Federal Judge declares OK Ban on Gay Marriage Unconstitutional (updated)


The Northern District of Oklahoma sits in Tulsa, OK and is in the 10th US Circuit Court of Appeals.  That’s two current rulings for marriage equality in the 10th circuit at this time.  As I understand it (IANAL) the 10th Ct. denied Utah’s request for a stay of the Judge’s ruling.  Now Utah has appealed to US Supreme Court.  I don’t know how this stuff works, and I assume one of our legal eagles can clue us in, but would this ruling, stayed by the Court itself, be bundled with the Utah case at  USSC, or merely wait until the ruling from the Supreme Court?


Today U.S. District Judge Terence Kern ruled that Oklahoma’s ban on marriage equality is unconstitutional.  His ruling is stayed pending appeal, meaning marriages will not occur immediately in the Sooner State.

HRC President Chad Griffin issued the following statement:

“Judge Kern has come to the conclusion that so many have before him – that the fundamental equality of lesbian and gay couples is guaranteed by the United States Constitution.  With last year’s historic victories at the Supreme Court guiding the way, it is clear that we are on a path to full and equal citizenship for all lesbian, gay, bisexual and transgender Americans.  Equality is not just for the coasts anymore, and today’s news from Oklahoma shows that time has come for fairness and dignity to reach every American in all 50 states.”

Two plaintiff couples, Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton, filed their case, Bishop v. Oklahoma, in the U.S. District Court for the Northern District of Oklahoma in November 2004.  Lead counsel in the case are Don Holladay and James Warner of the Oklahoma City law firm Holladay & Chilton PLLC.

Link to ruling (PDF) here.

Thanks to Commenter Shortstop, here is a list of current Marriage Equality lawsuits and their various statuses.  Here is another one that may be more up to date.

Open thread, and we now return you to your regular programming

71 replies
  1. 1
    Corner Stone says:

    As I understand it (IANAL)


  2. 2
    LanceThruster says:

    “This is what I say to the most conservative person that’s so terrified of gay marriage becoming legal: Just because the state says it’s legal, it’s not like God’s gonna let them into heaven?! You can still sleep sound every night, knowing that goal line defense is up at the pearly gates going, “You’re not getting in here, f4ggot“ ~ Daniel Tosh

    PS – Before anyone gets upset about his terminology, understand that he was parodying the haters who think God shares their hatred of gays.

  3. 3
    Corner Stone says:

    Why are the “Comments Off” on the TWIB commercial promo below this post?

  4. 4
    BobbyThomson says:

    The SCOTUS stayed the Utah decision a week ago, so the Tenth Circuit is highly likely to grant a stay this time. And if they don’t, I wouldn’t expect a different result.

    I’d expect a lot of your fellow Sooners to be showing their true colors in the next few days.

  5. 5
    Corner Stone says:

    Ok. So no UI benefits for anyone, then.
    Nice job, all.

  6. 6
    scav says:

    Good place to throw this in: Republican gay rights campaigner announces he’s quitting the GOP

    The co-founder and former executive director of GOProud, Jimmy LaSalvia said in a blog post that he changed his voter registration to “no party”, because the Republican party had “lost its way”.

    LaSalvia said that he is now “an independent conservative”, which he said: “sounds much better than ‘gay Republican’”.

    Things getting comperlicated over there on multiple fronts. heh,

  7. 7
    Villago Delenda Est says:

    @Corner Stone:

    Well, no one in the Village needs them, so why should anyone else?

  8. 8

    I think the reason the Utah decision wasn’t stayed immediately is because the state’s attorney forgot to file a motion for a stay before the ruling came down. The court can’t act on a motion that hasn’t been filed… or so I remember from watching “Law & Order” all these years.

    Cue the Jesus-shouter banshees: “OOOOOOOOOOOOklahoma, where the rage comes sweeping down the plains…”

  9. 9


    LaSalvia said that he is now “an independent conservative”, which he said: “sounds much better than ‘gay Republican’”.

    Which doesn’t sound as truthful as “submissive bottom.”

  10. 10


    Republican gay rights campaigner announces he’s quitting the GOP

    Wake me up when he actually endorses a Democrat. This sounds like more of the same attempt to avoid the toxic Republican brand without actually giving up the noxious Republican policies.

  11. 11
    Gex says:

    We’re now back to where we were in the late 90’s early 00’s – with judges recognizing that due process and equal protection violations were occurring.

    The part that pisses me off is all the strategy documents for the anti-gay Christian groups that waged the amendment battles acknowledged they would lose this battle in the long run. They just chose to spend billions (screw you needy people!) to ban marriage so they can keep fucking over gays for as long as possible.

    And hey, everyone’s happy now that marriage is back on track right?

    Everyone except the people who didn’t make it. Just wasted a couple of decades. A couple of decades that happened to be the prime of my life with the love of my life. God, it feels awful to be fodder.

    I hope those haters rot in their Hell. And I hope the Devil gives me point on torturing them.

    But at least this is back in the hands of the courts and not in the hands of Duck Nation.

  12. 12
  13. 13
    scav says:

    @Roger Moore: Fractured self-canibalizing opponents not enough for you grin just a teeny bit in your sleep? Because this rat is a anti-big govt anti-social-conservative rat saying “It’s time to focus my energy to help make our country better instead of trying to fix a dysfunction political party whose days are numbered.”

  14. 14
    Ash Can says:

    @scav: Sounds like someone woke up and started smelling the coffee — after getting it poured down his shirt and pants every day for the past 15 years.

  15. 15
    Ash Can says:

    Does anyone here who might be in the know have any kind of educated guess regarding when the USSC might take marriage equality up and make a ruling?

  16. 16
    Citizen_X says:

    Does this mean you guys don’t need the Satan statue now?


  17. 17
    Omnes Omnibus says:

    @Gex: The closest I ever came to punching a coworker was the day after the 2004 election. I was in Ohio and a constitutional ban on gay marriage had been on the ballot. The coworker started blustering on about the elections – he knew that many of us were not with him at all on the pro-Bush thing, but whatever. The guy then had the gall to start crowing about the SSM amendment in front of a person he had always claimed was his friend – a gay woman who had poured her heart and soul into tying to defeat the effort. She was barely functionally that day – felt like she had been told that she wasn’t as good as other people and felt that way because that is what had just happened. Ultimately only words were exchanged between me and the other guy, but still I cannot believe the shittiness of his behavior.

  18. 18

    @Ash Can: For some, that’s a turn-on…

    Hey, whatever spins your hat.

  19. 19
    Comrade Jake says:

    @Ash Can: probably around the time gay-marriage is found to be legal in South Carolina.

  20. 20
    Omnes Omnibus says:

    @Ash Can: If it gets a split in the Circuits, it will have to. Until then, it will probably seek to avoid it.

  21. 21
    burnspbesq says:


    But at least this is back in the hands of the courts

    That would be the Tenth Circuit, those wonderful folks who gave us Hobby Lobby. Your optimism may be premature.

  22. 22
    p.a. says:

    @Citizen_X: No. SATSQ.

  23. 23
    Gex says:

    @Roger Moore: Exactly. What will be news is if he figures out why his party can’t quit the gay-hating because those are the people most likely to support the policies he supports. This is the same old same old: non-rabid Republican who does not actually think the Duck Dynasty guy is the ideal is balking at the people his party invited to the dance to pass his policies.

  24. 24
    burnspbesq says:

    @Ash Can:

    guess regarding when the USSC might take marriage equality up and make a ruling?

    Hard to see how it could be earlier than Q2 of 2015, and it might not be until 2016.

  25. 25

    @Gex: Yeah, it’s been a hell of a decade to be raising a kid since Nov. 17th, 2003 (Goodridge). I sometimes forget that this time could have been worse. I’m sorry we were so slow; I literally did everything I could to make it happen sooner.

    Next boomer who dragged her heels (because ‘the public won’t stand for it’, really, to my face, 2008) who gloats about how easy it is now that the timing is strategic gets her toes stepped on, in your name. (Don’t worry, she’ll think it’s from me.)

  26. 26
    Omnes Omnibus says:

    @burnspbesq: It would be interesting in a presidential election year.

  27. 27

    @burnspbesq: the 10th also has the Utah case, now. Briefing for argument in March. So…I’m optimistish.

    -posted in New Mexico, the sane casita out back of the 10th CA, with crazy neighbors in the 5th and 9th.

  28. 28
    Gex says:

    @PhoenixRising: You just gave me my best smile of the day.

    This is a hard week with the anniversary coming up.

  29. 29
    KG says:

    Utah’s stay failed because they first forgot to ask the District Court for a stay, then they sought a stay by the Tenth Circuit pending the appeal and did a piss poor job so it was denied, then they went to the Supreme Court for a stay and got it. The appeal is still before the Tenth Circuit. Assuming Oklahoma appeals this decision (highly likely), then the Tenth Circuit could conceivably consolidate the cases because they likely involve the common issues of law and/or fact. Alternatively, the Oklahoma case could be stayed pending the result of the Utah case – but given that governors and attorneys general are politicians who like to get their names in newspapers and history books, my guess is they will try to consolidate.

    I think it is highly likely that the Supreme Court would hear the case regardless of the Tenth Circuit’s decision. The reason I say this is because it’s a civil rights issue and they don’t necessarily wait for a circuit split on civil rights cases, they are too important. It’s one thing to wait for a circuit split when interpreting the Federal Rules of Civil Procedure or the intricacies of insider trading laws. It’s a wholly different thing when you’re talking about civil rights cases.

    ETA: I tend to agree with @burnspbesq regarding the timing.

  30. 30
    srv says:

    Real Americans will never forget or forgive these legislating devils in black robes.

  31. 31
    burnspbesq says:


    What KG said.

  32. 32

    @Gex: You’re in my thoughts. And sometimes my speech. ‘Strategic’ is just another word for ‘I’m too comfortable and weak to face how much we’re hated right now’.

  33. 33
    piratedan says:

    @burnspbesq: considering the issue in question, I’m sure that the wingnuts would characterize it as impure speculation….. sorry, just in a mood.

  34. 34
    Omnes Omnibus says:

    @KG: Yeah, you are probably right that they won’t wait for a split. I didn’t think it all the way through in my earlier comment. D’oh.

  35. 35
    burnspbesq says:

    @Omnes Omnibus:

    “Interesting” in the sense of the old Chinese curse, “May you live in interesting times?”

  36. 36
    Omnes Omnibus says:

    @burnspbesq: Yep.

  37. 37
    Cacti says:

    @Corner Stone:

    Ok. So no UI benefits for anyone, then.
    Nice job, all.

    Makes you wonder why the confederate states didn’t just close down all public restrooms and drinking fountains.

  38. 38
    lamh36 says:

    Go Wendy Go!!!

    @AP_Ken_Thomas AUSTIN, Texas (AP) – Democrat Wendy Davis reports raising $12 million for her bid to become Texas governor.


    @BOR 9m
    BREAKING: @WendyDavisTexas announces $12.2 million raised across 3 committees since July 1; 85% of donations were $50 or less.

  39. 39
    Trollhattan says:


    “Independent conservative.” Hrrmph. Why not a Lib-curious-atarian? Rand would welcome you into his big ferretTribble tent.

  40. 40
    PsiFighter37 says:

    It’s clear the gays have finished with us blue states and are now marching on Real Amurika. I hope the next state to be hit with the judicial hammer is in the Deep South, which is basically the bastion of crazy. Is it wrong to call it the Confederacy?

  41. 41

    @burnspbesq: I’d be stunned if these cases weren’t consolidated by the circuit. It’s been a busy day around here* so I haven’t read the entire OK decision, but I’m familiar with the briefs (and one of the couples–this has been going on for a fucking DECADE, and the plaintiff couples have done a road show). This and UT are functionally the same case, facts and wording of the ban and how it was implemented (plebiscite).

    While I’m certain that both states would raise holy hell, is there a legal reason the two bans can’t be disposed of in one decision?

    An interesting note about this case for those who aren’t hobbyists like me: Both this and the Utah case were brought against extremely socially conservative states, by a handful of couples and their volunteer (straight, upstanding community member) law firms. The screams from Gay Inc. about these cases are still echoing in the halls of the St Louis Marriott and have been since 2005. AFER, the upstarts who hired Olsen & Boies for the Prop 8 case, moved on to Virginia, bypassing the Big Empty here in the 10th.

    NCLR has already agreed to assist the UT plaintiffs, and I expect they and the GLBT director at ACLU national are currently on a conference call to determine who has the first bite at Oklahoma, but keep in mind that these are the cases they didn’t want to happen in the first place. Because what if the courts tell us we’re screwed? (The reality that some of us are, in fact, screwed, was not apparent from Fire Island. Or Provincetown.)

    So this is…interrresting.

    *One advantage of homeschooling: the question ‘Which is worse, “critical” or “serious”?’ turned out to be about gunshot wounds…and fairly time-consuming.

  42. 42
    Trollhattan says:


    Molly Ivin’s ghost approves.

  43. 43
    Ben Franklin says:


    It’s funny how many think the expression is a blessing.

  44. 44
    PsiFighter37 says:

    @lamh36: That’s some serious dough. Anyone in Texas / familiar with Texas politics think there’s a chance it’ll be a close race? (I fully expect Wendy Davis to lose this, so my expectations are not super high)

    Speaking of Texas, I will be in Austin this coming long weekend. Anyone have recommendations on places to eat, hear live music, drink, or visit?

  45. 45
    Another Holocene Human says:


  46. 46
    Baud says:


    because the Republican party had “lost its way”.

    It seems like only yesterday that the GOP was on the forefront of the social equality movement.

  47. 47
    max says:

    @Cacti: Makes you wonder why the confederate states didn’t just close down all public restrooms and drinking fountains.

    Status. ‘Look! I’m using the white drinking fountain because I can.’

    @PsiFighter37: I hope the next state to be hit with the judicial hammer is in the Deep South, which is basically the bastion of crazy.

    For our purposes here, Oklahoma is the Deep South. Gay marriage in Mississippi would be awesome though.

    Anyone in Texas / familiar with Texas politics think there’s a chance it’ll be a close race?

    No. But 12 million dollars helps.

    [‘If absolutely nothing else, it’ll pin down some winger effort.’]

  48. 48
    Soonergrunt says:

    @PhoenixRising: Are there any other marriage equality cases happening in other circuits? Nevada has civil unions but SSM is banned by the Nevada constitution, and Nevada is in the 9th circuit.
    From Wikipedia, FWIW:

    On April 10, 2012, Lambda Legal filed suit in the U.S. District Court for the District of Nevada. In the case of Sevcik v. Sandoval, it argued that “No legitimate … interest exists to exclude same-sex couples from the historic and highly venerated institution of marriage, especially where the State already grants lesbians and gay men access to almost all substantive spousal rights and responsibilities through registered domestic partnership.” The case raises equal protection claims but does not assert a fundamental right to marry.[21] On November 29, Judge Robert C. Jones ruled against the plaintiffs, holding that “the maintenance of the traditional institution of civil marriage as between one man and one woman is a legitimate state interest”.[22] The decision has been appealed to the Ninth Circuit Court of Appeals.

  49. 49
    Another Holocene Human says:

    @Mustang Bobby: The rage is because they banished all the SE and Appalachian tribes there in a genocidal orgy and then discovered oil and stole the land back, no backsies, so there is some ugly, ugly, ugly white supremacist and fossil fuels industry garbage going on there. Plus the petroleum kinda dried up so people there are angry, Left Behind, reactionary. Super jesus freak country. Southern Baptists in the 70s and you know what that means.

    It’s not surprising that Satan monument shit is going on there. The Southern Baptist Dominionists freaks made their bed and now they’re lying in it. Dollars to donuts those “Satanists” are apostatized fundygelicals who are trumpeting everything they were taught to fear and hate until they broke free. (Satan with children in his lap is styled from that kreepy kristian “let the children come to me” devotional art.) Pretty typical reaction.

  50. 50
    Another Holocene Human says:

    Also, too, Pie Near Woman is based in oil-town Bartlesville, OK. More proof that nothing good comes from stays in Oklahoma.

    (Note bene where E Warren resides now and for the last decades.)

    My kooky OK, MO, KS (2nd!) cousins, additionally. De plus. Ausserdem.

  51. 51

    I think you’re missing what’s happening. This isn’t really the party turning on itself or giving up its terrible ideas. This is about true believer conservative crazies playing the mole in Whack-A-Mole. They know that their bad ideas have damaged the party, so now they’re setting up a new brand rather than a new set of policies. I won’t be happy until the Republican party starts trying to sell sane policies.

  52. 52
    the Conster says:


    Oklahoma went from OK to fabulous!

  53. 53
    Another Holocene Human says:


    Everyone except the people who didn’t make it. Just wasted a couple of decades. A couple of decades that happened to be the prime of my life with the love of my life. God, it feels awful to be fodder.

    Same thing happened in US politics in the 1990s, from local to national level a collective decision was made to hollow out the American dream and kick the can down the road because when the bill came due (for cutting taxes and skimping on infrastructure or not paying on pension funds and all the other fun stuff that happens when you keep cutting taxes) they would be retired and out of office and someone else (the blah sheriff, for one) would be holding the bag.

    I blame lead poisoning. Impulsive thinking/action is one of the symptoms.

  54. 54
    Citizen_X says:

    @PsiFighter37: I think she’ll lose, but the effort will help a hell of a lot in the down-ballot positions, which’ll help even the state Lege out a (desperately needed) bit. Plus, it’ll build up the Dem organizational capabilities. Dems have been flat on their asses in Texas, moaning and drinking, ever since Karl Rove gaybaited Anne Richardson to defeat.

  55. 55
    Corner Stone says:

    @Cacti: I expect the Republicans to gleefully hurt people with less power than them.
    No one can explain why the Democrats went along with it. They can proffer apologia, as aimai enjoys doing, but the actual explanation always seems to be we were ok with tossing “them” into the deep water.

  56. 56
    shortstop says:

    @Soonergrunt: I know you’re looking for cases that have reached federal appellate court, but here’s a handy roundup of all marriage equality cases and the status of each.

  57. 57
    Mike in NC says:


    Is it wrong to call it the Confederacy?

    A Confederacy of Dunces, to be precise.

  58. 58
    scav says:

    @Roger Moore: They’re attempting to regroup, YES but this is a socially liberal breakaway peel-off, door slam: they’re not going to be welcome in the hard-core TeaConvervative reeeeleegious breakaway nucleus. And both seem to be ditching the beltway “no more crazies” crowd. If those lot can’t find a common core of true belief that all others must be axed over, they’ll be busy axing former allies. Proof is indeed in what button they’ll be pulling in any given November, but these shenanigans pull resources into contests that don’t help them in the general and make them look wildly disorganized and incoherent — so much for their past reputation as sane and effective leaders. Ideally, I’d love a battle with fewer opponents in the field, but if I can’t have fewer boots on the ground in front of me, I’m still slightly pleased that those are boots in muddy ground, boots busy kicking each other and with potential breakdowns in their supply lines.

  59. 59
    Another Holocene Human says:

    @Citizen_X: lawd, wouldn’t it be great to get those border counties voting with high voter participation, maybe bringing about better local govt and better representation statewide to help bring those counties out of poverty?

    they’ve been screwed so long they don’t know what not screwed looks like

  60. 60
    Cervantes says:


    Just wasted a couple of decades. A couple of decades that happened to be the prime of my life with the love of my life. God, it feels awful to be fodder.

    None of us choose when we are born. The struggle for justice is never over; only the form it takes depends on the twists and turns of our particular era. It can take decades, yes, or centuries but, if we are on the side of justice, never, ever doubt that we shall overcome.

    After decades of effort, I remember standing vigil with hundreds of others, outside the John Adams Courthouse in Boston on November 18, 2003, waiting for judgment in Goodrich v. DPH. When the decision came, it was a squeaker — 4 to 3 — and then we still had to fight efforts by Romney and others to keep perverting the course of justice. We won those fights — and we’ve lost others — and now in Oklahoma, of all places, we’ve won another.

    Do not let the bastards get you down.

  61. 61
    ulee says:

    Next the gay will be wanting to marry a pot plant.

  62. 62
    Another Holocene Human says:

    @scav: I’m just enjoying the downfall of a bunch of assholes. More popcorn, please.

    I never thought they made any real impact in GOP electoral prospects to begin with and their loss doesn’t hurt now. The group was a real Beltway kool kids klub to begin and end with.

  63. 63
    Another Holocene Human says:

    @shortstop: Nice link, thanks!

    Look what I found: same old shit, just another day in Florida, land of grifters and gators:

    FLORIDA #2 • On 7 November 2013, in John Becker v. University of Central Florida, a state judge ruled that FL must disclose records showing who approved Associate Professor Mark Regnerus’ anti-LGBT parenting study, how it got published immediately, and why no qualified peers reviewed it. The Regnerus study is cited more often than any other by anti-LGBT groups worldwide, and Regnerus is scheduled to testify in February that children of same-gender parents are less successful than children of mixed-gender parents in April DeBoer & Jayne Rowse v. MI Governor Rick Snyder, et al. On 22 November 2013, FL hired former state Supreme Court Chief Justice Charles Wells to fight the release of over 50,000 public records related to the publication of the widely discredited Regnerus study. Also, Judge Donald Grincewicz who had handled the case since its start in spring 2013, inexplicably recused himself from further involvement, and an appellate court granted a stay in the case until a replacement judge is appointed.

    Regnery, Regnerus? What’s up with that?

    Pam Bondi (FLAG) spending more state moniezzz to fight a public record (Sunshine Law) request? You don’t say!!

  64. 64


    I think it is highly likely that the Supreme Court would hear the case regardless of the Tenth Circuit’s decision.

    I think it’s going to make a big difference depending on how the Tenth Circuit rules. My gut feeling is that the left wing of the Court is going to want to give cert because they have everything to win and little to lose: they have a chance to make equality national and no real chance of it being rolled back where it’s already the law. Meanwhile, the right wing will be afraid to give cert for the opposite reason, but may be willing to give it if the Tenth Circuit agrees with the lower courts because it will be their last chance to block it.

  65. 65
    scav says:

    @Another Holocene Human: Practically, probably not much an impact (doubt my repub voting gay acquaintances will change their votes for any but self-generated reasons), but as cheap PR, cheap giggles and an excuse for popcorn of any price desired, there’s worse. And it’s not a perfectly meaningless feather in the wind.

  66. 66
    Soonergrunt says:

    @shortstop: Thanks! Added to the top.

  67. 67
    shortstop says:

    @ulee: Ha! Or worse, their dogs engaged in peeing on pot plants.

  68. 68
    Jerzy Russian says:

    @PsiFighter37: Try Fogo de Chao near the Convention Center (http://www.fogodechao.com/index.php?id=169). Wear loose-fitting pants.

  69. 69
    James E. Powell says:

    This is what I think of when I think of Oklahoma politics. I know it isn’t the whole story and it isn’t everyone who lives there (bartcop!), but it does describe the political weltanschauung of the electorate.

  70. 70
    shortstop says:

    @Soonergrunt: You’re most welcome, but on a closer look, I see a lot of that is out of date. I think this is more accurate.

  71. 71
    RaflW says:

    @PsiFighter37: Polvo’s on South 1st for Mexican breakfast. I’m a huge fan of Migas, which I can only get in my own kitchen up here in MN.
    I love the Magnolia Cafe out on Lake Austin Blvd, but that’s probably 50% nostalgia and 50% that they still have great black beans – also mainly a breakfast recommend.
    Juan In a Million on E. Cezar Chavez is very Austin.
    Basically, dive Mexican and dive/hippy breakfast is the Austin food scene I love when I go back to visit.

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