Bishop v. Smith
2014 U.S. App. LEXIS 13733
| 10th Cir. | 2014Background
- Mary Bishop and Sharon Baldwin seek to marry in Oklahoma; Tulsa County Clerk denied license due to same-sex status.
- Phillips and Barton, a same-sex couple, sought recognition of their out-of-state marriages and faced non-recognition under SQ 711, later challenged along with DOMA provisions.
- SQ 711 states that marriage is between one man and one woman, and out-of-state same-sex marriages are not recognized; an enforcement provision subjects issuers to misdemeanor.
- The district court granted summary judgment against challenges to Part A; Judge Windsor/Baker precedents influence whether same-sex marriage bans violate the Constitution.
- Bishop I held the Clerk was not proper defendant for standing; new evidence (Smith affidavit) later altered standing analysis for Part B; law-of-the-case considerations guided the non-recognition issues.
- The majority ultimately affirms, holding Part A unconstitutional, finds Barton lacks standing for Part B due to Smith’s lack of redressability, and denies severability relief; Kitchen v. Herbert provides guiding framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge Part A | Bishop/Baldwin have injury from denial of marriage | Executive defendants not causally tied; clerks handle licenses | Part A standing affirmed; invalidity of SQ 711 supported |
| Law-of-the-case and new evidence for Part B | Bishop I law-of-the-case governs; Smith affidavit creates new evidence | Law-of-the-case binds unless new evidence shows error | Law-of-the-case exceptions apply; Barton lacks standing for Part B; Part B dismissed |
| Severability of Part B | If Part A invalid, Part B should fall too | Severability should be considered; no preserved severability issue | Severability forfeited; no severability analysis required; Part B affirmed in dismissal |
| Proper defendant for Part B | Clerk appropriate defendant for non-recognition claim | Clerk has no authority to recognize out-of-state marriages | Clerk not proper defendant for Part B; Barton cannot redress injury with Smith as defendant |
Key Cases Cited
- Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (applies strict scrutiny to ban; rights of same-sex marriage arise as fundamental)
- United States v. Windsor, 133 S. Ct. 2675 (U.S.) (federalism and animus considerations; limits DOMA)
- Romer v. Evans, 517 U.S. 620 (U.S.) (animus-based analysis for classifications in constitutional rights)
- Christian–son v. Colt Indus. Operating Corp., 486 U.S. 800 (U.S.) (law-of-the-case applicability in jurisdictional transfers)
- Hendrick v. Waiters, 865 P.2d 1232 (Okla. 1993) (oath superseding prior provision; framework for replacement by amendment)
- Lankford v. Menefee, 45 Okla. 228, 145 P. 375 (Okla. 1914) (subsequent revision can repeal former law as complete scheme)