Oklahoma Marriage Case Survives Standing Motion

U.S. District Judge Terence Kern ruled on July 20 in Bishop v. State of Oklahoma, 2006 WL 2045877, that two Oklahoma same-sex couples can litigate various challenges to the federal Defense of Marriage Act and Oklahoma’s anti-same-sex-marriage constitutional amendment, but sharply reduced the scope of the case by eliminating certain legal theories from consideration and finding that the couples lacked standing to raise certain legal questions.

The Defense of Marriage Act (DOMA) has two operative parts, a provision excusing states from recognizing same-sex marriages performed in other states, and a section establishing an opposite-sex definition of marriage for all purposes of federal law. The Oklahoma Amendment restricts marriages in that state to opposite-sex couples, denies any of the "incidents" of legal marriage to unmarried couples, and says that same-sex marriages performed in other states will not be recognized in Oklahoma.

In order to have "standing" to bring a lawsuit in federal court, an individual or group must have a personal stake in a live legal controversy, because the federal courts are limited by the Constitution to deciding "actual cases or controversies" and may not issue advisory opinions or declare laws unconstitutional in the abstract. In addition, of course, the plaintiffs have to allege a potentially valid legal theory for their case to survive the defendants’ motion to dismiss.

The two couples in this case had different characteristics relevant to the standing question. Mary Bishop and Sharon Baldwin, Oklahoma residents, had a church-recognized commitment ceremony in Florida in 2002, and desired to have a civil marriage in their home state as well. Susan Barton and Gay Phillips, also Oklahoma residents, had a Vermont civil union performed in August 2001, and also went to Vancouver, British Columbia, to get married in May 2005. They want the federal government and the state of Oklahoma to recognize both their civil union and their marriage as valid.

Judge Kern applied a very precise reading to both DOMA and the Oklahoma amendment in order to determine whether either or both couples had standing to raise constitutional objections. As to DOMA, he had the recent decision by the U.S. Court of Appeals for the 9^th Circuit in the Smelt case from Orange County, California, for guidance. In that case, the court ruled that a California same-sex couple who were domestic partners in that state did not have standing to challenge either aspect of DOMA, because they were not married and DOMA deals only with marriage recognition by states and the federal government.

Taking his cue from the Smelt case, Kern easily concluded that Bishop-Baldwin lacked standing to challenge either aspect of DOMA, because they cannot claim to be married or have any legal relationship to each other. But Barton-Phillips presented a more analytically difficult problem, because they are actually married (in Canada) and have the legal status of a Vermont Civil Union. Kern concluded that the Vermont legislature made clear that it did not consider a civil union to be a marriage, and since DOMA was concerned with marriages (or legal status considered to be marriages by a state), the Barton-Phillips civil union did not give them standing to challenge the state recognition portion of DOMA.

Furthermore, Kern concluded that when DOMA used the word "state," it was referring to states of the United States, and was not using the word in its broader sense as referring to nations. Thus, he found, in a ruling that may prove surprising to some, that DOMA does not apply to the question whether a U.S. state will recognize a same-sex marriage contracted in Canada (or in any other foreign country that allows such marriages). That question may be determined by reference to principles of international law, similar to those discussed in the July 26 ruling by the High Court in London in the case of the lesbian couple seeking British recognition of their Canadian marriage, or to the legal customs embodied in the concept of "comity," under which courts exercise discretion based on their view of state public policy.

Consequently, neither plaintiff couple had standing to challenge the part of DOMA that excuses states from recognizing same-sex marriage performed in other states.

Next Kern took up the question whether either couple had standing to challenge the portion of DOMA that excludes same-sex marriage from being recognized by the federal government. Once again, Bishop-Baldwin were out of luck, because they do not have a marriage and thus cannot complain that the federal government is not recognizing their marriage. On the other hand, Barton-Philips do have a legal marriage from Canada, and a Vermont civil union, and Kern concluded that it would be premature to dismiss their claims at this early stage in the litigation, so their claim challenging the federal marriage definition part of DOMA survives, at least until the question comes back before Kern in the form of a motion for summary judgment after discovery.

Turning to the state constitutional amendment, Kern decided that due to the narrow way its marriage recognition provision was drafted, neither of the plaintiff couples had standing to challenge it. Bishop-Baldwin, of course, had no out-of-state marriage to be recognized. More significantly, however, Kern ruled that the Oklahoma amendment provided no barrier to recognition of the Barton-Phillips civil union or their Canadian marriage in Oklahoma, because the amendment bans recognition only of a same-sex "marriage" that is performed in another "state," and he decided that the word "state" as used in the amendment should be held to have the same meaning as when it is used in DOMA.

Of course, this does not mean that Oklahoma is required to recognize Vermont civil unions or Canadian same-sex marriages, but that question would not be controlled by the state marriage amendment, in Kern’s view. Judge Kern’s interpretive decision is not binding on the Oklahoma courts, however, since federal courts have no authority to provide binding interpretations of state law, and it is possible that in some future case the Oklahoma courts could decide that the amendment does bar recognition of Canadian same-sex marriages, producing a real Catch-22 for people married in other countries.

However, the court found that both couples had standing to challenge the part of the amendment that prohibits same-sex marriages in the state, since they are both interested in being legally married in Oklahoma, or in the possibility of qualifying for some of the "incidents" of marriage.

Kern also ruled that neither the Full Faith and Credit Clause nor the Privileges and Immunities Clause of the Constitution, both raised by the plaintiffs, were applicable to this case, as now reduced by his rulings on "standing." The surviving challenges to both DOMA and the Oklahoma amendment are thus based on federal due process and equal protection arguments, which so far have been rejected by several other federal trial courts, and most recently by the U.S. Court of Appeals for the 8^th Circuit, ruling on the constitutionality of the Nebraska marriage amendment. That ruling is not binding on Judge Kern because Oklahoma is within the 10^th federal Circuit.

Ultimately, of course, the constitutionality of DOMA and of state anti-marriage amendments will have to be determined by the U.S. Supreme Court. If Judge Kern were to declare these measures unconstitutional, even in part, and was upheld by the 10^th Circuit, the stage would be set for a Supreme Court confrontation. But the 10^th Circuit and 8^th Circuits, between them, cover most of the "red state" midwest, so a split between them over these questions does not seem a likely prospect.