TERENCE C. KERN, District Judge.
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.
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.
DOMA, which became law in 1996, contains two substantive sections. Section 2 of DOMA, entitled "Powers Reserved to the States," provides:
Defense of Marriage Act § 2, 28 U.S.C. § 1738C. Section 3 of DOMA, entitled "Definition of Marriage," provides:
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
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.
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 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.
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
On June 5, 2009, the Tenth Circuit issued an unpublished decision reversing this Court's "failure to dismiss the claims against the Oklahoma officials" and remanding the "case for entry of an order dismissing these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:
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:
(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 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.
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.
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.
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.
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.
Plaintiffs Mary Bishop and Sharon Baldwin have 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
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;
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;
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.)
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.
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 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.").
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:
Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
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,
The Court concludes that neither Section 2, nor the U.S. Attorney General's enforcement thereof, plays a sufficient "causation" role leading to the Barton couple's alleged injury of nonrecognition of their California marriage in Oklahoma.
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
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.
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, 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).
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);
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 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.
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.
"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 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).
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.
"[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).
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
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
(Rev. Ruling 2013-17, 2013-38 I.R.B. 201 (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 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.
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
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.").
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
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.
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
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.
A recent case addressed the constitutionality of Ohio's non-recognition provision, which was identical to Part B. See Obergefell v. Wymyslo, 962 F.Supp.2d 968, 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. See id. at 972-74, 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.
Smith has not attacked the Bishop couple's standing to challenge Part A or
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").
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.
Smith argues that Baker represents binding Supreme Court precedent
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.)
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
Finally, although the Supreme Court's decision in Windsor was silent as to Baker'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).
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.").
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 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
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.
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);
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,
The couple may then choose how they will "solemnize" the marriage, which is when the parties enter into the marital contract:
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 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.
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
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:
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.
"Intentional discrimination can take several 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
The Court defines the relevant class as same-sex couples desiring an Oklahoma marriage license.
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=HB 2259&Session=0400.
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, available at www.oksenate. gov/news/pressreleases/press_releases_ 2004/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
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."
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 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, 961 F.Supp.2d at 1206-07, 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
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).)
Because it disadvantages a non-suspect class, Part A does not come to this Court under heightened suspicion.
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.
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.
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.
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 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).
The Court must also consider whether Part A rationally relates to the state interests now being offered by Smith in this litigation.
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.").
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 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.
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,
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:
(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,"
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)).
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.
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 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.
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):
(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");
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 describing the State's moral disapproval of same-sex couples." Lawrence, 539 U.S. at 602, 123 S.Ct. 2472 (Scalia, J., dissenting).
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.").
The Supreme Court has not expressly reached the issue of whether state laws
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.
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.
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,
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 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.
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, 961 F.Supp.2d at 1201-02, 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.
Windsor, 133 S.Ct. at 2689 (emphases added).
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.
