal prohibition on polygamy. Specifically, the court held that the couple (1) could not satisfy the causation element of standing because the named defendant, the county clerk, had no authority to “initiate a criminal prosecution” against them, and (2) could not satisfy the redressability element of standing because enjoining the county clerk from enforcing the polygamy law would be a “meaningless gesture.” Bronson, 500 F.3d at 1109–12. Applying Bronson to the facts presented in this case, the Tenth Circuit reasoned:
1

Bishop v. U.S., Not Reported in F.Supp.2d (2009)

1

Because Plaintiffs’ lack of standing was not raised on

appeal, the Tenth Circuit exercised its sua sponte

authority to examine this question. (See id. at * 2.)

*2 [Plaintiffs] claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit. 43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk’s ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district .” Spreight [sic] v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage. Moreover, even if the Attorney General planned to enforce the misdemeanor penalty (a claim not made here), that enforcement would not be aimed toward the Couples as the penalty only applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an injunction (tellingly, not requested here) against them give the Couples the legal status they seek. Bishop, 2009 WL 1566802, at * 3 (footnote omitted) (emphasis added). Thus, the Tenth Circuit held that Plaintiffs lacked standing to sue the Oklahoma Officials because Plaintiffs’ claims were not connected to the duties of these particular governmental employees. In so holding, the Tenth Circuit indicated that the Oklahoma governmental employee who does have a connection to Plaintiffs’ claims is a district court clerk because he or she is responsible for issuing and recording marriage licenses. The Tenth Circuit went one step further and held that Oklahoma district court clerks are, for purposes of issuing or recording a marriage license, considered “judicial personnel” because recognition of marriages is “within the administration of the judiciary.” Id. at * 3.2

2

The Oklahoma case relied upon by the Tenth Circuit

for this holding is Speight v. Presley, 203 P.3d 173

(Okla.2008). In Speight, the plaintiff sued both the

Oklahoma County District Court Clerk and the Oklahoma County Board of Commissioners, alleging negligent maintenance of court records following a wrongful arrest for a traffic citation that had actually been paid. In determining whether the board of commissioners could be held liable for a tort committed by the court clerk in the scope of her employment for purposes of the Oklahoma Governmental Tort Claims Act, the Court first acknowledged that a district court clerk is “both a county officer and an officer or ‘arm’ of the court.” Id. at 177. After examining Oklahoma statutes regarding traffic citations and the role of the clerk in relation to traffic citations, the Court held that “Oklahoma statutes detailing the duties of the clerk of the district court when processing traffic cases conclusively establish that the clerk is acting on behalf of and at the direction of the courts when performing such duties.” Id. Therefore, as to the board of commissioner’s liability for the court clerk’s actions, the Court held:
The Board of County Commissioners is not part of the traffic court process nor do they have supervisory control over the district court clerk when engaged in that process. Neither is the Board the overseer of the Clerk’s office with regard to court data that Clerk inputs into the OCIS system. Plaintiffs have pointed to no provisions that reflect any involvement of the Board of County Commissioners in the district court clerk’s performance of ministerial duties on behalf of the courts pursuant to Oklahoma law. Where the evidentiary materials of record clearly establish that the Board of County Commissioners had no control over and no role to play in the clerk’s actions, the Board will not be called upon to respond in damages under the doctrine of respondeat superior. Id. at 178 (emphasis added). Thus, although district court clerks may not be considered judicial personnel in every role, the Tenth Circuit has definitively ruled that a district court clerk issuing or failing to issue a marriage license is functioning as “judicial personnel.” See Bishop, 2009 WL 1566802, at * 3.
Following this ruling, Plaintiff retained new counsel. New counsel filed a motion for leave to amend the Complaint to: (1) “add the necessary Oklahoma official as a defendant in accordance with the Tenth Circuit order;” and (2) to amend “those claims that were considered inconsistent with the [8/16/06 Order].” (Am. Mot. for Leave to Amend 2.) The Court granted this motion, and Plaintiffs filed an Amended Complaint on August 10, 2009. Therein, Plaintiffs named “State of Oklahoma, ex rel. Sally Howe–Smith, in her official capacity as Court Clerk for Tulsa County” as a defendant.3 Plaintiffs alleged:
2

Bishop v. U.S., Not Reported in F.Supp.2d (2009)

3

Plaintiffs erroneously hyphenated the last name of

Defendant Sally Howe Smith (“Smith”) in the case

caption as “Sally Howe–Smith.”

[Smith] is sued in her official capacity as Clerk of Tulsa County District Court. Pursuant to state law, she is the designated agent of the State of Oklahoma given statutory responsibility for issuing and recording marriage licenses. Plaintiffs Bishop and Baldwin sought the issuance of a marriage license from [Smith] but were refused solely because they were of the same sex. *3 (Am.Compl.¶ 7.)
II. State’s Motion to Dismiss On August 19, 2009, following filing of the Amended Complaint, Sandra Rinehart of the Oklahoma Attorney General’s Office entered an appearance on behalf of “Defendants the State of Oklahoma; Governor Brad Henry and Attorney General W.A. Drew Edmondson.” (See Doc. 127.) On the same date, these parties filed a motion to dismiss (“State’s Motion to Dismiss”) essentially making two arguments: (1) the Court should enter an Order formally “dismissing” Henry and Edmondson; and (2) to the extent the Amended Complaint is construed as naming the State of Oklahoma (“State”) as a separate defendant from Smith, State enjoys Eleventh Amendment immunity from suit.
Plaintiffs objected to State’s Motion to Dismiss, contending that “the ex rel designation merely reflects the State’s nominal interest in seeing its laws faithfully executed by its statutory agents; in contrast to [State’s] authority, no claim is asserted against the State and it is not formally named as a party to this action.” (Pls.’ Resp. to State’s Mot. to Dismiss 6.) Smith also objected to State’s Motion to Dismiss, arguing that “[w]ithout the participation of the Oklahoma Attorney General, this Court will have a party, the Tulsa County Clerk, a county elected official performing a ministerial duty in the issuance of a marriage license, faced with the potential of arguing a matter of statewide concern.” (Smith’s Resp. to State’s Mot. to Dismiss 4–5.) State responded to Smith’s objection by arguing that a Tulsa County District Attorney who “is an employee of the State of Oklahoma, trained in, experienced in, and capable of addressing constitutional issues” is perfectly capable of effective representation of Smith. (State’s Reply to Smith’s Resp. to State’s Mot. to Dismiss 6–7.)

A. Edmondson and Henry In its ruling, the Tenth Circuit made clear that Plaintiffs lack Article III standing to sue Edmondson and Henry. Therefore, they are not proper parties to this lawsuit. Upon remand from the Tenth Circuit, instead of entering an order dismissing Edmondson and Henry, the Court allowed Plaintiffs to amend their complaint to omit Edmondson and Henry as defendants and name Smith. However, Plaintiffs’ election to name the “State of Oklahoma ex rel. Sally Howe–Smith” as the new defendant apparently caused Edmondson and Henry lingering concerns that they were still parties to the lawsuit. To the extent necessary, this Court clarifies that Edmondson and Henry are no longer parties; this was mandated by the Tenth Circuit. Had Plaintiffs failed to amend their complaint to omit Edmondson and Henry, a formal dismissal of such parties would have been necessary. As the record stands, the Court does not deem a dismissal order necessary because the complaint has been amended to omit Edmondson and Henry as named defendants.4

4

Following Plaintiffs’ amendment of their complaint on

August 10, 2009, neither Edmondson nor Henry have

appeared in the caption of the case on CM/ECF. Nor

has any party attempted to include their names in the

case caption.

B. State The more substantive questions raised by State’s Motion to Dismiss are: (1) whether, contrary to Plaintiffs’ stated intent, State is named as a separate party to the lawsuit by virtue of the “State of Oklahoma ex. rel. Sally Howe Smith” designation in the caption; and (2) if so, whether State is entitled to dismissal based on the doctrine of Eleventh Amendment immunity.
*4 As to the first question, the Court concludes that State is currently a named defendant in the lawsuit. Under Tenth Circuit and Oklahoma law, the “ex rel.” designation has no significance when used in relation to a defendant, and parties on both sides of the “ex rel.” designation are treated as named defendants. See Osage Nation v. Okla. ex rel. Okla. Tax Comm’n, 260 Fed. Appx. 13, 16 n. 3 (10th Cir.2007) (unpublished) (“A suit ex rel. is typically brought by the government upon the application of a private party (called a relator) who is interested in the matter. Where, as here, the designation is used as to a defendant, we afford it no significance. Thus, we treat both Oklahoma and the Oklahoma Tax Commission as defendants.”) (citation omitted); Okmulgee County ex rel.
3

Bishop v. U.S., Not Reported in F.Supp.2d (2009)

Bd. of County Comm’rs of Okmulgee County v. Robnett, 368 P.2d 502, 504 (Okla.1962) (“Our research has led us to conclude that the phrase ‘ex rel’ is never used and in fact is inapplicable to a party named as a defendant. Therefore the phrase ‘ex rel’ appearing in ‘The County of Okmulgee, ex rel. The Board of County Commissioners of Okmulgee County’ is meaningless and must be considered as superfluous. It follows that the County Okmulgee and the Board of County Commissioners of said County were both named as defendant.”).
As to the second question, the Court concludes that State is entitled to dismissal because it enjoys sovereign immunity from suit. “The Eleventh Amendment grants states sovereign immunity from suits brought in federal court by their own citizens, by citizens of other states, by foreign sovereigns, and by Indian tribes.” Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 827 (10th Cir.2007). The Eleventh Amendment “bars suit against a state unless the state waives immunity or Congress has validly abrogated immunity.” Nelson v. Geringer, 295 F.3d 1082, 1096 (10th Cir.2002). Plaintiffs made no attempt to argue or demonstrate that either of these exceptions applies to their claims against State. Instead, they simply argue that State is not a separate party from Smith, an argument the Court rejects.5 Further, Smith raised no legal doctrines that would deprive State of its sovereign immunity.6 The Court finds that State is immune from suit and must be dismissed as a defendant.

5

Plaintiffs did argue that the Eleventh Amendment does

not bar their claim against Smith based on application

of the Ex Parte Young doctrine. See Nelson, 295 F.3d at

1062 (“Under the Ex parte Young doctrine, individuals

may bring suit for prospective injunctive relief to

prevent ongoing constitutional violations against

individual state officials named in their official capacity

even if the state is immune.”). However, resolution of

this question is not necessary for purposes of the State’s

Motion to Dismiss.

6

In her brief, Smith made a case for why State should

waive its immunity and elect to permissively intervene

upon this Court’s certification of a constitutional

question to the Oklahoma Attorney General pursuant to

28 U.S.C. § 2403(b). However, Smith did not make any

showing that State had already waived its immunity.

The Motion to Dismiss Governor Brad Henry and Attorney General W.A. Drew Edmondson for Lack of Subject Matter Jurisdiction and to Dismiss the State of Oklahoma as a Potential Party Defendant (Doc. 128) is DENIED in part and GRANTED in part. The motion as related to Edmondson and Henry is denied as moot because they are no longer named defendants in the Amended Complaint. The motion as related to State is GRANTED.
Hereinafter, the case caption shall be as it appears on the front of this Opinion & Order.
For purposes of scheduling, the Court has determined that it is in the interest of justice to refrain from setting a schedule until the Court rules on the remaining pending motions to dismiss.7 Accordingly, the parties will not be required to file a Joint Status Report at this time.

7

Also pending are the Motion to Dismiss of Defendant

Sally Howe Smith (Doc. 130) and the Motion to

Dismiss of the United States (Doc. 137). These motions

present different substantive issues and will be

addressed by future order.

*5 IT IS SO ORDERED.
	  

4

 
 Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)

2014 WL 116013 Only the Westlaw citation is currently available.
United States District Court, N.D. Oklahoma.
Mary BISHOP, Sharon Baldwin, Susan Barton, and Gay Phillips, Plaintiffs, v.
UNITED STATES of America, ex rel. Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States of America; and Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendants, Bipartisan Legal Advisory Group of the U.S. House
of Representatives, Intervenor–Defendant.
No. 04–CV–848–TCK–TLW. | Jan. 14, 2014.
Synopsis Background: Lesbian couples brought action against various government officials claiming that Defense of Marriage Act (DOMA) section which functioned to deprive same-sex married couples of federal benefits, and amendment to Oklahoma constitution limiting marriage to opposite-sex couples violated due process and equal protection. Defendants’ motion to dismiss was granted in part and denied in part, 447 F.Supp.2d 1239. State appealed. The Court of Appeals, Terrence L. O’Brien, Circuit Judge, 333 Fed.Appx. 361, 2009 WL 1566802, reversed in part. On remand, plaintiffs filed amended complaint adding the Attorney General and county’s court clerk as defendants, and the complaint was dismissed as to state of Oklahoma, 2009 WL 4505951. Plaintiffs moved for summary judgment and for entry of final judgment, court clerk moved for summary judgment, and Attorney General moved to dismiss.
Holdings: The District Court, Terence C. Kern, J., held that:
[1] plaintiffs lacked standing to challenge DOMA’s non-recognition provision;
[2] plaintiffs’ claim for declaratory relief regarding DOMA’s definition of “marriage” was moot;

[3] plaintiffs lacked standing to challenge amendment to Oklahoma constitution prohibiting recognition of same-sex marriages; but
[4] plaintiffs had standing to challenge amendment to Oklahoma constitution defining “marriage”;
[5] Oklahoma constitution’s definition of “marriage” intentionally discriminated between groups of persons;
[6] state’s interest in promoting morality did not justify Oklahoma constitution’s definition of “marriage”; and
[7] Oklahoma constitution’s definition of “marriage” was not rationally related to state’s other interests.
Ordered accordingly.
West Codenotes
Held Unconstitutional Okla.Const. Art. 2, § 35(A).
Recognized as Unconstitutional 1 U.S.C.A. § 7.
Attorneys and Law Firms
Don G. Holladay, James E. Warner, Holladay & Chilton PLLC, Laura Lea Eakens, Jennings Cook & Teague PC, Oklahoma City, OK, Timothy P. Studebaker, Studebaker & Worley PLLC, Phillip Craig Bailey, P. Craig Bailey, Tulsa, OK, for Plaintiffs.
Austin R. Nimocks, Alliance Defense Fund, Judson Owen Littleton, W. Scott Simpson, Washington, DC, Brian W. Raum, James A. Campbell, Byron J. Babione, Holly L. Carmichael, Alliance Defending Freedom, Scottsdale, AZ, Dale Michael Schowengerdt, Alliance Defense Fund, Leawood, KS, John David Luton, Tulsa, OK, for Defendants.
Kerry W. Kircher, U.S. House of Representatives Office of General Counsel, Washington, DC, for Intervenor–Defendant.
Opinion
1

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)
OPINION AND ORDER
TERENCE C. KERN, District Judge.
*1 This Order addresses challenges to state and federal laws relating to same-sex marriage. The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court lacks jurisdiction over the other three challenges.
I. Factual Background This case involves challenges to: (1) both sections of the federal Defense of Marriage Act (“DOMA”), codified at 28 U.S.C. § 1738C and 1 U.S.C. § 7; and (2) two subsections of an amendment to the Oklahoma Constitution, which are set forth in article 2, section 35(A)-(B) (the “Oklahoma Constitutional Amendment”). All challenges arise exclusively under the U.S. Constitution.
A. DOMA DOMA, which became law in 1996, contains two substantive sections. Section 2 of DOMA, entitled “Powers Reserved to the States,” provides:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Defense of Marriage Act § 2, 28 U.S.C. § 1738C. Section 3 of DOMA, entitled “Definition of Marriage,” provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the

various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
Id. § 3, 1 U.S.C. § 7. This federal definition, which was declared unconstitutional during the pendency of this lawsuit, informed the meaning of numerous federal statutes using the word “marriage” or “spouse” and functioned to deprive same-sex married couples of federal benefits. See United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 2683, 186 L.Ed.2d 808 (2013) (striking down DOMA’s definition of marriage, which controlled “over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law,” as a violation of the Fifth Amendment to the U.S. Constitution).

B. Oklahoma Constitutional Amendment On November 2, 2004, Oklahoma voters approved State Question No. 711 (“SQ 711”), which was implemented as article 2, section 35 of the Oklahoma Constitution.1 The Oklahoma Constitutional Amendment provides:

“Marriage” Defined—Construction of Law and

Constitution—Recognition

of

Out–of–State

Marriages—Penalty

A. Marriage in this state shall consist only of the union

of one man and one woman. Neither this Constitution

nor any other provision of law shall be construed to

require that marital status or the legal incidents thereof

be conferred upon unmarried couples or groups.2

*2 B. A marriage between persons of the same gender

performed in another state shall not be recognized as

valid and binding in this state as of the date of the

marriage.3

C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.

Okla. Const. art. 2, § 35 (footnotes added). Part A of the Oklahoma Constitutional Amendment (“Part A”) is the definitional provision, which provides that marriage in Oklahoma “shall consist only of the union of one man and one woman.” Part B of the Oklahoma Constitutional

2

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)
Amendment (“Part B”) is the “non-recognition” provision, which provides that same-sex marriages performed in other states “shall not be recognized as valid and binding” in Oklahoma. Only Parts A and B are challenged in this lawsuit.
C. Procedural History4 In late 2004, Plaintiffs Mary Bishop and Sharon Baldwin (“Bishop couple”) and Susan Barton and Gay Phillips (“Barton couple”), two lesbian couples residing in Oklahoma, filed a Complaint seeking a declaration that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution. In August 2006, the Court denied a motion to dismiss filed by the Oklahoma Attorney General and Oklahoma Governor, rejecting their sovereign immunity argument. See Bishop I, 447 F.Supp.2d at 1255 (holding that suit was proper against these officials under the Ex parte Young doctrine). The state officials appealed this Court’s denial of sovereign immunity, and the Court stayed the proceedings pending appeal.
On June 5, 2009, the Tenth Circuit issued an unpublished decision reversing this Court’s “failure to dismiss the claims against the Oklahoma officials” and remanding the “case for entry of an order dismissing these claims for lack of subject matter jurisdiction.” See Bishop II, 333 Fed.Appx. at 365. The Tenth Circuit’s reversal was based on Plaintiffs’ lack of standing to pursue their claims against the named state officials:5
The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit. 43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk’s ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district.” Speight v. Presley, 203 P.3d 173, 177 (Okla.2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a

marriage license or record a marriage. Moreover, even if the Attorney General planned to enforce the misdemeanor penalty (a claim not made here), that enforcement would not be aimed toward the Couples as the penalty only applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an injunction (tellingly, not requested here) against them give the Couples the legal status they seek.
*3 Id. at 365 (footnote omitted).
Following remand, Plaintiffs retained new counsel and were granted leave to file an Amended Complaint. As implicitly directed by Bishop II, Plaintiffs sued the Tulsa County Court Clerk in place of the previously named officials. Specifically, Plaintiffs sued “State of Oklahoma, ex rel. Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County,” alleging:
[Sally Howe Smith] is sued in her official capacity as Clerk of Tulsa County District Court. Pursuant to state law, she is the designated agent of the State of Oklahoma given statutory responsibility for issuing and recording marriage licenses.
(Am.Compl.¶ 7.) The State of Oklahoma filed a second motion to dismiss, again asserting its immunity and arguing that it should be dismissed as a nominal party to the case. The Court granted this motion and dismissed the “State of Oklahoma” as a nominal party. See Bishop III, 2009 WL 4505951, at *3. Thus, the current Defendants to the lawsuit are: (1) United States of America, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America (“United States”); and (2) Sally Howe Smith (“Smith”), in her official capacity as Court Clerk for Tulsa County, State of Oklahoma. Smith is represented by the Tulsa County District Attorney’s Office and attorneys with an organization known as the “Alliance Defending Freedom.”
Smith and the United States filed motions to dismiss the Amended Complaint. The United States based its motion, in part, on the Barton couple’s lack of standing to challenge Section 3 of DOMA.6 The Court ordered the Barton couple to provide more particularized facts regarding the federal benefits that were allegedly desired and/or sought but that were unavailable and/or denied as a
3

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)
result of Section 3. After the Barton couple submitted supplemental affidavits, the United States conceded that the Barton couple had standing to challenge Section 3 and abandoned this section of its motion to dismiss.
On February 25, 2011, prior to the Court’s issuing a decision on the pending motions to dismiss, the United States notified the Court that it would “cease defending the constitutionality of Section 3 of [DOMA],” thereby abandoning other portions of its previously filed motion to dismiss. (See Not. to Court by United States of Am. 1.) The United States informed the Court of the possibility that members of Congress would elect to defend Section 3. On July 21, 2011, the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”) filed a motion to intervene “as a defendant for the limited purpose of defending Section 3.” (See Mot. of BLAG to Intervene 1.) The Court permitted BLAG to intervene pursuant to Federal Rule of Civil Procedure 24(b)(1)(A) and referred the matter to Magistrate Judge T. Lane Wilson for a scheduling conference. Magistrate Judge Wilson conducted the conference and entered an agreed schedule. Smith and the United States withdrew their previously filed motions to dismiss, and the briefing process began anew.
*4 Although the Court did not issue a formal stay of the proceedings, the Court was aware that the United States Supreme Court had granted certiorari in two cases presenting nearly identical issues to those presented here—namely, the constitutionality of Section 3 of DOMA and the constitutionality of Proposition 8, a California ballot initiative amending the California Constitution to define marriage as between a man and a woman. The Court delayed ruling in this case pending the Supreme Court’s decisions.
On June 26, 2013, the Supreme Court issued its heavily anticipated decisions in United States v. Windsor, ––– U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013) (addressing Section 3 of DOMA), and Hollingsworth v. Perry, –––U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013) (addressing Proposition 8). In Windsor, the Supreme Court held that Section 3 of DOMA “violates basic due process and equal protection principles applicable to the Federal Government.” Windsor, 133 S.Ct. at 2693–94. This holding renders moot the Barton couple’s challenge to Section 3. See infra Part III. In Hollingsworth, the Supreme Court held that the official proponents of Proposition 8 lacked standing. See Hollingsworth, 133 S.Ct. at 2662–68 (reasoning that the proponents of Proposition 8 had not been ordered “to do

or refrain from doing anything” by the trial court and that “[t]heir only interest in having the district court’s holding reversed was to vindicate the constitutional validity of a generally applicable California law”). Therefore, the Court did not reach the constitutionality of Proposition 8.
D. Barton Couple Plaintiffs Susan Barton and Gay Phillips have resided in Oklahoma for over fifty years and currently own a home in Tulsa, Oklahoma. They also own Barton, Phillips, and Associates, Inc., a company that provides training to agencies serving homeless teens. Ms. Phillips has a doctorate degree in sociology, and Ms. Barton is an adjunct professor at Tulsa Community College, where she teaches courses on “Building Relationships” and “Teaching Discipline.” The Barton couple has been in a continuous, committed relationship since November 1, 1984. They were united in a Vermont civil union in 2001 and were married in Canada on May 16, 2005. On November 1, 2008, prior to filing their Amended Complaint, they were issued a marriage license by the State of California and married under California law.7
As a same-sex couple that has been legally married in the United States, the Barton couple challenges Sections 2 and 3 of DOMA as violative of equal protection and substantive due process rights guaranteed by the Fifth Amendment to the U.S. Constitution. The Barton couple seeks a declaratory judgment that DOMA is unconstitutional and a permanent injunction restraining enforcement of DOMA. As a same-sex couple that is denied the right to marry in Oklahoma, the Barton couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. The Barton couple also challenges Part B, which prohibits recognition of their California marriage in Oklahoma, as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment.8 As remedies, the Barton couple seeks a declaratory judgment that Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution and a permanent injunction enjoining enforcement of Parts A and B.
E. Bishop Couple *5 Plaintiffs Mary Bishop and Sharon Baldwin have
4

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)
resided in Oklahoma throughout their lives and own a home in Broken Arrow, Oklahoma. They also jointly own a 1.3–acre lot in Osage County, Oklahoma. Ms. Bishop is an assistant editor at the Tulsa World newspaper, and Ms. Baldwin is a city slot editor at the Tulsa World. The Bishop couple has been in a continuous, committed relationship for over fifteen years and exchanged vows in a commitment ceremony in Florida in 2000. On February 13, 2009, the Bishop couple sought the issuance of a marriage license from Smith. Smith refused them a marriage license based upon their status as a same-sex couple.
As a same-sex couple that is denied the right to marry in Oklahoma, the Bishop couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. The Bishop couple seeks a declaratory judgment that Part A is unconstitutional and a permanent injunction enjoining enforcement of Part A.
F. Pending Motions This Order substantively addresses the following pending motions: (1) the United States’ motion to dismiss, in which the United States argues that the Barton couple lacks standing to challenge Section 2;9 (2) the Barton couple’s motion for entry of final judgment as to Section 3, which they filed following the Windsor decision; (3) Plaintiffs’ Motion for Summary Judgment, in which Plaintiffs argue that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violate the U.S. Constitution; and (4) Smith’s Cross Motion for Summary Judgment, in which Smith argues that the Barton couple lacks standing to challenge Part B, and that Parts A and B do not violate the U.S. Constitution.
The Court holds: (1) the Barton couple lacks standing to challenge Section 2 of DOMA; (2) the Barton couple’s challenge to Section 3 of DOMA is moot; (3) the Barton couple lacks standing to challenge Part B of the Oklahoma Constitutional Amendment; (4) the Bishop couple has standing to challenge Part A of the Oklahoma Constitutional Amendment;10 and (5) Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

II. Barton Couple Lacks Standing to Challenge Section 2 of DOMA In its motion to dismiss, the United States argues that the Barton couple lacks standing to challenge Section 2 because “any inability to secure recognition of their [California] marriage in Oklahoma would be attributable, not to the United States, but to the appropriate Oklahoma state official.” (United States’ Mot. to Dismiss 2.)11
A. Purpose of Section 2 Preliminary discussion of the purpose and legislative history of Section 2 is warranted. Relevant to this case, Section 2 provides that no state “shall be required to give effect to” a marriage license of any other state if the marriage is between persons of the same sex. 28 U.S.C. § 1738(C). According to the House Report preceding DOMA’s passage, the primary purpose of Section 2 was to “protect the right of the States to formulate their own public policy regarding legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition by one State of the right for homosexual couples to acquire marriage licenses.” See H.R.Rep. No. 104–664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906. More specifically, Congress was concerned that
*6 if Hawaii (or some other State) recognizes same-sex marriages, other States that do not permit homosexuals to marry would be confronted with the complicated issue of whether they are nonetheless obligated under the Full Faith and Credit Clause of the United States Constitution to give binding legal effect to such unions.
Id. at 2913. The House Judiciary Committee (“Committee”) determined that states already possessed the ability to deny recognition of a same-sex marriage license from another state, so long as the marriage violated a strong public policy of the state having the most significant relationship to the spouses at the time of the marriage. Id. However, the Committee also expressed its view that such conclusion “was far from certain.” Id. at 2914; see also id. at 2929 (“While the Committee does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would require sister states to give legal effect to same-sex marriages celebrated in other States, there is sufficient uncertainty that we believe
5

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)
congressional action is appropriate.”).
In order to address this uncertainty, Congress invoked its power under the second sentence of the U.S. Constitution’s Full Faith and Credit Clause (the “Effects Clause”), which permits Congress to “prescribe the effect that public acts, records, and proceedings from one State shall have in sister States.” Id. at 2929. The Committee described Section 2 as a “narrow, targeted relaxation of the Full Faith and Credit Clause.” Id. at 2932. Consistent with this legislative history, Section 2 has been described by courts and commentators as permitting states to refuse to give full faith and credit to same-sex marriages performed in another state. See Windsor, 133 S.Ct. at 2682–83 (“Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”); Smelt v. Cnty. of Orange, 447 F.3d 673, 683 (9th Cir.2006) (explaining that “Section 2, in effect, indicates that no state is required to give full faith and credit to another states’ determination that ‘a relationship between persons of the same sex ... is treated as a marriage’ ”); Gill v. Office of Personnel Mgmt., 699 F.Supp.2d 374, 378 (D.Mass.2010) (“In enacting Section 2 of DOMA, Congress permitted the states to decline to give effect to the laws of other states respecting same-sex marriage.”) (footnote omitted); Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L.Rev. 1468, 1532 (2007) (“Section 2’s purpose, evident from its terms, is to ensure that states will not be required to recognize same-sex marriage by virtue of the Full Faith and Credit Clause.”).12
B. Standing Analysis [1] The Barton couple bears the burden of proving that there is an actual “case or controversy” regarding Part B. See Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 756 (10th Cir.2010) (“Article III of the Constitution limits the jurisdiction of federal courts to actual cases or controversies.”). This jurisdictional requirement is known as standing. “To establish standing, plaintiffs bear the burden of demonstrating that they have suffered an injury-in-fact which is concrete and particularized as well as actual or imminent; that the injury was caused by the challenged [laws]; and that the requested relief would likely redress their alleged injuries.” Id. This three-pronged inquiry seeks to resolve three questions:
*7 Is the injury too abstract, or otherwise not appropriate, to be

considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative?
Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
[2] [3] For purposes of standing, the Court examines the allegations in the Amended Complaint. See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir.2007) (explaining that, where an original pleading has been amended, a court looks to the “amended complaint in assessing a plaintiff’s claims, including the allegations in support of standing”). Because the United States’ standing attack was made at the Rule 12(b)(6) stage, the Court “accept[s] the allegations in the [Amended Complaint] as true for purposes of [its] standing analysis.” United States v. Rodriguez–Aguirre, 264 F.3d 1195, 1203 (10th Cir.2001). Further, the Court must “presume that general allegations embrace those specific facts that are necessary to support the claim.” Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (internal citation omitted).
The Court construes the Amended Complaint as alleging three injuries flowing from Section 2. First, the Barton couple alleges the injury of being unable to obtain recognition of their California marriage in Oklahoma (“non-recognition”). (See Am. Compl. ¶ 20.) Second, they allege the injury of unequal treatment, flowing from the United States’ erection of Section 2 as a barrier to obtaining the benefit of recognition of their California marriage in Oklahoma (“unequal treatment”). (See id. ¶ 12; see also Pls.’ Resp. to Mot. to Dismiss 12 (arguing that “[Section 2] operates as such a barrier in that it officially sanctions the denial of equal treatment of Plaintiffs’ marriage and the attendant recognition/status that springs from such recognition”).) Finally, they allege the injury of stigma and humiliation. (See Am. Compl. ¶ 22; see also Pls.’ Resp. to Mot. to Dismiss 11–12 (“[Plaintiffs] have a second-class marriage in the eyes of friends, neighbors, colleagues, and the United States of America.”).)
1. Non–Recognition [4] The Court concludes that neither Section 2, nor the U.S. Attorney General’s enforcement thereof, plays a
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sufficient “causation” role leading to the Barton couple’s alleged injury of nonrecognition of their California marriage in Oklahoma.13 Section 2 is an entirely permissive federal law. 28 U.S.C. § 1738C (“No State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State ... that is treated as a marriage under the laws of such other State....”). It does not mandate that states take any particular action, does not remove any discretion from states, does not confer benefits upon non-recognizing states, and does not punish recognizing states. The injury of non-recognition stems exclusively from state law—namely, Part B and title 43, section 3.1 of the Oklahoma Statutes—and not from the challenged federal law. Cf. Gillespie v. City of Indianapolis, 13 F.Supp.2d 811, 818 (S.D.Ind.1998) (city police officer was convicted of domestic violence crime, prohibited by federal law from carrying firearm, and then threatened with termination by the city) (court held that injury of threatened termination was “fairly traceable” to federal firearm law because “a firearms disability operates as virtually a total bar to employment as a police officer” and because any decision by local officials to fire the plaintiff “stems from the federal statute and not the exercise of independent discretion”). In contrast to the federal firearms prohibition, essentially mandating an officer’s termination in Gillespie, Section 2 does not remove any local, independent discretion and is not a fairly traceable cause of the Barton couple’s non-recognition injury. See generally Bonauto, supra note 12, at 13 (explaining that “[l]egal challenges to section 2 of DOMA have been few, and none have succeeded, at least in part because it is the state’s nonrecognition law that presents the impediment to recognition, not section 2 itself”).
*8 The Barton couple’s reliance on Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), is misplaced. In Bennett, the Supreme Court addressed whether the injury of reduced water for irrigation was fairly traceable to a “Biological Opinion” authored by the Fish and Wildlife Service, where another agency actually issued the final decision regarding the volume of water allocated. Id. at 168–71, 117 S.Ct. 1154. The Biological Opinion, although not the “very last step in the chain of causation,” had a “powerful coercive effect” and a “virtually determinative effect” on the action ultimately taken by the other agency. See id. at 169, 117 S.Ct. 1154. While the other agency was “technically free” to disregard the Biological Opinion, it would do so at its own peril, including civil and criminal penalties. Id. at 170, 117 S.Ct. 1154. In contrast to the Biological Opinion, Section 2 does not have any coercive or

determinative effect on Oklahoma’s non-recognition of the Barton couple’s California marriage. At a maximum, it removes a potential impediment to Oklahoma’s ability to refuse recognition—namely, the Full Faith and Credit Clause. See supra Part III(A) (explaining Section 2’s purpose); note 12 (explaining that Full Faith and Credit Clause may not actually be an impediment). A federal law that removes one potential impediment to state action has a much weaker “causation” link than a federal agency opinion that has a coercive effect on another federal agency’s action.
[5] The Court must address dicta in Bishop I that is inconsistent with the above reasoning regarding Section 2. In 2006, this Court addressed standing issues sua sponte and implied that, if the Barton couple obtained legal status that was “treated as a marriage” in another state, they would have standing to challenge Section 2. See Bishop I, 447 F.Supp.2d at 1246 (describing Section 2 as “preventing, or at least arguably preventing” the Barton couple from obtaining legal recognition in Oklahoma). The Court’s use of the phrase “prevents, or at least arguably prevents” was in error. Section 2 does not “prevent” or even “arguably prevent” Oklahoma from recognizing the Barton couple’s California marriage. At most, Section 2 removes one potential impediment to a state’s ability to refuse recognition of the marriage. Therefore, the Court’s dicta in Bishop I has been reconsidered and is superseded by this Opinion and Order.14
2. Unequal Treatment [6] The Barton couple also alleges the injury of unequal treatment resulting from the imposition of Section 2 as a “barrier” to the benefit of recognition of their California marriage. In certain equal protection cases, the right being asserted is not the right to any specific amount of denied governmental benefits; it is “ ‘the right to receive benefits distributed according to classifications which do not without sufficient justification differentiate among covered applicants solely on the basis of [impermissible criteria].’ ” See Day v. Bond, 500 F.3d 1127, 1133 (10th Cir.2007) (quoting Heckler v. Mathews, 465 U.S. 728, 737, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984)). In such cases, the “injury in fact ... is the denial of equal treatment resulting from the imposition of the [allegedly discriminatory] barrier, not the ultimate inability to obtain the benefit.” Ne. Fla. Ch. of the Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993); Day,
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500 F.3d at 1133 (explaining that the injury in such cases “is the imposition of the barrier itself”). Although these standing principles are most commonly applied to competitive benefit programs, i.e., those for which there are a limited number of beneficiaries, the Tenth Circuit has also applied such principles to non-competitive benefit programs. See Day, 500 F.3d at 1131–35 (applying “equal opportunity” standing analysis to equal protection challenge to Kansas statute setting rules for receipt of in-state tuition at state universities).
*9 The Court concludes that these “discriminatory barrier” cases are not applicable due to the permissive nature of Section 2. As explained above, Section 2 is not an allegedly discriminatory policy that Oklahoma must follow in deciding what marriages to recognize, and it does not stand as any significant obstacle between the Barton couple and recognition of their California marriage in Oklahoma. Cf. Ne. Fla. Ch. of the Associated Gen. Contractors of Am., 508 U.S. at 666, 113 S.Ct. 2297 (minority set-aside program was “barrier” to non-minority gaining government contracts, the removal of which would have allowed non-minorities to compete equally); Turner v. Fouche, 396 U.S. 346, 361–64, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) (law limiting school board membership to property owners was “barrier” to non-property owners gaining election to school board, the removal of which would have allowed non-property owners to compete equally); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 493 (10th Cir.1998) (policy favoring long-term residents was “barrier” to short-term resident gaining access to medical school, the removal of which would have allowed short-term residents to compete equally). These cases are particularly unhelpful to the Barton couple because they have not challenged Part B of the Oklahoma Constitutional Amendment (which prohibits recognition and is the more direct cause of their injury) as violating the Full Faith and Credit Clause (which is the impediment to Part B’s legality that Section 2 potentially alleviates). Instead, they only challenged Part B as violative of their equal protection and substantive due process rights.

involving racial discrimination. See Allen, 468 U.S. at 755, 104 S.Ct. 3315 (explaining that “stigmatizing injury often caused by racial discrimination” is a “sort of noneconomic injury” that is “sufficient in some circumstances to support standing”); Wilson v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir.1996) (explaining that “stigmatizing injury often caused by racial discrimination can be sufficient in some circumstances to support standing” and applying concept to advertising scheme that allegedly discriminated based upon gender). Assuming these cases extend to stigmatic injuries to non-suspect classes, see infra Part VI(D)(2)(a) (concluding that same-sex couples desiring a marriage license are not a suspect class), the stigma still must be causally linked to some concrete interest discriminatorily impaired by Part B of the Oklahoma Constitutional Amendment. See Allen, 468 U.S. at 757 n. 22, 104 S.Ct. 3315 (explaining that a plaintiff premising standing on a stigmatic injury must (1) identify “some concrete interest with respect to which [she is] personally subject to discriminatory treatment[;]” and (2) show that this concrete interest “independently satisf[ies] the causation requirement of standing doctrine”). For the same reasons explained above, Section 2 lacks a sufficient causal link to any stigmatic injury the Barton couple is suffering due to non-recognition of their California marriage. The stigmatic harm flows most directly from Oklahoma law and is only possibly strengthened in some manner by Section 2. Therefore, the Barton couple’s allegations do not establish standing to challenge Section 2, and this claim is dismissed for lack of jurisdiction.15
III. Barton Couple’s Challenge to Section 3 of DOMA Is Moot *10 The Barton couple moves for entry of a final judgment on their challenge to Section 3 in light of the Supreme Court’s decision in Windsor. The United States argues that Windsor moots the Barton couple’s Section 3 challenge and that the Court lacks jurisdiction over this challenge.

3. Stigma [7] The Barton couple also alleges that the mere existence of Section—separate from any impact it has on their legal status as married or unmarried—causes ongoing stigmatic harm by indicating that their same-sex marriage is “second-class.” Stigmatic injuries are judicially cognizable in certain circumstances, particularly those

A. Mootness Standard [8] [9] [10] [11] “Mootness, like standing, is a jurisdictional doctrine originating in Article III’s ‘case’ or ‘controversy’ language.” WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir.2012). Thus, a court “must decline to exercise jurisdiction where the award of any requested relief would be moot, i.e. where the
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controversy is no longer live and ongoing.” Wirsching v. Colo., 360 F.3d 1191, 1196 (10th Cir.2004). The defendant bears the burden of proving mootness, WildEarth Guardians, 690 F.3d at 1183, and this burden is a heavy one, Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir.2012). If a defendant carries its burden of showing mootness, a court lacks subject matter jurisdiction. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir.2010).
B. Prayer for Relief In their prayer for relief, the Barton couple seeks “a declaration that [Section 3 of DOMA] violate[s] the U.S. Constitution’s Equal Protection and substantive Due Process Rights of Plaintiffs Barton and Phillips.” (Am.Compl.10.) They also seek an “award of their attorney fees and costs in prosecuting this action” and “[s]uch other relief deemed proper.” (Id.) The Court will analyze each request to determine if any “live and ongoing” controversy remains following the Windsor decision.
1. Declaratory Relief [12] “[W]hat makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of some dispute which affects the behavior of the defendant toward the plaintiff.” Rio Grande Silvery Minnow, 601 F.3d at 1109–10. The “crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Id. at 1110 (internal citation omitted); see also Rezaq, 677 F.3d at 1008 (“[I]n the context of an action for declaratory relief, a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.”); Wirsching, 360 F.3d at 1196 (same).
[13] [14] The Court concludes that there is no longer any live or ongoing controversy as to the Barton couple’s request for declaratory relief regarding Section 3. In Windsor, the Supreme Court held that Section 3 “violates basic due process and equal protection principles applicable to the Federal Government.” Windsor, 133 S.Ct. at 2693–94 (reasoning that “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal”). As a general rule, where a law has been declared unconstitutional by a controlling court, pending requests for identical declaratory relief become

moot. Thayer v. Chiczewski, 705 F.3d 237, 256–57 (7th Cir.2012) (claim for declaratory and injunctive relief moot in light of Seventh Circuit’s invalidation of challenged law in another case); Longley v. Holahan, 34 F.3d 1366, 1367 (8th Cir.1994) (claim moot where challenged statute was declared unconstitutional in companion case); Eagle Books, Inc. v. Difanis, 873 F.2d 1040, 1042 (7th Cir.1989) (claim moot where state supreme court had declared challenged statute unconstitutional); see also Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir.2004) (claim moot where challenged statute was repealed). Because Section 3 has already been declared unconstitutional by the Supreme Court, an identical declaration by this Court will have no further impact on the United States’ actions.16
*11 Second, the United States has presented compelling evidence that, following Windsor, it has ceased to enforce Section 3 and that the Barton couple will suffer no further injury as a result of Section 3. In Revenue Ruling 2013–17, the U.S. Department of the Treasury and the Internal Revenue Service (“IRS”) provided “guidance on the effect of the Windsor decision on the [IRS’] interpretations of the [federal tax code] that refer to taxpayers’ marital status,” stating that
individuals of the same sex will be considered to be lawfully married under the Code as long as they were married in a state whose laws authorize the marriage of two individuals of the same sex, even if they are domiciled in a state that does not recognize the validity of same-sex marriages.
(Rev. Ruling 2013–17, 2013–381.R.B.28 (emphasis added), Ex. B to United States’ Not. of Admin. Action.) In a news release, the IRS stated that “same sex couples will be treated as married for all federal tax purposes,” including “filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.” (I.R.S. News Release, IR–2013–72 (Aug. 29, 2013), Ex. A to United States’ Not. of Admin. Action.) Thus, Section 3 of DOMA will no longer be used to deprive the Barton couple of married status for any federal tax purpose because (1) they have a legal California marriage, and (2) Oklahoma’s non-recognition of such marriage is
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irrelevant for federal tax purposes. Any ongoing threat of injury based upon deprivation of married status for tax purposes has been rendered moot by Windsor and the IRS’ response thereto.17
In their evidentiary proffers regarding standing to challenge Section 3, the Barton couple asserts harms other than adverse tax consequences, such as an inability to plan for Social Security survivor benefits. The Barton couple argues that Windsor may affect the interpretation of the word “married” by other federal agencies and that this Court must ensure that the Barton couple reaps the full benefit of the Windsor decision. However, all evidence before the Court indicates that Section 3 will no longer be used to deprive married same-sex couples of federal benefits that are bestowed upon married opposite-sex couples, even when those couples live in non-recognizing states such as Oklahoma. The Windsor decision changed the legal landscape in such a drastic manner that the Barton couple no longer faces any reasonable threat of being denied equal protection of federal laws related to marriage. Were the Court to issue a declaratory judgment, it would be issuing an opinion based on a hypothetical application of Section 3 that is no longer likely to occur. See Rio Grande Silvery Minnow, 601 F.3d at 1117 (“A case ceases to be a live controversy if the possibility of recurrence of the challenged conduct is only a speculative contingency.”) (alterations and citation omitted).
2. Attorney Fees and Costs *12 [15] The Barton couple also requests attorney fees and costs. However, the possibility of recovering attorney fees or costs is not a sufficient reason to enter judgment in an otherwise moot case. See R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1108 (10th Cir.2007) (explaining that a claim of entitlement to attorney fees does not preserve a moot cause of action); In re West. Pac. Airlines, Inc., 181 F.3d 1191, 1196 (10th Cir.1999) (“Precedent clearly indicates that an interest in attorney’s fees is insufficient to create an Article III case or controversy where a case or controversy does not exist on the merits of the underlying claim.”); 13C Charles Alan Wright, et al., Federal Practice and Procedure § 3533.3 (3d ed. 2008) (“If the action is mooted before any decision on the merits by the trial court, a statute that awards fees to the prevailing party does not justify decision on the merits in order to determine if that party would have prevailed absent mootness.”) (“Claims for costs traditionally have not been thought sufficient to

avoid mootness, presumably on the theory that such incidental matters should not compel continuation of an otherwise moribund action.”).
3. “Other Relief Deemed Proper” [16] [17] The Barton couple does not expressly request money damages as relief. However, they urge the Court to construe their request for “other relief deemed proper” as a request for money damages. They are now urging this construction because, unlike claims for declaratory or injunctive relief, claims for damages are not mooted by subsequent events. See In re West. Pac. Airlines, Inc., 181 F.3d at 1196 (explaining that, although declaratory and injunctive relief was rendered moot by a defendant’s release from prison, a damages claim was still viable because it would alter the defendant’s behavior by forcing them to pay money); Charles Alan Wright, et al., supra, § 3533.3 (“Untold number of cases illustrate the rule that a claim for money damages is not moot, no matter how clear it is that the claim arises from events that have completely concluded without any prospect of recurrence.”). In the Tenth Circuit, this same rule applies to claims for nominal damages. Utah Animal Rights Coal., 371 F.3d at 1257–58 (“It may seem odd that a complaint for nominal damages could satisfy Article III’s case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held.”) (internal footnotes omitted).
The Court does not construe the “other relief deemed proper” language as a request for compensatory or nominal damages against the United States for three reasons. First, the Barton couple has repeatedly argued, in response to certain ripeness and standing deficiencies raised by BLAG, that their Section 3 injury was not any specific denial of monetary benefits but was instead the ongoing injury of unequal access and/or unequal treatment caused by Section 3. (See, e.g., Pls.’ Resp. to BLAG’s Cross Mot. for Summ. J. (containing heading entitled “BLAG’s Argument Regarding Standing is Without Merit, as Plaintiffs Do Not Request Monetary Damages and DOMA Was the Cause of their Injury”).) This case has focused entirely on prospective declaratory relief, rather than injunctive relief related to a specific tax refund, and the Court finds no legitimate basis to now construe the Amended Complaint as seeking money damages. Second, the United States is generally immune from suits for money damages, and the Barton couple has not identified any waiver or statutory exception that would apply here. See Wyodak Res. Dev. Corp. v. United
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States, 637 F.3d 1127, 1130 (10th Cir.2011) (explaining that suits for damages against the United States must proceed under the Tucker Act in the Court of Federal Claims or under some other statutory immunity waiver). Finally, the Barton couple has not urged the Court to construe the Amended Complaint as requesting nominal damages. (See Pls.’ Reply in Support of Mot. for Entry of J. 7–10.) Even if they had, these decisions generally require an express request, which was not made in the Amended Complaint. See R.M. Inv. Co., 511 F.3d at 1107 (rejecting argument that suit should be construed as one seeking nominal damages and stating that “[b]ecause [the plaintiff] has no claim for nominal damages, it cannot rely on nominal-damages cases to overcome mootness”); Charles Alan Wright, et al., supra, § 3533.3 (“But failure to demand nominal damages may lose the opportunity to avoid mootness.”). Accordingly, the Barton couple’s Section 3 challenge is not saved by the “other relief” language in the Amended Complaint.
C. Conclusion *13 The Barton couple has only requested prospective declaratory relief regarding Section 3, and such request has been rendered moot in light of Windsor and the United States’ response thereto. The United States has satisfied its burden of showing mootness, and the Court lacks jurisdiction to enter any judgment in favor of the Barton couple. Based on this ruling, the Court agrees with BLAG’s assertion that it has no further role to play in this litigation. BLAG’s motion to withdraw as an intervening party is therefore granted, and its motion for summary judgment is denied as moot.
Although the Barton couple will not receive a judgment in their favor as to this claim, they have played an important role in the overall legal process leading to invalidation of Section 3 of DOMA. The Barton couple filed this lawsuit many years before it seemed likely that Section 3 would be overturned. Although other plaintiffs received the penultimate judgment finding DOMA’s definition of marriage unconstitutional, the Barton couple and their counsel are commended for their foresight, courage, and perseverance.
IV. Barton Couple Lacks Standing to Challenge Part B of the Oklahoma Constitutional Amendment [18] Bishop II held that, in order to have standing in this case, Plaintiffs must establish a connection between the

state official sued and the alleged injury. See Bishop II, 333 Fed.Appx. at 365 (holding that Plaintiffs lacked standing to sue Oklahoma Governor or Oklahoma Attorney General in their challenge to Parts A and B because these officials did not have a sufficient enforcement connection to the challenged Oklahoma laws). The Tenth Circuit indicated that district court clerks were the Oklahoma officials with a connection to Plaintiffs’ injuries because “[m]arriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.” Id. Notably, the statutes cited in Bishop II do not reference court clerks’ authority to “recognize” an out-of-state marriage. In support of her motion for summary judgment, Smith submitted an affidavit stating that she has “no authority to recognize or record a marriage license issued by another state in any setting, regardless of whether the license was issued to an opposite-sex or same-sex couple” and that “[t]here are no circumstances in which the Clerk of Court of Tulsa County would be authorized to recognize a marriage license issued by another state.” (See Smith Aff. ¶ 5, Ex. A to Smith’s Cross Mot. for Summ. J.) The Barton couple has not controverted this evidence in any manner. Instead, the Barton couple argues that, in Bishop II, the Tenth Circuit “has deemed [Smith] to be the appropriate party.” (Pls.’ Reply to Smith’s Cross Mot. for Summ. J. 27.)
Based upon the evidence before the Court, Smith is entitled to summary judgment. Although Bishop II explained that clerks of court were generally the Oklahoma officials connected with the types of injuries alleged in the Amended Complaint, that decision was at the Rule 12(b)(6) stage. In her affidavit, Smith denies that she, or any other district court clerk in Oklahoma, has authority to recognize any out-of-state marriage and therefore denies her ability to redress the Barton couple’s non-recognition injury. The Barton couple has failed to controvert Smith’s testimony in any manner or demonstrate that she would indeed be the proper official to “recognize” their California marriage. Citation to Bishop II, and inconclusive Oklahoma statutes cited therein, is not sufficient to create a question of fact in light of Smith’s uncontroverted denial of authority.
*14 A recent case addressed the constitutionality of Ohio’s non-recognition provision, which was identical to Part B. See Obergefell v. Wymyslo, –––F.Supp.2d ––––, No. 1:13–cv–501, 2013 WL 6726688 (S.D.Ohio Dec. 23, 2013). In that case, the same-sex couples had been legally married in states other than Ohio. Upon the death of their same-sex spouse, the surviving spouses sought recognition of those marriages on Ohio death certificates.
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See id. at ––––, 2013 WL 6726688 at *1. The Obergefell plaintiffs sued the “local and state officers responsible for death certificates.” Id. While Obergefell does not stand for the proposition that local and state officials “responsible for death certificates” are the only types of officials who may be sued in a challenge to non-recognition laws, it does highlight the Barton couple’s evidentiary deficiencies in this case. Unlike the plaintiffs in Obergefell, who attempted to obtain recognition on death certificates, the Barton couple has not taken any steps to obtain recognition and has not shown that Smith is the proper official. While the Court does not believe that a futile “trip to the courthouse” is required in every instance, the only evidence before the Court is an uncontroverted denial of any connection to the injury by the sued state official. Therefore, the Barton couple’s challenge to Part B is dismissed for lack of standing.18
V. Bishop Couple Has Standing to Challenge Part A [19] Smith has not attacked the Bishop couple’s standing to challenge Part A or raised any other jurisdictional deficiencies. Nonetheless, the Court has independently satisfied itself that standing and other jurisdictional requirements are satisfied. The Bishop couple has proven standing because they sought an Oklahoma marriage license from Smith, Smith denied them such license, and Smith did so based upon their status as a same-sex couple. Unlike with Part B, the Bishop couple has clearly demonstrated Smith’s connection to their injury. Further, in contrast to Section 2 of DOMA, Part A of the Oklahoma Constitutional Amendment represents a significant cause of the Bishop couple’s injury and, at a minimum, stands as a barrier between them and “married” legal status in Oklahoma. A favorable ruling would enjoin enforcement of an enshrined definition of marriage in the Oklahoma Constitution and bring the Bishop couple substantially closer to their desired governmental benefit. See supra Part II(B) (explaining that, in equal protection cases, a plaintiff need not show that a favorable ruling would relieve his every injury but must show that a favorable ruling would remove a barrier imposing unequal treatment).19
[20] The Court has also satisfied itself that Smith is properly sued. The Bishop couple may seek relief from Smith under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which permits suits where a plaintiff is “(1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal law, and (3)

seeking prospective relief.” Cressman v. Thompson, 719 F.3d 1139, 1146 (10th Cir.2013); see also Ky. Press Ass’n, Inc. v. Ky., 355 F.Supp.2d 853, 861–62 (E.D.Ky.2005) (applying Ex Parte Young doctrine to permit suit against court clerk in her official capacity). The Court had additional immunity concerns based on Bishop II’s holding that Smith acts as an arm of Oklahoma’s judiciary when she issues (or denies) marriage licenses. See Bishop II, 333 Fed.Appx. at 365. However, because the suit is one for declaratory and injunctive relief, Smith is not entitled to judicial or quasi-judicial immunity. See Guiden v. Morrow, 92 Fed.Appx. 663, 665 (10th Cir.2004) (explaining that court clerk of Butler County, Kansas sued in her official capacity had quasi-judicial immunity from suits for money damages but “would not be entitled to immunity in a suit seeking injunctive relief”).
VI. Part A of the Oklahoma Constitutional Amendment Violates the U.S. Constitution *15 The Bishop couple argues that Part A is an unconstitutional deprivation of their fundamental due process liberties and equal protection rights under the Fourteenth Amendment to the U.S. Constitution. The Bishop couple and Smith filed cross motions for summary judgment, and both parties urge the Court to decide the constitutionality of Part A as a matter of law. The Court concludes: (1) Baker v. Nelson is not binding precedent; (2) Windsor’s reasoning does not mandate a particular outcome for the Bishop couple or Smith; and (3) Part A intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification.
A. Baker v. Nelson [21] Smith argues that Baker represents binding Supreme Court precedent and should end this Court’s analysis of Part A. In Baker, the Supreme Court dismissed, “for want of a substantial federal question,” an appeal of the Minnesota Supreme Court’s holding that its state marriage laws did not violate a same-sex couple’s equal protection or substantive due process rights under the U.S. Constitution. Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972). This type of summary dismissal “for want of a substantial federal question,” although without any reasoning, is considered a binding decision on the merits as to the “precise issues presented and necessarily decided.” Mandel v. Bradley, 432 U.S. 173,
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176–77, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977); Okla. Telecasters Ass’n v. Crisp, 699 F.2d 490, 496 (10th Cir.1983), rev’d on other grounds, Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984).20
Baker presented the precise legal issues presented in this case—namely, whether a state law limiting marriage to opposite-sex couples violates due process or equal protection rights guaranteed by the U.S. Constitution. This is evidenced by the jurisdictional statements submitted to the Supreme Court. In relevant part, the appellants phrased the issues as whether Minnesota’s “refusal to sanctify appellants’ marriage deprives appellants of liberty and property in violation of the due process and equal protection clauses.” (Appellants’ Jurisdictional Statement, Ex. 4 to Smith’s Cross Mot. for Summ. J.) Appellees similarly phrased the relevant issues as “[w]hether appellee’s refusal to sanctify appellants’ marriage deprives appellants of their liberty to marry and of their property without due process of law under the Fourteenth Amendment;” and “[w]hether appellee’s refusal ... to sanctify appellants’ marriage because both are of the male sex violates their rights under the equal protection clause of the Fourteenth Amendment.” (Appellees’ Jurisdictional Statement, Ex. 4 to Smith’s Cross Mot. for Summ. J.)21 Therefore, barring application of an exception, Baker is binding precedent in this case. See Jackson v. Abercrombie, 884 F.Supp.2d 1065, 1087 (D.Haw.2012) (holding that Fourteenth Amendment challenge to Hawaii law limiting marriage to opposite-sex couples presented precise issues that had been presented in Baker); see also Windsor v. United States (“Windsor I”), 699 F.3d 169, 178 (2d Cir.2012) (addressing DOMA challenge) (defining issue in Baker as “whether same-sex marriage may be constitutionally restricted by the states”); In re Kandu, 315 B.R. 123, 137 (Bankr.W.D.Wash.2004) (addressing DOMA challenge) (“The issue in Baker was whether a state licensing statute limiting marriage to opposite-sex couples, and thereby excluding same-sex marriage, violated the due process and equal protection provisions of the Constitution.”).
*16 [22] [23] There is an exception to the binding nature of summary dismissals, however, if “doctrinal developments indicate” that the Supreme Court would no longer brand a question as unsubstantial. Hicks, 422 U.S. at 344–45, 95 S.Ct. 2281 (stating that “unless and until the Supreme Court should instruct otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise”). The Court

concludes that this exception applies for three reasons. First, interpreting Hicks, the Tenth Circuit has pronounced that a “summary disposition is binding on the lower federal courts ... until doctrinal developments or direct decisions by the Supreme Court indicate otherwise.” Okla. Telecasters Ass’n, 699 F.2d at 495 (emphasis added). If an express overruling by the Supreme Court is the only type of “doctrinal development” that qualifies for the exception, the disjunctive “or” would cease to have meaning.
Second, there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question. The Supreme Court has: (1) recognized a new form of heightened scrutiny and applied it to sex-based classifications, see Craig v. Boren, 429 U.S. 190, 197–98, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); (2) held that a Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose, see Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); (3) held that homosexuals had a protected liberty interest in engaging in private, homosexual sex, that homosexuals’ “moral and sexual choices” were entitled to constitutional protection, and that moral disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy, Lawrence v. Texas, 539 U.S. 558, 564, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003); and (4) most recently, held that the U.S. Constitution prevented the federal government from treating state-sanctioned opposite-sex marriages differently than state-sanctioned same-sex marriages, and that such differentiation “demean[ed] the couple, whose moral and sexual choices the Constitution protects,” Windsor, 133 S.Ct. at 2694. While none is directly on point as to the questions presented in Baker (or here), this is the type of erosion over time that renders a summary dismissal of no precedential value. It seems clear that what was once deemed an “unsubstantial” question in 1972 would now be deemed “substantial” based on intervening developments in Supreme Court law. See Windsor I, 699 F.3d at 178 (holding that Baker was not controlling as to constitutionality of DOMA, reasoning in part that “[i]n the forty years after Baker, there have been manifold changes to the Supreme Court’s equal protection jurisprudence” that would warrant an exception to the general rule). But see Mass. v. U.S. Dept. of Health and Human Servs., 682 F.3d 1, 8 (1st Cir.2012) (rejecting similar reasoning in DOMA challenge and indicating that Baker limited the arguments in that case).
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*17 Finally, although the Supreme Court’s decision in Windsor was silent as to Baker’s impact,22 statements made by the Justices indicate that lower courts should be applying Windsor (and not Baker) to the logical “next issue” of state prohibitions of same-sex marriage. See Windsor, 133 S.Ct. at 2696 (Roberts, C.J., dissenting) (urging that the Windsor majority’s reasoning must not be extended to state-law bans because the majority’s “judgment is based on federalism”); id. at 2709–10 (Scalia, J., dissenting) (stating his opinion that the majority decision “arms well every challenger to a state law restricting marriage to its traditional definition”) (explaining that “state and lower federal courts” will be able to distinguish Windsor due to its “scatter-shot rationales” and inviting lower courts to “distinguish away”). If Baker is binding, lower courts would have no reason to apply or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply Windsor would be superfluous. Accordingly, the Court concludes that Baker is no longer a binding summary dismissal as to those issues. See Kitchen v. Herbert, –––F.Supp.2d ––––, ––––, No. 2:13–cv–217, 2013 WL 6697874, at *8 (D.Utah Dec. 20, 2013) (reaching same conclusion in challenge to Utah’s marriage definition in case issued after Windsor ).23
B. Windsor’s Impact In Windsor, the plaintiff, a New York resident, inherited the estate of her same-sex spouse. 133 S.Ct. at 2682. The couple had entered into a Canadian marriage, which was recognized in New York at the time of her spouse’s death. See id. (citing Windsor I’s reasoning regarding New York’s recognition of the Canadian marriage).24 Upon inheriting her spouse’s estate, the plaintiff sought to claim the federal estate tax exemption but was prevented from doing so by Section 3 of DOMA, which defined marriage as between one and one woman for purposes of federal law. Id. The plaintiff paid the taxes and then filed suit to challenge the constitutionality of Section 3. Id.
The Windsor majority opinion, authored by Justice Kennedy, held that: (1) when a state recognizes same-sex marriage, it confers upon this class of persons “a dignity and status of immense import;” id. at 2692; and (2) Section 3 of DOMA violated equal protection principles because the “avowed purpose and practical effect” of that law was “to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority” of a state, id. at 2693. This Court interprets Windsor as an equal

protection case holding that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples. See id. at 2694. (“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”).
*18 The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. Instead, the Windsor Court based its conclusion on the law’s blatant improper purpose and animus. See id. at 2693. The Court reasoned that DOMA’s “unusual deviation” from the tradition of “accepting state definitions of marriage” was “strong evidence of a law having the purpose and effect of disapproval of the class.” Id. The Court concluded, based upon DOMA’s text and legislative history, that DOMA’s principal purpose “was to impose inequality.” Id. Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test for reviewing Part A.
Both parties argue that Windsor supports their position, and both are right. Windsor supports the Bishop couple’s position because much of the majority’s reasoning regarding the “purpose and effect” of DOMA can be readily applied to the purpose and effect of similar or identical state-law marriage definitions. See id. at 2693 (discussing “essence” of DOMA as “defending” a particular moral view of marriage, imposing inequality, and treating legal same-sex marriages as “second class,” ultimately concluding that DOMA was motivated by an “intent to injure” lawfully married same-sex couples); id. at 2710 (Scalia, J., dissenting) (explaining that “the majority arms well every challenger to a state law restricting marriage to its traditional definition” and transposing certain portions of the majority opinion to reveal how it could assist these challengers). However, Windsor’s “purpose and effect” reasoning is not a perfect fit, as applied to Part A, because Part A does not negate or trump marital rights that had previously been extended to Oklahoma citizens. Further, DOMA’s federal intrusion into state domestic policy is more “unusual” than Oklahoma setting its own domestic policy. See id. at 2692 (discussing DOMA’s departure from the tradition of “reliance on state law to define marriage”).
Windsor supports Smith’s position because it engages in a lengthy discussion of states’ authority to define and
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regulate marriage, which can be construed as a yellow light cautioning against Windsor’s extension to similar state definitions. See id. at 2692 (explaining that state marriage laws vary between states and discussing states’ interest in “defining and regulating the marital relation”). Again, however, the “yellow light” argument has its limitations. In discussing this traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer “subject to constitutional guarantees.” See id. at 2692 (citing Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holding that Virginia’s prohibition of interracial marriage violated equal protection and substantive due rights)). A citation to Loving is a disclaimer of enormous proportion. Arguably, the “state rights” portion of the Windsor decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional rights. New York had expanded its citizens’ rights, and there was no possible constitutional deprivation in play.
*19 This Court has gleaned and will apply two principles from Windsor. First, a state law defining marriage is not an “unusual deviation” from the state/federal balance, such that its mere existence provides “strong evidence” of improper purpose. A state definition must be approached differently, and with more caution, than the Supreme Court approached DOMA. Second, courts reviewing marriage regulations, by either the state or federal government, must be wary of whether “defending” traditional marriage is a guise for impermissible discrimination against same-sex couples. These two principles are not contradictory, but they happen to help different sides of the same-sex marriage debate.
C. Civil Marriage in Oklahoma Before reaching its equal protection analysis, some preliminary discussion of civil marriage in Oklahoma is necessary. In order to enter into a marital contract, see Okla. Stat. tit. 43, § 1 (explaining that marriage is a “personal relation arising out of a civil contract”), a couple must first obtain a marriage license from the “judge or clerk of the district court, of some county in this state, authorizing the marriage between the persons named in such license.” Okla. Stat. tit. 43, § 4. In order to qualify for a marriage license, a couple must have the following characteristics: (1) the parties must be “legally competent of contracting,” id. § 1; (2) each person must be “unmarried,” see id. § 3(A); (3) the couple must consist of “one man and one woman,” see Okla. Const.

art. 2, § 35(A); see also Okla. Stat. tit. 43, § 3(A) (indicating that marital contract must be entered “with a person of the opposite sex”); (4) both parties must be eighteen years of age, see Okla. Stat. tit. 43, § 3(A);25 and (5) the couple must not be related to one another in certain ways, see id. § 2.26 But for the Bishop couple’s status as a same-sex couple, they satisfy the other eligibility criteria for obtaining a marriage license.
The process of obtaining a marriage license requires the couple to “submit an application in writing signed and sworn to in person before the clerk of the district court by both of the parties setting forth” certain information. Id. § 5(A). If the court clerk is satisfied with the couples’ application and the couple pays the appropriate fee, the clerk “shall issue the marriage license authorizing the marriage and a marriage certificate.” Okla. Stat. tit. 43, § 5(B)(1). The “marriage certificate” is a document with “appropriate wording and blanks to be completed and endorsed ... by the person solemnizing or performing the marriage ceremony, the witnesses, and the persons who have been married.” Id. § 6(A)(6).
The couple may then choose how they will “solemnize” the marriage, which is when the parties enter into the marital contract:
All marriages must be contracted by a formal ceremony performed or solemnized in the presence of at least two adult, competent persons as witnesses, by a judge or retired judge of any court in this state, or an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.
*20 Id. § 7(A). The judge, minister, or other authorized person must have possession of the marriage license and must have good reason to believe that the persons presenting themselves for marriage are the individuals named in the license. Id. § 7(C). Marriages between persons belonging to certain religions—namely, “Friends, or Quakers, the spiritual assembly of the Baha‘is, or the Church of Jesus Christ of Latter Day Saints, which have
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no ordained minister”—may be “solemnized by the persons and in the manner prescribed by and practiced in any such society, church, or assembly.” Id. § 7(D). Following the ceremony, whether civil or religious, the officiant, witnesses, and parties must complete and sign the marriage certificate. See id. § 8(A)-(C). Any person who performs or solemnizes a marriage ceremony “contrary to any of the provisions of this chapter” is guilty of a misdemeanor. See id. § 15.
After the license is issued and the contract entered into (either by civil or religious ceremony), both the marriage license and the marriage certificate are then returned to the court clerk who issued the license and certification. See id. § 8(D). This must be completed within thirty days of issuance of the marriage license. Id. § 6(A)(5). Once returned, the court clerk makes “a complete record of the application, license, and certificate” and then returns the original license to the applicants, “with the issuing officer’s certificate affixed thereon showing the book and page or case number where the same has been recorded.” Id. § 9.27
Therefore, in Oklahoma, “marriage” is a three-step process consisting of: (1) applying for and receiving a marriage license from the court clerk, which authorizes the couple to then enter the marital contract; (2) entering the marital contract by civil or religious ceremony; and (3) having the marriage license and marriage certificate “recorded” by the court clerk. This Court’s equal protection analysis is limited to Part A’s alleged discriminatory treatment with respect to the first and third steps—namely, Part A’s prevention of Smith from issuing a marriage license to same-sex couples and then recording the license upon its return.28 Smith has no connection to the second step (solemnization), and this Court’s equal protection analysis does not impact the second step. Therefore, the declaratory and injunctive relief granted by the Court does not require any individual to perform a same-sex marriage ceremony.
D. Equal Protection Analysis [24] The Fourteenth Amendment mandates that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. The Tenth Circuit has recently explained equal protection principles:
Equal protection is the law’s keystone. Without careful attention to equal protection’s demands, the integrity of

surrounding law all too often erodes, sometimes to the point where it becomes little more than a tool of majoritarian oppression. But when equal protection’s demands are met, when majorities are forced to abide the same rules they seek to impose on minorities, we can rest much surer of the soundness of our legal edifice. No better measure exists to assure that laws will be just than to require that laws be equal in operation.
*21 At the same time, it is of course important to be precise about what equal protection is and what it is not. Equal protection of the laws doesn’t guarantee equal results for all, or suggest that the law may never draw distinctions between persons in meaningfully dissimilar situations—two possibilities that might themselves generate rather than prevent injustice. Neither is the equal protection promise some generic guard against arbitrary or unlawful governmental action, merely replicating the work done by the Due Process Clause or even the Administrative Procedure Act. Instead, the Equal Protection Clause is a more particular and profound recognition of the essential and radical equality of all human beings. It seeks to ensure that any classifications the law makes are made without respect to persons, that like cases are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference.
SECSYS, LLC v. Vigil, 666 F.3d 678, 684–85 (10th Cir.2012) (alterations and citations omitted) (emphases added). A class-based equal-protection challenge, such as that raised here, generally requires a two-step analysis. Id. at 685. First, the Court asks “whether the challenged state action intentionally discriminates between groups of persons.” Id. Second, after an act of intentional discrimination is identified, the Court must ask “whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose.” Id. at 686. In conducting its analysis, the Court has been particularly mindful of the above-quoted portion of Vigil and has closely adhered to its two-step test. This has helped the Court decide this controversial and complex case as it would decide any other equal protection challenge.
1. Does Part A Intentionally Discriminate Between Groups of Persons? [25] [26] [27] “Intentional discrimination can take several
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forms.” Vigil, 666 F.3d at 685. “When a distinction between groups of persons appears on the face of a state law or action, an intent to discriminate is presumed and no further examination of legislative purpose is required.” Id. If the law is instead one of general applicability, some “proof is required.” Id. Because “few are anxious to own up to a discriminatory intent,” courts may “draw inferences about a law’s intent or purpose from circumstantial evidence.” Id. at 686. A plaintiff may demonstrate that a generally applicable law results in intentional discrimination by showing that the law “was adopted at least in part because of, and not merely in spite of, its discriminatory effect on a particular class of persons.” Id. (emphasis added).
[28] The Court defines the relevant class as same-sex couples desiring an Oklahoma marriage license.29 The Bishop couple has easily satisfied the first element—requiring a showing that Part A intentionally discriminates against this class—for two reasons. First, Part A’s disparate impact upon same-sex couples desiring to marry is stark. Its effect is to prevent every same-sex couple in Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law has a small or incidental effect on the defined class; it is a total exclusion of only one group. See Vigil, 666 F.3d at 686 (explaining that a law’s starkly disparate impact “may well inform a court’s investigation into the law’s underlying intent or purpose”).
*22 Second, both the timing of SQ 711 in relation to certain court rulings and the statements in the public domain before passage of SQ 711 raise the inference that it was adopted, at least in part, for the purpose of excluding the class from marriage. SQ 711 originated from legislation entitled the Marriage Protection Amendment, which passed the Oklahoma Legislature as part of House Bill 2259 (“HB 2259”). (See Smith’s Cross Mot. for Summ. J., Ex. 1 to Ex. B.) Although there is no “legislative history” for HB 2259 cited in the record, the Oklahoma House of Representatives website provides a “history” of HB 2259, which (1) lists the title as “Marriage; enacting the Marriage Protection Amendment;” (2) shows that the Oklahoma Senate passed the measure by a vote of 38 to 7 on April 15, 2004; and (3) shows that the House passed the measure by a vote of 92 to 4 on April 22, 2004. See History for HB 2259, available at www.oklegislature.gov/BillInfo.aspx?Bill= HB2259 & Session=0400.30
On April 15, 2004, the day HB 2259 passed the Oklahoma Senate, the Oklahoma Senate issued the

following press release:
Senate Passes Marriage Protection Amendment
Despite efforts by the Democrat leadership throughout the legislative session to kill the issue, the Senate passed a bill that sends to a vote of the people a constitutional amendment defining marriage in Oklahoma as only between one man and one woman and prohibiting the state from recognizing homosexual marriages performed outside Oklahoma.
“I am thankful to the Senate’s Democrat leadership for finally giving up on their efforts to keep the people from voting on the marriage protection amendment,” stated Senate Republican Leader James Williamson, R–Tulsa. “All we wanted all along was for the Democrat leadership to allow an up or down vote on this issue, and to allow the Senate to work its will.
“This is a tremendous victory for the people of Oklahoma and for those of us here at the state Capitol who fight for pro-family issues,” Williamson said.
Today’s vote was allowed as the result of an agreement on Tuesday between the Senate Democrat leadership and the Senate Republicans to end a filibuster by Senator Bernest Cain, D–Oklahoma City, the Senate’s leading supporter of legalizing homosexual marriage in Oklahoma.
...
Today, Williamson succeeded in attaching the marriage protection amendment to House Bill 2259 ..., sending it back to the House of Representatives for their approval of the Senate’s amendment to the bill.
...
If HB 2259 becomes law, the people of Oklahoma will vote on the proposed constitutional amendment on this fall’s general election ballot. The constitutional amendment would define marriage as only between one man and one woman, prohibit the recognition of same-sex marriages in other jurisdictions, and make it a misdemeanor to issue a marriage license in violation of the amendment’s definition of marriage.
*23 Many other states—from Ohio to Georgia—have taken action to provide constitutional protections to traditional marriage to combat efforts by liberals and activist judges seeking to redefine marriage by
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allowing same-sex unions.
Senate Passes Marriage Protection Amendment, available at www.oksenate.gov/news/pressreleases/press_releases_20 04/pr20040415.html (emphasis added).
The press release’s reference to judicial efforts to redefine marriage by allowing “same-sex unions” came shortly after two Massachusetts Supreme Court cases were issued, which held that the Massachusetts Constitution required that state to allow same-sex marriage. See Goodridge v. Dept. of Pub. Health, 440 Mass. 309, 798 N.E.2d 941, 968 (2003) (holding that practice of denying marriage licenses to same-sex couples violated same-sex couples’ equal protection rights under Massachusetts Constitution); In re Opinions of the Justices to the Senate, 440 Mass. 1201, 802 N.E.2d 565, 572 (2004) (providing opinion, in response to question from Massachusetts Senate, that a bill prohibiting same-sex couples from marrying, but allowing same-sex couples to enter civil unions, would also violate the Massachusetts Constitution). On February 6, 2004, three days after the second ruling by the Massachusetts Supreme Court, Tulsa and Oklahoma City newspapers both reported that State Senator James Williamson, author of the Marriage Protection Amendment, made public statements regarding the need for a constitutional amendment in order to prevent a similar ruling in Oklahoma. See Marie Price, Republican Legislators Wary of Same–Sex Ruling, Tulsa World, Feb. 6, 2004 (“Legislative Republicans said Thursday that this week’s Massachusetts Supreme Court ruling outlining constitutional protection for same-sex marriages puts Oklahoma in jeopardy of a similar decision.”) (quoting Mr. Williamson as stating that “ ‘[Governor Brad Henry’s] reluctance to protect traditional marriage could put Oklahoma at risk that a court will force same-sex unions on us here’ ”);31 Ryan McNeil, Party Leaders Trade Barbs on Marriage, The Oklahoman, Feb. 6, 2004 (similarly reporting on Mr. Williamson’s public comments regarding “activist judges” who seek to overturn Oklahoma’s definition of marriage). Similar public comments regarding the need to protect marriage from same-sex couples were made closer in time to the law’s passage. In a public debate held at the Tulsa Press Club between Mr. Williamson and Mark Bonney in October 2004, Mr. Williamson stated that “ ‘[i]t is one thing to tolerate the homosexual lifestyle and another to legitimize it through marriage.’ ” Brian Barber, Ban on Gay Marriage Debated, Tulsa World, (Oct. 13, 2004) (quoting Mr. Williamson).

Exclusion of the defined class was not a hidden or ulterior motive; it was consistently communicated to Oklahoma citizens as a justification for SQ 711. This is simply not a case where exclusion of same-sex couples was a mere “unintended consequence” of the law. Cf. Vigil, 666 F.3d at 686–87 (holding that any discriminatory impact on a certain class of persons by an extortionist state action was an “unintended consequence” flowing from the ultimate goal of enriching the extortioner). Instead, this is a classic, class-based equal protection case in which a line was purposefully drawn between two groups of Oklahoma citizens—same-sex couples desiring an Oklahoma marriage license and opposite-sex couples desiring an Oklahoma marriage license.32
2. Is This Intentional Discrimination Justified? *24 Not all intentional discrimination by a state against a class of citizens violates equal protection principles. See Vigil, 666 F.3d at 686 (“The law ... may take cognizance of meaningful distinctions between individuals without violating the constitutional command of treating similarly situated persons equally.”). “In determining whether distinctions between individuals are ‘meaningful,’ the degree of judicial scrutiny varies.” Id. If the discrimination is against a suspect class or quasi-suspect class, it comes to courts “under grave suspicions and subject to heightened review” because experience teaches that classifications against these groups is “so rarely defensible on any ground other than a wish to harm and subjugate.” Id. at 687. “Laws selectively burdening fundamental rights are also carefully scrutinized.”33 Laws discriminating against all other groups of citizens “are reviewed to see if the distinctions they draw between persons are at least rational” because “there is less reason from historical perspective to suspect a meaningless classification.” Id.
a. Level of Scrutiny [29] The Bishop couple argues that Part A is subject to heightened scrutiny because it constitutes gender discrimination. As explained above, the Court’s defined class is same-sex couples desiring an Oklahoma marriage license. This class of individuals is excluded from marriage regardless of their gender, i.e., regardless of whether they are two men or two women. Part A does not draw any distinctions between same-sex male couples and same-sex female couples, does not place any disproportionate burdens on men and women, and does
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not draw upon stereotypes applicable only to male or female couples. The female couples in this case could readily be substituted for male couples, and the male couples would be forced to make precisely the same “sex discrimination” arguments. Common sense dictates that the intentional discrimination occurring in this case has nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to heightened scrutiny on that basis. See Sevcik v. Sandoval, 911 F.Supp.2d 996, 1005 (D.Nev.2012) (holding that Nevada’s prohibition of same-sex marriage was not “directed toward persons of any particular gender” and did not “affect people of any particular gender disproportionately such that a gender-based animus [could] reasonably be perceived”); Jackson, 884 F.Supp.2d at 1099 (“The Court thus agrees with the vast majority of courts considering the issue that an opposite-sex definition of marriage does not constitute gender discrimination.”) (citing cases). But see Kitchen, ––– F.Supp.2d at ––––, 2013 WL 6697874, at *20 (finding that Utah’s marriage definition constituted sex discrimination and sexual orientation discrimination); Perry, 704 F.Supp.2d at 996 (“Sexual orientation discrimination can take the form of sex discrimination.”); Golinski, 824 F.Supp.2d at 982 n. 4 (“Ms. Golinski is prohibited from marrying ... a woman because [she] is a woman.... Thus, DOMA operates to restrict Ms. Golinski’s access to federal benefits because of her sex.”).
*25 [30] Instead of gender-based discrimination, the intentional discrimination occurring against same-sex couples as a result of Part A is best described as sexual-orientation discrimination. The conduct targeted by Part A—same-sex marriage—is so closely correlated with being homosexual that sexual orientation provides the best descriptor for the class-based distinction being drawn. See Lawrence, 539 U.S. at 583, 123 S.Ct. 2472 (O’Connor, J., concurring) (explaining that conduct targeted by Texas law criminalizing sodomy was so “closely correlated with being homosexual” that it amounted to a class-based distinction); Sandoval, 911 F.Supp.2d at 1005 (concluding that Nevada law prohibiting same-sex marriage was “sexual-orientation based”); Varnum v. Brien, 763 N.W.2d 862, 885 (Iowa 2009) (“The benefit denied by the marriage statute—the status of civil marriage for same-sex couples—is so ‘closely correlated with being homosexual’ as to make it apparent the law is targeted at gay and lesbian people as a class.”). In this case, the Bishop couple self-identifies as a homosexual couple and desires to marry each other due to their sexual orientation. (See Bishop Couple Aff. ¶ 14, Ex. 1 to Pls.’ Mot. for Summ. J. (explaining that they “deeply desire” to marry the “person [they] love and the

“companion [they] have chosen,” which is driven by their sexual orientation as lesbian).)34 Classifications against homosexuals and/or classifications based on a person’s sexual orientation are not subject to any form of heightened review in the Tenth Circuit. See Price–Cornelison v. Brooks, 524 F.3d 1103, 1113–14 (10th Cir.2008) (“A government official can, therefore, distinguish between its citizens on the basis of sexual orientation, if that classification bears a rational relation to some legitimate end.”) (citation omitted) (holding that county sheriff’s refusal to enforce a lesbian’s protective order against her same-sex partner did not implicate any protected class that would warrant heightened scrutiny); see also id. n. 9 (noting cases rejecting “the notion that homosexuality is a suspect classification”); Kitchen, ––– F.Supp.2d at ––––, 2013 WL 6697874, at *21 (finding Price–Cornelison controlling as to this question in the Tenth Circuit). Therefore, Part A is not subject to any form of heightened scrutiny based upon the Bishop couple’s membership in a suspect class.
b. Rationality Standard [31] [32] [33] Because it disadvantages a non-suspect class, Part A does not come to this Court under heightened suspicion.35 It comes to the Court on the same footing, for example, as laws intentionally discriminating against the disabled or the elderly. Part A must be reviewed merely for “rationality,” which requires the Court to uphold Part A “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification” that it draws between citizens. Copelin–Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir.2005) (applying rational basis review to legislation discriminating against non-suspect class of disabled persons); see also Price–Cornelison, 524 F.3d at 1114 (inquiring whether classification based on the plaintiff’s status as a homosexual bore a “rational relation to some legitimate end”). In conducting its review, the Court must not only consider the actual purpose of the law but also whether there are any other justifications that could “conceivably” provide a rational reason for its passage. See Schanzenbach v. Town of Opal, Wyo., 706 F.3d 1269, 1276 (10th Cir.2013) (explaining that a proferred justification for a law need not have actually motivated the legislature). Further, “there need not be a perfect fit between purpose and achievement for a law to pass constitutional muster.” Id. There is no difference in the rationality standard where the law in question is a state constitutional amendment enacted by a vote of citizens. See Romer, 517 U.S. at 631, 116 S.Ct. 1620 (concluding
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that Colorado constitutional amendment did not bear a “rational relation to a legitimate end”).
*26 [34] [35] [36] The Court’s ultimate task, even under rationality review, is to determine “whether there is some ground of difference having a fair and substantial relation to at least one of the stated purposes justifying the different treatment” between the included class and the excluded class. Johnson v. Robison, 415 U.S. 361, 376, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); see also Vigil, 666 F.3d at 687 (“In any case, though, and whatever the applicable standard of review, the aim is always to ensure that, while persons in dissimilar situations may be treated differently, the law treats like alike.”). A state “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). “By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, [a court] ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 634–35, 116 S.Ct. 1620.
c. Promoting Morality [37] The Court turns now to the conceivable justifications for Part A’s preclusion of same-sex couples from receiving an Oklahoma marriage license. Although not advanced in this litigation as a “justification,” the Bishop couple has shown, as a matter of law, that promoting or upholding morality was at least one justification offered to the public prior to passage of the law.36 Just like federal legislators who stated their purpose as “defending” the morality of marriage, see Windsor, 133 S.Ct. at 2693, Oklahoma legislators promoted Part A as upholding one specific moral view of marriage. In February 2004, prior to HB 2259’s passage, House Minority Floor Leader Todd Hiett stated that “ ‘[t]o recognize something other than what God has ordained as traditional marriage obviously detracts or deteriorates the importance of the traditional marriage.’ ” Marie Price, Republican Legislators Wary of Same–Sex Ruling, Tulsa World, Feb. 6, 2004 (quoting Mr. Hiett). State Representative Bill Graves said, “ ‘This is a Bible Belt state.... Most people don’t want that sort of thing here.... Gay people might call it discrimination, but I call it upholding morality.’ ” David Harper, Focus: Gay Marriage Clamor Grows Louder and Louder, Tulsa World, Mar. 22, 2004 (quoting Mr. Graves). On April 15, 2004, the date HB 2259 passed the

Senate, Mr. Williamson stated that Oklahoma should not “ ‘legitimize that lifestyle by saying, ‘Yes, two homosexuals can be just as married as two heterosexuals.’ That’s not right.’ ” John Greiner, Marriage Vote Gets Backing of Senate, The Oklahoman, Apr. 16, 2004, at 5A (quoting Mr. Williamson). On or around May 11, 2004, commenting on an advertisement paid for by Cimarron Equality Oklahoma against SQ 711, Mr. Williamson stated that “ ‘there is a real hunger for a return to traditional values and for leaders who will draw a line in the sand to help stop the moral decay of this country.’ ” Judy Gibbs Robinson, Group Fights Marriage Plan With Print Ad, The Oklahoman, May 11, 2004, 1A (quoting Mr. Williamson).
*27 In August of 2004, approximately two months before the public vote, over forty Tulsa-area churches organized a “pro-marriage rally,” during which Mr. Williamson promoted passage of SQ 711 and discussed Biblical prohibitions of homosexual acts. Robert Evatt, Local “Pro–Marriage Rally” Takes Aim at Same–Sex Unions, Tulsa World, Aug. 25, 2004 (“ ‘As Christians, we are called to love homosexuals,” Williamson said. “But I hope everyone at this rally knows the Scriptures prohibit homosexual acts.’ ”). At this same rally, Tulsa Mayor Bill LaFortune stated: “ ‘If you believe in Christ, if you believe in this country, and if you believe in this city, you believe that marriage is a covenant between God, a man, and a woman.’ ” Id. (quoting Mr. LaFortune). An editorial that ran in The Oklahoman on October 17, 2004 urged Oklahomans to pass SQ 711 because “the idea that marriage is between a man and a woman is consistent with the citizenry’s morals and beliefs.” Defining Marriage, The Oklahoman, Oct. 17, 2004, at 22A. The Bishop couple has shown, as a matter of law, that “moral disapproval of same-sex marriage” existed in the public domain as at least one justification for voting in favor of SQ 711.
[38] The Court recognizes that moral disapproval often stems from deeply held religious convictions. See Lawrence, 539 U.S. at 571, 123 S.Ct. 2472 (explaining that moral disapproval of homosexual conduct was shaped by “religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family”). However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577, 123 S.Ct. 2472 (“ ‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’ ”) (quoting
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and adopting Justice Stevens’ dissent in Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)) (concluding that “the majority may [not] use the power of the State to enforce [moral] views [disapproving of homosexual conduct] on the whole society through operation of the criminal law”); id. at 582–83, 123 S.Ct. 2472 (O’Connor, J., concurring) (explaining that “moral disapproval, without any other asserted state interest,” is not a “sufficient rationale ... to justify a law that discriminates among groups of persons”); Mass. v. United States Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir.2012) (“Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis.”) (internal citations omitted).37 Preclusion of “moral disapproval” as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage. Therefore, although Part A rationally promotes the State’s interest in upholding one particular moral definition of marriage, this is not a permissible justification.
d. Other Justifications *28 The Court must also consider whether Part A rationally relates to the state interests now being offered by Smith in this litigation.38 Smith asserts four justifications for Part A’s discrimination against same-sex couples: (1) encouraging responsible procreation and child-rearing; (2) steering naturally procreative relationships into stable unions; (3) promoting “the ideal that children be raised by both a mother and a father in a stable family unit;” and (4) avoiding a redefinition of marriage that would “necessarily change the institution and could have serious unintended consequences.” (Smith’s Cross. Mot. for Summ. J. 38.) In support of these justifications, Smith has provided twenty-five exhibits consisting primarily of articles and scholarly writings on marriage, child-rearing, and homosexuality, ranging in date from the early twentieth century to 2008, all of which this Court has carefully reviewed.
i. Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage39 [39] Smith argues that “through the institution of marriage,

societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and fathers who brought them into this world.” (Smith’s Resp. to Pls.’ Mot. for Summ. J. 27–28.) For purposes of its analysis, the Court accepts that Oklahoma has a legitimate interest in encouraging “responsible procreation,” (i.e., procreation within marriage), and in steering “naturally procreative” relationships into marriage, in order to reduce the number of children born out of wedlock and reduce economic burdens on the State.
However, Part A is not rationally related to these state interests for four reasons. First, the wealth of scholarly articles in this section of Smith’s brief, which range from William Blackstone to John Locke, simply demonstrate that state-recognized marriages developed in part as a means of encouraging and incentivizing procreation within marriage. See, e.g., John Locke, The Second Treatise on Civil Government, On Politics and Education, at 113–14 (1947) (“For the end of conjugation between male and female, being not barely procreation, but the continuation of the species, this conjugation betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones.”). (Smith’s Cross Mot. for Summ. J. Ex. 5 to Ex. B.) These articles do not provide what is necessary in an equal protection case—that is, a link between the legal classification now being drawn by Part A against same-sex couples and a historical state objective of encouraging procreation to occur within marriage. Traditional exclusion of the disadvantaged group from state-sanctioned marriage does not itself evidence a rational link to the identified goal of promoting responsible procreation within marriage. See Heller v. Doe, 509 U.S. 312, 326, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (“Ancient lineage of a legal concept does not give it immunity from attack for lacking rational basis.”); Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (“Neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.”); Loving v. Virginia, 388 U.S. 1, 11–12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (striking down Virginia’s miscegenation statute as violation of equal protection despite state’s historical practice of prohibiting interracial marriage).
*29 [40] During oral arguments in Hollingsworth, Justice Scalia asked Mr. Theodore Olson, counsel for the opponents of Proposition 8, when it became unconstitutional “to exclude homosexual couples from
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marriage.” Tr. of Oral Argument 37–38 (March 26, 2013), Hollingsworth v. Perry, ––– U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). Mr. Olson responded with the rhetorical question of when did it become unconstitutional “to prohibit interracial marriage” or “assign children to separate schools.” Id. at 38. As demonstrated by Mr. Olson’s response, the mere fact that an exclusion has occurred in the past (without constitutional problem) does not mean that such exclusion is constitutional when challenged at a particular moment in history. This Court has an obligation to consider whether an exclusion, although historical, violates the constitutional rights of Oklahoma citizens.
Second, there is no rational link between excluding same-sex couples from marriage and the goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering the “naturally procreative” toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites. See supra Part VI(C); see also Gill, 699 F.Supp.2d at 389 (“[T]he ability to procreate is not now, nor has it ever been, a precondition to marriage in any state in the country.”). Permitting same-sex couples to receive a marriage license does not harm, erode, or somehow water-down the “procreative” origins of the marriage institution, any more than marriages of couples who cannot “naturally procreate” or do not ever wish to “naturally procreate.” Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.40
Third, Part A’s failure to impose the classification on other similarly situated groups (here, other non-procreative couples) can be probative of a lack of a rational basis. See City of Cleburne, 473 U.S. at 448, 105 S.Ct. 3249 (finding that requiring special use permit for mentally handicapped occupants of a home, but not for other potential occupants, was probative of a lack of rationality); Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 366, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (explaining Cleburne as reasoning that “the city’s purported justifications for the ordinance made no sense in light of how the city treated other groups similarly situated in relevant respects”). As in Cleburne, the purported justification simply “makes no sense” in light of how Oklahoma treats other non-procreative couples desiring to marry. See Varnum v. Brien, 763 N.W.2d 862, 884 (Iowa 2009) (applying Iowa Constitution) (concluding that same-sex couples were, for purposes of state’s interest in regulating marriage, similarly situated to

opposite-sex couples despite their inability to “naturally procreate”); Goodridge, 798 N.E.2d at 962 (applying Massachusetts Constitution) (“The ‘marriage is procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage.”). This asserted justification also “makes no sense” because a same-sex couple’s inability to “naturally procreate” is not a biological distinction of critical importance, in relation to the articulated goal of avoiding children being born out of wedlock. The reality is that same-sex couples, while not able to “naturally procreate,” can and do have children by other means. As of the 2010 United States Census, there were 1,280 same-sex “households” in Oklahoma who reported as having “their own children under 18 years of age residing in their household.” United States Census 2010 and 2010 American Community Survey, Same–Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own Children, available at http:// www.census.gov/hhes/samesex/files/supp-table-AFF.xls. If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal.
*30 Finally, the Court rejects Smith’s “lack of interest” argument. Perhaps recognizing that excluding same-sex couples does not promote the asserted justifications in any rational manner, Smith argues that it is rational to exclude same-sex couples from marriage simply because the State has no real interest in them:
Even though some same-sex couples do raise children, they cannot create them in the same way opposite-sex couples do—as the often unintended result of casual sexual behavior. As a result, same-sex relationships simply do not pose the same risk of irresponsible procreation that opposite-sex relationships do.... Sexual relationships between individuals of the same sex neither advance nor threaten society’s interest in responsible procreation in the same manner, or to the same degree, that sexual relationships between men and women do.
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(Smith’s Cross Mot. for Summ. J. 34.) This “lack of interest” argument is ironic, given the history surrounding Part A’s passage. See supra Part VI(D)(1). Nonetheless, the Court has considered whether it applies to this case.
In Johnson v. Robison, 415 U.S. 361, 383, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), the Supreme Court stated that when “inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute’s classification of beneficiaries and non-beneficiaries is invidiously discriminatory.” In Johnson, the Court held that exclusion of conscientious objectors from veterans’ educational benefits was rational, in part, because the benefits would not incentivize service for that class. See id. at 382–83, 94 S.Ct. 1160. The classification here is readily distinguishable. Assuming a state can rationally exclude citizens from marital benefits due to those citizens’ inability to “naturally procreate,” the state’s exclusion of only same-sex couples in this case is so grossly underinclusive that it is irrational and arbitrary. In Johnson, the “carrot” of educational benefits could never actually incentivize military service for the excluded group due to their religious beliefs. In contrast here, the “carrot” of marriage is equally attractive to procreative and non-procreative couples, is extended to most non-procreative couples, but is withheld from just one type of non-procreative couple. Same-sex couples are being subjected to a “naturally procreative” requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it.
ii. Promoting the “Optimal” Child–Rearing Environment [41] Smith also argues that excluding same-sex couples is rationally related to the goal of “promoting” the “ideal” family unit. Smith defines this “ideal” in several different ways throughout the brief, including: (1) “ ‘a family headed by two biological parents in a low-conflict marriage” because “benefits flow in substantial part from the biological connection shared by a child with both mother and father,’ ” (Smith’s Cross Mot. for Summ J. 35 (quoting Kristin Anderson Moore, Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do About It?, Child Trends Research Brief (June 2002), Ex. 19 to Ex. B)); (2) a family unit where children are being “raised by both a mother and a father in a stable family unit;” (id.); and (3)

a family unit with “ ‘gender-differentiated parenting’ ” because “ ‘the contribution of fathers to child-rearing is unique and irreplaceable;’ ” (id. 36 (quoting David Popenoe, Life Without Father, at 146 (1996), Ex. 23 to Ex. B)).
*31 The Court assumes, for purposes of this motion for summary judgment only, that (1) the “ideal” environment for children must include opposite-sex, married, biological parents, and (2) that “promoting” this ideal is a legitimate state interest.41 Again, however, the question remains whether exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex couples for different treatment due to “moral disapproval” of a same-sex household with children. Smith has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will “promote” this “ideal” child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the “ideal” child-rearing environment). See Mass. v. Dept. of Health and Human Svcs., 682 F.3d 1, 14–15 (1st Cir.2012) (addressing Section 3 of DOMA) (“Certainly, the denial [of marital benefits] will not affect the gender choices of those seeking marriage.”).42 It is more likely that any potential or existing child will be raised by the same-sex couple without any state-provided marital benefits and without being able to “understand the integrity and closeness of their own family and its concord with other families in their community.” Windsor, 133 S.Ct. at 2694 (explaining that DOMA “humiliate[d] thousands of children now being raised by same-sex couples” and brought “financial harm to children of same-sex couples”); see also Gill, 699 F.Supp.2d at 389 (concluding that Section 3 of DOMA did nothing to help children of opposite-sex parents but prevented children of same-sex couples from enjoying advantages flowing from a stable family structure); Goodridge, 798 N.E.2d at 963–64 (employing same reasoning in conducting rationality review of state policy prohibiting same-sex marriages).
In addition, Smith has not explained, and the Court cannot discern from any of Smith’s cited materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex marriages will stay in tact (thereby remaining “optimal” child-rearing environments). Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the
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highest divorce rates in the country. See Table 133,

Marriages and Divorces—Number and Rate by State:

1990–2009,

available

at

www.census.gov/compendia/statab/2012/tables/12s0133.

pdf (showing Oklahoma as ranking sixth in 2009 for

divorce rates). The Court concludes that denial of

same-sex couples from marriage “does nothing to

promote stability in heterosexual parenting.” See Gill, 699

F.Supp.2d at 389 (analyzing rationality of Section 3 of

DOMA).

After presenting the empirical support espousing the benefits of this “ideal” family unit, Smith offers a one-sentence, conclusory statement that is supposed to provide the link between the empirical data and the exclusion: “It is rational, then, for Oklahoma to give ‘special recognition’ to relationships that are designed to provide children the optimal environment of both a mother and a father.” (Smith’s Cross Mot. for Summ. 38.) Whether they are “designed to” or not, common sense dictates that many opposite-sex couples never actually do provide this optimal child-rearing environment, due to drug use, abuse, or, more commonly, divorce. As with “natural procreative” abilities, Smith does not condition any other couple’s receipt of a marriage license on their willingness or ability to provide an “optimal” child-rearing environment for any potential or existing children. While there need not be a good fit between the exclusion of same-sex couples from marriage and the promotion of this “ideal” family unit, there does need to be some reason for excluding the class. Such a reason is lacking here.

iii. Negative Impact on Marriage *32 [42] Smith’s final argument is that “it is rational for Oklahoma voters to believe that fundamentally redefining marriage could have a severe and negative impact on the institution as a whole.” (Smith’s Cross Mot. for Summ. J. 38.) This argument is best summarized in an article entitled Marriage and the Public Good: Ten Principles. (Witherspoon Institute, Marriage and the Public Good: Ten Principles (2008), Smith’s Cross Mot. for Summ. J., Ex. 28 to Ex. B.) After discussing the plethora of benefits that marriage offers adults and children, the article then explains how same-sex marriage is one of four “threats” to the institution (along with divorce, illegitimacy, and cohabitation):
[T]here remain even deeper concerns about the institutional

consequences of same-sex marriage for marriage itself. Same-sex marriage would further undercut the idea that procreation is intrinsically connected to marriage. It would undermine the idea that children need both a mother and a father, further weakening the societal norm that men should take responsibility for the children they beget. Finally, same-sex marriage would likely corrode marital norms of sexual fidelity, since gay marriage advocates and gay couples tend to downplay the importance of sexual fidelity in their definition of marriage.
(Id. at 18–19.) See also, e.g., Sandoval, 911 F.Supp.2d at 1015–16 (finding Nevada’s same-sex marriage bans to pass rationality review because “extending” marriage to same-sex couples could “conceivably” lead to an “increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes ..., or other unforeseen consequences”);43 Jackson, 884 F.Supp.2d at 1112–15 (same).44
The “negative impact” argument is impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. All of these perceived “threats” are to one view of the marriage institution—a view that is bound up in procreation, one morally “ideal” parenting model, and sexual fidelity. However, civil marriage in Oklahoma is not an institution with “moral” requirements for any other group of citizens. See supra Part VI(C). Smith does not ask a couple if they intend to be faithful to one another, if they intend to procreate, or if they would someday consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. “ ‘Preserving the traditional institution of marriage,’ ” which is the gist of Smith’s final asserted justification, “is just a kinder way of
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describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 602, 123 S.Ct. 2472 (Scalia, J., dissenting).
*33 Having considered all four proferred justifications for Part A, the Court concludes that exclusion of same-sex couples is “so attenuated” from any of these goals that the exclusion cannot survive rational-basis review. See City of Cleburne, 473 U.S. at 447, 105 S.Ct. 3249 (explaining that a state “may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational”); Vigil, 666 F.3d at 684 (equal protection review “seeks to ensure” that “those who ‘appear similarly situated’ are not treated differently without, at the very least, ‘a rational reason for the difference’ ”); Price–Cornelison, 524 F.3d at 1114 (“[W]e cannot discern on this record, a rational reason to provide less protection to lesbian victims of domestic violence than to heterosexual domestic violence victims.”).
E. Equal Protection Conclusion 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.
Against this backdrop, the Court’s task is to determine whether Part A of the Oklahoma Constitutional Amendment deprives a class of Oklahoma citizens—namely, same-sex couples desiring an Oklahoma marriage license—of equal protection of the law. Applying deferential rationality review, the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Court’s rationality review reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.
Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a

scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.
VII. Injunctive Relief and Rulings on Pending Motions The Court declares that Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by precluding same-sex couples from receiving an Oklahoma marriage license. The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals.
*34 Plaintiffs’ Motion for Summary Judgment (Doc. 197) is GRANTED as to Part A of the Oklahoma Constitutional Amendment and otherwise DENIED. Defendant Sally Howe Smith’s Cross Motion for Summary Judgment (Doc. 216) is DENIED as to Part A of the Oklahoma Constitutional Amendment, and GRANTED as to Part B based on the Barton couple’s lack of standing. The Barton couple’s challenge to Part B is dismissed for lack of standing.
The Barton couple’s Motion for Entry of Final Judgment (Doc. 257) is DENIED, and their challenge to Section 3 of DOMA is dismissed based upon constitutional mootness. BLAG’s motion to withdraw as an intervening party (Doc. 263) is GRANTED, and BLAG’s pending motion for summary judgment (Doc. 214) is DENIED as moot. The Motion to Dismiss by United States of America and Eric H. Holder, Jr., Attorney General (Doc. 211) is GRANTED, and the Barton couple’s challenge to Section 2 of DOMA is dismissed for lack of standing.
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IT IS SO ORDERED.

1

SQ 711 passed by a vote of 1,075,216 to 347,303. (See

Smith’s Cross Mot. for Summ. J., Ex. 3.)

2

An Oklahoma statute also prevents same-sex couples

from marrying. Okla. Stat. tit. 43, § 3(A) (“Any

unmarried person who is at least eighteen (18) years of

age and not otherwise disqualified is capable of

contracting and consenting to marriage with a person of

the opposite sex.”) (emphasis added). This statute is not

challenged.

3

An Oklahoma statute also prevents recognition of

same-sex marriages. Okla. Stat. tit. 43, § 3.1 (“A

marriage between persons of the same gender

performed in another state shall not be recognized as

valid and binding in this state as of the date of the

marriage.”). This statute is not challenged.

4

This case has a lengthy procedural history. See Bishop

v. Okla. ex rel. Edmondson, 447 F.Supp.2d 1239

(N.D.Okla.2006) (“Bishop I ”); Bishop v. Okla. ex rel.

Edmondson, 333 Fed.Appx. 361 (10th Cir.2009)

(“Bishop II ”); Bishop v. United States, No.

04–CV–848, 2009 WL 4505951 (N.D.Okla. Nov. 24,

2009) (“Bishop III ”). In this Opinion and Order, the

Court only includes background facts that are relevant

to the currently pending motions.

5

Because standing was not raised on appeal, the Tenth

Circuit examined it sua sponte. (See id. at 363–64.)

6

The Barton couple challenges both sections of DOMA

and both sections of the Oklahoma Constitutional

Amendment. The Bishop couple challenges only Part A

of the Oklahoma Constitutional Amendment.

7

When this Court issued its decision in Bishop I, the

Barton couple had entered into a Vermont civil union

and a Canadian marriage. The Court held that neither

relationship was “treated as a marriage in another

State” and that the Barton couple lacked standing to

challenge Section 2. See Bishop I, 447 F.Supp.2d at

1245–49. In their Amended Complaint, the Barton couple includes allegations regarding their California marriage.

8

During the scheduling conference, Magistrate Judge

Wilson raised the question of whether the Amended

Complaint asserted a challenge to Part B. The Barton

couple asserted that they intended to challenge Part B

in their Amended Complaint and desired to address Part

B in their summary judgment brief. Smith did not

object. Therefore, based on certain allegations in the

body of the Amended Complaint and Smith’s lack of

objection, the Court construes the Amended Complaint

as also challenging Part B.

9

The United States’ motion to dismiss only attacks

standing and does not offer any defense of Section 2 on

the merits. BLAG intervened for the limited purpose of

defending the constitutionality of Section 3. Therefore,

the only opposition to the Barton couple’s challenge to

Section 2 is the United States’ standing argument.

10

The Court reaches the merits of Part A based upon the

Bishop couple’s standing and does not reach the

question of whether the Barton couple also has standing

to challenge Part A. See Watt v. Energy Action Educ.

Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d

309 (1981) ( “Because we find [one plaintiff] has

standing, we do not consider the standing of the other

plaintiffs.”).

11

As explained infra Part IV, Smith testified that she is

not the state official connected to recognition of

out-of-state marriages, and the Barton couple failed to

controvert this evidence. Thus, the identity of the

“appropriate State official” remains unclear.

12

Since DOMA’s passage, some scholars have concluded

that Section 2 was unnecessary and simply reiterates a

power that states already possessed. See Joshua Baker

& William Duncan, As Goes DOMA ... Defending

DOMA and the State Marriages Measures, 24 Regent

Univ. L.Rev. 1, 8 (2011–2012) (“Over time, something

of a consensus seems to have developed among

scholars that Section 2 of DOMA merely restates

existing conflicts of law principles with respect to

interstate recognition of a legal status or license....”);

26

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)

William Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L.Rev. 1371, 1392 (2012) (“Section 2 of DOMA is expressly intended to ratify such [state public] policies (if any ratification were needed).”); Mary L. Bonauto, DOMA Damages Same–Sex Families and Their Children, 32 Fam. Adv. 10, 12 (Winter 2010) (“[S]tates have long possessed the power to decide which marriages they would respect from elsewhere, a power that both proponents and opponents of DOMA agree existed before and after DOMA.”); Patrick Borchers, The Essential Irrelevance of the Full Faith and Credit Clause to the Same–Sex Marriage Debate, 38 Creighton Law R. 353, 358 (2005) (arguing that Section 2 of DOMA was unnecessary because it “simply states what the law would be without it” and that “full faith and credit principles do not require one state to give effect to a marriage celebrated in another state”); Metzger, supra, at 1532 (“[I]t is unlikely that a state’s refusal to recognize same-sex marriages would have violated Article IV’s full faith and credit demand even absent DOMA, at least as applied to same-sex marriage involving state residents.”); Mark Strasser, As Iowa Goes, So Goes the Nation: Varnum v. Brien and its Impact on Marriage Rights for Same–Sex Couples, 13 J. Gender Race & Justice 153, 158 (Fall 2009) (“[E]ven without DOMA, states could have refused to recognize their domicilaries’ marriages validly celebrated elsewhere if such marriages violated an important public policy of the domicile. Thus, DOMA did not give states a power that they did not already possess with respect to the power to refuse to recognize domiciliaries’ marriages that had been celebrated elsewhere in accord with the latter states’s law.”).

13

The United States also argues that the Barton couple

has not suffered an injury in fact based upon their

failure to “have actually sought and been denied”

recognition of their California marriage in Oklahoma.

(See United States’ Mot. to Dismiss 5.) For purposes of

this motion, the Court assumes without deciding that

the Barton couple’s alleged injuries constitute injuries

in fact but concludes that none were sufficiently caused

by Section 2.

14

The Barton couple incorrectly argues that this dicta is

controlling. The Barton couple filed an Amended

Complaint, which renders moot this Court’s analysis of

standing allegations in the original Complaint. See

Mink, 482 F.3d at 1254. Further, the Court has an

independent obligation to satisfy itself of standing at all

stages of the proceedings, see City of Colo. Springs v.

Climax Molybdenum Co., 587 F.3d 1071, 1078–79

(10th Cir.2009), and this necessarily includes reconsideration of prior reasoning.

15

The United States also argues that the Barton couple’s

alleged stigmatic injury is not cognizable because it is

merely a “ ‘psychological consequence presumably

produced by observation of conduct.’ ” (See United

States’ Reply in Support of Mot. to Dismiss 4 (quoting

Valley Forge Christian Coll. v. Ams. United for

Separation of Church & State, 454 U.S. 464, 485, 102

S.Ct. 752, 70 L.Ed.2d 700 (1982), and also relying

upon Freedom From Religion Found., Inc. v. Obama,

641 F.3d 803, 806–08 (7th Cir.2011)).) However, the

Court’s holding is premised on the Barton couple’s

inability to show causation. The Court is not persuaded

that the United States’ cited cases would extend to the

more personal type of injury alleged here. Cf. Freedom

From Religion Found. Inc., 641 F.3d at 806–08

(concluding that the “perceived slight” or “feeling of

exclusion” suffered by one of many observers of

President Obama’s remarks during National Day of

Prayer did not confer standing).

16

BLAG, the only party defending the constitutionality of

Section 3, has stated that “the Supreme Court recently

held that DOMA Section 3 is unconstitutional” and that

its “justification for participating in this case ... has

disappeared.” (BLAG’s Unopposed Mot. to Withdraw

1–2.) BLAG’s disinterest in any further defense of

Section 3 supports the Court’s conclusion that its entry

of a declaratory judgment would have no effect.

17

This is not a case in which the United States is showing

any “reluctant submission” to complying with Windsor.

See Rio Grande Silvery Minnow, 601 F.3d at 1116

(explaining that a case may not be moot if a

governmental actor is showing “reluctant submission”

or a “desire to return to the old ways”). The United

States has given every indication that the Supreme

Court’s ruling will be implemented in a manner that

ceases to cause the Barton couple any injury related to

payment of federal income taxes.

18

This is an unfortunate result for the Barton couple, who

have twice been turned away based on standing.

However, the Court notes that Part B was not the focus

of this litigation. It was unclear whether the Barton

couple challenged Part B in the Amended Complaint,

and they devoted only one page of argument to it in

27

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)

their motion for summary judgment. (See Pls.’ Mot. for Summ. J. 41–42.) In a proper equal protection challenge, portions of this Court’s analysis of Part A would also seem applicable to Part B. The Court is reminded of a quote by Harriet Beecher Stowe: “[N]ever give up, for that is just the place and time that the tide will turn.” Harriet Beecher Stowe, Old Town Folks (1869).

19

As explained supra in footnote 2, there is an Oklahoma

statute also impacting same-sex couples’ eligibility for

a marriage license. See Okla. Stat. tit. 43, § 3(A). No

party discussed standing problems posed by this statute,

and the Court is satisfied that enjoining enforcement of

Part A redresses a concrete injury suffered by the

Bishop couple.

20

In 1972, the Supreme Court had “no discretion to refuse

adjudication” of an appeal of a state court decision

upholding a state statute against federal constitutional

attack. See Hicks v. Miranda, 422 U.S. 332, 343–44, 95

S.Ct. 2281, 45 L.Ed.2d 223 (1975) (explaining

difference between this type of summary dismissal and

a denial of certiorari). Thus, despite its lack of

reasoning, Baker is binding precedent as to issues

squarely presented and dismissed. Although Hicks

remains the law, it has been criticized. See., e.g., Randy

Beck, Transtemporal Separation of Powers in the Law

of Precedent, 87 Notre Dame L.Rev. 1405, 1451 (2012)

(“Just as we do not accord precedential weight to a

denial of certiorari, the Court should abandon Hicks

and deny controlling force to unexplained summary

dispositions.... [T]he value of allowing thorough

consideration of a legal question outweighs any

enhanced legal stability that flows from requiring lower

courts to decipher unexplained rulings and treat them as

binding authority.”).

21

At the trial court level, the same-sex couple had

challenged a Minnesota county clerk’s refusal to grant

them a marriage license. They argued that (1) same-sex

marriage was authorized by Minnesota law, and (2)

alternatively, denial of a marriage license deprived

them of liberty without due process and equal

protection in violation of their Fourteenth Amendment

rights and constituted an unwarranted invasion of

privacy in violation of the Ninth and Fourteenth

Amendments. Baker v. Nelson, 291 Minn. 310, 191

N.W.2d 185, 185 (1971) (explaining arguments made

in trial court). The Minnesota Supreme Court held that

(1) Minnesota’s marriage statute, which did not

expressly prohibit same-sex marriages, only authorized marriages between persons of the opposite sex; and (2) such an interpretation did not violate the plaintiffs’ equal protection, due process, or privacy rights guaranteed by the U.S. Constitution. Id. at 186–87.

22

Based on the Windsor I decision, it seemed likely that

the Supreme Court would address Baker’s precedential

value. See Windsor I, 699 F.3d at 178–79 (majority

concluding that “doctrinal changes constitute another

reason why Baker does not foreclose our disposition of

this case”); id. at 195 n. 3 (Straub, J., concurring in part

and dissenting in part) (acknowledging that “questions

may stop being ‘insubstantial’ when subsequent

doctrinal developments so indicate” but concluding that

Supreme Court decisions had not “eroded Baker’s

foundations such that it no longer holds sway”).

However, no Justice mentioned Baker in any part of the

Windsor decision. At least one commentator criticized

this silence. Jonah Horwitz, When Too Little is Too

Much: Why the Supreme Court Should Either Explain

its Opinions or Keep Them to Itself, 98 Minn. L.Rev.

Headnotes 1, 2 (2013) (explaining that Baker was

“examined in detail” in the Supreme Court briefs and

criticizing Supreme Court for failing to discuss Baker )

(“For a case of such length and significance, it is

nothing short of amazing that no one refers, even in

passing, to what struck the lower courts and the

litigants as a potentially dispositive case.”).

23

Lower court decisions issued prior to Windsor are split

as to the applicability of the doctrinal developments

exception. Compare, e.g., Jackson, 884 F.Supp.2d at

1085 (holding that the Supreme Court has not

“explicitly or implicitly overturned its holding in Baker

or provided the lower courts with any reason to believe

that the holding is invalid”) with Smelt v. Cnty. of

Orange, 374 F.Supp.2d 861, 873 (C.D.Cal.2005)

(“Doctrinal developments show it is not reasonable to

conclude the questions presented in the Baker

jurisdictional statement would still be viewed by the

Supreme Court as ‘unsubstantial.’ ”), overr’d on other

grounds, Smelt v. Cnty. of Orange, 447 F.3d 673 (9th

Cir.2006).

24

The Windsor I court based its conclusion upon rulings

by New York intermediate appellate courts, which

indicated that the Canadian marriage was indeed

recognized in New York when the plaintiff inherited

her spouse’s estate. Windsor I, 699 F.3d at 177–78.

28

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)

25

Oklahoma permits persons between the ages of sixteen

and eighteen to marry with parental consent, see id. §

3(B)(1)(a)-(f), and persons under sixteen to marry if

authorized by the court in very limited circumstances,

see id. § 3(B)(2).

26

Marriages between “ancestors and descendants of any

degree, of a stepfather with a stepdaughter, stepmother

with stepson, between uncles and nieces, aunts and

nephews, except in cases where such relationship is

only by marriage, between brothers and sisters of the

half as well as the whole blood, [or] first cousins” are

prohibited. Okla. Stat. tit. 43, § 2.

27

Unlike some other states, Oklahoma does not offer any

alternative scheme for same-sex couples, such as civil

unions. The Supreme Court has stated, and this Court

firmly agrees, that “marriage is more than a routine

classification for purposes of certain statutory benefits.”

Windsor, 133 S.Ct. at 2692. This Court’s opinion

should not be read to mean that marriage is nothing

more than a contractual relationship or to mean that a

civil union scheme would survive constitutional

scrutiny. However, because Oklahoma is an

all-or-nothing state (marriage license or no marital

benefits), the equal protection violation is that much

clearer, and this Court’s opinion need not reach the

legal viability of some alternative scheme.

28

When the Court refers to “obtaining a marriage license”

throughout this Order, it refers to both the initial

issuance of the marriage license and the recording of

the marriage license by the court clerk after the

marriage is solemnized.

29

It is somewhat unusual to define a class of couples, but

the Court finds it proper here. The classification made

by Part A is aimed only at same-sex couples who want

to marry, rather than all homosexuals. A couple must

apply together in person for a marriage license, and it is

the fact that they are of the same sex that renders them

ineligible. Further, Smith’s proferred justifications are

tied to alleged characteristics that two individuals have

when coupled—i.e., their inability to “naturally

procreate” and to provide an “optimal” parenting

environment. See infra Part VI(D)(2)(d) (setting forth

Smith’s proferred justifications for the law).

30

The Court takes judicial notice of information available

on the Oklahoma House of Representatives website and

the Oklahoma Senate website pursuant to Federal Rule

of Evidence 201, which allows courts to take judicial

notice of adjudicative facts if they are “generally

known within the trial court’s jurisdiction; or (2) can be

accurately and readily determined from sources whose

accuracy cannot be questioned.” Fed.R.Evid. 201(b);

Winzler v. Toyota Motor Sales U.S.A., Inc., 681 F.3d

1208, 1213 (10th Cir.2012).

31

The Bishop couple presented several newspaper articles

in support of their Statement of Facts 13–15. (See Ex. 5

to Pls.’ Mot. for Summ. J.) Smith does not dispute the

factual accuracy of the reporting in these articles but

argues that they may not be considered because they

are: (1) irrelevant, and (2) inadmissible hearsay. The

Court rejects both arguments.

First, the articles are relevant to both steps of the

analysis—whether the law was passed, at least in

part, for the purpose of intentional discrimination and

whether such discrimination is justified. See Vigil,

666 F.3d at 685 (setting forth two-step test); see

generally Windsor, 133 S.Ct. at 2693 (discussing

statements made by legislators supporting DOMA’s

passage as relevant to question of law’s purpose).

Although the Court is addressing a constitutional

amendment enacted by a vote of the people, public

statements made by the drafting and championing

legislators before the law’s passage are certainly

relevant evidence.

Second, the articles do not pose hearsay problems

because the Court is not relying upon the articles, or

quotations therein, for their truth. The Court is

relying upon the articles to demonstrate what

information was in the public domain at the time SQ

711 passed. Whether the articles or quotations are

accurate is of no moment; what matters is that these

justifications were offered to the voting public. See

Benak ex rel. Alliance Premier Growth Fund v.

Alliance Capital Mgmt. L.P., 435 F.3d 396, 401 n. 15

(3d Cir.2006) (relying on articles for purposes of

determining what was in the public realm, not

whether the contents were in fact true); Florida Right

to Life, Inc. v. Mortham, No. 98770CIVORL19A,

1998 WL 1735137, at *6 (M.D.Fla. Sept. 30, 1998)

(finding news articles non-hearsay) (“[T]he Court

will consider the effect of the newspaper articles in

creating a perception by the public of corruption

occurring in Florida, which perception depends on

the fact that members of the public have read the

articles rather than the truth of the matters contained

29

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)

therein.”). One important source of public knowledge and opinion are news articles conveying statements by the legislators who originated, drafted, and promoted SQ 711. Alternatively, the Court finds that all news articles and quotations therein qualify for the residual exception to the hearsay rule because: (1) the articles and quotations have circumstantial guarantees of trustworthiness—namely, that they were made publically to large groups, were consistently reported in Oklahoma newspapers, and are, in some ways, akin to statements against interest; (2) the articles and quotations are relevant to ascertaining the purposes and justifications for the law; (3) based on the lack of “legislative history” for a state question, the articles and quotations are more probative than other evidence that can be obtained through reasonable efforts; and (4) admitting the news articles, rather than requiring other forms of evidence, serves the interest of justice. See Fed.R.Evid. 807(1)-(4); cf. New England Mut. Life Ins. Co. v. Anderson, 888 F.2d 646, 650 (10th Cir.1989) (finding that trial court properly excluded news article reporting statements made by widow to one reporter that she conspired to kill insured, where issue was fraudulent procurement of the insurance policy). Further, Smith does not dispute or attempt to dispute their factual veracity in any manner; Smith just asks the Court to disregard them. That does not serve the interest of justice in this case.

32

In some equal protection cases, the intentional

discrimination imposed by the law is so “unusual” in its

character that improper purpose and motive are readily

apparent, and there is no need to determine whether the

intentional discrimination is justified. See, e.g.,

Windsor, 133 S.Ct. at 2693; Romer, 517 U.S. at 635,

116 S.Ct. 1620. Because Windsor involved an unusual

federal intrusion into state domestic law (not at issue

here) and Romer involved an unusual, total removal of

any equal protection of the law (not at issue here), the

Court proceeds to conduct a more traditional equal

protection analysis by determining the proper level of

scrutiny and then considering all conceivable

justifications for Part A. See generally Kitchen, –––

F.Supp.2d at ––––, 2013 WL 6697874, at *22

(discussing lack of guidance for determining whether a

law imposes “discrimination of an unusual character”

and applying “well-settled rational basis test” to Utah’s

same-sex marriage prohibition).

33

The Court does not reach the question of whether Part

A selectively burdens the Bishop couple’s asserted

fundamental “right to marry a person of their choice.” (See Pls.’ Reply in Support of Pls.’ Mot. for Summ. J. 14.) Such a holding would be broader than whether Part A intentionally discriminates against a defined class of Oklahoma citizens, and it would possibly affect other Oklahoma laws burdening the “right to marry a person of [one’s] choice.” See supra Part VI(C) (setting forth age, number, and other eligibility requirements under Oklahoma law). If Part A does burden a fundamental right, it certainly would not withstand any degree of heightened scrutiny. See supra Part VI(D)(2)(d).
Based upon its research on this topic, the Court offers two observations. First, whether or not the right in question is deemed fundamental turns in large part upon how the right is defined. If the right is defined as the “right to marry,” plaintiffs have thus far been more likely to win the argument. See, e.g., Kitchen, ––– F.Supp.2d at ––––, 2013 WL 6697874, at *15 (holding that the plaintiffs do not “seek a new right to same-sex marriage” and that “the right to marry has already been established as a fundamental right”); Perry v. Schwarzenegger, 704 F.Supp.2d 921, 994–95 (N.D.Cal.2010) (“Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to strict scrutiny.”); Goodridge, 798 N.E.2d at 959–61 (Mass.2003) (stating in dicta that “[w]hether and whom to marry ... [is] among the most basic of every individual’s liberty and due process rights” but then failing to decide whether the case merited strict scrutiny because the law did not pass rational basis review); Golinski v. U.S. Office of Personnel Mgmt., 824 F.Supp.2d 968, 983 (N.D.Cal.2012) (stating in dicta that the right burdened by Section 3 of DOMA was the fundamental “right to marry,” which had never been limited based upon the status of the desired spouse). If defined as the “right to marry a person of the same sex,” plaintiffs have thus far been more likely to lose the argument. See, e.g., Jackson, 884 F.Supp.2d at 1096 (defining right burdened as “an asserted new right to same-sex marriage” and holding that such right was not deeply rooted in the nation’s tradition) (collecting cases); Lewis v. Harris, 188 N.J. 415, 441, 908 A.2d 196 (2006) (defining right burdened as the “right to same-sex marriage” and holding that “[d]espite the rich diversity of this State ... and the many recent advances made by gays and lesbians ..., we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right” under the New Jersey Constitution). Second, language in Windsor indicates that same-sex marriage may be a “new” right, rather than one subsumed within the Court’s prior “right to marry” cases.
30

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)

It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.... The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion. Windsor, 133 S.Ct. at 2689 (emphases added).

34

Smith does not dispute that “sexual orientation” is the

best descriptor for the classification. Smith argues only

that: (1) the Court should reject any attempt to

“bootstrap” a sex discrimination claim to what is

actually a sexual orientation discrimination claim, and

(2) sexual orientation discrimination is subject to

rationality review. (See Smith’s Cross Mot. for Summ.

J. 19–25.)

35

This distinguishes this case from Loving, in which the

Supreme Court analyzed Virginia’s miscegenation law

under the “most rigid scrutiny” applicable to racial

classifications. See Loving, 388 U.S. at 11, 87 S.Ct.

1817.

36

This is a different question than the threshold question

of whether the Bishop couple has shown intentional

discrimination between groups, see supra Part

VI(D)(1), although the analyses overlap somewhat in

this case.

37

Justice Scalia has repeatedly expressed his

disagreement with this conclusion. See Windsor, 133

S.Ct. at 2707 (Scalia, J., dissenting) (“As I have

observed before, the Constitution does not forbid the

government to enforce traditional moral and sexual

norms....”). However, these are dissenting opinions.

38

At the time of her concurrence in Lawrence, Justice

O’Connor believed that “reasons exist,” other than

moral disapproval, for prohibiting same-sex marriage:

Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. Lawrence, 539 U.S. at 585, 123 S.Ct. 2472 (O’Connor, J. concurring). However, she did not explain or list what these “other reasons” may be, and the Court has found none present in this case.

39

Due to their similarity, the Court addresses the first and

second justifications together.

40

If Smith’s unarticulated but underlying argument is that

opposite-sex couples are more likely to forego marriage

because permitting same-sex couples erodes spiritual

and religious aspects of marriage, this devolves again to

legislation driven by moral disapproval and not

legitimate state interests.

41

The Court suspects that many adoptive parents would

challenge this defined “ideal,” and that many

“non-ideal” families would question this paternalistic

state goal of steering their private choices into one

particular model of child-rearing. The Court also notes

that same-sex couples are physically capable of

satisfying many of the descriptors of the “ideal”

environment explained in Smith’s cited

literature—namely, a stable, low-conflict, non-violent,

loving, and nurturing environment.

42

The Bishop couple denies that their exclusion from

marriage makes it more likely they would marry a

member of the opposite sex. (See Bishop Couple Aff. ¶

14 (explaining that marrying someone of the opposite

sex would, in their opinion, be “emotionally unhealthy

and mentally damaging” and that, more importantly,

they have already identified the “companion [they]

have chosen” to marry and established a long-standing

relationship with them), Ex. 1 to Pls.’ Mot. for Summ.

J.)

43

The Sandoval court reasoned in part that “civil

marriage is at least partially a public activity, and

preventing ‘abuse of an institution the law protects’ ” is

31

Bishop v. U.S. ex rel. Holder, --- F.Supp.2d ---- (2014)

a valid state interest. Sandoval, 911 F.Supp.2d at 1014. As demonstrated above, same-sex couples do not possess any characteristic indicating they can or will “abuse” the institution of marriage any more or any differently than other included groups.

44

Both Jackson and Sandoval were decided before

Windsor.
	  

32

 
 PUBLISH

FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

July 18, 2014

TENTH CIRCUIT

Elisabeth A. Shumaker Clerk of Court

MARY BISHOP and SHARON BALDWIN,

Plaintiffs

- Appellees,

and

SUSAN G. BARTON and GAY E. PHILLIPS,

Plaintiffs

- Appellees/

Cross-Appellants,

v.

SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma,

Defendant - Appellant/ Cross-Appellee,

UNITED STATES OF AMERICA, ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America,

Defenda nt,

and

BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES; THAD BALKMAN; OKLAHOMAN’S FOR PROTECTION OF MARRIAGE,

Nos. 14-5003 & 14-5006

Intervenors - Defendants.

FOR

APPEALS FROM THE UNITED STATES DISTRICT COURT THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:04-CV-00848-TCK-TLW)

James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona (Byron J. Babione and David Austin R. Nimocks, Alliance Defending Freedom, Scottsdale, Arizona, and John David Luton, Assistant District Attorney, District Attorney’s Office, Tulsa, Oklahoma, with him on the briefs), for Defendant–Appellant/Cross-Appellee.
Don G. Holladay, Holladay & Chilton PLLC, Oklahoma City, Oklahoma (James E. Warner III, Holladay & Chilton PLLC, Oklahoma City, Oklahoma, and Joseph T. Thai, Norman, Oklahoma, with him on the briefs), for Plaintiffs–Appellees/Cross-Appellants.*

Before KELLY, LUCERO, and HOLMES, Circuit Judges.

LUCERO, Circuit Judge.

This appeal was brought by the Court Clerk for Tulsa County, Oklahoma, asking us to overturn a decision by the district court declaring unenforceable the Oklahoma state constitutional prohibition on issuing marriage licenses to same-sex couples. It followed quickly on the heels of an analogous appeal brought by State of Utah officials requesting similar relief. Recognizing that the ruling in the Utah case would likely control the disposition of her appeal, the Oklahoma appellant asked that we assign these cases to the same panel. Our court did so.

* The names of all amicus curiae parties are contained in Appendix A to this Opinion.
-2-

Preliminary to reaching the merits, we are presented with two arguments challenging the plaintiffs’ standing. The first challenges whether plaintiffs may attack state constitutional provisions without simultaneously attacking state statutes to the same effect. The second challenges whether the Court Clerk is a proper defendant as to the non-recognition portion of the Oklahoma constitutional prohibition.
We hold that plaintiffs possess standing to directly attack the constitutionality under the United States Constitution of Oklahoma’s same-sex marriage ban even though their claim does not reach Oklahoma’s statutory prohibitions on such marriages. Under Oklahoma law, a constitutional amendment “takes the place of all the former laws existing upon the subject with which it deals.” Fent v. Henry, 257 P.3d 984, 992 n.20 (Okla. 2011) (per curiam) (quotation omitted). Because the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury.
An earlier appeal of this same case involving the standing inquiry led to a decision by a panel of our court that dismissed proceedings brought against the Governor and Attorney General of Oklahoma. That panel ruled that “recognition of marriages is within the administration of the judiciary.” Bishop v. Okla. ex rel. Edmondson, 333 F. App’x 361, 365 (10th Cir. 2009) (unpublished) (“Bishop I”). We conclude that the law of the case doctrine applies to Bishop I, but that the doctrine is overcome by new evidence demonstrating that the Tulsa County Court Clerk could not redress the non-recognition injury, thereby depriving Gay Phillips and Susan Barton (the “Barton couple”) of standing to sue.
-3-

Our

merits disposition is governed by our ruling in Kitchen v. Herbert, No 13-

4178, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014). In that companion case,

we held that: (1) plaintiffs who wish to marry a partner of the same sex or have such

marriages recognized seek to exercise a fundamental right; and (2) state justifications for

banning same-sex marriage that turn on the procreative potential of opposite-sex couples

do not satisfy the narrow tailoring test applicable to laws that impinge upon fundamental

liberties. Exercising jurisdiction under 28 U.S.C. § 1291, and governed by our ruling in

Kitchen, we affirm.

I

Mary Bishop and Sharon Baldwin are in a long-term committed relationship and

seek to marry. They live together in Tulsa County, Oklahoma, where they both work for

the Tulsa World newspaper. Bishop is a sixth-generation Oklahoman and Baldwin is “at

least a fourth-generation Oklahoman.” They jointly own their home and other property.

In March 2000, the couple exchanged vows in a church-recognized “commitment

ceremony.” They feel, however, that this ceremony fails to “signify the equality” of their

relationship, and that marriage conveys a “level of commitment or respect” that is not

otherwise available. Bishop and Baldwin sought a marriage license from the Tulsa

County Court Clerk in February 2009, but were denied because they are both women.

The couple identifies several discrete harms they have suffered because of their inability

to marry, including $1,300 in legal fees to prepare a power of attorney form and health-

care proxies. Moreover, they explain that their inability to marry under Oklahoma law is

“demeaning” and “signals to others that they should not respect our relationship.” -4-

Phillips and Barton have been in a committed relationship since 1984. They took
part in a civil union ceremony in Vermont in 2001, were married in Canada in 2005, and
wed again in California in 2008. The couple jointly owns a company that provides
training and assistance to non-profit agencies that conduct youth out-of-home care.
Barton also teaches classes at Tulsa Community College, including a course titled
“Building Relationships.”
Phillips and Barton have suffered adverse federal tax consequences as a result of
the Defense of Marriage Act (“DOMA”), as well as adverse state tax consequences
stemming from Oklahoma’s refusal to recognize their marital status. They say that
having their relationship recognized as a marriage “should have been a dream come true.”
Instead, “the State of Oklahoma has said ours is not a real marriage, but something
inferior to the relationships of married opposite sex couples.”
In November 2004, plaintiffs Bishop, Baldwin, Barton, and Phillips filed suit
against the Oklahoma Governor and Attorney General, challenging Oklahoma’s state
constitutional ban on same-sex marriage. The Oklahoma prohibition, known as State
Question 711 (“SQ 711”), provides:
A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.
C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
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Okla. Const. art. 2, § 35. The suit also named the United States President and Attorney General as defendants in a constitutional challenge to DOMA.
A motion to dismiss filed by the Governor and State Attorney General was denied by the district court in 2006. That decision was appealed to this court. In 2009, a panel of our court concluded that “[b]ecause the plaintiffs failed to name a defendant having a causal connection to their alleged injury that is redressable by a favorable court decision, . . . the Couples do not have standing.” Bishop I, 333 F. App’x at 364. The panel held that “recognition of marriages is within the administration of the judiciary,” and thus “the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage.” Id. at 365.
On remand, the district court permitted the plaintiffs to file an amended complaint naming as a defendant the “State of Oklahoma, ex rel. Sally Howe-Smith, in her official capacity as Court Clerk for Tulsa County.” The court granted Oklahoma’s motion to dismiss the state as a nominal party, leaving Smith as the sole state defendant. The amended complaint also asserted challenges to §§ 2 and 3 of DOMA against the United States ex rel. Eric Holder. However, in February 2011, the United States notified the district court that it would no longer defend § 3 of DOMA on the merits. The Bipartisan Legal Advisory Group was permitted to intervene to defend the law. The case then progressed to the summary-judgment stage. Smith submitted an affidavit describing her duties as they related to the plaintiffs’ allegations. In that affidavit, Smith swore that she had “no authority to recognize or record a marriage license issued by another state in any
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setting, regardless of whether the license was issued to an opposite-sex or a same-sex couple.”
After the Supreme Court issued its decision in United States v. Windsor, 133 S. Ct. 2675 (2013), the district court entered an opinion and order disposing of the United States’ motion to dismiss, as well as Oklahoma and plaintiffs’ cross-motions for summary judgment. See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1263 (N.D. Okla. 2014) (“Bishop II”). The district court concluded that: (1) Phillips and Barton lacked standing to challenge § 2 of DOMA because state law, rather than that provision, resulted in non-recognition of their marriage, id. at 1263-68; (2) any challenge to § 3 of DOMA was moot in light of the Windsor decision, id. at 1269-72; (3) Phillips and Barton lacked standing to challenge the non-recognition portion of the Oklahoma amendment, Part B, because Smith is not involved in the recognition of out-of-state marriages, as established by her summary-judgment affidavit, id. at 1272-73; and (4) Part A of SQ 711 violates the Equal Protection Clause, id. at 1281-96. The court permanently enjoined enforcement of Part A. Id. at 1296. The decision, however, was stayed pending final disposition of any appeal. Id.
Smith timely appealed the district court’s merits ruling as to Part A. Phillips and Barton cross-appealed the district court’s conclusion that they lack standing to challenge Part B. The DOMA challenges are not at issue in this appeal.
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II A Smith contends that Bishop and Baldwin (the “Bishop couple”) lack standing to challenge Part A of SQ 711 because they did not simultaneously contest the constitutionality of a state statute that bars same-sex couples from marrying. We review a district court’s standing determinations de novo. See Cressman v. Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013). To establish standing, a plaintiff must show: (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Although the Bishop couple’s standing was not raised below, a party may “raise the issue of standing for the first time at any stage of the litigation, including on appeal.” New Eng. Health Care Emps. Pension Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir. 2008). The Bishop couple has not established redressability, Smith argues, because a second, unchallenged legal obstacle bars their marriage. Under Okla. Stat. tit. 43, § 3(a), which was not properly put at issue below, “[a]ny unmarried person who is at least eighteen (18) years of age and not otherwise disqualified is capable of contracting and consenting to marriage with a person of the opposite sex.” Id. Although the district court enjoined enforcement of Part A, it did not enjoin operation of the statute. See Bishop II, 962 F. Supp. 2d at 1296. Because the statute permits marriage only between members of -8-

the opposite sex, Smith argues that the Bishop couple’s injury—their inability to marry—
will not be redressed by an injunction against SQ 711 alone.1 “[R]edressability is
satisfied when a favorable decision relieves an injury,” but a decision does not need to
relieve “every injury.” Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 905 (10th
Cir. 2012) (emphasis omitted).
In support, Smith asserts that several courts have concluded that plaintiffs lack
standing under circumstances somewhat similar to the present matter. In White v. United
States, 601 F.3d 545 (6th Cir. 2010), a group of plaintiffs challenged the federal Animal
Welfare Act (“AWA”), which restricted “various activities associated with animal
fighting that involve interstate travel and commerce, but did not (and does not) itself
prohibit animal fighting, including cockfighting.” Id. at 549. All fifty states, however,
have prohibited cockfighting under state law. Id. The plaintiffs claimed that they had
suffered economic injuries as a result of the federal statute’s ban, including a decreased
1 Smith also argues that the Barton couple does not have standing to contest Part B of SQ 711 because they did not challenge Okla. Stat. tit. 43, § 3.1, which provides that “[a] marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.” We will refer above only to Part A in discussing plaintiffs’ failure to challenge the statutory codifications of Oklahoma’s same-sex marriage policy as it relates to standing. As explained infra, the Barton couple lacked standing to sue because they named a defendant who could not redress their injury. Therefore, there is no need to consider whether they lacked standing for the alternative reason that they failed to challenge the statutory nonrecognition provision. See Niemi v. Lasshofer, 728 F.3d 1252, 1260 (10th Cir. 2013) (noting that where there are multiple threshold issues that can be resolved without engaging in the merits a court has “‘leeway to choose among’ them and to ‘take[] the less burdensome course’” (alteration in original) (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 436 (2007)).
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market for fighting birds. Id. at 549-50. The Court concluded that these allegations did not support standing:
Cockfighting is banned to a greater or lesser degree in all fifty states and the District of Columbia. Thus, while economic injuries may constitute an injury-in-fact for the purposes of Article III standing, the plaintiffs’ alleged economic injuries due to restrictions on cockfighting are not traceable only to the AWA. Nor would these injuries be redressed by the relief plaintiffs seek, since the states’ prohibitions on cockfighting would remain in place notwithstanding any action we might take in regard to the AWA. Id. at 552 (citations omitted). We are referred to numerous sign ordinance cases holding that “a plaintiff whose sign permit applications were denied on the basis of one provision in a county’s sign ordinance, but which could have been denied on the basis of some alternate, but unchallenged regulation, does not have a redressable injury.” Maverick Media Grp., Inc. v. Hillsborough Cnty., 528 F.3d 817, 820 (11th Cir. 2008) (collecting cases). In Maverick, for example, the court ruled that a court order barring enforcement of a county’s ban on billboards would not aid the plaintiff because the signs it sought to build were also prohibited by unchallenged height and size limitations. Id. at 821, 823. We need not decide whether the cases cited by Smith are consistent with our circuit precedent because they are readily distinguishable from the case at hand. Courts have concluded that plaintiffs fail to establish redressability only when an unchallenged legal obstacle is enforceable separately and distinctly from the challenged provision. In White, the federal statute meaningfully differed from the state cockfighting prohibitions and was enforced by a different sovereign. See 601 F.3d at 549. Similarly, the sign cases
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rest on the existence of an “alternate” regulation addressing a distinct issue. See
Maverick, 528 F.3d at 820.
Unlike the statutes and regulations at issue in the cases upon which Smith relies,
Okla. Stat. tit. 43, § 3(a) is not enforceable independent of SQ 711. Under Oklahoma
law:
A time-honored rule teaches that a revising statute (or, as in this case, a constitutional amendment) takes the place of all the former laws existing upon the subject with which it deals. This is true even though it contains no express words to that effect. In the strictest sense this process is not repeal by implication. Rather, it rests upon the principle that when it is apparent from the framework of the revision that whatever is embraced in the new law shall control and whatever is excluded is discarded, decisive evidence exists of an intention to prescribe the latest provisions as the only ones on that subject which shall be obligatory.
Fent, 257 P.3d at 992 n.20 (quoting Hendrick v. Walters, 865 P.2d 1232, 1240 (Okla.
1993)). This rule suggests that SQ 711 “takes the place of” § 3(a), and only the
provisions of the constitutional amendment “shall be obligatory.” Fent, 257 P.3d at 992
n.20.
Fent, Smith informs us, stands for the opposite proposition because another
portion of the opinion notes the general rules that “repeals by implication are never
favored,” that “it is not presumed that the legislature, in the enactment of a subsequent
statute intended to repeal an earlier one, unless it has done so in express terms,” and that
“all provisions must be given effect unless irreconcilable conflicts exist.” Id. at 991. But
the quoted passage clarifies that when a constitutional amendment addresses the same
subject as a statute, replacement is “not repeal by implication” and occurs even absent
“express words.” Id. at 992 n.20. -11-

Fent did not involve a constitutional amendment replacing a statute; the court simply noted the rule in a footnote. The relevant quotation originates in Hendrick, which held that a constitutional amendment providing for a new oath of office for certain state positions superseded an existing statute prescribing a different oath. 865 P.2d at 1240-41. Smith is correct that the provisions at issue in Hendrick were arguably in conflict and the court found an “intent to abrogate.” Id. at 1240 n.41. However, the broad language used in Hendrick and quoted in Fent directs that if the “framework” of a constitutional amendment indicates “that whatever is embraced in the new law shall control and whatever is excluded is discarded,” courts should treat this framework as “decisive evidence” that the amendment is the only provision “on that subject which shall be obligatory.” Fent, 257 P.3d at 992 n.20 (quoting Hendrick, 865 P.2d at 1240).
SQ 711 evinces such a framework. The Oklahoma Supreme Court cited Lankford v. Menefee, 145 P. 375 (Okla. 1914), in support of its conclusion in Hendrick. See 865 P.2d at 1240 nn.38-40. Lankford provides that “a subsequent statute revising the subjectmatter of the former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former” as long as “it is apparent that the Legislature designed a complete scheme for the matter.” 145 P. at 376. It follows that SQ 711 provides a complete scheme for Oklahoma’s policy regarding same-sex marriage.
The statute identified by Smith has no effect beyond the restrictions on same-sex marriage imposed by SQ 711 because the two provisions are materially identical. Total eclipse of the function of the statute underscores our conclusion that the amendment
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provides a complete scheme. Further, it raises the concern that the statute could not be
enforced without violating the district court’s injunction. Smith was enjoined from
enforcing “Part A against same-sex couples seeking a marriage license.” Bishop II, 962
F. Supp. 2d at 1296. If Smith were to deny the Bishop couple a marriage license because
they are both women, she would simultaneously be enforcing both Okla. Stat. tit. 43,
§ 3(a) and Part A of SQ 711. There is no scenario in which Smith could enforce the
statute but not enforce the amendment.2
Because the prohibition on same-sex marriage contained in Okla. Stat. tit. 43,
§ 3(a) is not enforceable independently of SQ 711, we conclude that the Bishop couple
has shown that their injury is redressable in this suit.3
2 If the court relies on the subjective motivations of lawmakers to determine the constitutionality of Oklahoma’s two provisions, Smith suggests that one might survive even if the other falls. However, as explained in Kitchen, 2014 U.S. App. LEXIS 11935, at *97, we conclude that because state laws prohibiting same-sex marriage impinge upon a fundamental right without satisfying the strict scrutiny test, such provisions fail regardless of subjective intent.
3 The remaining prongs of standing as to the Bishop couple’s ability to challenge Part A are not contested. We conclude nonetheless the couple has satisfied those prongs. See Alvarado v. KOB-TV, L.L.C. (Channel 4 News), 493 F.3d 1210, 1214 n.1 (10th Cir. 2007) (this court has authority to consider standing issues sua sponte). Having ruled that an injunction barring enforcement of Part A of SQ 711 redresses the Bishop couple’s injury—inability to marry—we have no trouble concluding that they satisfy the traceability requirement. See Cache Valley Elec. Co. v. Utah Dep’t of Transp., 149 F.3d 1119, 1123 (10th Cir. 1998) (noting that in many cases, “redressability and traceability overlap as two sides of a causation coin” (quotation omitted)). The Bishop couple sought a marriage license from Smith’s office, but were denied because they are both women. See Papasan v. Allain, 478 U.S. 265, 282 n.14 (1986) (a defendant “responsible for general supervision of the administration by local . . . officials” of a challenged provision is a proper defendant). And the Bishop couple has identified several negative financial consequences of that denial. See Singleton v. Wulff, 428 U.S. 106, 113 (1976) (financial harm caused by challenged provision constitutes injury in fact).
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B
Our consideration of the merits of the Bishop couple’s appeal is largely controlled
by our decision in Kitchen. As explained more fully in that opinion, we conclude that:
(1) the Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (per
curiam), is not controlling, Kitchen, 2014 U.S. App. LEXIS 11935, at *21-31;
(2) plaintiffs seek to exercise the fundamental right to marry, id. at *33-63; and (3) state
arguments that same-sex marriage bans are justified by the need to communicate a
conceptual link between marriage and procreation, encourage parenting by mothers and
fathers, and promote sacrifice by parents for their children fail to satisfy the narrow
tailoring requirement of the applicable strict scrutiny test, id. at *63-87.
Facts and arguments presented in this case differ in some respects from those in
Kitchen. But our core holdings are not affected by those differences. State bans on the licensing of same-sex marriage significantly burden the fundamental right to marry,4 and
arguments based on the procreative capacity of some opposite-sex couples do not meet
the narrow tailoring prong. In addition to the issues explicitly discussed in Kitchen, we
address two other arguments raised by Smith.
She contends that lower federal courts are not free to reject on-point summary
dismissals of the Supreme Court regardless of doctrinal developments. Thus, Smith
4 Although the district court declined to rule on whether the plaintiffs asserted a fundamental right, Bishop II, 962 F. Supp. 2d at 1285 n.33, and instead applied rational basis review, id. at 1295, we may “affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground,” Schanzenbach v. Town of Opal, 706 F.3d 1269, 1272 (10th Cir. 2013) (quotation omitted). As in Kitchen, we do not address the question of whether a ban on same-sex marriage might survive lesser forms of scrutiny given our holding that such bans burden fundamental rights.
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argues, Baker remains controlling. Her focus is on the Court’s statement that a summary disposition “is not here of the same precedential value as would be an opinion of this Court treating the question on the merits.” Tully v. Griffin, Inc., 429 U.S. 68, 74 (1976) (quotation omitted, emphasis added). This statement, Smith contends, indicates that, although they may have diminished precedential value for the Supreme Court, summary dispositions are identical to merits decisions when considered by lower courts. She also cites the Court’s direction that summary dispositions “prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U.S. 173, 176 (1977).
Her argument that doctrinal developments do not allow a lower court to reject the continued applicability of a summary disposition is undermined by the explicit language of the case creating that rule. In Hicks v. Miranda, 422 U.S. 332 (1975), the Court stated that “inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so except when doctrinal developments indicate otherwise.” Id. at 344 (quotation omitted, emphases added); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 94 n.11 (1983) (noting circuit court’s holding that a doctrinal development warranted departure from precedent set by Supreme Court’s summary dispositions); Okla. Telecasters Ass’n v. Crisp, 699 F.2d 490, 495 (10th Cir. 1983) (“[A] summary disposition is binding on the lower federal courts, at least where substantially similar issues are presented, until doctrinal developments or direct decisions by the Supreme Court indicate otherwise.” (emphases added)), rev’d sub nom. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). Thus, contrary to Smith’s position, the
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doctrinal developments statement is explicitly directed toward lower courts. And as explained in Kitchen, nearly every lower federal court to have considered the issue has concluded that Baker has been undermined by doctrinal developments. Kitchen, 2014 U.S. App. LEXIS 11935, at *25-26.
In addition to her Baker argument, Smith also contends that children have an interest in being raised by their biological parents. Assuming that serving this interest is a compelling governmental goal, we nevertheless conclude that a prohibition on same-sex marriage is not narrowly tailored to achieve that end. See Reno v. Flores, 507 U.S. 292, 301-02 (1993) (stating strict scrutiny test). Oklahoma has enacted numerous laws that result in children being raised by individuals other than their biological parents. See, e.g., Okla. Stat. tit. 10, § 554 (“Any child or children born as a result of a heterologous oocyte donation shall be considered for all legal intents and purposes, the same as a naturally conceived legitimate child of the husband and wife which consent to and receive an oocyte pursuant to the use of the technique of heterologous oocyte donation.”); § 556(B)(1) (“Any child or children born as a result of a human embryo transfer donation shall be considered for all legal intents and purposes, the same as a naturally conceived legitimate child of the husband and wife that consent to and receive a human embryo transfer.”); § 7501-1.2(A) (“The Legislature of this state believes that every child should be raised in a secure, loving home and finds that adoption is the best way to provide a permanent family for a child whose biological parents are not able or willing to provide for the child’s care or whose parents believe the child’s best interest will be best served through adoption.”). And Oklahoma permits infertile opposite-sex couples to marry
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despite the fact that they, as much as same-sex couples, might raise non-biological children.
The State thus overlooks the interests of children being raised by their biological parents in a wide variety of contexts. Yet Smith does not explain why same-sex marriage poses a unique threat such that it must be treated differently from these other circumstances. See Zablocki v. Redhail, 434 U.S. 374, 390 (1978) (“grossly underinclusive” statute did not satisfy narrow tailoring requirement). As the Court explained in Eisenstadt v. Baird, 405 U.S. 438 (1972), if “the evil, as perceived by the State, would be identical” with respect to two classes, the state may not impinge upon the exercise of a fundamental right as to only one class because “the underinclusion would be invidious.” Id. at 454. As we explained in Kitchen, such divergence between the characteristic claimed to be relevant and the classification contained in the challenged provision is inconsistent with the narrow tailoring requirement. See Kitchen, 2014 U.S. App. LEXIS 11935, at *64-75.
Moreover, Oklahoma’s ban on same-sex marriage sweeps too broadly in that it denies a fundamental right to all same-sex couples who seek to marry or to have their marriages recognized regardless of their child-rearing ambitions. As with opposite-sex couples, members of same-sex couples have a constitutional right to choose against procreation. See Eisenstadt, 405 U.S. at 453 (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” (emphasis omitted)). But Oklahoma has barred all same-sex couples,
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regardless of whether they will adopt, bear, or otherwise raise children, from the benefits of marriage while allowing all opposite-sex couples, regardless of their child-rearing decisions, to marry. Such a regime falls well short of establishing “the most exact connection between justification and classification.” Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (quotation omitted); see also Frisby v. Schultz, 487 U.S. 474, 485 (1988) (“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.”).
In summary, none of the arguments presented by Smith that were unaddressed in Kitchen persuade us to veer from our core holding that states may not, consistent with the United States Constitution, prohibit same-sex marriages.
III I am grateful to Judge Holmes for his authorship of this, Part III of the majority opinion. Judge Holmes was on panel for our earlier decision in Bishop I. His authorship of this section is acknowledged with thanks. Because Smith lacks “authority to recognize any out-of-state marriage and therefore [lacks the] ability to redress the Barton couple’s non-recognition injury,” Bishop II, 962 F. Supp. 2d at 1273, the district court held that the Barton couple lacked standing to challenge Part B of SQ 711 as against Smith. We conclude that although the law of the case doctrine applied to Bishop I, Smith’s affidavit constituted new evidence sufficient to overcome the doctrine. We further conclude that the Barton couple’s argument that Part B is inseverable from Part A—and that both must therefore fall together—was forfeited.
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A “Under the ‘law of the case’ doctrine, when a court rules on an issue of law, the ruling ‘should continue to govern the same issues in subsequent stages in the same case.’” United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)) (quotation omitted). The doctrine pertains both to rulings by district courts, see, e.g., Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1140 (10th Cir. 2009), and—as relevant here—by previous panels in prior appeals in the same litigation, see, e.g., United States v. Wardell, 591 F.3d 1279, 1300 (10th Cir. 2009). Importantly, “[w]e have routinely recognized that the law of the case doctrine is ‘discretionary, not mandatory,’ and that the rule ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power.’” Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001) (quoting Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544 (10th Cir. 1996)) (quotation omitted); accord Haynes Trane Serv. Agency v. Am. Standard, Inc., 573 F.3d 947, 963 (10th Cir. 2009). Even so, it takes “exceptionally narrow circumstances” for the court not to follow the law of the case when the doctrine applies. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998). In Bishop I, a panel of this court found that neither the Barton couple nor the Bishop couple had standing to challenge SQ 711. 333 F. App’x at 365. It determined that the couples could not demonstrate redressability, reasoning as follows: The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General
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or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. [A] district court clerk is judicial personnel and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk’s ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district. Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage.
Id. (alterations in original) (quotation and citations omitted). Taking this passage at face
value, it is most logically construed as the panel’s determination that the Barton couple
should have sued a district court clerk on their non-recognition claim. The panel:
(1) prefaced its discussion with a reference to both the ban and the non-recognition
claims; (2) found standing on neither; (3) reasoned that the Attorney General and the
Governor were improper defendants; (4) explained that judicial personnel were proper
defendants; and (5) informed the plaintiffs that court clerks represented the judiciary and
carried out many of the branch’s duties relating to marriage. Collectively, these points
lead to but one interpretation: the correct defendant for the Barton couple’s non-
recognition claim was a court clerk.
One possible counterargument is that when the panel wrote that “recognition of
marriages” was “within the administration of the judiciary,” id., it meant in the broader
sense of recognizing a couple’s right to get a marriage license in Oklahoma. That
argument makes little sense when one considers the context: the first sentence of the
paragraph describes the complaint of the couples (more specifically, the Barton couple)
as alleging that “they are married but the marriage is not recognized in Oklahoma,” id. -20-

(emphasis added), and the order consistently uses some form of the word “recognize” to describe the Barton couple’s claim, see id. at 362-63.
Another potential counterargument is that the panel determined only that the Barton couple should look for a defendant in the judicial branch, not that they should necessarily select a court clerk. See id. at 365 (“Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage.” (emphasis added)). Again, though, context belies this interpretation. Why mention the role of the court clerks in administering the marriage statutes, and why describe their relationship to the rest of the court system, if not to express the opinion that they are appropriate defendants?
That the panel concluded that a court clerk was the proper adversary for the Barton couple does not necessarily mean that this conclusion became the law of the case. There are three potential reasons to hold that it did not: (1) the conclusion was dicta; (2) the conclusion dealt with recognition of an older marriage entered into by the Barton couple, not their current marriage; and (3) as a jurisdictional determination, the conclusion was not subject to the law of the case doctrine. None of these reasons are persuasive.
Turning to the first, it is well-settled that “[d]icta is not subject to the law of the case doctrine.” Homans v. City of Albuquerque, 366 F.3d 900, 904 n.5 (10th Cir. 2004); accord Octagon Res., Inc. v. Bonnett Res. Corp. (In re Meridian Reserve, Inc.), 87 F.3d 406, 410 (10th Cir. 1996). Statements which appear in an opinion but which are unnecessary for its disposition are dicta. See United States v. Manatau, 647 F.3d 1048,
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1054 (10th Cir. 2011); United States v. Villarreal-Ortiz, 553 F.3d 1326, 1329 n.3 (10th Cir. 2009) (per curiam). One could argue that Bishop I held only that the Governor and the Attorney General were the wrong defendants, not that Smith was the right one. But it is not so easy to separate the two propositions as a logical matter, and the “law of the case applies to issues that are resolved implicitly.” Rishell v. Jane Phillips Episcopal Mem’l Med. Ctr., 94 F.3d 1407, 1410 (10th Cir. 1996). Bishop I’s holding that the Governor and Attorney General were improper defendants was tethered closely to the panel’s view of who the right defendant was. That is, the panel’s rationale for finding no standing was that the Governor and Attorney General were not responsible for administering marriage laws and the court clerks were. See Bishop I, 333 F. App’x at 365 (“The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.”). Therefore, the panel held, if only implicitly, that the court clerk was the correct defendant to name for the Barton couple’s non-recognition claim.
The second potential reason to rule that Bishop I created no law of the case on standing to sue on the non-recognition claim is that the panel never ruled on such a claim with reference to the Barton couple’s California marriage, upon which the claim is now based; rather, it ruled only on their Canadian marriage and Vermont civil union, since the California marriage was solemnized after briefing in the appeal was complete. See id. at 363 (mentioning the events in Vermont and Canada but not the California marriage).
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This is a distinction without a difference. The holding in Bishop I had nothing to do with what sovereign conferred the status that the Barton couple wished to have recognized; it had only to do with which state officials were responsible for offering or withholding that recognition. See id. at 365 (noting that “the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage”).
Lastly, it is Smith’s view that the law of the case doctrine is per se excluded from consideration on this point because the standing issue is jurisdictional. Smith’s stance is squarely foreclosed by Supreme Court precedent. In Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988), the Court took up a dispute in which the Seventh Circuit and the Federal Circuit had each disclaimed jurisdiction and had each transferred the case to the other. Id. at 803-04. The Supreme Court admonished the feuding circuit courts of the importance of “adhering strictly to principles of law of the case.” Id. at 819. In so doing, the Supreme Court did not tailor its articulation of the law of the case doctrine to the jurisdictional context. Quite to the contrary, it explicitly declared that “[t]here is no reason to apply law-of-the-case principles less rigorously to transfer decisions that implicate the transferee’s jurisdiction.” Id. at 816 n.5. Christianson thus makes clear that the law of the case doctrine is never off the table solely because an issue is jurisdictional. The circuits have agreed that this rule applies to a situation, like the one present today, where a prior panel of the same court resolved a jurisdictional matter in an earlier appeal. See Alexander v. Jensen-Carter, 711 F.3d 905, 909 (8th Cir. 2013); Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 704 (7th Cir. 2011); Free v. Abbott Labs., Inc., 164 F.3d 270, 272-73 (5th Cir. 1999); Ferreira v. Borja, 93 F.3d 671, 674 (9th
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Cir. 1996) (per curiam); LaShawn A. v. Barry, 87 F.3d 1389, 1394 (D.C. Cir. 1996) (en banc); Oneida Indian Nation of N.Y. v. New York, 860 F.2d 1145, 1151 (2d Cir. 1988).5
For the proposition that the law of the case doctrine has no applicability to jurisdictional matters, Smith relies chiefly on Baca v. King, 92 F.3d 1031 (10th Cir. 1996). Baca cannot support that weight. In the crucial passage from that case, we stated that “[o]ne application of the ‘law of the case’ doctrine gives an appellate court discretion to refuse to reconsider an issue decided at an earlier stage of the litigation” and that doctrine “is not a fixed rule that prevents a federal court from determining the question of its own subject matter jurisdiction in a given case.” Id. at 1035. Far from carving out an exception to customary law-of-the-case practices in the jurisdictional context, Baca was actually applying the classic law-of-the-case approach to a jurisdictional question. That is, the law of the case is never “a fixed rule,” id., but rather always a “discretionary . . . practice of courts generally to refuse to reopen what has been decided.” Kennedy, 273 F.3d at 1299 (quotation omitted). Utilizing that well-established framework, the Baca court determined that the law of the case did not dictate the result of the jurisdictional question presented under the circumstances in that dispute. Baca did not foreclose the
5 The law of the case doctrine is inapplicable when a merits panel considers a jurisdictional issue that was addressed by a motions or mandamus panel. See Kennedy, 273 F.3d at 1299-1300 (mandamus panel); Stifel, Nicolaus & Co., 81 F.3d at 1544 (motions panel). Bishop I, however, was a fully-reasoned decision by a merits panel. The motions-panel and mandamus-panel exceptions are therefore not germane here.
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possibility that the law of the case might, in other controversies, control a jurisdictional
issue.6
By emphasizing the jurisdictional nature of the issue, Baca reflected the
longstanding rule that while there is no categorical exclusion from the law of the case
doctrine for jurisdictional issues, a slightly more flexible methodology is called for in the
jurisdictional context. In this regard, we have indicated that “[i]ssues such as subject
matter jurisdiction . . . may be particularly suitable for reconsideration,” even where the
doctrine might otherwise counsel against it. Kennedy, 273 F.3d at 1299 (quotation and
citation omitted). Our law on that point is consistent with respected secondary authority
and with the pronouncements of our sister circuits. See Am. Canoe Ass’n v. Murphy
Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003) (“Law of the case, which is itself a
malleable doctrine meant to balance the interests of correctness and finality, can likewise
be calibrated to reflect the increased priority placed on subject matter jurisdictional issues
generally, and Article III standing in particular which represents perhaps the most
important of all jurisdictional requirements.” (emphasis added) (quotation omitted));
6 Though worded somewhat more confusingly than Baca, Smith’s other central authority for this jurisdictional argument—Public Interest Research Group of New Jersey v. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997)—is to the same effect. There, the Third Circuit cabined the pivotal footnote from Christianson to the transfer context, reasoning that the Supreme Court could not have “intended in one footnote to eviscerate, in all instances, the federal courts’ prerogative to revisit important jurisdictional questions.” Id. at 118. But the very reason the Magnesium Elektron court reevaluated the jurisdictional issue there was that new evidence “was presented to the district court which had a direct bearing on the issue of standing.” Id. As explained at length below, new evidence of this sort is one of the established exceptions to the law of the case, United States v. Irving, 665 F.3d 1184, 1192 n.12 (10th Cir. 2011), and the new evidence in Magnesium Elektron was in fact the exact type of new evidence at issue in the present appeal. Magnesium Elektron is therefore consistent with the approach taken herein.
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Shakman v. Dunne, 829 F.2d 1387, 1393 (7th Cir. 1987) (“[C]ourts are significantly less constrained by the law of the case doctrine with respect to jurisdictional questions.” (emphasis added)); 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478.5, at 790 (2d ed. 2002) (henceforth Federal Practice) (noting that “[t]he force of law-of-the-case doctrine is affected by the nature of the first ruling and by the nature of the issues involved” and then ranking subject-matter jurisdiction as one of the issues “most likely to be reconsidered because of [its] conceptual importance”); id. at 798-800 (“Although a federal court is always responsible for assuring itself that it is acting within the limits of subject-matter jurisdiction statutes and Article III, this duty need not extend to perpetual reconsideration. A court may accept its own earlier determination supporting subject-matter jurisdiction or justiciability; a denial of subject-matter jurisdiction or justiciability is easily adhered to. Reconsideration of these matters is particularly appropriate nonetheless . . . .” (emphases added) (footnotes omitted)).
In sum, the law of the case doctrine does apply to prior jurisdictional determinations by merits panels, but it applies in a somewhat weaker fashion such that the court can consider with special care whether an exception to the doctrine permits reassessment of jurisdiction. That more flexible form of the doctrine will be brought to bear in the following section.
B Applying the law of the case doctrine with the foregoing considerations in mind, Bishop I does not require a finding of standing to sue on the non-recognition claim.
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As a practice rather than a rigid rule, the law of the case is subject to three narrow exceptions: (1) when new evidence emerges; (2) when intervening law undermines the original decision; and (3) when the prior ruling was clearly erroneous and would, if followed, create a manifest injustice. See Irving, 665 F.3d at 1192 n.12; Clark, 590 F.3d at 1140.
Although Smith focuses on the third exception, the first provides a better framework for the analysis. This is so because Smith does not make a case for why invocation of law of the case would work “a manifest injustice,” which the clearlyerroneous exception requires.7 See, e.g., Zinna v. Congrove, ___ F.3d ___, 2014 U.S. App. LEXIS 10460, at *11 (10th Cir. 2014); Irving, 665 F.3d at 1192 n.12; Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1251 (10th Cir. 2011). Further, Smith is relying in her lawof-the-case argument on a document—her affidavit—that was not presented to the courts until after Bishop I’s issuance. If the affidavit shows Smith to be an improper defendant, as she maintains, then the Bishop I panel could not have clearly erred in finding to the contrary, as it did not have the benefit of that affidavit. Substantively, then, the newevidence exception is the more appropriate exception to consider here.
7 Insofar as Smith is arguing, implicitly, that application of law of the case works a manifest injustice, that argument is unconvincing. If any party here can make a colorable claim of injustice, it is the Barton couple, who named as a defendant the official that the Bishop I panel told them to name and who find out today that they should have named someone else and, as a result, are denied the satisfaction of an explicit invalidation of Part B.
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Having located the relevant exception, we confront two questions: (1) whether the affidavit qualifies as new evidence for purposes of the exception; and (2) whether the affidavit proves the absence of standing. Both questions demand an affirmative answer.
1 Turning to the first question, there can be no serious argument that the affidavit is anything other than new evidence within the meaning of the exception. Smith Machinery Co. v. Hesston Corp., 878 F.2d 1290 (10th Cir. 1989), is a helpful place to begin. In that case, a district court at summary judgment reconsidered a previous ruling despite the law of the case, relying in part on the proposition that “the law of the case doctrine does not . . . apply in cases in which new evidence is presented to a court.” Id. at 1292. We affirmed, noting that the district court had before it “depositions and affidavits presented by both parties” attesting to new and relevant facts. Id. at 1293. Tacitly, Smith Machinery endorsed the district court’s use of the summary-judgment affidavits in its new-evidence analysis. This implicit holding is in keeping with general principles of law. As In re Antrobus, 563 F.3d 1092 (10th Cir. 2009) (per curiam), intimated, an affidavit is properly categorized as new evidence under the law of the case where it constitutes “admissible evidence,” id. at 1099 n.3, and affidavits are plainly competent evidence at summary judgment, see Fed. R. Civ. P. 56(c)(1)(A) (providing that a party moving for summary judgment may support its motion by pointing to affidavits); Hansen v. PT Bank Negara
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Indon. (Persero), 706 F.3d 1244, 1250 (10th Cir. 2013) (“[A]ffidavits are entirely proper on summary judgment . . . .”).8
Nor is there any apparent reason why an affidavit at summary judgment would not be regarded as a proper piece of new evidence such that the exception is satisfied. That is presumably why the Fifth Circuit has accepted such affidavits as new evidence in evaluating whether the law of the case controls or not. See United States v. Horton, 622 F.2d 144, 148 (5th Cir. 1980) (per curiam) (finding that the law of the case did not preclude the entry of summary judgment despite an earlier contrary ruling “because the production of reports, admissions, affidavits, and other record material during the course of the proceedings had clarified and resolved questions of material fact on several of the [relevant] issues”).
It is true that previously-available evidence often cannot be used to unsettle the law of the case. See In re Antrobus, 563 F.3d at 1099 (“The difficulty is that the Antrobuses have not demonstrated that they were unable to present evidence along these very same lines over a year ago, when this litigation began.”); United States v. Monsisvais, 946 F.2d 114, 117 (10th Cir. 1991) (“The ‘different or new evidence’ exception does not apply because . . . the additional evidence provided by the government at the supplemental hearing was evidence it had in its possession, but failed to produce, at the time of the original hearing.”). But neither Smith nor any other court clerk was a
8 The new-evidence exception is often set forth with reference to new evidence at a new trial. See, e.g., Irving, 665 F.3d at 1192 n.12; Clark, 590 F.3d at 1140. As the authorities assembled in this section show, a new trial is not necessary for the production of new evidence—a summary-judgment affidavit can suffice.
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party to the case at the time of Bishop I. Smith consequently did not have an opportunity
to introduce the evidence earlier, and no party had any reason to seek it out. As
demonstrated by the quotes recited above from Antrobus and Monsisvais, this previously-
available-evidence bar is applied when the party seeking to circumvent the law of the
case had a chance to introduce the evidence in the prior proceedings and failed to exploit
that chance. See In re Antrobus, 563 F.3d at 1099 (“The difficulty is that the Antrobuses
have not demonstrated that they were unable to present evidence along these very same
lines over a year ago, when this litigation began.” (emphases added)); Monsisvais, 946
F.2d at 117 (“The ‘different or new evidence’ exception does not apply because . . . the
additional evidence provided by the government at the supplemental hearing was
evidence it had in its possession, but failed to produce, at the time of the original
hearing.” (emphases added)). That is not the case here. Smith did not fail to do anything
during Bishop I because she was not participating in Bishop I. Accordingly, this bar does
not apply, and Smith’s affidavit does qualify as new evidence within the meaning of the new-evidence exception to the law of the case doctrine.9
9 Had Bishop I been published, its force as law of the case would have been significantly strengthened by its status as law of the circuit as well. See LaShawn A., 87 F.3d at 1395 (“[W]hen both [the law of the case and the law of the circuit] are at work, the law-of-the-circuit doctrine should increase a panel’s reluctance to reconsider a decision made in an earlier appeal in the same case.”). Because the order was unpublished, law-of-the-case principles are the only constraint here. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value. They may also be cited under the doctrines of law of the case, claim preclusion, and issue preclusion.”); Federal Practice § 4478.2, at 731 (“If an unpublished opinion does not command precedential force under circuit rules, law-of-the-case rules hold full sway.”).
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2 The next question is whether the affidavit demonstrates a lack of standing. It does. Article III standing is a prerequisite to every lawsuit in federal court. See Petrella v. Brownback, 697 F.3d 1285, 1292-93 (10th Cir. 2012); Jackson v. Volvo Trucks N. Am., Inc., 462 F.3d 1234, 1241 (10th Cir. 2006). “Each plaintiff must have standing to seek each form of relief in each claim.” Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007); accord Meyer v. Christie, 634 F.3d 1152, 1157 (10th Cir. 2011). In order to demonstrate “Article III standing, a plaintiff must show: (1) that [she] has suffered a concrete and particular injury in fact that is either actual or imminent; (2) the injury is fairly traceable to the alleged actions of the defendant; and (3) the injury will likely be redressed by a favorable decision.” Kerr v. Hickenlooper, 744 F.3d 1156, 1163 (10th Cir. 2014); accord S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013). The issue at hand turns on the third requirement—that of redressability—which “is not met when a plaintiff seeks relief against a defendant with no power to enforce a challenged statute.” Bronson, 500 F.3d at 1111. As established by her affidavit, that is the case with Smith and Part B. In the affidavit, Smith swore that she had “no authority to recognize or record a marriage license issued by another state in any setting, regardless of whether the license was issued to an opposite-sex or a same-sex couple.” The plaintiffs have offered nothing of substance to contradict that statement.10 With the new affidavit, the uncontroverted
10 The plaintiffs assert that Smith’s affidavit is contradicted by her answer to the complaint, wherein she “admit[ted] that Defendants, and those subject to their
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summary-judgment record shows that Smith had no power to recognize the Barton
couple’s out-of-state marriage, and therefore no power to redress their injury.11 Since
Smith was the only state defendant named in the operative complaint, the Barton couple
had no standing to sue on their non-recognition claim. See Cressman, 719 F.3d at 1147
(finding that a plaintiff had no standing to sue a defendant because the plaintiff “provided
no basis to conclude that the district court could order [the defendant] to do anything in
her official capacity to redress [the plaintiff’s] alleged injuries”); Nova Health Sys. v.
Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005) (dismissing a claim in part for lack of
redressability where a favorable “judgment would likely do nothing to prevent [the
harm], and thus would not be substantially likely to redress [the plaintiff’s] injury in
fact”).
supervision, direction and control, are responsible for the enforcement of the laws challenged by Plaintiffs’ First Amended Complaint.” In rebuttal, Smith notes that the challenged laws referenced in the answer did not include the non-recognition provision, since the first amended complaint did not address that provision. Smith has the better argument. The parties apparently came to terms on this point in the district court, where a minute sheet reflected their consensus “that plaintiffs’ motion for summary judgment [would] address [the non-recognition provision], notwithstanding the absence of such language in the Amended Complaint.” (Emphasis added). Although the complaint included some stray passages that appeared to attribute all of the plaintiffs’ injuries to SQ 711 as a whole, it never explicitly mentioned the non-recognition provision and repeatedly suggested that it was the ban, in conjunction with DOMA, that caused the nonrecognition injury. Smith’s “admission” in her answer is therefore irrelevant to this issue.
11 The authorities cited by Bishop I for its standing determination either impose responsibilities on court clerks with respect to issuing marriage licenses, see Okla. Stat. tit. 28, § 31; id. tit. 43, § 5, or examine the general relationship between court clerks and the judicial branch, see Speight v. Presley, 203 P.3d 173 (Okla. 2008). None of the authorities address the role court clerks play in regards to marriage recognition.
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There are various potential counterarguments that resist this conclusion, but they all fail.
First, an argument could be made that the Barton couple was entitled to sue Smith as the face of the judiciary despite the undisputed fact that she has no personal involvement in recognizing foreign marriages. Granted, there are scenarios in which a plaintiff is permitted to seek relief against a defendant who would only be indirectly implicated in any harm suffered by the plaintiff. Notably, however, these scenarios frequently arise when a plaintiff fearing prosecution sues a state attorney general and other law enforcement officials to challenge a criminal statute. See, e.g., Doe v. Bolton, 410 U.S. 179, 188-89 (1973); Wilson v. Stocker, 819 F.2d 943, 946-47 (10th Cir. 1987). An attorney general is the chief law enforcement officer of his or her jurisdiction. See Mitchell v. Forsyth, 472 U.S. 511, 520 (1985). As such, he or she is charged with enforcing all of the criminal statutes on the books. See, e.g., Gandy, 416 F.3d at 1158. It is therefore logical to name that person in his or her representative capacity when one is concerned about a potential criminal prosecution. See id. (“[A]n official who is charged with enforcing a state statute on behalf of the entire state is a proper defendant, so long as the plaintiff shows an appreciable threat of injury flowing directly from the statute.”).
It is less logical to sue a court clerk as the face of a non-recognition regime. Far from being delegated the responsibility to enforce that regime, the court clerk has a very tenuous relationship to the non-recognition provision. To be sure, Oklahoma courts apply the State’s laws regarding the validity of marriages. See Copeland v. Stone, 842 P.2d 754, 755 (Okla. 1992) (deciding a case involving a prohibition on remarriage within
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six months of divorce); Mueggenborg v. Walling, 836 P.2d 112, 112 (Okla. 1992) (deciding a case involving the existence vel non of a common-law marriage); Allen v. Allen (In re Estate of Allen), 738 P.2d 142, 143 (Okla. 1987) (deciding a case posing the question of whether a marriage had been properly dissolved for estate-distribution purposes); see also Oral Arg. at 15:08-29 (pointing out that Oklahoma’s judicial branch makes the “ultimate determination” of marriage validity with respect to matters like divorce, child custody, inheritance, and bigamy). But all laws are applied by the courts, and all laws are ultimately given their binding meaning by the judiciary. See Clajon Prod. Corp. v. Petera, 70 F.3d 1566, 1571 n.9 (10th Cir. 1995) (“‘[I]t is, emphatically, the province and duty of the judicial department to say what the law is.’” (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803))). If the judiciary’s responsibility to interpret Part B when disputes over its meaning arose were enough to confer standing, one could always sue the court clerk in any challenge to any state law. Standing, “perhaps the most important of the Article III justiciability doctrines,” id. at 1572, would then become little more than an empty formality, easily satisfied in every case.
The plaintiffs seek standing, moreover, on the basis of their bald assertion that Smith is statutorily responsible for deciding whether to recognize out-of-state marriages in the sense that if a couple with an out-of-state marriage attempts to obtain an Oklahoma marriage license, Smith’s office ascertains whether the out-of-state marriage is valid for purposes of determining whether the couple is qualified to receive an Oklahoma license. At oral argument, counsel for the plaintiffs elaborated on the point, explaining that if the ban is nullified in this litigation, same-sex couples in Oklahoma who were validly
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married in other states, like the Barton couple, would seek Oklahoma marriage licenses,
and the court clerks would then determine the validity of those foreign marriages. This,
however, is a strained argument. And, in light of the burden that the plaintiffs were
obliged to carry at the summary-judgment stage, it is patently unavailing.
The Smith affidavit was presented to the district court as an attachment to her
motion for summary judgment. To show standing on non-recognition in the face of
Smith’s unequivocal disavowal of any involvement in marriage recognition, the plaintiffs
were not entitled in responding to the affidavit to depend on “‘mere allegations’”
regarding standing; rather, they were required to “‘set forth’ by affidavit or other
evidence ‘specific facts,’ which for purposes of the summary judgment motion will be
taken to be true.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citation omitted) (quoting Fed. R. Civ. P. 56(e)); accord Bronson, 500 F.3d at 1111 n.10.12
Despite Smith’s affidavit, the plaintiffs produced no such evidence indicating that Smith
would in fact inquire into the validity of their California marriage in the event they
sought an Oklahoma license, and no evidence that they ever even intended to seek an
Oklahoma marriage license. In short, they produced no evidence generating even a
12 Of course, if the Barton couple had been entitled to a finding of standing on the basis of law of the case, they would not have been required to demonstrate their standing before the district court, or here. That is to say, had there been no new evidence to sufficiently undermine the effect of the law of the case of Bishop I, then Bishop I would have been enough, without more, to establish standing. See Christianson, 486 U.S. at 816 n.5 (“There is no reason to apply law-of-the-case principles less rigorously to [a jurisdictional issue].”). But since there was new evidence that did effectively undermine Bishop I’s non-recognition standing holding, the Barton couple had to meet their summary-judgment burden in rebutting that evidence. See, e.g., Clark, 590 F.3d at 1140 (describing new evidence as a reason to “depart from the [law of the case] doctrine” (emphasis added)); United States v. Parada, 577 F.3d 1275, 1280 (10th Cir. 2009) (same).
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possibility that Smith would ever be called upon to evaluate the validity of their California marriage.
Even assuming that the Barton couple had sought a marriage license from Smith, or intended to do so, it is implausible to imagine that Smith would have inquired into the validity of their California marriage. Looking at the state of the world at the time the suit was filed, as the law instructs, see Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011); Utah Ass’n of Cntys. v. Bush, 455 F.3d 1094, 1099 (10th Cir. 2006), the standing inquiry must be predicated on the existence of a valid ban on same-sex marriage in Oklahoma. If the Barton couple had sought an Oklahoma marriage license in the face of the ban, it would have been odd, to say the least, for Smith to investigate the validity of their California marriage rather than denying them a license outright pursuant to the unambiguous mandate of a law that she was duty-bound to follow. That being the case, the plaintiffs have no believable hypothetical under which Smith would even be considering the validity of the Barton couple’s marriage, and hence no believable hypothetical rendering her a source of relief for their non-recognition injury. This theory is simply too conjectural to warrant a finding of redressability. See Kerr, 744 F.3d at 1171 (reiterating that “an injury is redressable if a court concludes it is ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’” (quoting Lujan, 504 U.S. at 561)); accord Petrella, 697 F.3d at 1294.
There are other state officials with a much closer and more concrete relationship to the withholding of recognition than any courthouse staff, including Smith. The most salient example lies in the area of taxation. In Oklahoma, the Tax Commission presides
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over the State’s tax system. See Okla. Stat. tit. 68, § 203. One of the Commission’s responsibilities is to accept or deny joint tax returns mailed in by couples. See Grasso v. Okla. Tax Comm’n, 249 P.3d 1258, 1261 (Okla. Civ. App. 2011). With that scheme in place, a non-recognition plaintiff could file a joint tax return, have that status denied, and then sue the members of the Tax Commission. See, e.g., Baskin v. Bogan, ___ F. Supp. 2d ___, 2014 U.S. Dist. LEXIS 86114, at *15, *50 (S.D. Ind. 2014) (finding the commissioner of the state department of revenue a proper party and ordering him to permit same-sex couples to file joint tax returns); cf. Rott v. Okla. Tax Comm’n, No. CIV-13-1041-M, 2014 U.S. Dist. LEXIS 77173, at *2-4 (W.D. Okla. June 6, 2014) (describing an action brought against, inter alia, members of the Oklahoma Tax Commission for wrongfully assessing and attempting to collect income taxes from the plaintiff in violation of his federal constitutional rights).
Other equally straightforward paths to redressability are easy enough to imagine, and several have in fact been taken in similar challenges being litigated elsewhere. See, e.g., Tanco v. Haslam, ___ F. Supp. 2d ___, 2014 U.S. Dist. LEXIS 33463, at *9, *33-34 (M.D. Tenn. 2014) (sustaining a non-recognition challenge where the plaintiffs sued the commissioner of the department of finance and administration after they were prevented from using a family health insurance plan provided by a public university); Bostic v. Rainey, 970 F. Supp. 2d 456, 461-63, 484 (E.D. Va. 2014) (sustaining a non-recognition challenge where the plaintiffs sued the state registrar of vital records to obtain a birth certificate so that they could legally adopt the daughter they raise together); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 972-73, 1000 (S.D. Ohio 2013) (sustaining a non-
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recognition challenge where the plaintiffs sued the director of the state department of
health to obtain a death certificate listing the couple as married).13
The distinction between Smith and a proper defendant, moreover, is not a
distinction between discretionary decisions enforcing the non-recognition provision and
ministerial decisions doing so. In all relevant respects, a tax commissioner’s decision to
withhold joint-filing status is, as a practical matter, just as ministerial as Smith’s decision
to withhold recognition. Both officials are responsible for faithfully applying Oklahoma
law, and Oklahoma law clearly instructs both of them to withhold marital status from
13 That the plaintiffs’ action was in part for a declaratory judgment does not affect the standing analysis. Like any lawsuit, a declaratory-judgment action must meet Article III’s standing criteria, including redressability. See Consumer Data Indus. Ass’n, 678 F.3d at 906; City of Hugo v. Nichols (Two Cases), 656 F.3d 1251, 1263-64 (10th Cir. 2011). As part of the redressability requirement, a declaratory-judgment action must be brought against a defendant who can, if ordered to do so, remedy the alleged injury. See Coll v. First Am. Title Ins. Co., 642 F.3d 876, 892 (10th Cir. 2011); Bronson, 500 F.3d at 1111. Since Smith cannot provide relief to the Barton couple on their non-recognition claim, they had no standing to sue her, regardless of whether the claim was brought in a declaratory-judgment form or not.
Similarly, the doctrine of actionable conduct capable of repetition yet evading review is not applicable here. As an initial matter, the doctrine creates an exception to mootness, not to lack of standing. See United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011) (per curiam); Buchheit v. Green, 705 F.3d 1157, 1160 (10th Cir. 2012); see also Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242-43 (10th Cir. 2011) (acknowledging that the capable-of-repetition-yet-evading-review class of cases constitutes an exception to mootness and noting that such “exceptions do not extend to the standing inquiry”). The Barton couple’s claim is plainly not moot, as they continue to desire recognition for their marriage and continue to be denied such recognition. See United States v. Alaska, 503 U.S. 569, 575 n.4 (1992) (“We agree that the controversy is not moot, since it involves a continuing controversy . . . .”). At any rate, to the extent the capable-of-repetition-yet-evading-review test does go to redressability, the complained-of conduct, i.e., the denial of marriage recognition, does not evade review. Rather, as discussed above, a non-recognition couple could easily seek recognition from the State in some fashion, such as by filing a joint tax return, and when recognition was denied, the couple could then sue the official responsible for that non-recognition decision.
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same-sex couples. If the Barton couple had expressed a wish to file joint taxes and named a tax official responsible for authorizing that filing, there would be no doubt that a court order to the official would remedy the couple’s non-recognition injury: the official would then accept the joint return. See Baskin, 2014 U.S. Dist. LEXIS 86114, at *15, *50 (finding the commissioner of the state department of revenue a proper party and ordering him to permit same-sex couples to file joint tax returns). There is no analogue with respect to Smith. The supposition that Smith will have any specific involvement in recognizing or declining to recognize the Barton couple’s marriage lacks any demonstrated foundation in the record or in Oklahoma law.14
Unable to demonstrate standing on their principal non-recognition injury—the refusal of the State to recognize their marriage—the plaintiffs seek to rely upon a different injury. Specifically, the plaintiffs insist they have standing because “the injury of shutting the state courthouse doors on Plaintiffs—on top of the injuries of . . . nonrecognition—would be redressed by an injunction against [Part B].” As Smith correctly points out, though, the Barton couple did not challenge Part B on the grounds that it foreclosed their right to access the state court system. Rather, they challenged it on the grounds that it violated their equal-protection and due-process rights to have their marriage recognized. Crucially, the district court never heard a contention from the
14 In the plaintiffs’ eyes, standing on non-recognition can be found by virtue of the fact that Smith, and the court system that employs her, would not refuse to honor a court order enjoining enforcement of Part B. It is of no moment that Smith would presumably obey a judicial invalidation of Part B if she were directed to enforce the provision. The problem is there is no reason to believe that she enforces the provision at all, and thus no conceivable injunction for her to obey
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Barton couple that Part B visited upon them an access-to-the-courts injury,15 and it was their obligation to show standing. See Kerr, 744 F.3d at 1163; Petrella, 697 F.3d at 1293. The district court could not have entertained jurisdiction over a claim on the basis of redressability for an injury that the Barton couple never alleged.
In sum, the Barton couple had no standing to sue, and the district court properly dismissed their non-recognition challenge as a result.
C In a final attempt to nullify Part B along with Part A, the plaintiffs submit—for the first time on appeal—that the non-recognition provision must be struck down under severability law as soon as the ban is struck down, no matter whether there was standing to challenge the non-recognition provision or not. For her part, Smith asks for a finding that the plaintiffs forfeited their severability theory by failing to raise it in the district court. The plaintiffs do not deny that they omitted the argument from their summaryjudgment filings, and a review of those filings finds no trace of severability doctrine. Nevertheless, the plaintiffs request that we take account of severability if the ban falls, regardless of the issue’s preservation, because—in their view—a severability analysis is required whenever a court declares invalid part of an enactment.
15 In their response to Smith’s motion for summary judgment, the plaintiffs did submit in passing that Smith’s affidavit might create an injury in its own right, namely, the erection of “a barrier making it more difficult for members of a group to obtain a benefit.” However, the plaintiffs did not frame this argument in terms of access to the state court system, and it is more naturally read as a point about access to the federal court system. After all, a finding of no standing on the basis of Smith’s affidavit removes the Barton couple from federal court, not from state court.
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At the outset, it is necessary to determine the controlling source of law. The question of whether an unconstitutional provision of state law is severable from the remainder of the enactment is a matter of state law. See Leavitt v. Jane L., 518 U.S. 137, 139 (1996) (per curiam); accord Am. Target Adver., Inc. v. Giani, 199 F.3d 1241, 1250 (10th Cir. 2000). So too is the question of whether a severability analysis is triggered in the first place by the facts of the case, i.e., whether the type of judicial ruling at issue calls for a severability inquiry. See Local 514 Transp. Workers Union of Am. v. Keating, 66 F. App’x 768, 779 (10th Cir. 2003) (certifying to the Oklahoma Supreme Court the question of whether severability analysis applied to certain state constitutional provisions if they were declared preempted by federal law); Local 514 Transp. Workers Union of Am. v. Keating, 83 P.3d 835, 839 (Okla. 2003) (answering that severability analysis would not apply and holding that “whether to apply severability analysis . . . [was] a matter of state law”); see also Local 514 Transp. Workers Union of Am. v. Keating, 358 F.3d 743, 744 n.1 (10th Cir. 2004) (subsequently deciding the appeal on the basis of the Oklahoma Supreme Court’s answer and incorporating the certification into the published opinion).
Unlike substantive severability law, though, the matter of whether an argument has been forfeited by a party’s failure to raise it in the district court is decided by federal procedural law. That proposition is underscored by the fact that when we have found an argument forfeited by its omission in district court proceedings in a diversity case— where we are applying substantive state law—we have supported our forfeiture ruling with citations to Tenth Circuit decisions that are either applying substantive federal law
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or the substantive law of a different state. See, e.g., Elm Ridge Exploration Co. v. Engle,
721 F.3d 1199, 1213 (10th Cir. 2013); Brecek & Young Advisors, Inc. v. Lloyds of
London Syndicate 2003, 715 F.3d 1231, 1234 n.1 (10th Cir. 2013); Emp’rs Mut. Cas. Co.
v. Bartile Roofs, Inc., 618 F.3d 1153, 1176 n.20 (10th Cir. 2010).
More relevant to the case at bar, in Awad v. Ziriax, 670 F.3d 1111, 1132 n.16
(10th Cir. 2012), we applied a federal approach to a highly analogous situation. In Awad,
a popular vote approved a proposal to add to the state constitution a provision that
included, inter alia, language forbidding Oklahoma courts from considering Sharia law in
rendering their decisions. Id. at 1117-18. The district court issued a preliminary
injunction, ordering state officials not to certify the election result until the court had
ruled on the merits of a federal constitutional challenge to the proposed amendment.
Awad v. Ziriax, 754 F. Supp. 2d 1298, 1308 (W.D. Okla. 2010). On appeal, we affirmed
the preliminary injunction. Awad, 670 F.3d at 1133. We attached the following footnote
to the end of our substantive analysis:
Appellants raised the issue of severability of the Sharia law portions of the amendment for the first time to this court in post-oral argument supplemental briefing. Their argument consisted of one sentence and cited no authority, stating that if this court decides the Sharia law provisions in the amendment render the amendment invalid, “the court should simply treat the explicatory example as surplusage, and strike it.” Because this issue has not been adequately briefed, we do not address it. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011).
Id. at 1132 n.16. In other words, in a federal constitutional challenge to an Oklahoma
constitutional provision, we upheld, at least preliminarily, a decision striking down the
provision and declined to consider severability because of a failure to adequately preserve
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the issue for review—specifically, a waiver of the issue through deficient briefing. The Awad footnote is only explicable if an appellate court has no inherent obligation to consider severability sua sponte, as it would with, say, a jurisdictional issue. See, e.g., United States v. Ramos, 695 F.3d 1035, 1046 (10th Cir. 2012), cert. denied, 133 S. Ct. 912 (2013); Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1375-76 (10th Cir. 2011).
As in Awad, this court is upholding here a decision striking down a provision of the Oklahoma Constitution on federal constitutional grounds, and, as in Awad, the litigant failed to adequately preserve the issue for review—this time, by effecting a forfeiture through failure to present the issue to the district court. There is no apparent reason why the result the court reached in Awad should not be the same here. In other words, the same principle should have equal purchase in the forfeiture context: if there is no obligation to consider severability sua sponte where it has been waived,16 there is no obligation to consider it where it has been forfeited.
Having thus resolved the issue of whether in a forfeiture context the court is obligated to consider severability, “the decision regarding what issues are appropriate to entertain on appeal in instances of lack of preservation is discretionary.” Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013), cert. denied, 134 S. Ct. 1874 (2014). Waiver through appellate-briefing omission and forfeiture through silence before the
16 The parties in Kitchen did not address severability in their appellate briefing, thereby rendering the issue waived in that case through briefing omission and relieving this court of any responsibility to discuss the matter in its opinion. See United States v. Bader, 678 F.3d 858, 894 (10th Cir. 2012) (observing that a litigant’s briefing omissions prompt the conclusion that he or she “has waived [the] argument”).
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district court are admittedly distinct failures of preservation, and arguably there is more discretionary leeway to consider issues not preserved under the latter (forfeiture) than the former (appellate-briefing waiver). See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128-30 (10th Cir. 2011) (exploring the distinction between forfeiture and waiver, including waiver through omissions in appellate briefs); see also United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012) (“‘Unlike waived theories, we will entertain forfeited theories on appeal . . . .’” (quoting Richison, 634 F.3d at 1128)). However, where a litigant attempts to rely upon a forfeited theory, “‘the failure to argue for plain error and its application on appeal . . . surely marks the end of the road for an argument for reversal not first presented to the district court.’” United States v. Lamirand, 669 F.3d 1091, 1100 n.7 (10th Cir. 2012) (omission in original) (quoting Richison, 634 F.3d at 1131). The plaintiffs are at the end of the road here.
In essence, in arguing for reversal, the plaintiffs are asserting that the district court erred in refusing to enjoin Part B in addition to Part A under severability law, despite their alleged lack of standing to challenge the former. They offer no explanation as to how the district court plainly erred in this regard.17 In fact, the plaintiffs’ only response to Smith’s forfeiture argument is that a severability theory is not susceptible to forfeiture. As noted above, that is incorrect—pursuant to Awad, the plaintiffs could in fact forfeit
17 A litigant may obtain relief under the plain-error doctrine upon a showing of “(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If [she] satisfies these criteria, this Court may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (quotation omitted).
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their severability argument, and they did.18 Therefore, absent any argument by the
plaintiffs for plain error, much less a cogent one, it is appropriate to decline to exercise
the court’s discretion to hear this forfeited severability issue.
To recapitulate, a severability theory can be forfeited, the plaintiffs’ severability
theory was forfeited, and the plaintiffs supply no argument for overlooking the forfeiture.
As a consequence, they are not entitled to the benefit of any severability analysis, and the
district court’s dismissal of the challenge to Part B must be affirmed.19
That the non-recognition claim is doomed to dismissal may seem a harsh result.
The Barton couple first challenged Part B almost ten years ago. After the first appeal, the
plaintiffs fairly understood Bishop I as a directive instructing them to name Smith as the
lone defendant for all of their grievances. It was reasonable of the Barton couple to
follow that perceived directive, and it is regrettable that their compliance has resulted in a
18 The plaintiffs use Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), and Panhandle Eastern Pipeline Co. v. State of Oklahoma ex rel. Commissioners of Land Office, 83 F.3d 1219 (10th Cir. 1996), to bolster their view that a court has an obligation to consider severability even in the face of forfeiture. Cf. Acosta v. City of Costa Mesa, 694 F.3d 960, 974 n.7 (9th Cir. 2012) (relying upon Brockett, inter alia, to support the proposition that “severability is an inherent part of the process of constitutional adjudication” that is not subject to waiver by omission from appellate briefs), withdrawn, 708 F.3d 1122 (9th Cir. 2013). Neither Brockett nor Panhandle nor any of the other Supreme Court cases cited by Acosta say anything about forfeiture or waiver, or anything about whether severability had been raised or argued to the trial or appellate courts. Given this silence, the explicit invocation of waiver by Awad in a comparable case is controlling here on the question of whether severability must be considered sua sponte.
19 Because the plaintiffs’ severability theory is forfeited, there is no need to consider Smith’s argument that a severability analysis regarding Part B is foreclosed by the plaintiffs’ lack of standing to challenge that provision. See Sinochem Int’l Co., 549 U.S. at 431 (authorizing federal courts to choose at their discretion among alternative threshold grounds for disposing of a claim without reaching its merits); accord Niemi, 728 F.3d at 1260.
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lack of standing, especially after nearly a decade of complex, time-consuming, and no doubt emotional litigation.
No matter how compelling the equitable arguments for reaching the merits of the non-recognition claim, however, its fate must be determined by the law, and the law demands dismissal. The frustration that may be engendered by the court’s disposition today should be tempered, however. Although it would not be appropriate to definitively opine on the matter, it is fair to surmise that the court’s decision in Kitchen casts serious doubt on the continuing vitality of Part B. See 2014 U.S. App. LEXIS 11935, at *4 (“A state may not . . . refuse to recognize [a] marriage . . . based solely upon the sex of the persons in the marriage union.”).
IV For the foregoing reasons, we AFFIRM. We STAY our mandate pending the disposition of any subsequently-filed petition for writ of certiorari. See Fed. R. App. P. 41(d)(2); see also Kitchen, 2014 U.S. App. LEXIS 11935, at *97-98.
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Nos. 14-5003 & 14-5006, Mary Bishop et al. v. Sally Howe Smith et al. HOLMES, Circuit Judge, concurring.
In upholding the district court’s substantive ruling in this case, the majority concludes that Oklahoma’s same-sex marriage ban—found in SQ 7111—impermissibly contravenes the fundamental right to marry protected by the Due Process and Equal Protection Clauses of the Constitution. I fully agree with that conclusion and endorse without reservation the reasoning of the majority on this matter.2
I write here, however, to focus on one significant thing that the district court wisely did not do in rendering its substantive ruling on the same-sex marriage ban. Specifically, the district court declined to rely upon anim us doctrine in striking down SQ 711. See Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d 1252, 1285 n.32 (N.D. Okla. 2014). Most of the other recent judicial decisions invalidating same-sex marriage laws have exercised the same

1

Following the majority opinion, I will refer to Oklahoma’s same-sex

marriage provision embodied in its constitution, Okla. Const. art. II, § 35, as “SQ

711.” Also in keeping with the majority opinion, I will refer to SQ 711’s ban on

same-sex marriage as “Part A” and will refer to SQ 711’s non-recognition clause

as “Part B.”

2

I also fully embrace the remainder of the majority’s opinion (both its

outcome and reasoning) regarding the non-recognition claim: that is, that the

Barton couple lacked standing to pursue that claim and that Part B cannot be

invalidated pursuant to severability law because the plaintiffs forfeited their

severability argument.

forbearance.3 However, several district court decisions from other jurisdictions have taken a different tack and suggested that similar laws may suffer from unconstitutional animus. See Baskin v. Bogan, --- F. Supp. 2d ----, 2014 WL 2884868, at *14 (S.D. Ind. 2014); Henry v. Himes, --- F. Supp. 2d ----, 2014 WL 1418395, at *6 (S.D. Ohio 2014); De Leon v. Perry, 975 F. Supp. 2d 632, 655 (W.D. Tex. 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 995–96 (S.D. Ohio 2013). This concurrence endeavors to clarify the relationship between animus doctrine and same-sex marriage laws and to explain why the district court made the correct decision in declining to rely upon the animus doctrine.
I will begin by setting forth the contours of the animus doctrine as those contours have been drawn by the Supreme Court’s case law. Then, I will elucidate why SQ 711 falls outside of those boundaries and why it is consequently free from impermissible animus.

3

See Kitchen v. Herbert, --- F.3d ----, 2014 WL 2868044, at *32 (10th

Cir. 2014); Love v. Beshear, --- F. Supp. 2d ----, 2014 WL 2957671, at *7 n.14

(W.D. Ky. 2014); Wolf v. Walker, --- F. Supp. 2d ----, 2014 WL 2558444, at *33

(W.D. Wis. 2014); Whitewood v. Wolf, --- F. Supp. 2d ----, 2014 WL 2058105, at

*15 (M.D. Pa. 2014); Geiger v. Kitzhaber, --- F. Supp. 2d ----, 2014 WL 2054264,

at *14 (D. Or. 2014); Latta v. Otter, --- F. Supp. 2d ----, 2014 WL 1909999, at

*28 (D. Idaho 2014); Baskin v. Bogan, --- F. Supp. 2d ----, 2014 WL 1568884, at

*3 (S.D. Ind. 2014); DeBoer v. Snyder, 973 F. Supp. 2d 757, 775 (E.D. Mich.

2014); Tanco v. Haslam, --- F. Supp. 2d ----, 2014 WL 997525, at *6 (M.D. Tenn.

2014); Bostic v. Rainey, 970 F. Supp. 2d 456, 482 (E.D. Va. 2014); Bourke v.

Beshear, --- F. Supp. 2d ----, 2014 WL 556729, at *6–7 (W.D. Ky. 2014); Kitchen

v. Herbert, 961 F. Supp. 2d 1181, 1209–10 (D. Utah 2013), aff’d, 2014 WL

2868044; Griego v. Oliver, 316 P.3d 865, 888 (N.M. 2013).

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I To understand why animus doctrine is not dispositive in this appeal, one must understand three basic features of the doctrine: (1) what is anim us; (2) how is it detected; and (3) what does a court do once it is found. I will address each question in turn, before applying the answers to the case at bar.
A Beginning with first principles, when a state law is challenged on equalprotection grounds, and when that law does not implicate a fundamental right, a federal court ordinarily decides what type of analysis to apply on the basis of what sort of characteristic the State is using to distinguish one group of citizens from another. If the law uses a suspect classification, like race, strict scrutiny applies. See Johnson v. California, 543 U.S. 499, 505–06 (2005); Riddle v. Hickenlooper, 742 F.3d 922, 927 (10th Cir. 2014). If the law uses a quasi-suspect classification, like gender, intermediate scrutiny applies. See United States v. Virginia, 518 U.S. 515, 532–33 (1996); Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir. 2002). For all other classifications, rational-basis review is typically appropriate. See Armour v. City of Indianapolis, --- U.S. ----, 132 S. Ct. 2073, 2079–80 (2012); Brown v. Montoya, 662 F.3d 1152, 1172 (10th Cir. 2011). The animus cases depart from this well-trod path. In those cases, the Supreme Court took up equal-protection challenges to government action that
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distinguished between people on the basis of characteristics that the Court had not deemed suspect or quasi-suspect. See Romer v. Evans, 517 U.S. 620, 624 (1996) (describing the challenged law as classifying on the basis of sexual orientation); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 436–37 (1985) (describing the challenged law as classifying on the basis of intellectual disability); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 530 (1973) (describing the challenged law as classifying between households where the members were related to one another and households where they were not4); see also

4

A pair of Supreme Court cases handed down a day apart in 1982 are

occasionally also included in lists of the Court’s animus decisions: Plyler v. Doe,

457 U.S. 202 (1982), and Zobel v. Williams, 457 U.S. 55 (1982). See, e.g.,

Milner v. Apfel, 148 F.3d 812, 816 (7th Cir. 1998) (including Plyler and Zobel in

a list of the Court’s animus cases); Susannah W. Pollvogt, Unconstitutional

Animus, 81 Fordham L. Rev. 887, 899–900 (2012) (same). A careful reading of

these two decisions, however, causes me to disagree with this inclusion. See

Plyler, 457 U.S. at 227–30; Zobel, 457 U.S. at 60–64. Although Plyler and Zobel

arguably undertake a slightly more penetrating analysis, rooted in the States’

arguments, than commonly found in rational-basis cases, the Court’s gaze in the

two cases still extends no further than the “colorable state interests that might

support” the challenged classification. Plyler, 457 U.S. at 227 (emphases added);

see Zobel, 457 U.S. at 61 & 61 n.7 (noting the State’s proffered “three purposes

justifying the distinctions made by” the challenged classification and noting that

the Court “need not speculate as to the objectives of the legislature” because they

were codified in the legislation at issue). As such, Plyler and Zobel are, at the

very least, more akin to the mine-run rational-basis cases than they are to the

animus cases, which (as noted infra) have as their hallmark looking beyond

colorable interests promoted by the challenged law into the actual motivation

behind the governmental action at issue. This sui generis form of equal-

protection review is absent in Plyler and Zobel; accordingly, I will not rely upon

those cases in my discussion of the animus doctrine. See Massachusetts v. U.S.

Dep’t of Health & Human Servs., 682 F.3d 1, 10 (1st Cir. 2012) (limiting the list

(continued...)

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Massachusetts, 682 F.3d at 10 (“In [Moreno, Cleburne, and Romer], the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification.”). Because the classifications at issue in the animus line of cases did not involve suspect or quasi-suspect groups, one would have expected the Court to consider the laws under conventional rational-basis review. See Armour, 132 S. Ct. at 2079–80; Brown, 662 F.3d at 1172. But that was not what happened.
In the run-of-the-mill rational-basis case, the Court asks whether the litigant challenging the state action has effectively “negative[d] ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.’” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (emphasis added) (quoting Heller v. Doe ex rel. Doe, 509 U.S. 312, 320 (1993)) (internal quotation marks omitted); accord Ebonie S. ex rel. Mary S. v. Pueblo Sch. Dist. 60, 695 F.3d 1051, 1059 (10th Cir. 2012) (parroting Supreme Court precedent in noting that we must uphold a law on rational-basis review if “there is any reasonably conceivable state of facts that could provide a rational basis for [the classification]” (quoting Copelin-Brown v. N.M. State Pers. Office, 399 F.3d
4(...continued) of the Supreme Court’s animus cases to Romer, Cleburne, and Moreno); Tiffany C. Graham, Rethinking Section Five: Deference, Direct Regulation, and Restoring Congressional Authority to Enforce the Fourteenth Amendment, 65 Rutgers L. Rev. 667, 716 (2013) (same).
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1248, 1255 (10th Cir. 2005)) (internal quotation marks omitted)), cert. denied, --U.S. ----, 133 S. Ct. 1583 (2013). Defying expectations, the Supreme Court in the animus cases did not pose that broad question.
Rather than relying upon the various post-hoc rationalizations that could conceivably have justified the laws, the Court focused on the motivations that actually lay behind the laws. See Romer, 517 U.S. at 634 (emphasizing that the challenged law was “born of animosity toward the class of persons affected” (emphasis added)); Cleburne, 473 U.S. at 450 (remarking that the challenged law “rest[ed] on an irrational prejudice against the [intellectually disabled]” (emphasis added)); Moreno, 413 U.S. at 534 (noting that “[t]he legislative history [of the challenged law] indicate[d] that th[e] amendment was intended to prevent socalled ‘hippies’ and ‘hippie communes’ from participating in the food stamp program” (emphasis added)); see also Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 692 (6th Cir. 2011) (“In each of the [animus cases], the Supreme Court . . . concluded that the legislation at issue was in fact intended to further an improper government objective.” (emphasis added)).
Since the animus cases dealt with non-suspect groups, and yet did not invoke the rational-basis test in its classic form, the jurisprudence does not fit easily into the tiers of scrutiny that attach to most equal-protection claims. As a result, the type of review used in the animus decisions has been given a number of different labels. Sometimes the cases are simply lumped together with all
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other rational-basis cases. See, e.g., Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (interpreting Romer as a rational-basis case). Sometimes the animus cases are said to apply “heightened rational-basis review,” see, e.g., Kleinsmith v. Shurtleff, 571 F.3d 1033, 1048 (10th Cir. 2009), or—more colorfully—“rational basis with bite,” see, e.g., Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 760 (2011), “rational basis with teeth,” see, e.g., Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 540 (2014) (internal quotation marks omitted), or “rational basis plus,” see, e.g., Marcy Strauss, Reevaluating Suspect Classifications, 35 Seattle U. L. Rev. 135, 135 n.5 (2011) (internal quotation marks omitted).
For present purposes, it is of no moment what label is affixed to the distinctive equal-protection mode of analysis that is performed in the animus cases. What is important is to know when and how to conduct that analysis. As suggested above, the hallmark of animus jurisprudence is its focus on actual legislative motive. In the interest of analytical precision, it is important to clarify exactly what types of legislative motive may be equated with animus. Those motives could be viewed as falling somewhere on a continuum of hostility toward a particular group.5 See Black’s Law Dictionary 806 (9th ed. 2009) (defining

5

Some of the plaintiffs’ amici interpret the animus cases quite

broadly, to the extent that they understand them for all intents and purposes not to

involve hostility at all. See, e.g., Equality Utah Found. & Utah Pride Ctr. Br. at

(continued...)

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“hostile,” in the relevant entry, as “[a]ntagonistic; unfriendly”); New Oxford
American Dictionary 818 (2d ed. 2005) (defining “hostile,” in the relevant
entries, as “unfriendly; antagonistic,” and “opposed”); Webster’s Third New
International Dictionary 1094 (2002) (defining “hostile,” in the relevant entries,
as “marked by antagonism or unfriendliness,” “marked by resistance esp[ecially]
to new ideas,” and “unfavorable esp[ecially] to the new or strange”).
On the weaker end of the continuum, a legislative motive may be to simply
exclude a particular group from one’s community for no reason other than an
“irrational prejudice” harbored against that group. Cleburne, 473 U.S. at 450. In
this sense, animus may be present where the lawmaking authority is motivated
solely by the urge to call one group “other,” to separate those persons fromthe
rest of the community (i.e., an “us versus them” legal construct). See Romer, 517
5(...continued) 10 (“While the Supreme Court has sometimes suggested that laws drawn for the purpose of disadvantaging a group are based on ‘animus,’ that term simply denotes the absence of an ‘independent and legitimate’ purpose for the law, not a subjective disdain for or dislike of a particular class.” (quoting Romer, 517 U.S. at 632–33)); Joan Heifetz Hollinger et al. Br. at 4 n.8 (“‘Animus’ as used in Romer is a term of art and does not mean subjective dislike or hostility, but simply the absence of any rational reason for excluding a particular group from protections.”). That is, in my view, simply not a plausible reading of the animus cases, which have targeted laws “born of animosity toward the class of persons affected,” Romer, 517 U.S. at 634 (emphasis added), and laws motivated by “a bare congressional desire to harm a politically unpopular group,” Moreno, 413 U.S. at 534 (emphasis added). See Pollvogt, supra, at 888 (“In short, animus, including hostility toward a particular social group, is never a valid basis for legislation or other state action.” (emphasis added)).
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U.S. at 635 (invalidating “a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit”); Cleburne, 473 U.S. at 448 (“[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the [intellectually disabled] differently from apartment houses, multiple dwellings, and the like.”); see also Bowers v. NCAA, 475 F.3d 524, 554 (3d Cir. 2007) (interpreting Cleburne as prohibiting the construction of “a caste system”). On the more extreme end of the continuum, the legislative motive that implicates the animus doctrine may manifest itself in a more aggressive form—specifically, a “desire to harm a politically unpopular group.” Moreno, 413 U.S. at 534 (emphasis added). At either end of this continuum, and everywhere in between, at its core, legislative motivation of this sort involves hostility to a particular group and, consequently, implicates the animus doctrine.
B Having settled the question of what constitutes animus, there remains the question of how one knows when one has found it. As explained in the following sections, the animus cases instruct us to explore challenged laws for signs that they are, as a structural matter, aberrational in a way that advantages some and disadvantages others. Two types of structural aberration are especially germane here: (1) laws that impose wide-ranging and novel deprivations upon the disfavored group; and (2) laws that stray from the historical territory of the
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lawmaking sovereign just to eliminate privileges that a group would otherwise receive.6 These two rough categories of structural unusualness are neatly underscored by the Supreme Court’s two most recent statements on equalprotection law in the arena of sexual orientation: Romer and Windsor.7 Both will

6

It bears mention that the Supreme Court has periodically consulted

legislative history materials in its search for unconstitutional animus. See United

States v. Windsor, --- U.S. ----, 133 S. Ct. 2675, 2693 (2013) (considering a

House Report in concluding that the “essence” of the Defense of Marriage Act

(“DOMA”) was “interference with the equal dignity of same-sex marriages”);

Moreno, 413 U.S. at 534 (detailing legislative history to demonstrate that the

challenged enactment “was intended to prevent socalled ‘hippies’ and ‘hippie

communes’ from participating in the food stamp program”). Notably, though, the

Supreme Court has never taken into account such materials when weighing the

constitutionality of a popularly-enacted law—one based upon votes directly cast

by citizens—like the one before us. And it has had the opportunity to do so.

Romer involved a state constitutional amendment that was passed by referendum,

just as our case does. 517 U.S. at 623. Yet the Court did not rely on cam paign

literature in striking down the measure, training its gaze instead on the structural

attributes of the amendment that were suggestive of animus, such as its breadth

and the novelty of its effects on the injured class. See id. at 626–35. That is not

surprising. The scope of a popular poll makes it difficult, if not impossible, for a

court to apprehend the “intent” of individual voters from record evidence and,

therefore, makes it improvident to ascribe hostility to that intent and to nullify the

will of the citizenry on that basis. See Latta, 2014 WL 1909999, at *21

(“Because over 280,000 Idahoans voted for Amendment 2, it is not feasible for

the Court to infer a particular purpose or intent for the provision.”); Fred O.

Smith, Jr., Due Process, Republicanism, and Direct Democracy, 89 N.Y.U. L.

Rev. 582, 610 (2014) (“There is a resounding absence of [a meaningful

legislative] record when voters directly enact measures.”).

7

Notably, the Supreme Court in Windsor did not expressly identify the

tier of scrutiny that it applied in reviewing the challenged federal legislation. The

extent to which Windsor is an animus case—as opposed to, most saliently here, a

fundamental-rights case—is not pellucid. Compare Windsor, 133 S. Ct. at 2692

(“Private, consensual sexual intimacy between two adult persons of the same sex

may not be punished by the State, and it can form ‘but one element in a personal

(continued...)

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7(...continued) bond that is more enduring.’ By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.” (citation omitted) (quoting Lawrence v. Texas, 539 U.S. 558, 567 (2003))), and id. at 2694 (“The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.” (citation omitted)), with id. at 2693 (“DOMA seeks to injure the very class New York seeks to protect.”), and id. at 2695 (“[T]he principal purpose and the necessary effect of this law are to dem ean those persons who are in a lawful same-sex marriage.”). No matter how one describes the measure of animus doctrine at work in Windsor, it cannot be seriously contended that Windsor is entirely lacking in it. In addition to the quotes recited above, Windsor spoke in manifestly animus-inflected terms when it reaffirmed that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group,” id. at 2693 (quoting Moreno, 413 U.S. at 534–35), and when the Court reiterated, even more tellingly, that “[i]n determining whether a law is motivated by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration,” id. (second alteration in original) (quoting Romer, 517 U.S. at 633) (internal quotation marks omitted). See also William D. Araiza, After the Tiers: Windsor, Congressional Power to Enforce Equal Protection, and the Challenge of Pointillist Constitutionalism, 94 B.U. L. Rev. 367, 368 (2014) (characterizing Windsor as an animus case); Daniel O. Conkle, Evolving Values, Animus, and Same-Sex Marriage, 89 Ind. L.J. 27, 39 (2014) (“The [Windsor] Court’s primary argument . . . was that Congress had acted with illicit ‘animus,’ thus violating equal protection.”); Darren Lenard Hutchinson, “Not Without Political Power”: Gays and Lesbians, Equal Protection and the Suspect Class Doctrine, 65 Ala. L. Rev. 975, 977 (2014) (“[I]n Windsor, rather than considering whether gays and lesbians constitute a suspect class, the Court held simply that DOMA violates the Equal Protection Clause because it is a product of animus directed towards same-sex couples.”); cf. SmithKline Beecham Corp. v. Abbott Labs., --- F.3d ----, 2014 WL 2862588, at *4 (9th Cir. 2014) (O’Scannlain, J., dissenting from denial of rehearing en banc) (“In declaring [DOMA § 3] to be motivated by no ‘legitimate’ purpose, Windsor only applies rational basis review in the same way that Romer reviewed Colorado’s Amendment 2 for rational basis.”). In the discussion that follows, I use Windsor exclusively with reference
(continued...)
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be considered in detail below. 1
The first species of structural irregularity relating to the type of harm inflicted upon the injured class is powerfully captured by Romer. There, the Supreme Court struck down a Colorado constitutional amendment that prohibited all state entities from promulgating civil-rights protections specifically designated for homosexuals (or bisexuals) in any context. Romer, 517 U.S. at 635. The Court was moved to do so by the fact that the “disadvantage imposed [was] born of animosity toward the class of persons affected.” Id. at 634. That is to say, animus entered the stage in Romer for the principal reason that the constitutional amendment before the Court was strikingly pervasive in obstructing homosexuals from obtaining any specially designated civil-rights protections whatsoever. See id. at 627 (“Sweeping and comprehensive is the change in legal status effected by this law.”); id. at 632 (“[T]he amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group . . . .”); id. at 633 (“Amendment 2 . . . identifies persons by a single trait and then denies them protection across the board.”). That sort of blanket burdening of a group and its rights, the Court cautioned, was unheard of and, as a consequence, inherently suspicious. See id. at 633 (“The resulting disqualification of a class of persons
7(...continued) to the animus aspect of its reasoning.
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from the right to seek specific protection from the law is unprecedented in our jurisprudence.”); id. (“It is not within our constitutional tradition to enact laws of this sort.”). Stated differently, Romer applied the animus doctrine because a State had passed a law that pervasively constricted the rights of a group in a way that few, if any, laws had previously done. Cf.Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 299 (6th Cir. 1997) (“[T]he Romer majority’s rejection of rational relationship assessment hinged upon the wide breadth of Colorado Amendment 2, which deprived a politically unpopular minority of the opportunity to secure special rights at every level of state law.”).
2 The second species of structural irregularity is on display in Windsor. Specifically, prior to passage of DOMA, Congress had deferred to the States’ definitional authority over marriage, an authority they enjoyed as part of their traditional police power in the domestic-relations sphere. See Windsor, 133 S. Ct. at 2691 (depicting family law as “an area that has long been regarded as a virtually exclusive province of the States” (internal quotation marks omitted)); id. (“The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations . . . .”); id. (“[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . .” (alteration in original) (internal quotation m arks omitted)). DOMA represented a radical departure from that tradition, and it was
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that departure that brought animus concerns to the fore in Windsor:

When the State used its historic and essential authority to define

the m arital relation in this way, [i.e., to allow sam

e-sex

marriage,] its role and its power in making the decision enhanced

the recognition, dignity, and protection of the class in their own

community. DOMA, because of its reach and extent, departs

from this history and tradition of reliance on state law to define

marriage. “[D]iscriminations of an unusual character especially

suggest careful consideration to determ ine whether they are

obnoxious to the constitutional provision.”

Id. at 2692 (second alteration in original) (quoting Romer, 517 U.S. at 633)

(internal quotation marks omitted). Shortly thereafter in Windsor, the Supreme

Court drove the same point home:

The responsibility of the Sta tes for the regulation of dom estic relations is an im portant indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviationfrom the usual tradition of recognizing and accepting state definitions of marriage he re operates to deprive sam e-sex couples of the benefits and responsibilities that c ome with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class.

Id. at 2693 (emphasis added). With these passages, the Court left no doubt that

the animus doctrine was relevant to the disposition of the case because the federal

government had gone beyond the federalism pale and intruded into a province

historically monopolized by the States, and, what is more, that the federal

government had done so solely to restrict the rights that would have otherwise

been afforded to gay and lesbian individuals. See Conkle, supra, at 40

(interpreting the federalism concerns in Windsor as “directly linked to [the

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Court’s] animus rationale”). C
When a litigant presents a colorable claim of animus, the judicial inquiry searches for the foregoing clues. What happens when the clues are all gathered and animus is detected? The answer is simple: the law falls. Remember that under rational-basis review, the most forgiving of equal-protection standards, a law must still have a legitimate purpose. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000) (explaining that “when conducting rational basis review we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government’s] actions were irrational” (alterations in original) (internal quotation marks omitted)); United States v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006) (“To pass muster under the rational basis test, [the statute] must have a legitimate purpose . . . .” (internal quotation marks omitted)). A legislative motive qualifying as animus is never a legitimate purpose. See Romer, 517 U.S. at 632 (“[T]he amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.”); Cleburne, 473 U.S. at 448 (“[M]ere negative attitudes, or fear, . . . are not permissible bases for [a statutory classification].”); Moreno, 413 U.S. at 534 (“[The] amendment was intended to prevent socalled ‘hippies’ and ‘hippie communes’ from participating in the food
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stamp program,” and such “a bare congressional desire to harma politically unpopular group cannot constitute a legitimate governmental interest.”). In other words, once animus is detected, the inquiry is over: the law is unconstitutional.
This fearsome quality of animus jurisprudence has led one commentator to refer to it, most aptly, as “a doctrinal silver bullet.” Pollvogt, supra, at 889. Conversely, if animus is not properly invoked—viz., if the clues do not add up to a picture of hostile lawmaking—the analysis returns to the traditional rationalbasis realm and the Court commences a more generous search for “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Garrett, 531 U.S. at 367 (emphasis added) (internal quotation marks omitted); accord Ebonie S., 695 F.3d at 1059.
II Armed with these background principles, I am now well-situated to examine how animus operates—or does not—in the context of the instant appeal. To review, ordinarily, a law falls prey to animus only where there is structural evidence that it is aberrational, either in the sense that it targets the rights of a minority in a dangerously expansive and novel fashion, see Romer, 517 U.S. at 631–35, or in the sense that it strays from the historical territory of the lawmaking sovereign just to eliminate privileges that a group would otherwise receive, see Windsor, 133 S. Ct. at 2689–95. The Oklahoma law at issue before us today is aberrational in neither respect. In fact, both considerations cut
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strongly against a finding of animus.8 A
To begin, SQ 711 is not nearly as far-reaching as the state constitutional amendment that Romer invalidated. The amendment taken up by Romer forbade any unit of state government from extending to gay and lesbian persons any special privileges or protections. See 517 U.S. at 624 (reciting the language of

8

The district court found, “as a matter of law, that ‘moral disapproval

of same-sex marriage’ existed in the public domain as at least one justification for

voting in favor of SQ 711.” Bishop, 962 F. Supp. 2d at 1289. In support of that

finding, the district court cited statements made by several state legislators and by

other supporters of the measure. Id. at 1288–89. The district court’s analysis in

this regard is most naturally read as relating to its conventional rational-basis

review—wherein it considered moral disapproval as one conceivable basis for the

law—not as germane to a finding of animus. See id. at 1285 n.32 (“Because

Windsor involved an unusual federal intrusion into state domestic law (not at

issue here) and Romer involved an unusual, total removal of any equal protection

of the law (not at issue here), the Court proceeds to conduct a m ore traditional

equal protection analysis by determining the proper level of scrutiny and then

considering all conceivable justifications for Part A.”); id. at 1288 (“The Court

turns now to the conceivable justifications for Part A’s preclusion of same-sex

couples from receiving an Oklahoma marriage license[, including moral

disapproval].”). As noted supra, the Supreme Court has understandably (indeed,

wisely) never taken into account even more formal expressions of legislative will

(i.e., recorded legislative history) when weighing the constitutionality of a

popularly-enacted law, like the one before us, despite having had the opportunity

to do so. It seems questionable, therefore, whether it would be appropriate for a

court undertaking animus review in the context of such a law to ever consider the

kind of materials cited by the district court here. At any rate, even assum ing that

such materials are cognizable in a case like this, the few and scattered quotes

referenced by the district court, as well as by the plaintiffs and som e of their

amici, offer far too tenuous a basis to impugn the goodwill of the roughly one

million Oklahomans who voted for SQ 711. See id. at 1259 n.1 (finding that SQ

711 was approved by a vote of 1,075,216 to 347,303).

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the amendment); see also id. at 632 (“[T]he amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group . . . .”); id. at 633 (“Amendment 2 . . . identifies persons by a single trait and then denies them protection across the board.”). SQ 711 cannot plausibly be painted with this brush. Unlike the amendment in Romer, SQ 711 does not deprive homosexuals of civil-rights “protection across the board,” id. at 633, in a “[s]weeping and comprehensive” fashion, id. at 627. It excludes them from a single institution: marriage. For animus purposes, SQ 711 is an exclusion of a much different character than the Colorado amendment in Romer, which shut the door for homosexuals on myriad rights to which they might otherwise have gained access through the political process.
Furthermore, any fair historical narrative belies the theory that SQ 711 is “unprecedented in our jurisprudence.” Id. at 633. Explicit bans on same-sex marriage are not especially venerable, but neither are they in their infancy. See Nancy Kubasek et al., Amending the Defense of Marriage Act: A Necessary Step Toward Gaining Full Legal Rights for Same-Sex Couples, 19 Am. U. J. Gender Soc. Pol’y & L. 959, 964 n.32 (2011) (“Maryland became the first state to define marriage as between a man and a woman in 1973 . . . .”).
More to the point, SQ 711 and parallel enactments have only made explicit a tacit rule that until recently had been universal and unquestioned for the entirety of our legal history as a country: that same-sex unions cannot be sanctioned as
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marriages by the State. See Windsor, 133 S. Ct. at 2689 (“[M]arriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”). Even before the States made the rule explicit, marriage laws that lacked express gender limitations had the same force and effect as bans on samesex marriage. See Dean v. District of Columbia, 653 A.2d 307, 310 (D.C. 1995) (Ferren, J., concurring in part and dissenting in part, joined by Terry and Steadman, JJ.); Jones v. Hallahan, 501 S.W.2d 588, 589 (Ky. Ct. App. 1973); Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 953 (Mass. 2003); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971); Hernandez v. Robles, 855 N.E.2d 1, 6 (N.Y. 2006) (plurality opinion); Baker v. State, 744 A.2d 864, 869 (Vt. 1999); see also Lewis v. Harris, 908 A.2d 196, 208 (N.J. 2006) (“With the exception of Massachusetts, every state’s law, explicitly or implicitly, defines marriage to mean the union of a man and a woman.” (emphases added)). Far from being “unprecedented,” then, Romer, 517 U.S. at 633, same-sex marriage bans were literally the only precedent in all fifty states until little more than a decade ago. See Michael Sant’ Ambrogio, The Extra-Legislative Veto, 102 Geo. L.J. 351, 378 (2014) (noting that Massachusetts became the first state in the country to legally acknowledge same-sex marriages in 2003); see also David B. Oppenheimer et al., Religiosity and Same-Sex Marriage in the United States and Europe, 32 Berkeley J. Int’l L. 195, 195 (2014) (“Twenty years ago, no country in the world and not a
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single US state had authorized same-sex marriage.”). Whether right or wrong as a policy matter, or even right or wrong as a fundamental-rights matter, this ancient lineage establishes beyond peradventure that same-sex marriage bans are not qualitatively unprecedented—they are actually as deeply rooted in precedent as any rule could be.9 See Hernandez, 855 N.E.2d at 8 (“Until a few decades ago, it

9

In an otherwise incisive opinion, the United States District Court for

the Western District of Wisconsin recently analogized a same-sex marriage ban to

the felled laws in Windsor and Romer, reasoning that the ban was likewise

“unusual” in that it represented “a rare, if not unprecedented, act of using the

[state] [c]onstitution to restrict constitutional rights rather than expand them.”

Walker, 2014 WL 2558444, at *33 (internal quotation marks omitted). There are

two problems with this argument. First, it is misleading to suggest that a ban

“restricts” a substantive constitutional right that had not been recognized

beforehand. Constitutional or otherwise, the plaintiffs’ rights with respect to

marriage—or lack thereof—were the same before the ban as after. Second, even

if it were correct to characterize the challenged laws as restrictions, they would

not be restrictions of such a type as to qualify as “unusual” under Windsor and

Romer. DOMA was unusual because it represented an incursion by the federal

government into a province historically dominated by the States. See Windsor,

133 S. Ct. at 2691 (describing family law as “an area that has long been regarded

as a virtually exclusive province of the States” (internal quotation marks

omitted)); id. (“The definition of marriage is the foundation of the State’s broader

authority to regulate the subject of domestic relations . . . .”); id. (“[T]he states, at

the time of the adoption of the Constitution, possessed full power over the subject

of marriage and divorce . . . .” (alteration in original) (internal quotation marks

omitted)). Colorado’s Amendment 2, at issue in Romer, was unusual because it

cut off homosexuals’ rights in an indiscriminate fashion across numerous legal

fronts. See 517 U.S. at 627 (“Sweeping and comprehensive is the change in legal

status effected by this law.”); id. at 632 (noting that Amendment 2 had “the

peculiar property of imposing a broad and undifferentiated disability on a single

named group, an exceptional and . . . invalid form of legislation”); id. at 633

(“Amendment 2 . . . identifies persons by a single trait and then denies them

protection across the board.”). SQ 711 is unusual in neither of these ways. It is

but one piece of Oklahoma’s marriage regime, a regime our federalist system

(continued...)

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was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”).
A useful point of comparison in this regard can be located in the Ninth Circuit’s Proposition 8 case, which nicely demonstrates the sort of qualitatively abnormal lawmaking that triggers the animus doctrine, and nicely demonstrates the absence of any such lawmaking here.
By way of background on the Proposition 8 case, prior to the pertinent federal litigation, California had codified a statute withholding “the official designation of marriage” from same-sex couples. Perry v. Brown, 671 F.3d 1052, 1065 (9th Cir. 2012), vacated on other grounds sub nom. Hollingsworth v. Perry, --- U.S. ----, 133 S. Ct. 2652 (2013). The California Supreme Court declared the statute unlawful as a violation of the state constitution. Id.at 1066. Following the court’s decision, a referendum succeeded in adding an amendment—Proposition 8—to the California Constitution defining marriage in man-woman terms, thereby nullifying the judicial ruling. Id. at 1067.
The Ninth Circuit struck down Proposition 8 on federal constitutional
9(...continued) entrusts the States with maintaining, and it simply constitutionalizes a definition that Oklahoma has, since its creation, abided by.
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grounds. Id. at 1096. It began its analysis by noting that “Proposition 8 worked a
singular and limited change to the California Constitution: it stripped same-sex
couples of the right to have their committed relationships recognized by the State
with the designation of ‘marriage,’ which the state constitution had previously
guaranteed them.” Id. at 1076. In view of that effect, the Ninth Circuit posed the
question presented by the appeal thusly:
[D]id the People of California have legitim ate reasons for enacting a constitutional am endment that serves only to take away from sam e-sex couples the right to have their lifelong relationships dignified by the official status of marriage, and to compel the State and its officials and a ll others authorized to perform marriage ceremonies to substitute the label of domestic partnership for their relationships?
Id. at 1079 (internal quotation marks omitted). The Ninth Circuit stressed the
distinction between this removal of an established right and the decision not to
confer a right at all. See id. at 1079–80 (“Withdrawing from a disfavored group
the right to obtain a designation with significant societal consequences is different
from declining to extend that designation in the first place . . . . The action of
changing something suggests a more deliberate purpose than does the inaction of
leaving it as is.”).
With the question framed in this fashion, the Ninth Circuit determined that
Proposition 8 failed constitutional scrutiny under Romer’s animus analysis. See
Perry, 671 F.3d at 1081. In reaching that determination, the Perry court returned
time and time again to the fact that Proposition 8 had eraseda previously-existing
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right to marriage that had been enjoyed by same-sex couples before the ratification of the amendment. See id. (“Like Amendment 2 [in Romer], Proposition 8 has the ‘peculiar property’ of ‘withdraw[ing] from homosexuals, but no others,’ an existing legal right—here, access to the official designation of ‘marriage’—that had been broadly available . . . .” (second alteration in original) (emphases added) (citation omitted) (quoting Romer, 517 U.S. at 632)); id. (“Like Amendment 2, Proposition 8 . . . carves out an exception to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed . . . .” (emphasis added) (internal quotation marks omitted)); id. (“[T]he surgical precision with which [Proposition 8] excises a right belonging to gay and lesbian couples makes it even more suspect. A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more ‘unprecedented’ and ‘unusual’ than a law that imposes broader changes, and raises an even stronger ‘inference that the disadvantage imposed is born of animosity toward the class of persons affected.’” (emphases added) (quoting Romer, 517 U.S. at 633–34)); id. at 1096 (“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause.” (emphasis added)).
There is no need in the context of this case to pass upon the correctness vel non of the Ninth Circuit’s ultimate conclusion—viz., that Proposition 8 was
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unconstitutional under Romer. The essential point to glean from Perry is that it properly recognized the key factor that brought Proposition 8 within the realmof Romer: that Proposition 8 removed from homosexuals a right they had previously enjoyed—marriage—just as Amendment 2 did in Romer with respect to the right to secure civil-rights protections through the political process. SeeRomer, 517 U.S. at 632 (“[T]he amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and . . . invalid form of legislation.”). That is precisely the sort of atypical, hostile state action that exposes a law to animus analysis. And it is precisely the sort of action that is nowhere to be seen in the case before us today.
Quite unlike the California situation, it is patent and undisputed that gay and lesbian couples in Oklahoma never had the right to marry—as such couples never had the right to marry in any State that did not expressly permit them to. See Lewis, 908 A.2d at 208 (“With the exception of Massachusetts, every state’s law, explicitly or implicitly, defines marriage to mean the union of a man and a woman.” (emphases added)). The Oklahoma law effectuated no change at all to the status quo in that regard: the plaintiffs could not marry in Oklahoma before SQ 711, and they could not marry after it. A studious and conscientious reading of Romer seemingly led the Ninth Circuit in Perry to the conclusion that the deprivation of a right that would otherwise exist makes all the difference in deciding whether or not to invoke the strong medicine of the animus doctrine. Cf.
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Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1019 (D. Nev. 2012) (“Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to [a same-sex marriage ban].”). As noted, there was no preexisting recognized right to same-sex marriage in Oklahoma. In other words, there was no predicate right to same-sex marriage to support the Perry deprivation scenario. Thus, my examination of Perry underscores the absence here of the sort of qualitatively abnormal lawmaking that customarily triggers the animus doctrine.
In sum, for the foregoing reasons, it is patent that Romer’s animus analysis cannot support an assault on SQ 711.
B Just like the first factor, the second factor—relating to the historical role of the lawmaking sovereign in regulating the field in question—also signals the inapplicability of the animus doctrine on these facts. As I discussed earlier, insofar as Windsor drew upon animus law, it did so because DOMA veered sharply from the deferential customs that had previously defined the contours of federal policy regarding State marriage regulations. See Part I.B.2, supra. In contrast, when the same-sex marriage provisions of a State are the subject of the challenge, those same federalism concerns found in Windsor militate powerfully in the opposite direction—viz., against an animus determination. To see why this is so, recall that in striking down the federal statute, DOMA, Windsor returned
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repeatedly to the fact that state legislatures are entrusted in our federalist system with drawing the boundaries of domestic-relations law—so long as those boundaries are consistent with the mandates of the federal Constitution. See 133 S. Ct. at 2691 (“State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” (citation omitted) (internal quotation marks omitted)); id. at 2692 (“Against this background DOMA rejects the longestablished precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.”). But, when the subject of the challenge is a State-enacted same-sex marriage ban, those federalism interests “come into play on the other side of the board.” Id.at 2697 (Roberts, C.J., dissenting). Far from showing animus, then, Windsor’s concern with traditional federalist spheres of power is a compelling indication that SQ 711—which is a natural product of the State of Oklahoma’s sphere of regulatory concern—is not inspired by animus.
To summarize, the two factors that courts are duty-bound to consider in assaying for animus both counsel unequivocally here against an animus finding. Simply put, boiling these two factors down to their essence and applying them here, the challenged Oklahoma law does not sweep broadly—it excludes gays and
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lesbians from the single institution of marriage—and it cannot sensibly be depicted as “unusual” where the State was simply exercising its age-old police power to define marriage in the way that it, along with every other State, always had. See Conkle, supra, at 40 (“When the question turns from DOMA to state laws, . . . there are . . . reasons for avoiding animus-based reasoning. In the first place, the state-law context eliminates the federalism concern that was present in Windsor and that the Court directly linked to its animus rationale.”).
Romer and Windsor both involved extraordinarily unusual pieces of lawmaking: Romer because Colorado embedded in its constitution the deprivation of all specially designated civil-rights protections that an entire group might otherwise enjoy, and Windsor because Congress exercised federal power in a state arena for the sheer purpose of excluding a group froman institution that it otherwise had a virtually nonexistent role in defining. In stark contrast, SQ 711 formalized a definition that every State had employed for almost all of American history, and it did so in a province the States had always dominated. Consequently, SQ 711 is not plagued by impermissible animus.
III For the foregoing reasons, I conclude that the district court correctly found that the animus doctrine was inapplicable here. I respectfully concur.
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Nos. 14-5003 & 14-5006, Mary Bishop et al. v. Sally Howe Smith et al. KELLY, Circuit Judge, concurring in part and dissenting in part.
Plaintiffs made an unusual decision in this case.1 They challenged only the constitutional amendment concerning same-gender marriage. Okla. Const. art. II, § 35. They ignored the earlier-enacted statutory provisions which define and only recognize marriage as between persons of opposite gender. Okla. Stat. tit. 43, §§ 3(A), 3.1. They also sued the wrong defendant when it comes to non-recognition of out-of-state samegender marriages; the clerk has no occasion to pass on the validity of out-of-state marriages. The district court noticed both of these problems, yet entered an injunction concerning the constitutional amendment’s definition of marriage. See Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014); Fed. R. Civ. P. 65(d)(1)(C) (requiring specificity in injunctions).
I concur with the court that the Barton couple lacks standing to challenge the nonrecognition provision, but I differ on whether the “law of the case” applies. I dissent from this court’s conclusion that the Plaintiffs have standing even though they did not challenge the underlying statutes. Thus, I would not reach the merits for lack of standing. As I have not persuaded my colleagues, were I to reach the merits of the Bishop couple’s claim, I would dissent from this court’s conclusion that Oklahoma’s definition of marriage is invalid because marriage is a fundamental right and the State’s classification
1 See, e.g., Wolf v. Walker, No. 14-cv-64, 2014 WL 2558444, at *1, *43 (W.D. Wis. June 6, 2014) (challenging marriage amendment and statutes; injunction prohibits enforcement of both); Latta v. Otter, No. 1:13-cv-00482, 2014 WL 1909999, at *3, *29 (D. Idaho May 13, 2014) (same).

cannot survive strict scrutiny. Instead, I would apply rational basis review and uphold Oklahoma’s definition of marriage.
A. Standing–Failure to Challenge the Underlying Statutes Plaintiffs (Bishop couple) failed to challenge Oklahoma’s statutory requirement concerning “Who may marry” which provides: Any unmarried person who is at least eighteen (18) years of age and not otherwise disqualified is capable of contracting and consenting to marriage with a person of the opposite sex. Okla. Stat. tit. 43, § 3(A). The district court was aware of the statutory prohibition and stated that no party addressed the “standing problems,” but was satisfied that enjoining section A of the constitutional provision “redresses a concrete injury suffered by the Bishop couple.” Bishop, 962 F. Supp. 2d at 1259 n.2, 1274 n.19, 1279, 1296. Section A provides: Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. Okla. Const. art. II, § 35(A). Section C adds criminal liability for non-compliance. Id. § 35(C). No matter how important the issue, a federal court must consider standing, including whether the injury is likely to be redressed by a favorable decision. Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). Plaintiffs (Barton couple) failed to challenge Oklahoma’s statutory non-
2

recognition requirement which provides: A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.
Okla. Stat. tit. 43, § 3.1. The constitutional non-recognition provision is the same. Okla. Const. art. II, § 35(B). The district court correctly observed that any injury from nonrecognition comes from both of these provisions. Bishop, 962 F. Supp. 2d at 1266.
Enjoining section A of the constitutional amendment would not solve the Bishop couple’s problem because the statute, Okla. Stat. tit. 43, § 3(A), contemplates “marriage with a person of the opposite sex.” Enjoining section B of the constitutional amendment would not solve the Barton couple’s problem because the statute, Okla. Stat. tit. 43, § 3.1, proscribes the same thing: recognition of same-gender marriages from other states.
According to this court, the statutory provisions are not enforceable independent of the constitutional provisions. But that cannot be right. In Oklahoma, marriage arises out of contract and requires consent by legally competent parties. Okla. Stat. tit. 43, § 1. Okla. Stat. tit. 43, § 3(A) imposes several requirements including being (1) unmarried, (2) at least age 18, and (3) not otherwise disqualified, for the capacity to contract and consent to opposite gender marriage. The constitutional provision defines marriage as one man and one woman and also provides a rule of construction for the constitution and “any other provision of law.” Okla. Const. art. II, § 35(A). Although the non-recognition provisions have identical language, one would not presume that the electorate would engage in a useless act. If anything, the language in the constitutional provisions suggests
3

an intent to augment the statutory provisions, as was done in other states. See Bishop, 962 F. Supp. 2d at 1283-84 (suggesting sentiment to create an independent bar); see also supra n.1. Indeed, that is the argument of the State. Aplt. Br. 33.
The most serious problem with this court’s analysis is that it is derived from cases where provisions conflict; it would be an extravagant reading to conclude that Oklahoma is not empowered to enact a consistent and clarifying constitutional provision without replacing the statutory provision. The rule stated in Fent v. Henry, 257 P.3d 984 (Okla. 2011), that a constitutional amendment “takes the place of all former laws existing upon the subject with which it deals,”
rests upon the principle that when it is apparent from the framework of the revision that whatever is embraced in the new law shall control and whatever is excluded is discarded, decisive evidence exists of an intention to prescribe the latest provisions as the only ones on that subject which shall be obligatory. Id. at 992 n.20. We have no such “decisive evidence” in this case because there is no “framework of revision” when the constitutional amendment in no way contradicts the statutes. Although this court contends that the constitutional amendment is “a complete scheme,” Lankford v. Menefee, 145 P. 375, 376 (Okla. 1914), concerning same-gender marriage, the amendment certainly does not replace the other marriage qualifications contained in Okla. Stat. tit. 43, § 3(A). Nor should it replace the qualification “with a person of the opposite sex.” Of course, the most important canon of construction must be fidelity to the intent of the electorate and its representatives: a canon that is not wellserved by disregarding Oklahoma’s statutes and focusing only on the amendment. This
4

court’s argument that it can envision no scenario where the clerk could enforce the statute but not the amendment fails to appreciate the independent and complementary nature of the provisions.
Invalidating state law provisions as violative of the Constitution is one of the most serious tasks performed by a federal court. Though the Plaintiffs apparently thought otherwise, state statutes do matter. Plaintiffs, who have the burden on standing, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), cannot show redressability.
B. Law of the Case The district court was correct in concluding that the Barton couple lacks standing to challenge the non-recognition constitutional provision. See Bishop, 962 F. Supp. 2d at 1272-73. This court concludes that the law of the case doctrine extended to this challenge, and the court clerk would have been the proper defendant but for changed circumstances, i.e., the affidavit of the court clerk. The law of the case doctrine does not apply. The court clerk’s duties are ministerial, and she has no authority to recognize outof-state marriages. See Okla. Stat. tit. 43, § 5(B)(1) (listing the duties of the clerk). The Barton couple concede that they never asked the court clerk to recognize their California license. The law of the case doctrine is one of discretion, not power, and applies only to issues actually decided. Pepper v. United States, 131 S. Ct. 1229, 1250-51 (2011). The issue actually decided in the prior appeal of this case, Bishop I, was that the Attorney
5

General and the Governor were not proper defendants. Bishop v. Oklahoma, 333 F.
App’x 361, 365 (10th Cir. 2009). We stated:
The Couples claim they desire to be married but are prevented from doing so, or they are married but the marriage is not recognized in Oklahoma. These claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks. See Okla. Stat. tit. 28, § 31; Okla. Stat. tit. 43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an arm of the court whose duties are ministerial, except for those discretionary duties provided by statute. In the performance of [a] clerk’s ministerial functions, the court clerk is subject to the control of the Supreme Court and the supervisory control that it has passed down to the Administrative District Judge in the clerk’s administrative district.” Speight v. Presley, 203 P.3d 173, 177 (Okla. 2008). Because recognition of marriages is within the administration of the judiciary, the executive branch of Oklahoma’s government has no authority to issue a marriage license or record a marriage.
Id. at 365 (alterations in original). We stressed that the problem was “the alleged injury
to the Couples could not be caused by any action of the Oklahoma officials” named. Id.
In noting that Plaintiffs never sought an injunction, we stressed that the Plaintiffs never
identified “any action” that would be taken by those officials, that they “act or refrain
from acting.” Id. at 365 n.6.
Merely because we described the Plaintiffs’ two claims at the beginning of the
passage cannot alter the import of what follows. No reasonable reading results in a
conclusion that the court clerk was a proper defendant for a challenge to the amendment’s
non-recognition provision. The only functions mentioned are issuance of a license,
collection of fees, and recording a license. As stated by the district court: “The Bishop
couple has proven standing because they sought an Oklahoma marriage license from
6

Smith, Smith denied them such license, and Smith did so based upon their status as a same-sex couple. Unlike with Part B, the Bishop couple has clearly demonstrated Smith’s connection to their injury.” Bishop, 962 F. Supp. 2d at 1274. Here, the Barton couple had the burden to show that the court clerk had some authority over the nonrecognition provision and that their injuries are fairly traceable to her. Cressman v. Thompson, 719 F.3d 1139, 1145-46 (10th Cir. 2013); Bronson v. Swensen, 500 F.3d 1099, 1109-10 (10th Cir. 2007).
Nothing in Bishop I remotely suggested that the court clerk was the proper defendant for any challenge. To the contrary, the panel discussed the clerk’s authority and that “recognition of marriages is within the administration of the judiciary.” Bishop, 333 F. App’x at 365. Moreover, the panel in Bishop I relied heavily on Bronson. Bronson stressed that a plaintiff must establish that this defendant caused the injury, and an injunction against this defendant would provide relief. 500 F.3d at 1111-12. Merely because the clerk is considered judicial personnel and has ministerial power over some aspects of marriage cannot change the fact that she has no power to recognize out-of-state marriages. The district court’s analysis is consistent with the care this court has taken in the past with standing. See Cressman, 719 F.3d at 1145-47; Bronson, 500 F.3d at 111112. The standing problem is of the Barton couple’s own making: as this court notes, Plaintiffs could very easily have sought to file a state tax return and then sued the responsible official were they not allowed.
In summary, I would hold that the Barton and Bishop couples lack standing
7

because they failed to challenge Oklahoma’s statutes which must be respected as an independent bar to relief. I agree with the court that the Barton couple lacks standing because they sued the wrong defendant—one with no power to recognize their out-ofstate marriage. As I have not persuaded my colleagues on the definition of marriage claim, I proceed to its merits.
C. Merits I adhere to my views in Kitchen v. Herbert, ___F.3d___, ____ , 2014 WL
2868044, at *33 (10th Cir. June 25, 2014) (Kelly, J., concurring in part and dissenting in part). Same-gender marriage is a public policy choice for the states, and should not be driven by a uniform, judge-made fundamental rights analysis. At a time when vigorous public debate is defining policies concerning sexual orientation, this court has intervened with a view of marriage ostensibly driven by the Constitution. Unfortunately, this approach short-circuits the healthy political processes leading to a rough consensus on matters of sexual autonomy, and marginalizes those of good faith who draw the line short of same-gender marriage.
Essentially, relying upon substantive due process, this court has “deduced [a right] from abstract concepts of personal autonomy” rather than anchoring it to this country’s history and legal traditions concerning marriage. See Washington v. Glucksberg, 521 U.S. 702, 725 (1997). When it comes to deciding whether a state has violated a fundamental right to marriage, the substantive due process analysis must consider the
8

history, legal tradition, and practice of the institution. Id. at 721. Although Plaintiffs remind us history and tradition are not necessarily determinative, Aplee. Br. 65, Oklahoma’s efforts to retain its definition of marriage are benign, and very much unlike race-based restrictions on marriage invalidated in Loving v. Virginia, 388 U.S. 1 (1967).
This court’s fundamental rights analysis turns largely on certain “personal aspects” of marriage including the “emotional support and public commitment” inherent in the historically accepted definition of marriage. Kitchen, 2014 WL 2868044, at *14-15 (relying on Turner v. Safley. 482 U.S. 78, 95-96 (1987)). But analyzing marriage primarily as the public recognition of an emotional union is an ahistorical understanding of marriage. Western marriage has historically included elements besides emotional support and public commitment, including (1) exclusivity, (2) monogamy, (3) non-familial pairs, and (4) gender complementarity, distinct from procreation. Not surprisingly, this historical understanding and practice is the basis for much of state law. The core marital norms throughout Oklahoma’s history have included these elements. See Okla. Stat. tit. 43, § 201 (obligation of fidelity); Okla. Const. art. I, § 2 (prohibiting polygamy); Okla. Stat. tit. 43, § 3(C) (prohibiting incestuous marriage); Okla. Const. art. II, § 35(A) (defining marriage as “the union of one man and one woman”); Okla. Stat. tit. 43, § 3(A) (marriage qualifications for opposite-gender marriage).
Plaintiffs essentially argue that the scope of the right is unlimited. Aplee. Br. 65. In Kitchen, this court accepted a similar argument: that the definition of marriage cannot be determined by who has historically been denied access to the right. See Kitchen, 2014
9

WL 2868044 at *18. But the definition of marriage plays an important role in determining what relationships are recognized in the first place. Polygamous and incestuous relationships have not qualified for marriage because they do not satisfy the elements of monogamy and non-familial pairs, regardless of the individual status of the parties (who have historically been denied access to the right). Thus, the traditional elements of marriage have determined the relationships that have been recognized, not the other way around.
This court shortchanges the analysis of whether the fundamental right to marriage includes same-gender couples by asserting, “[o]ne might just as easily have argued that interracial couples are by definition excluded from the institution of marriage.” Id. at *19; accord Aplee. Br. 66. But, as far as I can tell, no one in Loving v. Virginia, 388 U.S. 1 (1967), could have argued that racial homogeneity was an essential element of marriage. Here, the limitation on marriage is derived from the fundamental elements of marriage, elements not implicated in invalidating marriage restrictions on inmates (Turner v. Safley, 482 U.S. 78 (1987)) or fathers with support obligations (Zablocki v. Redhail, 434 U.S. 374 (1978)).
Simply put, none of the Supreme Court cases suggest a definition of marriage so at odds with historical understanding. The Court has been vigilant in striking down impermissible constraints on the right to marriage, but there is nothing in the earlier cases suggesting that marriage has historically been defined as only an emotional union among willing adults. Removing gender complementarity from the historical definition of
10

marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes,2 the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.
2 Though this court disclaims an opinion, Judge Holmes’ concurrence strongly suggests that the amendment would survive rational basis review. According to the concurrence, Oklahoma’s amendment (1) is limited to a single institution: marriage, (2) is supported by history, legal precedent, and statutory enactments dating back to 1973, (3) does not divest anyone of a pre-existing right, (4) should be viewed as the product of the goodwill of one million Oklahomans, and (5) is consistent with the State’s police power, unlike the federal intrusion into marriage at issue in United States v. Windsor, 133 S. Ct. 2675 (2013).
11

APPENDIX A
27 SCHOLARS OF FEDERALISM AND JUDICIAL RESTRAINT Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer
46 EMPLOYERS AND ORGANIZATIONS REPRESENTING EMPLOYERS Attorneys on the Brief: Meghan Bailey, Susan Baker Manning, John V. McDermott, Lauren Schmidt, Margaret Sheer, Michael Louis Whitlock
57 OTHER FAMILY LAW PROFESSORS Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein
93 INDIVIDUAL FAITH LEADERS IN OKLAHOMA AND UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
9TO5, NATIONAL ASSOCIATION OF WORKING WOMEN Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ACLU OF OKLAHOMA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ACLU OF UTAH Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
AFFIRMATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
ALDRICH, JOHN Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
ALL SOULS UNITARIAN CHURCH OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
ALLEN, DOUGLAS W. Attorneys on the Brief: David C. Walker
ALVARE, HELEN M. Attorneys on the Brief: Richard D. White

APPENDIX A
AMBROSE, DOUGLAS Attorneys on the Brief: Frank D. Mylar
AMERICAN CIVIL LIBERTIES UNION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiessel, John M. Mejia
AMERICAN LEADERSHIP FUND Attorneys on the Brief: Frank D. Mylar
AMERICAN MILITARY PARTNER ASSOCIATION Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man
AMERICAN PSYCHOLOGICAL ASSOCIATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith
AMERICAN SOCIOLOGICAL ASSOCIATION Attorneys on the Brief: Carmine D. Boccuzzi, Mark A. Lightner, Andrew P. Meiser, Andra Troy
AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
ANDERSON, JANNA Attorneys on the Brief: Dani Hartvigsen
ANDERSON, RYAN Attorneys on the Brief: Michael Francis Smith
ANTI-DEFAMATION LEAGUE Attorneys on the Brief: Cheryl R. Drazin, Steven M. Freeman, Seth M. Marnin, Rocky Chiu-feng Tsai
API EQUALITY-LA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE, ASIAN AMERICANS ADVANCING JUSTICE-ASIAN LAW CAUCUS
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
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APPENDIX A
ASIAN AMERICANS ADVANCING JUSTICE, LOS ANGELES Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
ASIAN AMERICANS ADVANCING JUSTICE-CHICAGO Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
AUSTIN LGBT BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BAR ASSOCIATION OF SAN FRANCISCO Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BARDAGLIO, PETER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
BASCH, NORMA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
BECKET FUND FOR RELIGIOUS LIBERTY Attorneys on the Brief: Eric C. Rassbach, Asma Tasnim Uddin
BELTRAN, LYNN Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison
BELZ, HERMAN Attorneys on the Brief: Frank D. Mylar
BEND THE ARC: A JEWISH PARTNERSHIP FOR JUSTICE Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
BENNE, ROBERT D. Attorneys on the Brief: Frank D. Mylar
- 3 -

APPENDIX A
BLAIR, MARIANNE Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein
BOWLER, SHAUN Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
BOYLE, DAVID Attorneys on the Brief: David Boyle
CAIN, BRUCE Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
CALIFORNIA Attorneys on the Brief: Kamala D. Harris, Peter Sacks
CAMP FIRE GREEN COUNTRY, INC. Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
CARBADO, DEVON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
CARLSON, ALLAN C. Attorneys on the Brief: Frank D. Mylar
CARROLL, JASON S. Attorneys on the Brief: Lynn Dennis Wardle
CATHEDRAL OF HOPE OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CATO INSTITUTE Attorneys on the Brief: Ilya Shapiro, Elizabeth B. Wydra
CENTER FOR CONSTITUTIONAL JURISPRUDENCE Attorneys on the Brief: Anthony T. Caso, John C. Eastman, D. John Sauer
CENTRAL CONFERENCE OF AMERICAN RABBIS Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
- 4 -

APPENDIX A
CHRISTENSEN, LAVAR Attorneys on the Brief: Robert Theron Smith
CHURCH OF THE OPEN ARMS OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CHURCH OF THE RESTORATION OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CIMARRON ALLIANCE Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
CLAYTON, CORNELL W. Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
COLAGE Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
COLORADO GAY LESBIAN BISEXUAL TRANSGENDER (GLBT) BAR ASSOCIATION
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
COLORADO WOMEN'S BAR ASSOCIATION Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
CONGREGATION KOLAMI OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
CONNECTICUT Attorneys on the Brief: George Jepsen, Peter Sacks
CONSTITUTIONAL ACCOUNTABILITY CENTER Attorneys on the Brief: Shapiro Ilya, Elizabeth B. Wydra
CONSTITUTIONAL LAW SCHOLARS Attorneys on the Brief: Lori Ann Alvino McGill, Geoffrey R. Stone
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APPENDIX A
COONTZ, STEPHANIE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
COTT, NANCY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
COVENANT NETWORK OF PRESBYTERIANS Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
COX, DUANE MORLEY Attorneys on the Brief: Duane Morley Cox
CURTIS, G.M. Attorneys on the Brief: Frank D. Mylar
DELAWARE Attorneys on the Brief: Joseph R. Biden III, Peter Sacks
DISTRICT OF COLUMBIA Attorneys on the Brief: Irvin B. Nathan, Peter Sacks
DITZ, TOBY L. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
DOLOVICH, SHARON Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
DUBLER, ARIELA R. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
EDWARDS, LAURA F. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
EGGEBEEN, DAVID J. Attorneys on the Brief: David C. Walker
- 6 -

APPENDIX A
EMERGENCY INFANT SERVICES Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
EMERSON, MICHAEL O. Attorneys on the Brief: Frank D. Mylar
EPISCOPAL DIOCESE OF UTAH Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
EPWORTH UNITED METHODIST CHURCH OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
EQUAL RIGHTS ADVOCATES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
EQUALITY UTAH Attorneys on the Brief: Troy L. Booher, Clifford J. Rosky, Noella A. Sudbury, Michael D. Zimmerman
FAMILY EQUALITY COUNCIL Attorneys on the Brief: Christy L. Anderson, Sarah Elizabeth April, Kathryn R. DeBord, Stephen D. Gurr
FELLOWSHIP CONGREGATIONAL UNITED CHURCH OF CHRIST OF TULSA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
FIRST UNITARIAN CHURCH OF OKLAHOMA CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
FLUKE, CHARLES Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison
FREEDOM TO MARRY Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
- 7 -

APPENDIX A
FRIENDS FOR LESBIAN, GAY, BISEXUAL, TRANSGENDER, AND QUEER CONCERNS
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
GAY & LESBIAN ADVOCATES & DEFENDERS Attorneys on the Brief: Felicia H. Ellsworth, Mark C. Fleming, Leah M. Litman, Dina Bernick Mishra, Kenneth Lee Salazar, Alan E. Schoenfeld, Paul Reinherz Wolfson
GEORGE, ROBERT P. Attorneys on the Brief: Michael Francis Smith
GEORGE, TIMOTHY Attorneys on the Brief: Frank D. Mylar
GIRGIS, SHERIF Attorneys on the Brief: Michael Francis Smith
GLMA: HEALTH PROFESSIONALS ADVANCING LGBT EQUALITY Attorneys on the Brief: Nicholas M. O'Donnell
GROSSBERG, MICHAEL Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HADASSAH, THE WOMEN'S ZIONIST ORGANIZATION OF AMERICA, INC. Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
HAIDER-MARKEL, DONALD P. Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
HARTOG, HENDRIK Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HAWKINS, ALAN J. Attorneys on the Brief: Lynn Dennis Wardle
HAYASHI, SCOTT Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
- 8 -

APPENDIX A
HERMAN, ELLEN Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HERO, RODNEY Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
HINDU AMERICAN FOUNDATION Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
HISPANIC NATIONAL BAR ASSOCIATION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
HISTORIANS OF ANTIGAY DISCRIMINATION Attorneys on the Brief: Katie D. Fairchild, Madeline H. Gitomer, Jessica Black Livingston, Katherine A. Nelson, Aaron M. Paul, Erica Knievel Songer, Catherine Emily Stetson, Mary Helen Wimberly
HODES, MARTHA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
HOLLINGER, JOAN HEIFETZ Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC Attorneys on the Brief: David Scott Flugman
HUMAN RIGHTS CAMPAIGN Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
HUNTER, NAN D. Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
ILLINOIS Attorneys on the Brief: Lisa Madigan, Peter Sacks
- 9 -

APPENDIX A
INTERFAITH ALLIANCE FOUNDATION Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
INTERFAITH ALLIANCE OF COLORADO Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
IOWA Attorneys on the Brief: Tom Miller, Peter Sacks
JAMES, HAROLD Attorneys on the Brief: Frank D. Mylar
JAPANESE AMERICAN CITIZENS LEAGUE Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
JEWISH SOCIAL POLICY ACTION NETWORK Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
JOHNSON, BYRON R. Attorneys on the Brief: David C. Walker
JOSLIN, COURTNEY Attorneys on the Brief: Rita F. Lin, Laura W. Weissbein
JUSTICE, STEVEN Attorneys on the Brief: Frank D. Mylar
KERBER, LINDA K. Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
KESHET Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
KESSLER-HARRIS, ALICE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
- 10 -

APPENDIX A
KOONS, ROBERT C. Attorneys on the Brief: Frank D. Mylar
KURTZ, STANLEY Attorneys on the Brief: Frank D. Mylar
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Attorneys on the Brief: Jennifer C. Pizer, Susan Sommer, Camilla Taylor, Kenneth D. Upton
LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
LEE, TAEKU Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
LEGAL MOMENTUM Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LEGAL VOICE Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LEVI, MARGARET Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
LEWIS, GREGORY B. Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
LGBT & ALLIED LAWYERS OF UTAH BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
LIBERTY COUNSEL, INC. Attorneys on the Brief: Anita Staver, Mathew D. Staver
LITTLETON, CHRISTINE A. Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
LOVE HONOR CHERISH Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
- 11 -

APPENDIX A
LUTHERAN CHURCH-MISSOURI SYNOD Attorneys on the Brief: Anthony T. Caso, Alexander Dushku, Richard Shawn Gunnarson, Justin W. Starr
MAINE Attorneys on the Brief: Janet T. Mills, Peter Sacks
MARRIAGE EQUALITY USA Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
MARTINEZ-EBERS, VALERIE Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
MARYLAND Attorneys on the Brief: Douglas F. Gansler, Peter Sacks
MASSACHUSETTS Attorneys on the Brief: Martha Coakley, Michelle L. Leung, Jonathan B. Miller, Genevieve C. Nadeau, Peter Sacks
MAY, ELAINE TYLER Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MAYERI, SERENA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MAYFLOWER CONGREGATIONAL UNITED CHURCH OF CHRIST OF OKLAHOMA CITY
Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
MCCANN, MICHAEL Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
MCDERMOTT, GERALD R. Attorneys on the Brief: Frank D. Mylar
MCHUGH, PAUL Attorneys on the Brief: Gerard Vincent Bradley, Kevin Trent Snider
- 12 -

APPENDIX A
MCIFF, KAY Attorneys on the Brief: Robert Theron Smith
METHODIST FEDERATION FOR SOCIAL ACTION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
METROPOLITAN COMMUNITY CHURCHES Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
MINNESOTA LAVENDER BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
MINTZ, STEVE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
MOORE, RUSSELL Attorneys on the Brief: Frank D. Mylar
MORE LIGHT PRESBYTERIANS Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
MORMONS FOR EQUALITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
MT. TABOR LUTHERAN CHURCH OF SALT LAKE CITY Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
NAACP SALT LAKE BRANCH & NAACP TRI STATE CONFERENCE OF IDAHO, NEVADA AND UTAH
Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John M. Mejia
NATIONAL ACTION NETWORK Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
- 13 -

APPENDIX A
NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY
Attorneys on the Brief: Stephen M. Crampton, Mary Elizabeth McAlister
NATIONAL ASSOCIATION OF EVANGELICALS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
NATIONAL ASSOCIATION OF WOMEN LAWYERS Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NATIONAL COUNCIL OF JEWISH WOMEN Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
NATIONAL COUNCIL OF LA RAZA Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL GAY AND LESBIAN TASK FORCE Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL ORGANIZATION FOR WOMEN FOUNDATION Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NATIONAL WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
NEHIRIM Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
- 14 -

APPENDIX A
NELSON, MERRILL Attorneys on the Brief: Robert Theron Smith
NERO, NICHOLAS Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison
NEW HAMPSHIRE Attorneys on the Brief: Joseph A. Foster, Peter Sacks
NEW MEXICO Attorneys on the Brief: Gary K. King, Peter Sacks
NEW MEXICO LESBIAN AND GAY LAWYERS ASSOCIATION Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
NEW YORK Attorneys on the Brief: Peter Sacks, Eric T. Schneiderman
O'GRADY, CLAUDIA Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison
OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
OKLAHOMANS FOR EQUALITY Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
OREGON Attorneys on the Brief: Ellen F. Rosenblum, Peter Sacks
OUTSERVE-SLDN Attorneys on the Brief: Abbe David Lowell, Christopher Dowden Man
PAKALUK, CATHERINE R. Attorneys on the Brief: David C. Walker
PAQUETTE, ROBERT Attorneys on the Brief: Frank D. Mylar
- 15 -

APPENDIX A
PARENTS, FAMILIES AND FRIENDS OF LESBIANS AND GAYS, INC. Attorneys on the Brief: Andrew John Davis, Jiyun Cameron Lee
PEOPLE FOR THE AMERICAN WAY FOUNDATION Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
PLECK, ELIZABETH Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
POLIKOFF, NANCY Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
PRESBYTERIAN WELCOME Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
PRICE, JOSEPH Attorneys on the Brief: David C. Walker
PUBLIC ADVOCATES, INC. Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
QLAW - THE GLBT BAR ASSOCIATION OF WASHINGTON Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
RAHE, PAUL A. Attorneys on the Brief: Frank D. Mylar
RECONCILING MINISTRIES NETWORK Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONCILINGWORKS: LUTHERANS FOR FULL PARTICIPATION Attorneys on the Brief: Samual P Bickett, Kurt M. Denk, Rebecca Harlow, Idin Kashefipour, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
- 16 -

APPENDIX A
RECONSTRUCTIONIST RABBINICAL ASSOCIATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
RECONSTRUCTIONIST RABBINICAL COLLEGE Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
REGNERUS, MARK D. Attorneys on the Brief: David C. Walker
RELIGIOUS INSTITUTE, INC. Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman, Rocky Chiu-feng Tsai
REYNOLDS, MICHAEL A. Attorneys on the Brief: Frank D. Mylar
RHODE ISLAND Attorneys on the Brief: Peter F. Kilmartin, Peter Sacks
ROVIG, STANFORD Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison
SCHULTZ, VICKI Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SEARS, BRAD Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SEGURA, GARY Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
SHAMMAS, CAROLE Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
SHANLEY, MARY Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
- 17 -

APPENDIX A
SHERRILL, KENNETH Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
SHIFFRIN, SEANA Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
SIKH AMERICAN LEGAL DEFENSE AND EDUCATION FUND Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SMITH, CHARLES ANTHONY Attorneys on the Brief: Mark William Mosier, Jennifer Schwartz
SNOW, LOWRY Attorneys on the Brief: Robert Theron Smith
SOCIETY FOR HUMANISTIC JUDAISM Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SOUTH ASIAN AMERICANS LEADING TOGETHER Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
SOUTHWEST WOMEN'S LAW CENTER Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
ST. STEPHEN'S UNITED METHODIST CHURCH OF NORMAN, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
STANLEY, AMY DRU Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
STATE OF ALABAMA Attorneys on the Brief: Thomas Molnar Fisher, Luther Strange
STATE OF ALASKA Attorneys on the Brief: Thomas Molnar Fisher, Michael C. Geraghty
- 18 -

APPENDIX A
STATE OF ARIZONA Attorneys on the Brief: Thomas Molnar Fisher, Thomas C. Horne
STATE OF COLORADO Attorneys on the Brief: Thomas Molnar Fisher, John Suthers
STATE OF IDAHO Attorneys on the Brief: Thomas Molnar Fisher, Lawrence G. Wasden
STATE OF INDIANA Attorneys on the Brief: Thomas Molnar Fisher, Gregory F. Zoeller
STATE OF KANSAS Attorneys on the Brief: Jeffrey A. Chanay, Bryan Charles Clark
STATE OF MICHIGAN Attorneys on the Brief: Aaron Lindstrom, Bernard Eric Restuccia, Bill Schuette
STATE OF MONTANA Attorneys on the Brief: Thomas Molnar Fisher, Timothy C. Fox
STATE OF NEBRASKA Attorneys on the Brief: Jon Bruning, Thomas Molnar Fisher
STATE OF OKLAHOMA Attorneys on the Brief: Thomas Molnar Fisher, E. Scott Pruitt
STATE OF SOUTH CAROLINA Attorneys on the Brief: Thomas Molnar Fisher, Alan Wilson
STONEWALL BAR ASSOCIATION OF GEORGIA, INC. Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STONEWALL BAR ASSOCIATION OF MICHIGAN Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STONEWALL LAW ASSOCIATION OF GREATER HOUSTON Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
STRAUB, D'ARCY WINSTON Attorneys on the Brief: D'Arcy Winston Straub
- 19 -

APPENDIX A
THE CENTER FOR URBAN RENEWAL AND EDUCATION Attorneys on the Brief: Stephen Kent Ehat
THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
THE COALITION OF AFRICAN-AMERICAN PASTORS USA Attorneys on the Brief: Stephen Kent Ehat
THE EQUALITY NETWORK Attorneys on the Brief: Joshua A. Block, Leah Farrell, Brady R. Henderson, Ryan D. Kiesel, John Mejia
THE ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION
Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
THE FREDERICK DOUGLASS FOUNDATION, INC. Attorneys on the Brief: Stephen Kent Ehat
THE OUTLAWS Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
THE UTAH PSYCHOLOGICAL ASSOCIATION Attorneys on the Brief: Nathalie F.P. Gilfoyle, Paul March Smith
TRINITY CHRISTIAN CHURCH OF EDMOND, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
T'RUAH: THE RABBINIC CALL FOR HUMAN RIGHTS Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai
UNION FOR REFORM JUDAISM Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITARIAN UNIVERSALIST ASSOCIATION Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
- 20 -

APPENDIX A
UNITED CHURCH OF CHRIST Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED CHURCH OF NORMAN, OKLAHOMA Attorneys on the Brief: Kurt M. Denk, Jason M. Moff, Norman C. Simon, Jeffrey S. Trachtman
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS Attorneys on the Brief: Alexander Dushku, Richard Shawn Gunnarson, Anthony R. Picarello, Justin W. Starr
UNIVERSITY OF OKLAHOMA COLLEGE OF LAW LEGAL GROUP FOR BUILDING TOLERANCE AND ACCEPTANCE
Attorneys on the Brief: Nicole Susan Phillis, Jerome Cary Roth
UPHAM, DAVID R. Attorneys on the Brief: David Robert Upham
UTAH PRIDE CENTER Attorneys on the Brief: Clifford J. Rosky, Noella A. Sudbury, Michael D. Zimmerman
VERMONT Attorneys on the Brief: Peter Sacks, William H. Sorrell
WASHINGTON Attorneys on the Brief: Robert W. Ferguson, Peter Sacks
WELKE, BARBARA Attorneys on the Brief: Orly Degani, Daniel McNeel Lane, Matthew E. Pepping
WESTERN REPUBLICANS Attorneys on the Brief: Stacy A. Carpenter, Bennett L. Cohen, Jon R. Dedon, Sean Robert Gallagher
WILKEN, ROBERT LOUIS Attorneys on the Brief: Frank D. Mylar
WINKLER, ADAM Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin
- 21 -

APPENDIX A WOLFE, CHRISTOPHER
Attorneys on the Brief: Frank D. Mylar WOMEN OF REFORM JUDAISM
Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai WOMEN'S LAW PROJECT Attorneys on the Brief: Marcia D. Greenberger, Cortelyou Kenney, Emily Martin WOMEN'S LEAGUE FOR CONSERVATIVE JUDAISM Attorneys on the Brief: Samual P Bickett, Rebecca Harlow, Idin Kashefipour, Rocky Chiu-feng Tsai WOOD, PETER W. Attorneys on the Brief: Frank D. Mylar WORTHAM, DOUGLAS Attorneys on the Brief: Jacob Harris Hupart, Jaren Janghorbani, Robert A. Kaplan, Joshua Kaye, Alan B. Morrison
- 22 -

 
 Case 4:04-cv-00848-TCK-TLW Document 293 Filed in USDC ND/OK on 10/06/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

MARY BISHOP, SHARON BALDWIN, SUSAN BARTON, and GAY PHILLIPS,
Plaintiffs, )
v.
UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States of America; and SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma,
Defendants,
BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES,
Intervenor-Defendant.

) ) ) ) )

)

)

No. 04-CV-848-TCK-TLW

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

ORDER

On July 18, 2014, the Tenth Circuit Court of Appeals affirm ed this Court’s holding that

article 2, section 35(A) of the Oklahoma Constitution violates the United States Constitution and

may not be enforced to deprive sam e-sex couples of an Oklahom a marriage license. Bishop v.

Smith, 760 F.3d 1070, 1096 (10th Cir. 2014). The Tent h Circuit Court of Appeals staye d i ts

mandate pending the disposition of any petition for writ of certiorari filed with the United States

Case 4:04-cv-00848-TCK-TLW Document 293 Filed in USDC ND/OK on 10/06/14 Page 2 of 2
Supreme Court. Id. On October 6, 2014, the United StatesSupreme Court denied the petition, and the Tenth Circuit lifted the stay of its mandate.1
The stay entered by this Court on January 14, 2014 (Doc. 272) is hereby lifted. Defendant Sally Howe Smith, acting in her official capacity as the Court Clerk for Tulsa County, Oklahoma, is permanently enjoined from enforcing article 2, section 35(A) of the Oklahoma Constitution to deny Plaintiffs Mary Bishop and Sharon Baldwin, or any other same-sex couple, of an Oklahoma marriage license solely based on their status as a same-sex couple.2
SO ORDERED this 6th day of October, 2014.
1 Immediately following the Supreme Court’s denial of the petition, the Tenth Circuit issued an order lifting the stay and indicating that “the mandate shall issue forthwith.” (Doc. 291.) In the interim, the Tenth Circuit directed that a copy of the order lifting the stay “shall stand as the mandate.” (Id.)
2 The Tenth Circuit held that any “statutory prohibitions [of same-sex marriage] are subsumed in the challenged constitutional provision.” See Bishop, 760 F.3d at 1074. Therefore, Defendant Smith may not rely on any statutory prohibition to deny a same-sex couple a marriage license.
2

 
 USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 1 of 26
CLOSED,DISCREF
U.S. District Court U.S. District Court for the Northern District of Oklahoma (Tulsa)
CIVIL DOCKET FOR CASE #: 4:04−cv−00848−TCK−tlw

Bishop, et al v. Oklahoma, State of, et al Assigned to: Judge Terence Kern Referred to: Magistrate Judge T Lane Wilson Demand: $0 Case in other court: 10th Circuit, 06−05188
10th Circuit, 06−05188 (# 95)
Supreme Ct, 14−00136
10th Circuit, 14−05003 (#274)
10th Circuit, 14−05006 (#281) Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 11/03/2004 Date Terminated: 01/14/2014 Jury Demand: Both Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Mary Bishop individual

represented by Don G Holladay Holladay & Chilton PLLC 204 N ROBINSON STE 1550 OKLAHOMA CITY, OK 73102 405−236−2343 Fax: 405−236−2349 Email: dholladay@holladaychilton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Warner Holladay & Chilton PLLC 204 N ROBINSON STE 1550 OKLAHOMA CITY, OK 73102 405−236−2343 Fax: 405−236−2349 Email: jwarner@holladaychilton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Lea Eakens Jennings Teague PC 204 N ROBINSON STE 1000 OKLAHOMA CITY, OK 73102−6801 405−609−6000 Fax: 405−609−6501 Email: lle@jctokc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

N Kay Bridger−Riley Bridger−Riley & Associates PC 3515 E 74TH ST TULSA, OK 74136 918−794−9690 Fax: 918−794−9691 Email: kay@bridger−riley.com TERMINATED: 08/14/2009 LEAD ATTORNEY

Roy Duane Tucker 229 W. Okmulgee P.O. Box 1927 Muskogee, OK 74402 918−684−6276

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 2 of 26

Fax: 918−681−7909 Email: rtucker@muskogeeonline.org TERMINATED: 01/07/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P Studebaker Studebaker & Worley PLLC 5801 E 41ST STE 300 TULSA, OK 74135 918−770−4890 Fax: 918−770−4892 Email: tim@studebakerworleylaw.net LEAD ATTORNEY

Phillip Craig Bailey P Craig Bailey 259 WAVERLY DR TULSA, OK 74104−2129 918−595−8818 Fax: 918−595−8818 Email: craigbailey1@cox.net ATTORNEY TO BE NOTICED

Plaintiff
Sharon Baldwin individual

represented by Don G Holladay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James E Warner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Lea Eakens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

N Kay Bridger−Riley (See above for address) TERMINATED: 08/14/2009 LEAD ATTORNEY

Roy Duane Tucker (See above for address) TERMINATED: 01/07/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P Studebaker (See above for address) LEAD ATTORNEY

Phillip Craig Bailey (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Susan G Barton individual

represented by Don G Holladay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 3 of 26

Plaintiff
Gay E Phillips individual

James E Warner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Lea Eakens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
N Kay Bridger−Riley (See above for address) TERMINATED: 08/14/2009 LEAD ATTORNEY
Roy Duane Tucker (See above for address) TERMINATED: 01/07/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip Craig Bailey (See above for address) ATTORNEY TO BE NOTICED
represented by Don G Holladay (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James E Warner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Lea Eakens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
N Kay Bridger−Riley (See above for address) TERMINATED: 08/14/2009 LEAD ATTORNEY
Roy Duane Tucker (See above for address) TERMINATED: 01/07/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Phillip Craig Bailey (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Oklahoma, State of ex rel., Sally Howe−Smith in her official capacity as Court Clerk for Tulsa

represented by Angela K Martin Office of the Attorney General (OKC−313) LITIGATION SECTION

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 4 of 26

County, State of Oklahoma TERMINATED: 11/24/2009 − Sally Howe−Smith TERMINATED: 11/24/2009

313 NE 21ST ST OKLAHOMA CITY, OK 73105 405−521−4274 Fax: 405−528−1867 Email: angela_martin@oag.state.ok.us TERMINATED: 01/05/2006 LEAD ATTORNEY

Martha Ruth Kulmacz Office of the Attorney General (OKC−313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405−521−3921 Fax: 405−522−4536 Email: martha.kulmacz@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra D Rinehart Office of the Attorney General (OKC−313) LITIGATION SECTION 313 NE 21ST ST OKLAHOMA CITY, OK 73105 405−521−3921 Fax: 405−522−0669 Email: fhc.docket@oag.ok.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stefan K Doughty Doughty Law Firm PLLC PO BOX 720806 OKLAHOMA CITY, OK 73172 405−831−8284 Email: skdoughty@cox.net TERMINATED: 09/13/2005 LEAD ATTORNEY

Defendant
United States of America ex rel., Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America − Eric H Holder, Jr

represented by Judson Owen Littleton US Department of Justice (Civil−Box 883) Civil Div Rm 7210 PO BOX 883 WASHINGTON, DC 20044 202−305−8714 Fax: 202−616−8202 Email: judson.o.littleton@usdoj.gov LEAD ATTORNEY

W Scott Simpson US Department of Justice (Fed Prog−Box 883) Federal Programs Branch−Civil Division P O BOX 883 WASHINGTON, DC 20044 202−514−3495 Fax: 202−616−8470 Email: scott.simpson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

represented by

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 5 of 26

Sally Howe Smith Tulsa County Court Clerk

Austin R Nimocks Alliance Defense Fund (Washington DC) 801 G STREET NW STE 509 WASHINGTON, DC 20001 202−393−8690 Fax: 480−444−0028 Email: animocks@telladf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian W Raum Alliance Defending Freedom (Arizona) 15100 N 90TH ST SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: braum@telladf.org LEAD ATTORNEY

Dale Michael Schowengerdt Alliance Defense Fund 15192 ROSEWOOD LEAWOOD, KS 66224 913−685−8000 Fax: 480−444−0028 Email: dschowengerdt@telladf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Thomas Iski 200 S LYNN RIGGS BLVD CLAREMORE, OK 74017 918−923−4960 Fax: 918−923−4545 Email: IskiD2@dac.state.ok.us TERMINATED: 08/24/2012 LEAD ATTORNEY

James A Campbell Alliance Defending Freedom (Arizona) 15100 N 90TH ST SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: jcampbell@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

John David Luton District Attorney's Office (Tulsa−900) 500 S DENVER AVE STE 900 TULSA, OK 74103−3832 918−596−4814 Fax: 918−596−4804 Email: jluton@tulsacounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kimberly Majors Hall District Attorney's Office (Tulsa−800) 500 S DENVER STE 800 TULSA, OK 74103 918−596−4845 Fax: 918−596−4804 Email: khall@tulsacounty.org

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 6 of 26
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea Marie Wyrick District Attorney's Office (Tulsa−800) 500 S DENVER STE 800 TULSA, OK 74103 918−596−4814 Fax: 918−596−4804 Email: awyrick@tulsacounty.org TERMINATED: 10/02/2012
Byron J Babione Alliance Defending Freedom (Arizona) 15100 N 90TH ST SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: bbabione@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED
Holly L Carmichael Alliance Defending Freedom (Arizona) 15100 N 90TH ST SCOTTSDALE, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: hcarmichael@telladf.org ATTORNEY TO BE NOTICED

V. Intervenor Defendant Bipartisan Legal Advisory Group, The
Intervenor Defendant Thad Balkman

represented by H Christopher Bartolomucci Bancroft PLLC 1919 M ST NW STE 470 WASHINGTON, DC 20036−2806 202−234−0090 Fax: 202−234−2806 Email: cbartolomucci@bancroftpllc.com TERMINATED: 07/29/2013 LEAD ATTORNEY
Kerry W Kircher US House of Representatives Office of General Counsel 219 CANNON HOUSE OFFICE BLDG WASHINGTON, DC 20515−0001 202−225−9700 Fax: 202−226−1360 Email: kerry.kircher@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brently C Olsson Cheek Law Firm PLLC 311 N HARVEY AVE OKLAHOMA CITY, OK 73102 405−272−0621 Fax: 405−232−1707 Email: bolsson@cheeklaw.com LEAD ATTORNEY

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 7 of 26

Intervenor Defendant
Oklahoman's for Protection of Marriage, Inc.

Kevin Hayden Theriot Alliance Defense Fund 15192 ROSEWOOD LEAWOOD, KS 66224 913−685−8000 Fax: 913−685−8001 Email: ktheriot@telladf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brently C Olsson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin Hayden Theriot (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/02/2004 11/03/2004 11/03/2004
11/03/2004
11/29/2004 12/02/2004 12/08/2004 12/15/2004 12/15/2004 12/15/2004 12/21/2004
12/27/2004

# Docket Text
312 ***Images of Unnumbered Items from Paper File (pll, Dpty Clk) (Entered: 06/16/2017)
1 COMPLAINT (Summons(es) issued) (Consent form sent) (fee status: pd ) (lml, Dpty Clk) (Entered: 11/04/2004)
FILING FEE PAID IN FULL by plaintiff Mary Bishop, plaintiff Sharon Baldwin, plaintiff Susan G Barton, plaintiff Gay E Phillips on 11/3/04 in the amount of $ 150.00 receipt # 113786 (fee status: pd ) (lml, Dpty Clk) (Entered: 11/04/2004)
SUMMONS issued as to defendant Oklahoma, State of (Drew Edmondson, Brad Henry), defendant USA (John Ashcroft, George Bush) (lml, Dpty Clk) (Entered: 11/04/2004)
2 MOTION by defendant Oklahoma, State of to extend time to answer cmplt until 12/14/04 (o/j) (sac, Dpty Clk) (Entered: 11/30/2004)
3 ORDER by Judge Terence Kern granting motion to extend time to answer cmplt until 12/14/04 [2−1] (cc: all counsel) (sac, Dpty Clk) (Entered: 12/03/2004)
4 MOTION by Thad Balkman & Oklahoman's for Protection of Marriage Inc. to intervene (sac, Dpty Clk) (Entered: 12/09/2004)
5 ORDER by Judge Terence Kern directing parties to submit a Joint Status Report on or before 1/14/05 (cc: all counsel) (sac, Dpty Clk) (Entered: 12/16/2004)
6 MOTION by defendant Oklahoma, State of to extend time to answer cmplnt , and/or alternative to file out of time (o/j) (crp, Dpty Clk) (Entered: 12/16/2004)
7 MOTION AND BRIEF IN SUPPORT by defendant Oklahoma, State of to dismiss (crp, Dpty Clk) (Entered: 12/16/2004)
8 UNOPPOSED MOTION by plaintiff Mary Bishop, plaintiff Sharon Baldwin, plaintiff Susan G Barton, plaintiff Gay E Phillips, defendant Oklahoma, State of to change ddln to resp re Balkman & Oklahoman's for Protection's mtn/intv (o/j) (sac, Dpty Clk) (Entered: 12/22/2004)
9 ORDER by Judge Terence Kern granting motion to change ddln to resp re Balkman & Oklahoman's for Protection's mtn/intv until 1/13/05 [8−1] [4−1] (cc: all counsel) (sac, Dpty Clk) (Entered: 12/27/2004)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 8 of 26

12/27/2004 01/04/2005 01/07/2005
01/07/2005 01/07/2005 01/07/2005 01/10/2005 01/13/2005 01/13/2005
01/13/2005 01/14/2005 01/18/2005 01/18/2005 01/24/2005 01/24/2005 01/25/2005 01/26/2005
01/28/2005 01/31/2005

10 ATTORNEY APPEARANCE for defendant USA by W Scott Simpson (sac, Dpty Clk) (Entered: 12/27/2004)
11 MOTION to Withdraw Attorney(s) Roy D Tucker by Mary Bishop, Sharon Baldwin, Susan G Barton (s−sac, Dpty Clk) (Entered: 01/05/2005)
12 ORDER by Judge Terence Kern , directing Defendant to file its Answer or otherwise respond by December 19,2004, granting 6 Motion for Extension of Time to Answer, granting 6 Motion to File Document Out of Time (JLW, Chambers) (Entered: 01/07/2005)
13 ORDER by Judge Terence Kern, granting 11 Motion to Withdraw Attorney(s), terminating attorney Roy D Tucker (JLW, Chambers) (Entered: 01/07/2005)
14 MOTION for Leave to Exceed Page Limitation by United States of America (lml, Dpty Clk) (Entered: 01/11/2005)
15 MOTION to Dismiss by United States of America (lml, Dpty Clk) (Entered: 01/11/2005)
16 MOTION for Extension of Time to Respond to Motion (Re: 7 Motion to Dismiss) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (lml, Dpty Clk) (Entered: 01/12/2005)
17 ORDER by Judge Terence Kern, granting 14 Motion for Leave to Exceed Page Limitation (JLW, Chambers) (Entered: 01/13/2005)
18 ORDER by Judge Terence Kern, granting 16 Motion for Extension of Time to Respond to Motion, setting/resetting deadline(s)/hearing(s): Plaintiff's response due February 7, 2005. (Re: 16 MOTION for Extension of Time to Respond to Motion) (JLW, Chambers) (Entered: 01/13/2005)
19 Second MOTION for Extension of Time to Respond to Motion (Re: 4 Motion to Intervene) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (lml, Dpty Clk) (Entered: 01/17/2005)
20 JOINT STATUS REPORT by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips, Oklahoma, State of, United States of America (lmc, Dpty Clk) (Entered: 01/17/2005)
21 BRIEF in Support of Motion (Re: 15 MOTION to Dismiss) by United States of America ; (lml, Dpty Clk) (Entered: 01/19/2005)
22 EXHIBIT(S) in Support (Re: 15 MOTION to Dismiss) by United States of America (lml, Dpty Clk) (Entered: 01/19/2005)
24 NOTICE of Recent Decision by United States of America (lml, Dpty Clk) (Entered: 01/25/2005)
25 MOTION for Extension of Time to Respond to Motion (Re: 15 MOTION to Dismiss) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (lml, Dpty Clk) (Entered: 01/25/2005)
23 MINUTE ORDER by Judge Terence Kern case referred to Magistrate Judge Sam Joyner for status/scheduling conference (cds, Dpty Clk) (Entered: 01/25/2005)
26 ORDER by Judge Terence Kern, granting 19 Motion for Extension of Time to Respond to Motion, setting/resetting deadline(s)/hearing(s): Plaintiffs' response (Re: 4 Motion to Intervene, 19 Second MOTION for Extension of Time to Respond to Motion) (JLW, Chambers) (Entered: 01/26/2005)
27 MINUTE ORDER by Magistrate Judge Sam A Joyner, setting/resetting deadline(s)/hearing(s): Scheduling Conference 2/24/05 9:30 AM (lmc, Dpty Clk) (Entered: 01/28/2005)
28 ORDER by Judge Terence Kern, granting 25 Motion for Extension of Time to Respond to Motion, setting/resetting deadline(s)/hearing(s): (Re: 15 MOTION to Dismiss) (JLW, Chambers) (Entered: 01/31/2005)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 9 of 26

01/31/2005 01/31/2005 02/02/2005 02/02/2005 02/02/2005 02/04/2005 02/04/2005 02/07/2005 02/07/2005 02/07/2005
02/07/2005 02/08/2005
02/10/2005 02/10/2005 02/14/2005
02/14/2005 02/14/2005 02/18/2005

29 ATTORNEY APPEARANCE by Laura Lea Eakens on behalf of Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (lml, Dpty Clk) (Entered: 02/01/2005)
30 MOTION for Leave to Exceed Page Limitation by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (lml, Dpty Clk) (Entered: 02/01/2005)
31 Consent MOTION for Leave to Appear by Telephone by United States of America (With attachments) (Simpson, W) (Entered: 02/02/2005)
32 ORDER by Magistrate Judge Sam A Joyner, granting 31 Motion for Leave to Appear (lmc, Dpty Clk) (Entered: 02/02/2005)
33 MOTION to Strike Document(s) (Re: 22 Exhibit(s) in Support of Document(s)) by Mary Bishop (Bridger−Riley, N) Modified on 2/3/2005 to indicate all filers document was filed on behalf of (s−sac, Dpty Clk). (Entered: 02/02/2005)
34 ORDER by Judge Terence Kern, granting 30 Motion for Leave to Exceed Page Limitation (JLW, Chambers) (Entered: 02/04/2005)
35 RESPONSE in Opposition to Motion (Re: 15 MOTION to Dismiss) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (Bridger−Riley, N) (Entered: 02/04/2005)
36 MOTION for Leave to Exceed Page Limitation by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bridger−Riley, N) (Entered: 02/07/2005)
37 RESPONSE in Opposition to Motion (Re: 4 Motion to Intervene) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (Bridger−Riley, N) (Entered: 02/07/2005)
38 MOTION for Attorney Kevin H. Theriot to be Admitted Pro Hac Vice by Thad Honorable Thad Balkman, Oklahoman's for Protection of Marriage, Inc. (lml, Dpty Clk) Modified on 2/9/2005 to replace PDF w/complete PDF (s−crp, Dpty Clk). (Entered: 02/08/2005)
NOTICE of Docket Entry Modification to replace PDF w/complete PDF (Re: 38 MOTION for Attorney Kevin H. Theriot to be Admitted Pro Hac Vice) (s−crp, Dpty Clk) (Entered: 02/09/2005)
39 MINUTE ORDER by Court Clerk, : Pursuant to Local Rule 83.3(J) and this Court's Order in M−128−G (April 20, 1998), a $75.00 admission fee shall be paid by each attorney for each case such attorney seeks admission for limited practice. Upon receipt of the admission fee, the pro hac vice motion will be forwarded to the assigned Judge for consideration. If the fee is not received within 15 days of the date of this order, the motion may be denied for failure to pay the required fee. Pro hac vice fees are due in this case for attorney(s) Kevin H. Theriot. (Re: 38 MOTION for Attorney Kevin H. Theriot to be Admitted Pro Hac Vice) (lml, Dpty Clk) (Entered: 02/08/2005)
40 ORDER by Judge Terence Kern, granting 36 Motion for Leave to Exceed Page Limitation (JLW, Chambers) (Entered: 02/10/2005)
41 RESPONSE in Opposition to Motion (Re: 7 Motion to Dismiss) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (Bridger−Riley, N) (Entered: 02/10/2005)
42 Unopposed MOTION for Leave to File Reply Brief in Support of Motion to Dismiss (TITLED: Motion to Exceed Page Limitation) by United States of America by United States of America (With attachments) (Simpson, W) Modified on 2/15/2005 to show correct title of document (s−crp, Dpty Clk). (Entered: 02/14/2005)
43 RESPONSE in Opposition to Motion (Re: 33 MOTION to Strike Document(s)) by United States of America ; (Simpson, W) (Entered: 02/14/2005)
NOTICE of Docket Entry Modification to show correct title of document (Re: 42 Unopposed MOTION for Leave to File Reply Brief in Support of Motion to Dismiss by United States of America) (s−crp, Dpty Clk) (Entered: 02/15/2005)
44 REPLY to Response to Motion (Re: 4 Motion to Intervene) by Thad Honorable Thad Balkman, Oklahoman's for Protection of Marriage, Inc. ; (Theriot, Kevin) (Entered: 02/18/2005)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 10 of 26

02/18/2005
02/22/2005 02/22/2005 02/23/2005 02/25/2005 03/25/2005 04/08/2005 04/15/2005 04/28/2005 04/28/2005 04/28/2005
06/14/2005 06/14/2005 06/15/2005
06/17/2005 07/26/2005 07/27/2005
07/27/2005

46 PRO HAC VICE FEES Paid for attorney(s) Kevin Theriot in the amount of $75.00 (Re: 38 MOTION for Attorney Kevin H. Theriot to be Admitted Pro Hac Vice) by Thad Balkman, Oklahoman's for Protection of Marriage, Inc. (lml, Dpty Clk) (Entered: 02/22/2005)
45 ORDER by Judge Terence Kern, granting 42 Motion for Leave to File Document(s) (JLW, Chambers) (Entered: 02/22/2005)
47 REPLY to Response to Motion (Re: 15 MOTION to Dismiss) by United States of America ; (Simpson, W) (Entered: 02/22/2005)
48 MINUTE ORDER by Magistrate Judge Sam A Joyner Hearing of 2/24/2005 at 9:30 stricken, reset 3/31/05 at 1:30 p.m. (SAJ2, Chambers) (Entered: 02/23/2005)
49 ORDER by Judge Terence Kern, granting 38 Motion for Admission Pro Hac Vice, adding attorney Kevin Hayden Theriot for Thad Balkman and Oklahoman's for Protection of Marriage, Inc. (JLW, Chambers) (Entered: 02/25/2005)
50 MINUTE ORDER by Magistrate Judge Sam A Joyner, setting/resetting deadline(s)/hearing(s): Scheduling Conference set for 4/28/05 1:30 p.m., Courtroom #2, 3rd floor (lmc, Dpty Clk) (Entered: 03/25/2005)
51 ATTORNEY APPEARANCE by Timothy P Studebaker on behalf of Mary Bishop, Sharon Baldwin (kjp, Dpty Clk) (Entered: 04/08/2005)
52 NOTICE of Unavailability of Counsel for United States of America by United States of America (Simpson, W) (Entered: 04/15/2005)
53 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Continue Scheduling Conference by Oklahoma, State of (Doughty, Stefan) (Entered: 04/28/2005)
54 RESPONSE (Re: 53 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Continue Scheduling Conference) by United States of America (Simpson, W) (Entered: 04/28/2005)
55 ORDER by Magistrate Judge Sam A Joyner, granting 53 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), setting/resetting deadline(s)/hearing(s):, Scheduling Conference set for 6/14/2005 at 09:30 AM before Magistrate Judge Sam A Joyner (lmc, Dpty Clk) (Entered: 04/28/2005)
56 ATTORNEY APPEARANCE by Phillip Craig Bailey on behalf of Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bailey, Phillip) (Entered: 06/14/2005)
57 MOTION to Strike Hearing(s)/Deadline(s) Continue Status and Scheduling Conference by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bailey, Phillip) (Entered: 06/14/2005)
58 ORDER by Magistrate Judge Sam A Joyner, granting 57 Motion to Strike Hearing(s)/Deadline(s), setting/resetting deadline(s)/hearing(s):, Scheduling Conference set for 7/28/2005 at 09:30 AM before Magistrate Judge Sam A Joyner (lmc, Dpty Clk) (Entered: 06/15/2005)
59 NOTICE of Recent Decision by United States of America (With attachments) (Simpson, W) (Entered: 06/17/2005)
60 Joint MOTION to Accelerate/Extend/Reset Deadline(s)/Hearing(s) by Oklahoma, State of (Doughty, Stefan) Modified on 7/27/2005 to correct title to reflect correct event title (s−crp, Dpty Clk). (Entered: 07/26/2005)
NOTICE of Docket Entry Modification; Error: Wrong event used; Correction: Corrected title to reflect correct event title (Re: 60 Joint MOTION to Accelerate/Extend/Reset Deadline(s)/Hearing(s)) (s−crp, Dpty Clk) (Entered: 07/27/2005)
61 MINUTE ORDER by Magistrate Judge Sam A Joyner, granting 60 Motion for Miscellaneous Relief, setting/resetting deadline(s)/hearing(s):, Scheduling Conference set for 9/13/2005 at 09:30 AM before Magistrate Judge Sam A Joyner (lmc, Dpty Clk) (Entered: 07/27/2005)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 11 of 26

09/12/2005 09/12/2005 09/12/2005 09/12/2005
09/13/2005 10/05/2005 10/26/2005 11/03/2005 11/10/2005 11/11/2005
11/16/2005 11/17/2005 12/05/2005 12/07/2005 12/12/2005 12/12/2005

62 ATTORNEY APPEARANCE by Angela K Martin on behalf of Oklahoma, State of (Martin, Angela) (Entered: 09/12/2005)
63 MOTION to Substitute Attorney by Oklahoma, State of (Martin, Angela) (Entered: 09/12/2005)
64 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) by Oklahoma, State of (Martin, Angela) (Entered: 09/12/2005)
65 MINUTE ORDER by Magistrate Judge Sam A Joyner : Hearing stricken. Parties are to file joint motion requesting scheduling conference within 15 days of receipt of order ruling on motions to dismiss in the event issues remain to be tried., granting 64 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), striking/terminating deadline(s)/Hearing(s) (lmc, Dpty Clk) (Entered: 09/12/2005)
66 ORDER by Judge Terence Kern, granting 63 Motion to Substitute Attorney, terminating attorney Stefan K Doughty (JLW, Chambers) (Entered: 09/13/2005)
67 First MOTION to Supplement (Re: 35 Response in Opposition to Motion, 41 Response in Opposition to Motion) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bridger−Riley, N) (Entered: 10/05/2005)
68 ORDER by Judge Terence Kern, granting 67 Motion to Supplement, setting/resetting deadline(s)/hearing(s):, Responses due by 11/4/2005, Replies due by 12/5/2005 (Re: 4 Motion to Intervene, 15 MOTION to Dismiss, 7 Motion to Dismiss) (JLW, Chambers) (Entered: 10/26/2005)
69 MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to File Supplement by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bailey, Phillip) (Entered: 11/03/2005)
70 ORDER by Judge Terence Kern, granting 69 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), setting/resetting deadline(s)/hearing(s): in re Plaintiffs' supplement, Miscellaneous Deadline set for 11/11/2005 (JLW, Chambers) (Entered: 11/10/2005)
71 SUPPLEMENT (Re: 35 Response in Opposition to Motion, 15 MOTION to Dismiss, 37 Response in Opposition to Motion, 41 Response in Opposition to Motion, 42 Unopposed MOTION for Leave to File Reply Brief in Support of Motion to Dismiss by United States of America, 21 Brief in Support of Motion, 7 Motion to Dismiss, 44 Reply to Response to Motion, 67 First MOTION to Supplement, 47 Reply to Response to Motion, 4 Motion to Intervene) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (With attachments) (Bailey, Phillip) (Entered: 11/11/2005)
72 MOTION permission to respond to supplemental materials (Re: 70 Order, Ruling on Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), Setting/Resetting Deadline(s)/Hearing(s)) by Thad Balkman, Oklahoman's for Protection of Marriage, Inc. (Theriot, Kevin) (Entered: 11/16/2005)
73 ORDER by Judge Terence Kern, granting 72 Motion for Miscellaneous Relief, setting/resetting deadline(s)/hearing(s):, Responses due by 12/12/2005 (Re: 71 Supplement,, ) (JLW, Chambers) (Entered: 11/17/2005)
74 Unopposed MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Respond to Plaintiffs' Supplement of Facts and Law (docket #71) by United States of America (Simpson, W) (Entered: 12/05/2005)
75 ORDER by Judge Terence Kern, granting 74 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s), setting/resetting deadline(s)/hearing(s):, Responses due by 1/4/2006 (Re: 71 Supplement,, ) (JLW, Chambers) (Entered: 12/07/2005)
76 RESPONSE (Re: 73 Order, Ruling on Motion for Miscellaneous Relief, Setting/Resetting Deadline(s)/Hearing(s), ) by Thad Balkman, Oklahoman's for Protection of Marriage, Inc. (Theriot, Kevin) (Entered: 12/12/2005)
77 Unopposed MOTION for Leave to File Response to Plaintiff's Supplemental Materials by Oklahoma, State of (Martin, Angela) (Entered: 12/12/2005)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 12 of 26

12/14/2005 12/14/2005
12/15/2005
12/15/2005 01/02/2006 01/03/2006
01/04/2006 01/04/2006 01/04/2006 01/04/2006 01/04/2006 01/05/2006 05/18/2006 07/20/2006 07/20/2006
08/02/2006

78 SUPPLEMENT (Re: 77 MOTION for Leave to File Response to Plaintiff's Supplemental Materials) by Oklahoma, State of (Martin, Angela) Modified on 12/15/2005 to correct title of document and create link to Doc #77. (s−lml, Dpty Clk). (Entered: 12/14/2005)
79 RESPONSE in Opposition to Motion (Re: 77 Unopposed MOTION for Leave to File Response to Plaintiff's Supplemental Materials, 78 MOTION for Leave to File Supplement to Application for Permission to File a Response to Plaintiff's Supplemental Materials) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (With attachments) (Bailey, Phillip) (Entered: 12/14/2005)
NOTICE of Docket Entry Modification; Error: E−filed using incorrect event (Motion for Leave to File Documents); Correction: Edited docket text to reflect correct event (Supplement) and created a link to Doc #77 (Re: 78 MOTION for Leave to File Supplement to Application for Permission to File a Response to Plaintiff's Supplemental Materials) (s−lml, Dpty Clk) (Entered: 12/15/2005)
80 REPLY to Response to Motion (Re: MOTION 77 , SUPPLEMENT 78 ) by Oklahoma, State of (With attachments) (Martin, Angela) Modified on 12/16/2005 to change text to reflect correct title and create links to 77 and 78 (s−sac, Dpty Clk). (Entered: 12/15/2005)
81 ORDER by Judge Terence Kern, granting 77 Motion for Leave to File Document(s), setting/resetting deadline(s)/hearing(s):, Responses due by 1/4/2006 (Re: 71 Supplement,, ) (JLW, Chambers) (Entered: 01/02/2006)
82 RESPONSE in Support of Motion (Re: 15 MOTION to Dismiss) by United States of America ; (Simpson, W) Modified on 1/4/2006, ENTERED IN ERROR − WRONG EVENT USED AND LINKED TO HE WRONG DOCUMENT; ATTORNEY NOTIFIED TO REFILE AS A RESPONSE AND LINK TO #71 (s−crp, Dpty Clk). (Entered: 01/03/2006)
83 ATTORNEY APPEARANCE by Martha Ruth Kulmacz on behalf of Oklahoma, State of (Kulmacz, Martha) (Entered: 01/04/2006)
NOTICE of Docket Entry Modification; Error: Document was e−filed using the wrong event and linked to the wrong document; Correction: Attorney notified to refile as a Response and link to Document No. 71 (Re: 82 Response in Support of Motion, ) (s−crp, Dpty Clk) (Entered: 01/04/2006)
84 RESPONSE (Re: 71 Supplement,, ) by Oklahoma, State of (Kulmacz, Martha) (Entered: 01/04/2006)
85 RESPONSE (Re: 71 Supplement,, ) by United States of America (Simpson, W) (Entered: 01/04/2006)
86 MOTION to Withdraw Attorney(s) by Oklahoma, State of (Martin, Angela) (Entered: 01/04/2006)
87 ORDER by Judge Terence Kern, granting 86 Motion to Withdraw Attorney(s), terminating attorney Angela K Martin (JLW, Chambers) (Entered: 01/05/2006)
88 NOTICE of Change of Address by N Kay Bridger−Riley by on behalf of Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bridger−Riley, N) (Entered: 05/18/2006)
89 NOTICE of Recent Decisions by United States of America (With attachments) (Simpson, W) (Entered: 07/20/2006)
90 OPINION AND ORDER by Judge Terence Kern, denying 4 Motion to Intervene, granting in part and denying in part 7 Motion to Dismiss, granting in part and denying in part 15 Motion to Dismiss, denying 33 Motion to Strike Document(s) (JLW, Chambers) Modified on 8/17/2006 to watermark document as "vacated" pursuant to 93 (crp, Dpty Clk). (Entered: 07/20/2006)
91 ANSWER to Complaint (Re: 1 Complaint) by United States of America (Simpson, W) (Entered: 08/02/2006)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 13 of 26

08/03/2006 08/16/2006
08/25/2006
09/15/2006 09/15/2006 09/15/2006 09/15/2006 09/18/2006 09/18/2006 09/18/2006 09/19/2006 09/25/2006 09/26/2006 09/26/2006 10/02/2006 10/02/2006 10/25/2006

92 ANSWER to Complaint (Re: 1 Complaint) by Oklahoma, State of (Kulmacz, Martha) (Entered: 08/03/2006)
93 OPINION AND ORDER by Judge Terence Kern (Amended Opinion and Order, vacating previous Opinion and Order dated 7/20/2006, Dkt. No. 90) (ruling on Motions: #4 denied, #7 granted in part and denied in part, #15 granted in part and denied in part, 33 denied), vacating/setting aside order(s) (Re: 33 MOTION to Strike Document(s), 4 Motion to Intervene, 7 Motion to Dismiss, 15 MOTION to Dismiss, 90 Opinion and Order,, Ruling on Motion to Intervene,, Ruling on Motion to Dismiss,,,, Ruling on Motion to Strike Document(s), Ruling on Motion to Strike Document(s),, ) (JLW, Chambers) (Entered: 08/16/2006)
94 MINUTE ORDER by Magistrate Judge Sam A Joyner : The parties are to confer and submit a proposed schedule 10 days before the conference. In light of the Court's Order prohibiting discovery, any motions regarding discovery should be filed well in advance of the conference so they will be at issue and can be addressed at the conference., setting/resetting deadline(s)/hearing(s): Courtroom #2, 3rd floor, Scheduling Conference set for 9/22/2006 at 09:30 AM before Magistrate Judge Sam A Joyner (lmc, Dpty Clk) (Entered: 08/25/2006)
95 NOTICE OF APPEAL to Circuit Court (Re: 93 Opinion and Order,,,,,, Vacating/Setting Aside Order(s), Vacating/Setting Aside Order(s), Vacating/Setting Aside Order(s)) by Oklahoma, State of (s−tjc, Dpty Clk) (Entered: 09/15/2006)
96 PRELIMINARY RECORD Sent to Circuit Court (Re: 95 Notice of Appeal to Circuit Court) (With attachments) (s−tjc, Dpty Clk) (Entered: 09/15/2006)
97 MOTION to Stay of Proceedings Against Oklahoma Defendants Pending Appeal and Brief in Support by Oklahoma, State of (Kulmacz, Martha) (Entered: 09/15/2006)
98 APPEAL FEES Paid in Full (Re: 95 Notice of Appeal to Circuit Court) by Oklahoma, State of (s−tjc, Dpty Clk) (Entered: 09/15/2006)
99 Consent MOTION for Leave to Appear by Telephone by United States of America (Simpson, W) (Entered: 09/18/2006)
100 MINUTE ORDER by Judge Terence Kern, referring motion(s) to Magistrate Judge Joyner (Re: 99 Consent MOTION for Leave to Appear by Telephone) (JLW, Chambers) (Entered: 09/18/2006)
101 ORDER by Magistrate Judge Sam A Joyner, granting 99 Motion for Leave to Appear (lmc, Dpty Clk) (Entered: 09/18/2006)
102 ORDER by Magistrate Judge Sam A Joyner, striking/terminating deadline(s)/Hearing(s) (lmc, Dpty Clk) (Entered: 09/19/2006)
103 TRANSCRIPT ORDER FORM (Transcripts are not necessary or are already on file ) (Re: 95 Notice of Appeal to Circuit Court) by Oklahoma, State of (Kulmacz, Martha) (Entered: 09/25/2006)
104 APPEAL NUMBER INFORMATION from Circuit Court assigning Case Number 06−5188 (Re: 95 Notice of Appeal to Circuit Court) (s−tjc, Dpty Clk) (Entered: 09/26/2006)
105 CLERK'S RECORD on Appeal Sent to Circuit Court (Re: 95 Notice of Appeal to Circuit Court) (s−tjc, Dpty Clk) (Entered: 09/26/2006)
106 RESPONSE (Re: 97 MOTION to Stay of Proceedings Against Oklahoma Defendants Pending Appeal and Brief in Support) by United States of America (Simpson, W) (Entered: 10/02/2006)
107 RESPONSE in Support of Motion (Re: 97 MOTION to Stay of Proceedings Against Oklahoma Defendants Pending Appeal and Brief in Support) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (Bridger−Riley, N) (Entered: 10/02/2006)
108 NOTICE of Change of Address by Martha Ruth Kulmacz by on behalf of Oklahoma, State of (Kulmacz, Martha) (Entered: 10/25/2006)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 14 of 26

10/31/2006 01/09/2007 03/19/2007 03/20/2007 01/05/2009
06/05/2009 07/09/2009 07/09/2009 07/28/2009 07/31/2009 07/31/2009 08/10/2009 08/10/2009 08/10/2009 08/11/2009 08/12/2009 08/12/2009
08/14/2009

109 ORDER by Judge Terence Kern (pending appeal), granting 97 Motion to Stay, staying case (Re: 104 Appeal Number Information from Circuit Court) (JLW, Chambers) (Entered: 10/31/2006)
110 NOTICE of Change of Address by N Kay Bridger−Riley by on behalf of Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bridger−Riley, N) (Entered: 01/09/2007)
111 MOTION to Withdraw Attorney(s) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bridger−Riley, N) (Entered: 03/19/2007)
112 ERRATA/CORRECTION (Re: 111 MOTION to Withdraw Attorney(s)) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Bridger−Riley, N) (Entered: 03/20/2007)
113 MINUTE ORDER by Court Clerk reassigning the magistrate judge in this case following the retirement of Magistrate Judge Joyner and appointment of Magistrate Judge Wilson, reassigning case to Magistrate Judge T. Lane Wilson, Magistrate Judge Sam A Joyner no longer assigned to case, changing case number to 04−CV−848−TCK−TLW (pll, Dpty Clk) (Entered: 01/05/2009)
114 DECISION from Circuit Court reversing and remanding the Decision of the District Court (awaiting mandate) (Re: 95 Notice of Appeal to Circuit Court ) (sam, Dpty Clk) (Entered: 06/05/2009)
115 ATTORNEY APPEARANCE by Don G Holladay on behalf of Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Holladay, Don) (Entered: 07/09/2009)
116 ATTORNEY APPEARANCE by James E Warner on behalf of Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Warner, James) (Entered: 07/09/2009)
117 MANDATE from Circuit Court (Re: 114 Decision from Circuit Court, 95 Notice of Appeal to Circuit Court ) (sam, Dpty Clk) (Entered: 07/28/2009)
118 Unopposed MOTION to Amend Complaint (Re: 1 Complaint ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 07/31/2009)
119 Amended MOTION to Amend Complaint (Re: 1 Complaint, 118 Unopposed MOTION to Amend Complaint ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 07/31/2009)
120 MINUTE ORDER by Judge Terence Kern ; granting 119 Motion to Amend (Re: 1 COMPLAINT)(vah, Chambers) Modified on 8/11/2009 to add link to Doc # 1 (tjc, Dpty Clk). (Entered: 08/10/2009)
121 MINUTE ORDER by Judge Terence Kern ; finding as moot 118 Motion to Amend (Re: 1 COMPLAINT) (vah, Chambers) Modified on 8/11/2009 to add link to Doc # 1 (tjc, Dpty Clk). (Entered: 08/10/2009)
122 First AMENDED COMPLAINT against Oklahoma, State of, United States of America (Re: 1 Complaint ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Holladay, Don) (Entered: 08/10/2009)
123 SUMMONS Issued by Court Clerk to Sally Howe−Smith, Court Clerk (s−srb, Dpty Clk) (Entered: 08/11/2009)
124 Unopposed MOTION for Extension of Time to Answer or Otherwise Respond (Re: 122 Amended Complaint ) by United States of America (Simpson, W) (Entered: 08/12/2009)
125 ORDER by Judge Terence Kern United States has until September 28, 2009 to answer or otherwise respond to Amended Complaint ; granting 124 Motion for Extension of Time to Answer (Re: 122 Amended Complaint ) (vah, Chambers) (Entered: 08/12/2009)
126 MINUTE ORDER by Judge Terence Kern Based on new counsels' entries of appearance (Docs. 115, 116), Kay Bridger Riley's Motion to Withdraw as counsel for Plaintiffs (Doc. 111) is GRANTED. ; terminating attorney N Kay Bridger−Riley ; granting 111 Motion to Withdraw Attorney(s) (vah, Chambers) (Entered: 08/14/2009)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 15 of 26

08/19/2009 08/19/2009 08/31/2009 08/31/2009 09/08/2009
09/18/2009 09/23/2009 09/25/2009 09/29/2009 09/29/2009 10/13/2009 10/13/2009 10/19/2009
10/20/2009
10/22/2009 10/22/2009

127 ATTORNEY APPEARANCE by Sandra D Rinehart on behalf of Oklahoma, State of (Rinehart, Sandra) (Entered: 08/19/2009)
128 MOTION to Dismiss Party Governor Brad Henry and Attorney General W.A. Drew Edmondson by Oklahoma, State of (Kulmacz, Martha) (Entered: 08/19/2009)
129 SPECIAL APPEARANCE by David Thomas Iski on behalf of Sally Howe Smith (Iski, David) (Entered: 08/31/2009)
130 MOTION to Dismiss, MOTION to Dismiss for Lack of Jurisdiction by Sally Howe Smith (Iski, David) Modified on 9/14/2011; Document WITHDRAWN per Minute Order # 196 (tjc, Dpty Clk). (Entered: 08/31/2009)
131 RESPONSE in Opposition to Motion (Re: 128 MOTION to Dismiss Party Governor Brad Henry and Attorney General W.A. Drew Edmondson ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (With attachments) (Holladay, Don) (Entered: 09/08/2009)
132 RESPONSE in Opposition to Motion (Re: 130 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (With attachments) (Holladay, Don) (Entered: 09/18/2009)
133 Unopposed MOTION for Extension of Time to Answer or Otherwise Respond (Re: 122 Amended Complaint ) by United States of America (Simpson, W) (Entered: 09/23/2009)
134 ORDER by Judge Terence Kern United States has until 10/13/09 to answer or otherwise respond ; granting 133 Motion for Extension of Time to Answer (Re: 122 Amended Complaint ) (vah, Chambers) (Entered: 09/25/2009)
135 SUMMONS Returned Executed re: Sally Howe Smith (Re: 122 Amended Complaint ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (Holladay, Don) (Entered: 09/29/2009)
136 NOTICE Notice to the Court Regarding Return Receipt (Re: 132 Response in Opposition to Motion ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 09/29/2009)
137 MOTION to Dismiss by United States of America (Simpson, W) Modified on 9/14/2011; Document WITHDRAWN per Minute Order # 195 (tjc, Dpty Clk). (Entered: 10/13/2009)
138 BRIEF in Support of Motion (Re: 137 MOTION to Dismiss ) by United States of America ; (Simpson, W) Modified on 9/14/2011; Document WITHDRAWN per Minute Order # 195 (tjc, Dpty Clk). (Entered: 10/13/2009)
139 MOTION to File Response to Motion Out of Time (Re: 128 MOTION to Dismiss Party Governor Brad Henry and Attorney General W.A. Drew Edmondson ) by Sally Howe Smith (Iski, David) Modified on 10/20/2009 to reflect correct event (tjc, Dpty Clk). (Entered: 10/19/2009)
NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Motion for Extension of Time to Respond to Motion); Correction: Edited docket text to reflect the correct event (Re: 139 MOTION to File Out of Time ) (tjc, Dpty Clk) (Entered: 10/20/2009)
140 MINUTE ORDER by Judge Terence Kern, lifting the stay (Re: 109 Order, Ruling on Motion to Stay, Staying Case, ) (vah, Chambers) (Entered: 10/22/2009)
141 MINUTE ORDER by Judge Terence Kern Before the Court is Defendant Sally Howe Smith's Motion for Leave to File After Expiration of Time (Doc. 139). Such motion is GRANTED, and Defendant Sally Howe Smith shall be permitted to file a response to Doc. 128 no later than Monday, October 26, 2009. Should any party wish to file a reply to this response, the reply shall be filed no later than Friday, October 30, 2009. ; granting 139 Motion to File Document Out of Time (Re: 128 MOTION to Dismiss Party Governor Brad Henry and Attorney General W.A. Drew Edmondson ) (vah, Chambers) (Entered: 10/22/2009)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 16 of 26

10/26/2009 10/30/2009
11/02/2009 11/02/2009 11/13/2009 11/13/2009 11/16/2009 11/24/2009 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/15/2010 03/23/2010
03/23/2010

142 RESPONSE in Opposition to Motion (Re: 128 MOTION to Dismiss Party Governor Brad Henry and Attorney General W.A. Drew Edmondson ) by Sally Howe Smith ; (Iski, David) (Entered: 10/26/2009)
143 REPLY to Response to Motion (Re: 128 MOTION to Dismiss Party, 142 Response in Opposition to Motion ) by Oklahoma, State of (Kulmacz, Martha) Modified on 11/2/2009 to correct event and add link to Doc # 128 (tjc, Dpty Clk). (Entered: 10/30/2009)
NOTICE of Docket Entry Modification; Error: This was filed using the incorrect event (Reply); Correction: Edited docket text to reflect the correct event (Reply to Response to Motion) (Re: 143 Reply ) (tjc, Dpty Clk) (Entered: 11/02/2009)
144 RESPONSE in Opposition to Motion (Re: 137 MOTION to Dismiss ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (Holladay, Don) (Entered: 11/02/2009)
145 Unopposed MOTION for Leave to Exceed Page Limitation for Reply Brief by United States of America (Simpson, W) (Entered: 11/13/2009)
146 MINUTE ORDER by Judge Terence Kern not to exceed 12 pages ; granting 145 Motion for Leave to Exceed Page Limitation (vah, Chambers) (Entered: 11/13/2009)
147 REPLY to Response to Motion (Re: 137 MOTION to Dismiss ) by United States of America ; (Simpson, W) Modified on 9/14/2011; Document WITHDRAWN per Minute Order # 195 (tjc, Dpty Clk). (Entered: 11/16/2009)
148 OPINION AND ORDER by Judge Terence Kern ; terminating party Oklahoma, State of ; granting in part and denying in part 128 Motion to Dismiss Party (vah, Chambers) (Entered: 11/24/2009)
149 MOTION for Attorney(s) James A Campbell to be Admitted Pro Hac Vice by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
150 PRO HAC VICE FEES Paid for attorney(s) James A Campbell in the amount of $75.00 (Re: 149 MOTION for Attorney(s) James A Campbell to be Admitted Pro Hac Vice ) by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
151 MOTION for Attorney(s) Brian W Raum to be Admitted Pro Hac Vice by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
152 PRO HAC VICE FEES Paid for attorney(s) Brian W Raum in the amount of $75.00 (Re: 151 MOTION for Attorney(s) Brian W Raum to be Admitted Pro Hac Vice ) by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
153 MOTION for Attorney(s) Austin R Nimocks to be Admitted Pro Hac Vice by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
154 PRO HAC VICE FEES Paid for attorney(s) Austin R Nimocks in the amount of $75.00 (Re: 153 MOTION for Attorney(s) Austin R Nimocks to be Admitted Pro Hac Vice ) by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
155 MOTION for Attorney(s) Dale M Schowengerdt to be Admitted Pro Hac Vice by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
156 PRO HAC VICE FEES Paid for attorney(s) Dale M Schowengerdt in the amount of $75.00 (Re: 155 MOTION for Attorney(s) Dale M Schowengerdt to be Admitted Pro Hac Vice ) by Sally Howe Smith (s−srl, Dpty Clk) (Entered: 03/23/2010)
157 RESPONSE in Opposition to Motion (Re: 149 MOTION for Attorney(s) James A Campbell to be Admitted Pro Hac Vice, 153 MOTION for Attorney(s) Austin R Nimocks to be Admitted Pro Hac Vice, 151 MOTION for Attorney(s) Brian W Raum to be Admitted Pro Hac Vice, 155 MOTION for Attorney(s) Dale M Schowengerdt to be Admitted Pro Hac Vice ) by Mary Bishop, Sharon Baldwin, Susan G Barton, Gay E Phillips ; (With attachments) (Holladay, Don) (Entered: 03/23/2010)
158 REPLY to Response to Motoin (Re: 149 MOTION, 151 MOTION, 153 MOTION, 155 MOTION, ) by Sally Howe Smith (Iski, David) Modified on 3/24/2010 to change text to reflect the correct event and create the correct links (sac, Dpty Clk). (Entered: 03/23/2010)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 17 of 26

03/24/2010
04/01/2010 04/01/2010 04/01/2010 04/01/2010 04/13/2010 04/13/2010 04/13/2010 04/13/2010 08/02/2010 08/11/2010 08/18/2010 01/21/2011 02/25/2011 02/28/2011
03/21/2011
03/21/2011
03/25/2011 06/30/2011 07/21/2011

NOTICE of Docket Entry Modification; Error: wrong event selected (Reply), wrong link created to Response; Correction: changed text to reflect the correct event (Reply to Response to Motion); created links to the correct motions (Re: 158 Reply ) (sac, Dpty Clk) (Entered: 03/24/2010)
159 MINUTE ORDER by Judge Terence Kern re: James A. Campbell ; granting 149 Motion for Admission Pro Hac Vice (vah, Chambers) (Entered: 04/01/2010)
160 MINUTE ORDER by Judge Terence Kern re: Brian W. Raum ; granting 151 Motion for Admission Pro Hac Vice (vah, Chambers) (Entered: 04/01/2010)
161 MINUTE ORDER by Judge Terence Kern re: Austin R. Nimocks ; granting 153 Motion for Admission Pro Hac Vice (vah, Chambers) (Entered: 04/01/2010)
162 MINUTE ORDER by Judge Terence Kern re: Dale Schowengerdt ; granting 155 Motion for Admission Pro Hac Vice (vah, Chambers) (Entered: 04/01/2010)
163 ATTORNEY APPEARANCE by Dale Michael Schowengerdt on behalf of Sally Howe Smith (Schowengerdt, Dale) (Entered: 04/13/2010)
164 ATTORNEY APPEARANCE by Brian W Raum on behalf of Sally Howe Smith (Raum, Brian) (Entered: 04/13/2010)
165 ATTORNEY APPEARANCE by Austin R Nimocks on behalf of Sally Howe Smith (Nimocks, Austin) (Entered: 04/13/2010)
166 ATTORNEY APPEARANCE by James A Campbell on behalf of Sally Howe Smith (Campbell, James) (Entered: 04/13/2010)
167 ORDER by Judge Terence Kern directing supplemental briefing (vah, Chambers) (Entered: 08/02/2010)
168 NOTICE In Response To Court's Order Of August 2, 2010 (Re: 167 Order ) by Susan G Barton, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 08/11/2010)
169 RESPONSE (Re: 168 Notice (Other) ) by United States of America (Simpson, W) (Entered: 08/18/2010)
170 NOTICE of Supplemental Authorities (Re: 144 Response in Opposition to Motion ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (Holladay, Don) (Entered: 01/21/2011)
171 NOTICE to Court by United States of America (With attachments) (Simpson, W) (Entered: 02/25/2011)
172 MOTION to Convert Responsive Briefing on United States' Motion to Dismiss Into Motion for Partial Summary Judgment (Re: 168 Notice (Other), 144 Response in Opposition to Motion ) by Susan G Barton, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 02/28/2011)
173 RESPONSE in Opposition to Motion (Re: 172 MOTION to Convert Responsive Briefing on United States' Motion to Dismiss Into Motion for Partial Summary Judgment ) by United States of America ; (With attachments) (Simpson, W) (Entered: 03/21/2011)
174 RESPONSE in Opposition to Motion (Re: 172 MOTION to Convert Responsive Briefing on United States' Motion to Dismiss Into Motion for Partial Summary Judgment ) by Sally Howe Smith ; (With attachments) (Schowengerdt, Dale) (Entered: 03/21/2011)
175 MINUTE ORDER by Judge Terence Kern ; denying 172 Motion for Miscellaneous Relief (vah, Chambers) (Entered: 03/25/2011)
176 MOTION for Scheduling Conference by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (Holladay, Don) (Entered: 06/30/2011)
177 RESPONSE in Support of Motion (Re: 176 MOTION for Scheduling Conference ) by United States of America ; (Simpson, W) (Entered: 07/21/2011)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 18 of 26

07/21/2011 07/22/2011 07/25/2011
08/05/2011 08/05/2011
08/11/2011 08/22/2011 08/22/2011 08/22/2011 08/24/2011 08/24/2011
08/25/2011 08/29/2011 08/29/2011 08/31/2011 09/02/2011
09/12/2011

178 MOTION to Intervene for a Limited Purpose by The Bipartisan Legal Advisory Group (With attachments) (Kircher, Kerry) (Entered: 07/21/2011)
179 RESPONSE in Support of Motion (Re: 178 MOTION to Intervene for a Limited Purpose ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips ; (Holladay, Don) (Entered: 07/22/2011)
180 MINUTE ORDER by Court Clerk, directing The Bipartisan Legal Advisory Group to file a Corporate Disclosure Statement pursuant to FRCvP 7.1 within seven (7) days of this order, if they have not already done so. The parties shall use the form entitled Corporate Disclosure Statement available on the Courts website (please do not refile if already filed on non−court form unless directed to do so). If you have already filed your Corporate Disclosure Statement in this case, you are reminded to file a Supplemental Corporate Disclosure Statement within a reasonable time of any change in the information that the statement requires. (s−srt, Dpty Clk) (Entered: 07/25/2011)
181 ORDER by Judge Terence Kern referring case to Magistrate Judge Wilson for scheduling conference ; granting 176 Motion for Miscellaneous Relief; granting 178 Motion to Intervene (cds, Dpty Clk) (Entered: 08/05/2011)
182 MINUTE ORDER by Magistrate Judge T Lane Wilson, setting/resetting deadline(s)/hearing(s): (Magistrate Courtroom No. 2, Third Floor) ( Scheduling Conference set for 8/31/2011 at 09:30 AM before Magistrate Judge T Lane Wilson) (crp, Dpty Clk) (Entered: 08/05/2011)
183 RESPONSE by United States of America (Simpson, W) (Entered: 08/11/2011)
184 Unopposed MOTION for Leave to Appear by Telephone by United States of America (Simpson, W) (Entered: 08/22/2011)
185 ATTORNEY APPEARANCE by Andrea Marie Wyrick on behalf of Sally Howe Smith (Wyrick, Andrea) (Entered: 08/22/2011)
***Motion(s) Referred to Magistrate Judge Wilson (Re: 184 Unopposed MOTION for Leave to Appear by Telephone ) (tjc, Dpty Clk) (Entered: 08/23/2011)
186 Unopposed MOTION for Leave to Appear by Telephone by Bipatrtisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 08/24/2011)
187 Second JOINT STATUS REPORT by Sharon Baldwin, Susan G Barton, Bipatrtisan Legal Advisory Group, The, Mary Bishop, Oklahoma, State of, Gay E Phillips, Sally Howe Smith, United States of America (With attachments) (Holladay, Don) (Entered: 08/24/2011)
***Motion(s) Referred to Magistrate Judge Wilson (Re: 186 Unopposed MOTION for Leave to Appear by Telephone ) (lml, Dpty Clk) (Entered: 08/25/2011)
188 ORDER by Magistrate Judge T Lane Wilson ; granting 184 Motion for Leave to Appear (crp, Dpty Clk) (Entered: 08/29/2011)
189 ORDER by Magistrate Judge T Lane Wilson ; granting 186 Motion for Leave to Appear (crp, Dpty Clk) (Entered: 08/29/2011)
190 MINUTES of Proceedings − held before Magistrate Judge T Lane Wilson: Scheduling Conference held on 8/31/2011, striking/terminating deadline(s)/Hearing(s) (Court Reporter: C2) (crp, Dpty Clk) (Entered: 08/31/2011)
191 SCHEDULING ORDER by Magistrate Judge T Lane Wilson, setting/resetting deadline(s)/hearing(s): ( Dispositive Motions due by 9/28/2011, Discovery due by 12/30/2011, Pretrial Conference set for 5/8/2012 at 01:30 PM before Judge Terence Kern, Nonjury Trial set for 5/21/2012 at 09:30 AM before Judge Terence Kern) (crp, Dpty Clk) (Entered: 09/02/2011)
192 MOTION to Withdraw Document(s) (Re: 137 MOTION to Dismiss, 147 Reply to Response to Motion, 138 Brief in Support of Motion ) by United States of America (Simpson, W) Modified on 9/13/2011 to correct title of event (lml, Dpty Clk). (Entered: 09/12/2011)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 19 of 26

09/12/2011 09/12/2011 09/13/2011 09/13/2011 09/13/2011
09/28/2011 09/29/2011
10/03/2011 10/05/2011 10/06/2011 10/06/2011 10/07/2011 10/07/2011 10/11/2011 10/18/2011

193 MOTION to Withdraw Document(s) (Re: 130 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction ) by Sally Howe Smith (Schowengerdt, Dale) Modified on 9/13/2011 to correct title of event (lml, Dpty Clk). (Entered: 09/12/2011)
194 ANSWER with Jury Demand (Re: 122 Amended Complaint ) by Sally Howe Smith (Schowengerdt, Dale) (Entered: 09/12/2011)
NOTICE of Docket Entry Modification; Error: These were filed using the incorrect event (Notice−Other); Correction: Edited docket text to reflect correct event (Re: 192 MOTION to Withdraw Document(s), 193 MOTION to Withdraw Document(s) ) (lml, Dpty Clk) (Entered: 09/13/2011)
195 MINUTE ORDER by Judge Terence Kern ; striking/withdrawing document(s); granting 192 Motion to Withdraw Documents(s) (Re: 137 MOTION to Dismiss ) (Documents Terminated: 137 MOTION to Dismiss ) (vah, Chambers) (Entered: 09/13/2011)
196 MINUTE ORDER by Judge Terence Kern ; striking/withdrawing document(s); granting 193 Motion to Withdraw Documents(s) (Re: 130 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction ) (Documents Terminated: 130 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction ) (vah, Chambers) (Entered: 09/13/2011)
197 MOTION for Summary Judgment and Brief in Support by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 09/28/2011)
198 MINUTE ORDER by Judge Terence Kern (requesting courtesy copy with tabbed exhibits), Counsel for Plaintiff is directed to provide forthwith for use by the Court a manual copy in a three−ring binder notebook of the pleading and/or exhibits as filed at Dkt. # 197 . Said manual copies shall be EXACT duplicates of the pleading and/or exhibits AFTER said pleading(s) was filed with the Court, including the case and docket number information at the top of each page. Do not reorganize the document or insert other separately docketed items. If copies of sealed items are hereby ordered by the Court, then said copies shall be a separate and complete submission. (Re: 197 MOTION for Summary Judgment and Brief in Support ) (vah, Chambers) (Entered: 09/29/2011)
199 Unopposed MOTION for Leave to File One Consolidated Brief in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Intervenor−Defendant's Cross−Motion for Summary Judgment by Bipartisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 10/03/2011)
200 Unopposed MOTION for Leave to File A Consolidated Brief in Opposition to Plaintiffs' Motion for Summary Judgment And In Support of Defendant Sally Howe Smith's Cross−Motion for Summary Judgment by Sally Howe Smith (Schowengerdt, Dale) (Entered: 10/05/2011)
201 MINUTE ORDER by Judge Terence Kern ; granting 199 Motion for Leave to File Document(s) (vah, Chambers) (Entered: 10/06/2011)
202 MINUTE ORDER by Judge Terence Kern ; granting 200 Motion for Leave to File Document(s) (vah, Chambers) (Entered: 10/06/2011)
203 Unopposed MOTION for Leave to File Consolidated Brief in Support of Motion to Dismiss and in Response to Plaintiffs' Motion for Summary Judgment by United States of America (Simpson, W) (Entered: 10/07/2011)
204 MINUTE ORDER by Judge Terence Kern ; granting 203 Motion for Leave to File Document(s) (vah, Chambers) (Entered: 10/07/2011)
205 NOTICE of Withdrawal of Pages Inadvertently Attached to Exhibit 3 to Plaintiffs' Motion for Summary Judgment (Re: 197 MOTION for Summary Judgment and Brief in Support ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (Warner, James) (Entered: 10/11/2011)
206 MOTION for Attorney(s) Holly L Carmichael to be Admitted Pro Hac Vice by Sally Howe Smith (s−srt, Dpty Clk) (Entered: 10/18/2011)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 20 of 26

10/18/2011 10/18/2011 10/18/2011 10/19/2011 10/19/2011 10/19/2011 10/19/2011 10/19/2011 10/19/2011 10/19/2011 10/20/2011
11/17/2011
11/17/2011
11/17/2011 11/17/2011 11/18/2011 11/18/2011

207 PRO HAC VICE FEES Paid for attorney(s) Holly L Carmichael in the amount of $75.00 (Re: 206 MOTION for Attorney(s) Holly L Carmichael to be Admitted Pro Hac Vice ) by Sally Howe Smith (s−srt, Dpty Clk) (Entered: 10/18/2011)
208 MINUTE ORDER by Judge Terence Kern re: Holly L. Carmichael ; granting 206 Motion for Admission Pro Hac Vice (vah, Chambers) (Entered: 10/18/2011)
209 Unopposed MOTION for Leave to Exceed Page Limitation by Bipartisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 10/18/2011)
210 MINUTE ORDER by Judge Terence Kern not to exceed 55 pages ; granting 209 Motion for Leave to Exceed Page Limitation (vah, Chambers) (Entered: 10/19/2011)
211 MOTION to Dismiss for Lack of Jurisdiction by United States of America (Simpson, W) (Entered: 10/19/2011)
212 BRIEF in Support of Motion (Re: 211 MOTION to Dismiss for Lack of Jurisdiction ) by United States of America ; (Simpson, W) (Entered: 10/19/2011)
213 Partial RESPONSE in Opposition to Motion (Re: 197 MOTION for Summary Judgment and Brief in Support ) by United States of America ; (Simpson, W) (Entered: 10/19/2011)
214 Cross MOTION for Summary Judgment by Bipartisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 10/19/2011)
215 BRIEF in Support of Motion (Re: 214 Cross MOTION for Summary Judgment ) by Bipartisan Legal Advisory Group, The ; (With attachments) (Bartolomucci, H) (Entered: 10/19/2011)
216 Cross MOTION for Summary Judgment and Brief in Support With Consolidated Opposition to Plaintiffs' Motion for Summary Judgment by Sally Howe Smith (With attachments) (Schowengerdt, Dale) (Entered: 10/19/2011)
217 MINUTE ORDER by Judge Terence Kern (submit with exhibits tabbed), Counsel for Defendant Sally Howe Smith is directed to provide forthwith for use by the Court a manual copy in a three−ring binder notebook of the pleading and/or exhibits as filed at Dkt. # 216 . Said manual copies shall be EXACT duplicates of the pleading and/or exhibits AFTER said pleading(s) was filed with the Court, including the case and docket number information at the top of each page. Do not reorganize the document or insert other separately docketed items. If copies of sealed items are hereby ordered by the Court, then said copies shall be a separate and complete submission. (Re: 216 Cross MOTION for Summary Judgment and Brief in Support With Consolidated Opposition to Plaintiffs' Motion for Summary Judgment ) (vah, Chambers) (Entered: 10/20/2011)
218 Unopposed MOTION for Leave to Exceed Page Limitation in Response to Intervenor−Defendant's Consolidated Cross Motion for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (Holladay, Don) (Entered: 11/17/2011)
219 Unopposed MOTION for Leave to Exceed Page Limitation in Response to Defendant Sally Howe Smith's Cross−Motion for Summary Judgment and Consolidated Opposition to Plaintiffs' Motion for Summary Judgment by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (Holladay, Don) (Entered: 11/17/2011)
220 ATTORNEY APPEARANCE by Judson Owen Littleton on behalf of United States of America (Littleton, Judson) (Entered: 11/17/2011)
221 Unopposed MOTION for Leave to Exceed Page Limitation by United States of America (Littleton, Judson) (Entered: 11/17/2011)
222 MINUTE ORDER by Judge Terence Kern ; granting 218 Motion for Leave to Exceed Page Limitation (vah, Chambers) (Entered: 11/18/2011)
223 MINUTE ORDER by Judge Terence Kern ; granting 219 Motion for Leave to Exceed Page Limitation (vah, Chambers) (Entered: 11/18/2011)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 21 of 26

11/18/2011 11/18/2011 11/18/2011 11/18/2011
11/18/2011 12/08/2011 12/08/2011 12/09/2011 12/09/2011 12/09/2011 12/09/2011 12/09/2011 02/24/2012 03/14/2012 03/27/2012
03/28/2012 03/30/2012
06/06/2012 06/11/2012

224 MINUTE ORDER by Judge Terence Kern ; granting 221 Motion for Leave to Exceed Page Limitation (vah, Chambers) (Entered: 11/18/2011)
225 RESPONSE in Opposition to Motion (Re: 214 Cross MOTION for Summary Judgment ) by United States of America ; (Littleton, Judson) (Entered: 11/18/2011)
226 RESPONSE in Opposition to Motion (Re: 214 Cross MOTION for Summary Judgment ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips ; (With attachments) (Holladay, Don) (Entered: 11/18/2011)
227 RESPONSE in Opposition to Motion (Re: 216 Cross MOTION for Summary Judgment and Brief in Support With Consolidated Opposition to Plaintiffs' Motion for Summary Judgment ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips ; (Holladay, Don) (Entered: 11/18/2011)
228 RESPONSE in Opposition to Motion (Re: 211 MOTION to Dismiss for Lack of Jurisdiction ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips ; (Holladay, Don) (Entered: 11/18/2011)
229 Unopposed MOTION for Leave to Exceed Page Limitation for Reply Brief by Sally Howe Smith (Schowengerdt, Dale) (Entered: 12/08/2011)
230 Unopposed MOTION for Leave to File Consolidated Reply Brief Exceeding Page Limitation by Bipartisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 12/08/2011)
231 MINUTE ORDER by Judge Terence Kern ; granting 229 Motion for Leave to Exceed Page Limitation (vah, Chambers) (Entered: 12/09/2011)
232 MINUTE ORDER by Judge Terence Kern ; granting 230 Motion for Leave to File Document(s) (vah, Chambers) (Entered: 12/09/2011)
233 REPLY to Response to Motion (Re: 214 Cross MOTION for Summary Judgment ) by Bipartisan Legal Advisory Group, The ; (Bartolomucci, H) (Entered: 12/09/2011)
234 REPLY to Response to Motion (Re: 211 MOTION to Dismiss for Lack of Jurisdiction ) by United States of America ; (Simpson, W) (Entered: 12/09/2011)
235 REPLY to Response to Motion (Re: 216 Cross MOTION for Summary Judgment and Brief in Support With Consolidated Opposition to Plaintiffs' Motion for Summary Judgment ) by Sally Howe Smith ; (Schowengerdt, Dale) (Entered: 12/09/2011)
236 NOTICE of Supplemental Authority (Re: 197 MOTION for Summary Judgment and Brief in Support ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 02/24/2012)
237 RESPONSE (Re: 236 Notice (Other) ) by Bipartisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 03/14/2012)
238 NOTICE Supplemental Authority (Re: 216 Cross MOTION for Summary Judgment and Brief in Support With Consolidated Opposition to Plaintiffs' Motion for Summary Judgment ) by Sally Howe Smith (With attachments) (Schowengerdt, Dale) (Entered: 03/27/2012)
239 Joint MOTION to Accelerate/Extend/Reset Hearing(s)/Deadline(s) to Suspend Pretrial and Trial Dates by Bipartisan Legal Advisory Group, The (Kircher, Kerry) (Entered: 03/28/2012)
240 ORDER by Judge Terence Kern Striking Pretrial and Trial Dates ; striking/terminating deadline(s)/Hearing(s); granting 239 Motion to Accelerate/Extend/Reset Hearing(s)/Deadline(s) (vah, Chambers) (Entered: 03/30/2012)
241 NOTICE Notice of Supplemental Authority by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 06/06/2012)
242 RESPONSE (Re: 241 Notice (Other) ) by Bipartisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 06/11/2012)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 22 of 26

08/11/2012 08/24/2012 08/24/2012 08/27/2012
09/19/2012 09/19/2012 09/20/2012 10/02/2012 10/02/2012 01/04/2013 07/16/2013 07/17/2013 07/17/2013 07/26/2013 07/26/2013 07/26/2013 07/29/2013 07/29/2013
07/29/2013

243 NOTICE of Change of Firm Name by Sally Howe Smith (Schowengerdt, Dale) (Entered: 08/11/2012)
244 MOTION to Withdraw Attorney(s) by Sally Howe Smith (Iski, David) (Entered: 08/24/2012)
245 MINUTE ORDER by Judge Terence Kern ; terminating attorney David Thomas Iski ; granting 244 Motion to Withdraw Attorney(s) (This entry is the Official Order of the Court. No document is attached.) (vah, Chambers) (Entered: 08/24/2012)
246 NOTICE of Supplemental Authority (Re: 216 Cross MOTION for Summary Judgment and Brief in Support With Consolidated Opposition to Plaintiffs' Motion for Summary Judgment ) by Sally Howe Smith (With attachments) (Schowengerdt, Dale) (Entered: 08/27/2012)
247 MOTION for Attorney(s) Byron J Babione to be Admitted Pro Hac Vice by Sally Howe Smith (s−srt, Dpty Clk) (Entered: 09/20/2012)
248 PRO HAC VICE FEES Paid for attorney(s) Byron J Babione in the amount of $75.00 (Re: 247 MOTION for Attorney(s) Byron J Babione to be Admitted Pro Hac Vice ) by Sally Howe Smith (s−srt, Dpty Clk) (Entered: 09/20/2012)
249 MINUTE ORDER by Judge Terence Kern − re: Attorney Byron J. Babione ; granting 247 Motion for Admission Pro Hac Vice (This entry is the Official Order of the Court. No document is attached.) (vah, Chambers) (Entered: 09/20/2012)
250 MOTION to Withdraw Attorney(s) by Sally Howe Smith (Wyrick, Andrea) (Entered: 10/02/2012)
251 MINUTE ORDER by Judge Terence Kern ; terminating attorney Andrea Marie Wyrick ; granting 250 Motion to Withdraw Attorney(s) (This entry is the Official Order of the Court. No document is attached.) (vah, Chambers) (Entered: 10/02/2012)
252 NOTICE of Recent Legal Developments by Bipartisan Legal Advisory Group, The (Bartolomucci, H) (Entered: 01/04/2013)
253 MOTION for Leave to File Supplemental Brief by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (With attachments) (Holladay, Don) (Entered: 07/16/2013)
254 ATTORNEY APPEARANCE by Byron J Babione on behalf of Sally Howe Smith (Babione, Byron) (Entered: 07/17/2013)
255 RESPONSE in Support of Motion (Re: 253 MOTION for Leave to File Supplemental Brief ) by Sally Howe Smith ; (Babione, Byron) (Entered: 07/17/2013)
256 ATTORNEY APPEARANCE by Kerry W Kircher on behalf of Bipartisan Legal Advisory Group, The (Kircher, Kerry) (Entered: 07/26/2013)
257 MOTION for Judgment on Challenge to Section 3 of the Defense of Marriage Act and Brief in Support by Susan G Barton, Gay E Phillips (Holladay, Don) (Entered: 07/26/2013)
258 RESPONSE in Support of Motion (Re: 253 MOTION for Leave to File Supplemental Brief ) by United States of America ; (Simpson, W) (Entered: 07/26/2013)
259 Unopposed MOTION to Withdraw Attorney(s) by Bipartisan Legal Advisory Group, The (Kircher, Kerry) (Entered: 07/29/2013)
260 MINUTE ORDER by Judge Terence Kern ; terminating attorney H Christopher Bartolomucci ; granting 259 Motion to Withdraw Attorney(s) (This entry is the Official Order of the Court. No document is attached.) (vah, Chambers) (Entered: 07/29/2013)
261 ORDER by Judge Terence Kern − Plaintiffs' supplemental brief shall be filed by August 2, 2013, Defendants may file supplemental response briefs by August 23, 2013. ; granting 253 Motion for Leave to File Document(s) (Re: 257 MOTION for Judgment) (vah, Chambers) Modified on 7/29/2013 to create link to 257 (sac, Dpty Clk). (Entered: 07/29/2013)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 23 of 26

07/29/2013 08/02/2013 08/16/2013 08/23/2013 08/23/2013 08/23/2013 09/04/2013 10/29/2013 12/22/2013 01/07/2014 01/14/2014
01/14/2014 01/14/2014 01/16/2014
01/17/2014 01/17/2014

262 Supplemental BRIEF in Support of Motion (Re: 197 MOTION for Summary Judgment and Brief in Support ) by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips ; (Holladay, Don) (Entered: 07/29/2013)
263 Unopposed MOTION to Withdraw as Intervenor−Defendant by Bipartisan Legal Advisory Group, The (Kircher, Kerry) (Entered: 08/02/2013)
264 RESPONSE in Opposition to Motion (Re: 257 MOTION for Judgment on Challenge to Section 3 of the Defense of Marriage Act and Brief in Support ) by United States of America ; (Simpson, W) (Entered: 08/16/2013)
265 REPLY to Response to Motion (Re: 257 MOTION for Judgment on Challenge to Section 3 of the Defense of Marriage Act and Brief in Support ) by Susan G Barton, Gay E Phillips ; (Holladay, Don) (Entered: 08/23/2013)
266 RESPONSE (Re: 197 MOTION for Summary Judgment and Brief in Support, 262 Brief in Support of Motion ) by United States of America (Simpson, W) (Entered: 08/23/2013)
267 RESPONSE (Re: 197 MOTION for Summary Judgment and Brief in Support, 216 Cross MOTION for Summary Judgment and Brief in Support With Consolidated Opposition to Plaintiffs' Motion for Summary Judgment, 262 Brief in Support of Motion ) by Sally Howe Smith (Babione, Byron) (Entered: 08/23/2013)
268 NOTICE of Administrative Action by United States of America (With attachments) (Simpson, W) (Entered: 09/04/2013)
269 NOTICE of Pendency of Dispositive Motions and Cross Motions for Summary Judgment by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (Holladay, Don) (Entered: 10/29/2013)
270 NOTICE of Supplemental Post−Windsor Authority Addressing Claims Virtually Identical to Those Raised by Plaintiffs Herein and That Such Authority Provides Strong Impetus for Timely Disposition of the Present Case by Sharon Baldwin, Susan G Barton, Mary Bishop, Gay E Phillips (Holladay, Don) (Entered: 12/22/2013)
271 RESPONSE (Re: 270 Notice (Other), ) by Sally Howe Smith (Babione, Byron) (Entered: 01/07/2014)
272 OPINION AND ORDER by Judge Terence Kern ; dismissing/terminating case (terminates case) ; granting in part and denying in part 197 Motion for Summary Judgment; granting 211 Motion to Dismiss for Lack of Jurisdiction; finding as moot 214 Motion for Summary Judgment; granting in part and denying in part 216 Motion for Summary Judgment; denying 257 Motion for Judgment; granting 263 Motion for Miscellaneous Relief (vah, Chambers) (Main Document 272 replaced on 1/17/2014) (sac, Dpty Clk). Modified on 1/17/2014 to fix typographical errors per ORDER 277 (sac, Dpty Clk). (Entered: 01/14/2014)
273 JUDGMENT by Judge Terence Kern , entering judgment (terminates case) (vah, Chambers) (Entered: 01/14/2014)
***Civil Case Terminated (see document number 273 ) (sac, Dpty Clk) (Entered: 01/15/2014)
274 NOTICE OF APPEAL to Circuit Court (paid $505 appeal fee; receipt number 1085−1256333) (Re: 272 Opinion and Order,, Dismissing/Terminating Case,, Ruling on Motion for Summary Judgment,, Ruling on Motion to Dismiss for Lack of Jurisdiction,,,,,, Ruling on Motion for Judgment,, Ruling on Motion for Miscellaneous Relief, 273 Judgment, Entering Judgment ) by Sally Howe Smith (Babione, Byron) (Entered: 01/16/2014)
275 PRELIMINARY RECORD Sent to Circuit Court (Re: 274 Notice of Appeal to Circuit Court, ) (With attachments) (srt, Dpty Clk) (Entered: 01/17/2014)
276 APPEAL NUMBER INFORMATION from Circuit Court assigning Case Number 14−5003 (#274) (Re: 274 Notice of Appeal to Circuit Court, ) (sdc, Dpty Clk) (Entered: 01/17/2014)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 24 of 26

01/17/2014 01/17/2014
01/21/2014 01/22/2014 01/24/2014
01/27/2014 01/27/2014 02/05/2014 02/07/2014 02/10/2014 02/12/2014 07/18/2014 07/18/2014 08/08/2014 10/06/2014
10/06/2014 10/06/2014

277 ORDER by Judge Terence Kern − correcting typographical errors in the 272 Opinion and Order dated January 14, 2014 (vah, Chambers) Modified on 1/17/2014 to add document link (a−hc, Dpty Clk). (Entered: 01/17/2014)
278 Amended PRELIMINARY RECORD Sent to Circuit Court (Re: 274 Notice of Appeal to Circuit Court, 272 Opinion and Order,,, Dismissing/Terminating Case,,, Ruling on Motion for Summary Judgment,,, Ruling on Motion to Dismiss for Lack of Jurisdiction,,,,,,,,, Ruling on Motion for Judgment,,, Ruling on Motion for Miscellaneous Relief,, 277 Order ) (With attachments) (sac, Dpty Clk) (Entered: 01/17/2014)
279 TRANSCRIPT ORDER FORM (Transcripts are not necessary or are already on file ) (Re: 274 Notice of Appeal to Circuit Court, ) by Sally Howe Smith (Babione, Byron) (Entered: 01/21/2014)
280 ORDER from Circuit Court notice that record is complete by 02/18/2014 (Re: 276 Appeal Number Information from Circuit Court ) (sc, Dpty Clk) (Entered: 01/22/2014)
281 NOTICE OF APPEAL to Circuit Court (paid $505 appeal fee; receipt number 1085−1260370) (Re: 272 Opinion and Order, Dismissing/Terminating Case, Ruling on Motion for Summary Judgment, Ruling on Motion to Dismiss for Lack of Jurisdiction,,, Ruling on Motion for Judgment, Ruling on Motion for Miscellaneous Relief,,,,,,,,,,,,,,,, 273 Judgment, Entering Judgment ) by Susan G Barton, Gay E Phillips (Holladay, Don) (Entered: 01/24/2014)
282 PRELIMINARY RECORD Sent to Circuit Court (Re: 281 Notice of Appeal to Circuit Court, ) (With attachments) (sac, Dpty Clk) (Entered: 01/27/2014)
283 APPEAL NUMBER INFORMATION from Circuit Court assigning Case Number 14−5006 (#281) (Re: 281 Notice of Appeal to Circuit Court, ) (sdc, Dpty Clk) (Entered: 01/27/2014)
284 CLERK'S RECORD on Appeal Sent to Circuit Court (Re: 274 Notice of Appeal to Circuit Court, ) (sc, Dpty Clk) (Entered: 02/05/2014)
285 ORDER from Circuit Court Notice that record is complete by 03/04/2014 (Re: 281 Notice of Appeal to Circuit Court, ) (sc, Dpty Clk) (Entered: 02/07/2014)
286 TRANSCRIPT ORDER FORM (Transcripts are not necessary or are already on file ) (Re: 281 Notice of Appeal to Circuit Court, ) by Susan G Barton, Gay E Phillips (Warner, James) (Entered: 02/10/2014)
287 CLERK'S RECORD on Appeal Sent to Circuit Court (Re: 281 Notice of Appeal to Circuit Court, ) (sc, Dpty Clk) (Entered: 02/12/2014)
288 DECISION from Circuit Court affirming the Decision of the District Court (awaiting mandate) (Re: 281 Notice of Appeal to Circuit Court, 274 Notice of Appeal to Circuit Court, ) (jla, Dpty Clk) (Entered: 07/18/2014)
289 ORDER from Circuit Court Judgment for opinion filed (Re: 281 Notice of Appeal to Circuit Court, 274 Notice of Appeal to Circuit Court, ) (jla, Dpty Clk) (Entered: 07/18/2014)
290 LETTER from Circuit Court stating that the Petition for Writ of Certiorari has been filed (U.S. Supreme Court Case Number: 14−136) (Re: 281 Notice of Appeal to Circuit Court, ) (sc, Dpty Clk) (Entered: 08/08/2014)
291 ORDER from Circuit Court the United States Supreme Court denied certiorari review in these matters. Consequently, the stay of the mandate directed in our decision dated 7/18/14 is lifted, and the mandate shall issue forthwith. A copy of this order shall stand as the mandate of the court. (Re: 290 Letter re: Writ of Certiorari from Circuit Court ) (sc, Dpty Clk) (Entered: 10/06/2014)
292 MANDATE from Circuit Court (Re: 281 Notice of Appeal to Circuit Court, 274 Notice of Appeal to Circuit Court, 288 Decision from Circuit Court ) (sc, Dpty Clk) (Entered: 10/06/2014)
293 ORDER by Judge Terence Kern − lifting stay (vah, Chambers) (Entered: 10/06/2014)

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 25 of 26

10/07/2014 10/28/2014 10/29/2014 11/11/2014 11/13/2014 12/05/2014 12/08/2014
12/16/2014 12/16/2014
01/05/2015 01/21/2015 01/26/2015 05/01/2015 05/01/2015 05/08/2015 06/16/2015

294 LETTER from Circuit Court stating that the Petition for Writ of Certiorari has been denied (Re: 281 Notice of Appeal to Circuit Court, 274 Notice of Appeal to Circuit Court, ) (sdc, Dpty Clk) (Entered: 10/07/2014)
295 Supplemental MANDATE from Circuit Court (Re: 281 Notice of Appeal to Circuit Court, 274 Notice of Appeal to Circuit Court, 288 Decision from Circuit Court ) (jla, Dpty Clk) (Main Document 295 replaced on 10/29/2014−to replace with correct pdf) (jla, Dpty Clk). (Entered: 10/29/2014)
296 NOTICE of Docket Entry Modification; Error: wrong pdf attached; Correction: attached correct pdf (Re: 295 Mandate from Circuit Court, ) (jla, Dpty Clk) (Entered: 10/29/2014)
297 MOTION for Scheduling Order to Determine Amount of Appeal−Related Attorneys' Fees Award by Sharon Baldwin, Mary Bishop (Holladay, Don) (Entered: 11/11/2014)
298 ORDER by Judge Terence Kern − briefing schedule relating to attorneys' fees ; granting 297 Motion for Miscellaneous Relief (vah, Chambers) (Entered: 11/13/2014)
299 MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support by Sharon Baldwin, Mary Bishop (With attachments) (Holladay, Don) (Entered: 12/05/2014)
300 MINUTE ORDER by Judge Terence Kern , setting/resetting deadline(s)/hearing(s): ( Responses due by 12/22/2014, Replies due by 1/7/2015) (Re: 299 MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support ) (This entry is the Official Order of the Court. No document is attached.) (vah, Chambers) (Entered: 12/08/2014)
301 Unopposed MOTION for Extension of Time to Respond to Motion (Re: 299 MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support ) by Sally Howe Smith (Luton, John) (Entered: 12/16/2014)
302 MINUTE ORDER by Judge Terence Kern ; setting/resetting deadline(s)/hearing(s): ( Responses due by 1/5/2015, Replies due by 1/21/2015); granting 301 Motion for Extension of Time to Respond to Motion (Re: 299 MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support ) (This entry is the Official Order of the Court. No document is attached.) (vah, Chambers) (Entered: 12/16/2014)
303 RESPONSE in Opposition to Motion (Re: 299 MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support ) by Sally Howe Smith ; (With attachments) (Luton, John) (Entered: 01/05/2015)
304 REPLY to Response to Motion (Re: 299 MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support ) by Sharon Baldwin, Mary Bishop ; (With attachments) (Holladay, Don) (Entered: 01/21/2015)
305 ATTORNEY APPEARANCE by Kimberly Majors Hall on behalf of Sally Howe Smith (Hall, Kimberly) (Entered: 01/26/2015)
306 OPINION AND ORDER by Judge Terence Kern ; granting 299 Motion for Miscellaneous Relief (vah, Chambers) (srt, Dpty Clk). Modified on 5/1/2015 to replace pdf due to clerical error (srt, Dpty Clk). (Main Document 306 replaced on 6/16/2015 per Order # 309 ) (srt, Dpty Clk). (Entered: 05/01/2015)
307 NOTICE of Docket Entry Modification; Error: original pdf contained clerical error; Correction: attached correct pdf with corrected pdf (Re: 306 Opinion and Order, Ruling on Motion for Miscellaneous Relief ) (srt, Dpty Clk) Modified on 5/1/2015 to correct text (srt, Dpty Clk). (Entered: 05/01/2015)
308 Supplemental MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support (Re: 299 MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees and Brief in Support ) by Sharon Baldwin, Mary Bishop (With attachments) (Holladay, Don) (Entered: 05/08/2015)
309 ORDER by Judge Terence Kern − the Court Clerk is directed to replace page 29 of the Opinion and Order dated May 1, 2015 for the purpose of inserting the word "file" between "shall" and "any" in the last paragraph. This is a typographical correction that does not make any substantive change to the Court's Opinion and Order. (Re: 306

USDC ND/OK Case: 4:04-cv-848 As of: 11/05/2017 02:48 PM CST Page 26 of 26

06/16/2015 06/16/2015

Opinion and Order, Ruling on Motion for Miscellaneous Relief ) (srt, Dpty Clk) (Entered: 06/16/2015)
310 ORDER by Judge Terence Kern − granting Plaintiffs' Supplemental MOTION for Judgment on Amount of Appeal−Related Attorneys' Fees ; granting 308 Motion for Miscellaneous Relief (srt, Dpty Clk) (Entered: 06/16/2015)
311 JUDGMENT by Judge Terence Kern , awarding attorney fees to Plaintiffs Mary Bishop and Sharon Baldwin and against Defendant Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma (Re: 306 Opinion and Order, Ruling on Motion for Miscellaneous Relief,, 310 Order, Ruling on Motion for Miscellaneous Relief ) (srt, Dpty Clk) (Entered: 06/16/2015)