Bishop, et al v. Smith, et al, No. 14-5003 (10th Cir. 2014)Annotate this Case
This appeal was brought by the Court Clerk for Tulsa County, Oklahoma, asking the Tenth Circuit to overturn a decision by the district court declaring unenforceable the Oklahoma state constitutional prohibition on issuing marriage licenses to same-sex couples. The issues presented to the Tenth Circuit in this appeal were: (1) whether plaintiffs could attack state constitutional provisions without simultaneously attacking state statutes to the same effect; and (2) whether the Court Clerk was a proper defendant as to the non-recognition portion of the Oklahoma constitutional prohibition. The Tenth Circuit held that plaintiffs had standing to directly attack the constitutionality under the United States Constitution of Oklahoma's same-sex marriage ban even though their claim did not reach Oklahoma's statutory prohibitions on such marriages. Under Oklahoma law, a constitutional amendment "takes the place of all the former laws existing upon the subject with which it deals." Because the statutory prohibitions were subsumed in the challenged constitutional provision, an injunction against the latter's enforcement will redress the claimed injury. An earlier appeal of this same case involving the standing inquiry led to a decision by a panel of the Tenth Circuit that dismissed proceedings brought against the Governor and Attorney General of Oklahoma. That panel ruled that "recognition of marriages is within the administration of the judiciary." ("Bishop I"). The Tenth Circuit concluded that the law of the case doctrine applied to Bishop I, but that the doctrine was overcome by new evidence demonstrating that the Tulsa County Court Clerk could not redress the non-recognition injury, thereby depriving Gay Phillips and Susan Barton of standing to sue. The Court affirmed the district court's ruling.