A federal appellate court will give expedited consideration to an appeal of a decision by a Tulsa federal judge earlier this month which found that Oklahoma's constitutional ban on same-sex marriages violates the U.S. Constitution, according to an order issued Tuesday.
The 10th U.S. Circuit Court of Appeals set a briefing schedule on Tuesday that spans from Feb. 24 until April 7. The same order says the Oklahoma case will be assigned to the same panel of appellate judges that will consider a similar case from Utah.
U.S. Senior District Judge Terence Kern ruled on Jan. 14 that Part A of an Oklahoma constitutional amendment, approved by state voters in November 2004, violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.
Two lesbian couples — Sue Barton and Gay Phillips, and Mary Bishop and Sharon Baldwin — filed the lawsuit in 2004 in the immediate aftermath of the election.
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Bishop and Baldwin are editors at the Tulsa World.
The judge stayed execution of the permanent injunction he issued against Part A until the final disposition of the matter by the 10th U.S. Circuit Court of Appeals in Denver.
On Jan. 16, attorneys for the defendant, Tulsa County Court Clerk Sally Howe Smith, filed notice of appeal of Kern's ruling regarding Part A. They subsequently asked the 10th Circuit to expedite the appeal and to have the same appellate judges who will consider the Utah case to be assigned to the Oklahoma matter. Plaintiffs' attorneys concurred in the requests.
While the same panel of judges will consider the Oklahoma and Utah cases, Tuesday's order says separate briefing and oral arguments will take place.
Last Friday, Barton and Phillips filed written notice that they are appealing a portion of Kern's order in which he granted a defense request for summary judgment regarding Part B of the Oklahoma constitutional amendment.
Part B states that "a marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage."
According to Kern's opinion, Barton and Phillips on Nov. 1, 2008, were issued a marriage license by the state of California and married under California law.
Kern found in his order that Barton and Phillips failed to demonstrate that Smith would be the proper official to recognize their California marriage and dismissed the couple's challenge to Part B for lack of legal standing. The Tuesday order sets the same briefing schedule for the Part B appeal as for the Part A appeal.
Kern's order stated that, at least in the court's opinion, Part B was not "the focus of this litigation."
Plaintiffs' attorney Don Holladay told the Tulsa World that the Part B appeal was filed "to ensure that the entirety of the Oklahoma constitutional amendment received review at the appellate level."
David Harper 918-581-8359
