4:04-cv-00848 #303

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 1 of 27
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA
MARY BISHOP,
SHARON BALDWIN,
SUSAN G. BARTON, and
GAY E. PHILLIPS,
Plaintiffs,
vs.
SALLY HOWE SMITH, in her official
capacity as Court Clerk for Tulsa County,
Defendant.
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Case No. 04-cv-848-TCK-TLW
DEFENDANTS BRIEF IN OPPOSITION TO PLAINTIFFS MOTION FOR

JUDGMENT ON AMOUNT OF APPEAL-RELATED ATTORNEYS FEES
Respectfully submitted,
James A. Campbell
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260
(480) 444-0020 phone
(480) 444-0028 fax
/s/ John David Luton

John David Luton, OBA No. 11669
Assistant District Attorney
Tulsa County District Attorney's Office
500 S. Denver, Suite 832
Tulsa, OK. 74103
(918) 596-4814 phone
(918) 596-4804 fax
jluton@tulsacounty.org
January 5, 2015
TABLE OF CONTENTS
I.
INTRODUCTION .
II.
PLAINTIFFS APPEAL-RELATED ATTORNEYS FEES

SHOULD BE REDUCED, AS A MATTER OF LAW, BY
$135,880.00 IN NON-COMPENSABLE TIME ...
PLAINTIFFS APPEAL-RELATED EXPENSES

SHOULD BE REDUCED, AS A MATTER OF LAW, BY
$1,263.86 IN NON-COMPENSABLE EXPENSES
10
PLAINTIFFS HAVE FAILED TO EXERCISE SUFFICIENT

BILLING JUDGMENT IN THEIR CALCULATION AND
PLAINTIFFS APPEAL-RELATED ATTORNEYS FEES SHOULD
BE FURTHER SUBJECT TO A SUBSTANTIAL REDUCTION TO
ACCOUNT FOR AN UNREASONABLE AMOUNT OF TIME
10
V.
AN ENHANCEMENT OF THE LODESTAR IS NOT WARRANTED .
20
VI.
CONCLUSION ...
22
III.
IV.
DEFENDANT SMITHS EXHIBITS

PLAINTIFFS REQUEST FOR EXPEDITIOUS RULING TO JOIN
THE PLAINTIFFS IN KITCHEN BEFORE THE TENTH CIRCUIT
COURT OF APPEALS AND POSSIBLY THE SUPREME COURT
Exhibit 1
MOTION TO EXPEDITE APPEAL WITH

PLAINTIFFS IN FULL AGREEMENT ...
Exhibit 2
PRINCIPAL AND RESPONSE BRIEF ..
Exhibit 3
REPLY BRIEF ... Exhibit 4

APPELLEES RESPONSE BRIEF IN SUPPORT OF CERTIORARI ....
Exhibit 5
ORDER RE: ORAL ARGUMENT ...........
Exhibit 6
TENTH CIRCUIT ORDER RE: ATTORNEYS FEES ...........
Exhibit 7
DOCKET SHEET ON APPEAL 14-5003 .
Exhibit 8
AFFIDAVIT OF ROBERT SARTIN .. Exhibit 9

AFFIDAVIT OF JANDRA JORGENSON ...
i
Exhibit 10
TABLE OF AUTHORITIES
Page
American Civil Liberties Union of Kentucky v. McCreary County, Kentucky,
2009 WL 720904 (E.D. Ky. 2009) .
19
Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ...
Board of Trustees of Hotel and Restaurant Employees Local 25 v.

Madison Hotel, Inc., 43 F.Supp.2d 8 (D. D.C. 1999)
19
Blum v. Stenson, 465 U.S. 886 (1984)
20-21
Bostic v. Rainey, 970 F. Supp.2d 456 (E.D. Va. 2014) ..
15, 17
Brady v. Wal-Mart Stores, Inc., 2010 WL 4392566 (E.D.N.Y. 2010) ...
19
Carter v. Sedgwick County, Kan., 36 F.3d 952 (10th Cir. 1994)
City of Burlington v. Dague, 505 U.S. 557 (1992) ..
21
Copeland v. Marshall, 641 F.2d 880 ..
14
Critchlow v. First Unum Life Ins. Co. of America, 377 F.Supp.2d 337 (W.D.N.Y. 2005) 19
Glassroth v. Moore, 347 F.3d 916, 919 (11th Cir. 2003) ...
6-7
Gragert v. Lake, 2014 WL 3828705 (W.D. Okla. 2014)
Heavener v. Meyers, 158 F.Supp.2d 1278 (E.D. Okla. 2001)
Hensley v. Eckerhart, 461 U.S. 424 (1983) . 7, 12-15

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .
15
In re Reid, 399 B.R. 307 (Bankr.W.D. Ky. 2008) ..
19
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)
12
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) 5, 15-17

Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216 (9th Cir. 2010) ..
17
League of Wilderness Defenders/Blue Mountains Biodiversity

Project v. U.S. Forest Service, 2014 WL 3546858 (D. Or. 2014) ..
17
ii
TABLE OF AUTHORITIES (continued)

Page
Lee v. Orr, 2014 WL 683680 (N.D. Ill. 2014)
16-17
Mares v. Credit Bureau of Raton, 801 F.2d 1197 (10th Cir. 1986)
14
Marquez v. Harper Sch. Dist. No. 66, 546 Fed. Appx. 659 (9th Cir. 2013) ...
17
Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986)
12, 20
Perdue v. Kenny, 559 U.S. 542 (2010) 11-12, 19-22

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983)
12, 14-15
Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998) ...
15
Safeworks LLC v. Teupen Am. LLC, 2010 WL 3033711 (W.D. Wash. 2010)
17
Smith v. Freeman, 921 F.2d 1120 (10th Cir. 1990)
Spradley v. Owens-Illinois Hourly Employees Welfare Ben. Plan,

2011 WL 209164 (10th Cir. 2011) ..
14
U.S. v. Windsor, 133 S.Ct. 2675 (2013) ...
15-16
STATUTES
42 U.S.C. 1988
8, 17, 21
42 U.S.C. 1988(b) ..
3, 11
OTHER AUTHORITIES
OKLA. CONST. ART. XV 1 .
OKLA. CONST. ART. II 35 .
William M. Richman and William L. Reynolds, Injustice On Appeal:

The United States Courts of Appeals in Crisis, p. 188 (Oxford Univ. Press 2013) .
15
RULES
FED.R.CIV.P. 54(d)(2)
iii
11, 14

MARY BISHOP,
SHARON BALDWIN,
GAY E. PHILLIPS,
Plaintiffs,
vs.
Defendant.
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DEFENDANTS BRIEF IN OPPOSITION TO PLAINTIFFS MOTION FOR

JUDGMENT ON AMOUNT OF APPEAL-RELATED ATTORNEYS FEES
Defendant Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County
(Defendant Smith), hereby submits her Brief in Opposition to Plaintiffs Motion for Judgment
on Amount of Appeal-Related Attorneys Fees (Plaintiffs Motion), in which she requests, on
behalf of Tulsa County taxpayers, that the amount of Plaintiffs Appeal-Related Attorneys Fees
be reduced by $135,880.00 in non-compensable time, by an additional $1,263.86 in noncompensable expenses and be reduced by an additional $123,208.64 in unreasonable and
excessive time, and judgment entered on Plaintiffs Motion in the amount of $108,475.00 in
recoverable appeal-related attorneys fees. Defendant Smith submits the following brief:
I.
Introduction
Like every public officer, prior to taking office, Defendant Smith swore to support,
obey, and defend the Constitution of the State of Oklahoma. Okla. Const. Art. XV, 1. At the
time that Defendant Smith denied a marriage license to Plaintiffs Bishop and Baldwin (both
women) in February 2009, the Oklahoma Constitution provided:
A. Marriage in this state shall consist only of the union of one man and one
woman. Neither this Constitution nor any other provision of law shall be
construed to require that marital status or the legal incidents thereof be conferred
upon unmarried couples or groups.
B. 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.
C. Any person knowingly issuing a marriage license in violation of this section
shall be guilty of a misdemeanor.
Okla. Const. Art. II, 35. According to subsection C above, if Defendant Smith had not denied
Plaintiffs Bishop and Baldwin a marriage license, she would have committed a crime. Plaintiffs
Phillips and Barton (both women) married in Canada in 2005, and wed again in California in
2008; they sought to have their out-of-state marriage recognized as valid by the State of
Oklahoma, but Defendant Smith has nothing to do with recognizing out-of-state marriages.
Plaintiffs Bishop and Baldwin challenged the constitutionality of Part A of Okla. Const.
Art. II, 35. They prevailed in district court1 and on appeal as Appellees and are entitled to
appeal-related attorneys fees for their Response Brief and Oral Argument.
Plaintiffs Barton and Phillips challenged the constitutionality of Part B of Okla. Const.
Art. II, 35. They did not prevail in district court2 nor on appeal as Cross-Appellants and are
not entitled to attorneys fees for their Principal and Reply Briefs on Cross-Appeal or for their
Oral Argument.
On January 14, 2014, this Court issued its Opinion and Order granting Plaintiffs Motion for
Summary Judgment as to Part A of Art. II, 35 and denying Defendant Smiths Cross-Motion
for Summary Judgment on the same issue. The Court permanently enjoins enforcement of Part
A against same-sex couples seeking a marriage license. Opinion and Order, p. 67 (Dkt. #272).
On January 14, 2014, this Court granted Defendant Smiths Cross-Motion for Summary
Judgment as to Part B of Art. II, 35, and dismissed Plaintiffs Phillipss and Bartons claims
against her for lack of standing. See Opinion and Order, pp. 67-68 (Dkt. #272).
2
Neither Plaintiffs Bishop and Baldwin nor Defendant Smith sought trial-related
attorneys fees. Following dismissal of the State of Oklahoma and the United States as party
defendants, this case proceeded on appeal between all four Plaintiffs on one side, and Defendant
Smith on the other. See Opinion and Order (Dkt. #148) (dismissing State of Oklahoma), and
Opinion and Order (Dkt. #272) (dismissing United States).
On July 18, 2014, the Tenth Circuit Court of Appeals affirmed this Courts January 14,
2014 Opinion and Order, see Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert. denied, 135
S.Ct. 271 (Oct. 6, 2014), and on October 28, 2014, the Tenth Circuit Court of Appeals issued its
decision on Plaintiffs Application for Appeal-Related Attorneys Fees:
In their motion, plaintiffs seek an award of fees for all plaintiffs as prevailing
parties under 42 U.S.C. 1988(b).
Upon consideration, the motion is granted in part and denied in part. We deny the
request for fees as it relates to an award for plaintiffs Barton and Phillips, who
did not prevail on appeal. We grant the motion, however, as it relates to plaintiffs
Bishop and Baldwin. We remand to the United States District Court for the
Northern District of Oklahoma to conduct all proceedings necessary to determine
an appropriate award amount.
Tenth Circuit Order, Exhibit 7 (emphasis added).
II.
Plaintiffs Appeal-Related Attorneys Fees Should be Reduced,
as a Matter of Law, by $135,880.00 in Non-compensable Time3
Before examining Plaintiffs lodestar calculation, their appeal-related attorneys fees
must be reduced by $135,880.00 because the express line items in the billing records submitted
by Plaintiffs reflect billings for amounts not permitted by law.
Many of the time entries
submitted by Plaintiffs counsel are non-compensable as a matter of law, and this section deals
with such time entries. The Tenth Circuit Court of Appeals den[ied plaintiffs] request for fees
See Exhibit A to the Affidavit of Robert Sartin, Exhibit 9 (itemized entry-by-entry account).
3
as it relates to an award for plaintiffs Barton and Phillips, who did not prevail on appeal. Tenth
Circuit Order, Exhibit 7. Accordingly, the following time entries are non-compensable:
Entries
3
180
209 -16
106-14
Attorney
Warner
Holladay
Holladay
Thai
Dates
1/23
3/16
4/2 4/7
4/1 4/7
Hours
0.2 hrs
2 hrs
6 hrs
37.1 hrs
Description
work on cross-appellants notice of appeal
work on cross-appellants principal brief
work on cross-appellants reply brief
work on cross-appellants reply brief
Based on such non-compensable time entries,4 the amount of Plaintiffs appeal-related attorneys
fees should be reduced by $17,695.00. See Exhibit A, p. 1, to the Affidavit of Robert Sartin,
Exhibit 9 (itemized entry-by-entry account, including dollar amounts).
Despite Plaintiffs claims to have excised all time entries pertaining to their losing crossappeal, the following entries expressly state that the time expended was in furtherance of both the
Cross-Appellants Principal Brief and the Appellees Response Brief:
Entries
155
6-15
84
Attorney
Holladay
Warner
Thai
Dates
3/7
3/3 3/17
3/15
Hours
3 hrs
38.6 hrs
8.5 hrs
Description
work on principal and response brief
The evidence provided by Plaintiffs clearly shows that half of these time entries were expended
on the Principal Brief filed on behalf of the losing cross-appellants, and is therefore noncompensable;5 the amount of Plaintiffs appeal-related attorneys fees should be reduced by an
additional $7,532.50 to account for such non-compensable time. See Exhibit A, p. 1, to the
Affidavit of Robert Sartin, Exhibit 9 (itemized entry-by-entry account, including dollar
amounts).
This appeal was wrapped up after three months, following oral argument on April 17,
2014. See Appellate Docket Sheet, Exhibit 8. Following oral argument, but prior to the Tenth
See Affidavit of Robert Sartin, 12 & 14, Exhibit 9.
See Affidavit of Robert Sartin, 13, Exhibit 9.

4
Circuits decision in this case, attorneys Holladay and Thai continued to bill for their time
reviewing non-controlling district court decisions, checking an oral argument before the Sixth
Circuit Court of Appeals and reviewing and analyzing the Tenth Circuits decision in Kitchen v.
Herbert, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 135 S.Ct. 265 (Oct. 6, 2014). Plaintiffs
evidence wholly fails to link such edification to Plaintiffs Bishops and Baldwins success on
appeal. While Plaintiffs Bishop and Baldwin are entitled to appeal-related attorneys fees, time
spent reviewing non-controlling district court decisions after the case was at issue cannot
reasonably be billed to ones client,6 and hence, cannot reasonably be billed to ones adversary
under a fee-shifting statute. Accordingly, the following time entries are non-compensable:
Entries
238-43
Attorney Dates
Hours
Holladay 6/13 6/25 3.4 hrs
128-35
Thai
Description
review three district court decisions, attend to
6th Circuit oral argument and analyze Kitchen
review and annotate six district court decisions
and review and annotate Kitchen
5/13 6/26 7.2 hrs
To remove these non-compensable time entries following oral argument and prior to the Tenth
Circuits decision in this case, the amount of Plaintiffs appeal-related attorneys fees should be
reduced by an additional $4,070.00. See Exhibit A, p. 2, to the Affidavit of Robert Sartin,
Exhibit 9 (itemized entry-by-entry account, including dollar amounts).
On July 18, 2014, the Tenth Circuit Court of Appeals published its decision affirming the
ruling of this Court on cross motions for summary judgment. Defendant Smith thereupon filed a
Petition for Writ of Certiorari. See Appellate Docket Sheet, Exhibit 8. After reviewing the
appellate decision and conferencing among themselves (see Holladay entries 244-47 and Thai
entries 136-37), counsel for Plaintiffs Bishop and Barton all but switched sides, joined Defendant
Smith, and filed a Response Brief in support of certiorari, duplicating Defendant Smiths efforts
in this respect and concluding: the petition for a writ of certiorari should be granted. Certiorari
6

5
Response Brief, p. 32, Exhibit 5. Clearly, Plaintiffs counsel wanted to be part of history, even
if it meant placing their appellate victory at risk, but none of the parties prevailed in their mutual
quest for certiorari and therefore no prevailing party attorneys fees may be awarded thereon.7
Or, put another way, their response brief was duplicative and unnecessary in light of Defendant
Smiths Petition for Certiorari (which had requested the same relief). Either way, the following
time entries are non-compensable:
Entries
248-80
31-38
138-81
Attorney
Holladay
Warner
Thai
Dates
8/10 8/25
8/11 8/26
7/23 8/26
Hours
27.6 hrs
25.4 hrs
78.5 hrs
Description
work on brief supporting Defs Pet. for Cert.
Plaintiffs did not prevail in their request for certiorari. The amount of Plaintiffs appeal-related
attorneys fees should be reduced by an additional $48,045.00 to account for such noncompensable time. See Exhibit A, pp. 3-4, to the Affidavit of Robert Sartin, Exhibit 9
(itemized entry-by-entry account, including dollar amounts).
As a matter of law, Plaintiffs counsel may not be compensated for work done in
connection with supporting amicus briefs. The Court in Glassroth v. Moore, 347 F.3d 916, 919
(11th Cir. 2003), denied recovery for attorneys fees and expenses for work done in connection
with supporting amicus briefs, and in so doing stated: An organization or group that files an
amicus brief on the winning side is not entitled to attorneys fees and expenses as a prevailing
party, because it is not a party. We will not allow that result to be changed by the simple
expedient of having counsel for a party do some or all of the amicus work. Although time spent
reading and responding to opposing amicus briefs is compensable (see, e.g., Holladay entries 83
and 126, and Thai entry 33), Plaintiffs should be precluded from recovering any attorneys fees

6
for time spent coordinating, assisting and drafting amicus briefs in support of their position.8 As
noted by the Eleventh Circuit Court of Appeals in Glassroth:
It comes as no surprise to us that attorneys for parties solicit amicus briefs in
support of their position, nor are we shocked that counsel for a party would have a
hand in writing an amicus brief. In fact, we suspect that amicus briefs are often
used as a means of evading the page limitations on a partys briefs. Even where
such efforts are successful, however, they should not be underwritten by the other
party. . . . To pay a party for such work would encourage the practice, which we
are loathe to do. The district court should not award plaintiffs any attorneys fees
or expenses for work done in connection with supporting amicus briefs.
Glassroth, 347 F.3d at 919 (citation omitted). Accordingly, the following time entries are noncompensable:
Entries
5-228
Attorney Dates
Hours
Holladay 1/15 4/13 89.6 hrs
4-7
Warner
2/3 3/4
4-100
Thai
1/23 3/26 25.6 hrs
Description
coordinating, assisting and drafting amicus
briefs in support of Plaintiffs position
5 hrs
The Plaintiffs appeal-related attorneys fees should be reduced by an additional $42,975.00 to

account for non-compensable time spent coordinating, assisting and drafting amicus briefs in
support of their position. See Exhibit A, pp. 5-7, to the Affidavit of Robert Sartin, Exhibit 9
(itemized entry-by-entry account, including dollar amounts).
Don Holladay prepared for and attended oral argument in this case. See Holladay entries
234-37). It was unnecessary and duplicative for attorneys Warner and Thai to travel to Denver
and attend oral argument;9 Plaintiffs should not recover for such duplicative time. Counsel for
the prevailing party should make a good faith effort to exclude from a fee request hours that are
excessive, redundant, or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424, 434, 103
S.Ct. 1933, 76 L.Ed.2d 40 (1983). See also Gragert v. Lake, 2014 WL 3828705 (W.D. Okla.
8

7
2014) (duplicative work is non compensable); and Carter v. Sedgwick County, Kan., 36 F.3d
952, 956 (10th Cir. 1994) (upholding reduction of compensable hours based on hours that were
unnecessary, irrelevant and duplicative). The following time entries are non-compensable:
Entries
18-21
121-24
Attorney Dates
Hours
Warner
4/16 4/17 8.5 hrs
Thai
4/16 4/17 8.5 hrs
Description
travel to/from Denver and attend oral argument
travel to/from Denver and attend oral argument
The amount of Plaintiffs appeal-related attorneys fees should be reduced by an additional

$5,737.50 to account for such non-compensable time. See Exhibit A, p. 7, to the Affidavit of
Robert Sartin, Exhibit 9 (itemized entry-by-entry account, including dollar amounts).
Plaintiffs are not entitled to recover attorneys fees for secretarial tasks. See Heavener v.
Meyers, 158 F.Supp.2d 1278, 1285 fn. 12 (E.D. Okla. 2001) (plaintiff not entitled to be
compensated for secretarial functions under 42 U.S.C. 1988). Professor Thais entries at 87
and 88 for converting and formatting the Response Brief and working on its table of contents and
table of authorities is secretarial work and non-compensable.10 Accordingly, the amount of
Plaintiffs appeal-related attorneys fees should be reduced by an additional $5,800.00 to account
for such non-compensable time. See Exhibit A, p. 8, to the Affidavit of Robert Sartin, Exhibit
9 (itemized entry-by-entry account, including dollar amounts).
Don Holladays travel to Denver on April 10, 2014, to attend oral argument in the
Kitchen appeal was wholly unnecessary and is not the type of time normally billed to ones
client.11 Tenth Circuit oral arguments are available on the Courts website within 24 hours of
hearing (see Order, p. 4, Exhibit 6), and if Mr. Holladay had desired to be privy to the oral
argument in Kitchen, he could have simply downloaded the .mp3 file.12 Accordingly, the
10
11
12
See http://www.uscourts.gov/courts/ca10/13-4178.mp3.
8
amount of Plaintiffs appeal-related attorneys fees should be reduced by an additional $2,450.00

to account for such non-compensable time. See Exhibit A, p. 8, to the Affidavit of Robert
Sartin, Exhibit 9 (itemized entry-by-entry account, including dollar amounts).
With respect to Mr. Holladays travel to Denver for oral argument in this case, he should
only bill 25% of his normal hourly rate since he has provided no evidence that he performed any
substantive work while travelling.13 As noted by the Tenth Circuit Court of Appeals in Smith v.
Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990) (affirming award of travel time at 25% of
standard hourly rate), an attorneys [travel] time, while necessary, is essentially unproductive
and, therefore, compensable at a reduced hourly rate. Accordingly, the amount of Plaintiffs
appeal-related attorneys fees should be reduced by an additional $1,575.00 to account for such
non-compensable time. See Exhibit A, p. 8, to the Affidavit of Robert Sartin, Exhibit 9.
In summary, the following time is, as a matter of law, non-compensable and must be
subtracted from the amount requested by Plaintiffs for appeal-related attorneys fees:
Amount
Non-compensable Time
$17,695.00 work on cross-appellants notice of appeal, principal brief and/or reply brief
$7,532.50 work on cross-appellants principal brief in time entries expressly billed for
principal and response brief
$4,070.00 reviewing district court decisions after the case was at issue following oral
argument, prior to the Tenth Circuits decision
$48,045.00 research and write brief in support of Defendant Smiths Petition for Certiorari
$42,975.00 coordinating, assisting and drafting amicus briefs in support of plaintiffs position
$5,737.50 unnecessary and duplicative travel to Denver by attorneys Warner and Thai to
attend oral argument
$5,800.00 secretarial work formatting brief and building table of contents and authorities
$2,450.00 travel time to Denver to attend oral argument in Kitchen v. Herbert case
$1,575.00 75% reduction in Mr. Holladays normal billing rate for time spent travelling
$135,880.00 total non-compensable time
13

9
III.
Plaintiffs Appeal-Related Expenses Should be Reduced,
as a Matter of Law, by $1,263.86 in Non-compensable Expenses14
For the same reasons articulated in the preceding section with respect to noncompensable time, the following are non-compensable expenses:
Amount
Non-compensable Expense
$279.47 travel expenses to Denver for Mr. Holladay to attend oral argument in Kitchen v.
Herbert case and for Mr. Warner to attend oral argument in this case
$409.57 additional travel expenses in Denver for Mr. Holladay to attend oral argument in
Kitchen v. Herbert case
$407.72 hotel rooms in Denver for Mr. Warner and Mr. Thai to attend oral argument
$120.00 additional travel expenses in Denver for Mr. Thai to attend oral argument
$47.10 FedEx expense to file brief in support of Defendant Smiths Petition for Certiorari
$1,263.86 total non-compensable expenses
IV.
Plaintiffs Have Failed to Exercise Sufficient Billing Judgment
in Their Calculation and Plaintiffs Appeal-Related Attorneys Fees Should be
Further Subject to a Substantial Reduction to Account for an Unreasonable Amount of Time
On January 16, 2014, Defendant Smith filed her Notice of Appeal, and three months
later, the Tenth Circuit Court of Appeals heard oral argument. These three months (i.e, January
16, 2014 through April 17, 2014) constitute the sole time period for which Plaintiffs Bishop and
Baldwin are entitled to recover appeal-related attorneys fees.
This Court must resist the temptation to understand Plaintiffs Motion for Judgment on
Amount of Appeal-Related Attorneys Fees as pertaining to anything beyond these three months.
14
See Exhibit C to the Affidavit of Robert Sartin, Exhibit 9 (itemized entry-by-entry

account).
10
The ten years Plaintiffs spent litigating these issues before this Court, prior to appeal, are not at
issue herein, nor can they be.15
On remand to determine an appropriate award amount, Plaintiffs have filed a Motion
for Judgment on Amount of Appeal-Related Attorneys Fees seeking $368,827.50 for three
months of appellate work in which they had only limited success only the Bishop and Baldwin
Plaintiffs prevailed. Once the reductions identified in Section II above have been made based on
express line items that reflect unlawful billings, Plaintiffs remaining time records still reflect
613.2 hours and $224,607.50 for drafting one Response Brief and preparing for one 15 minute
oral argument.16 To the extent this amount of time and money is more than sufficient to induce
a capable attorney to undertake the representation of a meritorious civil rights [appeal],17 then it
is exceeds the reasonable fee authorized by 42 U.S.C. 1988(b) and needs to be trimmed.
The inequity of taxing local residents for a county officers support, obedience and
defense of the State Constitution is apparent on its face; while 42 U.S.C. 1988(b) may require
local taxpayers to answer for Plaintiffs reasonable attorneys fee on appeal, Tulsa County
taxpayers should not be assessed one penny more than the law requires. Justice demands that
15
See Fed. R. Civ. P. 54(d)(2).
16
See Exhibit B to the Affidavit of Robert Sartin, Exhibit 9 (itemized entry-by-entry

account).
17
Perdue v. Kenny, 559 U.S. 542, 552, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010) ([A]
reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the
representation of a meritorious civil rights case. If plaintiffs find it possible to engage a lawyer
based on the statutory assurance that he will be paid a reasonable fee, the purpose behind the
fee-shifting statute has been satisfied. A reasonable attorneys fee is one that is adequate to
attract competent counsel, but that does not produce windfalls to attorneys. Section 1988s aim
is to enforce the covered civil rights statutes, not to provide a form of economic relief to improve
the financial lot of attorneys. (Ellipsis, brackets, internal quotation marks and citations omitted
and emphasis added).
11
measures of length, weight or quantity, including Plaintiffs lodestar calculation for recovery of
appeal-related attorneys fees, be scientific, true and beyond contestation.
In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983),
the Supreme Court established that in fee shifting cases the basis of a fee award is the objective
lodestar calculation the number of hours reasonably expended multiplied by the applicable
hourly market rate for legal services.
[T]he lodestar looks to the prevailing market rates in the relevant community[,
and] produces an award that roughly approximates the fee that the prevailing
attorney would have received if he or she had been representing a paying client
who was billed by the hour in a comparable case. . . . [A]nd unlike the Johnson
approach,18 the lodestar calculation is objective, and thus cabins the discretion
of trial judges, permits meaningful judicial review, and produces reasonably
predictable results.
Perdue v. Kenny, 559 U.S. 542, 551-52, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010) (internal
quotation marks, citations omitted and emphasis added).
As explained by the Tenth Circuit Court of Appeals in Ramos v. Lamm, 713 F.2d 546,
555 (10th Cir. 1983), overruled on other grounds, Pennsylvania v. Del. Valley Citizens Council
For Clean Air, 483 U.S. 711, 725 (1987):
The first step in setting a rate of compensation for the hours reasonably expended
is to determine what lawyers of comparable skill and experience practicing in the
area in which the litigation occurs would charge for their time. If the lawyer
seeking the fee is in private practice, his or her customary rate would be a relevant
18
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717719 (5th Cir. 1974), listed 12
factors that a court should consider in determining a reasonable fee. This method, however,
gave very little actual guidance to district courts. Setting attorneys fees by reference to a series
of sometimes subjective factors placed unlimited discretion in trial judges and produced
disparate results. Perdue v. Kenny, 559 U.S. 542, 551-52, 130 S.Ct. 1662, 1672, 176 L.Ed.2d
494 (2010) (quoting Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S.
546, 563, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)). The twelve factors were: (1) the time and
labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform
the legal service properly; (4) the preclusion of employment by the attorney due to the
acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of
the case; (11) the nature and length of the professional relationship with the client; and (12)
awards in similar cases. Perdue, 559 U.S. at 551, fn. 4.
12
but not conclusive factor. The hourly rate should be based on the lawyers skill
and experience in civil rights or analogous litigation. Lawyers working outside
their fields of expertise may deserve an hourly fee lower than their normal billing
rate because of their lack of experience in the civil rights field. . . . The quality of
the lawyers performance in the case should also be considered in placing a value
on his or her services.
The hourly rate sought in this case by James Warner, $275.00 per hour, is admittedly the
prevailing market rate; however, because neither he nor his partner, Don Holladay, have
submitted proof of experience in the civil rights field, they may deserve a lower hourly rate. The
hourly rate sought in this case by Don Holladay, $350.00 per hour, is above the prevailing
market rate, but based on his years of practice, his experience in analogous litigation and his
performance in this case, Defendant agrees that $350.00 is a reasonable hourly rate for Don
Holladay. Additionally, based on his performance in this case, Defendant agrees that $275.00 is
a reasonable hourly rate for James Warner.
Defendant believes that the $400.00 per hour rate sought in this case by Joseph Thai
exceeds the prevailing market rate, and that his participation in this case was wholly
unnecessary.19 Moreover, the use of Mr. Thai to write the appellate brief resulted in duplication
of effort and the expenditure of time to familiarize himself with the law and facts already
possessed by attorneys Holladay and Warner from litigating the case in district court. 20
The party seeking an award of fees should submit evidence supporting the hours
worked and rates claimed. . . . The district court . . . should [then] exclude from
this initial fee calculation hours that were not reasonably expended. Cases may
be overstaffed, and the skill and experience of lawyers vary widely. Counsel for
the prevailing party should make a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in
private practice ethically is obligated to exclude such hours from his fee
submission. In the private sector, billing judgment is an important component
in fee setting. It is no less important here. Hours that are not properly billed to
ones client also are not properly billed to ones adversary pursuant to statutory
authority.
19
See Affidavit of Robert Sartin, 7-9, Exhibit 9.
20

13
Hensley, 461 U.S. 433-34 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (1980) (en banc)
(emphasis in original).
As evidenced by the express line entries identified in Section II above, and as further
detailed below, Plaintiffs counsel has clearly failed to exercise appropriate billing discretion
in this case. Plaintiffs claim they exercised billing discretion in not seeking attorneys fees for
the work that they did in the trial court. Plaintiffs Motion, p. 16 (Dkt. #299). This, however, is
not the exercise of billing discretion; rather, the time for requesting trial-related attorneys fees
has long since passed. Plaintiffs are time-barred from obtaining those fees.21 When the deadline
passed, discretion was extinguished.22
[T]he district court must carefully scrutinize the total number of hours reported to arrive
at the number of hours that can reasonably be charged to the losing party, much as a senior
partner in a private firm would review the reports of subordinate attorneys when billing clients
whose fee arrangement requires a detailed report of hours expended and work done. Ramos,
713 F.2d at 555. The burden is not for the court to justify each dollar or hour deducted from the
total submitted; rather, it remains the fee applicants burden to prove and establish the
reasonableness of each dollar, each hour, above zero. Mares v. Credit Bureau of Raton, 801
F.2d 1197, 1210 (10th Cir. 1986). While a claimant's lodestar calculation is entitled to a
21
The time for requesting trial-related attorneys fees expired 14 days after the entry of judgment.
See Fed. R. Civ. P. 54(d)(2).
22
Notably, the parties filing of Notices of Appeal did not prevent Plaintiffs from filing, or
deprive this Court of jurisdiction to consider, a motion for trial-related attorneys fees. As the
Tenth Circuit has stated: A motion for attorney fees is considered collateral to and separate
from the decision on the cases merits. While filing notice of appeal generally divests the district
court of jurisdiction over the issues on appeal, . . . the district court retains jurisdiction over
collateral matters not involved in the appeal. . . . Attorneys fees awards are collateral matters
over which the district court retains jurisdiction. Spradley v. Owens-Illinois Hourly Employees
Welfare Ben. Plan, No. CIV-09-460-RAW, 2011 WL 209164 (10th Cir. Jan. 21, 2011) (internal
quotation marks and citations omitted).
14
presumption of reasonableness, Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.
1998), the Tenth Circuit requires meticulous, contemporaneous time records and may
substantially reduce or even deny a fee award in their absence. Ramos, 713 F.2d at 553. Where
the documentation of hours is inadequate, the district court may reduce the award accordingly.
Hensley, 461 U.S. at 433.
Because Plaintiffs attorneys in this case provided pro bono representation, the normal
market controls provided by client review of the billing records and by internal law firm control
over the accuracy and reasonableness of time entries are not present in this case. Indeed, none of
the billing attorneys has testified that his time records were created contemporaneous with the
work performed.
The issues in this case are obviously important; but defending this Courts decision was
not all that difficult. On appeal to the Tenth Circuit, there is generally less than a ten percent
(10%) chance of reversal.23 The parties district court briefing on cross motions for summary
judgment and this Courts 68-page Opinion and Order clearly informed and framed the issues for
appeal. In addition, the ink was still drying on a floodgate of recently-decided federal court
decisions24 in favor of same sex marriage. See U.S. v. Windsor, 133 S.Ct. 2675, 2694, 186
L.Ed.2d 808 (U.S. June 26, 2013) (federal Defense of Marriage Act found unconstitutional under
the Fifth Amendment); Kitchen v. Herbert, 961 F. Supp.2d 1181 (D. Utah Dec. 20, 2013) (Utah
ban on same-sex marriage unconstitutional); Bostic v. Rainey, 970 F. Supp.2d 456 (E.D. Va. Feb.
23
William M. Richman and William L. Reynolds, Injustice On Appeal: The United States
Courts of Appeals in Crisis, p. 188 (Oxford Univ. Press 2013) (citing a 6.8 percent district court
reversal rate for the Tenth Circuit Court of Appeals in 2009).
24
And through PACER, or a simple phone call, access to any of their accompanying motions and
briefs. In fact, the issues raised in this case, as this Court has recognized, have already been
considered by and fully briefed before the Supreme Court in Hollingsworth v. Perry, 133 S.
Ct. 2652 (2013). See Opinion and Order, pp. 7 & 57-58 (Dkt. #272). While standing
deficiencies prevented the Supreme Court from resolving the substantive constitutional questions
raised in Hollingsworth, the issues were fully briefed before the high court, so the Plaintiffs here
had a model to follow on appeal.
15
13, 2014) (Virginia ban on same-sex marriage unconstitutional); and Lee v. Orr, No. 13-cv-8719,
2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (Illinois ban on same-sex marriage unconstitutional).
As Plaintiffs themselves point out, [s]ince Windsor, every federal court to have
considered the issue . . . has concluded that states may no more deprive same-sex couples of
marriage than they may deny interracial couples the exercise of that fundamental right;25 and
while important, their case is neither a complicated nor a difficult one.26
So, after the unlawful entries are removed (see Section II above), why do Plaintiffs
counsel still bill more than 600 hours for drafting a response brief and preparing for a 7 minute
oral argument (after all, half of the 15 minute oral argument was devoted to the non-prevailing
cross-appellants).27
Non-contemporaneous time records certainly account for some of this
discrepancy. Additionally, as shown by the express line items identified in Section II above,
Plaintiffs counsel has not (contrary to the representations in Plaintiffs Motion) completely
excised all work performed on behalf of the non-prevailing Cross-Appellants Barton and
Phillips. If Plaintiffs counsel overlooked line items expressly stating the work performed was
drafting a Notice of Appeal (Warner 3) and drafting a Reply Brief (Thai 108), then undoubtedly
entries that required closer scrutiny to identify clearly survived the purported purge.
The
submitted time records contain vague entries and the occasional use of block billing
25
Certiorari Response Brief, p. 12, Exhibit 5.
26
Principal and Response Brief, p. 1, Exhibit 3.
27
See http://www.uscourts.gov/courts/ca10/14-5003.mp3.
16
throughout,28 but their constant compilation of hour upon hour of attorneys time results not from
protecting a district court decision on appeal, but rather, from seeking something more,
something beyond the pale of recoverable attorneys under 42 U.S.C. 1988.
Plaintiffs counsel, anxious to climb aboard the outbound train for fame and glory a
train that was driven by the Windsor locomotive, followed closely behind by Kitchen, Bostic and
Lee requested this Court to expeditiously rule on its pending motion for summary judgment29
and joined Defendant Smith30 in seeking and receiving an accelerated briefing schedule from the
Tenth Circuit Court of Appeals to hopefully consolidate this appeal with the one in front of it, the
appeal from Utah in Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014), cert. denied, 135 S.Ct.
265 (Oct. 6, 2014). Most of the work performed by Plaintiffs counsel was not to protect its
district court victory from being reversed on appeal, but rather to be worthy of argument before
the United States Supreme Court. This fact becomes crystal clear when counsel for Plaintiffs
Bishop and Barton all but switched sides, joined Defendant Smith, and filed a Response Brief in
support of certiorari, placing their appellate victory at risk for an opportunity to appear before
the Supreme Court. Plaintiffs counsel was tasked with conquering the town, but instead, they
sought to leave no brick standing. They used a howitzer to kill a gnat. To say they overshot the
mark would be an understatement.
The citizens of Tulsa County are responsible for a
reasonable attorneys fee, no more.
28
See, e.g., League of Wilderness Defenders/Blue Mountains Biodiversity Project v. U.S. Forest
Service, 2014 WL 3546858, at *7 (D. Or. 2014) (reducing block-billed entries by 50%); Marquez
v. Harper Sch. Dist. No. 66, 546 Fed. Appx. 659, 660 (9th Cir. 2013) (affirming 100% cut to
same); Safeworks LLC v. Teupen Am. LLC, 2010 WL 3033711, *2 n.2 (W.D. Wash. 2010)
(eliminating block-billed entries entirely); Lahiri v. Universal Music & Video Distrib. Corp., 606
F.3d 1216, 122223 (9th Cir. 2010) (affirming 30% cut to same).
29
See Plaintiffs Request for Expeditious Ruling, Exhibit 1 (Dkt. 270).
30
See Motion to Expedite Appeal, p. 3, Exhibit 2.

17
Defendant has enlisted the aid of Jandra S. Jorgenson, an expert in civil appellate work.
After detailing the steps necessary to protect the victory won in this Court on appeal to the Tenth
Circuit Court of Appeals, she testifies that the time necessary for me and my co-counsel to
perform the services described in (i)-(ix), above,31 would have been four (4) attorney workweeks of 40 billable hours per week, for a total of 160 hours. Multiplying those 160 hours by the
claimed $400/hr. rate for Plaintiffs counsel, results in a fee of $64,000. She then details the
work necessary to prepare for oral argument and concludes that the time necessary to perform
the services described in (x)-(xii), above,32 including travel time to and from Denver, would have
been two (2) attorney work-weeks of 40 billable hours. Multiplying those 80 hours by the
claimed $400/hr. rate for Plaintiffs counsel results in a fee of $32,000. Ultimately, it is Ms.
Jorgensons opinion that the total attorney fees reasonably awardable to Plaintiffs counsel for
the services they rendered in defense of Bishops and Baldwins prevailing party claims is
$96,000. 33 In like manner, Robert Sartin, shareholder with Barrow & Grimm, P.C., concludes
that the total amount billed for all work required to be done in this case to protect on appeal the
victory won before this Court by Plaintiffs Bishop and Baldwin, consisting primarily of one
Response Brief and one Oral Argument, should not exceed $100,000.00. Generally speaking, to
the extent Plaintiffs counsel have billed more than $100,000.00 in attorneys fees for such work,
their appeal-related billings are to that extent unreasonable and excessive.34
Granting Plaintiffs counsel $100,000.00 for drafting a response brief and preparing for a
7 minute oral argument in this case is more than generous, and would be sufficient to induce a
31
See Affidavit of Jandra S. Jorgenson, 9 (itemizes steps i through ix), Exhibit 10.
32
See Affidavit of Jandra S. Jorgenson, 9 (itemizes steps x through xii), Exhibit 10.
33
See Affidavit of Jandra S. Jorgenson, 9, Exhibit 10.
34

18
capable attorney to undertake the representation of [this] meritorious civil rights [appeal].
Perdue, 559 U.S. at 552. Consequently, it is a reasonable attorneys fee. Id. To this should be
added Plaintiffs counsels time for the actual oral argument and for working on Plaintiffs
application for attorneys fees, another $8,475.00. See Exhibit B, p. 6, to the Affidavit of
Robert Sartin, Exhibit 9 (itemized entry-by-entry account, including dollar amounts).
Judgment should be entered on Plaintiffs Motion for Judgment on Amount of Appeal-Related
Attorneys Fees in the amount of $108,475.00.
Comparable awards for appeal-related attorneys fees in other cases corroborate the
testimony of Robert Sartin and Jandra S. Jorgenson above. See, e.g., American Civil Liberties
Union of Kentucky v. McCreary County, Kentucky, 2009 WL 720904, *2 (E.D. Ky. 2009) (68
hours expended in researching and writing 52-page brief was reasonable); Brady v. Wal-Mart
Stores, Inc., 2010 WL 4392566, *8 (E.D.N.Y. 2010) (appeal-related attorneys fees reduced to
62.5 hours for researching and writing principal and reply brief); In re Reid, 399 B.R. 307, 309
(Bankr.W.D. Ky. 2008) (appeal-related attorneys fees reduced to 30 hours for researching and
writing principal and reply brief); Critchlow v. First Unum Life Ins. Co. of America, 377
F.Supp.2d 337, 343 (W.D.N.Y. 2005) ($15,504.38 awarded for appeal-related attorneys fees);
and Board of Trustees of Hotel and Restaurant Employees Local 25 v. Madison Hotel, Inc., 43
F.Supp.2d 8 (D. D.C. 1999) ($188,598.75 was a reasonable attorneys fee for all the work
performed in the district court, then on appeal and then again before the district court on motion
for summary judgment after remand).
On the other hand, the five cases cited by Plaintiffs actually support Defendant Smith
because the awards for attorneys fees therein were based on trial work, not researching and
writing a brief on appeal. See Plaintiffs Motion, p. 24 (Dkt. #299).
19
V.
An Enhancement Of The Lodestar Is Not Warranted
After explaining the objective nature of the lodestar calculation which cabins the
discretion of trial judges, permits meaningful judicial review, and produces reasonably
predictable results, and explaining that [a] reasonable attorneys fee is one that is adequate to
attract competent counsel, the Supreme Court in Perdue v. Kenny addressed the rare and
exceptional circumstances under which a lodestar calculation may be enhanced. Perdue, 559
U.S. at 552 (2010).
[T]he lodestar figure includes most, if not all, of the relevant factors constituting a
reasonable attorneys fee, and an enhancement may not be awarded based
on a factor that is subsumed in the lodestar calculation. We have thus held that
the novelty and complexity of a case generally may not be used as a ground for an
enhancement because these factors presumably are fully reflected in the number
of billable hours recorded by counsel. We have also held that the quality of an
attorneys performance generally should not be used to adjust the lodestar because
considerations concerning the quality of a prevailing partys counsels
representation normally are reflected in the reasonable hourly rate.
Perdue, 559 U.S. at 553 (brackets, internal quotation marks and citations omitted and emphasis
added).
The Supreme Court has stated on several occasions that most of the Johnson factors are
reflected in the lodestar and should not be the basis of an upward adjustment in attorneys fees.
See, e.g., Pennsylvania v. Del. Valley Citizens Council for Clean Air, 478 U.S. 546, 565, 106
S.Ct. 3088, 92 L.Ed.2d 439 (1986); and Blum v. Stenson, 465 U.S. 886, 898900, 104 S.Ct.
1541, 79 L.Ed.2d 891 (1984).
In those rare and exceptional circumstances under which a lodestar calculation may
be enhanced, an enhancement may be appropriate where the hourly rate is determined by a
formula that takes into account only a single factor (such as years since admission to the bar) or
perhaps only a few similar factors. Perdue, 559 U.S. at 555. This is not such a case because no
formula is being used to determine the hourly rate.
20
[A]n enhancement may [also] be
appropriate if the attorneys performance includes an extraordinary outlay of expenses and the
litigation is exceptionally protracted. Id. Such is not the case in this appeal, which lasted 3
months and cost less than $1,000 in expenses. An enhancement may also be warranted if an
attorneys performance involves exceptional delay in the payment of fees. Again, this is not
that case; at this present time, not even one year has passed since the appeal was filed. These
were the only three rare and exceptional circumstances identified by the Court in Perdue in
which superior attorney performance could possibly justify an enhancement.
[T]he burden of proving that an enhancement is necessary must be borne by the fee
applicant. Perdue, 559 U.S. at 553. [A] fee applicant seeking an enhancement must produce
specific evidence that supports the award. An enhancement must be based on evidence that
enhancement was necessary to provide fair and reasonable compensation. This requirement is
essential if the lodestar method is to realize one of its chief virtues, i.e., providing a calculation
that is objective and capable of being reviewed on appeal. Id. (parentheses, internal quotation
marks and citations omitted). If an enhancement is granted, it must be accompanied by detailed
findings as to why the lodestar amount was unreasonable, and in particular, as to why the quality
of representation was not reflected in the [lodestar]. Blum, 465 U.S. at 900. In City of
Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), the Supreme Court
held that risk or contingency of non-recovery is not a basis for an upward enhancement.
Simply put, no enhancement is justified in this accelerated appeal. Plaintiffs advised the
Tenth Circuit Court of Appeals that this case was neither complicated nor difficult. See Principal
and Response Brief, p. 1, Exhibit 3. At the time of their appeal, they were riding the waves
unleashed by a floodgate of recently-decided federal court decisions in favor of same-sex
marriage. Recovery is sought for only 3 months of appeal-realted attorneys fees: just one brief
and a meager 7 minute oral argument. This Court must resist the temptation to understand
21
Plaintiffs Motion for Judgment on Amount of Appeal-Related Attorneys Fees as pertaining to

anything beyond these three months. The ten years Plaintiffs spent litigating these issues before
this Court, prior to appeal, are not at issue.
The Court in Perdue specifically warned that enhancements should not be based on a
judges subjective opinion regarding particular attorneys or the importance of the case. Perdue,
559 U.S. at 558 (emphasis added). The Supreme Court in Perdue concluded its opinion by
cautioning judges:
Section 1988 serves an important public purpose by making it possible for
persons without means to bring suit to vindicate their rights. But unjustified
enhancements that serve only to enrich attorneys are not consistent with the
statutes aim. In many cases, attorneys fees awarded under 1988 are not paid
by the individuals responsible for the constitutional or statutory violations on
which the judgment is based. Instead, the fees are paid in effect by state and local
taxpayers, and because state and local governments have limited budgets, money
that is used to pay attorneys fees is money that cannot be used for programs that
provide vital public services.
Perdue, 559 U.S. at 559.
VI.
Conclusion
WHEREFORE, Defendant respectfully requests that the amount of Plaintiffs appealrelated attorneys fees be reduced by $135,880.00 in non-compensable time, by an additional
$1,263.86 in non-compensable expenses and be reduced by an additional $123,208.64 in
unreasonable and excessive time, and judgment entered on Plaintiffs Motion in the amount of
$108,475.00 in recoverable appeal-related attorneys fees.
22

John David Luton, OBA No. 11669
Tulsa County District Attorney's Office
500 S. Denver, Suite 900
Tulsa, OK 74103
(918) 596-4814 phone
(918) 596-4804 fax
ATTORNEY FOR DEFENDANT SALLY HOWE
SMITH, in her official capacity as Court Clerk of
Tulsa County, State of Oklahoma
CERTIFICATE OF SERVICE
I hereby certify that on January 5, 2015, I electronically filed the foregoing using the courts
CM/ECF system which will send notification of such filing to the following:
Don G. Holladay
Joseph T. Thai
Phillip Craig Bailey
Timothy P. Studebaker
James E. Warner, III
dholladay@holladaychilton.com
thai@post.harvard.edu
craigbailey1@cox.net
tim@studebakerworleylaw.net
jwarner@holladaychilton.com

John David Luton
23
Case
Case4:04-cv-00848-TCK-TLW
4:04-cv-00848-TCK-TLW Document
Document303-1
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on12/22/13
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on12/22/13
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Document303-1
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on12/22/13
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Case 4:04-cv-00848-TCK-TLW Document 303-2 Filed in USDC ND/OK on 01/05/15 Page 1 of 13

Appellate Case: 14-5003
Document: 01019188759
Date Filed: 01/17/2014
Page: 1
No. 14-5003
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
MARY BISHOP and SHARON BALDWIN, et al.,
Plaintiffs-Appellees,
v.
SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County,
State of Oklahoma,
Defendant-Appellant,
and
THE UNITED STATES OF AMERICA, ex rel. ERIC H. HOLDER, JR., in his
official capacity as Attorney General of the United States of America,
Defendant,
and
BIPARTISAN LEGAL ADVISORY GROUP
OF THE U.S. HOUSE OF REPRESENTATIVES,
Intervenor-Defendant.
On appeal from the United States District Court
for the Northern District of Oklahoma
Case No. 04-CV-848-TCK-TLW
The Honorable Terence C. Kern
Sally Howe Smiths Motion to Expedite Appeal
Byron J. Babione
David Austin R. Nimocks
James A. Campbell
(480) 444-0020 (t); (480) 444-0028 (f)
bbabione@alliancedefendingfreedom.org
John David Luton

District Attorneys Office (Tulsa)
500 South Denver Ave., Suite 900
Tulsa, OK 74103
(918) 596-4814 (t); (918) 596-4804 (f)
Exhibit 2

Document: 01019188759
Page: 2
Pursuant to Federal Rule of Appellate Procedure 27 and Tenth Circuit Rule

27.3(A)(7), Defendant-Appellant Sally Howe Smith, in her official capacity as
Court Clerk for Tulsa County, State of Oklahoma, (hereafter Smith) respectfully
requests an order that (1) sets an expedited briefing schedule in this appeal, (2)
assigns this appeal to the same panel that will consider the merits of the appeal in
Kitchen v. Herbert, No. 13-4178, and (3) permits amicus briefs to be jointly
submitted in both appeals.
Smith is defending against a challenge to the federal constitutionality of
Oklahomas constitutional amendment that defines marriage in that State as the
union of one man and one woman. This case, at bottom, raises the question
whether the Fourteenth Amendment to the United States Constitution prohibits the
People from defining marriage as an opposite-sex union. That ultimate question is
the same ultimate issue presented in the Kitchen appeal, which involves a
challenge to the constitutionality of Utahs marriage laws. As explained below, in
order to promote judicial economy and minimize the risk of inconsistent Tenth
Circuit precedent, Smith respectfully requests that this Court set an expedited
briefing schedule, assign this appeal to the same panel that will consider the merits
of the Kitchen appeal, and permit amicus briefs to be jointly submitted in both
appeals.

Document: 01019188759
Page: 3
Smiths attorneys have notified counsel for Plaintiffs-Appellees (hereafter

Plaintiffs) of their intent to file this motion. Plaintiffs counsel consents and
agrees to the necessity of an expedited briefing schedule, the assignment of this
appeal to the same panel that will consider the merits of the Kitchen appeal, the
permitting of amicus briefs to be jointly submitted in both appeals, and the
consideration of both cases simultaneously. Further, Plaintiffs counsel has
indicated that Plaintiffs may file a cross-appeal with respect to one portion of the
District Courts ruling.
When establishing the expedited briefing schedule, this Court should afford
the parties at least the same amount of time to file their briefs as the Court
provided the parties in Kitchen. See Order, Kitchen v. Herbert, No. 13-4178 (10th
Cir. Dec. 30, 2013).
BACKGROUND
In 2004, Plaintiffs filed their initial complaint raising various constitutional
challenges to the federal Defense of Marriage Act (DOMA) and the Oklahoma
constitutional amendment defining marriage in that State as the union of one man
and one woman. See Complaint at 4-6, ECF No. 1. In that complaint, Plaintiffs
named two state defendants, the Oklahoma Governor and Attorney General, and
two federal defendants, the President and Attorney General of the United States, as
parties. See id at 3.

Document: 01019188759
Page: 4
Subsequently, counsel for the state defendants filed a motion to dismiss the
two named state officials on Eleventh Amendment immunity grounds. See Motion
to Dismiss, ECF No. 7. In 2006, the United States District Court for the Northern
District of Oklahoma issued an order that, among other things, denied the state
defendants request to dismiss the named state officials. See Amended Opinion and
Order at 21-22, ECF No. 93. But the state defendants appealed that decision to this
Court under the collateral-order exception to 28 U.S.C. 1291, and in 2009, this
Court determined that the named state officials generalized duty to enforce state
law . . . is insufficient to subject them to a suit challenging a constitutional
amendment they have no specific duty to enforce. Bishop v. Oklahoma, 333 F.
Appx 361, 365 (10th Cir. 2009) (unpublished). Consequently, this Court held that
Plaintiffs lack[ed] Article III standing to bring their claims against the named
state officers. Id.
Following remand, Plaintiffs filed an amended complaint. See First
Amended Complaint at 1, ECF No. 122. In addition to listing United States
Attorney General Eric Holder as a defendant, that complaint named Sally Howe
Smith, Court Clerk for Tulsa County, State of Oklahoma, as a new defendant in
place of the dismissed state officials. Id. at 2. Plaintiffs alleged that both the federal
DOMA and the Oklahoma constitutional provision defining marriage as the union

Document: 01019188759
Page: 5
of one man and one woman violate the due-process and equal-protection
guarantees of the United States Constitution. Id. at 8-9.
In 2011, after the United States indicated that it would no longer defend the
constitutionality of one section of DOMA, the District Court permitted the
Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG)
to intervene in the case for the purpose of defending that portion of the federal law.
See Motion to Intervene, ECF No. 178.
Subsequently, all parties filed dispositive motions. See Order and Opinion at
9-10, ECF No. 272. The subject of Smiths appeal is limited to Plaintiffs Motion
for Summary Judgment on their Fourteenth Amendment claims against the
provision of Oklahomas Constitution that defines marriage in the State as an
opposite-sex union (ECF No. 197) and Smiths Motion for Summary Judgment
asking the District Court to deny those claims (ECF No. 216).
On January 14, 2014, the District Court entered a final judgment and order
concluding that the provision of Oklahomas Constitution defining marriage in the
State as the union of one man and one woman violates the Equal Protection
Clause of the Fourteenth Amendment. Order and Opinion at 10, ECF No. 272; see

Document: 01019188759
Page: 6
also Judgment at 1-2, ECF No. 273. Two days later, Smith filed this appeal
challenging that judgment and order.1
Meanwhile, on December 20, 2013, the United States District Court for the
District of Utah in a case captioned Kitchen v. Herbert issued a final judgment and
order declaring that Utahs marriage laws, which are similar to the Oklahoma
constitutional amendment at issue here, violate the Due Process and Equal
Protection Clauses of the Fourteenth Amendment. See Kitchen v. Herbert, No.
2:13-CV-217, 2013 WL 6697874, at *1 (D. Utah Dec. 20, 2013). That same day,
the state defendants in Kitchen appealed that judgment and order to this Court. See
Notice of Appeal, Kitchen v. Herbert, No. 2:13-CV-217, ECF No. 91 (D. Utah
Dec. 20, 2013). This Court then issued an order setting an expedited briefing
schedule. See Order, Kitchen v. Herbert, No. 13-4178 (10th Cir. Dec. 30, 2013).
Under the schedule, the appellants opening brief and appendix are due on January
27, 2014; the appellees response brief is due on February 18, 2014; and any reply
brief is due on February 25, 2014. See id. It does not appear that this Court has
scheduled oral argument in the Kitchen appeal.
The District Court dismissed Plaintiffs other claims on standing and mootness
grounds. See Order and Opinion at 10, ECF No. 272.
6

Document: 01019188759
Page: 7
ARGUMENT
I.
The Relief Requested Will Promote Judicial Economy and Intra-Circuit

Precedential Uniformity.
This case raises similar issues to those presented in the Kitchen appeal; thus
expediting the briefing schedule in this appeal, assigning this case to the same
panel that will consider the merits of the Kitchen appeal, and permitting the joint
filing of amicus briefs in both appeals will promote efficiency for this Court and
the parties. It will also reduce the risk of inconsistent rulings on similar issues by
this Court.
The Supreme Court recently affirmed that the definition of marriage is the
foundation of the States broader authority to regulate the subject of domestic
relations. United States v. Windsor, 133 S. Ct. 2675, 2691 (2013). The
fundamental question presented in both this appeal and Kitchen is whether the
Fourteenth Amendment to the United States Constitution prohibits the People from
defining marriage as the union of one man and one woman in their respective
States.
Moreover, many common ancillary issues will be raised in these appeals.
These other issues include (but are not limited to) whether the Supreme Courts
decision in Baker v. Nelson, 409 U.S. 810 (1972), requires this Court to dismiss the
plaintiffs claims, whether the Supreme Courts decision in Windsor affirms the
right of States to define marriage as the union of one man and one woman, whether
7

Document: 01019188759
Page: 8
defining marriage as an opposite-sex union impermissibly discriminates on the

basis of sex, and whether defining marriage as the union of one man and one
woman is rationally related to a legitimate governmental interest.
Because these questions will be raised in both appeals, the interests of
judicial economy and intra-circuit case-law consistency weigh in favor of granting
the relief requested in this motion. If separate panels were to hear and decide the
merits of these cases, that would be significantly less efficient than a
comprehensive assessment of the relevant issues by the same panel. Additionally,
allowing separate panels to hear and decide these cases would risk intra-circuit
inconsistency on important constitutional questions.
Furthermore, given the common issues between these cases, there likely will
be significant overlap between the amicus briefs that will be filed in both cases. To
avoid the inefficiency and duplication of having identical or similar amicus briefs
filed in both cases, this Court should order that amicus briefs may be jointly filed
in both cases.2
Smith does not request a formal consolidation with the Kitchen appeal because it
would not be feasible for her to comply with the already-established briefing
schedule in that case, which would require her to file an opening brief by January
27, 2014. See Order, Kitchen v. Herbert, No. 13-4178 (10th Cir. Dec. 30, 2013)
(indicating that appellants opening brief and appendix are due on January 27,
2014).
8

II.
Document: 01019188759
Page: 9
The Relief Requested Will Not Materially Delay These Appeals And
Thus Will Not Prejudice Any Party.
As discussed above, the relief requested in this motion will promote judicial
economy and avoid the potential for inconsistency in this Courts case law. It is
also important to emphasize that achieving these advantages will not materially
delay these appeals and thus will not prejudice any party.
The procedural posture of these appeals is very similar. The notices of
appeal in both cases were filed less than a month apart, and the appellants in both
cases have yet to file their opening briefs. In addition, to avoid any material delay
in hearing or resolving Kitchen, Smith asks this Court to expedite the briefing
schedule so that all the briefs in this case will be filed expeditiously. This proposal
to expedite will ensure that the resolution of the Kitchen appeal will not be
materially delayed and, as a result, that no parties will be prejudiced by the relief
requested in this motion.
Notably, this Court decided to expedite the Kitchen appeal before the
Supreme Court stayed the injunction entered by the district court in that case. See
Order, Herbert v. Kitchen, No. 13A687 (U.S. Jan. 6, 2014). Therefore, the most
pressing reason to expedite the Kitchen appeal has since dissipated. This
demonstrates that any negligible delay that results from granting the relief
requested in this motion will not prejudice any party.
Case 4:04-cv-00848-TCK-TLW Document 303-2 Filed in USDC ND/OK on 01/05/15 Page 10 of

13
Appellate Case: 14-5003 Document: 01019188759 Date Filed: 01/17/2014 Page: 10
CONCLUSION
For the foregoing reasons, Smith respectfully requests an order that (1) sets
an expedited briefing schedule in this appeal, (2) assigns this appeal to the same
panel that will consider the merits of the Kitchen appeal, and (3) permits amicus
briefs to be jointly submitted in both appeals. When establishing the expedited
briefing schedule, this Court should afford the parties at least the same amount of
time to file their briefs as the Court provided the parties in Kitchen. See Order,
Kitchen v. Herbert, No. 13-4178 (10th Cir. Dec. 30, 2013).
Dated: January 17, 2014
s/ James A. Campbell
Byron J. Babione
David Austin R. Nimocks
James A. Campbell
(480) 444-0020 (t); (480) 444-0028 (f)
bbabione@alliancedefendingfreedom.org
John David Luton
District Attorneys Office (Tulsa)
500 South Denver Ave., Suite 900
Tulsa, OK 74103
(918) 596-4814 (t); (918) 596-4804 (f)
Attorneys for Defendant-Appellant Sally
Howe Smith
10

13
I certify that on January 17, 2014, I filed the foregoing document with the
Clerk using the Courts electronic filing system; counsel for all parties in the case
will be served by CM/ECF at the email addresses on file.
Email: craigbailey1@cox.net
Email: tim@studebakerworleylaw.net
Laura Lea Eakens

Email: lle@jctokc.com
James E. Warner
Email: jwarner@holladaychilton.com
Don Gardner Holladay, Esq.

Email: dholladay@holladaychilton.com
Ralph E. Chamness
Email: rchamness@slco.org
Attorneys for Plaintiffs-Appellees

Holly L. Carmichael
Email: hcarmichael@telladf.org
John David Luton

Email: jluton@tulsacounty.org
Austin R. Nimocks
Email: animocks@telladf.org
Brian W. Raum
Email: Braum@telladf.org
Dale Michael Schowengerdt

Email: dschowengerdt@telladf.org
Byron J. Babione
Email: bbabione@telladf.org
Attorneys for Defendant-Appellant

Judson O. Littleton
Email: judson.o.littleton@usdoj.gov
W. Scott Simpson
Email: scott.simpson@usdoj.gov
Attorneys for Defendant
11

13
Kerry W. Kircher
Email: kerry.kircher@mail.house.gov
Attorney for Defendant-Intervenor
James A. Campbell
12

13
CERTIFICATE OF DIGITAL SUBMISSION

I certify (1) that all required privacy redactions have been made per Tenth
Circuit Rule 25.5, (2) that if required to file additional hard copies, the ECF
submission is an exact copy of those documents, and (3) that the digital submission
has been scanned for viruses with the most recent version of a commercial virus
scanning program, Sophos Endpoint Security and Control, and that according to
that program, it is free of viruses.
James A. Campbell
13

172
Nos. 14-5003, 14-5006

TENTH CIRCUIT
MARY BISHOP, SHARON BALDWIN, SUSAN BARTON
and GAY PHILLIPS,
Plaintiffs/Appellees/Cross-Appellants,
vs.
SALLY HOWE SMITH, in her official capacity as
Court Clerk of Tulsa County, State of Oklahoma,
Defendant/Appellant/Cross-Appellee.
APPELLEES PRINCIPAL AND RESPONSE BRIEF
APPEAL FROM THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
THE HONORABLE TERENCE C. KERN
No. 04-CV-848-TCK-TLW
Don G. Holladay, OBA No. 4294
James E. Warner III, OBA No. 19593
HOLLADAY & CHILTON PLLC
204 N. Robinson Ave., Suite 1550
Oklahoma City, OK 73102
(405) 236-2343 Telephone
(405) 236-2349 Facsimile
Joseph T. Thai, OBA No. 19377

300 Timberdell Rd.
Norman, OK 73019
(405) 204-9579 Telephone
ORAL ARGUMENT REQUESTED

March 17, 2014
Exhibit 3
1 of 172

172
TABLE OF CONTENTS
PRIOR OR RELATED APPEALS ...................................................................... xvi
ISSUES PRESENTED FOR REVIEW ................................................................ xvii
INTRODUCTION .................................................................................................... 1
STATEMENT OF JURISDICTION ........................................................................ 3
STATEMENT OF THE CASE ................................................................................ 3
I.
Oklahoma Marital Law................................................................................... 3
II.
The Plaintiffs .................................................................................................. 6
III.
The Oklahoma Marriage Ban ......................................................................... 8
IV.
Marital Benefits, Protections, and Status ..................................................... 11
V.
Procedural History ........................................................................................ 13
VI.
The District Court Decision.......................................................................... 15
SUMMARY OF ARGUMENT .............................................................................. 20

STANDARD OF REVIEW .................................................................................... 28
ARGUMENT .......................................................................................................... 28
I.
Baker v. Nelson Is Not Controlling .............................................................. 28
II.
Oklahomas Exclusion Of Same-Sex Couples From Marriage

Denies Equal Protection ............................................................................... 31
A.
The Oklahoma Marriage Ban Discriminates On The Basis

Of Sexual Orientation, Which Triggers Heightened Scrutiny
Under Romer, Lawrence, And Windsor ............................................. 31
ii
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172
B.
This Courts Precedents Do NotAnd After Windsor

CannotLimit Review of Sexual Orientation Discrimination
To Rational Basis ............................................................................... 36
C.
The Heightened Scrutiny Applied In Romer, Lawrence, and

Windsor To Sexual Orientation Discrimination Requires At
Least Careful Consideration, And Most Appropriately
Should Require Intermediate Scrutiny ............................................... 39
D.
The Oklahoma Marriage Ban Also Triggers Intermediate

Scrutiny As Gender Discrimination ................................................... 41
E.
The Oklahoma Marriage Ban Triggers Strict Scrutiny As A

Classification That Burdens The Fundamental Right To Marry ........ 43
F.
The Oklahoma Marriage Ban Fails Careful Consideration

Under Romer, Lawrence, and Windsor Because It Imposes
Inequality Based On Moral Disapproval............................................ 44
G.
The Oklahoma Marriage Ban Fails Any Level Of Scrutiny

Because There Is Simply No Rational Connection Between
Defendants Post-Hoc Justifications And The Exclusion Of
Same-Sex Couples From Marriage .................................................... 49
1.
The Purpose Of Marriage In Oklahoma Is Not Based

On Presumptive Procreative Potential .................................. 51
2.
Excluding Same-Sex Couples From Marriage Is Not

Rationally Related To Promoting Responsible
Procreation Or An Optimal Child-Rearing
Environment ........................................................................... 55
3.
Wild Speculation About The Real-World

Consequences Of Redefining Marriage Does Not
Rescue The Oklahoma Marriage Ban From Irrationality ........ 60
4.
State Regulatory Power Over Domestic Relations Does

Not Shelter Invidious Discrimination ...................................... 63
iii
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172
III.
The Oklahoma Marriage Ban Denies Plaintiffs The Fundamental

Right To Marry In Violation Of Due Process .............................................. 64
A.
The Right To Marry Is Fundamental ................................................. 64
B.
The Oklahoma Marriage Ban Infringes Upon The

Fundamental Right To Marry............................................................. 64
C.
The Oklahoma Marriage Ban Fails Strict Scrutiny ............................ 67
IV.
Oklahomas Refusal To Recognize The Valid Out-Of-State

Marriages Of Same-Sex Couples Offends Due Process And
Equal Protection ........................................................................................... 67
V.
Plaintiffs Possess Standing ........................................................................... 72
VI.
A.
Plaintiffs Barton and Phillips Have Standing To Challenge

The Oklahoma Marriage Bans Non-Recognition Provision ............. 72
B.
The Statutory Bans On Same-Sex Marriage And Marriage

Recognition Do Not Deprive Plaintiffs Of Standing ......................... 75
The Oklahoma Marriage Ban Is Not Severable ........................................... 78
CONCLUSION....................................................................................................... 80
STATEMENT REGARDING ORAL ARGUMENT ............................................ 82
CERTIFICATE OF COMPLIANCE ...................................................................... 83
CERTIFICATE OF DIGITAL SUBMISSION ...................................................... 84
CERTIFICATE OF SERVICE ............................................................................... 85
iv
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172
CASES
1942 Chevrolet Auto., Motor No. BA193397 v. State ex rel. Cline,
136 P.2d 395 (Okla. 1943) ............................................................................. 4
Agostini v. Felton,
521 U.S. 203 (1997) ..................................................................................... 29
Atlantic Refining Co. v. Okla. Tax Commn,
360 P.2d 826 (Okla. 1959) ........................................................................... 47
Awad v. Ziriax,
No. 5:10-cv-01186-M, 2013 WL 4441476
(W.D. Okla. Aug. 15, 2013) ......................................................................... 80
Baehr v. Lewin,
852 P.2d 44 (Haw. 1996) .............................................................................. 10
Baker v. Nelson,
409 U.S. 810 (1972) ......................................................................... 10, 15, 28
Bishop v. Oklahoma ex rel. Edmondson,
333 Fed. Appx. 361 (10th Cir. 2009) ................................................... passim
Bishop v. United States ex rel. Holder,
No. 04-cv-848-TCK-TLW, 2014 WL 116013
(N.D. Okla. Jan. 14, 2014)..................................................................... passim
Bostic v. Rainey,
No. 2:13-cv-395, 2014 WL 561978
(E.D. Va. Feb. 13, 2014) ............................................................ 21, 57, 67, 69
Bourke v. Beshear,
No. 3:13-cv-750-H, 2014 WL 556729
(W.D. Ky. Feb. 12, 2014) ....................................................................... 21, 69
Bowers v. Hardwick,
478 U.S. 186 (1986) ............................................................................... 38, 65
v
5 of 172

172
Brown v. Board of Education,

347 U.S. 686 (1954) ..................................................................................... 43
Carey v. Population Servs. Intl,
431 U.S. 678 (1977) ..................................................................................... 67
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ......................................................................... 17, 50, 59
Clark v. Jeter,
486 U.S. 456 (1988) ..................................................................................... 30
Coleman v. James,
169 P. 1064 (Okla. 1917) ............................................................................... 4
Consumer Data Industry Assn v. King,
678 F.3d 898 (10th Cir. 2012) ...................................................................... 78
Copeland v. State,
842 P.2d 754 (Okla. 1992) ............................................................................. 4
Craig v. Boren,
429 U.S. 190 (1976) ............................................................................... 29, 38
De Leon v. Perry,
No. 5:13-cv-00982-OLG, 2014 WL 715741
(W.D. Tex. Feb. 26, 2014)..................................................................... passim
Dick v. Reaves,
434 P.2d 295 (Okla. 1967) ............................................................................. 5
Duke Power Co. v. Carolina Envtl. Study Group,
438 U.S. 59 (1978) ....................................................................................... 74
Elwell v. Byers,
699 F.3d 1208 (10th Cir. 2012) .................................................................... 27
Erie v. Paps AM,
529 U.S. 277 (2000) ..................................................................................... 56
vi
6 of 172

172
F.C.C. v. Beach Comms, Inc.,

508 U.S. 307 (1993) ..................................................................................... 50
Fent v. Henry,
257 P.3d 984 (Okla. 2011) ........................................................................... 76
Finstuen v. Crutcher,
496 F.3d 1139 (10th Cir. 2007) .................................................. 47, 72, 74, 75
Gage v. General Motors Corp.,
796 F.2d 345 (10th Cir. 1986) ...................................................................... 73
Garden State Equality v. Dow,
79 A.3d 1036 (N.J. 2013) ............................................................................. 22
Gill v. Office of Pers. Mgmt.,
699 F. Supp. 2d 374 (D. Mass. 2010)..................................................... 57, 59
Goetz v. Glickman,
149 F.3d 1131 (10th Cir. 1998) .................................................................... 26
Golinski v. U.S. Office of Pers. Mgmt.,
824 F. Supp. 2d 968 (N.D. Cal. 2012) ................................................... passim
Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ............................................................. 9, 13, 59
Griego v. Oliver,
No. 34,306, 2013 WL 6670704
(N.M. Dec. 19, 2013)........................................................................ 22, 41, 57
Griswold v. Connecticut,
381 U.S. 479 (1965) ..................................................................................... 64
Hicks v. Miranda,
422 U.S. 332 (1975) ..................................................................................... 29
Hunt v. Hunt,
100 P. 541 (Okla. 1909) ................................................................................. 3
vii
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172
Illinois State Bd. of Elections v. Social Workers Party,

440 U.S. 173 (1979) ..................................................................................... 29
In re Balas,
449 B.R. 567 (Bankr. C.D. Cal. 2011) ......................................................... 41
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) .............................................................. 7, 41, 57, 65
Johnson v. Robinson,
415 U.S. 361 (1974) ............................................................................... 50, 60
Kerrigan v. Commr of Pub. Health,
957 A.2d 407 (Conn. 2008) .......................................................................... 41
Kitchen v. Herbert,
No. 2:13-cv-217, 2013 WL 6697874
(D. Utah Dec. 20, 2013) ........................................................................ passim
Lawrence v. Texas,
539 U.S. 558 (2003) .............................................................................. passim
Liddell v. Heavner,
180 P.3d 1191 (Okla. 2008) ......................................................................... 78
Local Trans. Workers Union of America v. Keating,
93 P.3d 835 (Okla. 2003) ............................................................................. 78
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................. passim
Manhart v. Manhart,
725 P.2d 1234 (Okla. 1986) ......................................................................... 11
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ....................................................................... 68
Mathews v. Lucas,
427 U.S. 495 (1976) ..................................................................................... 50
viii
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172
McIlravy v. Kerr-Mcgee Coal Corp.,

240 F.3d 1031 (10th Cir. 2000) .............................................................. 27, 73
Meyer v. Nebraska,
262 U.S. 390 (1923) ..................................................................................... 11
Mitchell v. City of Moore,
218 F.3d 1190 (10th Cir. 2000) .................................................................... 27
Mudd v. Perry,
235 P. 479 (Okla. 1925) ........................................................................... 4, 51
National Gay Task Force v. Bd. of Educ. of City of Oklahoma City,
729 F.2d 1270 (10th Cir. 1984) ........................................................ 23, 37, 38
New York Trust Co. v. Eisner,
256 U.S. 345 (1921) ....................................................................................... 2
North v. McMahan,
110 P. 1115 (Okla. 1910) ............................................................................. 47
Obergefell v. Wymyslo,
No. 1:13-cv-501, 2013 WL 6726688
(S.D. Ohio Dec. 23, 2013) ..................................................................... passim
Oklahoma Corr. Profl Assn, Inc. v. Jackson,
280 P.3d 959 (Okla. 2012) ........................................................................... 79
Oklahoma Telecasters Assn v. Crisp,
699 F.2d 490 (10th Cir. 1983) ...................................................................... 29
Park Lake Res. L.L.C. v. U.S. Dept of Agric.,
378 F.3d 1132 (10th Cir. 2004) .................................................................... 77
Pederson v. Office of Pers. Mgmt.,
881 F. Supp.2d 294 (D. Conn. 2012) ............................................... 40, 41, 66
Perry v. Schwarzenegger,
704 F. Supp. 2d 921 (N.D. Cal. 2010) .................................................... 41, 57
ix
9 of 172

172
Pierce v. Society of Sisters,

268 U.S. 510 (1925) ..................................................................................... 11
Plessy v. Ferguson,
163 U.S. 537 (1896) ............................................................................... 26, 66
Plyler v. Doe,
457 U.S. 202 (1982) ................................................................... 40, 43, 44, 59
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) .................................................. 16, 23, 36, 37
Reaves v. Reaves,
82 P. 490 (Okla. Terr. 1905)........................................................................... 4
Rich v. Secy of the Army,
735 F.2d 1220 (10th Cir. 1984) .................................................................... 37
Rodriguez de Quijas v. Shearson/Am. Express, Inc.,
490 U.S. 477 (1989) ..................................................................................... 29
Romer v. Evans,
517 U.S. 620 (1995) .............................................................................. passim
Ross v. Ross,
54 P.2d 611 (Okla. 1936) ....................................................................... 14, 53
Skinner v. Oklahoma,
316 U.S. 535 (1942) ..................................................................................... 64
SmithKline Beecham Corp. v. Abbott Labs.,
Nos. 11-17357, 11-17373, 2014 WL 211807
(9th Cir. Jan. 21, 2014) ............................................................... 23, 33, 35, 39
Tanco v. Haslam,
No. 3:13-cv-01159
(M.D. Tenn. March 14, 2014) ................................................................ 22, 69
Turner v. Saffley,
482 U.S. 78 (1987) ....................................................................................... 66
x
10 of 172

172
United States v. Virginia,

518 U.S. 515 (1996) ................................................................... 24, 38, 41, 42
United States v. Windsor,
133 S. Ct. 2675 (2013) .......................................................................... passim
Varnum v. Brien,
763 N.W.2d 862 (Iowa 2009) ........................................................... 31, 41, 57
Williams v. Bailey,
268 P.2d 868 (Okla. 1954) ........................................................................... 77
Wilson v. Stocker,
819 F.2d 943 (10th Cir. 1987) ...................................................................... 74
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ....................................................... 39, 40, 41, 57
Zablocki v. Redhail,
434 U.S. 374 (1978) ............................................................................... 64, 67
STATUTES AND REGULATIONS
1 U.S.C. 7....................................................................................................... 14, 34
5 U.S.C. 8901....................................................................................................... 12
5 U.S.C. 8905....................................................................................................... 12
11 U.S.C. 101....................................................................................................... 12
11 U.S.C. 507....................................................................................................... 12
11 U.S.C. 523....................................................................................................... 12
28 U.S.C. 1291....................................................................................................... 3
28 U.S.C. 1331....................................................................................................... 3
xi
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172
28 U.S.C. 1343....................................................................................................... 3
28 U.S.C. 1738C .................................................................................................. 14
42 U.S.C. 416....................................................................................................... 12
29 C.F.R. 825.122 ................................................................................................ 12
1975 Okla. Sess. Law ch. 39, 1 ............................................................................ 10
1996 Okla. Sess. Law ch. 131, 9 .......................................................................... 10
Okla. Gen. Stat. ch. 31, 3234 (1908) ..................................................................... 5
Okla. Gen. Stat. ch. 31, 3249 (1908) ............................................................... 3, 51
Okla. Gen. Stat. ch. 31, 3260 (1908) ............................................................... 5, 53
Okla. Stat. tit. 10, 7503-1.1 .................................................................................. 72
Okla. Stat. tit. 10A, 1-4-901 to 1-4-909 ............................................................... 11
Okla. Stat. tit. 43, 1 .............................................................................. 3, 51, 55, 62
Okla. Stat. tit. 43, 2 .................................................................................... 5, 53, 70
Okla. Stat. tit. 43, 3 .......................................................................................... 5, 10
Okla. Stat. tit. 43, 3.1 ........................................................................................... 10
Okla. Stat. tit. 43, 5 .......................................................................................... 3, 51
Okla. Stat. tit. 43, 101 ...................................................................................... 5, 53
Okla. Stat. tit. 43, 111.1 ....................................................................................... 11
Okla. Stat. tit. 43, 112 .......................................................................................... 11
Okla. Stat. tit. 43, 112.5 ....................................................................................... 11
xii
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172
Okla. Stat. tit. 43, 121 .......................................................................................... 11

Okla. Stat. tit. 43, 134 .......................................................................................... 11
Okla. Stat. tit. 43, 201 .......................................................................................... 11
Okla. Stat. tit. 43, 202 .......................................................................................... 11
Okla. Stat. tit. 68, 2353.3 ..................................................................................... 12
Okla. Stat. tit. 75, 11a .......................................................................................... 78
Okla. Stat. tit. 84, 44 ............................................................................................ 11
Okla. Stat. tit. 84, 131 .......................................................................................... 11
Okla. Stat. tit. 84, 132 .......................................................................................... 11
Okla. Stat. tit. 84, 134 .......................................................................................... 11
Okla. Stat. tit. 84, 173 .......................................................................................... 11
Okla. Stat. tit. 84, 213 .......................................................................................... 11
CONSTITUTIONAL PROVISIONS
Okla. Const. art. 1, 2 ........................................................................................ 5, 53
Okla. Const. art. 2, 35 .......................................................................... 9, 31, 41, 53
OTHER AUTHORITIES
Amicus Br. of 46 Employers and Organizations Representing Employers............ 71
Amicus Br. of American Psychological Association ....................................... 57, 58
Amicus Br. of American Sociological Association .......................................... 57, 58
xiii
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172
Amicus Br. of Constitutional Law Scholars ........................................................... 41

Amicus Br. of Historians of Marriage .............................................................. 54, 61
Amicus Br. of Howard University School of Law Civil Rights Clinic .................. 66
Amicus Br. of Massachusetts et al. .................................................................. 64, 68
Amicus Br. of Outserve-SLDN and the
American Military Partner Association ........................................................ 71
Amicus Br. of Parents, Families, and Friends of Lesbians and Gays ..................... 71
Bill Information for HB 2259 (2003-2004),
www.oklegislature.gov/BillInfo.aspx?Bill=HB2259&Session=0400 ........... 8
Brief for the United States on the Merits Questions,
United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307),
2013 WL 683048 .......................................................................................... 41
Brief on the Merits for Respondent the Bipartisan Legal Advisory Group
of the U.S. House of Representatives, United States v. Windsor,
133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 267026 ............................. 34
Danny M. Adkison & Lisa McNair Palmer,
The Oklahoma State Constitution: A Reference Guide (2001) ...................... 8
Gary J. Gates, LGBT Parenting in the United States (Feb. 2013),
available at http://williamsinstitute.law.ucla.edu/wp-content/
uploads/LGBT-Parenting.pdf ....................................................................... 71
Internal Rev. Serv.,
Rev. Rul. 2013-17......................................................................................... 12
Jane S. Schacter,
Courts and the Politics of Backlash: Marriage Equality Litigation,
Then and Now, 82 S. Cal. L. Rev. 1153 (2009) ....................................... 9, 10
xiv
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172
Marie Price,
Republican Legislators Wary of Same-Sex Ruling, Tulsa World,
Feb. 6, 2004 .................................................................................................... 9
National Cemetery Administration Directive 3210/1 (June 4, 2008) ..................... 13
Oklahoma Tax Commission,
NOTICE: Oklahoma Income Tax Filing Status for Same Sex
Couples (Sept. 27, 2013), available at
http://www.tax.ok.gov/upmin092713.html .................................................. 12
Oliver Wendell Holmes,
The Path of Law, 10 Harv. L. Rev. 457 (1897) ............................................ 65
Robert Spector,
Oklahoma Family Law: The Handbook (2013).................................... passim
U.S. State Department,
U.S. Visa for Same-Sex Spouses, available at
http://travel.state.gov/content/dam/visas/DOMA/DOMA%20FAQs.pdf .... 12
xv
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172
PRIOR OR RELATED APPEALS

This Court decided a prior appeal in Bishop v. Oklahoma ex rel. Edmondson,
333 Fed. Appx. 361 (10th Cir. 2009) (unpublished). These present appeals have
been assigned to the same panel considering Kitchen v. Herbert, No. 13-4178.
xvi
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172
ISSUES PRESENTED FOR REVIEW

In November 2004, Oklahoma voters approved a ballot measure (the
Oklahoma Marriage Ban) amending the state constitution to bar same-sex
couples from marrying and to bar state recognition of out-of-state same-sex
marriages. The questions presented are:
1.
Whether the Oklahoma Marriage Ban imposes inequality in violation of the

Fourteenth Amendments guarantee of equal protection.
2.
Whether the Oklahoma Marriage Ban denies the fundamental right to marry
in violation of the Fourteenth Amendments guarantee of due process.
3.
Whether Plaintiffs Susan Barton and Gay Phillips have standing to bring suit
against Defendant to challenge the non-recognition provision of the
Oklahoma Marriage Ban.
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INTRODUCTION
This is a profoundly important case, but at its heart, it is neither a
complicated nor a difficult one. Plaintiffs Mary Bishop and Sharon Baldwin have
lived in Oklahoma throughout their lives, and like countless other committed,
loving couples in the state, wish to have their union solemnized in marriage.
Plaintiffs Susan Barton and Gay Phillips have lived in Oklahoma for over fifty
years, and like numerous other devoted couples married out of state, wish to have
their marriage recognized and protected under Oklahoma law. But Oklahoma law
denies both couples the dignity and status of immense import that marriage
confers, United States v. Windsor, 133 S. Ct. 2675, 2692 (2013), solely because the
partner with whom they have united their lives is of the same sex.
Based
on
deeply
heldbut
constitutionally
impermissiblemoral
disapproval, Oklahomas total exclusion of same-sex couples from marriage works

far-reaching and real injury on thousands of same-sex couples and their
children in the state. Id. at 2688, 2692. As Windsor put it, denying marriage to
same-sex couples writes inequality across countless areas of law that confer
substantial benefits and obligations based on marital status, and harms as well as
humiliates a growing number of children raised by same-sex couples who are
legally classified as strangers by their state. Id. at 2694. At the same time,
excluding same-sex couples from marriage does nothing to channel opposite-sex
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couples into marriages, promote the stability of such marriages for those couples or
their children, or advance any other post-hoc justifications offered on appeal.
On the central questions regarding the freedom and equality to marry, a
page of history is worth a volume of logic. New York Trust Co. v. Eisner, 256
U.S. 345, 349 (1921). More than a century after the Civil War, sixteen states
including Oklahomastill refused to extend the fundamental right to marry to
interracial couples. Loving v. Virginia, 388 U.S. 1, 6 n.5 (1967). It remains the
case that times can blind us to certain truths and later generations can see that
laws once thought necessary and proper in fact only serve to oppress. Lawrence
v. Texas, 539 U.S. 558, 579 (2003). Today, like Oklahoma, two-thirds of other
states exercise their regulatory power over domestic relations to sanction and
recognize marriage between virtually any adult coupleold or young, fertile or
infertile, committed or notexcept between a minority of citizens who wish to
form a family with another adult of the same sex. Yet unanimously after Windsor,
courts across the country, including the District Court below in Oklahoma, are
arriving at the emerging recognition that laws restricting marriage to opposite-sex
couples cannot stand consistently with the Fourteenth Amendment. Loving, 388
U.S. at 2. After considering all of the arguments and applicable law, this Court
should as well.
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STATEMENT OF JURISDICTION
The District Court had jurisdiction under 28 U.S.C. 1331 and 1343(a)(3).
It entered judgment on January 14, 2014. Defendant Sally Howe Smith, Court
Clerk for Tulsa County, filed a notice of appeal on January 16, 2014. Plaintiffs
Susan Barton and Gay Phillips filed a cross-notice of appeal on January 24, 2014.
The jurisdiction of this Court rests on 28 U.S.C. 1291.
STATEMENT OF THE CASE
I.
Oklahoma Marital Law

Historically, with a few notable exceptions, marriage in Oklahoma has been
an inclusive civil institution.

1.
Since statehood in 1907, Oklahoma has defined marriage to be a
personal relationship arising out of a civil contract, which simply requires the
consent of the parties legally competent of contracting and entering into it. Okla.
Gen. Stat. ch. 31, 3249 (1908); see Hunt v. Hunt, 100 P. 541, 543 (Okla. 1909).
That definition remains unchanged. See Okla. Stat. tit. 43, 1; see Robert Spector,
Oklahoma Family Law: The Handbook 1 (2013).
2. Legally competent couples have always been able to marry in Oklahoma
without difficulty. Couples may obtain a marriage license from the clerk of a
district court, as well as a marriage certificate to be filled out by the person
solemnizing the union, see Okla. Stat. tit. 43, 5, but because marriage arises from
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a civil contract based on the consent of the parties, no legal forms or religious
solemnities are required. Coleman v. James, 169 P. 1064, 1066 (Okla. 1917); see
Spector, supra, at 6 (Oklahoma has always held the statutes regulating the form of
ceremonial marriages are directory and not mandatory.).
In fact, having
recognized common law marriages since before statehood, see Reaves v. Reaves,
82 P. 490 (Okla. Terr. 1905), Oklahoma has never required more than that the
minds of the parties meet in a common consent thereto, in which case the
marriage immediately arises.
Mudd v. Perry, 235 P. 479, 479 (Okla. 1925)
(syllabus by the court),1 superseded on other grounds as recognized in Copeland v.

State, 842 P.2d 754, 757-59 (Okla. 1992).
3. Marriage in Oklahoma has been open to almost all adults. The list of
those not legally competent to marry has not been long. Like other states,
Oklahoma has excluded adults (age 18 or over) who (1) lack the mental capacity to
enter into a marriage contract, (2) are related too closely by blood, or (3) are
already married. See Ross v. Ross, 54 P.2d 611 (Okla. 1936) (mental capacity);
Okla. Const. art. 1, 2 (polygamy); Okla. Stat. tit. 43, 2 (consanguinity); Okla.
Stat. tit. 43, 3 (age).
The syllabus prepared by the Oklahoma Supreme Court is precedential as the

law adopted by the court. 1942 Chevrolet Auto., Motor No. BA193397 v. State ex
rel. Cline, 136 P.2d 395, 397 (Okla. 1943).
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No Oklahoma law or judicial decision, from statehood to the present day,

has conditioned marriage on the intent or capability to beget children or raise them.
And in mirror image to the ability of the vast majority of Oklahomans to enter into
marriage virtually at will, Oklahoma has provided for no-fault divorce based on
incompatibility since 1953, the second state to do so at the time. Okla. Stat. tit.
43, 101; see Spector, supra, at 30.
4. Only two classes of otherwise legally competent Oklahoma adults have
been barred from marrying: any person of African descent . . . to any person not
of African descent, Okla. Gen. Stat. ch. 31, 3260 (1908), and couples of the
same sex.
Unlike the anti-miscegenation law, which existed since statehood,
Oklahoma did not adopt specific provisions barring same-sex marriage or marriage
recognition until 1975, 1996, and 2004, in response to judicial decisions around the
country addressing the constitutionality of same-sex marriage for the first time in
this Nations history. See p. 10 & n.3, infra.2 The invalidity of the miscegenation
prohibition was acknowledged by the Oklahoma Supreme Court after Loving, see
Dick v. Reaves, 434 P.2d 295 (Okla. 1967), and the validity of the same-sex
marriage prohibition is the subject of this litigation.

2
As Defendant notes (Aplt. Principal Br. at 5), Oklahoma law since statehood has
referred to the parties to a marriage contract as husband and wife, Okla. Gen.
Stat. ch. 31, 3234 (1908), but that nomenclature is unremarkable given that only
recently has a new perspective, a new insight emerged challenging the historical
assumption that marriage is only between a man and a woman. Windsor, 133 S.
Ct. at 2689.
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II.
The Plaintiffs
1. Plaintiffs Mary Bishop and Sharon Baldwin have lived as a family in
Broken Arrow, Oklahoma, in a committed, continuous relationship for over fifteen

years.
Both have deep Oklahoma roots.
Ms. Bishop is a sixth-generation
Oklahoman whose great-great-great grandparents settled in the territory before

statehood, and Ms. Baldwin is a fourth-generation Oklahoman whose greatgrandparents and grandmother came to the state in a covered wagon. Both were
raised and educated in Oklahoma, and both have worked since the 1990s for the
states second-largest newspaper, the Tulsa World, where they are editors. (Aplt.
App. 106-108).
In 2000, to solemnize their permanent relationship, Ms. Bishop and Ms.
Baldwin exchanged vows in a commitment ceremony.
(Aplt. App. 107).
Nevertheless, because of their conviction that marriage is an institution to be

respected, and that it is the only status that will signify the equality of their
relationship with those of married couples, Ms. Bishop and Ms. Baldwin have
deeply desire[d] to wed. (Aplt. App. 108). In 2009, they sought a marriage
license from the Court Clerk for Tulsa County. They were legally competent to
marry in every respect but one. The Court Clerk refused to grant Ms. Bishop and
Ms. Baldwin a marriage license based on the state constitutions ban on same-sex
marriage. (Aplt. App. 47, 107-109).
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2. Plaintiffs Susan Barton and Gay Phillips have lived in Oklahoma for over
fifty years, and have been living as a family in a continuous, committed
relationship for half of their lives.
(Aplt. App. 144).
They reside in Tulsa,
Oklahoma, and run a companyBarton, Phillips and Associates, Inc.that

provides training and assistance nationwide to organizations that serve runaway
and homeless teens. Dr. Phillips has a doctorate in sociology, and Ms. Barton is an
adjunct professor at Tulsa Community College, where, among other subjects, she
teaches a course on Building Relationships. (Aplt. App. 144-145).
In 2001, after Vermont became the first state to recognize civil unions for
same-sex couples, Ms. Barton and Dr. Phillips traveled there to commit to each
other in a civil union.
(Aplt. App. 144).
In 2005, after a series of judicial
decisions in Canadian provinces extended the right to marry to same-sex couples,

Ms. Barton and Dr. Phillips traveled to British Columbia and wed under Canadian
law. (Id.) Then, in 2008, after the California Supreme Court invalidated its state
laws limiting marriage to opposite-sex couplesand thereby extended the same
respect and dignity accorded a union traditionally designated as marriage to samesex couples, In re Marriage Cases, 183 P.3d 384, 399 (Cal. 2008)Ms. Barton
and Dr. Phillips traveled to California and married under that states law. (Aplt.
App. 144). All this they did to strive for the same legal and social status as other
married couples in Oklahoma. Nevertheless, upon their return to Oklahoma, Ms.
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Barton and Dr. Phillips immediately became legal strangers to each other in their
home state. (Aplt. App. 145).
III.
The Oklahoma Marriage Ban

1. In Oklahoma, the state constitution may be amended by constitutional
convention, initiative petition, or legislative proposal. See Danny M. Adkison &

Lisa McNair Palmer, The Oklahoma State Constitution: A Reference Guide 298-99
(2001). If a legislative proposal to amend the Oklahoma Constitution passes by
majority vote in both the State House and the State Senate, it is submitted to the
voters as a state question at the next general election. See id. at 298.
2. On November 2, 2004, Oklahoma voters approved State Question 711 by
a margin of 1,075,216 to 347,303 votes.
See Bishop v. United States ex rel.
Holder, No. 04-cv-848-TCK-TLW, 2014 WL 116013, at *1 n.1 (N.D. Okla. Jan.

14, 2014). That legislative proposal had passed the Oklahoma House 92 to 4 and
the Oklahoma Senate 38 to 7. See Bill Information for HB 2259 (2003-2004),
www.oklegislature.gov/BillInfo.aspx?Bill=HB2259&Session=0400 (last visited
March 15, 2014). State Question 711 amended the Oklahoma Constitution to add
the following provisions:
Marriage DefinedConstruction of law and ConstitutionRecognition of
out-of-state marriagesPenalty
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A.
Marriage in this state shall consist only of the union of one man and
one woman. Neither this Constitution nor any other provision of law
shall be construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups.
B.
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.
C.
Any person knowingly issuing a marriage license in violation of this

section shall be guilty of a misdemeanor.
Okla. Const. art. 2, 35 (Oklahoma Marriage Ban). The definitional provision

(referred to below as Part A) limits marriage in Oklahoma to opposite-sex
unions, and the non-recognition provision (referred to below as Part B)
prohibits recognition of out-of-state same-sex marriages.
3. The Oklahoma Marriage Ban was part of a wave of state constitutional
amendmentstwenty-six totaladopted in the wake of the Massachusetts
Supreme Judicial Courts decision in Goodridge v. Dept of Pub. Health, 798
N.E.2d 941 (Mass. 2003). See Marie Price, Republican Legislators Wary of SameSex Ruling, Tulsa World, Feb. 6, 2004; Jane S. Schacter, Courts and the Politics of
Backlash: Marriage Equality Litigation, Then and Now, 82 S. Cal. L. Rev. 1153,
1188-89 (2009). The first judicial decision in the United States to hold that civil
marriage could not be denied to same-sex couples, Goodridge based its ruling on
the guarantees of due process and equal protection afforded to all individuals
under the Massachusetts Constitution. 798 N.E.2d. at 948, 961.
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Oklahoma, like many other states, already had statutory provisions barring
same-sex marriage.3 But as the Oklahoma Senate explained in a press release upon
passage of the legislation to place the Oklahoma Marriage Ban on the ballot,
proponents of the measure believed it necessary to provide constitutional
protections to traditional marriage to combat efforts by liberals and activist judges
seeking to redefine marriage by allowing same-sex unions. Bishop, 2014 WL
116013, at *23 (quoting Senate Passes Marriage Protection Amendment,
Oklahoma State Senate (April 15, 2004), available at www.oksenate.gov/news/
press_releases/press_releases_2004/pr20040415.html); accord Aplt. Principal Br.
at 35.
First, Section 3(A) of Title 43 of the Oklahoma Statutes already provided that
[a]ny unmarried person who is at least eighteen (18) years of age and not
otherwise disqualified is capable of contracting and consenting to marriage with a
person of the opposite sex. Okla. Stat. tit. 43, 3(A) (emphasis added). The
italicized language was added in 1975 following Baker v. Nelson, 191 N.W.2d 185
(Minn. 1971), appeal dismissed, 409 U.S. 810 (1972), the first (unsuccessful)
lawsuit in the United States by a same-sex couple seeking access to the right to
marry. See 1975 Okla. Sess. Law ch. 39, 1. Second, Section 3.1 of Title 43 also
provided 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. Okla. Stat. tit. 43, 3.1 (emphasis added). Enacted in 1996, this
provision was part of a wave of federal and state laws (the federal Defense of
Marriage Act (DOMA), 110 Stat. 2419, and state mini-DOMAs) responding to
the Hawaii Supreme Courts decision in Baehr v. Lewin that the denial of marriage
licenses to same-sex couples was sex-based discrimination subject to strict scrutiny
under the state constitution. See 852 P.2d 44, 67 (Haw. 1996); 1996 Okla. Sess.
Law ch. 131, 9; Schacter, supra, at 1185-86.
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IV.
Marital Benefits, Protections, And Status

The impact of the Oklahoma Marriage Ban on same-sex couples is stark and
often extreme. The benefits, protections, and status that marriage confers under
state and federal law span nearly every stage and aspect of life.
1.
As the foundation of the States regulation of domestic relations,
marriage gives rise to a host of rights and responsibilities, including mutual

obligations of respect, fidelity, and financial support; 4 ownership of marital
property,5 and the presumption that property acquired during marriage is such
property; 6 inheritance and intestacy protections for a spouse 7 or child of the
deceased;8 parental rights9 and protections against their termination;10 alimony11
and child support; 12 and child custody 13 and visitation rights. 14
These and
countless other legal benefits and protections extend automatically in Oklahoma to

married couples and their children, whom the State has not made a stranger to its
laws. Romer v. Evans, 517 U.S. 620, 635 (1995).

4
See Okla. Stat. tit. 43, 201, 202.

See id. 121.
6
See Manhart v. Manhart, 725 P.2d 1234, 1240 (Okla. 1986).
7
See Okla. State. tit. 84, 44, 213.
8
See id. 131, 132, 134, 173, 213.
9
See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262
U.S. 390 (1923).
10
See Okla. Stat. tit. 10A, 1-4-901 to 1-4-909.
11
12
See id. 112.
13
See id. 112.5
14
See id. 111.1.
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2. As the Supreme Court observed in Windsor, over 1,000 federal laws and
numerous federal regulations turn on marital status. See id. at 2690, 2694. Among
the federal benefits unavailable to same-sex couples in Oklahomawhether or not
validly married elsewhereare Social Security benefits for a surviving spouse,15
and family medical leave to care of a sick spouse.16 Both may be claimed only by
those recognized as married in their state of residence. Federal benefits denied to
same-sex couples who wish to marry but cannot because of the Oklahoma
Marriage Ban include joint filing of federal tax returns;17 health insurance benefits
for the spouse of a federal employee;18 consideration as a spouse for immigration
purposes;
19
protection of spousal domestic support obligations under the
Bankruptcy Code; 20 and burial as a spouse alongside a servicemember in a

15
See 42 U.S.C. 416(h)(1)(A)(i).

See 29 C.F.R. 825.122(b).
17
See Internal Rev. Serv., Rev. Rul. 2013-17, at 12-13, available at
http://www.irs.gov/pub/irs-drop/rr-13-17.pdf. Furthermore, for same-sex couples
married out of state, the Oklahoma Tax Commission refuses to accept their joint
federal filing status for state filing purposes, even though the governing state
statute provides that the federal filing status should control. See Okla. Stat. tit. 68,
2353.3; NOTICE: Oklahoma Income Tax Filing Status for Same Sex
Couples, Oklahoma Tax Commission (Sept. 27, 2013), available at
http://www.tax.ok.gov/upmin092713.html.
18
See 5 U.S.C. 8901(5), 8905.
19
See U.S. Visa for Same-Sex Spouses, U.S. State Dept, available at
http://travel.state.gov/content/dam/visas/DOMA/DOMA%20FAQs.pdf.
20
See 11 U.S.C. 101(14A), 507(a)(1)(A), 523(a)(5), 523(a)(15).
16
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veterans cemetery.21
3. Of course, as numerous, diverse, and valuable as the above legal benefits
and protections are, they do not embrace the total injury suffered by same-sex
couples from their inability to marry or have their marriages recognized in
Oklahoma. As a matter of state law, Plaintiffs and other committed same-sex
couples in Oklahoma cannot attain a status for their relationship that universally
represents at once a deeply personal commitment to another human being and a
highly public celebration of the ideals of mutuality, companionship, intimacy,
fidelity, and family. Goodridge, 798 N.E.2d at 954.
V.
Procedural History
1. Plaintiffs filed suit in late 2004, following the adoption of the Oklahoma
Marriage Ban. Both couples sought a declaration that the definitional provision of
the Oklahoma Marriage Ban violates the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. Plaintiffs Barton and Phillips also sought a
declaration that the non-recognition provision violates those same guarantees.
Plaintiffs subsequently requested a permanent injunction enjoining enforcement of
both provisions. Bishop, 2014 WL 116013, at *4-5.22

21
See National Cemetery Administration Directive 3210/1, p. 37 (June 4, 2008),

available at http://www.dva.wa.gov/PDF%20files/3210-1_Directive.pdf.
22
Plaintiffs also challenged Sections 2 and 3 of DOMA on federal due process and
equal protection grounds. In its ruling, the District Court held that Plaintiffs
challenge to Section 3 of DOMA, which defined marriage for purposes of federal
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2. The original defendants, the Oklahoma Attorney General and Oklahoma

Governor, moved to dismiss on sovereign immunity grounds. The District Court
denied the motion, holding that suit was proper under the doctrine of Ex parte
Young.
See id.
This Court reversed.
On appeal, the Oklahoma officials
challenged only the failure to dismiss based on sovereign immunity. However, this
Court examined Article III standing sua sponte.
In its opinion, this Court
concluded that the plaintiffs failed to name a defendant having a causal

connection to their alleged injury that is redressable by a favorable court decision.
Bishop v. Oklahoma ex rel. Edmondson, 333 Fed. Appx. 361, 364 (10th Cir. 2009)
(unpublished). It reasoned that the named Oklahoma officials had no specific
duty to enforce the Oklahoma Marriage Ban. Id. at 365. Rather, this Court
observed, the recognition of marriages [in Oklahoma] is within the administration
of the judiciary, and particularly, the district court clerk is judicial personnel
law to mean only a legal union between one man and one woman as husband and
wife, 1 U.S.C. 7, was rendered moot by the Supreme Courts invalidation of that
provision in Windsor, 133 S. Ct. at 2675. See Bishop, 2014 WL 116013, at *4, 913. As for Plaintiffs challenge to Section 2, which provides that no state shall be
required to give effect to out-of-state same-sex marriages, 28 U.S.C. 1738C, the
District Court ruled that Plaintiffs Barton and Phillips, who challenged that
provision, lack standing because Section 2 is an entirely permissive federal law
that does not cause the couples injury of Oklahomas non-recognition of their
California marriage. See Bishop, 2014 WL 116013, at *7. Because Plaintiffs do
not cross-appeal either of these rulings, this brief will not further discuss the
procedural history or rulings relating to DOMA.
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and is an arm of the court. Id. (quoting Speight v. Presley, 203 P.3d 173, 177
(Okla. 2008)).
3. On remand, pursuant to this Courts opinion, Plaintiffs filed an amended
complaint, replacing the above defendants with Sally Howe Smith (Defendant),
in her official capacity as Court Clerk for Tulsa County.
116013, at *3.
Bishop, 2014 WL
The parties subsequently filed cross-motions for summary
judgment. The Supreme Court then decided Windsor. Following Windsor, the
District Court decided the parties motions on January 14, 2014.
VI.
The District Court Decision

1. The District Court held that the Oklahoma Marriage Bans restriction of
marriage to the union of one man and one woman violates the Fourteenth
Amendments guarantee of equal protection.
a. As a preliminary matter, the District Court concluded that the Supreme
Courts summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972), is no longer
binding precedent. In Baker, the Supreme Court summarily dismissed an appeal
from the Minnesota Supreme Courts ruling that the states restriction of marriage
to opposite-sex couples did not violate the Due Process or Equal Protection
Clauses of the Fourteenth Amendment. The District Court joined every federal
court to have addressed the precedential status of Baker after Windsor in
recognizing that the relevant constitutional landscape has evolved significantly
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since 1972.
The questions summarily dismissed in Baker, the District Court
concluded, are now substantial. Bishop, 2014 WL 116013, at *16.

b. Turning to Plaintiffs equal protection challenge, the District Court found
the Oklahoma Marriage Bans disparate impact on same-sex couples to be both
stark (the total exclusion of every same-sex couple in Oklahoma from
receiving a marriage license, and no other couple) and intentional (a classic,
class-based equal protection case in which a line was purposefully drawn between
two groups of Oklahoma citizens). Id. at *21, 23.
In determining the level of scrutiny, the District Court disagreed with
Plaintiffs pre-Windsor argument that the Oklahoma Marriage Ban constitutes
gender discrimination and therefore requires intermediate scrutiny. Instead, the
District Court concluded that the intentional discrimination at issue is best
described as sexual-orientation discrimination, and should receive rational basis
review under this Courts decision in Price-Cornelison v. Brooks, 524 F.3d 1103
(10th Cir. 2008). Id. at *24-25. Allowing for the deferential nature of rational
basis review, the District Court nonetheless concluded after a thorough
examination of conceivable and asserted justifications for the Oklahoma Marriage
Ban that [r]ationality has its limits, and this well exceeds it. Id. at *30.
The District Court first considered the state interest in promoting morality.
The District Court found as a matter of law that this interest, though not
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advanced by Defendant in litigation, was a prominent justification offered to the

public prior to passage of the Oklahoma Marriage Ban. Id. at *26. The District
Court recognized that moral disapproval can stem from deeply held religious
convictions, but noted that moral disapproval of homosexuals as a class, or of
same-sex marriage as a practice, is not a permissible justification under Lawrence.
Id. at *27.
The District Court next addressed two related justifications for the
Oklahoma Marriage Ban advanced by Defendant: encouraging responsible
procreation and child-rearing, and steering naturally procreative relationships
into marriage. Id. at *28. Accepting only for purposes of analysis that Oklahoma
has a legitimate interest in procreation within marriages and reduc[ing] the
number of children born out of wedlock, the District Court found the marriage
ban unrelated to these interests for a number of reasons. Among them, the District
Court observed that there is no rational link between excluding same-sex couples
from marriage and the asserted goals, as [m]arriage is incentivized for naturally
procreative couples to precisely the same extent regardless of whether same-sex
couples (or other non-procreative couples) are included. Id. at *29. Furthermore,
relying on City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985), the
District Court reasoned that, because the state does not exclude the infertile, the
elderly, and those who simply do not wish to ever procreate from marriage
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despite its naturally procreative justification, the Oklahoma Marriage Ban is so

grossly underinclusive that it is irrational and arbitrary.
Bishop, 2014 WL
116013, at *30. If anything, the District Court noted, given that 1,280 same-sex
households in Oklahoma reported having children as of the 2010 U.S. Census, the
exclusion of same-sex couples from marriage hinders rather than promotes the
goal of reducing children born out of wedlock. Id. at *29.
The District Court then considered Defendants argument that the exclusion
of same-sex couples from marriage promotes the optimal child-rearing
environment. Id. at *30 (quotations and capitalizations omitted). The District
Court assumed (again only for the sake of analysis) that the ideal environment
for raising children consists of opposite-sex, married, biological parents, and that
promoting this ideal constitutes a legitimate state interest. Id. at *31 (quotations
omitted). Yet, the District Court noted, [e]xclusion from marriage does not make
it more likely that a same-sex couple desiring children, or already raising children
together, will change course and marry an opposite-sex partner (thereby providing
the ideal child-rearing environment). Id. Nor does the exclusion of same-sex
couples from marriage do anything to promote stability in heterosexual
parenting.
Id. (quotations omitted).
Indeed, considering the impact of the
Oklahoma Marriage Ban on Oklahoma children, the District Court underscored

that [i]t is more likely that any potential or existing child will be raised by the
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same-sex couple without any state-provided benefits and without being able to
understand the integrity and closeness of their own family and its concord with
other families in their community. Id. (quoting Windsor, 133 S. Ct. at 2694).
Finally,
the
District
Court
addressed
Defendants
argument
that
fundamentally redefining marriage to include same-sex couples could have a

severe and negative impact on the institution as a whole. Id. at *32 (quotations
omitted). Considering that the State has already opened the courthouse doors to
opposite-sex couples to marry without any moral, procreative, parenting, or
fidelity requirements, the District Court concluded that the Oklahoma Marriage
Bans [e]xclusion of just one class of citizens from receiving a marriage license
based upon the perceived threat they pose to the marriage institution is, at
bottom, an arbitrary exclusion based upon the majoritys disapproval of the defined
class, and insulting to same-sex couples, who are human beings capable of
forming loving, committed, and enduring relationships. Id.
2. Because the District Court struck down the Oklahoma Marriage Ban on
equal protection grounds, it did not reach Plaintiffs claim that the exclusion also
deprives them of the fundamental right to marry in violation of due process. But
the District Court did observe that if the Oklahoma Marriage Ban does burden a
fundamental right, it certainly would not withstand any degree of heightened
scrutiny. Id. at *24 n.33.
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3. The District Court also determined that Plaintiffs Barton and Phillips lack
standing to challenge the non-recognition provision of the Oklahoma Marriage
Ban. The District Court acknowledged that this Court had implicitly directed
Plaintiffs to sue the court clerk in place of the Governor and Attorney General. Id.
at *3. Nevertheless, the District Court found that an affidavit filed by Defendant in
support of her cross-motion for summary judgment, in which she contradicted the
admission in her answer that she is the official responsible for enforcement of the
laws challenged by Plaintiffs First Amended Complaint (Aplt. App. 46),
constituted an unconverted denial of any connection to the injury by the sued state
official. Bishop, 2014 WL 116013, at *14.
4. The District Court permanently enjoined enforcement of the Oklahoma
Marriage Ban against same-sex couples seeking a marriage license, but stayed its
order pending the final disposition of any appeal to this Court. Id. at *33.
SUMMARY OF ARGUMENT
As the Supreme Court acknowledged last term in Windsor, states
traditionally enjoy broad authority to define and regulate marriage. But Windsor
also underscored that the exercise of such authority is subject to constitutional
guarantees. 133 S. Ct. at 2692. Citing Loving v. Virginia, the Supreme Court
observed that [s]tate laws defining and regulating marriage, of course, must
respect the constitutional rights of persons. Id. at 2691. And [a] citation to
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Loving, the District Court recognized, is a disclaimer of enormous proportion.

Bishop, 2014 WL 116013, at *18.
Indeed, Windsor itself capped a landmark trilogy of Supreme Court
decisions, which together make clear two governing principles. First, imposing a
broad and undifferentiated disability on gays and lesbians as a class, Romer, 517
U.S. at 632, in disapproval of their most intimate and personal choices,
Lawrence, 539 U.S. at 574 (quotations omitted), offends the Fourteenth
Amendments guarantees of liberty and equality. Second, when the disability is
the denial of the dignity and status of marriage, the constitutional injury is
exacerbatedrather than exemptedas the perpetuation of a historical tradition of
discrimination. Windsor, 133 S. Ct. at 2692.
Consequently, though Windsor did not directly confront the questions
presented today, the clear language and inexorable logic of the Romer-LawrenceWindsor trilogy has guided every federal court that has confronted them after
Windsor to hold that state bans on marriage and marriage recognition for same-sex
couples violate the Fourteenth Amendment.23 The District Courts invalidation of

23
See De Leon v. Perry, No. 5:13-cv-00982-OLG, 2014 WL 715741 (W.D. Tex.

Feb. 26, 2014) (finding Texas bans violate due process and equal protection);
Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014)
(finding Virginia bans violate due process and equal protection); Bourke v.
Beshear, No. 3:13-cv-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) (finding
Kentucky bans violate equal protection); Bishop, 2014 WL 116013 (finding
Oklahoma ban violates equal protection); Obergefell v. Wymyslo, No. 1:13-cv-501,
21
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Oklahomas ban on same-sex marriage joins this emerging awareness that the
Constitution demands no less. Lawrence, 539 U.S. at 572. That ruling should be
upheld for the following reasons.
1. Oklahomas exclusion of same-sex couples from marriage denies equal
protection.
a.
The District Court concluded that the Oklahoma Marriage Bans
discrimination against same-sex couples is best described as sexual orientation

discrimination. Bishop, 2014 WL 116013, at *25. That conclusion is correct.
The record surrounding passage of the measure and its disparate impact on a single
class of Oklahomansthose who love and desire to marry someone of the same
sexestablishes that the avowed purpose and practical effect of the ban is to
impose a disadvantage, a separate status, and so a stigma on the basis of sexual
orientation. Windsor, 133 S. Ct. at 2693.
b. It is now clear that discrimination on the basis of sexual orientation
triggers heightened scrutiny. By words and deeds, the Supreme Court in the

2013 WL 6726688 (S.D. Ohio Dec. 23, 2013) (finding Ohio bans violate equal
protection); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874 (D. Utah Dec.
20, 2013) (finding Utah bans violate due process and equal protection); cf. Griego
v. Oliver, No. 34,306, 2013 WL 6670704 (N.M. Dec. 19, 2013) (finding New
Mexico bans violate state equal protection); Garden State Equality v. Dow, 79
A.3d 1036 (N.J. 2013) (denying stay of lower court injunction extending marriage
to same-sex couples on state equal protection grounds); see also Tanco v. Haslam,
No. 3:13-cv-01159 (M.D. Tenn. March 14, 2014) (memorandum) (preliminarily
enjoining state bans as likely unconstitutional).
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Romer-Lawrence-Windsor trilogy subjected laws singling out gays and lesbians for
unequal treatmentthereby exemplifying [d]iscriminations of an unusual
characterto careful consideration to determine whether they were based on
improper animus or purpose. Id. at 2692, 2693 (quoting Romer, 517 U.S. at 633
(additional quotations omitted)). In none of these cases did the Supreme Court
entertain any conceivable post-hoc justification that might salvage an otherwise
illegitimate enactment, as is the hallmark of traditional rational basis review. See
Windsor, 133 S. Ct. at 2706 (Scalia, J., dissenting) ([T]he Court certainly does not
apply anything that resembles that deferential framework.); accord SmithKline
Beecham Corp. v. Abbott Labs., Nos. 11-17357, 11-17373, 2014 WL 211807, at
*5-9 (9th Cir. Jan. 21, 2014).
Well before Romer, Lawrence, and Windsor, this Court rejected the view
that a classification based on the choice of sexual partners is suspect, and
accordingly applied something less than a strict scrutiny test. National Gay Task
Force v. Bd. of Educ. of City of Oklahoma City, 729 F.2d 1270, 1273 (10th Cir.
1984) (emphasis added). That decision did not mandate rational basis review or
foreclose some other form of heightened scrutiny for sexual orientation
classifications. However, in subsequent cases, including Price-Cornelison, 524
F.3d at 1113-14, this Court misread National Gay Task Force and its progeny as
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circuit precedent adopting rational basis review. Regardless, Romer, Lawrence,

and Windsor constitute superseding precedents.
c. The Supreme Court has yet to define the contours of the heightened
scrutiny applied in the Romer-Lawrence-Windsor trilogy beyond at least careful
consideration of actual purpose to smoke out improper ones. In fact, intermediate
scrutiny should be the appropriate level of review.
In all critical respects
including a long history of severe discrimination against gays and lesbians that
persists todayclassifications on the basis of sexual orientation warrant the same
level of skepticism, and demand the same level of justification, as discrimination
on the basis of gender. Cf. United States v. Virginia, 518 U.S. 515 (1996).
d.
In addition to triggering heightened scrutiny as a sexual orientation
classification, the Oklahoma Marriage Ban also triggers intermediate scrutiny as a

gender classification, and strict scrutiny as a classification that burdens Plaintiffs
exercise of the fundamental right to marry.
e. The Oklahoma Marriage Ban fails both heightened and strict scrutiny
because its purpose and effect is to entrench marriage inequality against same-sex
couples based on moral disapproval.
Surveying the history surrounding the
enactment of the Oklahoma Marriage Ban, the District Court determined as a

matter of law that moral disapproval of same-sex marriage was promoted as
reason for legislators and voters to support the adoption of the ballot measure. But
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as the District Court properly recognized, although the Oklahoma Marriage Ban
rationally promotes the States interest in upholding one particular moral
definition of marriage, this is not a permissible justification. Bishop, 2014 WL
116013, at *28; see Lawrence, 539 U.S. at 577.
f. The Oklahoma Marriage Ban fails even rational basis review because
excluding same-sex couples from marriage does not promote the post-hoc
justifications offered in this litigation.
On appeal, Defendant asserts that the
Oklahoma Marriage Ban was adopted to affirm a longstanding public purpose of

channeling the presumptive procreative potential of man-woman relationships into
committed unions for the benefit of children and society. Aplt. Principal Br. at
15. Defendants peculiar and impoverished characterization of the public purpose
of marriage in Oklahoma diminishes and demeans the profound significance of
marriage to millions of Oklahomans who do not exchange lifelong vows of
commitment merely to avoid begetting unintended children out of wedlock.
Aplt. Principal Br. at 47. But in any case, it is irrationalindeed, fantasticalto
claim that allowing committed same-sex couples to marry, and thereby attain for
themselves and their children all the dignity, benefits, and protections of marriage,
would somehow discourage opposite-sex couples from marrying before having
children or from raising their children in a loving family.
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2. Oklahomas denial of the fundamental right to marry to same-sex couples

offends due process.
a. There is no disputing that the right to marry is fundamental. Defendant
contends that Plaintiffs seek recognition of a new right to same-sex marriage,
Aplt. Principal Br. at 37-41, but this argument repeats the Bowers v. Hardwick
failure to appreciate the extent of the liberty at stake. Lawrence, 539 U.S. at
567. Plaintiffs seek to exercise the same basic and cherished right enjoyed by the
vast majority of other loving and committed adults. As is sometimes painfully
obvious in hindsight, the historical exclusion of a class from the enjoyment of a
right signifies not that the right falls short of that class, but that our society has yet
to realize the full promise of that right. Cf. Plessy v. Ferguson, 163 U.S. 537
(1896) (Harlan, J., dissenting) (Our Constitution . . . neither knows nor tolerates
classes among citizens.).
b. Because the Oklahoma Marriage Ban burdens Plaintiffs exercise of the
fundamental right to marry, it triggers strict scrutiny, demanding narrow tailoring
to advance a compelling state interest. See Goetz v. Glickman, 149 F.3d 1131,
1140 (10th Cir. 1998). But the ban cannot pass even rational basis review, much
less strict scrutiny, given its essential irrationality.
3. The Oklahoma Marriage Bans non-recognition provision violates the
Fourteenth Amendments guarantees of due process and equal protection. Like
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DOMA, the Oklahoma Marriage Ban offends due process by stripping married
same-sex couples entering Oklahoma of a dignity and status of immense import
conferred by another state when they exercised their fundamental right to marry.
Windsor, 133 S. Ct. at 2692. Furthermore, like DOMA, the Oklahoma Marriage
Ban offends equal protection by identify[ing] a subset of state-sanctioned
marriages and mak[ing] them unequal to those accorded the dignity, benefits, and
protections of state recognition. Id. at 2694. Oklahoma cannot justify the harm
and havoc wrought by such non-recognition under any level of scrutiny.
4. Plaintiffs Barton and Phillips have standing to sue Defendant to challenge
the non-recognition provision of the Oklahoma Marriage Ban. The District Court
acknowledged that this Court previously had implicitly directed Plaintiffs to sue
the court clerk in place of the Governor and Attorney General. Bishop, 2014 WL
116013, at *3; see Bishop, 333 Fed. Appx. at 365. This Courts ruling is law of
the case, and moreover is correct. See McIlravy v. Kerr-McGee Coal Corp., 240
F.3d 1031, 1034 (10th Cir. 2000).
5. Defendants argument that Plaintiffs lack causation and redressability
because they only challenge the Oklahoma Marriage Ban, but not earlier statutory
prohibitions, is meritless. As a matter of Oklahoma law, the state constitutional
provisions replaced the preceding statutes as the exclusive provisions governing
same-sex marriage.
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6. The definition and non-recognition provisions of the Oklahoma Marriage

Ban are mutually reinforcing in effectuating a total exclusion of same-sex couples
from the institution of marriage in Oklahoma. Neither is severable from the other.
STANDARD OF REVIEW
This Court reviews the grant of summary judgment de novo, applying the
same legal standard as the District Court. See Mitchell v. City of Moore, 218 F.3d
1190, 1197 (10th Cir. 2000). In doing so, this Court may affirm on any grounds
adequately supported by the record, even grounds not relied on by the district
court. Elwell v. Byers, 699 F.3d 1208, 1213 (10th Cir. 2012).
ARGUMENT24
I.
Baker v. Nelson Is Not Controlling.

Defendant relies on a summary dismissal by the Supreme Court in 1972,
Baker v. Nelson, 409 U.S. 810 (1972), to argue that the questions before this Court
today are foreclosed by that limited disposition as insubstantial.
See Aplt.
Principal Br. at 20-23. This reliance is misplaced.

First, as the Supreme Court itself has cautioned, summary affirmances have
considerably less precedential value than an opinion on the merits. Illinois State

24
Much of the argument that follows applies to both Plaintiffs response in No. 14-
5003 and Plaintiffs cross-appeal in No. 14-5006. For the sake of economy,
Plaintiffs will not separate or repeat arguments applicable to both. The only
arguments solely applicable to Plaintiffs Barton and Phillips cross-appeal are Part
IV (the merits of their challenge to the non-recognition provision of the Oklahoma
Marriage Ban) and Part V.A (their standing to bring that challenge).
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Bd. of Elections v. Social Workers Party, 440 U.S. 173, 180-81 (1979).
Accordingly, no more may be read into [a summary affirmance] than was
essential to sustain that judgment, id., and, when doctrinal developments indicate
otherwise, lower courts should not adhere to the view that if the Court has
branded a question as unsubstantial, it remains so. Hicks v. Miranda, 422 U.S.
332, 345 (1975); see Oklahoma Telecasters Assn v. Crisp, 699 F.2d 490, 495
(10th Cir. 1983) (summary affirmances are only binding until doctrinal
developments or direct decisions by the Supreme Court indicate otherwise)
(emphasis added), revd on other grounds, Capital Cities Cable, Inc. v. Crisp, 467
U.S. 691 (1984).25
Second, time has not stood still since 1972, and neither has the Supreme
Courts governing equal protection and due process jurisprudence. Among other
milestones, the Supreme Court (1) established a heightened, intermediate level of
equal protection scrutiny for classifications that discriminate on the basis of
gender, see Craig v. Boren, 429 U.S. 190, 197 (1976), or that discriminate against

25
Defendant quotes Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477, 484 (1989), for the proposition that a summary affirmanceno matter how
questionable in light of subsequent developmentsis binding on lower courts until
expressly overruled by the Supreme Court. Aplt. Principal Br. at 21-22. However,
Rodriguez de Quijas was referring not to summary affirmances, but to cases
decided on the Supreme Courts plenary docket by full opinion after oral argument.
See Rodriguez de Quijas , 490 U.S. at 484 (overruling Wilko v. Swan, 346 U.S. 427
(1953)). It is therefore irrelevant to the exception articulated in Hicks.
Defendants reliance on Agostini v. Felton, 521 U.S. 203 (1997), is inapt for the
same reason. See id. at 325 (overruling Aguilar v. Felton, 473 U.S. 402 (1985)).
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nonmarital children, see Clark v. Jeter, 486 U.S. 456, 461 (1988); (2) held, again
as a matter of equal protection, that a state law imposing a broad and
undifferentiated
disability
on
gays
and
lesbians
demanded
careful
consideration, and failed that heightened scrutiny because the law was based on
animus, Romer, 517 U.S. at 632; (3) held that due process protects the most
intimate and personal choices a person may make, whether homosexual or
heterosexual, and that moral disapproval is not a legitimate state interest that can
justify government intrusion into those choices, Lawrence, 539 U.S. at 578; and (4)
ruled that a federal law denying same-sex couples the equal dignity of marriage
for themselves and their children violates basic due process and equal protection
principles. Windsor, 133 S. Ct. at 2693.
Third, as discussed below, these doctrinal developments not only make the
questions presented substantial, they make the answers clear.
That is why,
notwithstanding Baker, every federal court decision after Windsor has both reached
the merits and ruled that state bans on same-sex marriage and marriage recognition
offend the Fourteenth Amendment. See pp. 21-22 n.23, supra.
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II.
Oklahomas Exclusion Of Same-Sex Couples From Marriage Denies

Equal Protection.
A.
The Oklahoma Marriage Ban Discriminates On The Basis Of

Sexual Orientation, Which Triggers Heightened Scrutiny Under
Romer, Lawrence, And Windsor.
1. By defining marriage to consist only of the union of one man and one
woman, Okla. Const. art. 2, 35(A), the Oklahoma Marriage Ban excludes samesex couples like Plaintiffs from one of the most personally meaningful, socially
significant, and legally consequential relationships recognized by the State. This
exclusion, in the District Courts words, gives rise to a classic, class-based equal
protection case in which a line was purposefully drawn between two groups of
Oklahoma citizens. Bishop, 2014 WL 116013, at *23. The District Court further
described the line drawn as sexual orientation discrimination. Id. at *25. It is.
Plaintiffs and other same-sex couples in Oklahoma satisfy every criteria for
obtaining a marriage license but onesingled out by the banthat turns on their
core sexual identity. As the Supreme Court of Iowa concluded with respect to a
similar state law, the relationships being excluded from marriage are so closely
correlated with being homosexual as to make it apparent the law is targeted at
gays and lesbians as a class. Varnum v. Brien, 763 N.W.2d 862, 885 (Iowa 2009)
(quoting Lawrence, 539 U.S. at 583 (OConnor, J., concurring)).
Defendant contends that the line drawn is a couple-based procreativerelated distinction rather than a sexual orientation classification, Aplt. Principal
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172
Br. at 45, but this contention cannot be taken seriously. The line is certainly
couple-based (taking two to marry), but devoid of any procreative-related
distinction. That distinction pervades Defendants brief as a justification for the
Oklahoma Marriage Bans discrimination against gays and lesbians, but it is
conspicuously absent from the text of the measure, which permits any union of
one man and one woman regardless of whether the couple has the intent or the
capability to procreate.
2. Read together, Romer, Lawrence, and Windsor point the way toward
heightened scrutiny of laws imposing a broad and undifferentiated disability
against gays and lesbians, Romer, 517 U.S. at 632; burdening their most intimate
and personal choices, Lawrence, 539 U.S. at 574; or denying them equal
dignity in marriage. Windsor, 133 S. Ct. at 2693. Because these laws exemplify
[d]iscriminations of an usual character, Windsor makes clear that they at least
require careful consideration to determine whether they are motivated by an
improper animus or purpose that would violate[] basic due process and equal
protection principles. Windsor, 133 S. Ct. at 2693 (emphasis added; quotations
omitted).
Windsor did not give its scrutiny an explicit label. But as the Ninth Circuit
recently recognizedin the first court of appeals decision after Windsor to
consider the level of review for sexual orientation discriminationthe Supreme
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172
Court by its words and its deeds performed a searching inquiry that was
unquestionably higher than rational basis review. SmithKline Beecham Corp.,
2014 WL 211807, at *5-9.
The Supreme Court laid the foundation of this scrutiny in Romer, where it
reviewed a state constitutional amendment that repealed and barred state
protections againstand only againstsexual orientation discrimination.
The
Supreme Court initially considered whether the provision bore a rational

relationship to some legitimate end. Romer, 517 U.S. at 631. But because this
sweeping amendment classifies homosexuals in order to make them unequal to
everyone else, the Supreme Court found that it defies and confounds
conventional equal protection analysis. Id. at 632, 633, 635; see id. at 640 (Scalia,
J., dissenting) (observing that the majority was not utilizing normal rational
basis review). Instead, applying careful consideration to determine the actual
purpose of this discrimination, the Supreme Court found it inexplicable by
anything but animus toward the class it affects, and therefore obnoxious to the
guarantee of equal protection. Id. at 632, 633.
Building on Romer, the Supreme Court in Lawrence took the same careful,
focused approach to determining whether a state law that criminalized the private
intimate sexual conduct of same-sex couplesbut not opposite-sex couples
infringed on their liberty in violation of due process. The Supreme Court again
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closely examined whether the actual purpose of the law could justify its
intrusion into the personal and private life of the individual, and invalidated the
law on the ground that moral disapproval of the intimate choices of same-sex
couples was not a legitimate state interest. Lawrence, 539 U.S. at 577, 578
(quotations omitted); see id. at 586 (Scalia, J., dissenting) (describing the majority
as apply[ing] an unheard-of form of rational-basis review that will have farreaching implications beyond this case).
And last term in Windsor, the Supreme Court most clearly and vigorously
applied this heightened form of scrutiny to DOMA, which defined marriage for
purposes of federal lawlike the Oklahoma Marriage Ban for purposes of state
lawto mean only a legal union between one man and one woman as husband
and wife. 1 U.S.C. 7. There, the Bipartisan Legal Advisory Group defended
DOMA by advancing several post-hoc rationalizations similar to those offered by
Defendant in this litigation, including (1) proceed[ing] with caution when faced
with the unknown consequences of an unprecedented redefinition of marriage; (2)
providing a stable structure to raise unintended and unplanned offspring; (3)
encouraging the rearing of children by their biological parents; and (4)
promoting childrearing by both a mother and a father. See Brief on the Merits
for Respondent the Bipartisan Legal Advisory Group of the U.S. House of
Representatives at 41-48, United States v. Windsor, 133 S. Ct. 2675 (2013) (No.
34
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172
12-307), 2013 WL 267026, at *44-48 (capitalizations omitted). The Supreme

Court ignored these hypothetical justifications.
Instead, for the third time in three cases involving a disability imposed
solely on gays and lesbians, the Supreme Court gave careful consideration to the
actual design, purpose, and effect of the law to determine whether it was based
on improper animus or purpose. Windsor, 133 S. Ct. at 2693. Examining both
the text and the legislative history of DOMA, the Supreme Court concluded that
the laws avowed purpose and practical effect was to impose a disadvantage, a
separate status, and so a stigma on same-sex couples, denying them and their
children the manifold benefits and protections of federal law that turn on marital
status, demean[ing] their relationships, and humiliat[ing] their children. Id. at
2689, 2693, 2694.
DOMA consequently violated basic principles of equal
protection and due process. Id. at 2693.

In short, neither Romer, Lawrence, nor Windsor performed rational-basis-asusual review, which does not look to actual purposes, but instead considers
whether there is some conceivable rational purpose that could justify the
enactment. SmithKline Beecham Corp., 2014 WL 211807, at *6; see Windsor, 133
S. Ct. at 2706 (Scalia, J., dissenting) (observing that the Court certainly does not
apply anything that resembles that deferential framework); cf. Lawrence, 539 U.S.
at 580 (OConnor, J., concurring) (observing that we have applied a more
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172
searching form of rational basis review to strike down laws that exhibit a desire
to harm a politically unpopular group). Rather, the trilogy makes clear that mere
rational basis review is not appropriate for laws that single out gays and lesbians
and subject them to unequal treatment. Because these targeted discriminations are
of such unusual character, they raise suspicion of invidious discrimination, and
at the very least require careful consideration to smoke out illegitimate purposes
such as animus, moral disapproval, or a bare . . . desire to harm a politically
unpopular group.
Windsor, 133 S. Ct. at 2693 (quotations omitted); see
Obergefell v. Wymyslo, No. 1:13-cv-501, 2013 WL 6726688, at *21 (S.D. Ohio

Dec. 23, 2013) (When the primary purpose and effect of a law is to harm an
identifiable group, the fact that the law may also incidentally serve some other
neutral government interest cannot save it from unconstitutionality (citing
Windsor, 133 S. Ct. at 2696)).
B.
This Courts Precedents Do NotAnd After Windsor Cannot

Limit Review Of Sexual Orientation Discrimination To Rational
Basis.
Defendant contends that rational basis review is appropriate given language

from this Courts pre-Windsor opinion in Price-Cornelison v. Brooks, 524 F.3d
1103 (10th Cir. 2008). See Aplt. Principal Br. at 45. This contention is erroneous.
First, as explained above, Romer, Lawrence, and Windsor make adherence
to a deferential framework for reviewing targeted discrimination against gays and
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172
lesbians outdated and untenable.
Their consistent application of heightened
scrutinycareful consideration of actual purpose, rather than deferential review

of post-hoc justificationsdisplaces any previous lower court approach to the
contrary.
Second, in any event, this Courts case law on the level of review for sexual
orientation discrimination does not foreclose heightened scrutiny.
In Price-
Cornelison, this Court noted that it had previously rejected the notion that
homosexuality is a suspect classification. Id. at 1113 n.9 (citing Walmer v. Dept
of Defense, 52 F.3d 851, 854 (10th Cir. 1995)). However, the genealogy of that
rejection undercuts the assumption that this Court had already set the level of
review at rational basis. For starters, Walmer itself relied on an earlier decision of
this Court, Rich v. Secy of the Army, 735 F.2d 1220, 1229 (10th Cir. 1984), for the
proposition that homosexuality is not a suspect classification. Rich in turn
relied on National Gay Task Force, 729 F.2d at 1273, for the conclusion that
sexual orientation classifications are not suspect. However, National Gay Task
Force did no more than conclude that something less than the strict scrutiny test
should be applied here, id. (emphasis added), and did so without considering any
of the traditional factors utilized by the Supreme Court for determining whether a
classification warrants some form of elevated scrutiny. It is a doctrinal leap from
National Gay Task Forces limited holding that sexual orientation is not a
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172
suspect classification mandating strict scrutiny to this Courts subsequent

assumption that National Gay Task Force requires rational basis review.
No
opinion of this Court bridges that gap by independently examining whether or not
sexual orientation classifications warrant heightened scrutiny.
Third, the Supreme Courts equal protection landscape has evolved
significantly since 1984. Not the least, National Gay Task Force itself rested on
the comparative rationale that only four members of the Supreme Court have
viewed gender as a suspect classification. Id. (citing Frontiero v. Richardson,
411 U.S. 677 (1973)) (emphasis added).
Of course, the Supreme Court
subsequently determined that gender classifications are quasi-suspect and trigger a

heightened, intermediate level of scrutiny, Craig, 429 U.S. at 197, which demands
an exceedingly persuasive justification. Virginia, 518 U.S. at 531. Furthermore,
as noted by the district court in Obergefell, when the Supreme Court in Lawrence
overruled Bowers v. Hardwick, 478 U.S. 186 (1986), it eliminated a major
jurisprudential foundation for pre-Lawrence decisions that relied on Bowers
invitation to subject homosexual persons to discrimination both in the public and
in the private spheres. 2013 WL 6726688, at *13 (S.D. Ohio Dec. 23, 2013)
(quotations omitted).26

26
Quoting from Plaintiffs Motion for Summary Judgment, Defendant claims that
Plaintiffs conceded Price-Cornelison set the standard of review in this circuit. See
Aplt. Principal Br. at 45. Defendants claim seems correct only if one does not
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172
C.
The Heightened Scrutiny Applied In Romer, Lawrence, And

Windsor To Sexual Orientation Discrimination Requires At Least
Careful Consideration, And Most Appropriately Should
Require Intermediate Scrutiny.
As explained above (pp. 32-36), sexual orientation classifications demand at

least careful consideration to ensure that they are not rooted in improper animus
or purpose.
Windsor, 133 S. Ct. at 2693.
But while the Romer-Lawrence-
Windsor trilogy rejected rational basis review by its words and its deeds,
SmithKline Beecham Corp., 2014 WL 211807, at *6, the Supreme Court in those
cases did not decide whether sexual orientation classifications should draw a
stricter form of scrutiny than careful consideration because the laws under
review failed that basic form of heightened scrutiny.
The traditional factors considered by the Supreme Court for deciding
whether a classification requires at least intermediateif not strictscrutiny
because it presents an elevated risk of invidious discrimination are summarized by
the Second Circuit in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), affd,
133 S. Ct. 2675 (2013):
read the remainder of the footnote Defendant quotes. See Pl. Motion for Summary
Judgment at 31 n.11 (Aplt. App. 91-92) (arguing that [g]iven the necessary
interrelatedness between sexual orientation discrimination and sex discrimination
within the context of the same-sex marriage issue, Plaintiffs submit the Tenth
Circuit could be expected to reach a different result than the one in PriceCornelison, supra, and earlier holdings).
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A) whether the class has been historically subjected to discrimination; B)

whether the class has a defining characteristic that frequently bears [a]
relation to ability to perform or contribute to society; C) whether the class
exhibits obvious, immutable, or distinguishing characteristics that define
them as a discrete group; and D) whether the class is a minority or politically
powerless.
Id. at 181-82 (quotations and citations omitted). Of these factors, the Supreme
Court has treated the first two as the most important, Obergefell, 2013 WL
6726688, at *14, the last two as not strictly necessary, see Windsor, 699 F.3d at
181, and the presence of any as marking a classification more likely than others to
reflect deep-seated prejudice rather than legislative rationality in pursuit of some
legitimate objective. Plyler v. Doe, 457 U.S. 202, 216 n.14 (1982).
Considering sexual orientation classifications in light of these factors(1) a
long history of severe and pervasive discrimination against gays and lesbians
that is widely acknowledged in American jurisprudence, Obergefell, 2013 WL
6726688, at *14; Pederson v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 317 (D.
Conn. 2012); (2) no dispute that sexual orientation has no relevance to a persons
ability to contribute to society, Golinski v. U.S. Office of Pers. Mgmt., 824 F.
Supp. 2d 968, 986 (N.D. Cal. 2012); (3) a scientific consensus that sexual
orientation is an immutable characteristic, De Leon v. Perry, No. 5:13-cv-00982OLG, 2014 WL 715741, at *13 (W.D. Tex. Feb. 26, 2014); and (4) despite some
recent political successes, the fact that gays and lesbians still largely lack
sufficient political strength to protect themselves from purposeful discrimination,
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172
Griego v. Oliver, No. 34,306, 2013 WL 6670704, at *17 (N.M. Dec. 19, 2013)a
growing number of federal and state courts have concluded that sexual orientation
classifications warrant heightened scrutiny.27
Applying the Supreme Courts suspect-classification framework to sexual
orientation classificationswhich this Court has yet to do, see p. 37, suprathis
Court should demand an exceedingly persuasive justification for the Oklahoma
Marriage Bans sweeping and targeted denial of marriage to gay and lesbian
Oklahomans. Virginia, 518 U.S. at 531.
D.
The Oklahoma Marriage Ban Also Triggers Intermediate

Scrutiny As Gender Discrimination.
The Oklahoma Marriage Ban defines the two parties to a marriage on the
basis of gender: one man and one woman. Okla. Const. art. 2, 35(A). It
thereby dictates whom every Oklahoman can marryonly someone of the
opposite sex. Id. This is a gender classification stark and simple. See Kitchen v.

27
See, e.g., Windsor, 699 F.3d at 181-85; Obergefell, 2013 WL 6726688, at *1418; Golinski, 824 F. Supp. 2d at 985-90; Pederson, 881 F. Supp. 2d at 310-33;
Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010), affd, 671
F.3d 1052 (9th Cir. 2012), vacated sub nom. Hollingsworth v. Perry, 133 S. Ct.
2652 (2013); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011); Griego,
2013 WL 6670704, at *12-18; Varnum, 763 N.W.2d at 885-96; In re Marriage
Cases, 183 P.3d at 441-44; Kerrigan v. Commr of Pub. Health, 957 A.2d 407,
425-31 (Conn. 2008). The United States has also determined that classifications
based on sexual orientation should receive heightened scrutiny. See Brief for the
United States on the Merits Questions at 22-27, United States v. Windsor, 133 S.
Ct. 2675 (2013) (No. 12-307), 2013 WL 683048, at *22-27. See also Amicus Br.
of Constitutional Law Scholars at 4-30.
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Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *20 (D. Utah Dec. 20, 2014)
(finding Utah same-sex marriage bans to be drawn according to sex); see also
Aplt. Principal Br. at 1, 5, 38, 65, 66, 72 (defending Oklahoma Marriage Bans
gendered definition of marriage). As such, the ban is invalid unless Defendant
can demonstrate that it is substantially related to achieving an exceedingly
persuasive justification. Virginia, 518 U.S. at 531, 533.
Defendant argues, however, that the Oklahoma Marriage Ban does not
classify on the basis of gender because any man or woman may marry a person of
the opposite sex, and just as equally, no man or woman may marry a person of
the same sex. Aplt. Principal Br. at 42. This is fallacious reasoning. To contend
that it is not a gender classification when a quota specifies one (and only one) of
each gender is likewise to contend that it is not a racial classification when a quota
specifies one (and only one) of each race. Virginias anti-miscegenation statute
would have been no less a racial classificationand no more a constitutional
oneif instead it had been a miscegenation statute, restricting marriage to only
the union of one white and one black.
Furthermore, the suggestion that equally burdening both sides of a gender
(or racial) line somehow eliminates rather than reinforces the classification is
squarely foreclosed by Loving, 388 U.S. at 8 (stating we reject the notion that the
mere equal application of a statute containing racial classifications is enough to
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remove the classifications from the Fourteenth Amendments proscription of all

invidious racial discriminations). Relatedly, Defendants parade of horribles
that recognizing the Oklahoma Marriage Ban as a gender classification would
create a constitutional crisis every time [the state] offered sex-specific restrooms,
locker rooms, living facilities, or sports teams, Aplt. Principal Br. at 43
conflates the classification inquiry with the scrutiny inquiry. Offering separate but
equal restrooms based on gender is constitutional not because it is not a gender
classification, but because it passes intermediate scrutiny as a gender classification.
On the other hand, of course, offering separate but equal restrooms based on race is
unconstitutional both because it is a racial classification and because it cannot
survive strict scrutiny. See Brown v. Board of Education, 347 U.S. 686 (1954).
E.
The Oklahoma Marriage Ban Triggers Strict Scrutiny As A

Classification That Burdens The Fundamental Right To Marry.
In addition to drawing heightened scrutiny for the reasons discussed above,

the Oklahoma Marriage Ban triggers strict scrutiny for barring Plaintiffs exercise
of the same fundamental and cherished right to marry that other Oklahomans
(except for interracial couples) have exercised every day since statehood. See pp.
64-67, infra (establishing that Plaintiffs seek to exercise the fundamental right to
marry); Plyler, 457 U.S. at 216-17 (subjecting to strict scrutiny those
classifications that disadvantage a suspect class or that impinge upon the exercise
of a fundamental right (emphasis added) (quotations omitted)).
The ban is
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therefore presumptively invidious and invalid unless Defendant can demonstrate

that it is precisely tailored to serve a compelling government interest. Id. at 217.
F.
The Oklahoma Marriage Ban Fails Careful Consideration

Under Romer, Lawrence, And Windsor Because It Imposes
Inequality Based On Moral Disapproval.
1. The District Court below found that excluding same-sex couples from
marriage was not a hidden or ulterior motive; it was consistently communicated to
Oklahoma citizens as a justification for the Oklahoma Marriage Ban. Bishop,
2014 WL 116013, at *23. In fact, by adopting a state constitutional amendment
barring the marriage of same-sex couples on top of existing statutory bans,
Oklahoma voters did more than simply deny same-sex couples the right to marry.
By design, the ballot measure shut the doors of Oklahoma courthouses and the
state capitol on same-sex couples, ensuring that they could never marry in
Oklahoma without winning an onerous, expensive, and extremely unlikely battle at
the ballot box to change the definition of marriage in the state constitution. See id.
2. Given the design and purpose of the Oklahoma Marriage Ban, it is no
surprise that its effect on Oklahoma same-sex couples as well as their children is
stark, sweeping, and severe. Not only does the ban work a total exclusion of only
one group from marrying in Oklahoma. Id. at *21. That exclusion denies samesex couples numerous valuable benefits and protections under state and federal law
that turn on state-recognized marriage, from spousal obligations, to property rights,
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to protections in inheritance and intestacy, to parental rights and responsibilities, to

alimony, to child support, to child custody, to visitation rights, to social security, to
family medical leave, to tax liability, to health insurance benefits, and to many
other legal entitlements and obligations, from the mundane to the profound.
Windsor, 133 S. Ct. at 2694; see pp. 11-13, supra. Defendant has not disputed that
the Oklahoma Marriage Ban writes inequality across state and federal law for
Oklahoma same-sex couples and their children. Id. at 2694; see Aplt. Principal Br.
at 85 (stating that any disadvantage experienced by children as a result of such a
ban is regrettable).
Moreover, by denying same-sex couples the right to marry, the Oklahoma
Marriage Ban demeans and humiliates these couples and their children,
conveying to them, to family, to friends, to neighbors, to classmates, to teachers, to
colleagues, to employers, to officials, to governments, and to all the world that
their relationships are unworthy and second-tier. Windsor, 133 S. Ct. at 2694.
Indeed, now and until the Oklahoma Marriage Ban is invalidated or repealed, the
law makes it more difficult for children in these Oklahoma families, in comparison
to children of married parents, to understand the integrity and closeness of their
own families and its concord with other families in their community and in their
daily lives. Id.
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3. As the District Court found, moral disapproval propelled passage of the

Oklahoma Marriage Ban. The record below establishes clearly and without
contradictionas a matter of law, the District Court ruledthat one particular
moral definition of marriage, one embodying moral disapproval of same-sex
marriage, served as the publicly stated and understood justification for the ballot
measure. Bishop, 2014 WL 116013, at *27. Considering the legislative and public
discussions leading up to the ballot measures passage, the District Court
highlighted a number of key public statements expressing support for the measure
and disapproval of same-sex marriage on moral or religious grounds, including the
following representative examples:
Oklahoma House Minority Leader Todd Hiett stating, before passage
of the measure in his chamber, that [t]o recognize something other
than what God has ordained as traditional marriage obviously detracts
or deteriorates the importance of the traditional marriage.
Bill Graves, another member of the Oklahoma House, explaining that
he believed Oklahomans would support the measure because [t]his is
a Bible Belt state. . . . Most people dont want that sort of thing
here. . . . Gay people might call it discrimination, but I call it
upholding morality.
State Senator James Williamson, the author of the measure, stating
upon its passage in his chamber that Oklahoma should not legitimize
that lifestyle by saying, Yes, two homosexuals can be just as married
as two heterosexuals. Thats not right.
Williamson again, at a pro-marriage rally organized by over forty
Tulsa-area churches two months before the public vote, stating, As
Christians, we are called to love homosexuals[.] But I hope everyone
at this rally knows the Scriptures prohibit homosexual acts.
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Tulsa Mayor Bill LaFortune, at the same rally, stating, If you believe
in Christ, if you believe in this country, and if you believe in this city,
you believe that marriage is a covenant between God, a man, and a
woman.
Id. at *26-27 (quotations omitted); see also Aplt. Principal Br. at 36 n.7 (quoting
additional examples from Plaintiffs exhibits on summary judgment).28
These and other public statements by proponents of the ballot measure are
[j]ust like those of federal legislators who characterized their support of DOMA
as defending the morality of marriage. Id. at *26. Additionally, just as the title
of the federal measure (The Defense of Marriage Act) confirms its purpose as
protecting the traditional moral teachings reflected in heterosexual-only marriage

28
Defendant questions the District Courts use of newspaper articles reporting on

the legislative and public debates leading up to the enactment of the ballot measure
as evidence of its purpose. Aplt. Principal Br. at 35 & n.6. But in addition to
relying on newspaper articles herself, see id. at 35-36 & n.7, Defendant draws on
sources far and widefrom William Blackstone and John Locke to Claude LeviStrauss and The Witherspoon Instituteto establish the meaning and purpose of
marriage in Oklahoma. Suffice it to say, these sources are not as relevant and
reliable as statements by contemporary Oklahomans who originated, drafted, and
promoted the ballot measure, and the accuracy of whose statements Defendant
does not dispute. Bishop, 2014 WL 116013, at *23 & n.31; see Atlantic Refining
Co. v. Okla. Tax Commn, 360 P.2d 826 (Okla. 1959) (syllabus by the court)
(noting that courts may with propriety recur to the history of the time when the act
was passed; and this is frequently necessary, in order to ascertain the reason as
well as the meaning of particular provisions (emphasis added)); North v.
McMahan, 110 P. 1115 (Okla. 1910) (syllabus by the court) (The intention of the
voter should be ascertained from the language of his ballot interpreted in light of
the circumstances of a public nature surrounding the election (emphasis added));
see also Finstuen v. Crutcher, 496 F.3d 1139, 1148 & n.6 (10th Cir. 2007)
(considering press release by Oklahoma House in determining impetus and
rationale for enactment of statute barring recognition of valid out-of-state samesex adoptions).
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laws, Windsor, 133 S. Ct. at 2693, so too the title of the Oklahoma measure (the
Marriage Protection Amendment) reflects the same moral purpose. Bishop, 2014
WL 116013, at *22 (quotations omitted). But as the District Court concluded,
while moral disapproval often stems from deeply held religious convictions, it is
not a permissible justification. Id. at *27 (quoting Lawrence, 539 U.S. at 577
([T]he fact that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice) (quotations omitted)).
4. Defendant denies that moral disapproval was the motivating purpose for
adopting the Oklahoma Marriage Ban. Defendant argues the measures purpose
was limited to ensur[ing] that the definition of marriage in Oklahoma will be
determined by the People rather than . . . by state-court judges. Aplt. Principal Br.
at 35. However, the ultimate point of the Oklahoma Marriage Ban was to enshrine
in the state constitution one particular moral definition of marriage. Bishop,
2014 WL 116013, at *27. Furthermore, a state cannot justify an unconstitutional
law simply by asserting an interest in keeping judges from ruling on the laws
constitutionality. Otherwise, a state could shelter segregation, anti-miscegenation,
and other odious laws from judicial review simply based on the asserted purpose of
keeping those policies in the hands of the People rather than activist judges.
Aplt. Principle Br. at 35 (quotations omitted).
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In any case, Defendants characterization of the measures purpose as

merely procedural is not credible.
Nearly the whole of Defendants brief is
devoted to a substantive defense of the Oklahoma Marriage Ban as an enactment

to preserve marriage as a man-woman union, Aplt. Principal Br. at 1, to affirm
the man-woman marriage institution, id. at 4, to reflect[] Oklahomans
considered perspectives on the . . . the [sic] institution of marriage, id. at 7
(quotations omitted), to (yet again) affirm[] the man-woman marriage institution,
id. at 15, and so on.
5. Given that the avowed purpose and practical effect of the Oklahoma
Marriage Ban is to disparage and to impose inequality on same-sex couples
based on improper . . . purpose, Windsor, 133 S. Ct. at 2693, 2694, 2696
namely, moral disapproval of homosexuals as a class, or same-sex marriage as a
practice, Bishop, 2014 WL 116013, at *27the measure cannot withstand the
careful consideration required by Romer, Lawrence, and Windsor.
The
Oklahoma Marriage Ban is unconstitutional.

G.
The Oklahoma Marriage Ban Fails Any Level Of Scrutiny

Because There Is Simply No Rational Connection Between
Defendants Post-Hoc Justifications And The Exclusion Of SameSex Couples From Marriage.
Because the Romer-Lawrence-Windsor trilogy considered actual purpose

rather than post-hoc rationalizations in applying careful consideration to sexual
orientation discrimination, the Oklahoma Marriage Ban rises or falls based on the
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only actual purpose found by the District Court as a matter of law to have
motivated its enactment.
Id. at *26, 27.
That actual purpose being moral
disapproval, the measure falls. But in any case, the Oklahoma Marriage Ban fails
all levels of scrutiny. As the District Court determined, the post-hoc justifications
offered by Defendant to excuse the far-reaching inequality that the Oklahoma
Marriage Ban visits on same-sex couples and their children make[] no sense and
well exceed[] the limits of rationality. Id. at *29, 30.
Rational basis review is the lowest level of equal protection inquiry. If a
classification cannot survive rational basis, then it also fails the more demanding
levels of scrutiny. Under rational basis, the classification must be reasonable, not
arbitrary, and must exhibit a fair and substantial relation to the object of the
legislation. Johnson v. Robinson, 415 U.S. 361, 375 (1974) (quotations omitted).
Moreover, to ensure that all persons similarly circumstanced shall be treated
alike, id. (quotations omitted), the asserted rationales must be based on a
reasonably conceivable state of facts, F.C.C. v. Beach Comms, Inc., 508 U.S.
307, 313 (1993), rather than negative attitudes, undifferentiated fears, or
irrational prejudice. City of Cleburne, 473 U.S. at 448, 449. In short, rational
basis review is not toothless. Mathews v. Lucas, 427 U.S. 495, 510 (1976).
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1.
The Purpose Of Marriage In Oklahoma Is Not Based On

Presumptive Procreative Potential.
To ascribe a rational basis to the Oklahoma Marriage Ban, Defendant

asserts on appeal that it was adopted to affirm a longstanding public purpose of
channeling the presumptive procreative potential of man-woman relationships into
committed unions for the benefit of children and society. Aplt. Principal Br. at
15. Defendants peculiar and impoverished characterization of the public purpose
of marriage strains credulity, and moreover diminishes and demeans the profound
significance of marriage to millions of Oklahomans.
a.
There is no statement in the Oklahoma statutes or case law since
statehood (or even before) that links civil marriage in Oklahoma to the
presumptive procreative potential of opposite-sex relationships. Nor is there any
statement in the text of the Oklahoma Marriage Ban itself or by its legislative and
public proponents suggesting that purpose. Apparently Defendant cannot find any
such statement either.
Though her brief is replete with the assertion that
channeling the presumptive procreative potential of opposite-sex relationships

into marriage (to avoid begetting unintended children out of marriage) is the
central purpose of Oklahoma marital law and the Oklahoma Marriage Ban, see
Aplt. Principal Br. at 1, 3, 15, 23, 27, 33, 58, 59, 63, her brief is conspicuously
devoid of any quotation or citation to any Oklahoma law, policy, or person stating
anything to that effect. Indeed, the cumbersome phrase presumptive procreative
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potential is not only novel to Oklahoma marital law, but also nowhere to be found
in Defendants principal brief below on summary judgment. (Aplt. App. 187-246).
It is scarcely surprising that Oklahoma statutes and case law do not reference
(much less adopt) Defendants asserted principal purpose of marriage. That is
because, since statehood, it has been the established law and policy of Oklahoma to
open the institution of marriage to couples without any regard to procreative
potential.
As discussed above (pp. 3-4), marriage in Oklahoma is a civil
contract that simply requires the consent of the parties legally competent of
contracting and entering into it. Okla. Stat. tit. 43, 1; see Okla. Gen. Stat. ch.
31, 3249 (1908) (same). Neither the requirements for a marriage license nor the
requirements for a common law marriage in Oklahoma reference, inquire into, or
condition marriage on either the intent or the capability to beget children. See
Okla. Stat. tit. 43, 5; Mudd, 235 P. at 479. As Justice Scalia has noted with
respect to every state in the country, the sterile and the elderly are allowed to
marry, Lawrence, 539 U.S. at 605 (Scalia, J., dissenting), notwithstanding their
lack of presumptive procreative potential.29 And of course, Oklahoma couples

29
In Defendants cross-motion for summary judgment below, she characterized the

states interest in marriage as to steer naturally procreative relationships into a
stable union. (Aplt. App. 233 (emphasis added; capitalizations omitted)). But
changing naturally to presumptively does not elide the fact that postmenopausal women and the infertile are not biologically procreative.
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who can but do not wish to procreate (thereby rebutting any presumption) may
also marry.
Furthermore, the very limited criteria that render an adult incapable of
marrying under Oklahoma law have absolutely nothing to do with presumptive
procreative potential. As also noted above (pp. 4-5), that list of ineligible adults
consists of (1) those who lack the mental capacity to enter into a marriage contract,
see Ross, 54 P.2d 611; (2) those who are related too closely by blood, see Okla.
Stat. tit. 43, 2; and (3) those who are already married, see Okla. Const. art. 1, 2.
All three classes, as a biological matter, presumptively can beget children. The
only other classes of couples whom Oklahoma law has excluded from marriage are
(4) interracial couples, see Okla. Gen. Stat. ch. 31, 3260 (1908), who of course
can and do have children, and most recently, (5) same-sex couples, see Okla.
Const. art. 2, 35, whose families in Oklahoma, as the District Court noted, had
1,280 children as of the 2010 census. See Bishop, 2014 WL 116013, at *29.
Finally, just as entering into marriage in Oklahoma does not turn on
presumptive procreative potential, so too exiting marriage is free of
consideration regarding the capability to have children. Infertility is not a ground
for divorce. See Okla. Stat. tit. 43, 101 (listing grounds for divorce). In fact, as
the second state to adopt no-fault divorce (p. 5, supra), Oklahomas divorce policy
mirrors its marriage policy. Marriage in Oklahoma, like in every state, is a civil
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contract based on the consent of the parties, and without regard to procreative
ability. See Amicus Br. of Historians of Marriage at 14-18.
b. To say that marriage is a civil institution based on consent is not to deny
its immense import for Oklahomans who marry or wish to marry, for their
children, and for society. Windsor, 133 S. Ct. at 2692. Quite the opposite.
First, it goes without saying (though in light of Defendants reductionist
view of the purpose of marriage, it needs to be said) that marriage is of profound
importance to couples who exchange vows of lifelong commitment to each other.
For millions of Oklahomans, like millions of other Americans, those vows no
doubt have consisted of the traditional and enduring pledges (or variations of them)
to have and to hold, for better or for worse, for richer, for poorer, in
sickness and in health, to love and to cherish, until death do us part. For no
Oklahomans, it is safe to say, have marriage vows consisted of channeling their
presumptively procreative potential into a man-woman relationship to avoid
unintended children outside of marriage.
Second, it also goes without saying that marriages in which couples cannot
have children because of age, infertility, or disability, choose not to have children
for a number of deeply personal reasons, or remain married long after having
children, are worthy of equal dignity. Windsor, 133 S. Ct. at 2693. To suggest,
as Defendant does, that these adult-centric marriages are less self-giving and
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involve a less sacrificial ethic among spouses than child-centered marriages,

Aplt. Principal Br. at 76, 77, is nothing short of demeaning, in the fullest sense
of Windsors words.
Lastly, Defendants impoverished view of the public purpose of marriage as
avoiding unplanned non-marital children exemplifies a Bowers-like failure to
appreciate the extent of the liberty at stake. Lawrence, 539 U.S. at 567. As
Lawrence confirms, our laws and tradition afford constitutional protection to
personal decisions relating to marriage, as well as to procreation,
contraception, family relationships, and child-rearing. Id. at 574. Indeed,
with the notable current exception of the Oklahoma Marriage Ban, Oklahoma law
respects the autonomy of the person in making these choices by grounding
marriage in the realm of individual consent that has led millions of Oklahomans to
dateand doubtless millions in the futureto exchange vows of lifelong
commitment. Id.; see Okla. Stat. tit. 43, 1.
2.
Excluding Same-Sex Couples From Marriage Is Not Rationally

Related To Promoting Responsible Procreation Or An
Optimal Child-Rearing Environment.
Assuming for the sake of argument that the public purpose of marriage in
Oklahoma is as diminished as Defendant formulates, excluding same-sex couples
from marriage is so far divorced from such a purpose that the Oklahoma Marriage
Ban well exceeds the limits of rationality. Bishop, 2014 WL 116013, at *30.
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Defendant states that unintended children are the frequent result of sexual
relationships between men and women, but never the product of same-sex
relationships, and asserts that it is plainly reasonable to limit marriage to
opposite-sex couples to address the unique challenges and opportunities posed
by their procreative potential. Aplt. Principal Br. at 47, 49, 58. Defendant
further claims that the State has an interest in channeling these man-woman
relationships into marriage because children develop best when reared by their
biological parents in a stable family unit. Id. at 46, 50, 59. These appear to be
repackaged arguments, rejected below by the District Court, that the Oklahoma
Marriage Ban encourages responsible procreation and promotes the optimal
child-rearing environment. Bishop, 2014 WL 116013, at *28-31 (quotations and
capitalizations omitted); see Aplt. App. 229-40.
However phrased, these
arguments cannot obscure the total lack of rational connection between the
Oklahoma Marriage Ban and Defendants post-hoc justifications.
First, it would require nothing short of a titanic surrender to the
implausible to suppose that barring same-sex couples from marrying makes
opposite-sex couples more inclined to marry before producing unintended
offspring, or conversely that allowing same-sex couples to marry would make
opposite-sex couples less inclined to marry before having unplanned children.
Erie v. Paps AM, 529 U.S. 277, 323 (2000) (Stevens, J., dissenting). Certainly,
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Defendant has presented no evidence for such a surmise. Indeed, every federal and
state court after Windsor, as well as numerous courts before Windsor, has rejected
this responsible procreation justification as quintessentially irrational.30
Second, Defendants contention that children fare better when raised by their
opposite-sex biological parents (the optimal child-rearing rationale) is squarely
contradicted by decades of sound social science.
As court after court has
recognized, a consensus has developed among the medical, psychological, and

social welfare communities that children raised by gay and lesbian parents are just
as likely to be well-adjusted as those raised by heterosexual parents. Gill v. Office
of Pers. Mgmt., 699 F. Supp. 2d 374, 388 (D. Mass. 2010); see Bostic v. Rainey,
No. 2:13-cv-395, 2014 WL 561978, at *18 (E.D. Va. Feb. 13, 2014) (same);
Obergefell, 2013 WL 6726688, at *20 & n.20 (same); Golinski, 824 F. Supp. 2d at
991 (same); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997, 999 (N.D. Cal.
2010) (same), affd, 671 F.3d 1052 (9th Cir. 2012), vacated sub nom.
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Varnum, 763 N.W.2d at 902 &
n.26 (same); see also Amicus Br. of American Psychological Association at 18
(same); Amicus Br. of American Sociological Association at 3 (same).

30
See, e.g., Windsor, 699 F.3d at 188; De Leon, 2014 WL 715741, at *16; Bishop,
2014 WL 116013, at *29; Kitchen, 2013 WL 6697874, at *25; Golinski, 824 F.
Supp. 2d at 993; Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 388-89 (D.
Mass. 2010); Perry, 704 F. Supp. 2d at 972; Griego, 2013 WL 6670704, at *20;
Varnum, 763 N.W.2d at 902; In re Marriage Cases, 183 P.3d at 431-33.
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Against the weight of this wide-spread scientific consensus, Defendant relies

heavily on a handful of studies that examine the impact on child wellbeing of
stepparents, divorced parents, single parents, or absentee fathers.
See Aplt.
Principal Br. at 48-54.31 But relying on apples to make arguments about oranges is
not scientifically sound. See Amicus Br. of the American Sociological Association
at 14-30 (distinguishing such sources and discrediting Defendants reliance on
them); Amicus Br. of American Psychological Association at 15 (cautioning that
researchers must take care to avoid conflating the negative consequences of
experiencing divorce or household instability with the consequences of simply
having a gay or lesbian parent).
Indeed, to the extent the studies relied on by Defendant confirm anything, it
is the general scientific consensus that positive child wellbeing is the product of
stability in the relationship between two parents, stability in the relationship
between the parents and the child, and greater parental socioeconomic resources.
Amicus Br. of the American Sociological Association at 3. Consequently, as the
District Court concluded, excluding same-sex couples from marriage and its

31
For example, Defendant prominently features the study by Kristin Anderson

Moore et al., Marriage from a Childs Perspective: How Does Family Structure
Affect Children, and What Can We Do About It?, Child Trends Research Brief
(June 2002). See Aplt. Principal Br. at 48, 50, 81. But that study only compared
the wellbeing of children raised by stepparents and single parents to the wellbeing
of children raised by stable two-parent families, and its authors have pointedly
disclaimed on its front page that no conclusions can be drawn from this research
about the well-being of children raised by same-sex parents.
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myriad legal, financial, and social benefits actually undermines the state interest in
promoting a stable family unit for the benefit of children and society, Aplt.
Principal Br. at 15, 50, while including same-sex couples would promote it. See
Bishop, 2014 WL 116013, at *31; accord De Leon, 2014 WL 715741, at *14;
Kitchen, 2013 WL 6697874, at *26; Golinski, 824 F. Supp. 2d at 992; Gill, 699 F.
Supp. 2d at 389; Goodridge, 798 N.E.2d at 964.
In the end, the Oklahoma Marriage Ban is at once too narrow and too
broad. Romer, 517 U.S. at 633. It is too broad because, in the guise of promoting
the wellbeing of children, it imposes inequality on numerous children of same-sex
couples. See Plyler, 457 U.S. at 220 ([V]isiting . . . condemnation on the head of
an infant is illogical and unjust (quotations omitted)). At the same time, it is too
narrow because it does not bar any other class of Oklahoma couples based on their
lack of procreative potential, much less their potential for optimal parenting.
See Bishop, 2014 WL 116013, at *31 (noting that Defendant does not deny marital
licenses to any opposite-sex couples based on their willingness or ability to
provide an optimal child-rearing environment). This glaring underinclusivity
resembles that of City of Cleburne, where the denial of a housing permit to only a
single class among many that implicated the states asserted interests made the
classification so attenuated in relation to those objectives as to render it
arbitrary and irrational. 473 U.S. at 446. In short, the marital bans sheer
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breadth is so discontinuous with the reasons offered for it that it is invalid under
any level scrutiny. Romer, 517 U.S. at 632.32
3.
Wild Speculation About The Real-World Consequences Of

Redefining Marriage Does Not Rescue The Oklahoma
Marriage Ban From Irrationality.
With rising alarmand rising speculationDefendant warns that allowing

same-sex couples to marry would have real-world consequences. Aplt. Principal
Br. at 64 (capitalizations omitted). Namely, allowing same-sex couples to marry
would (1) transform marriage from a gendered to a genderless institution; (2)
sever the inherent link between marriage and procreation; (3) convey that
marriage exists to advance adult desires rather than serving childrens needs; (4)
convey that marriage is merely an option (rather than a social expectation) for
man-woman couples raising children; (5) result in fewer man-woman couples

32
Perhaps recognizing the essential irrationality of the Oklahoma Marriage Ban,

Defendant asks this Court to examine only whether including opposite-sex couples
in marriage furthers the States asserted interests, and to close this Courts eyes to
whether excluding same-sex couples from marriage promotes the bans purposes.
See Aplt. Principal Br. at 55. This request reflects neither reality nor rational basis
review. As to reality, the drawing of a line does not make the world beyond
disappear, and the sensibility of any line (physical or otherwise) cannot be assessed
without knowing what it separates. As to rational basis, the law reflects rather than
rejects reality, and requires consideration of whether all persons similarly
circumstanced shall be treated alike, Johnson, 415 U.S. at 375 (emphasis added),
so that special recognition (Aplt. Principal Br. at 46) is not given to one group
over another without justification. For these reasons, and those given by the
District Court below and the lower court in Kitchen, Defendants attempt to evade
even the lowest level of equal protection scrutiny should be rejected. See Bishop,
2014 WL 116013, at *30; Kitchen, 2013 WL 6697874, at *24.
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marry[ing]; (6) result in more unwed childbearing and divorce; (7) result in less
fathers being committed to jointly rais[ing] the children they beget; (8) entrench
an adult-centered view of marriage that focuses on deep romantic love; (9)
obscure a child-centric view of marriage that promotes self-giving and a
sacrificial ethic; (10) decrease[] marital satisfaction and (again) father
involvement; (11) erode marital norms like sexual exclusivity, permanence, and
monogamy; and (12) promote a home environment with unknown effects on
children. Aplt. Principal Br. at 64-82 (capitalizations omitted).
As a preliminary matter, Defendants unsubstantiated assumptions about the
history and nature of marriage are highly inaccurate with respect to Oklahoma, see
pp. 51-55, supra, as well as the rest of the United States. See Amicus Br. of
Historians of Marriage at 2-31.33 Furthermore, Defendants list of real-world
consequences is as fantastical as it is insulting to both opposite-sex couples and
same-sex couples. It defies rationality to suggest that opposite-sex couples would
be less desirous of marriage, less devoted in marriage, and less loving and selfsacrificing to each other and their children if more couples share in the mutual

33
As the historians of marriage observe in their amicus brief, marriage is a

capacious and complex institution that has political, social, economic, legal,
and personal components, and [o]nly a highly reductive interpretation would
posit that the core purpose or defining characteristic of marriage is the married
pairs procreation or care of biological children. Amicus Br. of Historians of
Marriage at 2-3; see id. at 8-18. Of course, marriage has also evolved over time to
be a more equal and inclusive institution. See id. at 4-6, 18-31.
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love, commitment, and sacrifice of marriage, and more couples and their children
share in the status, benefits, and protections of marriage. See pp. 56-57, supra.
These suggestions also manifest a disparaging and meager faith in the bonds
between married couples and between parents and children.
As for the suggestion that allowing same-sex couples to marry would
eventually erode marital norms like sexual exclusivity, permanence, and
monogamy, it is based on nothing more than invidious stereotypeand defied by
the decades-long, loving relationships of Plaintiffs Bishop and Baldwin and
Plaintiffs Barton and Phillips. Indeed, as the District Court below concluded after
rejecting each of Defendants post-hoc rationalizations, excluding same-sex
couples from marriage based on these imagined threats is, at bottom, an arbitrary
exclusion based upon the majoritys disapproval, and insulting to same-sex
couples, who are human beings capable of forming loving, committed, and
enduring relationships. Bishop, 2014 WL 116013, at *32.
Defendants vague, speculative, and unsubstantiated fears are, in any case,
misplaced.
Obergefell, 2013 WL 6726688, at *8.
They should be directed
primarily against Oklahoma civil marriage itself, which since statehood has
grounded marriage on mutual consent between adults, see Okla. Stat. tit. 43, 1;
against Oklahomas no-fault divorce regime, which as Defendant acknowledges
reinforces the consent-based nature and norm of Oklahoma marriage, see Aplt.
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Principal Br. at 69-71; against contraception, which has enabled married couples to
decide whether and when to procreate; and against the Supreme Court, which has
recognized since Griswold a right of privacy and autonomy in personal decisions
relating to marriage, procreation, contraception, family relationships, [and] childrearing. Lawrence, 539 U.S. at 574.
4.
State Regulatory Power Over Domestic Relations Does Not

Shelter Invidious Discrimination.
As refuge for the fundamental irrationality of the Oklahoma Marriage Ban,

Defendant invokes the regulatory power of states over domestic relations.
Defendant interprets Windsors central theme to be the right of States to define
marriage for their community.
Aplt. Principal Br. at 28.
This reading
misunderstands Windsor. While the decision acknowledged the traditional power

of states over domestic relations, it also took pains to repeatedly warn that [t]he
States interest in defining and regulating the marital relation (1) always must
respect the constitutional rights of persons, Windsor, 133 S. Ct. at 2691, 2692, (2)
is subject to those guarantees, id. at 2691, (3) is subject to constitutional
guarantees, id. at 2692, and (4) (again) is subject to constitutional guarantees.
Id. In issuing these warnings, the Windsor Court cited Loving. As the District
Court recognized, [a] citation to Loving is a disclaimer of enormous proportion.
Bishop, 2014 WL 116013, at *18. The states regulatory power over domestic
relations is not a license to violate[] basic due process and equal protection
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principles. Windsor, 133 S. Ct. at 2693; see Amicus Br. of Massachusetts et al. at
16-19.
III.
The Oklahoma Marriage Ban Denies Plaintiffs The Fundamental Right

To Marry In Violation Of Due Process.
A.
The Right To Marry Is Fundamental.
The right to marry is older than the Bill of Rights, a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being
sacred. Griswold v. Connecticut, 381 U.S. 479, 486 (1965). Accordingly, [t]he
freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness, Loving, 388 U.S. at 12, one of the
basic civil rights of man, Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and
the foundation of the family and of society. Zablocki v. Redhail, 434 U.S. 374,
384 (1978) (quotations omitted). There is no dispute that the right to marry is a
fundamental freedom. Loving, 388 U.S. at 12.
B.
The Oklahoma Marriage Ban Infringes The Fundamental Right

To Marry.
Plaintiffs and other same-sex couples seek no moreand no lessthan to

exercise the same fundamental right to marry enjoyed and cherished by millions of
other Americans. Defendant argues that Plaintiffs seek recognition of a new right
to marry a person of the same sex, because marriage by same-sex couples is not
deeply rooted in this Nations history and tradition. Aplt. Principal Br. at 37
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(quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). This argument
misuses history and tradition, and misunderstands the right to marry.
In Lawrence, the Supreme Court cautioned that [h]istory and tradition are
the starting point, but not in all cases the ending point of the substantive due
process inquiry. Lawrence, 538 U.S. at 572 (quotations omitted). That is because
[i]t is revolting to have no better reason for a rule of law than that so it was laid
down in the time of Henry IV. Oliver Wendell Holmes, The Path of Law, 10
Harv. L. Rev. 457, 469 (1897). To highlight just one example, neither history
nor tradition could save a law prohibiting miscegenation from constitutional
attack.
Lawrence, 539 U.S. at 577-78 (quoting Bowers, 478 U.S. at 216
(Stevens, J., dissenting)).

So too with the struggle of same-sex couples to exercise the right to marry.
It is of course true, as Windsor observed, that the possibility of same-sex couples
marrying had not occurred to many until recently. Windsor, 133 S. Ct. at 2689.
But people and courts across the country are gaining a new insight that the
historical limitation of marriage to opposite-sex couples amounts to an injustice
that they had not earlier known or understood. Id.; see In re Marriage Cases, 183
P.3d at 853-54 ([I]f we have learned anything from the significant evolution in the
prevailing societal views and official policies toward members of minority races
and toward women over the past half-century, it is that even the most familiar and
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generally accepted social practices and traditions often mask an unfairness and
inequality that frequently is not recognized or appreciated by those not directly
harmed); Amicus Br. of Howard University School of Law Civil Rights Clinic at
5-30 (comparing bans on same-sex marriage to bans on interracial marriage).
While Defendant unduly enlarges the significance of history and tradition,
she wrongly diminishes the scope of the right to marry. As a general matter, the
Constitution does not parcel out liberties by caste; it extends them to all. See
Plessy, 163 U.S. at 559 (1896) (Harlan, J., dissenting) (observing that the
Constitution neither knows nor tolerates classes among citizens). Regarding the
right to marry, the Supreme Court likewise has never narrowed its universality by
recasting it as a more limited right to interracial marriage (Loving), right to
inmate marriage (Turner v. Saffley, 482 U.S. 78 (1987)), or in any case right to
man-woman marriage. See Golinski, 824 F. Supp. 2d at 982 n.5 (The analysis of
the fundamental right to marry has not depended upon the characteristics of the
spouse.); Pederson, 881 F. Supp. 2d at 333 n.9 (same).
If there is any doubt what view the Supreme Court would adopt on the
nature of the right at stake, Lawrence removed it. In affirming that our laws and
traditions afford constitutional protection to personal decisions relating to
marriage, the Supreme Court declared unambiguously that [p]ersons in a
homosexual relationship may seek autonomy for these purposes, just as
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heterosexual persons do.
Lawrence, 539 U.S. at 574 (emphasis added); see
Bostic, 2014 WL 561978, at *12-13 (holding that same-sex couples seeking to

marry ask for nothing more than to exercise . . . the same right that is currently
enjoyed by heterosexual individuals); Kitchen, 2013 WL 6697874, at *15-18
(same); Obergefell, 2013 WL 6726688, at *9 (noting that a substantial logical and
jurisprudential basis exists for such a conclusion).
C.
The Oklahoma Marriage Ban Fails Strict Scrutiny.
Because the Oklahoma Marriage Ban prevents Plaintiffs and other same-sex
couples from exercising the fundamental right to marry, it is subject to strict
scrutiny. See Carey v. Population Servs. Intl, 431 U.S. 678, 686 (1977); accord
Zablocki, 434 U.S. at 388. For the reasons discussed above (pp. 55-63), the
Oklahoma Marriage Ban utterly lacks rationality and therefore cannot survive
rational basis review, much less the stringent demands of strict scrutiny. The ban
violates due process.
IV.
Oklahomas Refusal To Recognize The Valid Out-Of-State Marriages

Of Same-Sex Couples Offends Due Process And Equal Protection.
For same-sex couples now living in Oklahoma, and for those who will move
into Oklahoma for work, school, family, or military service, the Oklahoma
Marriage Ban effectively reaches across the entire country. On top of denying
their ability to marry inside of Oklahoma, the measure denies them state
recognition of marriages from outside of Oklahoma. The definition and the non67
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recognition provisions are essentially two sides of the same coin, the design,
purpose, and effect of which is to impose inequality on all same-sex couples in
Oklahoma. Windsor, 133 S. Ct. at 2690, 2694.
Of course, for the same reasons that barring same-sex Oklahomans from
marriage is devoid of rational justification, the States refusal to recognize samesex marriages cannot withstand any level of constitutional scrutiny. Certainly, the
State cannot claim that, even though the Constitution forbids it from prohibiting instate same-sex marriages, Oklahomas public policy trumps the Constitution when
it comes to non-recognition of out-of-state same-sex marriages. Such a claim
would be too extravagant to be maintained. Marbury v. Madison, 5 U.S. (1
Cranch) 137, 179 (1803). In any case, the argument is foreclosed by Windsor. See
Windsor, 133 S. Ct. at 2692 (warning that, though marital policies may vary
from state to state, they remain subject to constitutional guarantees); see Amicus
Br. of Massachusetts et al. at 16-19 (Federalism considerations cannot justify
these marriage restrictions. (capitalizations omitted)).
If anything, under the basic due process and equal protection principles
articulated in Windsor, 133 S. Ct. at 2693, the non-recognition component of the
Oklahoma Marriage Ban magnifies its constitutional infirmity. As the district
court in Obergefell put it, the question is whether a state can do what the federal
government cannot, 2013 WL 6726688, at *8, namely, divest married same-sex
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couples of the equal dignity of same-sex marriages, a dignity conferred by the

States in the exercise of their sovereign power. Windsor, 133 S. Ct. at 2693. The
answer is no.34
First, as a matter of due process, the Oklahoma Marriage Ban, like the
federal DOMA, strips married same-sex couples entering Oklahoma of a dignity
and status of immense import conferred on them by another state. Id. at 2692.
Married same-sex couples instantly lose a far-reaching legal acknowledgement of
the intimate relationship between them, as the measure tells those couples, and
all the world, that their otherwise valid marriages are unworthy of [Oklahoma]
recognition. Id. at 2692, 2694 (substituting Oklahoma for federal). Worse
than DOMA, the Oklahoma Marriage Ban does not just place[] same sex-couples
in an unstable position of being in a second-tier marriage. Id. at 2694 (emphasis
added). As long as they remain in the state, the Oklahoma Marriage Ban makes
them unmarried to each other.
But just as Oklahoma cannot deny same-sex
couples the right to marry, it cannot revoke that fundamental right by refusing to
recognize their valid out-of-state marriages. Loving itself illustrates this point, for
the Virginia couple in that case visited the District of Columbia to marry, only to

34
See De Leon, 2014 WL 715741, at *27 (finding state non-recognition provisions

unconstitutional after Windsor); Bostic, 2014 WL 561978, at *23 (same); Bourke,
2014 WL 556729, at *8 (same); Obergefell, 2013 WL 6726688, at *21 (same); see
also Tanco, No. 3:13-cv-01159, at 14, 19 (preliminarily enjoining state nonrecognition provisions as likely unconstitutional).
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have their out-of-state marriage elicit prosecution rather than recognition upon
their return. See Loving, 388 U.S. at 2. Under Loving and Windsor, the Oklahoma
Marriage Ban denies due process.
Second, like DOMA, the Oklahoma Marriage Ban offends equal protection
because its principal purpose and effect is to identify a subset of state-sanctioned
marriages and make them unequal. Windsor, 133 S. Ct. at 2694 (emphasis
added). On the one hand, Oklahoma law recognizes the out-of-state marriages of
virtually every other class of adult couples, including first cousins whom
Oklahoma itself does not permit to marry. See Okla. Stat. tit. 43, 2; see Spector,
supra, at 17. On the other hand, by operation of the Oklahoma Marriage Ban,
same-sex couples married outside of Oklahoma are deemed legal strangers to each
other in Oklahoma, as well as strangers to the vast array of legal benefits and
protections conferred on state-recognized married couples and their children. See
pp. 11-13, supra. As discussed above, and as found by the District Court, this
disparate treatment promotes no compelling, legitimate, or even minimal rational
interest, but at bottom is based on the majoritys moral disapproval. Bishop,
2014 WL 116013, at *32; see 44-63, supra. Yet [t]he Constitutions guarantee of
equality must at the very least mean that a bare . . . desire to harm a politically
unpopular group cannot justify disparate treatment of that group. Windsor, 133 S.
Ct. at 2693 (quotations omitted).
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Finally, it bears mention that the havoc wrought by the Oklahoma Marriage
Bans non-recognition provision is substantialand escalatingas more same-sex
couples in more states marry. It harms gay and lesbian workers, who in a mobile
and global economy may have little choice but to relocate their families to
Oklahoma. See Amicus Br. of 46 Employers and Organizations Representing
Employers. It harms gay and lesbian servicemembers, who may be stationed at
major military installations in Oklahoma such as Tinker Air Force Base or Fort
Sill.
See Amicus Br. of Outserve-SLDN and the American Military Partner
Association. And it harms the children of gay and lesbian couples, who have even
less control over where their families liveand if their families are recognized,
protected, and dignified as a family.35 See Amicus Br. of Parents, Families, and
Friends of Lesbians and Gays; cf. Windsor, 133 S. Ct. at 2694 (DOMA
humiliates these children). Indeed, this Court has first-hand experience with
same-sex couples struggling to have Oklahoma even recognize the out-of-state

35
Defendant characterizes the number of children living with same-sex couples

in the United States as small (Aplt. Principle Br. at 85), but according to
recent demographic data, more than 110,000 same-sex couples are raising
more than 170,000 biological, step, or adopted children. See Gary J. Gates,
LGBT Parenting in the United States (Feb. 2013), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Parenting.pdf.
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adoptions of their children. See Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir.
2007) (invalidating Oklahomas refusal to recognize such adoptions).36
V.
Plaintiffs Possess Standing.

A.
Plaintiffs Barton And Phillips Have Standing To Challenge The

Oklahoma Marriage Bans Non-Recognition Provision.
The District Court ruled that Plaintiffs Barton and Phillips lack standing to
challenge the non-recognition component of the Oklahoma Marriage Ban because
there is no causal connection between their non-recognition injury and Defendants
official responsibilities as court clerk. See Bishop, 2014 WL 116013, at *13-14.
The District Court based this ruling solely on Defendants assertion, in an affidavit
filed in support of her cross-motion for summary judgment, that she has no
authority as court clerk to recognize out-of-state marriages. See Aplt. App. 248.
This ruling was erroneous.
First, as the District Court acknowledged, this Court in a prior appeal,
Bishop, 333 Fed. Appx. 361, had indicated that district court clerks were the
Oklahoma officials with a connection to Plaintiffs injuries, and had implicitly

36
After Finstuen, Oklahoma must recognize out-of-state adoptions by same-sex

couples, but same-sex couples remain unable to adopt in Oklahoma as a couple.
Oklahoma law permits married couples and single adults to adopt, but not
unmarried couples. See Okla. Stat. tit. 10, 7503-1.1. The ineligibility of samesex couples to adopt a child in Oklahoma as a coupleeven if they have validly
married out of state, because their marriages are not recognized in state
exacerbates the inequality and uncertainty produced by the Oklahoma Marriage
Ban, and further belies the purpose asserted by Defendant of promoting legally
secure two-parent households in the interest of children.
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directed Plaintiffs to sue Defendant in place of the Governor and Attorney

General, both of whom this Court had found to lack the requisite causal connection
for purposes of Article III standing. Bishop, 2014 WL 116013, at *3, 13. This
Courts determination in the prior appeal should have controlled as law of the
case. The doctrine of law of the case posits that when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent
stages in the same case. McIlravy v. Kerr-McGee Coal Corp., 240 F.3d 1031,
1034 (10th Cir. 2000). Furthermore, when a case is appealed and remanded, the
decision of the appellate court establishes the law of the case and ordinarily will be
followed by both the trial court on remand and the appellate court in any
subsequent appeal. Id. (quotations omitted). The compelling rationale for the
doctrine is judicial economyby preventing continued re-argument of issues
already decided. Id. at 1035. The District Courts reconsideration of this Courts
conclusion that Plaintiffs possess standing to sue Defendant contravened the
sound public policy on which the doctrine rests. Gage v. General Motors Corp.,
796 F.2d 345, 349 (10th Cir. 1986).
Second, this Courts determination was, in any case, undoubtedly correct.
As this Court observed, in Oklahoma [m]arriage licenses are issued, fees
collected, and the licenses recorded by the district court clerks. Bishop, 333 Fed.
Appx. at 365 (citing Okla. Stat. tit. 28, 31 and Okla. Stat. tit. 43, 5).
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Furthermore, as this Court noted, the recognition of marriages is within the

administration of the judiciary, and the court clerk, as judicial personnel, is
an arm of the court who is subject to the supervisory control of the district
court and ultimately the Oklahoma Supreme Court.
Id. (quoting Speight v.
Presley, 203 P.3d 173, 177 (Okla. 2008)). Plaintiffs injuries therefore are fairly
traceable to Defendant both as the official who issues and records marriage
licenses and as an arm of the branch of government that ultimately recognizes
marital status in a variety of contexts, from adoption to divorce to intestacy.
Finstuen, 496 F.3d at 1145 (quotations omitted).37 Indeed, there is no question that
Defendant has met Plaintiffs challenges to the Oklahoma Marriage Ban with the
concrete adverseness that standing doctrine is designed to ensure. Duke Power
Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 72 (1978) (quotations omitted).
Nor is there any question that the local district court or the Oklahoma Supreme
Court, both of which supervise Defendant as judicial personnel, would
nonetheless flout an injunction against Defendant in her representative capacity as
an arm of the court. See Wilson v. Stocker, 819 F.2d 943, 947 (10th Cir. 1987)
(explaining that a controversy exists not because the state official is himself the

37
Tellingly, Defendants affidavit made no effort to contravene this Courts

observation that the judicial branch ultimately is responsible for marriage
recognition in Oklahoma, nor did she identify any other official within the
judiciary who should have been sued instead.
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source of the injury, but because the official represents the state whose statute is
being challenged as the source of injury).
Finally, in her answer, Defendant admitted that she is responsible for the
enforcement of the laws challenged by Plaintiffs First Amended Complaint.
Aplt. App. 46. Defendants late-breaking, conclusory assertion to the contrary in
her affidavit at the summary judgment stage does not suffice to raise a genuine
issue of material fact regarding standing, much less defeat standing as a matter of
law. Cf. Finstuen, 496 F.3d at 1146 (cautioning that [u]nsupported conclusory
allegations . . . do not create an issue of fact).
B.
The Statutory Bans On Same-Sex Marriage And Marriage

Recognition Do Not Deprive Plaintiffs Of Standing.
As a last straw on appeal, Defendant contendsfor the first timethat

Plaintiffs cannot satisfy the causation and redressability components of standing
because the state statutory bans on same-sex marriage and marriage recognition38
have not been challenged. Defendant claims that even if the Oklahoma Marriage
Ban is declared unconstitutional, these statutory provisions would still prevent
Plaintiffs from being legally married in Oklahoma, thereby precluding complete
and adequate relief. See Aplt. Principal Br. at 86-88. This argument fails for
several reasons.

38
See p. 10 n.3, supra.

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First, Defendants argument is premised on a fallacy as to the statutes

continued viability. Once the Oklahoma Marriage Ban became part of the state
constitution, it subsumed the preceding statutory analogues as a matter of state
law.39 As the Oklahoma Supreme Court explained in Fent v. Henry, 257 P.3d 984
(Okla. 2011):
A time-honored rule teaches that a revising statute (or, as in this case, a
constitutional amendment) takes the place of all the former laws existing
upon the subject with which it deals. This is true even though it contains no
express words to that effect. In the strictest sense this process is not repeal
by implication. Rather, it rests upon the principle that when it is apparent
from the framework of the revision that whatever is embraced in the new
law shall control and whatever is excluded is discarded, decisive evidence
exists of an intention to prescribe the latest provisions as the only ones on
that subject which shall be obligatory.
Id. at 992 n.20 (quoting Hendrick v. Walters, 865 P.2d 1232, 1240 (Okla. 1993))
(emphasis added). By virtue of its enactment, the Oklahoma Marriage Ban became
the exclusive law of the state with respect to the definition and recognition of
marriages in Oklahoma.
With the Oklahoma Marriage Bans invalidation,
Plaintiffs will have complete and adequate relief.40

39
Sans the addition of criminal liability, the language of the constitutional

amendment mirrors that of the statutes in question.
40
None of the authorities cited by Defendant on this issue involved the scenario
where a state constitutional provision, passed after identical state statutes were
codified, was later declared unconstitutional. The cases cited in Defendants string
citation (Aplt. App. at 87-88) are also distinguishable. In each of those cases, the
plaintiffs challenged one provision of a sign ordinance without challenging another
provision by which the government could have denied the requested permits on an
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Second, even assuming the statutes retained their viability after passage of
the Oklahoma Marriage Ban, they lose their legal force once the state
constitutional amendment is stricken.
As the Oklahoma Supreme Court has
recognized, [a] statute can be given such force only as the Legislature could
impart to it within the limitation of the State and Federal Constitutions. Williams
v. Bailey, 268 P.2d 868, 873 (Okla. 1954). Consequently, the statutes die in the
books the moment their analogues have been declared invalid.
After all,
constitutional litigation is not a game of whack-a-mole in which batting down

one law does not prevent identical ones from rising. Otherwise, even after winning
their landmark case in the Supreme Court, Mildred and Richard Loving would
have had to re-litigate it in every state they visited that still had an antimiscegenation law. Defendants logic would necessitate such an absurdity.41
Finally, Defendants own characterization of the purpose of the Oklahoma
Marriage Ban undercuts her standing argument. She contends that Oklahoma
constitutionalized its same-sex marriage bans to prevent activist judges from

entirely different ground. Here, as discussed, the substantive provisions of the state
statutes and superseding constitutional amendment are identical.
41
Even Defendant does not go so far as to assert that she would rely on the
superseded state statutes to continue to deny marriage licenses to same-sex couples
and to deny recognition of their out-of-state marriages after she has been enjoined
from enforcing the state constitutional amendment on federal constitutional
grounds. In any event, Defendant would be barred by issue preclusion from
relitigating their constitutionality. See Park Lake Res. L.L.C. v. U.S. Dept of
Agric., 378 F.3d 1132, 1136 (10th Cir. 2004).
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redefin[ing] marriage pursuant to the state constitution, as had occurred in

Massachusetts with Goodridge. Aplt. Principal Br. at 35 (quotations omitted). Yet
the injury of shutting the state courthouse doors on Plaintiffson top of the
injuries of marriage denial and non-recognitionwould be redressed by an
injunction against the Oklahoma Marriage Ban. See Consumer Data Industry
Assn v. King, 678 F.3d 898, 905 (10th Cir. 2012) ([R]edressability is satisfied
when a favorable decision relieves an injury, not every injury).
VI.
The Oklahoma Marriage Ban Is Not Severable.

For the reasons discussed above, the Oklahoma Marriage Ban violates the
Fourteenth Amendment twice overin barring same-sex couples from marrying,

and in barring state recognition of out-of-state same-sex marriages. Yet if this
Court invalidates only one of these two provisions, it should find that the
Oklahoma Marriage Ban as a whole cannot survive because the provisions are
mutually reinforcing in purpose and effect, and therefore not severable from each
other.
Oklahoma law calls for severability analysis when some, but not all,
provisions of an enactment are to be condemned as unconstitutional. Liddell v.
Heavner, 180 P.3d 1191, 1202-03 (Okla. 2008). The state severability statute,
Okla. Stat. tit. 75, 11a, applies equally to constitutional provisions as well as to
statutory enactments. Local Trans. Workers Union of America v. Keating, 93
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P.3d 835, 839 (Okla. 2003). As the Oklahoma Supreme Court has summed up the
severance inquiry, the statute requires determining whether a) the purpose of the
statute would be significantly altered by severing the offending language; b) the
Legislature would have enacted the remainder of the statute without the offending
language; and c) the non-offending language is capable of standing alone.
Oklahoma Corr. Profl Assn, Inc. v. Jackson, 280 P.3d 959, 965 (Okla. 2012).
The Oklahoma Marriage Ban is not severable. Its legislative history makes
abundantly clear that the whole point of the measure was to protect traditional
marriage by banishing same-sex marriage entirely from the state. Bishop, 2014
WL 116013, at *23 (quotations omitted); see pp. 44-49, supra. The legislative
proponents of the Oklahoma Marriage Ban and its public supporters did not
present the measure as stand-alone definition and non-recognition provisions. See
Bishop, 2014 WL 116013, at *22-23, 26-27.
They pitched and passed it as
prophylactic protection against the incursion of same-sex marriage into the state.
Aplt. Principal Br. at 60.
The mutually reinforcing effect of the definition and non-recognition
provisions confirms the Oklahoma Marriage Bans unity of design.
Neither
provision by itself would prevent same-sex couples from living as married couples
in Oklahoma. Without the definition provision, they could marry inside the state;
without the non-recognition provision, they could enter the stateand remain in
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the statemarried. But both together effectuate a total exclusion of same-sex

couples from the institution of marriage in Oklahoma. Neither the legislature nor
the voters of Oklahoma would have wanted it any other way. Accordingly, if
either part of the Oklahoma Marriage Ban falls, the rest of it should follow. Cf.
Awad v. Ziriax, No. 5:10-cv-01186-M, 2013 WL 4441476, at *4-7 (W.D. Okla.
Aug. 15, 2013) (striking down entire Save Our State Amendment to Oklahoma
Constitutionwhich barred judicial consideration of Sharia Law, international
law, and foreign lawrather than severing unconstitutional Sharia provision).
CONCLUSION
Like every committed, loving couple in Oklahoma, Plaintiffs Mary Bishop
and Sharon Baldwin, and Plaintiffs Susan Barton and Gay Phillips, have no wish to
undermine the cherished institution of marriage. They wish to share in it and
uphold it. The Constitution protects their right to do so. As Loving v. Virginia
concluded, [u]nder our Constitution, the freedom to marry or not marry . . .
resides with the individual and cannot be infringed by the State. 388 U.S. at 12.
The judgment of the District Court should be affirmed in No. 14-5003 and
reversed in No. 14-5006.
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172
s/ Don G. Holladay
(405) 236-2343 Telephone
(405) 236-2349 Facsimile
-andJoseph T. Thai, OBA No. 19377
300 Timberdell Rd.
Norman, OK 73019
(405) 204-9579 Telephone
ATTORNEYS FOR APPELLEES AND CROSSAPPELLANTS MARY BISHOP, SHARON
BALDWIN, SUSAN BARTON AND GAY
PHILLIPS
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STATEMENT REGARDING ORAL ARGUMENT

This Court has set oral argument on April 17, 2014, a week following oral
argument in Kitchen v. Herbert, No. 13-4178, before the same panel. Plaintiffs
believe this Courts decisions on the significant questions presented will benefit
from oral argument.
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1.
This brief complies with the type-volume limitation of Fed. R. App. P.
28.1(e)(2)(B) and the Courts order permitting Appelles/Cross-Appellants to file an

enlarged brief because this brief contains 19,638 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
2011 in 14-point Times New Roman style.
Date: March 17, 2014
s/ Don G. Holladay
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I hereby certify that with respect to the foregoing:
(1)
All required privacy redactions have been made per 10th Cir. R. 25.5;
(2)
If required to file additional hard copies, that the ECF submission is

an exact copy of those documents;
(3)
The digital submissions have been scanned for viruses with McAfee
Version 6.0, which was most recently updated on March 17, 2014,
and, according to the program, are free of viruses.
s/ Don G. Holladay
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I hereby certify that on March 17, 2014, I electronically filed the foregoing
using the courts CM/ECF system which will send notification of such filing to the
following: Byron Babione, James Andrew Campbell, Holly L. Carmichael, John
David Luton, David Austin Robert Nimocks, Brian W. Raum, Dale Michael
Schowengerdt, Kevin H. Theriot.
I further certify that on March 17, 2014, an original and seven copies of the
foregoing were dispatched to Federal Express for overnight delivery to the
following:
Elisabeth A. Shumaker
Clerk of Court
United States Court of Appeals for the Tenth Circuit
Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257
s/ Don G. Holladay
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MARY BISHOP,
SHARON BALDWIN,
SUSAN BARTON, and
GAY PHILLIPS,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
ex rel. ERIC H. HOLDER, JR., in his
official capacity as Attorney General
of the United States of America; and
State of Oklahoma,
Defendants,
BIPARTISAN LEGAL ADVISORY
GROUP OF THE U.S. HOUSE OF
REPRESENTATIVES,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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)
)
)
OPINION AND ORDER

This Order addresses challenges to state and federal laws relating to same-sex marriage. The
Court holds that Oklahomas constitutional amendment limiting marriage to opposite-sex couples
violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The
Court lacks jurisdiction over the other three challenges.
I.
Factual Background
This case involves challenges to: (1) both sections of the federal Defense of Marriage Act
(DOMA), codified at 28 U.S.C. 1738C and 1 U.S.C. 7; and (2) two subsections of an
amendment to the Oklahoma Constitution, which are set forth in article 2, section 35(A)-(B) (the
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Oklahoma Constitutional Amendment).
All challenges arise exclusively under the U.S.
Constitution.
A.
DOMA
DOMA, which became law in 1996, contains two substantive sections. Section 2 of DOMA,
entitled Powers Reserved to the States, provides:
No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any other
State, territory, possession, or tribe respecting a relationship between persons of the
same sex that is treated as a marriage under the laws of such other State, territory,
possession, or tribe, or a right or claim arising from such relationship.
Defense of Marriage Act 2, 28 U.S.C. 1738C. Section 3 of DOMA, entitled Definition of
Marriage, provides:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United
States, the word marriage means only a legal union between one man and one
woman as husband and wife, and the word spouse refers only to a person of the
opposite sex who is a husband or a wife.
Id. 3, 1 U.S.C. 7. This federal definition, which was declared unconstitutional during the
pendency of this lawsuit, informed the meaning of numerous federal statutes using the word
marriage or spouse and functioned to deprive same-sex married couples of federal benefits. See
United States v. Windsor, 133 S. Ct. 2675, 2683 (2013) (striking down DOMAs definition of
marriage, which controlled over 1,000 federal laws in which marital or spousal status is addressed
as a matter of federal law, as a violation of the Fifth Amendment to the U.S. Constitution).
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B.
Oklahoma Constitutional Amendment
On November 2, 2004, Oklahoma voters approved State Question No. 711 (SQ 711),
which was implemented as article 2, section 35 of the Oklahoma Constitution.1 The Oklahoma
Constitutional Amendment provides:
Marriage Defined Construction of Law and Constitution Recognition of Outof-State Marriages - Penalty
A. Marriage in this state shall consist only of the union of one man and one woman.
Neither this Constitution nor any other provision of law shall be construed to require
that marital status or the legal incidents thereof be conferred upon unmarried couples
or groups.2
B. 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.3
C. Any person knowingly issuing a marriage license in violation of this section shall
be guilty of a misdemeanor.
Okla. Const. art. 2, 35 (footnotes added). Part A of the Oklahoma Constitutional Amendment
(Part A) is the definitional provision, which provides that marriage in Oklahoma shall consist
only of the union of one man and one woman. Part B of the Oklahoma Constitutional Amendment
(Part B) is the non-recognition provision, which provides that same-sex marriages performed
SQ 711 passed by a vote of 1,075,216 to 347,303. (See Smiths Cross Mot. for Summ.
J., Ex. 3.)

2
An Oklahoma statute also prevents same-sex couples from marrying. Okla. Stat. tit.
43, 3(A) (Any unmarried person who is at least eighteen (18) years of age and not otherwise
disqualified is capable of contracting and consenting to marriage with a person of the opposite
sex) (emphasis added). This statute is not challenged.
3
An Oklahoma statute also prevents recognition of same-sex marriages. Okla. Stat. tit.
43, 3.1 (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.). This statute is
not challenged.
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in other states shall not be recognized as valid and binding in Oklahoma. Only Parts A and B are
challenged in this lawsuit.
C.
Procedural History4
In late 2004, Plaintiffs Mary Bishop and Sharon Baldwin (Bishop couple) and Susan
Barton and Gay Phillips (Barton couple), two lesbian couples residing in Oklahoma, filed a
Complaint seeking a declaration that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma
Constitutional Amendment violate the U.S. Constitution. In August 2006, the Court denied a motion
to dismiss filed by the Oklahoma Attorney General and Oklahoma Governor, rejecting their
sovereign immunity argument. See Bishop I, 447 F. Supp. 2d at 1255 (holding that suit was proper
against these officials under the Ex parte Young doctrine). The state officials appealed this Courts
denial of sovereign immunity, and the Court stayed the proceedings pending appeal.
On June 5, 2009, the Tenth Circuit issued an unpublished decision reversing this Courts
failure to dismiss the claims against the Oklahoma officials and remanding the case for entry of
an order dismissing these claims for lack of subject matter jurisdiction. See Bishop II, 2009 WL
1566802, at *4. The Tenth Circuits reversal was based on Plaintiffs lack of standing to pursue
their claims against the named state officials:5
This case has a lengthy procedural history. See Bishop v. Okla. ex rel. Edmondson, 447
F. Supp. 2d 1239 (N.D. Okla. 2006) (Bishop I); Bishop v. Okla. ex rel. Edmondson, No. 065188, 2009 WL 1566802 (10th Cir. June 5, 2009) (Bishop II); Bishop v. United States, No. 04CV-848, 2009 WL 4505951 (N.D Okla. Nov. 24, 2009) (Bishop III). In this Opinion and
Order, the Court only includes background facts that are relevant to the currently pending
motions.
5
Because standing was not raised on appeal, the Tenth Circuit examined it sua sponte.
(See id. at *2.)
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The Couples claim they desire to be married but are prevented from doing so, or they
are married but the marriage is not recognized in Oklahoma. These claims are simply
not connected to the duties of the Attorney General or the Governor. Marriage
licenses are issued, fees collected, and the licenses recorded by the district court
clerks. See Okla. Stat. Ann. tit. 28, 31; Okla. Stat. Ann. tit. 43, 5. [A] district
court clerk is judicial personnel and is an arm of the court whose duties are
ministerial, except for those discretionary duties provided by statute. In the
performance of [a] clerks ministerial functions, the court clerk is subject to the
control of the Supreme Court and the supervisory control that it has passed down to
the Administrative District Judge in the clerks administrative district. Speight v.
Presley, 203 P.3d 173, 177 (Okla. 2008). Because recognition of marriages is within
the administration of the judiciary, the executive branch of Oklahomas government
has no authority to issue a marriage license or record a marriage. Moreover, even if
the Attorney General planned to enforce the misdemeanor penalty (a claim not made
here), that enforcement would not be aimed toward the Couples as the penalty only
applies to the issuer of a marriage license to a same-sex couple. Thus, the alleged
injury to the Couples could not be caused by any action of the Oklahoma officials,
nor would an injunction (tellingly, not requested here) against them give the Couples
the legal status they seek.
Id. at *3 (footnote omitted).
Following remand, Plaintiffs retained new counsel and were granted leave to file an
Amended Complaint. As implicitly directed by Bishop II, Plaintiffs sued the Tulsa County Court
Clerk in place of the previously named officials. Specifically, Plaintiffs sued State of Oklahoma,
ex rel. Sally Howe Smith, in her official capacity as Court Clerk for Tulsa County, alleging:
[Sally Howe Smith] is sued in her official capacity as Clerk of Tulsa County District
Court. Pursuant to state law, she is the designated agent of the State of Oklahoma
given statutory responsibility for issuing and recording marriage licenses.
(Am. Compl. 7.) The State of Oklahoma filed a second motion to dismiss, again asserting its
immunity and arguing that it should be dismissed as a nominal party to the case. The Court granted
this motion and dismissed the State of Oklahoma as a nominal party. See Bishop III, 2009 WL
4505951, at *3. Thus, the current Defendants to the lawsuit are: (1) United States of America, ex
rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of America
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(United States); and (2) Sally Howe Smith (Smith), in her official capacity as Court Clerk for
Tulsa County, State of Oklahoma. Smith is represented by the Tulsa County District Attorneys
Office and attorneys with an organization known as the Alliance Defending Freedom.
Smith and the United States filed motions to dismiss the Amended Complaint. The United
States based its motion, in part, on the Barton couples lack of standing to challenge Section 3 of
DOMA.6 The Court ordered the Barton couple to provide more particularized facts regarding the
federal benefits that were allegedly desired and/or sought but that were unavailable and/or denied
as a result of Section 3. After the Barton couple submitted supplemental affidavits, the United States
conceded that the Barton couple had standing to challenge Section 3 and abandoned this section of
its motion to dismiss.
On February 25, 2011, prior to the Courts issuing a decision on the pending motions to
dismiss, the United States notified the Court that it would cease defending the constitutionality of
Section 3 of [DOMA], thereby abandoning other portions of its previously filed motion to dismiss.
(See Not. to Court by United States of Am. 1.) The United States informed the Court of the
possibility that members of Congress would elect to defend Section 3. On July 21, 2011, the
Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) filed a motion
to intervene as a defendant for the limited purpose of defending Section 3. (See Mot. of BLAG
to Intervene 1.) The Court permitted BLAG to intervene pursuant to Federal Rule of Civil
Procedure 24(b)(1)(A) and referred the matter to Magistrate Judge T. Lane Wilson for a scheduling
conference. Magistrate Judge Wilson conducted the conference and entered an agreed schedule.
The Barton couple challenges both sections of DOMA and both sections of the
Oklahoma Constitutional Amendment. The Bishop couple challenges only Part A of the
Oklahoma Constitutional Amendment.
6
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Smith and the United States withdrew their previously filed motions to dismiss, and the briefing
process began anew.
Although the Court did not issue a formal stay of the proceedings, the Court was aware that
the United States Supreme Court had granted certiorari in two cases presenting nearly identical
issues to those presented here namely, the constitutionality of Section 3 of DOMA and the
constitutionality of Proposition 8, a California ballot initiative amending the California Constitution
to define marriage as between a man and a woman. The Court delayed ruling in this case pending
the Supreme Courts decisions.
On June 26, 2013, the Supreme Court issued its heavily anticipated decisions in United
States v. Windsor, 133 S. Ct. 2675 (2013) (addressing Section 3 of DOMA), and Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013) (addressing Proposition 8). In Windsor, the Supreme Court held that
Section 3 of DOMA violates basic due process and equal protection principles applicable to the
Federal Government. Windsor, 133 S. Ct. at 2693-94. This holding renders moot the Barton
couples challenge to Section 3. See infra Part III. In Hollingsworth, the Supreme Court held that
the official proponents of Proposition 8 lacked standing. See Hollingsworth, 133 S. Ct. at 2662-68
(reasoning that the proponents of Proposition 8 had not been ordered to do or refrain from doing
anything by the trial court and that [t]heir only interest in having the district courts holding
reversed was to vindicate the constitutional validity of a generally applicable California law).
Therefore, the Court did not reach the constitutionality of Proposition 8.
D.
Barton Couple
Plaintiffs Susan Barton and Gay Phillips have resided in Oklahoma for over fifty years and
currently own a home in Tulsa, Oklahoma. They also own Barton, Phillips, and Associates, Inc.,
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a company that provides training to agencies serving homeless teens. Ms. Phillips has a doctorate
degree in sociology, and Ms. Barton is an adjunct professor at Tulsa Community College, where she
teaches courses on Building Relationships and Teaching Discipline. The Barton couple has
been in a continuous, committed relationship since November 1, 1984. They were united in a
Vermont civil union in 2001 and were married in Canada on May 16, 2005. On November 1, 2008,
prior to filing their Amended Complaint, they were issued a marriage license by the State of
California and married under California law.7
As a same-sex couple that has been legally married in the United States, the Barton couple
challenges Sections 2 and 3 of DOMA as violative of equal protection and substantive due process
rights guaranteed by the Fifth Amendment to the U.S. Constitution. The Barton couple seeks a
declaratory judgment that DOMA is unconstitutional and a permanent injunction restraining
enforcement of DOMA. As a same-sex couple that is denied the right to marry in Oklahoma, the
Barton couple challenges Part A of the Oklahoma Constitutional Amendment as violative of equal
protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S.
Constitution. The Barton couple also challenges Part B, which prohibits recognition of their
California marriage in Oklahoma, as violative of equal protection and substantive due process rights
guaranteed by the Fourteenth Amendment.8 As remedies, the Barton couple seeks a declaratory
7
When this Court issued its decision in Bishop I, the Barton couple had entered into a
Vermont civil union and a Canadian marriage. The Court held that neither relationship was
treated as a marriage in another State and that the Barton couple lacked standing to challenge
Section 2. See Bishop I, 447 F. Supp. 2d at 1245-49. In their Amended Complaint, the Barton
couple includes allegations regarding their California marriage.
8
During the scheduling conference, Magistrate Judge Wilson raised the question of
whether the Amended Complaint asserted a challenge to Part B. The Barton couple asserted that
they intended to challenge Part B in their Amended Complaint and desired to address Part B in
their summary judgment brief. Smith did not object. Therefore, based on certain allegations in
8
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judgment that Parts A and B of the Oklahoma Constitutional Amendment violate the U.S.
Constitution and a permanent injunction enjoining enforcement of Parts A and B.
E.
Bishop Couple
Plaintiffs Mary Bishop and Sharon Baldwin have resided in Oklahoma throughout their lives
and own a home in Broken Arrow, Oklahoma. They also jointly own a 1.3-acre lot in Osage
County, Oklahoma. Ms. Bishop is an assistant editor at the Tulsa World newspaper, and Ms.
Baldwin is a city slot editor at the Tulsa World. The Bishop couple has been in a continuous,
committed relationship for over fifteen years and exchanged vows in a commitment ceremony in
Florida in 2000. On February 13, 2009, the Bishop couple sought the issuance of a marriage license
from Smith. Smith refused them a marriage license based upon their status as a same-sex couple.
As a same-sex couple that is denied the right to marry in Oklahoma, the Bishop couple
challenges Part A of the Oklahoma Constitutional Amendment as violative of equal protection and
substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
The Bishop couple seeks a declaratory judgment that Part A is unconstitutional and a permanent
injunction enjoining enforcement of Part A.
F.
Pending Motions
This Order substantively addresses the following pending motions: (1) the United States
motion to dismiss, in which the United States argues that the Barton couple lacks standing to
challenge Section 2;9 (2) the Barton couples motion for entry of final judgment as to Section 3,
the body of the Amended Complaint and Smiths lack of objection, the Court construes the
Amended Complaint as also challenging Part B.
9
The United States motion to dismiss only attacks standing and does not offer any
defense of Section 2 on the merits. BLAG intervened for the limited purpose of defending the
constitutionality of Section 3. Therefore, the only opposition to the Barton couples challenge to
9
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which they filed following the Windsor decision; (3) Plaintiffs Motion for Summary Judgment, in
which Plaintiffs argue that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma
Constitutional Amendment violate the U.S. Constitution; and (4) Smiths Cross Motion for
Summary Judgment, in which Smith argues that the Barton couple lacks standing to challenge Part
B, and that Parts A and B do not violate the U.S. Constitution.
The Court holds: (1) the Barton couple lacks standing to challenge Section 2 of DOMA; (2)
the Barton couples challenge to Section 3 of DOMA is moot; (3) the Barton couple lacks standing
to challenge Part B of the Oklahoma Constitutional Amendment; (4) the Bishop couple has standing
to challenge Part A of the Oklahoma Constitutional Amendment;10 and (5) Part A of the Oklahoma
Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to
the U.S. Constitution.
II.
Barton Couple Lacks Standing to Challenge Section 2 of DOMA

In its motion to dismiss, the United States argues that the Barton couple lacks standing to
challenge Section 2 because any inability to secure recognition of their [California] marriage in
Oklahoma would be attributable, not to the United States, but to the appropriate Oklahoma state
official. (United States Mot. to Dismiss 2.)11
Section 2 is the United States standing argument.

10
The Court reaches the merits of Part A based upon the Bishop couples standing and
does not reach the question of whether the Barton couple also has standing to challenge Part A.
See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981) (Because we find [one
plaintiff] has standing, we do not consider the standing of the other plaintiffs.).
11
As explained infra Part IV, Smith testified that she is not the state official connected to
recognition of out-of-state marriages, and the Barton couple failed to controvert this evidence.
Thus, the identity of the appropriate State official remains unclear.
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A.
Purpose of Section 2
Preliminary discussion of the purpose and legislative history of Section 2 is warranted.

Relevant to this case, Section 2 provides that no state shall be required to give effect to a marriage
license of any other state if the marriage is between persons of the same sex. 28 U.S.C. 1738(C).
According to the House Report preceding DOMAs passage, the primary purpose of Section 2 was
to protect the right of the States to formulate their own public policy regarding legal recognition
of same-sex unions, free from any federal constitutional implications that might attend the
recognition by one State of the right for homosexual couples to acquire marriage licenses. See H.R.
Rep. No. 104664 (1996), reprinted in 1996 U.S.C.C.A.N. 2905, 2906.
More specifically,
Congress was concerned that

if Hawaii (or some other State) recognizes same-sex marriages, other States that do
not permit homosexuals to marry would be confronted with the complicated issue of
whether they are nonetheless obligated under the Full Faith and Credit Clause of the
United States Constitution to give binding legal effect to such unions.
Id. at 2913. The House Judiciary Committee (Committee) determined that states already
possessed the ability to deny recognition of a same-sex marriage license from another state, so long
as the marriage violated a strong public policy of the state having the most significant relationship
to the spouses at the time of the marriage. Id. However, the Committee also expressed its view that
such conclusion was far from certain. Id. at 2914; see also id. at 2929 (While the Committee
does not believe that the Full Faith and Credit Clause, properly interpreted and applied, would
require sister states to give legal effect to same-sex marriages celebrated in other States, there is
sufficient uncertainty that we believe congressional action is appropriate.).
In order to address this uncertainty, Congress invoked its power under the second sentence
of the U.S. Constitutions Full Faith and Credit Clause (the Effects Clause), which permits
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Congress to prescribe the effect that public acts, records, and proceedings from one State shall have
in sister States. Id. at 2929. The Committee described Section 2 as a narrow, targeted relaxation
of the Full Faith and Credit Clause. Id. at 2932. Consistent with this legislative history, Section
2 has been described by courts and commentators as permitting states to refuse to give full faith and
credit to same-sex marriages performed in another state. See Windsor, 133 S. Ct. at 2682-83
(Section 2, which has not been challenged here, allows States to refuse to recognize same-sex
marriages performed under the laws of other States.); Smelt v. Cnty. of Orange, 447 F.3d 673, 683
(9th Cir. 2006) (explaining that Section 2, in effect, indicates that no state is required to give full
faith and credit to another states determination that a relationship between persons of the same sex
. . . is treated as a marriage); Gill v. Office of Personnel Mgmt., 699 F. Supp. 2d 374, 378 (D.
Mass. 2010) (In enacting Section 2 of DOMA, Congress permitted the states to decline to give
effect to the laws of other states respecting same-sex marriage.) (footnote omitted); Gillian E.
Metzger, Congress, Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1532 (2007)
(Section 2s purpose, evident from its terms, is to ensure that states will not be required to
recognize same-sex marriage by virtue of the Full Faith and Credit Clause.).12
12
Since DOMAs passage, some scholars have concluded that Section 2 was
unnecessary and simply reiterates a power that states already possessed. See Joshua Baker &
William Duncan, As Goes DOMA . . . Defending DOMA and the State Marriages Measures, 24
Regent Univ. L. Rev. 1, 8 (2011-2012) (Over time, something of a consensus seems to have
developed among scholars that Section 2 of DOMA merely restates existing conflicts of law
principles with respect to interstate recognition of a legal status or license . . . .); William
Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371, 1392
(2012) (Section 2 of DOMA is expressly intended to ratify such [state public] policies (if any
ratification were needed).); Mary L. Bonauto, DOMA Damages Same-Sex Families and Their
Children, 32 Fam. Adv. 10, 12 (Winter 2010) ([S]tates have long possessed the power to decide
which marriages they would respect from elsewhere, a power that both proponents and
opponents of DOMA agree existed before and after DOMA.); Patrick Borchers, The Essential
Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38 Creighton
Law R. 353, 358 (2005) (arguing that Section 2 of DOMA was unnecessary because it simply
12
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B.
Standing Analysis
The Barton couple bears the burden of proving that there is an actual case or controversy
regarding Part B. See Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 756
(10th Cir. 2010) (Article III of the Constitution limits the jurisdiction of federal courts to actual
cases or controversies.). This jurisdictional requirement is known as standing. To establish
standing, plaintiffs bear the burden of demonstrating that they have suffered an injury-in-fact which
is concrete and particularized as well as actual or imminent; that the injury was caused by the
challenged [laws]; and that the requested relief would likely redress their alleged injuries. Id. This
three-pronged inquiry seeks to resolve three questions:
Is the injury too abstract, or otherwise not appropriate, to be considered judicially
cognizable? Is the line of causation between the illegal conduct and injury too
attenuated? Is the prospect of obtaining relief from the injury as a result of a
favorable ruling too speculative?
Allen v. Wright, 468 U.S. 737, 752 (1984).
For purposes of standing, the Court examines the allegations in the Amended Complaint.
See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (explaining that, where an original
pleading has been amended, a court looks to the amended complaint in assessing a plaintiffs
claims, including the allegations in support of standing). Because the United States standing
states what the law would be without it and that full faith and credit principles do not require
one state to give effect to a marriage celebrated in another state); Metzger, supra, at 1532 ([I]t
is unlikely that a states refusal to recognize same-sex marriages would have violated Article
IVs full faith and credit demand even absent DOMA, at least as applied to same-sex marriage
involving state residents.); Mark Strasser, As Iowa Goes, So Goes the Nation: Varnum v. Brien
and its Impact on Marriage Rights for Same-Sex Couples, 13 J. Gender Race & Justice 153, 158
(Fall 2009) ([E]ven without DOMA, states could have refused to recognize their domicilaries
marriages validly celebrated elsewhere if such marriages violated an important public policy of
the domicile. Thus, DOMA did not give states a power that they did not already possess with
respect to the power to refuse to recognize domiciliaries marriages that had been celebrated
elsewhere in accord with the latter statess law.).
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attack was made at the Rule 12(b)(6) stage, the Court accept[s] the allegations in the [Amended
Complaint] as true for purposes of [its] standing analysis. United States v. Rodriguez-Aguirre, 264
F.3d 1195, 1203 (10th Cir. 2001). Further, the Court must presume that general allegations
embrace those specific facts that are necessary to support the claim. Lewis v. Casey, 518 U.S. 343,
358 (1996) (internal citation omitted).
The Court construes the Amended Complaint as alleging three injuries flowing from Section
2. First, the Barton couple alleges the injury of being unable to obtain recognition of their California
marriage in Oklahoma (non-recognition). (See Am. Compl. 20.) Second, they allege the injury
of unequal treatment, flowing from the United States erection of Section 2 as a barrier to obtaining
the benefit of recognition of their California marriage in Oklahoma (unequal treatment). (See id.
12; see also Pls. Resp. to Mot. to Dismiss 12 (arguing that [Section 2] operates as such a barrier
in that it officially sanctions the denial of equal treatment of Plaintiffs marriage and the attendant
recognition/status that springs from such recognition).) Finally, they allege the injury of stigma
and humiliation. (See Am. Compl. 22; see also Pls. Resp. to Mot. to Dismiss 11-12 ([Plaintiffs]
have a second-class marriage in the eyes of friends, neighbors, colleagues, and the United States of
America.).)
1.
Non-Recognition
The Court concludes that neither Section 2, nor the U.S. Attorney Generals enforcement
thereof, plays a sufficient causation role leading to the Barton couples alleged injury of nonrecognition of their California marriage in Oklahoma.13 Section 2 is an entirely permissive federal
13
The United States also argues that the Baron couple has not suffered an injury in fact
based upon their failure to have actually sought and been denied recognition of their California
marriage in Oklahoma. (See United States Mot. to Dismiss 5.) For purposes of this motion, the
Court assumes without deciding that the Barton couples alleged injuries constitute injuries in
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law. 28 U.S.C. 1738C (No State . . . shall be required to give effect to any public act, record, or
judicial proceeding of any other State . . . that is treated as a marriage under the laws of such other
State . . . .). It does not mandate that states take any particular action, does not remove any
discretion from states, does not confer benefits upon non-recognizing states, and does not punish
recognizing states. The injury of non-recognition stems exclusively from state law namely, Part
B and title 43, section 3.1 of the Oklahoma Statutes and not from the challenged federal law. Cf.
Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811, 818 (S.D. Ind. 1998) (city police officer was
convicted of domestic violence crime, prohibited by federal law from carrying firearm, and then
threatened with termination by the city) (court held that injury of threatened termination was fairly
traceable to federal firearm law because a firearms disability operates as virtually a total bar to
employment as a police officer and because any decision by local officials to fire the plaintiff
stems from the federal statute and not the exercise of independent discretion). In contrast to the
federal firearms prohibition, essentially mandating an officers termination in Gillespie, Section 2
does not remove any local, independent discretion and is not a fairly traceable cause of the Barton
couples non-recognition injury. See generally Bonauto, supra note 12, at 13 (explaining that
[l]egal challenges to section 2 of DOMA have been few, and none have succeeded, at least in part
because it is the states nonrecognition law that presents the impediment to recognition, not section
2 itself).
The Barton couples reliance on Bennet v. Spears, 520 U.S. 154 (1997), is misplaced. In
Bennet, the Supreme Court addressed whether the injury of reduced water for irrigation was fairly
traceable to a Biological Opinion authored by the Fish and Wildlife Service, where another agency
fact but concludes that none were sufficiently caused by Section 2.

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actually issued the final decision regarding the volume of water allocated. Id. at 168-71. The
Biological Opinion, although not the very last step in the chain of causation, had a powerful
coercive effect and a virtually determinative effect on the action ultimately taken by the other
agency. See id. at 169. While the other agency was technically free to disregard the Biological
Opinion, it would do so at its own peril, including civil and criminal penalties. Id. at 170. In
contrast to the Biological Opinion, Section 2 does not have any coercive or determinative effect on
Oklahomas non-recognition of the Barton couples California marriage. At a maximum, it removes
a potential impediment to Oklahomas ability to refuse recognition namely, the Full Faith and
Credit Clause. See supra Part III(A) (explaining Section 2s purpose); note 12 (explaining that Full
Faith and Credit Clause may not actually be an impediment). A federal law that removes one
potential impediment to state action has a much weaker causation link than a federal agency
opinion that has a coercive effect on another federal agencys action.
The Court must address dicta in Bishop I that is inconsistent with the above reasoning
regarding Section 2. In 2006, this Court addressed standing issues sua sponte and implied that, if
the Barton couple obtained legal status that was treated as a marriage in another state, they would
have standing to challenge Section 2. See Bishop I, 447 F. Supp. 2d at 1246 (describing Section 2
as preventing, or at least arguably preventing the Barton couple from obtaining legal recognition
in Oklahoma). The Courts use of the phrase prevents, or at least arguably prevents was in error.
Section 2 does not prevent or even arguably prevent Oklahoma from recognizing the Barton
couples California marriage. At most, Section 2 removes one potential impediment to a states
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ability to refuse recognition of the marriage. Therefore, the Courts dicta in Bishop I has been
reconsidered and is superseded by this Opinion and Order.14
2.
Unequal Treatment
The Barton couple also alleges the injury of unequal treatment resulting from the imposition
of Section 2 as a barrier to the benefit of recognition of their California marriage. In certain equal
protection cases, the right being asserted is not the right to any specific amount of denied
governmental benefits; it is the right to receive benefits distributed according to classifications
which do not without sufficient justification differentiate among covered applicants solely on the
basis of [impermissible criteria]. See Day v. Bond, 500 F.3d 1127, 1133 (10th Cir. 2007) (quoting
Heckler v. Mathews, 465 U.S. 728, 737 (1984)). In such cases, the injury in fact . . . is the denial
of equal treatment resulting from the imposition of the [allegedly discriminatory] barrier, not the
ultimate inability to obtain the benefit. Ne. Fla. Ch. of the Associated Gen. Contractors of Am. v.
City of Jacksonville, Fla., 508 U.S. 656, 666 (1993); Day, 500 F.3d at 1133 (explaining that the
injury in such cases is the imposition of the barrier itself). Although these standing principles are
most commonly applied to competitive benefit programs, i.e., those for which there are a limited
number of beneficiaries, the Tenth Circuit has also applied such principles to non-competitive
benefit programs. See Day, 500 F.3d at 1131-35 (applying equal opportunity standing analysis
to equal protection challenge to Kansas statute setting rules for receipt of in-state tuition at state
universities).
14
The Barton couple incorrectly argues that this dicta is controlling. The Barton couple
filed an Amended Complaint, which renders moot this Courts analysis of standing allegations in
the original Complaint. See Mink, 482 F.3d at 1254. Further, the Court has an independent
obligation to satisfy itself of standing at all stages of the proceedings, see City of Colo. Springs v.
Climax Molybdenum Co., 587 F.3d 1071, 1078-79 (10th Cir. 2009), and this necessarily includes
reconsideration of prior reasoning.
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The Court concludes that these discriminatory barrier cases are not applicable due to the
permissive nature of Section 2. As explained above, Section 2 is not an allegedly discriminatory
policy that Oklahoma must follow in deciding what marriages to recognize, and it does not stand as
any significant obstacle between the Barton couple and recognition of their California marriage in
Oklahoma. Cf. Ne. Fla. Ch. of the Associated Gen. Contractors of Am., 508 U.S. at 666 (minority
set-aside program was barrier to non-minority gaining government contracts, the removal of which
would have allowed non-minorities to compete equally); Turner v. Fouche, 396 U.S. 346, 361-64
(1970) (law limiting school board membership to property owners was barrier to non-property
owners gaining election to school board, the removal of which would have allowed non-property
owners to compete equally); Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 493 (10th Cir.
1998) (policy favoring long-term residents was barrier to short-term resident gaining access to
medical school, the removal of which would have allowed short-term residents to compete equally).
These cases are particularly unhelpful to the Barton couple because they have not challenged Part
B of the Oklahoma Constitutional Amendment (which prohibits recognition and is the more direct
cause of their injury) as violating the Full Faith and Credit Clause (which is the impediment to Part
Bs legality that Section 2 potentially alleviates). Instead, they only challenged Part B as violative
of their equal protection and substantive due process rights.
3.
Stigma
The Barton couple also alleges that the mere existence of Section 2 separate from any
impact it has on their legal status as married or unmarried causes ongoing stigmatic harm by
indicating that their same-sex marriage is second-class.
Stigmatic injuries are judicially
cognizable in certain circumstances, particularly those involving racial discrimination. See Allen,
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468 U.S. at 755 (explaining that stigmatizing injury often caused by racial discrimination is a
sort of noneconomic injury that is sufficient in some circumstances to support standing); Wilson
v. Glenwood Intermountain Props., Inc., 98 F.3d 590, 596 (10th Cir. 1996) (explaining that
stigmatizing injury often caused by racial discrimination can be sufficient in some circumstances
to support standing and applying concept to advertising scheme that allegedly discriminated based
upon gender). Assuming these cases extend to stigmatic injuries to non-suspect classes, see infra
Part VI(D)(2)(a) (concluding that same-sex couples desiring a marriage license are not a suspect
class), the stigma still must be causally linked to some concrete interest discriminatorily impaired
by Part B of the Oklahoma Constitutional Amendment. See Allen, 468 U.S. at 757 n.22 (explaining
that a plaintiff premising standing on a stigmatic injury must (1) identify some concrete interest
with respect to which [she is] personally subject to discriminatory treatment[;] and (2) show that
this concrete interest independently satisf[ies] the causation requirement of standing doctrine).
For the same reasons explained above, Section 2 lacks a sufficient causal link to any stigmatic injury
the Barton couple is suffering due to non-recognition of their California marriage. The stigmatic
harm flows most directly from Oklahoma law and is only possibly strengthened in some manner by
Section 2. Therefore, the Barton couples allegations do not establish standing to challenge Section
2, and this claim is dismissed for lack of jurisdiction.15
15
The United States also argues that the Barton couples alleged stigmatic injury is not
cognizable because it is merely a psychological consequence presumably produced by
observation of conduct. (See United States Reply in Support of Mot. to Dismiss 4 (quoting
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464,
485 (1982), and also relying upon Freedom from Religion Found., Inc. v. Obama, 641 F.3d 803,
806-08 (7th Cir. 2011).) However, the Courts holding is premised on the Barton couples
inability to show causation. The Court is not persuaded that the United States cited cases would
extend to the more personal type of injury alleged here. Cf. Freedom from Religion Found. Inc.,
641 F.3d at 806-08 (concluding that the perceived slight or feeling of exclusion suffered by
one of many observers of President Obamas remarks during National Day of Prayer did not
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III.
Barton Couples Challenge to Section 3 of DOMA Is Moot

The Barton couple moves for entry of a final judgment on their challenge to Section 3 in light
of the Supreme Courts decision in Windsor. The United States argues that Windsor moots the
Barton couples Section 3 challenge and that the Court lacks jurisdiction over this challenge.
A.
Mootness Standard
Mootness, like standing, is a jurisdictional doctrine originating in Article IIIs case or

controversy language. WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182
(10th Cir. 2012). Thus, a court must decline to exercise jurisdiction where the award of any
requested relief would be moot, i.e. where the controversy is no longer live and ongoing.
Wirsching v. Colo., 360 F.3d 1191, 1196 (10th Cir. 2004). The defendant bears the burden of
proving mootness, WildEarth Guardians, 690 F.3d at 1183, and this burden is a heavy one, Rezaq
v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012). If a defendant carries its burden of showing
mootness, a court lacks subject matter jurisdiction. Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010).
B.
Prayer for Relief
In their prayer for relief, the Barton couple seeks a declaration that [Section 3 of DOMA]
violate[s] the U.S. Constitutions Equal Protection and substantive Due Process Rights of Plaintiffs
Barton and Phillips. (Am. Compl. 10.) They also seek an award of their attorney fees and costs
in prosecuting this action and [s]uch other relief deemed proper. (Id.) The Court will analyze
each request to determine if any live and ongoing controversy remains following the Windsor
decision.
confer standing).
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1.
Declaratory Relief
[W]hat makes a declaratory judgment action a proper judicial resolution of a case or

controversy rather than an advisory opinion is the settling of some dispute which affects the behavior
of the defendant toward the plaintiff. Rio Grande Silvery Minnow, 601 F.3d at 1109-10. The
crucial question is whether granting a present determination of the issues offered will have some
effect in the real world. Id. at 1110 (internal citation omitted); see also Rezaq, 677 F.3d at 1008
([I]n the context of an action for declaratory relief, a plaintiff must be seeking more than a
retrospective opinion that he was wrongly harmed by the defendant.); Wirsching, 360 F.3d at 1196
(same).
The Court concludes that there is no longer any live or ongoing controversy as to the Barton
couples request for declaratory relief regarding Section 3. In Windsor, the Supreme Court held that
Section 3 violates basic due process and equal protection principles applicable to the Federal
Government. Windsor, 133 S. Ct. at 2693-94 (reasoning that DOMAs principal effect is to
identify a subset of state-sanctioned marriages and make them unequal). As a general rule, where
a law has been declared unconstitutional by a controlling court, pending requests for identical
declaratory relief become moot. Thayer v. Chiczewski, 705 F.3d 237, 256-57 (7th Cir. 2012) (claim
for declaratory and injunctive relief moot in light of Seventh Circuits invalidation of challenged law
in another case); Longley v. Holahan, 34 F.3d 1366, 1367 (8th Cir. 1994) (claim moot where
challenged statute was declared unconstitutional in companion case); Eagle Books, Inc. v. Difanis,
873 F.2d 1040, 1042 (7th Cir.1989) (claim moot where state supreme court had declared challenged
statute unconstitutional); see also Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248,
1257 (10th Cir. 2004) (claim moot where challenged statute was repealed). Because Section 3 has
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already been declared unconstitutional by the Supreme Court, an identical declaration by this Court
will have no further impact on the United States actions.16
Second, the United States has presented compelling evidence that, following Windsor, it has
ceased to enforce Section 3 and that the Barton couple will suffer no further injury as a result of
Section 3. In Revenue Ruling 2013-17, the U.S. Department of the Treasury and the Internal
Revenue Service (IRS) provided guidance on the effect of the Windsor decision on the [IRS]
interpretations of the [federal tax code] that refer to taxpayers marital status, stating that
individuals of the same sex will be considered to be lawfully married under the Code
as long as they were married in a state whose laws authorize the marriage of two
individuals of the same sex, even if they are domiciled in a state that does not
recognize the validity of same-sex marriages.
(Rev. Ruling 2013-17, 2013-381.R.B.28 (emphasis added), Ex. B to United States Not. of Admin.
Action.) In a news release, the IRS stated that same sex couples will be treated as married for all
federal tax purposes, including filing status, claiming personal and dependency exemptions, taking
the standard deduction, employee benefits, contributing to an IRA and claiming the earned income
tax credit or child tax credit. (I.R.S. News Release, IR-2013-72 (Aug. 29, 2013), Ex. A to United
States Not. of Admin. Action.) Thus, Section 3 of DOMA will no longer be used to deprive the
Barton couple of married status for any federal tax purpose because (1) they have a legal California
marriage, and (2) Oklahomas non-recognition of such marriage is irrelevant for federal tax
16
BLAG, the only party defending the constitutionality of Section 3, has stated that the
Supreme Court recently held that DOMA Section 3 is unconstitutional and that its justification
for participating in this case . . . has disappeared. (BLAGs Unopposed Mot. to Withdraw 1-2.)
BLAGs disinterest in any further defense of Section 3 supports the Courts conclusion that its
entry of a declaratory judgment would have no effect.
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purposes. Any ongoing threat of injury based upon deprivation of married status for tax purposes
has been rendered moot by Windsor and the IRS response thereto.17
In their evidentiary proffers regarding standing to challenge Section 3, the Barton couple
asserts harms other than adverse tax consequences, such as an inability to plan for Social Security
survivor benefits. The Barton couple argues that Windsor may affect the interpretation of the word
married by other federal agencies and that this Court must ensure that the Barton couple reaps the
full benefit of the Windsor decision. However, all evidence before the Court indicates that Section
3 will no longer be used to deprive married same-sex couples of federal benefits that are bestowed
upon married opposite-sex couples, even when those couples live in non-recognizing states such as
Oklahoma. The Windsor decision changed the legal landscape in such a drastic manner that the
Barton couple no longer faces any reasonable threat of being denied equal protection of federal laws
related to marriage. Were the Court to issue a declaratory judgment, it would be issuing an opinion
based on a hypothetical application of Section 3 that is no longer likely to occur. See Rio Grande
Silvery Minnow, 601 F.3d at 1117 (A case ceases to be a live controversy if the possibility of
recurrence of the challenged conduct is only a speculative contingency.) (alterations and citation
omitted).
2.
Attorney Fees and Costs
The Barton couple also requests attorney fees and costs. However, the possibility of
recovering attorney fees or costs is not a sufficient reason to enter judgment in an otherwise moot
17
This is not a case in which the United States is showing any reluctant submission to
complying with Windsor. See Rio Grande Silvery Minnow, 601 F.3d at 1116 (explaining that a
case may not be moot if a governmental actor is showing reluctant submission or a desire to
return to the old ways). The United States has given every indication that the Supreme Courts
ruling will be implemented in a manner that ceases to cause the Barton couple any injury related
to payment of federal income taxes.
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case. See R.M. Inv. Co. v. U.S. Forest Serv., 511 F.3d 1103, 1108 (10th Cir. 2007) (explaining that
a claim of entitlement to attorney fees does not preserve a moot cause of action); In re West. Pac.
Airlines, Inc., 181 F.3d 1191, 1196 (10th Cir. 1999) (Precedent clearly indicates that an interest in
attorneys fees is insufficient to create an Article III case or controversy where a case or controversy
does not exist on the merits of the underlying claim.); 13C Charles Alan Wright, et al., Federal
Practice and Procedure 3533.3 (3d ed. 2008) (If the action is mooted before any decision on the
merits by the trial court, a statute that awards fees to the prevailing party does not justify decision
on the merits in order to determine if that party would have prevailed absent mootness.) (Claims
for costs traditionally have not been thought sufficient to avoid mootness, presumably on the theory
that such incidental matters should not compel continuation of an otherwise moribund action.).
3.
Other Relief Deemed Proper
The Barton couple does not expressly request money damages as relief. However, they urge
the Court to construe their request for other relief deemed proper as a request for money damages.
They are now urging this construction because, unlike claims for declaratory or injunctive relief,
claims for damages are not mooted by subsequent events. See In re West. Pac. Airlines, Inc., 181
F.3d at 1196 (explaining that, although declaratory and injunctive relief was rendered moot by a
defendants release from prison, a damages claim was still viable because it would alter the
defendants behavior by forcing them to pay money); Charles Alan Wright, et al., supra, 3533.3
(Untold number of cases illustrate the rule that a claim for money damages is not moot, no matter
how clear it is that the claim arises from events that have completely concluded without any prospect
of recurrence.). In the Tenth Circuit, this same rule applies to claims for nominal damages. Utah
Animal Rights Coal., 371 F.3d at 1257-58 (It may seem odd that a complaint for nominal damages
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could satisfy Article IIIs case or controversy requirements, when a functionally identical claim for
declaratory relief will not. But this Court has squarely so held.) (internal footnotes omitted).
The Court does not construe the other relief deemed proper language as a request for
compensatory or nominal damages against the United States for three reasons. First, the Barton
couple has repeatedly argued, in response to certain ripeness and standing deficiencies raised by
BLAG, that their Section 3 injury was not any specific denial of monetary benefits but was instead
the ongoing injury of unequal access and/or unequal treatment caused by Section 3. (See, e.g., Pls.
Resp. to BLAGs Cross Mot. for Summ. J. (containing heading entitled BLAGs Argument
Regarding Standing is Without Merit, as Plaintiffs Do Not Request Monetary Damages and DOMA
Was the Cause of their Injury).) This case has focused entirely on prospective declaratory relief,
rather than injunctive relief related to a specific tax refund, and the Court finds no legitimate basis
to now construe the Amended Complaint as seeking money damages. Second, the United States is
generally immune from suits for money damages, and the Barton couple has not identified any
waiver or statutory exception that would apply here. See Wyodak Res. Dev. Corp. v. United States,
637 F.3d 1127, 1130 (10th Cir. 2011) (explaining that suits for damages against the United States
must proceed under the Tucker Act in the Court of Federal Claims or under some other statutory
immunity waiver). Finally, the Barton couple has not urged the Court to construe the Amended
Complaint as requesting nominal damages. (See Pls. Reply in Support of Mot. for Entry of J. 7-10.)
Even if they had, these decisions generally require an express request, which was not made in the
Amended Complaint. See R.M. Inv. Co., 511 F.3d at 1107 (rejecting argument that suit should be
construed as one seeking nominal damages and stating that [b]ecause [the plaintiff] has no claim
for nominal damages, it cannot rely on nominal-damages cases to overcome mootness); Charles
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Alan Wright, et al., supra, 3533.3 (But failure to demand nominal damages may lose the
opportunity to avoid mootness.). Accordingly, the Barton couples Section 3 challenge is not saved
by the other relief language in the Amended Complaint.
C.
Conclusion
The Barton couple has only requested prospective declaratory relief regarding Section 3, and
such request has been rendered moot in light of Windsor and the United States response thereto.
The United States has satisfied its burden of showing mootness, and the Court lacks jurisdiction to
enter any judgment in favor of the Barton couple. Based on this ruling, the Court agrees with
BLAGs assertion that it has no further role to play in this litigation. BLAGs motion to withdraw
as an intervening party is therefore granted, and its motion for summary judgment is denied as moot.
Although the Barton couple will not receive a judgment in their favor as to this claim, they
have played an important role in the overall legal process leading to invalidation of Section 3 of
DOMA. The Barton couple filed this lawsuit many years before it seemed likely that Section 3
would be overturned. Although other plaintiffs received the penultimate judgment finding DOMAs
definition of marriage unconstitutional, the Barton couple and their counsel are commended for their
foresight, courage, and perseverance.
IV.
Barton Couple Lacks Standing to Challenge Part B of the Oklahoma Constitutional

Amendment
Bishop II held that, in order to have standing in this case, Plaintiffs must establish a
connection between the state official sued and the alleged injury. See Bishop II, 2009 WL 1566802,
at *3 (holding that Plaintiffs lacked standing to sue Oklahoma Governor or Oklahoma Attorney
General in their challenge to Parts A and B because these officials did not have a sufficient
enforcement connection to the challenged Oklahoma laws). The Tenth Circuit indicated that district
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court clerks were the Oklahoma officials with a connection to Plaintiffs injuries because
[m]arriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.
Id. Notably, the statutes cited in Bishop II do not reference court clerks authority to recognize
an out-of-state marriage. In support of her motion for summary judgment, Smith submitted an
affidavit stating that she has no authority to recognize or record a marriage license issued by
another state in any setting, regardless of whether the license was issued to an opposite-sex or samesex couple and that [t]here are no circumstances in which the Clerk of Court of Tulsa County
would be authorized to recognize a marriage license issued by another state. (See Smith Aff. 5,
Ex. A to Smiths Cross Mot. for Summ. J.) The Barton couple has not controverted this evidence
in any manner. Instead, the Barton couple argues that, in Bishop II, the Tenth Circuit has deemed
[Smith] to be the appropriate party. (Pls. Reply to Smiths Cross Mot. for Summ. J. 27.)
Based upon the evidence before the Court, Smith is entitled to summary judgment. Although
Bishop II explained that clerks of court were generally the Oklahoma officials connected with the
types of injuries alleged in the Amended Complaint, that decision was at the Rule 12(b)(6) stage.
In her affidavit, Smith denies that she, or any other district court clerk in Oklahoma, has authority
to recognize any out-of-state marriage and therefore denies her ability to redress the Barton couples
non-recognition injury. The Barton couple has failed to controvert Smiths testimony in any manner
or demonstrate that she would indeed be the proper official to recognize their California marriage.
Citation to Bishop II, and inconclusive Oklahoma statutes cited therein, is not sufficient to create
a question of fact in light of Smiths uncontroverted denial of authority.
A recent case addressed the constitutionality of Ohios non-recognition provision, which was
identical to Part B. See Obergefell v. Wymyslo, --- F. Supp. 2d ----, No. 1:13-cv-501, 2013 WL
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6726688 (S.D. Ohio Dec. 23, 2013). In that case, the same-sex couples had been legally married
in states other than Ohio. Upon the death of their same-sex spouse, the surviving spouses sought
recognition of those marriages on Ohio death certificates. See id. at *1. The Obergefell plaintiffs
sued the local and state officers responsible for death certificates. Id. While Obergefell does not
stand for the proposition that local and state officials responsible for death certificates are the only
types of officials who may be sued in a challenge to non-recognition laws, it does highlight the
Barton couples evidentiary deficiencies in this case. Unlike the plaintiffs in Obergefell, who
attempted to obtain recognition on death certificates, the Barton couple has not taken any steps to
obtain recognition and has not shown that Smith is the proper official. While the Court does not
believe that a futile trip to the courthouse is required in every instance, the only evidence before
the Court is an uncontroverted denial of any connection to the injury by the sued state official.
Therefore, the Barton couples challenge to Part B is dismissed for lack of standing.18
V.
Bishop Couple Has Standing to Challenge Part A

Smith has not attacked the Bishop couples standing to challenge Part A or raised any other
jurisdictional deficiencies. Nonetheless, the Court has independently satisfied itself that standing
and other jurisdictional requirements are satisfied. The Bishop couple has proven standing because
they sought an Oklahoma marriage license from Smith, Smith denied them such license, and Smith
did so based upon their status as a same-sex couple. Unlike with Part B, the Bishop couple has
18
This is an unfortunate result for the Barton couple, who have twice been turned away
based on standing. However, the Court notes that Part B was not the focus of this litigation. It
was unclear whether the Barton couple challenged Part B in the Amended Complaint, and they
devoted only one page of argument to it in their motion for summary judgment. (See Pls. Mot.
for Summ. J. 41-42.) In a proper equal protection challenge, portions of this Courts analysis of
Part A would also seem applicable to Part B. The Court is reminded of a quote by Harriet
Beecher Stowe: [N]ever give up, for that is just the place and time that the tide will turn.
Harriet Beecher Stowe, Old Town Folks (1869).
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clearly demonstrated Smiths connection to their injury. Further, in contrast to Section 2 of DOMA,
Part A of the Oklahoma Constitutional Amendment represents a significant cause of the Bishop
couples injury and, at a minimum, stands as a barrier between them and married legal status in
Oklahoma. A favorable ruling would enjoin enforcement of an enshrined definition of marriage in
the Oklahoma Constitution and bring the Bishop couple substantially closer to their desired
governmental benefit. See supra Part II(B) (explaining that, in equal protection cases, a plaintiff
need not show that a favorable ruling would relieve his every injury but must show that a favorable
ruling would remove a barrier imposing unequal treatment).19
The Court has also satisfied itself that Smith is properly sued. The Bishop couple may seek
relief from Smith under Ex parte Young, 209 U.S. 123 (1908), which permits suits where a plaintiff
is (1) suing state officials rather than the state itself, (2) alleging an ongoing violation of federal
law, and (3) seeking prospective relief. Cressman v. Thompson, 719 F.3d 1139, 1146 (10th Cir.
2013); see also Ky. Press Assn, Inc. v. Ky., 355 F. Supp. 2d 853, 861-62 (E.D. Ky. 2005) (applying
Ex Parte Young doctrine to permit suit against court clerk in her official capacity). The Court had
additional immunity concerns based on Bishop IIs holding that Smith acts as an arm of Oklahomas
judiciary when she issues (or denies) marriage licenses. See Bishop II, 2009 WL 1566802, at *3.
However, because the suit is one for declaratory and injunctive relief, Smith is not entitled to judicial
or quasi-judicial immunity. See Guiden v. Morrow, 92 F. Appx. 663, 665 (10th Cir. 2004)
(explaining that court clerk of Butler County, Kansas sued in her official capacity had quasi-judicial
19
As explained supra in footnote 2, there is an Oklahoma statute also impacting samesex couples eligibility for a marriage license. See Okla. Stat. tit. 43, 3(A). No party discussed
standing problems posed by this statute, and the Court is satisfied that enjoining enforcement of
Part A redresses a concrete injury suffered by the Bishop couple.
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immunity from suits for money damages but would not be entitled to immunity in a suit seeking
injunctive relief).
VI.
Part A of the Oklahoma Constitutional Amendment Violates the U.S. Constitution

The Bishop couple argues that Part A is an unconstitutional deprivation of their fundamental
due process liberties and equal protection rights under the Fourteenth Amendment to the U.S.
Constitution. The Bishop couple and Smith filed cross motions for summary judgment, and both
parties urge the Court to decide the constitutionality of Part A as a matter of law. The Court
concludes: (1) Baker v. Nelson is not binding precedent; (2) Windsors reasoning does not mandate
a particular outcome for the Bishop couple or Smith; and (3) Part A intentionally discriminates
against same-sex couples desiring an Oklahoma marriage license without a legally sufficient
justification.
A.
Baker v. Nelson
Smith argues that Baker represents binding Supreme Court precedent and should end this
Courts analysis of Part A. In Baker, the Supreme Court dismissed, for want of a substantial
federal question, an appeal of the Minnesota Supreme Courts holding that its state marriage laws
did not violate a same-sex couples equal protection or substantive due process rights under the U.S.
Constitution. Baker v. Nelson, 409 U.S. 810 (1972). This type of summary dismissal for want of
a substantial federal question, although without any reasoning, is considered a binding decision on
the merits as to the precise issues presented and necessarily decided. Mandel v. Bradley, 432 U.S.
173, 176-77 (1977); Okla. Telecasters Assn v. Crisp, 699 F.2d 490, 496 (10th Cir. 1983), revd on
other grounds, Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984).20
20
In 1972, the Supreme Court had no discretion to refuse adjudication of an appeal of

a state court decision upholding a state statute against federal constitutional attack. See Hicks v.
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Baker presented the precise legal issues presented in this case namely, whether a state law
limiting marriage to opposite-sex couples violates due process or equal protection rights guaranteed
by the U.S. Constitution. This is evidenced by the jurisdictional statements submitted to the
Supreme Court. In relevant part, the appellants phrased the issues as whether Minnesotas refusal
to sanctify appellants marriage deprives appellants of liberty and property in violation of the due
process and equal protection clauses. (Appellants Jurisdictional Statement, Ex. 4 to Smiths Cross
Mot. for Summ. J.) Appellees similarly phrased the relevant issues as [w]hether appellees refusal
to sanctify appellants marriage deprives appellants of their liberty to marry and of their property
without due process of law under the Fourteenth Amendment; and [w]hether appellees refusal
. . . to sanctify appellants marriage because both are of the male sex violates their rights under the
equal protection clause of the Fourteenth Amendment. (Appellees Jurisdictional Statement, Ex.
4 to Smiths Cross Mot. for Summ. J.)21 Therefore, barring application of an exception, Baker is
Miranda, 422 U.S. 332, 343-44 (1975) (explaining difference between this type of summary
dismissal and a denial of certiorari). Thus, despite its lack of reasoning, Baker is binding
precedent as to issues squarely presented and dismissed. Although Hicks remains the law, it has
been criticized. See., e.g., Randy Beck, Transtemporal Separation of Powers in the Law of
Precedent, 87 Notre Dame L. Rev. 1405, 1451 (2012) (Just as we do not accord precedential
weight to a denial of certiorari, the Court should abandon Hicks and deny controlling force to
unexplained summary dispositions. . . . [T]he value of allowing thorough consideration of a legal
question outweighs any enhanced legal stability that flows from requiring lower courts to
decipher unexplained rulings and treat them as binding authority.).
21
At the trial court level, the same-sex couple had challenged a Minnesota county clerks
refusal to grant them a marriage license. They argued that (1) same-sex marriage was authorized
by Minnesota law, and (2) alternatively, denial of a marriage license deprived them of liberty
without due process and equal protection in violation of their Fourteenth Amendment rights and
constituted an unwarranted invasion of privacy in violation of the Ninth and Fourteenth
Amendments. Baker v. Nelson, 191 N.W.2d 185, 185 (Minn. 1971) (explaining arguments made
in trial court). The Minnesota Supreme Court held that (1) Minnesotas marriage statute, which
did not expressly prohibit same-sex marriages, only authorized marriages between persons of the
opposite sex; and (2) such an interpretation did not violate the plaintiffs equal protection, due
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binding precedent in this case. See Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1087 (D. Haw.
2012) (holding that Fourteenth Amendment challenge to Hawaii law limiting marriage to oppositesex couples presented precise issues that had been presented in Baker); see also Windsor v. United
States (Windsor I), 699 F.3d 169, 178 (2d Cir. 2012) (addressing DOMA challenge) (defining
issue in Baker as whether same-sex marriage may be constitutionally restricted by the states); In
re Kandu, 315 B.R. 123, 137 (Bankr. W.D. Wash. 2004) (addressing DOMA challenge) (The issue
in Baker was whether a state licensing statute limiting marriage to opposite-sex couples, and thereby
excluding same-sex marriage, violated the due process and equal protection provisions of the
Constitution.).
There is an exception to the binding nature of summary dismissals, however, if doctrinal
developments indicate that the Supreme Court would no longer brand a question as unsubstantial.
Hicks, 422 U.S. at 344-45 (stating that unless and until the Supreme Court should instruct
otherwise, inferior federal courts had best adhere to the view that if the Court has branded a question
as unsubstantial, it remains so except when doctrinal developments indicate otherwise). The Court
concludes that this exception applies for three reasons. First, interpreting Hicks, the Tenth Circuit
has pronounced that a summary disposition is binding on the lower federal courts . . . until doctrinal
developments or direct decisions by the Supreme Court indicate otherwise. Okla. Telecasters
Assn, 699 F.2d at 495 (emphasis added). If an express overruling by the Supreme Court is the only
type of doctrinal development that qualifies for the exception, the disjunctive or would cease
to have meaning.
process, or privacy rights guaranteed by the U.S. Constitution. Id. at 186-87.

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Second, there have been significant doctrinal developments in Supreme Court jurisprudence
since 1972 indicating that these issues would now present a substantial question. The Supreme
Court has: (1) recognized a new form of heightened scrutiny and applied it to sex-based
classifications, see Craig v. Boren, 429 U.S. 190, 197-98 (1976); (2) held that a Colorado
constitutional amendment targeting homosexuals based upon animosity lacked a rational relation
to any legitimate governmental purpose, see Romer v. Evans, 517 U.S. 620, 635 (1996); (3) held that
homosexuals had a protected liberty interest in engaging in private, homosexual sex, that
homosexuals moral and sexual choices were entitled to constitutional protection, and that moral
disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy,
Lawrence v. Texas, 539 U.S. 558, 564, 571 (2003); and (4) most recently, held that the U.S.
Constitution prevented the federal government from treating state-sanctioned opposite-sex marriages
differently than state-sanctioned same-sex marriages, and that such differentiation demean[ed] the
couple, whose moral and sexual choices the Constitution protects, Windsor, 133 S. Ct. at 2694.
While none is directly on point as to the questions presented in Baker (or here), this is the type of
erosion over time that renders a summary dismissal of no precedential value. It seems clear that
what was once deemed an unsubstantial question in 1972 would now be deemed substantial
based on intervening developments in Supreme Court law. See Windsor I, 699 F.3d at 178 (holding
that Baker was not controlling as to constitutionality of DOMA, reasoning in part that [i]n the forty
years after Baker, there have been manifold changes to the Supreme Courts equal protection
jurisprudence that would warrant an exception to the general rule). But see Mass. v. U.S. Dept. of
Health and Human Servs., 682 F.3d 1, 8 (1st Cir. 2012) (rejecting similar reasoning in DOMA
challenge and indicating that Baker limited the arguments in that case).
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Finally, although the Supreme Courts decision in Windsor was silent as to Bakers
impact,22 statements made by the Justices indicate that lower courts should be applying Windsor (and
not Baker) to the logical next issue of state prohibitions of same-sex marriage. See Windsor, 133
S. Ct. at 2696 (Roberts, C.J., dissenting ) (urging that the Windsor majoritys reasoning must not be
extended to state-law bans because the majoritys judgment is based on federalism); id. at 2709-10
(Scalia, J., dissenting) (stating his opinion that the majority decision arms well every challenger
to a state law restricting marriage to its traditional definition) (explaining that state and lower
federal courts will be able to distinguish Windsor due to its scatter-shot rationales and inviting
lower courts to distinguish away). If Baker is binding, lower courts would have no reason to apply
or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply
Windsor would be superfluous. Accordingly, the Court concludes that Baker is no longer a binding
summary dismissal as to those issues. See Kitchen v. Herbert, --- F. Supp. 2d ----, No. 2:13-cv-217,
2013 WL 6697874, at *8 (D. Utah Dec. 20, 2013) (reaching same conclusion in challenge to Utahs
marriage definition in case issued after Windsor).23
22
Based on the Windsor I decision, it seemed likely that the Supreme Court would
address Bakers precedential value. See Windsor I, 699 F.3d at 178-79 (majority concluding that
doctrinal changes constitute another reason why Baker does not foreclose our disposition of this
case); id. at 195 n.3 (Straub, J., concurring in part and dissenting in part) (acknowledging that
questions may stop being insubstantial when subsequent doctrinal developments so indicate
but concluding that Supreme Court decisions had not eroded Bakers foundations such that it no
longer holds sway). However, no Justice mentioned Baker in any part of the Windsor decision.
At least one commentator criticized this silence. Jonah Horwitz, When Too Little is Too Much:
Why the Supreme Court Should Either Explain its Opinions or Keep Them to Itself, 98 Minn. L.
Rev. Headnotes 1, 2 (2013) (explaining that Baker was examined in detail in the Supreme
Court briefs and criticizing Supreme Court for failing to discuss Baker) (For a case of such
length and significance, it is nothing short of amazing that no one refers, even in passing, to what
struck the lower courts and the litigants as a potentially dispositive case.).
23
Lower court decisions issued prior to Windsor are split as to the applicability of the
doctrinal developments exception. Compare, e.g., Jackson, 884 F. Supp. 2d at 1085 (holding
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B.
Windsors Impact
In Windsor, the plaintiff, a New York resident, inherited the estate of her same-sex spouse.
133 S.Ct. at 2682. The couple had entered into a Canadian marriage, which was recognized in New
York at the time of her spouses death. See id. (citing Windsor Is reasoning regarding New Yorks
recognition of the Canadian marriage).24 Upon inheriting her spouses estate, the plaintiff sought
to claim the federal estate tax exemption but was prevented from doing so by Section 3 of DOMA,
which defined marriage as between one and one woman for purposes of federal law. Id. The
plaintiff paid the taxes and then filed suit to challenge the constitutionality of Section 3. Id.
The Windsor majority opinion, authored by Justice Kennedy, held that: (1) when a state
recognizes same-sex marriage, it confers upon this class of persons a dignity and status of immense
import; id. at 2692; and (2) Section 3 of DOMA violated equal protection principles because the
avowed purpose and practical effect of that law was to impose a disadvantage, a separate status,
and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned
authority of a state, id. at 2693. This Court interprets Windsor as an equal protection case holding
that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and
lawfully married same-sex couples. See id. at 2694. (DOMAs principal effect is to identify a
subset of state-sanctioned marriages and make them unequal.).
that the Supreme Court has not explicitly or implicitly overturned its holding in Baker or
provided the lower courts with any reason to believe that the holding is invalid) with Smelt v.
Cnty. of Orange, 374 F. Supp. 2d 861, 873 (C.D. Cal. 2005) (Doctrinal developments show it is
not reasonable to conclude the questions presented in the Baker jurisdictional statement would
still be viewed by the Supreme Court as unsubstantial.), overrd on other grounds, Smelt v.
Cnty. of Orange, 447 F.3d 673 (9th Cir. 2006).
24
The Windsor I court based its conclusion upon rulings by New York intermediate
appellate courts, which indicated that the Canadian marriage was indeed recognized in New
York when the plaintiff inherited her spouses estate. Windsor I, 699 F.3d at 177-78.
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The Windsor Court did not apply the familiar equal protection framework, which inquires
as to the applicable level of scrutiny and then analyzes the laws justifications. Instead, the Windsor
Court based its conclusion on the laws blatant improper purpose and animus. See id. at 2693. The
Court reasoned that DOMAs unusual deviation from the tradition of accepting state definitions
of marriage was strong evidence of a law having the purpose and effect of disapproval of the
class. Id. The Court concluded, based upon DOMAs text and legislative history, that DOMAs
principal purpose was to impose inequality. Id. Thus, Windsor does not answer whether a state
may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a
suspect class or discuss whether DOMA impacted a fundamental right, which would have provided
this Court with a clear test for reviewing Part A.
Both parties argue that Windsor supports their position, and both are right.
Windsor
supports the Bishop couples position because much of the majoritys reasoning regarding the
purpose and effect of DOMA can be readily applied to the purpose and effect of similar or
identical state-law marriage definitions. See id. at 2693 (discussing essence of DOMA as
defending a particular moral view of marriage, imposing inequality, and treating legal same-sex
marriages as second class, ultimately concluding that DOMA was motivated by an intent to
injure lawfully married same-sex couples); id. at 2710 (Scalia, J., dissenting) (explaining that the
majority arms well every challenger to a state law restricting marriage to its traditional definition
and transposing certain portions of the majority opinion to reveal how it could assist these
challengers). However, Windsors purpose and effect reasoning is not a perfect fit, as applied to
Part A, because Part A does not negate or trump marital rights that had previously been extended
to Oklahoma citizens. Further, DOMAs federal intrusion into state domestic policy is more
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unusual than Oklahoma setting its own domestic policy. See id. at 2692 (discussing DOMAs
departure from the tradition of reliance on state law to define marriage).
Windsor supports Smiths position because it engages in a lengthy discussion of states
authority to define and regulate marriage, which can be construed as a yellow light cautioning
against Windsors extension to similar state definitions. See id. at 2692 (explaining that state
marriage laws vary between states and discussing states interest in defining and regulating the
marital relation). Again, however, the yellow light argument has its limitations. In discussing
this traditional state authority over marriage, the Supreme Court repeatedly used the disclaimer
subject to constitutional guarantees. See id. at 2692 (citing Loving v. Virginia, 388 U.S. 1 (1967)
(holding that Virginias prohibition of interracial marriage violated equal protection and substantive
due rights)). A citation to Loving is a disclaimer of enormous proportion. Arguably, the state
rights portion of the Windsor decision stands for the unremarkable proposition that a state has
broad authority to regulate marriage, so long as it does not violate its citizens federal constitutional
rights. New York had expanded its citizens rights, and there was no possible constitutional
deprivation in play.
This Court has gleaned and will apply two principles from Windsor. First, a state law
defining marriage is not an unusual deviation from the state/federal balance, such that its mere
existence provides strong evidence of improper purpose. A state definition must be approached
differently, and with more caution, than the Supreme Court approached DOMA. Second, courts
reviewing marriage regulations, by either the state or federal government, must be wary of whether
defending traditional marriage is a guise for impermissible discrimination against same-sex
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couples. These two principles are not contradictory, but they happen to help different sides of the
same-sex marriage debate.
C.
Civil Marriage in Oklahoma
Before reaching its equal protection analysis, some preliminary discussion of civil marriage
in Oklahoma is necessary. In order to enter into a marital contract, see Okla. Stat. tit. 43, 1
(explaining that marriage is a personal relation arising out of a civil contract), a couple must first
obtain a marriage license from the judge or clerk of the district court, of some county in this state,
authorizing the marriage between the persons named in such license. Okla. Stat. tit. 43, 4. In
order to qualify for a marriage license, a couple must have the following characteristics: (1) the
parties must be legally competent of contracting, id. 1; (2) each person must be unmarried,
see id. 3(A); (3) the couple must consist of one man and one woman, see Okla. Const. art. 2,
35(A); see also Okla. Stat. tit. 43, 3(A) (indicating that marital contract must be entered with a
person of the opposite sex); (4) both parties must be of eighteen years of age, see Okla. Stat. tit. 43,
3(A);25 and (5) the couple must not be related to one another in certain ways, see id. 2.26 But for
the Bishop couples status as a same-sex couple, they satisfy the other eligibility criteria for
obtaining a marriage license.
The process of obtaining a marriage license requires the couple to submit an application in
writing signed and sworn to in person before the clerk of the district court by both of the parties
25
Oklahoma permits persons between the ages of sixteen and eighteen to marry with
parental consent, see id. 3(B)(1)(a)-(f), and persons under sixteen to marry if authorized by the
court in very limited circumstances, see id. 3(B)(2).
26
Marriages between ancestors and descendants of any degree, of a stepfather with a

stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in
cases where such relationship is only by marriage, between brothers and sisters of the half as
well as the whole blood, [or] first cousins are prohibited. Okla. Stat. tit. 43, 2.
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setting forth certain information. Id. 5(A). If the court clerk is satisfied with the couples
application and the couple pays the appropriate fee, the clerk shall issue the marriage license
authorizing the marriage and a marriage certificate. Okla. Stat. tit. 43, 5(B)(1). The marriage
certificate is a document with appropriate wording and blanks to be completed and endorsed . .
. by the person solemnizing or performing the marriage ceremony, the witnesses, and the persons
who have been married. Id. 6(A)(6).
The couple may then choose how they will solemnize the marriage, which is when the
parties enter into the marital contract:
All marriages must be contracted by a formal ceremony performed or solemnized in
the presence of at least two adult, competent persons as witnesses, by a judge or
retired judge of any court in this state, or an ordained or authorized preacher or
minister of the Gospel, priest or other ecclesiastical dignitary of any denomination
who has been duly ordained or authorized by the church to which he or she belongs
to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.
Id. 7(A). The judge, minister, or other authorized person must have possession of the marriage
license and must have good reason to believe that the persons presenting themselves for marriage
are the individuals named in the license. Id. 7(C). Marriages between persons belonging to certain
religions namely, Friends, or Quakers, the spiritual assembly of the Bahais, or the Church of
Jesus Christ of Latter Day Saints, which have no ordained minister may be solemnized by the
persons and in the manner prescribed by and practiced in any such society, church, or assembly.
Id. 7(D). Following the ceremony, whether civil or religious, the officiant, witnesses, and parties
must complete and sign the marriage certificate. See id. 8(A)-(C). Any person who performs or
solemnizes a marriage ceremony contrary to any of the provisions of this chapter is guilty of a
misdemeanor. See id. 15.
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After the license is issued and the contract entered into (either by civil or religious
ceremony), both the marriage license and the marriage certificate are then returned to the court clerk
who issued the license and certification. See id. 8(D). This must be completed within thirty days
of issuance of the marriage license. Id. 6(A)(5). Once returned, the court clerk makes a complete
record of the application, license, and certificate and then returns the original license to the
applicants, with the issuing officers certificate affixed thereon showing the book and page or case
number where the same has been recorded. Id. 9.27
Therefore, in Oklahoma, marriage is a three-step process consisting of: (1) applying for
and receiving a marriage license from the court clerk, which authorizes the couple to then enter the
marital contract; (2) entering the marital contract by civil or religious ceremony; and (3) having the
marriage license and marriage certificate recorded by the court clerk. This Courts equal
protection analysis is limited to Part As alleged discriminatory treatment with respect to the first
and third steps namely, Part As prevention of Smith from issuing a marriage license to same-sex
couples and then recording the license upon its return.28 Smith has no connection to the second step
(solemnization), and this Courts equal protection analysis does not impact the second step.
27
Unlike some other states, Oklahoma does not offer any alternative scheme for samesex couples, such as civil unions. The Supreme Court has stated, and this Court firmly agrees,
that marriage is more than a routine classification for purposes of certain statutory benefits.
Windsor, 133 S.Ct. at 2692. This Courts opinion should not be read to mean that marriage is
nothing more than a contractual relationship or to mean that a civil union scheme would survive
constitutional scrutiny. However, because Oklahoma is an all-or-nothing state (marriage license
or no marital benefits), the equal protection violation is that much clearer, and this Courts
opinion need not reach the legal viability of some alternative scheme.
28
When the Court refers to obtaining a marriage license throughout this Order, it
refers to both the initial issuance of the marriage license and the recording of the marriage
license by the court clerk after the marriage is solemnized.
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Therefore, the declaratory and injunctive relief granted by the Court does not require any individual
to perform a same-sex marriage ceremony.
D.
Equal Protection Analysis
The Fourteenth Amendment mandates that no state shall deny to any person within its
jurisdiction the equal protection of the laws. U.S. Const. amend. XIV 1. The Tenth Circuit has
recently explained equal protection principles:
Equal protection is the laws keystone. Without careful attention to equal
protections demands, the integrity of surrounding law all too often erodes,
sometimes to the point where it becomes little more than a tool of majoritarian
oppression. But when equal protections demands are met, when majorities are
forced to abide the same rules they seek to impose on minorities, we can rest much
surer of the soundness of our legal edifice. No better measure exists to assure that
laws will be just than to require that laws be equal in operation.
At the same time, it is of course important to be precise about what equal protection
is and what it is not. Equal protection of the laws doesnt guarantee equal results
for all, or suggest that the law may never draw distinctions between persons in
meaningfully dissimilar situationstwo possibilities that might themselves generate
rather than prevent injustice. Neither is the equal protection promise some generic
guard against arbitrary or unlawful governmental action, merely replicating the work
done by the Due Process Clause or even the Administrative Procedure Act. Instead,
the Equal Protection Clause is a more particular and profound recognition of the
essential and radical equality of all human beings. It seeks to ensure that any
classifications the law makes are made without respect to persons, that like cases are
treated alike, that those who appear similarly situated are not treated differently
without, at the very least, a rational reason for the difference.
SECSYS, LLC v. Vigil, 666 F.3d 678, 684-85 (10th Cir. 2012) (alterations and citations omitted)
(emphases added). A class-based equal-protection challenge, such as that raised here, generally
requires a two-step analysis. Id. at 685. First, the Court asks whether the challenged state action
intentionally discriminates between groups of persons. Id. Second, after an act of intentional
discrimination is identified, the Court must ask whether the states intentional decision to
discriminate can be justified by reference to some upright government purpose. Id. at 686. In
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conducting its analysis, the Court has been particularly mindful of the above-quoted portion of Vigil
and has closely adhered to its two-step test. This has helped the Court decide this controversial and
complex case as it would decide any other equal protection challenge.
1.
Does Part A Intentionally Discriminate Between Groups of Persons?
Intentional discrimination can take several forms. Vigil, 666 F.3d at 685. When a
distinction between groups of persons appears on the face of a state law or action, an intent to
discriminate is presumed and no further examination of legislative purpose is required. Id. If the
law is instead one of general applicability, some proof is required. Id. Because few are anxious
to own up to a discriminatory intent, courts may draw inferences about a laws intent or purpose
from circumstantial evidence. Id. at 686. A plaintiff may demonstrate that a generally applicable
law results in intentional discrimination by showing that the law was adopted at least in part
because of, and not merely in spite of, its discriminatory effect on a particular class of persons. Id.
(emphasis added).
The Court defines the relevant class as same-sex couples desiring an Oklahoma marriage
license.29 The Bishop couple has easily satisfied the first element requiring a showing that Part
A intentionally discriminates against this class for two reasons. First, Part As disparate impact
upon same-sex couples desiring to marry is stark. Its effect is to prevent every same-sex couple in
Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law
29
It is somewhat unusual to define a class of couples, but the Court finds it proper here.
The classification made by Part A is aimed only at same-sex couples who want to marry, rather
than all homosexuals. A couple must apply together in person for a marriage license, and it is
the fact that they are of the same sex that renders them ineligible. Further, Smiths proferred
justifications are tied to alleged characteristics that two individuals have when coupled i.e.,
their inability to naturally procreate and to provide an optimal parenting environment. See
infra Part VI(D)(2)(d) (setting forth Smiths proferred justifications for the law).
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has a small or incidental effect on the defined class; it is a total exclusion of only one group. See
Vigil, 666 F.3d at 686 (explaining that a laws starkly disparate impact may well inform a courts
investigation into the laws underlying intent or purpose).
Second, both the timing of SQ 711 in relation to certain court rulings and the statements
in the public domain before passage of SQ 711 raise the inference that it was adopted, at least in
part, for the purpose of excluding the class from marriage. SQ 711 originated from legislation
entitled the Marriage Protection Amendment, which passed the Oklahoma Legislature as part of
House Bill 2259 (HB 2259). (See Smiths Cross Mot. for Summ. J., Ex. 1 to Ex. B.) Although
there is no legislative history for HB 2259 cited in the record, the Oklahoma House of
Representatives website provides a history of HB 2259, which (1) lists the title as Marriage;
enacting the Marriage Protection Amendment; (2) shows that the Oklahoma Senate passed the
measure by a vote of 38 to 7 on April 15, 2004; and (3) shows that the House passed the measure
by a vote of 92 to 4 on April 22, 2004. See History for HB 2259, available at www.oklegislature
.gov/BillInfo.aspx?Bill= HB2259&Session=0400.30
On April 15, 2004, the day HB 2259 passed the Oklahoma Senate, the Oklahoma Senate
issued the following press release:
Senate Passes Marriage Protection Amendment
Despite efforts by the Democrat leadership throughout the legislative session to kill
the issue, the Senate passed a bill that sends to a vote of the people a constitutional
amendment defining marriage in Oklahoma as only between one man and one
30
The Court takes judicial notice of information available on the Oklahoma House of
Representatives website and the Oklahoma Senate website pursuant to Federal Rule of Evidence
201, which allows courts to take judicial notice of adjudicative facts if they are generally known
within the trial courts jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot be questioned. Fed. R. Evid. 201(b); Winzler v. Toyota Motor Sales
U.S.A., Inc., 681 F.3d 1208, 1213 (10th Cir. 2012).
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woman and prohibiting the state from recognizing homosexual marriages performed
outside Oklahoma.
I am thankful to the Senates Democrat leadership for finally giving up on their
efforts to keep the people from voting on the marriage protection amendment, stated
Senate Republican Leader James Williamson, R-Tulsa. All we wanted all along was
for the Democrat leadership to allow an up or down vote on this issue, and to allow
the Senate to work its will.
This is a tremendous victory for the people of Oklahoma and for those of us here
at the state Capitol who fight for pro-family issues, Williamson said.
Todays vote was allowed as the result of an agreement on Tuesday between the
Senate Democrat leadership and the Senate Republicans to end a filibuster by
Senator Bernest Cain, D-Oklahoma City, the Senates leading supporter of legalizing
homosexual marriage in Oklahoma.
...
Today, Williamson succeeded in attaching the marriage protection amendment to
House Bill 2259 . . ., sending it back to the House of Representatives for their
approval of the Senates amendment to the bill.
...
If HB 2259 becomes law, the people of Oklahoma will vote on the proposed
constitutional amendment on this falls general election ballot. The constitutional
amendment would define marriage as only between one man and one woman,
prohibit the recognition of same-sex marriages in other jurisdictions, and make it a
misdemeanor to issue a marriage license in violation of the amendments definition
of marriage.
Many other states from Ohio to Georgia have taken action to provide
constitutional protections to traditional marriage to combat efforts by liberals and
activist judges seeking to redefine marriage by allowing same-sex unions.
Senate Passes Marriage Protection Amendment, available at www.oksenate.gov/news/pressreleases/press_releases_2004/pr20040415.html (emphasis added).
The press releases reference to judicial efforts to redefine marriage by allowing same-sex
unions came shortly after two Massachusetts Supreme Court cases were issued, which held that the
Massachusetts Constitution required that state to allow same-sex marriage. See Goodridge v. Dept.
of Pub. Health, 798 N.E.2d 941, 968 (Mass. Dec. 20, 2003) (holding that practice of denying
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marriage licenses to same-sex couples violated same-sex couples equal protection rights under
Massachusetts Constitution); In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 572
(Mass. Feb. 3, 2004) (providing opinion, in response to question from Massachusetts Senate, that
a bill prohibiting same-sex couples from marrying, but allowing same-sex couples to enter civil
unions, would also violate the Massachusetts Constitution). On February 6, 2004, three days after
the second ruling by the Massachusetts Supreme Court, Tulsa and Oklahoma City newspapers both
reported that State Senator James Williamson, author of the Marriage Protection Amendment, made
public statements regarding the need for a constitutional amendment in order to prevent a similar
ruling in Oklahoma. See Marie Price, Republican Legislators Wary of Same-Sex Ruling, Tulsa
World, Feb. 6, 2004 (Legislative Republicans said Thursday that this weeks Massachusetts
Supreme Court ruling outlining constitutional protection for same-sex marriages puts Oklahoma in
jeopardy of a similar decision.) (quoting Mr. Williamson as stating that [Governor Brad Henrys]
reluctance to protect traditional marriage could put Oklahoma at risk that a court will force same-sex
unions on us here);31 Ryan McNeil, Party Leaders Trade Barbs on Marriage, The Oklahoman,
31
The Bishop couple presented several newspaper articles in support of their Statement
of Facts 13-15. (See Ex. 5 to Pls. Mot. for Summ. J.) Smith does not dispute the factual
accuracy of the reporting in these articles but argues that they may not be considered because
they are: (1) irrelevant, and (2) inadmissible hearsay. The Court rejects both arguments.
First, the articles are relevant to both steps of the analysis whether the law was passed,
at least in part, for the purpose of intentional discrimination and whether such discrimination is
justified. See Vigil, 666 F.3d at 685 (setting forth two-step test); see generally Windsor, 133 S.
Ct. at 2693 (discussing statements made by legislators supporting DOMAs passage as relevant
to question of laws purpose). Although the Court is addressing a constitutional amendment
enacted by a vote of the people, public statements made by the drafting and championing
legislators before the laws passage are certainly relevant evidence.
Second, the articles do not pose hearsay problems because the Court is not relying upon
the articles, or quotations therein, for their truth. The Court is relying upon the articles to
demonstrate what information was in the public domain at the time SQ 711 passed. Whether the
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Feb. 6, 2004 (similarly reporting on Mr. Williamsons public comments regarding activist judges
who seek to overturn Oklahomas definition of marriage). Similar public comments regarding the
need to protect marriage from same-sex couples were made closer in time to the laws passage. In
a public debate held at the Tulsa Press Club between Mr. Williamson and Mark Bonney in October
2004, Mr. Williamson stated that [i]t is one thing to tolerate the homosexual lifestyle and another
to legitimize it through marriage. Brian Barber, Ban on Gay Marriage Debated, Tulsa World,
(Oct. 13, 2004) (quoting Mr. Williamson).
Exclusion of the defined class was not a hidden or ulterior motive; it was consistently
communicated to Oklahoma citizens as a justification for SQ 711. This is simply not a case where
articles or quotations are accurate is of no moment; what matters is that these justifications were
offered to the voting public. See Benak ex rel. Alliance Premier Growth Fund v. Alliance
Capital Mgmt. L.P., 435 F.3d 396, 401 n.15 (3d Cir. 2006) (relying on articles for purposes of
determining what was in the public realm, not whether the contents were in fact true); Florida
Right to Life, Inc. v. Mortham, No. 98770CIVORL19A, 1998 WL 1735137, at *6 (M.D. Fla.
Sept. 30, 1998) (finding news articles non-hearsay) ([T]he Court will consider the effect of the
newspaper articles in creating a perception by the public of corruption occurring in Florida,
which perception depends on the fact that members of the public have read the articles rather
than the truth of the matters contained therein.). One important source of public knowledge and
opinion are news articles conveying statements by the legislators who originated, drafted, and
promoted SQ 711.
Alternatively, the Court finds that all news articles and quotations therein qualify
for the residual exception to the hearsay rule because: (1) the articles and quotations have
circumstantial guarantees of trustworthiness namely, that they were made publically to large
groups, were consistently reported in Oklahoma newspapers, and are, in some ways, akin to
statements against interest; (2) the articles and quotations are relevant to ascertaining the
purposes and justifications for the law; (3) based on the lack of legislative history for a state
question, the articles and quotations are more probative than other evidence that can be obtained
through reasonable efforts; and (4) admitting the news articles, rather than requiring other forms
of evidence, serves the interest of justice. See Fed. R. Evid. 807(1)-(4); cf. New England Mut.
Life Ins. Co. v. Anderson, 888 F.2d 646, 650 (10th Cir. 1989) (finding that trial court properly
excluded news article reporting statements made by widow to one reporter that she conspired to
kill insured, where issue was fraudulent procurement of the insurance policy). Further, Smith
does not dispute or attempt to dispute their factual veracity in any manner; Smith just asks the
Court to disregard them. That does not serve the interest of justice in this case.
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exclusion of same-sex couples was a mere unintended consequence of the law. Cf. Vigil, 666 F.3d
at 686-87 (holding that any discriminatory impact on a certain class of persons by an extortionist
state action was an unintended consequence flowing from the ultimate goal of enriching the
extortioner). Instead, this is a classic, class-based equal protection case in which a line was
purposefully drawn between two groups of Oklahoma citizens same-sex couples desiring an
Oklahoma marriage license and opposite-sex couples desiring an Oklahoma marriage license.32
2.
Is This Intentional Discrimination Justified?
Not all intentional discrimination by a state against a class of citizens violates equal
protection principles. See Vigil, 666 F.3d at 686 (The law . . . may take cognizance of meaningful
distinctions between individuals without violating the constitutional command of treating similarly
situated persons equally.). In determining whether distinctions between individuals are
meaningful, the degree of judicial scrutiny varies. Id. If the discrimination is against a suspect
class or quasi-suspect class, it comes to courts under grave suspicions and subject to heightened
review because experience teaches that classifications against these groups is so rarely defensible
on any ground other than a wish to harm and subjugate. Id. at 687. Laws selectively burdening
32
In some equal protection cases, the intentional discrimination imposed by the law is so
unusual in its character that improper purpose and motive are readily apparent, and there is no
need to determine whether the intentional discrimination is justified. See, e.g., Windsor, 133 S.
Ct. at 2693; Romer, 517 U.S. at 635. Because Windsor involved an unusual federal intrusion
into state domestic law (not at issue here) and Romer involved an unusual, total removal of any
equal protection of the law (not at issue here), the Court proceeds to conduct a more traditional
equal protection analysis by determining the proper level of scrutiny and then considering all
conceivable justifications for Part A. See generally Kitchen, 2013 WL 6697874, at *22
(discussing lack of guidance for determining whether a law imposes discrimination of an
unusual character and applying well-settled rational basis test to Utahs same-sex marriage
prohibition).
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fundamental rights are also carefully scrutinized.33 Laws discriminating against all other groups
33
The Court does not reach the question of whether Part A selectively burdens the
Bishop couples asserted fundamental right to marry a person of their choice. (See Pls. Reply
in Support of Pls. Mot. for Summ. J. 14.) Such a holding would be broader than whether Part A
intentionally discriminates against a defined class of Oklahoma citizens, and it would possibly
affect other Oklahoma laws burdening the right to marry a person of [ones] choice. See supra
Part VI(C) (setting forth age, number, and other eligibility requirements under Oklahoma law).
If Part A does burden a fundamental right, it certainly would not withstand any degree of
heightened scrutiny. See supra Part VI(D)(2)(d).
Based upon its research on this topic, the Court offers two observations. First, whether or
not the right in question is deemed fundamental turns in large part upon how the right is defined.
If the right is defined as the right to marry, plaintiffs have thus far been more likely to win the
argument. See, e.g., Kitchen, 2013 WL 6697874, at *15 (holding that the plaintiffs do not seek
a new right to same-sex marriage and that the right to marry has already been established as a
fundamental right); Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 994-95 (N.D. Cal. 2010)
(Because plaintiffs seek to exercise their fundamental right to marry, their claim is subject to
strict scrutiny.); Goodridge, 798 N.E. 2d at 959-61 (Mass. 2003) (stating in dicta that
[w]hether and whom to marry . . . [is] among the most basic of every individuals liberty and
due process rights but then failing to decide whether the case merited strict scrutiny because the
law did not pass rational basis review); Golinski v. U.S. Office of Personnel Mgmt., 824 F. Supp.
2d 968, 983 (N.D. Cal. 2012) (stating in dicta that the right burdened by Section 3 of DOMA
was the fundamental right to marry, which had never been limited based upon the status of the
desired spouse). If defined as the right to marry a person of the same sex, plaintiffs have thus
far been more likely to lose the argument. See, e.g., Jackson, 884 F. Supp. 2d at 1096 (defining
right burdened as an asserted new right to same-sex marriage and holding that such right was
not deeply rooted in the nations tradition) (collecting cases); Lewis v. Harris, 188 N.J. 415, 441
(2006) (defining right burdened as the right to same-sex marriage and holding that [d]espite
the rich diversity of this State . . . and the many recent advances made by gays and lesbians . . .,
we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and
conscience of the people of this State that it ranks as a fundamental right under the New Jersey
Constitution).
Second, language in Windsor indicates that same-sex marriage may be a new right,
rather than one subsumed within the Courts prior right to marry cases.
It seems fair to conclude that, until recent years, many citizens had not even
considered the possibility that two persons of the same sex might aspire to occupy
the same status and dignity as that of a man and woman in lawful marriage. For
marriage between a man and a woman no doubt had been thought of by most
people as essential to the very definition of that term and to its role and function
throughout the history of civilization. . . . The limitation of lawful marriage to
heterosexual couples, which for centuries had been deemed both necessary and
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of citizens are reviewed to see if the distinctions they draw between persons are at least rational
because there is less reason from historical perspective to suspect a meaningless classification.
Id.
a.
Level of Scrutiny
The Bishop couple argues that Part A is subject to heightened scrutiny because it constitutes
gender discrimination. As explained above, the Courts defined class is same-sex couples desiring
an Oklahoma marriage license. This class of individuals is excluded from marriage regardless of
their gender, i.e., regardless of whether they are two men or two women. Part A does not draw any
distinctions between same-sex male couples and same-sex female couples, does not place any
disproportionate burdens on men and women, and does not draw upon stereotypes applicable only
to male or female couples. The female couples in this case could readily be substituted for male
couples, and the male couples would be forced to make precisely the same sex discrimination
arguments. Common sense dictates that the intentional discrimination occurring in this case has
nothing to do with gender-based prejudice or stereotypes, and the law cannot be subject to
heightened scrutiny on that basis. See Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1005 (D. Nev. 2012)
(holding that Nevadas prohibition of same-sex marriage was not directed toward persons of any
particular gender and did not affect people of any particular gender disproportionately such that
a gender-based animus [could] reasonably be perceived); Jackson, 884 F. Supp. 2d at 1099 (The
Court thus agrees with the vast majority of courts considering the issue that an opposite-sex
definition of marriage does not constitute gender discrimination.) (citing cases). But see Kitchen,
fundamental, came to be seen in New York and certain other States as an unjust
exclusion.
Windsor, 133 S. Ct. at 2689 (emphases added).
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2013 WL 6697874, at *20 (finding that Utahs marriage definition constituted sex discrimination
and sexual orientation discrimination); Perry, 704 F. Supp. 2d at 996 (Sexual orientation
discrimination can take the form of sex discrimination.); Golinski, 824 F. Supp. 2d at 982 n.4 (Ms.
Golinski is prohibited from marrying . . . a woman because [she] is a woman. . . . Thus, DOMA
operates to restrict Ms. Golinskis access to federal benefits because of her sex.).
Instead of gender-based discrimination, the intentional discrimination occurring against
same-sex couples as a result of Part A is best described as sexual-orientation discrimination. The
conduct targeted by Part A same-sex marriage is so closely correlated with being homosexual
that sexual orientation provides the best descriptor for the class-based distinction being drawn. See
Lawrence, 539 U.S. at 583 (OConnor, J., concurring) (explaining that conduct targeted by Texas
law criminalizing sodomy was so closely correlated with being homosexual that it amounted to
a class-based distinction); Sandoval, 911 F. Supp. 2d at 1005 (concluding that Nevada law
prohibiting same-sex marriage was sexual-orientation based); Varnum v. Brien, 763 N.W.2d 862,
885 (Iowa 2009) (The benefit denied by the marriage statute the status of civil marriage for
same-sex couples is so closely correlated with being homosexual as to make it apparent the law
is targeted at gay and lesbian people as a class.). In this case, the Bishop couple self-identifies as
a homosexual couple and desires to marry each other due to their sexual orientation. (See Bishop
Couple Aff. 14, Ex. 1 to Pls. Mot. for Summ. J. (explaining that they deeply desire to marry the
person [they] love and the companion [they] have chosen, which is driven by their sexual
orientation as lesbian).)34 Classifications against homosexuals and/or classifications based on a
34
Smith does not dispute that sexual orientation is the best descriptor for the
classification. Smith argues only that: (1) the Court should reject any attempt to bootstrap a
sex discrimination claim to what is actually a sexual orientation discrimination claim, and (2)
sexual orientation discrimination is subject to rationality review. (See Smiths Cross Mot. for
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persons sexual orientation are not subject to any form of heightened review in the Tenth Circuit.
See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113-14 (10th Cir. 2008) (A government official
can, therefore, distinguish between its citizens on the basis of sexual orientation, if that classification
bears a rational relation to some legitimate end.) (citation omitted) (holding that county sheriffs
refusal to enforce a lesbians protective order against her same-sex partner did not implicate any
protected class that would warrant heightened scrutiny); see also id. n.9 (noting cases rejecting the
notion that homosexuality is a suspect classification); Kitchen, 2013 WL 6697874, at *21 (finding
Price-Cornelison controlling as to this question in the Tenth Circuit). Therefore, Part A is not
subject to any form of heightened scrutiny based upon the Bishop couples membership in a suspect
class.
b.
Rationality Standard
Because it disadvantages a non-suspect class, Part A does not come to this Court under
heightened suspicion.35 It comes to the Court on the same footing, for example, as laws intentionally
discriminating against the disabled or the elderly. Part A must be reviewed merely for rationality,
which requires the Court to uphold Part A if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification that it draws between citizens. Copelin-Brown
v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005) (applying rational basis review
to legislation discriminating against non-suspect class of disabled persons); see also PriceCornelison, 524 F.3d at 1114 (inquiring whether classification based on the plaintiffs status as a
Summ. J. 19-25.)
35
This distinguishes this case from Loving, in which the Supreme Court analyzed
Virginias miscegenation law under the most rigid scrutiny applicable to racial classifications.
See Loving, 388 U.S. at 11.
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homosexual bore a rational relation to some legitimate end). In conducting its review, the Court
must not only consider the actual purpose of the law but also whether there are any other
justifications that could conceivably provide a rational reason for its passage. See Schanzenbach
v. Town of Opal, Wyo., 706 F.3d 1269, 1276 (10th Cir. 2013) (explaining that a proferred
justification for a law need not have actually motivated the legislature). Further, there need not be
a perfect fit between purpose and achievement for a law to pass constitutional muster. Id. There
is no difference in the rationality standard where the law in question is a state constitutional
amendment enacted by a vote of citizens. See Romer, 517 U.S. at 631 (concluding that Colorado
constitutional amendment did not bear a rational relation to a legitimate end).
The Courts ultimate task, even under rationality review, is to determine whether there is
some ground of difference having a fair and substantial relation to at least one of the stated purposes
justifying the different treatment between the included class and the excluded class. Johnson v.
Robison, 415 U.S. 361, 376 (1974); see also Vigil, 666 F.3d at 686 (In any case, though, and
whatever the applicable standard of review, the aim is always to ensure that, while persons in
dissimilar situations may be treated differently, the law treats like alike.). A state may not rely
on a classification whose relationship to an asserted goal is so attenuated as to render the distinction
arbitrary or irrational. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447 (1985).
By requiring that the classification bear a rational relationship to an independent and legitimate
legislative end, [a court] ensure[s] that classifications are not drawn for the purpose of
disadvantaging the group burdened by the law. Romer, 517 U.S. at 634-35.
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c.
Promoting Morality
The Court turns now to the conceivable justifications for Part As preclusion of same-sex
couples from receiving an Oklahoma marriage license. Although not advanced in this litigation as
a justification, the Bishop couple has shown, as a matter of law, that promoting or upholding
morality was at least one justification offered to the public prior to passage of the law.36 Just like
federal legislators who stated their purpose as defending the morality of marriage, see Windsor,
133 S. Ct. at 2693, Oklahoma legislators promoted Part A as upholding one specific moral view of
marriage. In February 2004, prior to HB 2259s passage, House Minority Floor Leader Todd Hiett
stated that [t]o recognize something other than what God has ordained as traditional marriage
obviously detracts or deteriorates the importance of the traditional marriage. Marie Price,
Republican Legislators Wary of Same-Sex Ruling, Tulsa World, Feb. 6, 2004 (quoting Mr. Hiett).
State Representative Bill Graves said, This is a Bible Belt state . . . . Most people dont want that
sort of thing here. . . . Gay people might call it discrimination, but I call it upholding morality.
David Harper, Focus: Gay Marriage Clamor Grows Louder and Louder, Tulsa World, Mar. 22,
2004 (quoting Mr. Graves). On April 15, 2004, the date HB 2259 passed the Senate, Mr.
Williamson stated that Oklahoma should not legitimize that lifestyle by saying, Yes, two
homosexuals can be just as married as two heterosexuals. Thats not right. John Greiner,
Marriage Vote Gets Backing of Senate, The Oklahoman, Apr. 16, 2004, at 5A (quoting Mr.
Williamson). On or around May 11, 2004, commenting on an advertisement paid for by Cimarron
Equality Oklahoma against SQ 711, Mr. Williamson stated that there is a real hunger for a return
36
This is a different question than the threshold question of whether the Bishop couple
has shown intentional discrimination between groups, see supra Part VI(D)(1), although the
analyses overlap somewhat in this case.
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to traditional values and for leaders who will draw a line in the sand to help stop the moral decay
of this country. Judy Gibbs Robinson, Group Fights Marriage Plan With Print Ad, The
Oklahoman, May 11, 2004, 1A (quoting Mr. Williamson).
In August of 2004, approximately two months before the public vote, over forty Tulsa-area
churches organized a pro-marriage rally, during which Mr. Williamson promoted passage of SQ
711 and discussed Biblical prohibitions of homosexual acts. Robert Evatt, Local Pro-Marriage
Rally Takes Aim at Same-Sex Unions, Tulsa World, Aug. 25, 2004 (As Christians, we are called
to love homosexuals, Williamson said. But I hope everyone at this rally knows the Scriptures
prohibit homosexual acts.). At this same rally, Tulsa Mayor Bill LaFortune stated: If you
believe in Christ, if you believe in this country, and if you believe in this city, you believe that
marriage is a covenant between God, a man, and a woman. Id. (quoting Mr. LaFortune). An
editorial that ran in The Oklahoman on October 17, 2004 urged Oklahomans to pass SQ 711 because
the idea that marriage is between a man and a woman is consistent with the citizenrys morals and
beliefs. Defining Marriage, The Oklahoman, Oct. 17, 2004, at 22A. The Bishop couple has
shown, as a matter of law, that moral disapproval of same-sex marriage existed in the public
domain as at least one justification for voting in favor of SQ 711.
The Court recognizes that moral disapproval often stems from deeply held religious
convictions. See Lawrence, 539 U.S. at 571 (explaining that moral disapproval of homosexual
conduct was shaped by religious beliefs, conceptions of right and acceptable behavior, and respect
for the traditional family). However, moral disapproval of homosexuals as a class, or same-sex
marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577
([T]he fact that the governing majority in a State has traditionally viewed a particular practice as
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immoral is not a sufficient reason for upholding a law prohibiting the practice.) (quoting and
adopting Justice Stevens dissent in Bowers v. Hardwick, 478 U.S. 186, 216 (1986)) (concluding that
the majority may [not] use the power of the State to enforce [moral] views [disapproving of
homosexual conduct] on the whole society through operation of the criminal law); id. at 582-83
(OConnor, J., concurring) (explaining that moral disapproval, without any other asserted state
interest, is not a sufficient rationale . . . to justify a law that discriminates among groups of
persons); Mass. v. United States Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012)
(Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis.
Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this
basis.) (internal citations omitted).37 Preclusion of moral disapproval as a permissible basis for
laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage
advocates, and it forces states to demonstrate that their laws rationally further goals other than
promotion of one moral view of marriage. Therefore, although Part A rationally promotes the
States interest in upholding one particular moral definition of marriage, this is not a permissible
justification.
d.
Other Justifications
The Court must also consider whether Part A rationally relates to the state interests now
being offered by Smith in this litigation.38
Smith asserts four justifications for Part As
37
Justice Scalia has repeatedly expressed his disagreement with this conclusion. See
Windsor, 133 S. Ct. at 2707 (Scalia, J., dissenting) (As I have observed before, the Constitution
does not forbid the government to enforce traditional moral and sexual norms. . . .). However,
these are dissenting opinions.
38
At the time of her concurrence in Lawrence, Justice OConnor believed that reasons
exist, other than moral disapproval, for prohibiting same-sex marriage:
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discrimination against same-sex couples: (1) encouraging responsible procreation and child-rearing;
(2) steering naturally procreative relationships into stable unions; (3) promoting the ideal that
children be raised by both a mother and a father in a stable family unit; and (4) avoiding a
redefinition of marriage that would necessarily change the institution and could have serious
unintended consequences.
(Smiths Cross. Mot. for Summ. J. 38.)
In support of these
justifications, Smith has provided twenty-five exhibits consisting primarily of articles and scholarly
writings on marriage, child-rearing, and homosexuality, ranging in date from the early twentieth
century to 2008, all of which this Court has carefully reviewed.
i.
Encouraging Responsible Procreation/Steering Naturally

Procreative Couples to Marriage39
Smith argues that through the institution of marriage, societies seek to increase the
likelihood that children will be born and raised in stable and enduring family units by both the
mothers and fathers who brought them into this world. (Smiths Resp. to Pls. Mot. for Summ. J.
27-28.) For purposes of its analysis, the Court accepts that Oklahoma has a legitimate interest in
encouraging responsible procreation, (i.e., procreation within marriage), and in steering naturally
procreative relationships into marriage, in order to reduce the number of children born out of
wedlock and reduce economic burdens on the State.
Texas cannot assert any legitimate state interest here, such as national security or
preserving the traditional institution of marriage. Unlike the moral disapproval of
same-sex relations the asserted state interest in this case other reasons exist to
promote the institution of marriage beyond mere moral disapproval of an
excluded group.
Lawrence, 539 U.S. at 585 (OConnor, J. concurring). However, she did not explain or list what
these other reasons may be, and the Court has found none present in this case.
39
Due to their similarity, the Court addresses the first and second justifications together.
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However, Part A is not rationally related to these state interests for four reasons. First, the
wealth of scholarly articles in this section of Smiths brief, which range from William Blackstone
to John Locke, simply demonstrate that state-recognized marriages developed in part as a means of
encouraging and incentivizing procreation within marriage. See, e.g., John Locke, The Second
Treatise on Civil Government, On Politics and Education, at 113-14 (1947) (For the end of
conjugation between male and female, being not barely procreation, but the continuation of the
species, this conjugation betwixt male and female ought to last, even after procreation, so long as
is necessary to the nourishment and support of the young ones.). (Smiths Cross Mot. for Summ.
J. Ex. 5 to Ex. B.) These articles do not provide what is necessary in an equal protection case that
is, a link between the legal classification now being drawn by Part A against same-sex couples and
a historical state objective of encouraging procreation to occur within marriage. Traditional
exclusion of the disadvantaged group from state-sanctioned marriage does not itself evidence a
rational link to the identified goal of promoting responsible procreation within marriage. See Heller
v. Doe, 509 U.S. 312, 326 (1993) (Ancient lineage of a legal concept does not give it immunity
from attack for lacking rational basis.); Williams v. Illinois, 399 U.S. 235, 239 (1970) (Neither the
antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the
centuries insulates it from constitutional attack.); Loving v. Virginia, 388 U.S. 1, 11-12 (1967)
(striking down Virginias miscegenation statute as violation of equal protection despite states
historical practice of prohibiting interracial marriage).
During oral arguments in Hollingsworth, Justice Scalia asked Mr. Theodore Olson, counsel
for the proponents of Proposition 8, when it became unconstitutional to exclude homosexual
couples from marriage. Tr. of Oral Argument 37-38 (March 26, 2013), Hollingsworth v. Perry, 133
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S. Ct. 2652 (2013). Mr. Olson responded with the rhetorical question of when did it become
unconstitutional to prohibit interracial marriage or assign children to separate schools. Id. at
38. As demonstrated by Mr. Olsons response, the mere fact that an exclusion has occurred in the
past (without constitutional problem) does not mean that such exclusion is constitutional when
challenged at a particular moment in history. This Court has an obligation to consider whether an
exclusion, although historical, violates the constitutional rights of Oklahoma citizens.
Second, there is no rational link between excluding same-sex couples from marriage and the
goals of encouraging responsible procreation among the naturally procreative and/or steering
the naturally procreative toward marriage. Civil marriage in Oklahoma does not have any
procreative prerequisites. See supra Part VI(C); see also Gill, 699 F. Supp. 2d at 389 ([T]he ability
to procreate is not now, nor has it ever been, a precondition to marriage in any state in the
country.). Permitting same-sex couples to receive a marriage license does not harm, erode, or
somehow water-down the procreative origins of the marriage institution, any more than marriages
of couples who cannot naturally procreate or do not ever wish to naturally procreate. Marriage
is incentivized for naturally procreative couples to precisely the same extent regardless of whether
same-sex couples (or other non-procreative couples) are included.40
Third, Part As failure to impose the classification on other similarly situated groups (here,
other non-procreative couples) can be probative of a lack of a rational basis. See City of Cleburne,
473 U.S. at 448 (finding that requiring special use permit for mentally handicapped occupants of a
40
If Smiths unarticulated but underlying argument is that opposite-sex couples are more
likely to forego marriage because permitting same-sex couples erodes spiritual and religious
aspects of marriage, this devolves again to legislation driven by moral disapproval and not
legitimate state interests.
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home, but not for other potential occupants, was probative of a lack of rationality); Bd. of Trustees
of Univ. of Ala. v. Garrett, 531 U.S. 356, 366 (2001) (explaining Cleburne as reasoning that the
citys purported justifications for the ordinance made no sense in light of how the city treated other
groups similarly situated in relevant respects). As in Cleburne, the purported justification simply
makes no sense in light of how Oklahoma treats other non-procreative couples desiring to marry.
See Varnum v. Brien, 763 N.W.2d 862, 884 (Iowa 2009) (applying Iowa Constitution) (concluding
that same-sex couples were, for purposes of states interest in regulating marriage, similarly situated
to opposite-sex couples despite their inability to naturally procreate); Goodridge, 798 N.E.2d at
962 (applying Massachusetts Constitution) (The marriage is procreation argument singles out the
one unbridgeable difference between same-sex and opposite-sex couples, and transforms that
difference into the essence of legal marriage.). This asserted justification also makes no sense
because a same-sex couples inability to naturally procreate is not a biological distinction of
critical importance, in relation to the articulated goal of avoiding children being born out of
wedlock. The reality is that same-sex couples, while not able to naturally procreate, can and do
have children by other means. As of the 2010 United States Census, there were 1,280 same-sex
households in Oklahoma who reported as having their own children under 18 years of age
residing in their household. United States Census 2010 and 2010 American Community Survey,
Same-Sex Unmarried Partner or Spouse Households by Sex of Householder by Presence of Own
Children, available at http://www.census.gov/hhes/samesex/files/supp-table-AFF.xls. If a same-sex
couple is capable of having a child with or without a marriage relationship, and the articulated state
goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders
rather than promotes that goal.
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Finally, the Court rejects Smiths lack of interest argument. Perhaps recognizing that
excluding same-sex couples does not promote the asserted justifications in any rational manner,
Smith argues that it is rational to exclude same-sex couples from marriage simply because the State
has no real interest in them:
Even though some same-sex couples do raise children, they cannot create them in the
same way opposite-sex couples do as the often unintended result of casual sexual
behavior. As a result, same-sex relationships simply do not pose the same risk of
irresponsible procreation that opposite-sex relationships do. . . . Sexual relationships
between individuals of the same sex neither advance nor threaten societys interest
in responsible procreation in the same manner, or to the same degree, that sexual
relationships between men and women do.
(Smiths Cross Mot. for Summ. J. 34.) This lack of interest argument is ironic, given the history
surrounding Part As passage. See supra Part VI(D)(1). Nonetheless, the Court has considered
whether it applies to this case.
In Johnson v. Robison, 415 U.S. 361, 383 (1974), the Supreme Court stated that when
inclusion of one group promotes a legitimate governmental purpose, and the addition of other
groups would not, we cannot say that the statutes classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.
In Johnson, the Court held that exclusion of
conscientious objectors from veterans educational benefits was rational, in part, because the
benefits would not incentivize service for that class. See id. at 382-83. The classification here is
readily distinguishable. Assuming a state can rationally exclude citizens from marital benefits due
to those citizens inability to naturally procreate, the states exclusion of only same-sex couples
in this case is so grossly underinclusive that it is irrational and arbitrary. In Johnson, the carrot
of educational benefits could never actually incentivize military service for the excluded group due
to their religious beliefs. In contrast here, the carrot of marriage is equally attractive to procreative
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and non-procreative couples, is extended to most non-procreative couples, but is withheld from just
one type of non-procreative couple. Same-sex couples are being subjected to a naturally
procreative requirement to which no other Oklahoma citizens are subjected, including the infertile,
the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and
this well exceeds it.
ii.
Promoting the Optimal Child-Rearing Environment
Smith also argues that excluding same-sex couples is rationally related to the goal of
promoting the ideal family unit. Smith defines this ideal in several different ways throughout
the brief, including: (1) a family headed by two biological parents in a low-conflict marriage
because benefits flow in substantial part from the biological connection shared by a child with both
mother and father, (Smiths Cross Mot. for Summ J. 35 (quoting Kristin Anderson Moore,
Marriage from a Childs Perspective: How Does Family Structure Affect Children, and What Can
We Do About It?, Child Trends Research Brief (June 2002), Ex. 19 to Ex. B)); (2) a family unit
where children are being raised by both a mother and a father in a stable family unit; (id.); and (3)
a family unit with gender-differentiated parenting because the contribution of fathers to childrearing is unique and irreplaceable; (id. 36 (quoting David Popenoe, Life Without Father, at 146
(1996), Ex. 23 to Ex. B)).
The Court assumes, for purposes of this motion for summary judgment only, that (1) the
ideal environment for children must include opposite-sex, married, biological parents, and (2) that
promoting this ideal is a legitimate state interest.41 Again, however, the question remains whether
41
The Court suspects that many adoptive parents would challenge this defined ideal,
and that many non-ideal families would question this paternalistic state goal of steering their
private choices into one particular model of child-rearing. The Court also notes that same-sex
couples are physically capable of satisfying many of the descriptors of the ideal environment
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exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex
couples for different treatment due to moral disapproval of a same-sex household with children.
Smith has not articulated, and the Court cannot discern, a single way that excluding same-sex
couples from marriage will promote this ideal child-rearing environment. Exclusion from
marriage does not make it more likely that a same-sex couple desiring children, or already raising
children together, will change course and marry an opposite-sex partner (thereby providing the
ideal child-rearing environment). See Mass. v. Dept. of Health and Human Svcs., 682 F.3d 1, 1415 (1st Cir. 2012) (addressing Section 3 of DOMA) (Certainly, the denial [of marital benefits] will
not affect the gender choices of those seeking marriage.).42 It is more likely that any potential or
existing child will be raised by the same-sex couple without any state-provided marital benefits and
without being able to understand the integrity and closeness of their own family and its concord
with other families in their community. Windsor, 133 S. Ct. at 2694 (explaining that DOMA
humiliate[d] thousands of children now being raised by same-sex couples and brought financial
harm to children of same-sex couples); see also Gill, 699 F. Supp. 2d at 389 (concluding that
Section 3 of DOMA did not nothing to help children of opposite-sex parents but prevented children
of same-sex couples from enjoying advantages flowing from a stable family structure); Goodridge,
explained in Smiths cited literature namely, a stable, low-conflict, non-violent, loving, and
nurturing environment.
42
The Bishop couple denies that their exclusion from marriage makes it more likely they
would marry a member of the opposite sex. (See Bishop Couple Aff. 14 (explaining that
marrying someone of the opposite sex would, in their opinion, be emotionally unhealthy and
mentally damaging and that, more importantly, they have already identified the companion
[they] have chosen to marry and established a long-standing relationship with them), Ex. 1 to
Pls. Mot. for Summ. J.)
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798 N.E.2d at 335 (employing same reasoning in conducting rationality review of state policy
prohibiting same-sex marriages).
In addition, Smith has not explained, and the Court cannot discern from any of Smiths cited
materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex
marriages will stay in tact (thereby remaining optimal child-rearing environments). Excluding
same-sex couples from marriage has done little to keep Oklahoma families together thus far, as
Oklahoma consistently has one of the highest divorce rates in the country. See Table 133, Marriages
and Divorces Number and Rate by State: 1990-2009, available at www.census.gov/compendia/
statab/2012/tables/12s0133.pdf (showing Oklahoma as ranking sixth in 2009 for divorce rates). The
Court concludes that denial of same-sex couples from marriage does nothing to promote stability
in heterosexual parenting. See Gill, 699 F. Supp. 2d at 389 (analyzing rationality of Section 3 of
DOMA).
After presenting the empirical support espousing the benefits of this ideal family unit,
Smith offers a one-sentence, conclusory statement that is supposed to provide the link between the
empirical data and the exclusion: It is rational, then, for Oklahoma to give special recognition to
relationships that are designed to provide children the optimal environment of both a mother and a
father. (Smiths Cross Mot. for Summ. 38.) Whether they are designed to or not, common sense
dictates that many opposite-sex couples never actually do provide this optimal child-rearing
environment, due to drug use, abuse, or, more commonly, divorce. As with natural procreative
abilities, Smith does not condition any other couples receipt of a marriage license on their
willingness or ability to provide an optimal child-rearing environment for any potential or existing
children. While there need not be a good fit between the exclusion of same-sex couples from
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marriage and the promotion of this ideal family unit, there does need to be some reason for
excluding the class. Such a reason is lacking here.
iii.
Negative Impact on Marriage
Smiths final argument is that it is rational for Oklahoma voters to believe that
fundamentally redefining marriage could have a severe and negative impact on the institution as a
whole. (Smiths Cross Mot. for Summ. J. 38.) This argument is best summarized in an article
entitled Marriage and the Public Good: Ten Principles. (Witherspoon Institute, Marriage and the
Public Good: Ten Principles (2008), Smiths Cross Mot. for Summ. J., Ex. 28 to Ex. B.) After
discussing the plethora of benefits that marriage offers adults and children, the article then explains
how same-sex marriage is one of four threats to the institution (along with divorce, illegitimacy,
and cohabitation):
[T]here remain even deeper concerns about the institutional consequences of samesex marriage for marriage itself. Same-sex marriage would further undercut the idea
that procreation is intrinsically connected to marriage. It would undermine the idea
that children need both a mother and a father, further weakening the societal norm
that men should take responsibility for the children they beget. Finally, same-sex
marriage would likely corrode marital norms of sexual fidelity, since gay marriage
advocates and gay couples tend to downplay the importance of sexual fidelity in their
definition of marriage.
(Id. at 18-19.) See also, e.g., Sandoval, 911 F. Supp. 2d at 1015-16 (finding Nevadas same-sex
marriage bans to pass rationality review because extending marriage to same-sex couples could
conceivably lead to an increased percentage of out-of-wedlock children, single-parent families,
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difficulties in property disputes . . ., or other unforeseen consequences);43 Jackson, 884 F. Supp.

2d at 1112-15 (same).44
The negative impact argument is impermissibly tied to moral disapproval of same-sex
couples as a class of Oklahoma citizens. All of these perceived threats are to one view of the
marriage institution a view that is bound up in procreation, one morally ideal parenting model,
and sexual fidelity. However, civil marriage in Oklahoma is not an institution with moral
requirements for any other group of citizens. See supra Part VI(C). Smith does not ask a couple if
they intend to be faithful to one another, if they intend to procreate, or if they would someday
consider divorce, thereby potentially leaving their child to be raised in a single-parent home. With
respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex
couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one
class of citizens from receiving a marriage license based upon the perceived threat they pose to
the marital institution is, at bottom, an arbitrary exclusion based upon the majoritys disapproval of
the defined class. It is also insulting to same-sex couples, who are human beings capable of forming
loving, committed, enduring relationships. Preserving the traditional institution of marriage,
which is the gist of Smiths final asserted justification, is just a kinder way of describing the States
moral disapproval of same-sex couples. Lawrence, 539 U.S. at 602 (Scalia, J., dissenting).
43
The Sandoval court reasoned in part that civil marriage is at least partially a public
activity, and preventing abuse of an institution the law protects is a valid state interest.
Sandoval, 911 F. Supp. 2d at 1014. As demonstrated above, same-sex couples do not possess
any characteristic indicating they can or will abuse the institution of marriage any more or any
differently than other included groups.
44
Both Jackson and Sandoval were decided before Windsor.

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Having considered all four proferred justifications for Part A, the Court concludes that
exclusion of same-sex couples is so attenuated from any of these goals that the exclusion cannot
survive rational-basis review. See City of Cleburne, 473 U.S. at 447 (explaining that a state may
not rely on a classification whose relationship to an asserted goal is so attenuated as to render the
distinction arbitrary or irrational); Vigil, 666 F.3d at 685 (equal protection review seeks to ensure
that those who appear similarly situated are not treated differently without, at the very least, a
rational reason for the difference); Price-Cornelison, 524 F.3d at 1114 ([W]e cannot discern on
this record, a rational reason to provide less protection to lesbian victims of domestic violence than
to heterosexual domestic violence victims.).
E.
Equal Protection Conclusion
The Supreme Court has not expressly reached the issue of whether state laws prohibiting
same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states
from passing laws that are born of animosity against homosexuals, extends constitutional protection
to the moral and sexual choices of homosexuals, and prohibits the federal government from treating
opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what
has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in
Windsor in 2013, but this Court knows a rhetorical shift when it sees one.
Against this backdrop, the Courts task is to determine whether Part A of the Oklahoma
Constitutional Amendment deprives a class of Oklahoma citizens namely, same-sex couples
desiring an Oklahoma marriage license of equal protection of the law. Applying deferential
rationality review, the Court searched for a rational link between exclusion of this class from civil
marriage and promotion of a legitimate governmental objective. Finding none, the Courts
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rationality review reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma
citizens from a governmental benefit.
Equal protection is at the very heart of our legal system and central to our consent to be
governed. It is not a scarce commodity to be meted out begrudgingly or in short portions.
Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The
Bishop couple has been in a loving, committed relationships for many years. They own property
together, wish to retire together, wish to make medical decisions for one another, and wish to be
recognized as a married couple with all its attendant rights and responsibilities. Part A of the
Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible samesex couples, from this privilege without a legally sufficient justification.
VII.
Injunctive Relief and Rulings on Pending Motions

The Court declares that Part A of the Oklahoma Constitutional Amendment violates the
Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by precluding samesex couples from receiving an Oklahoma marriage license. The Court permanently enjoins
enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the
U.S. Supreme Courts issuance of a stay in a nearly identical case on appeal from the District Court
of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order
in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final
disposition of any appeal to the Tenth Circuit Court of Appeals.
Plaintiffs Motion for Summary Judgment (Doc. 197) is GRANTED as to Part A of the
Oklahoma Constitutional Amendment and otherwise DENIED. Defendant Sally Howe Smiths
Cross Motion for Summary Judgment (Doc. 216) is DENIED as to Part A of the Oklahoma
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Constitutional Amendment, and GRANTED as to Part B based on the Barton couples lack of
standing. The Barton couples challenge to Part B is dismissed for lack of standing.
The Barton couples Motion for Entry of Final Judgment (Doc. 257) is DENIED, and their
challenge to Section 3 of DOMA is dismissed based upon constitutional mootness. BLAGs motion
to withdraw as an intervening party (Doc. 263) is GRANTED, and BLAGs pending motion for
summary judgment (Doc. 214) is DENIED as moot. The Motion to Dismiss by United States of
America and Eric H. Holder, Jr., Attorney General (Doc. 211) is GRANTED, and the Barton
couples challenge to Section 2 of DOMA is dismissed for lack of standing.
IT IS SO ORDERED this 14th day of January, 2014.
____________________________________
TERENCE C. KERN
UNITED STATES DISTRICT JUDGE
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MARY BISHOP;
SHARON BALDWIN;
SUSAN G. BARTON; and
GAY E. PHILLIPS,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
ex rel. ERIC H. HOLDER, JR., in his
official capacity as Attorney General
of the United States of America; and
State of Oklahoma,
Defendants,
REPRESENTATIVES,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
JUDGMENT
Judgment is hereby entered in favor of Plaintiffs Mary Bishop and Sharon Baldwin and
against Sally Howe Smith with respect to these Plaintiffs challenge to Part A of the Oklahoma
Constitutional Amendment. The Courts declaratory and injunctive relief is set forth in the Opinion
and Order entered this date.
A judgment of dismissal is hereby entered in favor of Defendant Sally Howe Smith and
against Plaintiffs Susan Barton and Gay Phillips with respect to these Plaintiffs challenge to Part
B of the Oklahoma Constitutional Amendment.
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A judgment of dismissal is hereby entered in favor of Defendant United States of America

ex rel. Eric H. Holder, Jr., in his official capacity as Attorney General of the United States of
America, and against Plaintiffs Susan Barton and Gay Phillips with respect to these Plaintiffs
challenges to Sections 2 and 3 of DOMA.
This Judgment terminates the litigation.
SO ORDERED this 14th day of January, 2014.
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Document: 01019229819
Page: 1
Nos. 14-5003, 14-5006

TENTH CIRCUIT
MARY BISHOP, SHARON BALDWIN, SUSAN BARTON
and GAY PHILLIPS,
Plaintiffs/Appellees/Cross-Appellants,
vs.
SALLY HOWE SMITH, in her official capacity as
Court Clerk of Tulsa County, State of Oklahoma,
Defendant/Appellant/Cross-Appellee.
APPELLEES REPLY BRIEF
APPEAL FROM THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
THE HONORABLE TERENCE C. KERN
(405) 236-2343 Telephone
(405) 236-2349 Facsimile
Joseph T. Thai, OBA No. 19377

300 Timberdell Rd.
Norman, OK 73019
(405) 204-9579 Telephone
ORAL ARGUMENT REQUESTED

April 7, 2014
Exhibit 4

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TABLE OF CONTENTS
APPELLEES REPLY BRIEF ................................................................................. 1
CONCLUSION....................................................................................................... 16
CERTIFICATE OF COMPLIANCE ...................................................................... 18
CERTIFICATE OF DIGITAL SUBMISSION ...................................................... 19
CERTIFICATE OF SERVICE ............................................................................... 20
ii

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CASES
American Meat Institute v. Pridgeon,
724 F.2d 45 (6th Cir. 1984) .......................................................................... 15
Bishop v. Oklahoma ex rel. Edmondson,
333 Fed. Appx. 361 (10th Cir. 2009) .................................................. 7, 8, 10
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ....................................................... 2
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985) ..................................................................................... 15
Califano v. Goldfarb,
430 U.S. 199 (1977) ....................................................................................... 6
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936 (9th Cir. 2011) ........................................................................ 15
Craig v. Boren,
429 U.S. 190 (1976) ....................................................................................... 6
DeBoer v. Snyder,
No. 2:12-cv-10285-BAF-MJH, 2014 WL 1100794
(E.D. Mich. Mar. 21, 2014) ............................................................................ 3
Duke Power Co. v. Carolina Envtl. Study Group,
438 U.S. 59 (1978) ......................................................................................... 8
Fent v. Henry,
257 P.3d 984 (Okla. 2011) ........................................................................... 11
Frank v. United States,
129 F.3d 273 (2d Cir. 1997) ................................................................... 13, 14
Frontiero v. Richardson,
411 U.S. 677 (1973) ....................................................................................... 6
iii

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Hendrick v. Walters,
865 P.2d 1232 (Okla. 1993) ................................................................... 11, 12
Lankford v. Menefee,
145 P. 375 (Okla. 1914) ......................................................................... 11, 12
Lawrence v. Texas,
539 U.S. 558 (2003) ....................................................................................... 7
Loving v. Virginia,
388 U.S. 1 (1967) ........................................................................................... 2
Jones v. Lorenzen,
441 P.2d 986 (Okla. 1965) .......................................................................... 4-5
Klein v. Oklahoma,
No. CIV-12-637-HE, 2012 WL 3595122
(W.D. Okla. June 29, 2012) ............................................................................ 8
Meyer v. Nebraska,
262 U.S. 390 (1923) ....................................................................................... 6
New York v. United States,
505 U.S. 144 (1992) ..................................................................................... 14
Nevada Dept of Human Res. v. Hibbs,
538 U.S. 721 (2003) ....................................................................................... 6
Panhandle E. Pipeline Co. v. Oklahoma ex rel. Commrs of the Land Office,
83 F.3d 1219 (10th Cir. 1996) ................................................................ 14, 15
Panhandle E. Pipeline Co. v. Oklahoma ex rel. Commrs of the Land Office,
No. CIV-85-2659-C, 1994 WL 401601
(W.D. Okla. July 28, 1994) .......................................................................... 15
Pierce v. Society of Sisters,
268 U.S. 510 (1925) ....................................................................................... 6
Printz v. United States,
521 U.S. 898 (1997) ............................................................................... 13, 14
iv

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Rishell v. Jane Phillips Episcopal Meml Med. Ctr.,

94 F.3d 1407 (10th Cir. 1996) ........................................................................ 8
Romer v. Evans,
517 U.S. 620 (1996) ....................................................................................... 7
Tanco v. Haslam,
No. 3:13-cv-01159, 2014 WL 997525
(M.D. Tenn. Mar. 14, 2014) ........................................................................... 3
United States v. Virginia,
518 U.S. 515 (1996) ....................................................................................... 6
United States v. Windsor,
133 S. Ct. 2675 (2013) .......................................................................... passim
STATUTORY PROVISIONS
Okla. Stat. tit. 43, 5 ................................................................................................ 9
Okla. Stat. tit. 75, 11a .......................................................................................... 14
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV, 1 .................................................................................... 4
Okla. Const. art. 1, 2 .............................................................................................. 9
OTHER AUTHORITIES
Abraham Lincoln,
Gettysburg Address (Nov. 19, 1863) ............................................................ 16
Adrian Vermeule,
Saving Constructions, 15 Geo. L.J. 1945 (1997) ......................................... 15

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Amicus Br. of Historians of Marriage ...................................................................... 2

Amicus Br. of Massachusetts et al. ...................................................................... 2, 3
Brief for All Appellees,
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985)
(Nos. 84-28 & 84-143), 1984 WL 565782 ................................................... 15
Centers for Disease Control and Resources,
ART Reports and Resources, available at
http://www.cdc.gov/art/ARTReports.htm ...................................................... 5
Sutherland Statutory Construction (7th ed. 2013) .................................................. 16
U.S. Census Bureau,
Statistical Abstract of the United States: 2012, available at
http://www.census.gov/compendia/statab/2012/tables/12s0098.pdf.............. 5
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APPELLEES REPLY BRIEF

1.
In defending the Oklahoma Marriage Banincluding the non-
recognition provision that is the subject of Plaintiffs Barton and Phillips crossappealDefendants second brief recycles many of the same unsound arguments
and inapt authorities from her first brief. Plaintiffs Barton and Phillips (Plaintiffs
for purposes of this reply) stand by the responses set forth in their Principal and
Response Brief.
At this point, after three extensive briefs full of vigorous
disagreements, it is worth taking stock of basic points on which Plaintiffs and

Defendant do not differ.
First, Defendant does not dispute that Oklahomas denial of marriage and
marriage recognition to same-sex couples writes inequality across numerous
areas of state and federal law that bestow considerable benefits and protections
based on marital status. United States v. Windsor, 133 S. Ct. 2675, 2694 (2013);
see Appellees Principal and Response Br. (Aplee. Principal Br.) at 11-13. Nor
does Defendant dispute that denying the equal dignity of marital status and
recognition to same-sex couples harms and humiliates their growing number of
children, conveying to them and to all the world that their families are secondtier. Windsor, 133 S. Ct. at 2693, 2694. Rather, Defendant dismisses the inequity
and injury that the Oklahoma Marriage Ban inflicts on Oklahoma families as a
small cost of reserving marriage exclusively for opposite-sex couples

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purportedly because of their presumptively procreative potential. Appellants

Principal Br. (Aplt. Principal Br.) at 3, 85.
Second, Defendant does not dispute that marriage in Oklahoma isand
always has beendefined solely as a civil contract arising from the mutual consent
of two adults, without any requirement whatsoever relating to a couples ability or
desire to procreate. See Aplee. Principal Br. at 3-5, 51-55.1 Nor does Defendant
dispute that Oklahoma accordingly has always allowed the infertile, the elderly,
and those who simply do not wish to ever procreate to marry, while singling out
only gays and lesbians for exclusion from marriage and marriage recognition based
on their purported lack of procreative potential. Bishop v. United States ex rel.
Holder, 962 F. Supp. 2d 1252, 1293 (N.D. Okla. 2014).
But Defendant
acknowledgesand Plaintiffs could not agree morethat conditioning marriage

on procreative potential or plans would impinge upon constitutionally protected
privacy rights. Appellants Response and Reply Br. (Aplt. Response Br.) at 15.
Third, Plaintiffs agree with Defendant that the institution of marriage is
fundamental to our very existence and survival.
Aplt. Response Br. at 2
(quoting Loving v. Virginia, 388 U.S. 1, 12 (1967)). That is why Plaintiffs agree as
well with the rising tide of persuasive post-Windsor federal caselaw finding it

1
Indeed, as Defendant also cannot deny, the lack of a procreative prerequisite is a

ubiquitous, cross-cultural feature of the civil institution of marriage. Appellants
Response and Reply Br. at 2; see Amicus Br. of Historians of Marriage at 14-18;
Amicus Br. of Massachusetts et al. at 5-8.
2

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quintessentially irrational for statesagainst their asserted societal intereststo

extirpate existing same-sex marriages, and to divorce same-sex couples and their
children from the immense benefits, status, and stability that marriage provides to
families as the basic building blocks of society. Tanco v. Haslam, No. 3:13-cv01159, 2014 WL 997525, at *6 (M.D. Tenn. Mar. 14, 2014); see Amicus Br. of
Massachusetts et al. at 6-7.
Fourth, Plaintiffs agree wholeheartedly with Defendant that the wellbeing of
children is of vital importance to society, and that marriage promotes child welfare
in critical ways. The constitutional difference is that Plaintiffs solicitude is not
artificially restricted to the unintended children of opposite-sex couples, Aplt.
Principal Br. at 47; see Aplt. Response Br. at 13 & n.2, but extends equally to the
children of all Oklahoma families regardless of their biological origins or their
parents chromosomes.
2. In perspective, the fundamental points on which Defendant disagrees
with Plaintiffs are likewise illuminating. They reveal that Defendant takes issue
not only with Plaintiffs reasoningand of course with the reasoning of all eight
federal court rulings against same-sex marriage bans after Windsor 2 but
To the seven unanimous post-Windsor decisions discussed in Appellees

Principal and Response Brief (pp. 21-22 n.23) is added DeBoer v. Snyder, No.
2:12-cv-10285-BAF-MJH, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014).
3

26
ultimately with the progress of history, of modern contraception and reproductive

technologies, and of the constitutional understanding of freedom and equality.
First, in straining to defend the Oklahoma Marriage Ban and its nonrecognition of Plaintiffs out-of-state marriage, Defendant seeks nothing less
staggering than to turn back the historical clock to antebellum America. Aplt.
Response Br. at 53. Defendant asserts that states enjoy an absolute right to define
marriage for their communities. Id. at 3 (quotations omitted); see also id. at 5356.
And Defendant bristles at what she characterizes as Plaintiffs efforts to
federalize a definition of marriage and permanently install a federal

domestic-relations policy nationwide. Id. at 3. But it is not Plaintiffs who seek to
federalize constraints on state domestic-relations policy across the country, and
Defendant cannot brush aside those federal constraints by invoking a runaway
vision of states rights. The Civil War and the post-Civil War amendments, of
course, settled the question of federal constitutional supremacy over state domestic
policy, and established against state deprivation the basic guarantees of due
process and equal protection. U.S. Const. amend. XIV, 1. Plaintiffs Barton
and Phillips are no moreand no lessguilty of seeking to federalize a
definition of marriage than Mildred and Richard Loving. Cf. Jones v. Lorenzen,
441 P.2d 986, 988 (Okla. 1965) (reaffirming the validity of Oklahomas antimiscegenation laws under the view that [a] state, in the exercise of its sovereign

26
power, has the right to impose upon its citizens an incapacity to contract marriage
by means of a positive policy of the state for the good order of society (ellipsis
original; quotations omitted)).
Second, in asserting that licensing and recognizing same-sex marriages
would sever[] the abiding connection between marriage and the unique
procreative potential of male-female relationships, Aplt. Response Br. at 2,
Defendant displays a woeful (if not willful) obliviousness to the reality of modern
contraception and reproductive technologies. Thanks to modern contraception,
adult couples are empowered more than ever to decide for themselves whether and
when best to have children, and the majority of American women of child-bearing
age do employ contraception to sever the connection between their male-female
relationships and their procreative potential.3 Furthermore, thanks to modern
reproductive technologies, every year tens of thousands of American couples
including same-sex coupleswho lack the natural capacity to create children
according to Defendant (Aplt. Response Br. at 12) nonetheless do bring children
into the world. 4 Consequently, Defendants real war is not with same-sex
marriage, but with the procreative freedom made possible by modern progress, as
See Statistical Abstract of the United States: 2012, U.S. Census Bureau, 74 tbl.98,
available at http://www.census.gov/compendia/statab/2012/tables/12s0098.pdf.
4
See ART Reports and Resources, Centers for Disease Control and Resources,
available at http://www.cdc.gov/art/ARTReports.htm.
5

26
well as the modern precedents that safeguard that freedom. See Aplee. Principal
Br. at 63.
Third, Defendants repeated slander of same-sex marriages as genderless
(Aplt. Response Br. at 2, 3, 11, 17, 19, 54) not only demeans and dehumanizesas
if Plaintiffs both lost their XX chromosomes when they wed in California and
became something less than womenbut reveals yet again Defendants resort to
long-rejected social and legal premises. Today, the state can no more outlaw
marriages that fail to conform to its gendered view about fathers or mothers
roles in rearing their children, Aplt. Response Br. 1; Aplt. Principal Br. 74, than it
can rely on gender stereotypes to limit the place of women and men outside the
home. To impose its gendered view of marriage and parenting on its people, the
state would need to roll back decades of precedents that have advanced society
toward gender equality, see, e.g., Nevada Dept of Human Res. v. Hibbs, 538 U.S.
721 (2003); United States v. Virginia, 518 U.S. 515 (1996); Califano v. Goldfarb,
430 U.S. 199 (1977); Craig v. Boren, 429 U.S. 190 (1976), Frontiero v.
Richardson, 411 U.S. 677 (1973), and secured parental rights to the upbringing of
children. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v.
Nebraska, 262 U.S. 390 (1923).
Finally, impressively refusing to connect the dots, Defendant reduces
Romer, Lawrence, and Windsor to random pinpricks of precedent.
See Aplt.

26
Response Br. at 20-26. But fully viewed, the trilogy emerges as a constellation in
our constitutional system outlining a recognition that gays and lesbians too may
not be made unequal to everyone else by the state, Romer v. Evans, 517 U.S.
620, 635 (1996), may exercise the autonomy of the person in decisions relating
to marriage, procreation, contraception, family relationships, [and] child rearing,
Lawrence v. Texas, 539 U.S. 558, 574 (2003), and must be accorded equal
dignity under the lawincluding [s]tate laws defining and regulating marriage.
Windsor, 133 S. Ct. at 2691, 2693; see Aplee. Principal Br. at 32-36. The course
that constellation charts for this case could not be clearer.
3. Unable to deny the progress of history, procreative advancements, or
modern precedent, Defendant in the end twice attempts to shelter Oklahomas
refusal to recognize Plaintiffs marriage under the cover of standing.
Those
attempts remain unpersuasive.

a. Defendant excises as ambiguous (Aplt. Response Br. at 48) this
Courts plain holding in the prior appeal that ultimately the recognition of
marriages is within the administration of the judiciary, and that as an arm of the
court most directly involved with the administration of marriages, Defendant is
the proper judicial personnel to name in Plaintiffs challenge to the Oklahoma
Marriage Bans non-recognition provision.
Bishop v. Oklahoma ex rel.
Edmondson, 333 Fed. Appx. 361, 365 (10th Cir. 2009) (unpublished).
That

26
holding was sound, and Plaintiffs stand by it. See also Klein v. Oklahoma, No.
CIV-12-637-HE, 2012 WL 3595122, at *3 (W.D. Okla. June 29, 2012) (Report
and Recommendation of Bacharach, Magistrate J.) (unpublished) (same), adopted
sub nom. Klein v. Fallin, No. CIV-12-637-HE, 2012 WL 3594668, at *1 (W.D.
Okla. Aug. 21, 2012). Even if unclear to Defendant, this Courts ruling still
governs as law of the case. See Rishell v. Jane Phillips Episcopal Meml Med.
Ctr., 94 F.3d 1407, 1410 (10th Cir. 1996) (law of the case applies to issues that
are resolved implicitly as well as to those decided explicitly).
Notably, in her Response and Reply Brief, Defendant does not deny that a
declaration of invalidity and an injunction against judicial refusal to recognize
Plaintiffs marriage in any legal dispute would bind her district court and
ultimately the Oklahoma Supreme Court, both of which exercise supervisory
control over Defendants office. Bishop, 333 Fed. Appx. at 365. Nor does
Defendant deny that her vigorous (if misguided) defense of the non-recognition
provision demonstrates that this case possesses concrete adverseness.
Duke
Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 72 (1978) (quotations
omitted).
Instead, Defendant only offers irrelevant responses. First, she repeats the
observation that she has no statutory authority to recognize or record a marriage
license issued by another state. Aplt. Response Br. at 47 (quotations omitted). Of

26
course, there is no dispute that Defendants statutory duties to license and record
marriages, see Okla. Stat. tit. 43, 5, give rise to Plaintiffs standing to bring suit
against Defendant to challenge the licensing provision of the Oklahoma Marriage
Ban. But this Courts holding that Plaintiffs should bring suit against Defendant to
challenge the non-recognition provision rests on the separate ground that she is an
arm of the branch of state government ultimately responsible for resolving any
legal disputes that would turn on the status of Plaintiffs out-of-state marriage.
In any case, Defendants statutory duties belie her assertion that she has
nothing to do with marriage recognition in Oklahoma. In applying for a marriage
license, couples must aver that they are not disqualified from or incapable of
entering into the marriage relation. Okla. Stat. tit. 43, 5(A)(4). While the
inability to procreate glaringly is not one of those disqualifications, being married
is. See Okla. Const. art. 1, 2. Defendant must be satisfied of the truth and
sufficiency of the application, including satisfying herself as to whether a couple
is disqualified by virtue of an out-of-state marriage. Okla. Stat. tit. 43, 5(B)(1).
Second, Defendant responds that this Court did not specifically rule that she
is the proper Defendant for Barton and Phillips claim that Oklahoma must
recognize their California marriage. Aplt. Response Br. at 49 (emphasis added).

26
This is nonsensical. This Courts ruling on who should be sued on a claim of nonrecognition in no way depends on which state licensed the marriage.5
b. In her Response and Reply Brief, Defendant also attempts to resuscitate
her argument (raised for the first time on appeal) that Plaintiffs lack standing to
challenge both the licensing and the non-recognition provisions of the Oklahoma
Marriage Ban because Plaintiffs did not additionally challenge the previous
statutory bans that the constitutional amendment supplanted. See Aplt. Response
Br. at 44-46. But despite Defendants efforts to cast doubt, Oklahoma caselaw on
this point is clear and unbroken.
Likewise beside the point is Defendants attempt to discredit Plaintiffs nonrecognition claim as somehow belated. See Aplt. Response Br. at 48-49. Of
course, Plaintiffs could not specifically make their California marriage (as opposed
to their Canadian marriage and Vermont civil union) the subject of their prior
appeal, because they did not get married in California (November 1, 2008, see
Aplt. App. 144) until after briefing in that prior appeal was already completed (Jan.
20, 2007, see Bishop, 333 Fed. Appx. at 363 n.4). On remand, Plaintiffs did
challenge the non-recognition of their California marriage in their First Amended
Complaint. See Aplt. App. 34-42 ( 10, 13, 19, 21, 30, and Prayer for Relief).
Accordingly, Defendants admission in her Answer that she is responsible for the
enforcement of the laws challenged by Plaintiffs First Amended Complaint did
embrace the non-recognition provision despite her later protestations to the
contrary. Aplt. App. 46. Regardless, as Defendant must concede, the summary of
Plaintiffs claims in the parties stipulated and court-approved joint status report
states on the first page that Plaintiffs Barton and Phillips also challenge Part B of
Oklahomas Constitutional Amendment, Art. 2, 35, which denies recognition of a
same sex marriage performed in another State. Joint Status Report at 1, Bishop v.
United States ex rel. Holder, No. 04-cv-848-TCK-TLW (N.D. Okla. Aug. 24,
2011), ECF No. 187. There is thus no question that Plaintiffs challenge to that
provision was properly before the District Court and is properly before this Court.
10

26
For starters, the Oklahoma Supreme Court in Fent v. Henry stated in no

uncertain terms that a constitutional amendment replaces all former laws with
which it deals. 257 P.3d 984, 992 n.20 (Okla. 2011). That is so even though it
contains no express words to that effect, because of the time-honored rule that
a revising statute (or, as in this case, a constitutional amendment) takes the place
of all the former laws existing upon the subject with which it deals. Hendrick v.
Walters, 865 P.2d 1232, 1240 (Okla. 1993). Indeed, this has been the consistent
rule in Oklahoma for at least a century. In 1914, the Oklahoma Supreme Court
declared it settled beyond controversy that a new enactment takes the place of
all former laws existing upon the subject. Lankford v. Menefee, 145 P. 375, 377
(Okla. 1914).
Defendant tries to throw confusion on these clear decisions by quoting
language in Fent that repeals by implication are never favored, and by positing
that the replacement rule only applies when there is a clear intent to abrogate.
Aplt. Response Br. at 45 & n.11 (quoting Fent, 257 P.3d at 991). However,
Defendant takes this language out of context, for it refers to situations [w]here an
act is not complete in itself, and is clearly amendatory of a former statute. Fent,
257 P.3d at 992 (emphasis added; quotations omitted). By contrast, as Lankford
explained, when the subsequent enactment is a complete scheme for the matter,
then that completeness is decisive evidence of an intention to prescribe the
11

26
provisions mentioned in the latter act as the only ones on that subject which shall
be obligatory. 145 P. at 377 (emphasis added; quotations omitted). Defendant
does not dispute that the Oklahoma Marriage Ban is a complete scheme for
eliminating same-sex marriage in the state, rather than a mere amendatory fix to
the prior statutes.
Those statutes, in the Oklahoma Supreme Courts words,
therefore become functus officio, or of no effect whatsoever. Hendrick, 865

P.2d at 1235 n.3. Once the Oklahoma Marriage Ban is invalidated, Plaintiffs will
enjoy total relief from their non-recognition injuries.
Defendant also denies that the Oklahoma Marriage Ban inflicts an additional
injury that would be remedied by its invalidationnamely, the injury of shutting
the state courthouse doors on Plaintiffs and other same-sex couples by preventing
activist judges from interpreting the state constitution to extend marital freedom
and equality to same-sex couples. Aplt. Principal Br. at 35 (quotations omitted). It
is no answer for Defendant to respond that Plaintiffs may bring suit in state court
at any time. Aplt. Response Br. at 46. Any such suit would be foreclosed by the
Oklahoma Marriage Ban, as Defendant herself acknowledged in her first brief. See
Aplt. Principal Br. at 35-37.
Lastly, and significantly, Defendant is silent in response to Plaintiffs
observation that, for all her reliance on the statutory bans to make her standing
argument, she has not actually claimed that she would deny marriage licenses or
12

26
marriage recognition based on those statutes if she were enjoined from enforcing
the state constitutional amendment.
See Aplee. Principal Br. at 77 n.41.
Defendant surely would not do so, and (as she again does not dispute) she would
be issue precluded anyway from litigating their constitutionality. Id.
For each and all of these reasons, Plaintiffs possess standing to challenge
both the licensing and the non-recognition provisions of the Oklahoma Marriage
Ban.
4. Defendant does not contest the merits of Plaintiffs argument that the
Oklahoma Marriage Bans licensing and non-recognition provisions are mutually
reinforcing in purpose and effect, and therefore not severable from each other.
Aplee. Principal Br. at 78. In fact, Defendant confirms it. See Aplt. Response Br.
at 54 (forcing a State to recognize out-of-state marriages that conflict with its core
definition would de facto disable that State from maintaining its chosen marital
definition). Instead, Defendant argues that standing and waiver pose obstacles to
reaching severability. They do not.
First, Defendant claims that if Plaintiffs lack standing to challenge the nonrecognition provision, then Plaintiffs cannot argue non-severability to invalidate it.
To dress up her claim, Defendant cites Printz v. United States, 521 U.S. 898
(1997), and Frank v. United States, 129 F.3d 273 (2d Cir. 1997). But neither
13

26
support her claim, and Printz actually undermines it.6 Moreover, Defendant does
not deny that Oklahoma law requires severability analysis whenever part of a state
law or constitutional provision is invalidated. See Okla. Stat. tit. 75, 11a; Aplee.
Principal Br. at 78-79.
Once one part of a law is stricken, the court must
determine whether the portion of the statute which [the court] finds invalid may be
severed from the remainder of the statute, Panhandle E. Pipeline Co. v.
Oklahoma ex rel. Commrs of the Land Office, 83 F.3d 1219, 1229 (10th Cir.
1996), or whether (as is undisputed here) the remainder would collapse because
the valid provisions or application of the act are so essentially and inseparably
connected with, and so dependent upon, the void provisions. Okla. Stat. tit. 75,
11a(1)(a).
Second, Defendant claims that this Court is precluded from considering
severability on appeal because it was not raised below. Defendants authorities
In Printz, the Supreme Court invalidated one provision of the Brady Handgun
Violence Prevention Act that applied to the laws challengers, but declined to
address the validity of other provisions that did not affect them, explaining that it
would not speculate regarding the rights and obligations of parties not before the
Court. 521 U.S. at 935. Frank involved the identical statute and situation. 129
F.3d at 275. By contrast, in this case Plaintiffs are affected by both the nonrecognition provision and the licensing provision that they claim are not severable
from each other. Printz itself noted that severability analysis would be proper in
this situation. See 521 U.S. at 935 (contrasting the situation in Printz with that of
New York v. United States, 505 U.S. 144 (1992), in which the Court found it proper
to address[] severability where the remaining provisions at issue affected the
plaintiffs).
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26
again are scant and unpersuasive,7 while controlling caselaw weighs in the opposite
direction. As noted above, this Court in Panhandle E. Pipeline Co. held that it
must determine severability after having invalidated part of an Oklahoma statute,
83 F.3d at 1229 (emphasis added), even though severability was not addressed
below. See Panhandle E. Pipeline Co. v. Oklahoma ex rel. Commrs of the Land
Office, No. CIV-85-2659-C, 1994 WL 401601 (W.D. Okla. July 28, 1994)
(unpublished). Likewise, in Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 50406 (1985), the Supreme Court considered the severability of a state law even
though the appellees there made the identical argument that the appellants were
precluded from raising severability because they did not argue severability
below. Brief for All Appellees, Brockett v. Spokane Arcades, Inc., 472 U.S. 491
(1985) (Nos. 84-28 & 84-143), 1984 WL 565782, at *44. This is not surprising,
for severability is triggered only by a ruling on the merits of a constitutional
question.
(1997).
Adrian Vermeule, Saving Constructions, 15 Geo. L.J. 1945, 1951

Moreover, as a pure legal question of statutory interpretation of
For example, Defendant relies on Comite de Jornaleros de Redondo Beach v.

City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc). The Ninth Circuit
there unremarkably declined to consider severability because it was neither briefed
nor argued before the appeals court. 657 F.3d at 951 n.10. Here, by contrast, both
sides have fully briefed the issue. Defendant also relies on American Meat
Institute v. Pridgeon, 724 F.2d 45 (6th Cir. 1984), in which the Sixth Circuit
declined to consider severability on appeal when it had not been raised below until
a motion for reconsideration. Id. at 47. However, that decision runs contrary to
precedent in this Circuit and the Supreme Court.
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26
importance second only to the initial determination of validity, severability is

proper for resolution in the first instance on appeal.
2 Sutherland Statutory
Construction 44:1 (7th ed. 2013).

Consequently, if this Court finds either the licensing or the non-recognition
provision of the Oklahoma Marriage Ban invalid, it should conclude that, as both
must stand together in order to abolish same-sex marriage from Oklahoma, both
must fall together as well.
CONCLUSION
Plaintiffs Barton and Phillips are ordinary Oklahomans who have lived
together for three decades both as a loving couple and as legal strangers. Their
long struggle to marry, and to have their own state recognize their marriage,
presents this Court with the unfinished work of fulfilling the Constitutions
guarantees of freedom and equality.
President Abraham Lincoln, Gettysburg
Address (Nov. 19, 1863).

For the foregoing reasons, and those in Appellees Principal and Response
Brief, the judgment of the District Court should be affirmed in No. 14-5003 and
reversed in No. 14-5006.
16

26
s/ Don G. Holladay
(405) 236-2343 Telephone
(405) 236-2349 Facsimile
-andJoseph T. Thai, OBA No. 19377
300 Timberdell Rd.
Norman, OK 73019
(405) 204-9579 Telephone
ATTORNEYS FOR APPELLEES AND CROSSAPPELLANTS MARY BISHOP, SHARON
BALDWIN, SUSAN BARTON AND GAY
PHILLIPS
17

26
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

1. This brief complies with the type-volume limitation of Fed. R. App. P.
28.1(e)(2)(C) because this brief contains 3,883 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
2011 in 14-point Times New Roman style.
Date: April 7, 2014
s/ Don G. Holladay
18

26

I hereby certify that with respect to the foregoing:
1. All required privacy redactions have been made per 10th Cir. R. 25.5;
2. If required to file additional hard copies, that the ECF submission is an
exact copy of those documents;
3. The digital submissions have been scanned for viruses with McAfee
Version 6.0, which was most recently updated on April 7, 2014, and, according to
the program, are free of viruses.
Date: April 7, 2014
s/ Don G. Holladay
19

26
I hereby certify that on April 7, 2014, I electronically filed the foregoing
using the courts CM/ECF system which will send notification of such filing to the
following: Byron Babione, James Andrew Campbell, Holly L. Carmichael, John
David Luton, David Austin Robert Nimocks, Brian W. Raum, Dale Michael
Schowengerdt, Kevin H. Theriot.
I further certify that on April 7, 2014, an original and seven copies of the
foregoing were dispatched to Federal Express for overnight delivery to the
following:
Clerk of Court
United States Court of Appeals for the Tenth Circuit
Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257
Date: April 7, 2014
s/ Don G. Holladay
20
No. 14-136
IN THE
SALLY HOWE SMITH, in her official capacity as Court

Clerk for Tulsa County, State of Oklahoma,
Petitioner,
v.
MARY BISHOP and SHARON BALDWIN,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Tenth Circuit
BRIEF FOR RESPONDENTS
DON G. HOLLADAY
JAMES E. WARNER III
Holladay & Chilton PLLC
204 N. Robinson Avenue
Suite 1550
(405) 236-2343
dholladay@holladay
chilton.com
JEFFREY L. FISHER
Counsel of Record
Stanford Law School
Supreme Court
Litigation Clinic
559 Nathan Abbott Way
Stanford, CA 94305
(650) 724-7081
jlfisher@law.stanford.edu
JOSEPH THAI
300 Timberdell Road
Norman, OK 73019
Exhibit 5
QUESTION PRESENTED
Whether a state may deny same-sex couples the
right to marry consistent with the Fourteenth
Amendments guarantees of due process and equal
protection.
ii
TABLE OF CONTENTS
QUESTION PRESENTED ...........................................i
TABLE OF AUTHORITIES....................................... iii
INTRODUCTION ......................................................... 1
STATEMENT ............................................................... 3
A. Factual and Legal Background ............................. 3
B. Procedural History ................................................. 8
REASONS FOR GRANTING THE WRIT ................ 12
I.
This Court Should Resolve The Question

Presented Here And Now .................................... 13
II. This Case Is A Clean And Beneficial Vehicle

For Deciding The Question Presented ................ 14
A. This Court Could Use This Case Alone To
Decide Whether A State May Deny SameSex Couples The Right To Marry ................. 15
B. At The Very Least, This Court Should
Grant Certiorari In This Case Along With
Any Other It Grants On The Subject ........... 16
III. The Court Of Appeals Correctly Held That
The Fourteenth Amendment Prohibits States
From Denying Same-Sex Couples The Right
To Marry ............................................................... 25
A. Enhanced Scrutiny Applies To State
Laws Denying Same-Sex Couples The
Right To Marry .............................................. 26
B. State Laws Banning Same-Sex Marriage
Fail Every Level Of Review .......................... 29
CONCLUSION ........................................................... 32
iii
Page(s)
Cases
Baehr v. Lewin, 852 P.2d 44 (Haw. 1996) ................... 6

Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971),
appeal dismissed, 409 U.S. 810 (1972) ........... 6, 10
Baker v. Nelson, 409 U.S. 810 (1972) .......................... 9
Baskin v. Bogan, ___ F. Supp. 2d ___, 2014 WL
2884868 (S.D. Ind. June 25, 2014) ...................... 12
Bishop v. Oklahoma ex rel. Edmondson, 333 Fed.
Appx 361 (10th Cir. 2009) ..................................... 8
Bishop v. Smith, ___ F.3d ___, 2014 WL 3537847
(10th Cir. July 18, 2014) ...................................... 12
962 F. Supp. 2d 1252 (N.D. Okla. 2014) ............. 12
Bolling v. Sharpe, 347 U.S. 497 (1954) ....................... 1
Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va.
2014) ..................................................................... 12
Bostic v. Schaefer, ___ F.3d ___, 2014 WL
3702493 (4th Cir. July 28, 2014) ................... 12, 14
Bourke v. Beshear, ___ F. Supp. 2d ___, 2014
WL 556729 (W.D. Ky. Feb. 12, 2014) .................. 13
Bowers v. Hardwick, 478 U.S. 186 (1986) ................. 26
Brenner v. Scott, ___ F. Supp. 2d ___, 2014 WL
4113100 (N.D. Fla. Aug. 21, 2014) ...................... 12
Brown v. Bd. of Educ., 347 U.S. 483
(1954) .................................................... 1, 16, 17, 27
iv
Burns v. Hickenlooper, No. 14-cv-01817-RMKLM, 2014 WL 3634834 (D. Colo. July

23, 2014) ............................................................... 12
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) .................................... 18, 22
Carr v. Corning, 182 F.2d 14 (D.C. Cir. 1950) ............ 1
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) .............................................. 29
City of Erie v. Paps A. M., 529 U.S. 277 (2000) ....... 29
Claiborne v. United States, 549 U.S. 1016 (2006) .... 24
Cutter v. Wilkinson, 544 U.S. 709 (2005) ................. 16
De Leon v. Perry, 975 F. Supp. 2d 632
(W.D. Tex. 2014)................................................... 13
DeBoer v. Snyder, 973 F. Supp. 2d 757
(E.D. Mich. 2014) ........................................... 13, 30
Dept of Commerce v. U.S. House of
Representatives, 525 U.S. 316 (1999) ................. 23
Dick v. Reaves, 434 P.2d 295 (Okla. 1967).................. 3
Eisenstadt v. Baird, 405 U.S. 438 (1972) .................. 31
Gall v. United States, 552 U.S. 38 (2007) ................. 24
Geiger v. Kitzhaber, ___ F. Supp. 2d ___, 2014
WL 2054264 (D. Or. May 19, 2014)..................... 12
Goodridge v. Dept of Pub. Health, 798 N.E.2d 941
(Mass. 2003) ....................................................... 5, 7
Graddick v. Newman, 453 U.S. 928 (1981)
(Powell, J., in chambers)...................................... 22
Henry v. Himes, ___ F. Supp. 2d ___, 2014 WL
1418395 (S.D. Ohio Apr. 14, 2014) ...................... 13
Herbert v. Kitchen, 134 S. Ct. 893 (2014) ........... 10, 19

Herbert v. Kitchen, No. 14-124 .................................. 23
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .... 2, 22
INS v. Chadha, 462 U.S. 919 (1983).......................... 23
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.
2014) ............................................................... 10, 12
Kitchen v. Herbert, 961 F. Supp. 2d 1181
(D. Utah 2013) ................................................ 12, 21
Latta v. Otter, ___ F. Supp. 2d ___, 2014 WL
1909999 (D. Idaho May 13, 2014) ....................... 13
Lawrence v. Texas, 539 U.S. 558 (2003) ........... passim
Lee v. Orr, No. 13-cv-8719, 2014 WL 683680
(N.D. Ill. Feb. 21, 2014) ....................................... 13
Love v. Beshear, 989 F. Supp. 2d 536 (W.D. Ky.
2014) ..................................................................... 12
Loving v. Virginia, 388 U.S. 1 (1967) .......... 1, 3, 26, 28
Manhart v. Manhart, 725 P.2d 1234 (Okla. 1986) ..... 7
McQuigg v. Bostic, No. 14A196 ................................. 23
Meyer v. Nebraska, 262 U.S. 390 (1923) ..................... 7
Miller v. Alabama, 132 S. Ct. 2455 (2012) ................ 17
Miranda v. Arizona, 384 U.S. 436 (1966) .................. 17
Obergefell v. Wymyslo, 962 F. Supp. 2d 968
(S.D. Ohio 2013) ............................................. 13, 21
Pierce v. Socy of Sisters, 268 U.S. 510 (1925) ............ 7
Plessy v. Ferguson, 163 U.S. 537 (1896) ................... 27
Plyler v. Doe, 457 U.S. 202 (1982) ............................. 26
vi
Price-Cornelison v. Brooks, 524 F.3d 1103

(10th Cir. 2008) ...................................................... 9
Rainey v. Bostic, No. 14-153 ................................ 18, 23
Reno v. Flores, 507 U.S. 292 (1993)........................... 26
Riley v. California, 134 S. Ct. 2473 (2014) .......... 18, 22
Romer v. Evans, 517 U.S. 620 (1996) ............ 11, 13, 31
Ross v. Ross, 54 P.2d 611 (Okla. 1936)........................ 3
Schaefer v. Bostic, No. 14-___ .................................... 23
SmithKline Beecham Corp. v. Abbott Labs.,
740 F.3d 471 (9th Cir. 2014)................................ 27
Louisiana ex rel. Guste v. Roemer,
949 F.2d 145 (5th Cir. 1991)................................ 23
Tanco v. Haslam, ___ F. Supp. 2d ___, 2014 WL
997525 (M.D. Tenn. Mar. 14, 2014) .................... 13
Turner v. Safley, 482 U.S. 78 (1987) ......................... 26
United States v. Booker, 543 U.S. 220 (2005)........... 24
United States v. Fanfan, No. 04-105 ......................... 24
United States v. Virginia, 518 U.S. 515 (1996)......... 28
United States v. Windsor, 133 S. Ct. 2675
(2013) ............................................................ passim
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ........ 28
Washington v. Glucksberg, 521 U.S. 702 (1997) ...... 26
West Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) .............................................. 32
Whitewood v. Wolf, 992 F. Supp. 2d 410
(M.D. Pa. 2014) ................................................ 2, 12
vii
Windsor v. United States, 699 F.3d 169

(2d Cir. 2012)........................................................ 27
Wolf v. Walker, 986 F. Supp. 2d 982 (W.D.
Wis. 2014) ............................................................. 12
Zablocki v. Redhail, 434 U.S. 374 (1978) ............ 13, 26
Constitutional Provisions
U.S. Const., amend. IV ............................................... 18
U.S. Const., amend. VIII ............................................ 18
U.S. Const., amend. XIV .................................... passim
Okla. Const. art. 1, 2 ................................................. 5
Okla. Const. art. 2, 35 ............................................... 5
Okla. Const. art. 2, 35(A) ........................................ 28
Okla. Const. art. 2, 35(C) ........................................ 19
Statutes
Defense of Marriage Act of 1996,
110 Stat. 2419 .............................................. passim
Religious Freedom Restoration Act,
42 U.S.C. 2000bb et seq.,. .................................. 18
1908 Okla. Gen. Stat. ch. 31, 3249 ........................... 3
1908 Okla. Gen. Stat. ch. 31, 3260 ........................... 3
1975 Okla. Sess. Laws ch. 39, 1 ................................ 6
1996 Okla. Sess. Laws ch. 131, 9 .............................. 6
Okla. Stat. tit. 10A, 1-4-901 to 1-4-909................... 7
Okla. Stat. tit. 43, 1 ................................................... 3
Okla. Stat. tit. 43, 2 ................................................... 3
viii
Okla. Stat. tit. 43, 3 ................................................... 3
Okla. Stat. tit. 43, 3.1 ................................................ 6
Okla. Stat. tit. 43, 3(A) .......................................... 5, 6
Okla. Stat. tit. 43, 111.1 ............................................ 7
Okla. Stat. tit. 43, 112 ............................................... 7
Okla. Stat. tit. 43, 112.5 ............................................ 7
Okla. Stat. tit. 43, 121 ............................................... 7
Okla. Stat. tit. 43, 134 ............................................... 7
Okla. Stat. tit. 43, 201 ............................................... 7
Okla. Stat. tit. 43, 202 ............................................... 7
Okla. Stat. tit. 84, 44 ................................................. 7
Okla. Stat. tit. 84, 131 ............................................... 7
Okla. Stat. tit. 84, 132 ............................................... 7
Okla. Stat. tit. 84, 134 ............................................... 7
Okla. Stat. tit. 84, 173 ............................................... 7
Okla. Stat. tit. 84, 213 ............................................... 7
Other Authorities
Killman, Curtis, Opposition Strong to Gay
Marriage, According to Poll, Tulsa World
(June 30, 2014) ..................................................... 31
McCarthy, Justin, Same-Sex Marriage Support
Reaches New High at 55%, Gallup Politics
(May 21, 2014) ...................................................... 31
Miller, Loren, The Petitioners: The Story of the
Supreme Court of the United States and the
Negro (1966) ......................................................... 17

42
ix
Mills, Russell, Fallin: OK Will No Longer Process
Benefits For National Guard Couples, KRMG
News, Nov. 20, 2013............................................. 19
Oppel, Jr., Richard A., Texas and 5 Other States
Resist Processing Benefits for Gay Couples,
N.Y. Times, Nov. 10, 2013 ................................... 19
Pollvogt, Susannah W., Unconstitutional Animus,
81 Fordham L. Rev. 887 (2012) ........................... 21
Prentice, Robert A., Supreme Court Rhetoric, 25
Ariz. L. Rev. 85 (1983) ......................................... 17
Spector, Robert, Oklahoma Family Law: The
Handbook (2013) .................................................... 3
Schacter, Jane S., Courts and the Politics of
Backlash: Marriage Equality Litigation, Then
and Now, 82 S. Cal. L. Rev. 1153 (2009) .......... 5, 6

42
INTRODUCTION
The Framers of the Fourteenth Amendment
knew times can blind us to certain truths and later
generations can see that laws once thought necessary
and proper in fact serve only to oppress. Lawrence
v. Texas, 539 U.S. 558, 579 (2003). The same
Congress, for example, that proposed the Fourteenth
Amendment also passed laws segregating schools.
See Carr v. Corning, 182 F.2d 14, 18 (D.C. Cir. 1950).
But this Court, nearly a century later, unanimously
held that such segregation is antithetical to the
guarantee of equal protection. Brown v. Bd. of Educ.,
347 U.S. 483 (1954); Bolling v. Sharpe, 347 U.S. 497
(1954). State laws prohibiting interracial marriage
also permeated the legal landscape for over one
hundred years following passage of the Fourteenth
Amendment. Yet this Court, when finally confronted
with the issue, again unanimously concluded that
such laws are unconstitutional. Loving v. Virginia,
388 U.S. 1 (1967). Likewise, state laws for most of
our history sought to prohibit nonprocreative sexual
activity, based in part on societal voices
condemn[ing] homosexual conduct as immoral.
Lawrence, 539 U.S. at 568, 571. But this Court has
recently made clear that the Constitution forbids
laws criminalizing intimate sexual conduct between
persons of the same sex, id. at 578-79, or excluding
same-sex couples from the federal definition of
marriage, United States v. Windsor, 133 S. Ct. 2675,
2693, 2695 (2013).
The time has come for this Court to decide
whether state laws denying same-sex couples the
right to marry should be discarded into the same ash
heap of history. Whitewood v. Wolf, 992 F. Supp. 2d

42
2
410, 431 (M.D. Pa. 2014). And this case is a clean
and beneficial vehicle for doing so. It was the first
case in the country filed to challenge the spate of
anti-gay-marriage laws enacted in 2004. This case
also lacks any alternative claims or procedural
glitches that could prevent this Court from reaching
and resolving the fundamental question whether
states may deny same-sex couples the right to marry.
Even if this Court grants a petition from another
state, it should also grant plenary review here. When
this Court has heard other similarly momentous
cases, it has frequently granted multiple petitions.
Such action may be especially appropriate here. The
question presented affects individuals and states
across the country. Yet each state has its own story
and its own state interests supposedly at stake.
Furthermore, no single case can present a foolproof
vehicle for resolving whether states may deny samesex couples the right to marry. As this Court no
doubt recalls from Windsor and Hollingsworth v.
Perry, 133 S. Ct. 2652 (2013), litigation concerning
same-sex marriage can present thorny procedural
issues. And on a more mundane level, facts essential
to this Courts jurisdiction can despite the best
expectations of all concerned evaporate on a
moments notice. In light of the extraordinarily
pressing need to resolve this controversy as
expeditiously as possible, this Court should not take
the chance that it might need to hit the reset button
between now and the end of the Term, thereby
prolonging the legal limbo of hundreds of thousands
of committed couples and families across the Nation.

42
3
STATEMENT
A. Factual and Legal Background
1. Historically, marriage in Oklahoma has been
an inclusive civil institution. Since statehood in
1907, Oklahoma has defined marriage to be a
personal relation arising out [of] a civil contract,
which simply requires the consent of parties legally
competent of contracting and entering into it. Okla.
Gen. Stat. ch. 31, 3249 (1908). That definition
remains unchanged. See Okla. Stat. tit. 43, 1;
Robert Spector, Oklahoma Family Law: The
Handbook (2013). And no Oklahoma law or judicial
decision, from statehood to the present day, has ever
conditioned marriage on the intent or capacity to
beget children or raise them.
Oklahoma also has long deemed almost all adults
legally competent to marry the only exceptions, as
in other states, being adults (age 18 or over) who (1)
lack the mental capacity to enter into a marriage
contract, (2) are related too closely by blood, or (3) are
already married. See Ross v. Ross, 54 P.2d 611, 615
(Okla. 1936) (mental capacity); Okla. Const. art. 1,
2 (polygamy); Okla. Stat. tit. 43, 2
(consanguinity); id. 3 (age).
Oklahoma has barred only two classes of
otherwise legally competent adults from marrying:
any person of African descent . . . to any person not
of African descent, Okla. Gen. Stat. ch. 31, 3260
(1908), and couples of the same sex. This Courts
decision in Loving abrogated the former restriction.
See Dick v. Reaves, 434 P.2d 295, 298 (Okla. 1967).
The latter restriction is the subject of this case.

42
4
2. Respondents Mary Bishop and Sharon Baldwin
have lived as a family in Broken Arrow, Oklahoma,
in a committed, continuous relationship for over
fifteen years.
Ms. Bishop is a sixth-generation
Oklahoman whose great-great-great grandparents
settled in the territory before statehood, and Ms.
Baldwin is a fourth-generation Oklahoman whose
great-grandparents and grandmother came to the
state in a covered wagon. Both were raised and
educated in Oklahoma, and both have worked since
the 1990s as editors for the states second-largest
newspaper, the Tulsa World.
In 2000, Ms. Bishop and Ms. Baldwin exchanged
vows in a church commitment ceremony.
Nevertheless, because of their conviction that
marriage is an institution to be respected, and that
it is the only status that will signify the equality of
their relationship with those of married couples, Ms.
Bishop and Ms. Baldwin have also deeply desire[d]
to join in marriage. CA10 Aplt. App. 108.
3. On November 2, 2004, Oklahoma voters
passed State Question 711 (SQ 711) publicly
known as the Marriage Protection Amendment by
a margin of 1,075,216 to 347,303. (The measure had
qualified for the ballot by passing the Oklahoma
House 92 to 4 and the Oklahoma Senate 38 to 7.) SQ
711 amended the Oklahoma Constitution to add the
following provisions:
Marriage Defined Construction of law
and Constitution Recognition of out-ofstate marriages Penalty
A. Marriage in this state shall consist
only of the union of one man and one woman.
Neither this Constitution nor any other

42
5
provision of law shall be construed to require
that marital status or the legal incidents
thereof be conferred upon unmarried couples
or groups.
B. 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.
C. Any person knowingly issuing a
marriage license in violation of this section
shall be guilty of a misdemeanor.
Okla. Const. art. 2, 35.
The Marriage Protection Amendment was part of
a wave of state constitutional amendments adopted
in the wake of Goodridge v. Department of Public
Health, 798 N.E.2d 941 (Mass. 2003), which held that
civil marriage could not be denied to same-sex
couples consistent with the guarantees of due process
and equal protection afforded to all individuals
under the Massachusetts Constitution. Id. at 948,
961; see Jane S. Schacter, Courts and the Politics of
Backlash: Marriage Equality Litigation, Then and
Now, 82 S. Cal. L. Rev. 1153, 1188-89 (2009).
Even before SQ 711 became law, Oklahoma
already had statutory provisions specifically barring
same-sex marriage.1 But as the Oklahoma Senate
1
Section 3(A) of Title 43 of the Oklahoma Statutes provided

that [a]ny unmarried person who is at least eighteen (18) years
of age and not otherwise disqualified is capable of contracting
and consenting to marriage with a person of the opposite sex.
Okla. Stat. tit. 43, 3(A) (emphasis added). The italicized
language was added in 1975 following Baker v. Nelson, 191

42
6
explained in an official press release upon passage of
the legislation to place SQ 711 on the ballot,
proponents of the measure believed it necessary to
provide constitutional protections to traditional
marriage to combat efforts by liberals and activist
judges seeking to redefine marriage by allowing
same-sex unions. Pet. App. 156a-157a. The author
of the initiative further explained: It is one thing to
tolerate the homosexual lifestyle and another to
legitimize it through marriage. Id. 160a; see also id.
168a-170a (collecting numerous similar quotations
from author and other legislators).
4. The impact of SQ 711 on same-sex couples and
their families is stark and often extreme. As the
foundation of domestic relations law, marriage in
Oklahoma gives rise to a host of rights and
responsibilities, including mutual obligations of
respect, fidelity, and financial support;2 ownership of
N.W.2d 185 (Minn. 1971), appeal dismissed, 409 U.S. 810
(1972). See 1975 Okla. Sess. Laws ch. 39, 1. Section 3.1 of
Title 43 also provided 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.
Okla. Stat. tit. 43, 3.1 (emphasis added). Enacted in 1996, this
provision was part of a wave of federal and state laws (the
federal Defense of Marriage Act (DOMA), 110 Stat. 2419, and
state mini-DOMAs) responding to the Hawaii Supreme Courts
decision in Baehr v. Lewin, 852 P.2d 44 (Haw. 1996), that the
denial of marriage licenses to same-sex couples was sex-based
discrimination subject to strict scrutiny under the state
constitution. See 1996 Okla. Sess. Laws ch. 131, 9; Schacter,
82 S. Cal. L. Rev. at 1185-86. As a matter of state law, SQ 711
replaced these statutory provisions upon its enactment. See
Pet. App. 4a, 9a-16a; Pet. 30-31.
2

42
7
3
marital property and the presumption that property

acquired during marriage is such property;4
inheritance and intestacy protections for a spouse5 or
child of the deceased;6 parental rights7 and
protections against their termination;8 alimony9 and
child support;10 and child custody11 and visitation
rights.12 Furthermore, as this Court observed in
Windsor, over 1,000 federal laws and numerous
federal regulations turn on marital status. See 133
S. Ct. at 2690, 2694-95. Finally, respondents and
other same-sex couples in Oklahoma cannot attain a
status for their relationship that universally
represents at once a deeply personal commitment to
another human being and a highly public celebration
of the ideals of mutuality, companionship, intimacy,
fidelity, and family. Goodridge, 798 N.E.2d at 954.
B. Procedural History
1. The day after voters approved SQ 711,
respondents and an Oklahoma couple who later
3
See id. 121.
See Manhart v. Manhart, 725 P.2d 1234, 1240 (Okla.
1986).
5
See id. 131, 132, 134, 173, 213.
See Pierce v. Socy of Sisters, 268 U.S. 510 (1925); Meyer

v. Nebraska, 262 U.S. 390 (1923).
8
See Okla. Stat. tit. 10A, 1-4-901 to 1-4-909.
10
See id. 112.
11
See id. 112.5.
12
See id. 111.1.

42
8
married in California, Susan Barton and Gay
Phillips, filed suit, challenging on equal protection
and due process grounds SQ 711s ban on marriage
by same-sex couples and ban on recognition of out-ofstate same-sex marriages.13 The plaintiffs originally
named the Governor and Attorney General of
Oklahoma as defendants. But the Tenth Circuit held
they were improper defendants because they had no
specific duty to enforce SQ 711. Bishop v. Oklahoma
ex rel. Edmondson, 333 Fed. Appx 361, 365 (10th
Cir. 2009) (unpublished). Marriage licensing and
recognition in Oklahoma, the Tenth Circuit held, fall
within the administration of the judiciary. Id.
Meanwhile, respondents sought a marriage
license from petitioner Sally Howe Smith, court clerk
for Tulsa County. They were legally competent to
marry in every respect but one: they are both women.
Accordingly, petitioner denied respondents a
marriage license.
Respondents then filed an amended complaint,
naming petitioner in her official capacity as
defendant. Given petitioners duties to issue and
record marriage licenses and her refusal to issue one
to respondents, petitioner did not dispute
respondents standing to challenge the marriage ban,
and the district court independently satisfied itself
that standing and other jurisdictional requirements
13
The plaintiffs also challenged certain provisions of the

federal Defense of Marriage Act, but those claims have since
been dismissed and are not relevant here. See Pet. App. 9a.

42
9
are satisfied with respect to that challenge.
App. 134a-136a.14
Pet.
On the merits, after concluding that this Courts

summary dismissal in Baker v. Nelson, 409 U.S. 810
(1972), is not binding precedent, Pet. App. 140a, the
district court determined that the marriage ban
embodied a classic, class-based equal protection case
in which a line was purposefully drawn between two
groups of Oklahoma citizens. Id. 160a. Viewing the
intentional discrimination occurring against samesex couples as sexual-orientation discrimination,
the district court applied rational basis review as
required by Tenth Circuit precedent. Id. 164a-166a
(citing Price-Cornelison v. Brooks, 524 F.3d 1103
(10th Cir. 2008)). The district court discredited each
post-hoc justification offered by petitioner for the
marriage
ban
encouraging
responsible
procreation,
steering
naturally
procreative
relationships into marriage, promoting optimal
child-rearing, and preventing any negative impact
on marriage finding these goals so attenuated
from the exclusion of same-sex couples from marriage
as to well exceed[] the limits of rationality. Id.
171a-186a.
Indeed, examining the uncontroverted evidence
presented by respondents on summary judgment, the
district court concluded that the proponents of SQ
14
At the same time, the district court agreed with

petitioner that her duties as court clerk do not include the
recognition of out-of-state marriages, and therefore dismissed
the Barton couples non-recognition claim for lack of standing.
Pet. App. 131a-134a. That ruling, affirmed by the Tenth
Circuit, id. 22a-47a, is not before this Court.

42
10
711 [j]ust like federal legislators with respect to
DOMA promoted the marriage ban as upholding
one specific moral view of marriage. Pet. App. 168a.
The district court further found, as a matter of law,
that moral disapproval of same-sex marriage served
as a justification for passing SQ 711. Id. 170a. But
because moral disapproval of homosexuals as a
class, or same-sex marriage as a practice, is not a
permissible justification for a law under the district
courts reading of Lawrence, id., the district court
struck down SQ 711s marriage ban as at bottom, an
arbitrary exclusion based upon the majoritys
disapproval of the defined class. Id. 184a.
Concluding that the marriage ban violates the
equal protection at the very heart of our legal
system, Pet. App. 186a, the district court did not
rule on respondents claim that SQ 711 also denies
due process.
It did note, however, that if the
marriage ban does burden a fundamental right, it
certainly would not withstand any degree of
heightened scrutiny. Id. 161a n.33.
The district court permanently enjoined the
marriage ban, but [i]n accordance with this Courts
stay in Herbert v. Kitchen, 134 S. Ct. 893 (2014),
stayed its injunction pending appeal. Pet. App. 186a187a.
2. The Tenth Circuit affirmed. Relying in part
on its decision in the companion case of Kitchen v.
Herbert, 755 F.3d 1193 (10th Cir. 2014), the majority
held in relevant part that (1) Baker v. Nelson has
been undermined by doctrinal developments and
therefore is not controlling, Pet. App. 17a, 19a; (2)
respondents seek to exercise the fundamental right
to marry, id. 17a; and (3) the marriage ban fail[s] to

42
11
satisfy the narrow tailoring requirement of the
applicable strict scrutiny test, and thus denies
respondents the fundamental right to marry in
violation of both due process and equal protection.
Id.
While joining the majority opinion in full, Judge
Holmes sought in a lengthy concurrence to clarify
his view of the relationship between animus doctrine
and same-sex marriage laws. Pet. App. 57a. After
canvassing this Courts equal protection cases, Judge
Holmes concluded that a law falls prey to animus
only where there is structural evidence that it is
aberrational, either because (1) it targets the rights
of a minority in a dangerously expansive and novel
fashion, id. 72a (citing Romer v. Evans, 517 U.S.
620, 631-35 (1996) (emphasis added)); or (2) it strays
from the historical territory of the lawmaking
sovereign just to eliminate privileges that a group
would otherwise receive. Id. (citing Windsor, 133 S.
Ct. at 2689-95 (emphasis added)). Judge Holmes
determined that both considerations cut strongly
against a finding of animus. Id. 73a.
Because Judge Holmes confined this Courts
animus doctrine to equal protection cases, his
concurrence unlike the district courts opinion
omitted any discussion of this Courts landmark
decision in Lawrence. Indeed, Judge Holmes animus
taxonomy did not even include laws that perpetuate
historical discrimination based on the fact that the
governing majority in a State has traditionally
viewed a particular practice as immoral. Lawrence,
539 U.S. at 577 (citation omitted).
Judge Kelly dissented. He reasoned that gender
complementarity is fundamental to the right to

42
12
marry, and that the marriage ban is subject to, and
survives, rational basis review. Pet. App. 95a-96a.
REASONS FOR GRANTING THE WRIT
In United States v. Windsor, this Court
invalidated the Defense of Marriage Acts exclusion of
same-sex couples from the federal definition of
marriage as violative of basic due process and equal
protection principles, and admonished that state
marriage laws also must respect the constitutional
rights of persons. 133 S. Ct. at 2691, 2693. Since
Windsor, every federal court to have considered the
issue (over twenty thus far) has concluded that states
may no more deprive same-sex couples of marriage
than they may deny interracial couples the exercise
of that fundamental right.15 These decisions are
15
See Bostic v. Schaefer, ___ F.3d ___, 2014 WL 3702493

(4th Cir. July 28, 2014) (affirming Bostic v. Rainey, 970 F. Supp.
2d 456 (E.D. Va. 2014)); Bishop v. Smith, ___ F.3d ___, 2014 WL
3537847 (10th Cir. July 18, 2014) (affirming Bishop v. United
States ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014));
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (affirming
Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013));
Brenner v. Scott, ___ F. Supp. 2d ___, 2014 WL 4113100 (N.D.
Fla. Aug. 21, 2014); Burns v. Hickenlooper, No. 14-cv-01817RM-KLM, 2014 WL 3634834 (D. Colo. July 23, 2014); Love v.
Beshear, 989 F. Supp. 2d 536 (W.D. Ky. 2014); Baskin v. Bogan,
___ F. Supp. 2d ___, 2014 WL 2884868 (S.D. Ind. June 25, 2014);
Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014);
Whitewood v. Wolf, 992 F. Supp. 2d 410 (M.D. Pa. 2014); Geiger
v. Kitzhaber, ___ F. Supp. 2d ___, 2014 WL 2054264 (D. Or. May
19, 2014); Latta v. Otter, ___ F. Supp. 2d ___, 2014 WL 1909999
(D. Idaho May 13, 2014); Henry v. Himes, ___ F. Supp. 2d ___,
2014 WL 1418395 (S.D. Ohio Apr. 14, 2014); DeBoer v. Snyder,
973 F. Supp. 2d 757 (E.D. Mich. 2014); Tanco v. Haslam, ___ F.
Supp. 2d ___, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014); De

42
13
correct. This Courts precedents protect the right to
marry for all individuals, Zablocki v. Redhail, 434
U.S. 374, 384 (1978), and have stricken laws
rendering gays and lesbians unequal to everyone
else, Romer, 517 U.S. at 635, particularly with
respect to personal decisions relating to marriage
and other intimate choices. Lawrence, 539 U.S. at
574, 578 (citation omitted).
Respondents nevertheless urge this Court to
grant the writ in this case. The question presented is
enormously important and should be resolved once
and for all as expeditiously as possible.
Respondents, in fact, have been fighting for nearly a
decade for such a resolution. They now wish to see
the matter through, and their case provides a clean
and beneficial vehicle for doing so.
I.
This Court Should Resolve The Question

Presented Here And Now.
The question whether a state may forbid samesex couples from marrying is immensely important to
the hundreds of thousands of same-sex couples across
the country.
Every day, state laws enacted
specifically to bar these couples from marrying deny
them and their families the emotional, social, and
financial benefits that opposite-sex couples realize
upon marriage. Bostic v. Schaefer, ___ F.3d ___,
2014 WL 3702493, at *5 (4th Cir. July 28, 2014).
Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex. 2014); Lee v. Orr,
No. 13-cv-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014);
Bourke v. Beshear, ___ F. Supp. 2d ___, 2014 WL 556729 (W.D.
Ky. Feb. 12, 2014); Obergefell v. Wymyslo, 962 F. Supp. 2d 968
(S.D. Ohio 2013).

42
14
Such laws also deny these couples and their families
the more intangible, but no less critical, equal
dignity of marriage. Windsor, 133 S. Ct. at 2693. It,
therefore, is not really a question of whether this
Court should resolve the question presented, but only
of when.
The time is now. In most of the states where
these laws have been declared invalid, injunctions
have been stayed pending appeal or this Courts
disposition on certiorari. Such is the case here as
well.
Pet. App. 186a-187a.
As a result, even
respondents and numerous other same-sex couples
who have vindicated their fundamental right to
marry currently live in legal limbo, remaining unable
to exercise that right. And if certiorari were denied
and the stay lifted without an accompanying decision
from this Court on the merits, respondents and other
same-sex couples would marry under a cloud of legal
uncertainty, not knowing whether or when their
marriages would survive a future ruling by this
Court.
II. This Case Is A Clean
Vehicle For Deciding
Presented.
And Beneficial
The Question
Several petitions are pending that present

questions involving the constitutionality of state laws
forbidding same-sex couples from marrying. For the
reasons that follow, this case presents a particularly
fitting vehicle for resolving the central issue whether
such laws violate the Fourteenth Amendment. At the
very least, this Court should grant certiorari in this
case in conjunction with any other petition it grants
on the subject.

42
15
A. This Court Could Use This Case Alone
To Decide Whether A State May Deny
Same-Sex Couples The Right To Marry.
Two aspects of this case make it very well suited
to enabling this Court to resolve whether the
Fourteenth Amendment allows a state to deny samesex couples the right to marry.
1. This case presents an adverse and unmuddled
dispute between challengers of a marriage ban and a
proper state official presenting a unitary state
defense. Petitioner in this case has consistently and
vigorously opposed respondents challenge. So have
the other state officials who are petitioners
superiors. The district attorney of Tulsa County
the type of law enforcement official who typically
represents states in this Court is co-counsel for
petitioner. The State of Oklahoma joined an amicus
brief in the court of appeals defending the
constitutionality of SQ 711, see Pet. 32, and has
advised respondents that it plans to do so again here.
There accordingly promises to be no doubt or
complication concerning the States position in this
litigation.
2. This case presents a single issue: whether the
Fourteenth Amendment permits a state to deny
same-sex couples the right to marry. The parties,
therefore, will focus all of their energy on that
question.
Some of the plaintiffs from the Utah and Virginia
cases, by contrast, raise another claim. They have
argued (and presumably will continue to argue) that
even if the Fourteenth Amendment does not require
states to allow same-sex couples to marry, comity
principles including the place of celebration rule

42
16
preclude states from refusing to recognize same-sex
marriages validly performed in other states. No
court of appeals has yet addressed that recognition
argument and, especially when it comes to
potentially complicated constitutional issues, this
Court is ordinarily a court of review, not of first
view. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7
(2005). If this Court would prefer at this stage to
consider only whether the Fourteenth Amendment
requires states to allow same-sex marriage, this
Court may appreciate the full and focused briefing
and argument on that issue that this case would
facilitate.
B. At The Very Least, This Court Should
Grant Certiorari In This Case Along
With Any Other It Grants On The
Subject.
Even if this Court grants a petition from Utah or
Virginia, it should grant this petition as well. This is
so for two overarching reasons.
1. The overwhelming importance of the question
presented provides reason alone to grant multiple
cases, just as this Court has done numerous times in
the past. In Brown v. Board of Education, 347 U.S.
483 (1954), for instance, this Court granted certiorari
in four cases from four different states South
Carolina, Kansas, Virginia, and Delaware. Id. at 486
& n.1. Justice Clark later explained: We felt it was
much better to have representative cases from
different parts of the country, and so we consolidated
them. Richard Kluger, Simple Justice 540 (1977).
As a commentator elaborated:

42
17
This consolidated case approach was meant
to give the impression to those who would
find the ultimate decision be it to
overrule segregation or not unpalatable,
that the Court was considering a fair crosssection of cases in a comprehensive and
deliberate manner. . . . Thus, before the first
words of the opinion had been committed to
paper, the Supreme Court had attempted to
pave the way for acceptance of its eventual
decision, whatever it might be, by giving the
appearance
of
impartiality
and
thoroughness.
Robert A. Prentice, Supreme Court Rhetoric, 25 Ariz.
L. Rev. 85, 105-06 (1983); see also Loren Miller, The
Petitioners: The Story of the Supreme Court of the
United States and the Negro 345 (1966) (The state
cases all presented the issue of the application of the
equal-protection-of-law clause of the Fourteenth
Amendment, and the Court could have reached and
decided that question in any one of them, but the
wide geographical range gave the anticipated
decision a national flavor.).
Brown is by no means an anomaly in this respect.

In the case now known simply as Miranda v. Arizona,
384 U.S. 436 (1966), this Court actually granted and
decided separate cases from Arizona, California, and
New York, allowing it to hear law enforcement
perspectives from a variety of jurisdictions. More
recently, in Miller v. Alabama, 132 S. Ct. 2455 (2012),
this Court granted cases from Alabama and Arkansas
to decide whether states run afoul of the Eighth
Amendment by imposing mandatory life in prison
without the possibility of parole for juvenile

42
18
offenders. And just last Term, this Court granted
and consolidated two cases in order to decide whether
federal
regulations
requiring
closely
held
corporations to provide insurance covering certain
forms of contraceptives violated the Religious
Freedom Restoration Act. Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014) (decided together
with Conestoga Wood Specialties Corp. v. Burwell).
This Court also granted the petitions in Riley v.
California and United States v. Wurie to decide a
common
question
involving
the
Fourth
Amendments applicability to cellphones. Riley v.
California, 134 S. Ct. 2473, 2480 (2014).
In this case, this Courts deliberative process
and the stature of its eventual decision may
likewise benefit from dealing with more than just one
case from one state. None of the three states from
which petitions involving same-sex marriage bans
have emerged has a history and perspective on the
issue exactly like the others. To explore just one axis
of divergence, the Virginia Attorney General touts
Virginias broad denial of rights to same-sex couples,
while at the same time denouncing his states laws as
undeserving of defense from the states highest law
enforcement officer. Pet. for Cert. at 33-34, 39,
Rainey v. Bostic, No. 14-153. Utah officials have
consistently defended that states ban on same-sex
marriages. But some 1,300 such marriages were
nevertheless performed earlier this year, before the
district court ruling invalidating its ban in that
states litigation was stayed by this Court a
development that might play some role in evaluating
purported state interests in prohibiting such
marriages or recognizing existing ones. See Herbert
v. Kitchen, 134 S. Ct. 893 (2014).

42
19
Oklahoma, for its part, has remained
unambiguously and steadfastly opposed to same-sex
marriage, and no such marriages have ever been
performed in the State.
Pet. App. 55a, 187a.
Furthermore, Oklahomas condemnation of same-sex
couples is even more sweeping than Virginias.
Oklahoma is the only one of the three states before
this Court that specifically makes it a crime and a
crime at the constitutional level at that to issue a
same-sex marriage license. See Okla. Const. art. 2,
35(C). The Oklahoma Governor feels so strongly on
the subject that she recently refused, even after the
Windsor decision, to allow the Oklahoma National
Guard to process benefits for Guard members samesex spouses on state property an action that forced
some individuals to travel considerable distances to
federal military installations to obtain their federally
guaranteed dispensations.16
Indeed, should this Court wish to approach the
question presented through the lens of this Courts
animus jurisprudence, the robust legislative and
public record from Oklahoma regarding same-sex
marriage would make this case especially amenable
to doing so. In Windsor, this Courts five-Justice
majority found it critical, if not decisive, that DOMAs
purpose was to promote an interest in protecting the
16
See Richard A. Oppel, Jr., Texas and 5 Other States

Resist Processing Benefits for Gay Couples, N.Y. Times, Nov.
10, 2013; Russell Mills, Fallin: OK Will No Longer Process
Benefits For National Guard Couples, KRMG News, Nov. 20,
2013 (defending this position on the basis of SQ 711),
http://www.krmg.com/news/news/local/fallin-ok-will-no-longerprocess-benefits-national/nbydX/?__federated=1.

42
20
traditional moral teachings reflected in heterosexualonly marriage laws. 133 S. Ct. at 2693 (citation
omitted). This improper animus or purpose
reflected even in the title of the Act demeaned
couples, whose moral and sexual choices the
Constitution protects.
Id. at 2493-94; see also
Lawrence v. Texas, 539 U.S. 558, 577 (2003)
(majoritarian morality is not a sufficient reason for
upholding a law prohibiting [a] practice (citation
omitted)); id. at 583 (OConnor, J., concurring)
(Moral disapproval of a group cannot be a legitimate
government interest.).
So too here. The primary purpose of SQ 711
originally titled the Marriage Protection Amendment
is to promot[e] . . . one specific moral view of
marriage.
Pet. App. 168a.
As one legislator
explained in a typical remark: This is a Bible Belt
state . . . . Most people dont want that sort of thing
here. . . . Gay people might call it discrimination, but
I call it upholding morality. Id. 168a-169a; see also
id. 168a-170a (collecting numerous similar quotations
from draftsperson of SQ 711 and other proponents).
The district court consequently held as a matter of
law that moral disapproval of same-sex marriage
motivated the passage of SQ 711. Id. 170a.17
17
To the extent Judge Holmes sought to distance himself

from the district courts animus analysis, see Pet. App. 57a-84a,
his separate opinion only deepens the need for this Court to
weigh in on the subject. The lower courts are divided over when
animus is present and whether moral disapproval constitutes
animus.
See id. 56a-57a (contrasting marriage equality
decisions that have not relied on animus with those that have
taken a different tack and suggested that similar laws may

42
21
None of this is to say that these divergences or
others among the three states necessarily render any
one of these cases the optimal vehicle for resolving
the question presented; it is too soon to know how all
of the variations may ultimately play out in merits
briefing and oral argument.
The point at this
juncture is that having different states and their
different stories before the Court would enlarge this
Courts outlook and enhance its options.
This Court may wish, for example, to hear one
hour of oral argument as to whether some form of
enhanced scrutiny applies to laws such as SQ 711
and another hour on the supposition that rationalbasis review applies much as this Court proceeded
last Term in Riley and Wurie, where the second hour
of argument in the latter case allowed the Court to
explore arguments that could have led to a
comparatively narrower ruling. Alternatively, if this
Court wishes to bring before it the issue whether
states at least must recognize marriages validly
suffer from unconstitutional animus); compare, e.g., Obergefell,

962 F. Supp. 2d. at 996 (finding pure animus in the absence of
state justifications not related to the impermissible expression
of disapproval of same-sex married couples), with Kitchen, 961
F. Supp. 2d at 1208-09 (refusing, in the absence of more explicit
guidance from this Court, to find animus based on moral views
that same-sex couples are immoral and inferior to opposite-sex
couples); see also Susannah W. Pollvogt, Unconstitutional
Animus, 81 Fordham L. Rev. 887, 890, 890-91 (2012) (noting
rising confusion and need for this Courts guidance over what
exactly counts as evidence of animus and whether moral
disapproval and unconstitutional animus [are] really the same
thing). This case presents an excellent opportunity to offer
further guidance on the issue.

42
22
performed in other jurisdictions, this Court may wish
to couple this case with another presenting that
secondary issue. Such a coupling would resemble
this Courts approach last Term in Hobby Lobby and
Conestoga Wood. There, counsel in Hobby Lobby
concentrated exclusively on the legal theory on which
the courts of appeals thus far had focused, while
granting Conestoga Wood allowed the Court to
receive argument on a second legal theory involving
the Free Exercise Clause. Given the stakes involved
here, extra briefing and argument along these lines,
or possibly others, warrant serious contemplation.
2. Granting multiple cases would also protect
against any procedural difficulties that may arise. As
this Court is well aware, the issue of standing has
been a bugaboo in same-sex marriage cases, causing
it to dismiss one such case and four Justices to vote
for dismissal in another. See Hollingsworth, 133 S.
Ct. at 2659; Windsor, 133 S. Ct. at 2697-2705 (Scalia,
J., dissenting) (advocating full dismissal); id. at 2711
(Alito, J., dissenting) (advocating partial dismissal).
This Court and others also have sometimes struggled
to determine the proper official to speak on behalf
of the people of a state, especially when different
officials have taken different positions. Graddick v.
Newman, 453 U.S. 928, 934 (1981) (Powell, J., in
chambers); see also, e.g., Louisiana ex rel. Guste v.
Roemer, 949 F.2d 145, 150 (5th Cir. 1991).
Each of the three cases now before the Court is
configured somewhat differently. In this case, a court
clerk required directly to administer Oklahoma law is
petitioner, with full backing from other state officials.
In the Utah case, no clerk is among the petitioners;
instead, the Governor and Attorney General seek

42
23
reversal of the Tenth Circuits decision in their
capacities as supervisors of county and district
officers. Herbert v. Kitchen, No. 14-124. In the
Virginia case, advocacy on the defense side of the
case has splintered. A registrar of vital records seeks
review of the Fourth Circuits decision but speaking
through the Attorney General seeks an affirmance
rather than a reversal. Rainey v. Bostic, No. 14-153.
Meanwhile, a court clerk who supports the states
ban, speaking through private counsel, has filed a
petition for certiorari, Schaefer v. Bostic, No. 14-___,
and another such clerk, speaking through different
private counsel, promises to seek review of the
Fourth Circuits decision, see Application to Stay
Mandate Pending Appeal, McQuigg v. Bostic, No.
14A196. Given all of these permutations, this may be
a situation in which a belt-and-suspenders approach
that is, granting multiple cases is the most
prudent course. Cf. Dept of Commerce v. U.S. House
of Representatives, 525 U.S. 316, 328-34 (1999)
(granting multiple petitions in case where standing
was questionable); INS v. Chadha, 462 U.S. 919, 92944 (1983) (same where justiciability was questionable
for various reasons).
Even apart from any procedural complexities
these cases may present, the sheer importance of
resolving the question presented without undue delay
may counsel towards granting multiple petitions. In
its petition for certiorari in United States v. Booker,
543 U.S. 220 (2005), involving the constitutionality of
the Federal Sentencing Guidelines, the government
suggested that this Court grant plenary review not
only in that case but also in a second case, United
States v. Fanfan, No. 04-105. The government
suggested that simultaneous grants would assure

42
24
that the Court has a vehicle in which to reach and
resolve the vitally important questions presented by
protect[ing] against any possibility that later
impediments to review in one or the other case might
prevent timely resolution of the issues. Pet. for
Cert. at 24-25, United States v. Booker, 543 U.S. 220
(2005) (No. 04-104).
This Court granted both
petitions, set the cases for argument in tandem, and
decided both cases together on the merits. Less than
two years later, in November of 2006, the Court
confronted a follow-up issue nearly as important as
Booker itself (concerning the implementation of its
remedy), and granted a single case to resolve it. See
Claiborne v. United States, 549 U.S. 1016 (2006).
The Court then had to dismiss the case in June
because the petitioner unexpectedly died, 551 U.S. 87
(2007) (per curiam), delaying an opinion on the issue
for six more months, see Gall v. United States, 552
U.S. 38, 40-41 (2007).
It should hardly need saying that, so far as
petitioners know, no one has any reason to believe
that any comparable misfortune could occur here.
But the fact remains that justiciability in these
lawsuits depends upon couples professing the desire
to marry and, perhaps, on the presence or views of
certain kinds of defendants. This Court should not
take a chance that any one case will unexpectedly go
sideways, and thereby deprive this Court of the
ability to issue a timely decision on the merits.

42
25
III. The Court Of Appeals Correctly Held That
The Fourteenth Amendment Prohibits
States From Denying Same-Sex Couples
The Right To Marry.
The judgment of the Tenth Circuit should be
affirmed.
Like
countless
other
Americans,
respondents are a loving, committed couple who seek
to attain the dignity and status of immense
import that marriage confers. Windsor, 133 S. Ct. at
2692. Yet SQ 711 denies them the freedom to marry
based on impermissible moral disapproval. Pet.
App. 170a. Petitioners also advance various post-hoc
justifications related to same-sex couples supposed
lack of natural procreativity, Pet. 29, which are as
ill-fitting as they are unfitting as state interests.
This case, therefore, offers this Court many
jurisprudential options for reviewing and
repudiating the marriage ban at issue. This Court
could apply strict scrutiny to SQ 711 for denying
respondents and other same-sex couples the
fundamental right to marry; heightened scrutiny for
discriminating on the basis of sexual orientation; or
intermediate scrutiny for discriminating on the basis
of gender. But in the end, the marriage ban cannot
survive any level of review, not even rational-basis
scrutiny.

42
26
A. Enhanced Scrutiny Applies To State
Laws Denying Same-Sex Couples The
Right To Marry.
1. The fundamental right to marry. Denying a
fundamental right to a class triggers strict scrutiny
as a matter of due process, Reno v. Flores, 507 U.S.
292, 302 (1993), and equal protection, Plyler v. Doe,
457 U.S. 202, 216-17 (1982). The Tenth Circuit
correctly held (Pet. App. 17a) that SQ 711 denies
gays and lesbians the fundamental right to marry.
Petitioner argues that this holding is
incompatible with this Courts instruction in
Washington v. Glucksberg, 521 U.S. 702 (1997), to
define fundamental rights with precision. Pet. 24.
But in upholding the fundamental freedom to
marry, Loving, 388 U.S. at 12, this Court has never
narrowed its universality by recasting it as a more
limited right to interracial marriage (cf. Loving),
right to inmate marriage (cf. Turner v. Safley, 482
U.S. 78 (1987)), or to use Petitioners term right
to man-woman marriage. To the contrary, as this
Court has recognized, the right to marry is a
cherished freedom for all individuals. Zablocki, 434
U.S. at 384.
Indeed, petitioners contention that respondents
seek a new right to marry a person of the same sex
(Pet. 24) exemplifies a failure to appreciate the
extent of the liberty at stake, Lawrence, 539 U.S. at
567, reminiscent of Bowers v. Hardwick, 478 U.S. 186
(1986). While it is true that the possibility of samesex couples marrying had not occurred to many until
recent decades, this Court at pivotal moments in this
Nations history has rightly embraced new insight
that even the most entrenched tradition of exclusion

42
27
may mask an injustice . . . not earlier known or
understood. Windsor, 133 S. Ct. at 2689; see, e.g.,
Lawrence, 539 U.S. at 577-78 (observing that
neither history nor tradition could save a law
prohibiting miscegenation from constitutional attack
(citation omitted)); Brown, 347 U.S. at 494-95
(overruling Plessy v. Ferguson, 163 U.S. 537 (1896)).
Affirming the freedom to marry of all Americans
regardless of gender would not uproot that
fundamental right, but rather would enable its
realization.
2. Sexual orientation discrimination. For the
reasons amply set forth by the Second Circuit,18 the
Ninth Circuit,19 and the Solicitor General,20
heightened scrutiny should apply to laws that single
out gays and lesbians for discriminatory treatment.
See also Aplee. CA10 Br. at 21-24, 31-41. At the very
least, the form of scrutiny this Court employed in
Windsor should apply. See Windsor, 133 S. Ct. at
2706 (Scalia, J., dissenting) (observing that the
Court certainly d[id] not apply anything that
resembles the deferential framework of rational
basis review to DOMAs refusal to recognize same-sex
marriages); supra at 20-21 (explaining why Windsors
skepticism concerning DOMA applies here as well).
18
See Windsor v. United States, 699 F.3d 169, 181-85 (2d

Cir. 2012).
19
See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d

471, 480-84 (9th Cir. 2014).
20
See Brief for the United States on the Merits Questions

at 22-36, United States v. Windsor, 133 S. Ct. 2675 (2013) (No.
12-307).

42
28
The benefit denied by [laws forbidding same-sex
marriage] the status of civil marriage for same-sex
couples is so closely correlated with being
homosexual as to make it apparent the law is
targeted at gay and lesbian people as a class.
Varnum v. Brien, 763 N.W.2d 862, 885 (Iowa 2009)
(quoting Lawrence, 539 U.S. at 583 (OConnor, J.,
concurring)).
3. Gender discrimination. Discriminating on the
basis of gender triggers intermediate scrutiny. See,
e.g., United States v. Virginia, 518 U.S. 515, 531, 533
(1996). SQ 711 defines the two parties to a marriage
on the basis of gender only one man and one
woman. Okla. Const. art. 2, 35(A). This Court
could view this as a gender classification no less so
than a law dictating that two job positions must go
only to one man and one woman. Petitioners
vigorous defense of SQ 711 as a gendered (manwoman)
institution
(Pet.
1)
exposes
this
classification for what it is.
Petitioner has argued that SQ 711 does not
classify on the basis of gender because any man or
woman may marry a person of the opposite sex.
Aplt. CA10 Br. at 42. But the suggestion that a
gender-based restriction on whom both males and
females may marry somehow cancels out rather than
doubles the classification is in serious tension with
this Courts precedent. See Loving, 388 U.S. at 8
(reject[ing] the notion that the mere equal
application of a statute containing racial
classifications is enough to remove the classifications
from the Fourteenth Amendments proscription of all
invidious racial discriminations).

42
29
B. State
Laws
Banning
Same-Sex
Marriage Fail Every Level Of Review.
In the end, no matter what level of scrutiny this
Court applies to SQ 711, the law is unconstitutional.
Of the four justifications she proffered below,
petitioner now concentrates on two: to steer
naturally procreative relationships into enduring
unions, and to connect children to both their mother
and their father. Pet. 29. As the district courts
opinion demonstrates, each of these supposed
justifications well exceeds even the limits of
rationality. Pet. App. 178a.
As to the first goal, it would require nothing
short of a titanic surrender to the implausible, City
of Erie v. Paps A. M., 529 U.S. 277, 323 (2000)
(Stevens, J., dissenting), to suppose that barring
devoted same-sex couples such as respondents from
marrying would make their opposite-sex counterparts
more inclined to marry or, conversely, that allowing
same-sex couples to marry would make opposite-sex
couples less inclined to marry. This certainly has not
been the experience of states where same-sex couples
have enjoyed the freedom to marry, where marriage
rates generally have increased, and marriage rates of
opposite-sex couples have held steady or risen. See
CA10 Brief of Massachusetts et al. as Amici Curiae at
22-23. In any case, if the State were truly concerned
with incentivizing marriage for only couples who are
in naturally procreative relationships, petitioner
has not offered a plausible explanation for the
substantial underinclusivity and arbitrariness of
allowing the infertile, the elderly, and every other
class of heterosexual couples to marry regardless of
procreative ability or intent. See City of Cleburne v.

42
30
Cleburne Living Ctr., 473 U.S. 432, 446 (1985)

(denying government benefit to only one class among
many similarly situated with respect to asserted
government interest is arbitrary and irrational).
As to the second asserted goal of connect[ing]
children to both their mother and their father, the
underlying premise that biological parents make
optimal parents (Pet. App. 178a) has been roundly
refuted by decades of widespread scientific consensus
that children fare as well with same-sex parents. See
DeBoer v. Snyder, 973 F. Supp. 2d 757, 770-71 (E.D.
Mich. 2014) (canvassing the overwhelming weight of
the scientific evidence contradicting the optimal
parenting premise); see also CA10 Brief of American
Psychological Assn et al. as Amicus Curiae at 17-23
(same); CA10 Brief of American Sociological Assn at
8-14 (same).
In any case, Oklahoma law is again fatally
underinclusive as well as overinclusive with respect
to that purported goal. SQ 711 denies marriage to
one type of couple based on assumptions about the
inability of gay and lesbian parents to provide an
optimal child-rearing environment, Pet. App. 182a,
while allowing virtually every other type of couple to
marry regardless of such considerations, including (to
name a few) drug users, physical abusers, and sex
offenders.
Additionally, as the Tenth Circuit
observed, Oklahoma has barred all same-sex
couples, regardless of whether they will adopt, bear,
or otherwise raise children, from the benefits of
marriage, while allowing opposite-sex couples to
marry who only wish to adopt or can only beget
children by assisted means. Id. 21a. Putting aside
whether a state can bar an entire class of individuals

42
31
from marriage based on their protected liberty to
beget or raise children in the manner of their
choosing, see Eisenstadt v. Baird, 405 U.S. 438, 453
(1972), Oklahomas classification is so discontinuous
with the reasons offered for it that it cannot pass
rational basis review. Romer, 517 U.S. at 632.
By contrast, the marriage ban inflicts harm in
real, tangible, and substantial ways upon members of
the very class the state purports to protect. Over
1,200 same-sex households in Oklahoma reported
raising their own children in the 2010 census. See
Pet. App. 176a. SQ 711 denies these children the
critical array of legal protections and financial
benefits that come with married parents, and
undermines their ability to understand the integrity
and closeness of their own family and its concord
with other families in their community and in their
daily lives. Windsor, 133 S. Ct. at 2694.
* * *
Public support for marriage equality for gay and
lesbian Americans is rising dramatically a fact that
might tempt this Court to put off its consideration of
this issue as the democratic march toward equality
moves forward.21 But this Court should not defer
final resolution of the question presented in this case.
It is a bedrock principle of our constitutional system
21
See Justin McCarthy, Same-Sex Marriage Support

Reaches New High at 55%, Gallup Politics (May 21, 2014);
However, opposition to same-sex marriage remains persistent in
some states, including Oklahoma.
See Curtis Killman,
Opposition Strong to Gay Marriage, According to Poll, Tulsa
World (June 30, 2014).

42
32
that fundamental rights may not be submitted to
vote; they depend on the outcome of no elections.
West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624, 638 (1943). It is, therefore, both proper and
vital for this Court to decide whether the Fourteenth
Amendment secures gay and lesbian Americans the
freedom to marry on equal terms with other citizens.
Each day this principle remains in doubt, our Nation
fails to live up to its founding charter.
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.
DON G. HOLLADAY
JAMES E. WARNER III
Holladay & Chilton PLLC
204 N. Robinson Avenue
Suite 1550
(405) 236-2343
dholladay@holladay
chilton.com
JOSEPH THAI
300 Timberdell Road
Norman, OK 73019
August 27, 2014
JEFFREY L. FISHER
Counsel of Record
Stanford Law School
Supreme Court
Litigation Clinic
559 Nathan Abbott Way
Stanford, CA 94305
(650) 724-7081
jlfisher@law.stanford.edu

Document: 01019221405

_________________________________
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
March 21, 2014

Clerk of Court
MARY BISHOP, et al.,

Plaintiffs Appellees,
and
SUSAN G. BARTON, et al.,
Plaintiffs Appellees/CrossAppellants,
v.
State of Oklahoma,
Nos. 14-5003 & 14-5006

(D.C. No. 4:04-CV-00848-TCK-TLW)
Defendant - Appellant/CrossAppellee,
UNITED STATES OF AMERICA, ex rel.
Eric H. Holder, Jr., in his official capacity
as Attorney General of the United States of
America,
Defendant,
and
REPRESENTATIVES, et al.,
Intervenor-Defendants.
-----------------------------DAVID R. UPHAM, et al.,
Amici Curiae.
Exhibit 6

Document: 01019221405
Page: 2
_________________________________
ORDER
_________________________________
These matters are before the court to outline the protocol to be followed for the
oral argument scheduled for Thursday, April 17, 2014 at the Byron White United States
Courthouse. The proceedings will begin promptly at 1:30 pm.
Courtroom Location and Seating
The oral argument hearing will be held in Division I of the Byron White
Courthouse. That courtroom will be open at 12:45 pm. Seating for the public will be on a
first-come, first-seated basis. Two rows of seating will be reserved for members of the
press. However, only one representative from each media organization or entity will be
allowed to sit in the reserved seating space.
On or before 4:00 pm on Friday April 11, 2014, those press representatives
seeking to sit in the reserved area shall contact Courtroom Coordinator Janet Gregor at
303-335-2970 to confirm attendance. A list of confirmed media attendees for the reserved
area will be available on the day of arguments and only those press representatives will
be allowed to sit in the reserved area. Press credentials will be required. Media
representatives who are not on the list will be seated on a first-come, first-seated basis.
Identification
All members of the press, counsel and the public will be required to show proper
government identification to enter the courthouse. In addition, all entrants to the

Document: 01019221405
Page: 3
courthouse will be required to undergo full security screening. No one will be allowed in
the courthouse or courtrooms absent a display of appropriate and valid identification.
Prohibition on Broadcasting, Recording and Photography
No audio recording, broadcasting, video recording or photography will be allowed
anywhere in the courthouse during oral arguments. This prohibition includes blogging,
tweeting, emailing or any other broadcast mechanism or wireless communication.
Likewise, recording and any kind of photography is strictly prohibited.
Use of Laptops and Tablets in the Courtrooms
All electronic devices will be subject to security screening. As long as the use of
battery powered laptops or tablets is not disruptive to the proceedings, however, counsel
and the media will be allowed to use such devices in the courtrooms. The use of any
electronic device is subject to the prohibitions noted in the preceding paragraph. Any
violation of the prohibition will be addressed immediately by court security personnel.
Cell Phones
Upon completion of security screening, cell phones may be brought into the
courtrooms. The prohibition against recording, photography and broadcasting applies
equally, however, to cell phone usage. In addition, all phones must be placed in vibrate
mode or turned off in the courthouse.
Overflow Audio and Video Feed Access
There will be a second courtroom open to the public with an audio and fixed point
video feed of the proceedings. Seating in that courtroom will be first-come, first-seated.

Document: 01019221405
Page: 4
Media and Public Areas

All media interviews must take place outside the courthouse. Public gatherings are
allowed in the area of the public sidewalks. At no time may public access to the
courthouse be impeded by news media.
Digital Recordings
Audio recordings of the arguments will be made available on the courts public
website within 24 hours of the hearing on April 17. Both attorneys and the public may
access them there. Counsel in the appeal need not follow the protocol set forth in 10th
Circuit Rule 34.1(E)(1).
Entered for the Court
ELISABETH A. SHUMAKER, Clerk

Document: 01019332016

_________________________________
MARY BISHOP, et al.,
Page: 1
FILED
United States Court of Appeals
Tenth Circuit
October 28, 2014

Clerk of Court
Plaintiffs - Appellees,
and
SUSAN G. BARTON, et al.,
Plaintiffs - Appellees/
Cross-Appellants,
v.
Nos. 14-5003 & 14-5006

(D.C. No. 4:04-CV-00848-TCK-TLW)

State of Oklahoma,
Defendant - Appellant/
Cross-Appellee,
and
UNITED STATES OF AMERICA, ex rel.
ERIC H. HOLDER, JR., in his official
capacity as Attorney General of the United
States of America,
Defendant,
and
REPRESENTATIVES, et al.,
Intervenors - Defendants.
_________________________
Exhibit 7

Document: 01019332016
Page: 2
DOUGLAS W. ALLEN, Ph.D., et al.,

Amici Curiae.
_________________________________
ORDER
_________________________________
Before KELLY, LUCERO, and HOLMES, Circuit Judges.
These matters are before the court on plaintiffs Application for Appeal-Related
Attorneys Fees and Motion for Remand to District Court to Determine Amount and Brief
in Support. We also have a response from the defendant. In their motion, plaintiffs seek
an award of fees for all plaintiffs as prevailing parties under 42 U.S.C. 1988(b).
Upon consideration, the motion is granted in part and denied in part. We deny the
request for fees as it relates to an award for plaintiffs Barton and Phillips, who did not
prevail on appeal. We grant the motion, however, as it relates to plaintiffs Bishop and
Baldwin. We remand to the United States District Court for the Northern District of
Oklahoma to conduct all proceedings necessary to determine an appropriate award
amount.
A copy of this order shall stand as a supplement to the mandate issued originally
on October 6, 2014.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
Case
4:04-cv-00848-TCK-TLW
Document 303-8 Filed in USDC ND/OK on 01/05/15 Page
Page
1 of
14-5003
Docket
1 of
5118
General Docket
Tenth Circuit Court of Appeals
Court of Appeals Docket #: 14-5003
Nature of Suit: 2950 Constitutionality of State Statutes
Bishop, et al v. Smith, et al
Appeal From: United States District Court for the Northern District of Oklahoma - Tulsa
Fee Status: Fee Paid
Docketed: 01/17/2014
Termed: 07/18/2014
Case Type Information:

1) civil
2) USA as party
3) Originating Court Information:
District: 1085-4 : 4:04-CV-00848-TCK-TLW
Court Reporter: Terri Beeler, Trial Judge: Terence C. Kern, -, U.S. District Judge
Date NOA Filed:
01/16/2014
Prior Cases:
06-5188 Date Filed: 09/21/2006
Date Rec'd COA:

01/16/2014
Date Disposed: 06/05/2009
Disposition: Reversed and Remanded
Current Cases:
Lead
Member
Start
End
14-5003
14-5006
01/27/2014
14-5003
14-5006
13-4178
13-4178
01/28/2014
01/28/2014
Cross-appeal
Related
Panel Assignment:
Not available
SHARON BALDWIN
Plaintiff - Appellee

Email: craigbailey1@cox.net
[NTC Retained]
Firm: 918-595-8818
259 Waverly Drive
Tulsa, OK 74104-2129
Don Gardner Holladay, Esq.
Direct: 405-236-2343
Email: dholladay@holladaychilton.com
[NTC Retained]
Holladay & Chilton
Firm: 405/236-2343
204 North Robinson Avenue, Suite 1550
Email: tim@studebakerworleylaw.net
[NTC Retained]
Studebaker & Worley
Firm: 918-770-4890
5801 East 41st, Suite 300
Tulsa, CO 74135
Joseph T. Thai
Email: thai@post.harvard.edu
[NTC Retained]
Firm: 405/204-9579
300 Timberdell Road
Norman, OK 73019
James Edward Warner, III, Esq.
Direct: 405-236-2343
Email: jwarner@holladaychilton.com
[NTC Retained]
Holladay & Chilton
Firm: 405/236-2343
https://ecf.ca10.uscourts.gov/cmecf/servlet/TransportRoom
Exhibit 8
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Document 303-8 Filed in USDC ND/OK on 01/05/15Page
Page
2 of
14-5003
Docket
34 of
5118
01/17/2014
107 pg, 699.27 KB
01/17/2014
[10141955] Civil case docketed. Preliminary record filed. DATE RECEIVED: 01/16/2014 Docketing
statement due 01/31/2014 for Sally Howe Smith. Transcript order form due 01/31/2014 for Bryon J.
Babione. Notice of appearance due on 01/31/2014 for Sharon Baldwin, Susan G. Barton, Mary Bishop,
Gay E. Phillips and Sally Howe Smith. [14-5003]
[10141971] Notice of an NDA re-sent to Kerry W. Kircher. [14-5003]
01/17/2014
108 pg, 431.54 KB
01/17/2014
[10142060] Amended preliminary record on appeal filed. The amended preliminary record corrects
typographical errors. [14-5003]
This entry ([10142233] Notice of appearance submitted by Byron J. Babione; James A. Campbell for
Appellant Sally Howe Smith) has been removed from the docket. An amended pleading has been
submitted. [SLS] BJB
01/17/2014
93 pg, 215.96 KB
01/17/2014
13 pg, 36.26 KB
01/20/2014
[10142234] Docketing statement filed by Sally Howe Smith. Served on 01/17/2014. Manner of Service:
email. [14-5003] JAC
[10142235] Motion filed by Appellant Sally Howe Smith to expedite case. Served on: 01/17/2014. Manner
of service: email. This pleading complies with all required (privacy, paper copy and virus) certifications:
Yes. [14-5003] JAC
[10142245] Notice of appearance submitted by Don G. Holladay James E. Warner III for Appellees Ms.
Sharon Baldwin, Ms. Susan G. Barton, Ms. Mary Bishop and Ms. Gay E. Phillips for court review.
Certificate of Interested Parties: No. Served on 01/20/2014. Manner of Service: email. [14-5003]--[Edited
01/21/2014 by AT to remove PDF as pleading was filed on 1/21/14.] JEW
01/21/2014
2 pg, 59.95 KB
01/21/2014
[10142285] Notice of appearance filed by Mr. Don Gardner Holladay, Esq. and Mr. James E. Warner for
Ms. Gay E. Phillips, Ms. Mary Bishop, Ms. Susan G. Barton, and Ms. Sharon Baldwin. CERT. OF
INTERESTED PARTIES: n. Served on 01/20/2014. Manner of Service: email. [14-5003]
[10142478] Notice of appearance submitted by Byron J. Babione; James A. Campbell for Appellant Sally
Howe Smith for court review. Certificate of Interested Parties: Yes. Served on 01/21/2014. Manner of
Service: email. [14-5003] --[Edited 01/21/2014 by SLS to remove PDF file from docket entry.] BJB
01/21/2014
5 pg, 40.42 KB
01/21/2014
3 pg, 11.71 KB
[10142537] Notice of appearance filed by Mr. Byron Jeffords Babione and Mr. James Andrew Campbell
for Ms. Sally Howe Smith. CERT. OF INTERESTED PARTIES: y. Served on 01/21/2014. Manner of
Service: email. [14-5003]
[10142664] Notice received from Sally Howe Smith that a transcript is not necessary for this appeal.
Served on: 01/21/2014. Manner of Service: email [14-5003] BJB
01/21/2014
[10142699] Notice of appearance submitted by Austin David Robert Nimocks for Appellant Sally Howe
Smith for court review. Certificate of Interested Parties: Yes. Served on 01/21/2014. Manner of Service:
email. [14-5003]--[Edited 01/22/2014 by KLP to delete the attachment; entry filed.] DAN
01/22/2014
[10142768] Minute order filed - Notice due that record is complete by 02/18/2014 for Philip Lombardi,
Clerk of Court. (Text Only - No Attachment) [14-5003]
01/22/2014
2 pg, 30.3 KB
01/28/2014
3 pg, 88.86 KB
01/29/2014
2 pg, 22.27 KB
01/29/2014
1 pg, 394.39 KB
01/29/2014
1 pg, 63.7 KB
01/29/2014
[10142771] Notice of appearance filed by Mr. David Austin Robert Nimocks for Sally Howe Smith. CERT.
OF INTERESTED PARTIES: n. Served on 01/22/2014. Manner of Service: email. [14-5003]
[10144545] Order filed by Clerk of the Court (EAS) upon consideration, and at the direction of the court,
granting Sally Howe Smith's motion to expedite appeal filed in 14-5003. The directives in this order apply
to 14-5003 and 14-5006. These cases will be assigned to the same panel considering 13-4178, but the
appeals will brief separately and be set for argument separately. The amicus parties may file briefs jointly
in all three cases as set forth. First brief on cross-appeal and appendix due 02/24/2014 for Sally Howe
Smith. Second cross-appeal brief and any supplemental appendix due 03/17/2014. Third brief on crossappeal due 04/01/2014. Fourth brief on cross-appeal due 04/07/2014. Requests for extension of time are
discouraged. A copy of this order shall be forwarded to all counsel in 13-4178. Please see attached order
for further details. Served on 01/28/2014. [14-5003, 14-5006, 13-4178]
[10145021] Order filed by Clerk of the Court setting this case for oral argument on April 17, 2014 at 1:30
p.m. Served on 1/29/2014. [14-5003, 14-5006]
[10145026] Calendar notice sent to counsel. Arguments to be held on 04/17/2014 at 1:30 p.m. in
Courtroom I of the Byron White United States Courthouse, Denver, CO. Counsel is required to go to
http://www.ca10.uscourts.gov under the argument calendar tab to obtain an important notice regarding
calendared cases and required forms. The calendar acknowledgment form must be completed and filed
with the clerk via Electronic Case Filing within 10 days of today's date. [14-5003, 14-5006]
[10145044] Oral Argument Acknowledgment Form filed by Ms. Sharon Baldwin, Ms. Susan G. Barton, Ms.
Mary Bishop and Ms. Gay E. Phillips in 14-5003, Ms. Susan G. Barton in 14-5006. Served on 01/29/2014.
Manner of Service: email. [14-5003, 14-5006] DGH
[10145056] Notice of appearance submitted by Don G. Holladay, James E. Warner III, Joseph Thai for
Appellants Ms. Susan G. Barton and Ms. Gay E. Phillips in 14-5006 for court review. Certificate of
Interested Parties: No. Served on 01/29/2014. Manner of Service: US mail. [14-5006, 14-5003] [Edited to
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
3 of
14-5003
Docket
35 of
5118
remove PDF as pleading has been filed as of 1/29/14 and to reflect that service was via US mail -- Edited
01/29/2014 by NA] JEW
01/29/2014
2 pg, 44.75 KB
01/30/2014
5 pg, 21.66 KB
[10145193] Notice of appearance filed by Mr. Joseph T. Thai, Mr. Don Gardner Holladay, Esq. and Mr.
James Edward Warner, III, Esq. for Ms. Gay E. Phillips, Ms. Mary Bishop, Ms. Sharon Baldwin and Ms.
Susan G. Barton. CERT. OF INTERESTED PARTIES: n. Served on 01/29/2014. Manner of Service: US
mail [14-5003]
[10145328] Joint Notice of Consent to Filing of Amicus Curiae Briefs in 14-5003, 14-5006 filed by
Appellees, Appellees/Cross-Appellants, and Appellant/Cross-Appellee. Served on 01/30/2014. Manner of
Service: email. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes.
[14-5003, 14-5006] [Edited change docket event and text to reflect title of pleading and add party filers-Edited 01/30/2014 by NA] BJB
02/01/2014
[10145913] Notice of appearance submitted by STEPHEN KENT EHAT for AMICI CURIAE THE CENTER
FOR URBAN RENEWAL AND EDUCATION, THE COALITION OF AFRICAN-AMERICAN PASTORS
USA, AND THE FREDERICK DOUGLASS FOUNDATION, INC. for court review. Certificate of Interested
Parties: No. Served on 02/01/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006] [Edited to
remove PDF as pleading has been filed as of 2/3/14--Edited 02/03/2014 by NA] SKE
02/01/2014
This entry -entry of appearance by Stephen Kent Ehat has been removed from the docket as it is a
duplicate entry [NA] [10145914] [13-4178, 14-5003, 14-5006] SKE
02/03/2014
4 pg, 40.69 KB
02/04/2014
[10145931] Notice of appearance filed by Mr. Stephen Kent Ehat for The Center for Urban Renewal and
Education, The Coalition of African-American Pastors USA and The Frederick Douglass Foundation, Inc.
in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/01/2014. Manner of
Service: email [13-4178, 14-5003, 14-5006]
[10146487] Notice of appearance submitted by David R. Upham for Professor David R. Upham for court
review. Certificate of Interested Parties: No. Served on 02/04/2014. Manner of Service: email. [13-4178,
14-5003, 14-5006]--[Edited 02/04/2014 by KLP to delete the attachment; entry filed.] DRU
02/04/2014
2 pg, 35.34 KB
02/05/2014
[10146550] Notice of appearance filed by Mr. David Robert Upham for Professor David R. Upham as
amicus curiae in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
02/04/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
[10146753] Notice of appearance submitted by Paul Benjamin Linton for Family Research Council for
court review. Certificate of Interested Parties: No. Served on 02/05/2014. Manner of Service: email. [145003, 14-5006]--[Edited 02/05/2014 by AT to remove PDF as the pleading was filed on 2-5-14.] PBL
02/05/2014
3 pg, 79.12 KB
02/05/2014
[10146786] Notice of appearance filed by Mr. Paul Benjamin Linton for Family Research Counsel in 145003 and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/05/2014. Manner of Service:
email [14-5003, 14-5006]
[10146847] Notice of appearance submitted by Richard D. White, Jr. for Amicus Entering Appearance for
court review. Certificate of Interested Parties: No. Served on 02/05/2014. Manner of Service: email. [134178, 14-5003, 14-5006] --[Edited 02/05/2014 by SLS to remove PDF file from docket entry.] JMF
02/05/2014
4 pg, 27.19 KB
02/05/2014
[10146899] Notice of appearance filed by Mr. Richard D. White, Jr. for Ms. Helen M. Alvare in 13-4178, 14
-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/05/2014. Manner of Service: email.
[13-4178, 14-5003, 14-5006]
[10146932] Filed notice record is complete. Served on 02/05/2014. [14-5003]
1 pg, 20.55 KB
5 pg, 201.85 KB
[10146942] Notice of appearance filed by Mr. Lynn Dennis Wardle for Utah Counties in 13-4178, 14-5003,
14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/05/2014. Manner of Service: email [134178, 14-5003, 14-5006]
3 pg, 178.68 KB
[10147024] Notice of appearance filed by Mr. Jacob Harris Hupart and Mr. Joshua Kaye for Douglas
Wortham, Stanford Rovig, Claudia O'Grady, Nicholas Nero, Charles Fluke and Lynn Beltran in 13-4178,
14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/05/2014. Manner of Service:
email. [13-4178, 14-5003, 14-5006]
3 pg, 181.75 KB
[10147038] Notice of appearance filed by Mr. Alan B. Morrison for Douglas Wortham, Nicholas Nero, Lynn
Beltran, Claudia O'Grady, Stanford Rovig and Charles Fluke. CERT. OF INTERESTED PARTIES: n.
Served on 02/05/2014. Manner of Service: email [13-4178, 14-5003, 14-5006]
02/05/2014
02/05/2014
02/05/2014
02/05/2014
1 pg, 19.34 KB
02/06/2014
[10147059] Oral Argument Acknowledgment Form filed by Sally Howe Smith in 14-5003, 14-5006. Served
on 02/05/2014. Manner of Service: email. [14-5003, 14-5006] BJB
[10147210] Notice of appearance submitted by Thomas M. Fisher for Indiana and other amici States for
court review. Certificate of Interested Parties: No. Served on 02/06/2014. Manner of Service: email. [134178, 14-5003, 14-5006]--[Edited 02/06/2014 by KLP to delete the attachment; entry filed.] TMF
02/06/2014
4 pg, 97.22 KB
[10147280] Notice of appearance filed by Mr. Thomas Molnar Fisher for State of Indiana and other amici
states in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/06/2014.
Manner of Service: email [13-4178, 14-5003, 14-5006]
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
4 of
14-5003
Docket
36 of
5118
[10147299] Notice of appearance submitted by David Cameron Walker, Esq. for Amici Curiae Douglas W.
Allen, Ph.D., David J. Eggebeen, Ph.D., Alan J. Hawkins, Ph.D., Byron R. Johnson, Ph.D., Catherine R.
Pakaluk, Ph.D., Joseph Price, Ph.D., and Mark D. Regnerus, Ph.D. for court review. Certificate of
Interested Parties: No. Served on 02/06/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006] -[Edited 02/06/2014 by SLS to remove PDF file from docket entry.] DCW
02/06/2014
02/06/2014
5 pg, 130.27 KB
02/07/2014
[10147320] Notice of appearance filed by Mr. David C. Walker for Douglas W. Allen, Ph. D., David J.
Eggebeen, Ph. D., Alan J. Hawkins, Ph. D., Byron R. Johnson, Ph. D., Catherine R. Pakaluk, Ph. D.,
Joseph Price, Ph. D. and Mark D. Regnerus, Ph. D. in 13-4178, 14-5003, 14-5006. CERT. OF
INTERESTED PARTIES: n. Served on 02/06/2014. Manner of Service: email. [13-4178, 14-5003, 145006]
[10147603] Notice of appearance submitted by Michael F. Smith for Robert P. George, Sherif Girgis, and
Ryan T. Anderson for court review. Certificate of Interested Parties: No. Served on 02/07/2014. Manner of
Service: email. [13-4178, 14-5003, 14-5006]--[Edited 02/07/2014 by KLP to delete the attachment; entry
filed.] MFS
02/07/2014
3 pg, 59.63 KB
[10147664] Notice of appearance filed by Mr. Michael F. Smith for Sherif Girgis, Mr. Robert P. George and
Mr. Ryan Anderson in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
02/07/2014. Manner of Service: email [13-4178, 14-5003, 14-5006]
02/07/2014
[10147797] Notice of appearance submitted by Frank D. Mylar for American Leadership Fund, Douglas
Ambrose, Ph.D., Herman Belz, Ph.D., Robert D. Benne, Ph.D., Allan C. Carlson, Ph.D., G.M. Curtis,
Ph.D., Michael O. Emerson, Ph.D., Dr. Timothy George, Th.D., Harold James, Ph.D., Steven Justice,
Ph.D., et al. for court review. Certificate of Interested Parties: No. Served on 02/07/2014. Manner of
Service: email. [13-4178, 14-5003, 14-5006] --[Edited 02/07/2014 by SLS to remove PDF file from docket
entry.] FDM
02/07/2014
[10147801] Notice of appearance submitted by Alexander Dushku R. Shawn Gunnarson Justin Starr for
United States Conference of Catholic Bishops et al. for court review. Certificate of Interested Parties: No.
Served on 02/07/2014. Manner of Service: US mail.--[Edited 02/07/2014 by BV to remove the PDF as
pleading filed on 2/7/14] [14-5003, 13-4178, 14-5006] AD
02/07/2014
3 pg, 38.57 KB
02/07/2014
[10147861] Notice of appearance submitted by Kevin T. Snider for Paul McHugh, M.D., Amicus Curiae for
court review. Certificate of Interested Parties: Yes. Served on 02/07/2014. Manner of Service: email. [134178, 14-5003] --[Edited 02/07/2014 by SLS to remove PDF file from docket entry.] KTS
02/07/2014
11 pg, 59.31 KB
02/07/2014
4 pg, 91.06 KB
02/07/2014
[10147899] Notice of appearance filed by Mr. Kevin Trent Snider for Paul McHugh, M.D. in 13-4178, 145003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/07/2014. Manner of Service: email.
[13-4178, 14-5003, 14-5006] --[Edited 02/07/2014 by SLS to indicate "n" for interested parties as parties
named have already been disclosed.]
[10147922] Notice of appearance filed by Mr. Alexander Dushku, R. Shawn Gunnarson and Mr. Justin W.
Starr for The Church of Jesus Christ of Latter-day Saints, National Association of Evangelicals, United
States Confrerence of Catholic Bishops, The Ethics and Religious Liberty Commission of the Southern
Baptist Convention and Lutheran Church-Missouri Synod in 13-4178, 14-5003, 14-5006. CERT. OF
INTERESTED PARTIES: n. Served on 02/07/2014. Manner of Service: email, US mail [13-4178, 14-5003,
14-5006]
[10147983] Notice of appearance submitted by Eric C. Rassbach for The Becket Fund for Religious
Liberty for court review. Certificate of Interested Parties: No. Served on 02/07/2014. Manner of Service:
email. [13-4178, 14-5003, 14-5006]--[Edited 02/07/2014 by AT to remove PDF as pleading was filed on
2/07/14.] ECR
02/07/2014
3 pg, 91.96 KB
[10147992] Notice of appearance filed by Eric C. Rassbach for The Becket Fund for Religious Liberty in
13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/07/2014. Manner of
Service: email.
5 pg, 580.25 KB
[10147997] Notice of appearance filed by Dani Hartvigsen for Doug Mainwaring, Alana Newman, Robert
Oscar Lopez and Janna Anderson in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n.
Served on 02/07/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
5 pg, 35.22 KB
[10147999] Notice of appearance filed by Robert Theron Smith for Lowry Snow, LaVar Christensen, Kay
McIff and Merrill Nelson in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
02/07/2014
02/07/2014
02/07/2014
[10147844] Notice of appearance filed by Mr. Frank D. Mylar, Jr., Esq. for Russell Moore, Ph. D.,
American Leadership Fund, Douglas Ambrose, Ph. D., Herman Belz, Ph. D., Robert D. Benne, Ph. D.,
Allan C. Carlson, Ph. D., G.M. Curtis, Ph. D., Michael O. Emerson, Ph. D., Dr. Timothy George, Th. D.,
Harold James, Ph. D., Steven Justice, Ph. D., Robert C. Koons, Ph. D., Stanley Kurtz, Ph. D., Gerald R.
McDermott, Ph. D., Robert Paquette, Ph. D., Paul A. Rahe, Ph. D., Michael A. Reynolds, Ph. D., Robert
Louis Wilken, Ph. D., Christopher Wolfe, Ph. D. and Peter W. Wood, Ph. D. in 13-4178, 14-5003, 14-5006.
CERT. OF INTERESTED PARTIES: n. Served on 02/07/2014. Manner of Service: email. [13-4178, 145003, 14-5006]
[10148003] Notice of appearance submitted by Lynn D. Wardle for Amici Curiae Professor Alan J.
Hawkins and Jason S. Carroll for court review. Certificate of Interested Parties: No. Served on 02/07/2014.
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
5 of
14-5003
Docket
37 of
5118
Manner of Service: email. [13-4178, 14-5003, 14-5006]--[Edited 02/10/2014 by AT to remove PDF as

pleading was filed on 2/10/14.] LDW
5 pg, 207.46 KB
[10148028] Notice of appearance filed by Mr. Lynn Dennis Wardle for Utah Counties and Mr. Jason S.
Carroll, Ph. D. in 13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
02/05/2014. Manner of Service: email.
4 pg, 90.24 KB
[10148032] Notice of appearance filed by Ms. Jennifer L. Bursch for Institute for Marriage and Public
Policy in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/07/2014.
02/10/2014
02/10/2014
02/10/2014
This entry has been removed from the docket. Brief docketed 2/10/14. [GH]
[10148102] Amicus Curiae brief submitted by Douglas W. Allen, Ph.D., David J. Eggebeen, Ph.D., Byron
R. Johnson, Ph.D., Catherine R. Pakaluk, Ph.D., Joseph Price, Ph.D., and Mark D. Regnerus, Ph.D. DCW
02/10/2014
39 pg, 345.67 KB
[10148117] Amicus Curiae brief filed by Douglas W. Allen, Ph. D., David J. Eggebeen, Ph. D., Byron R.
Johnson, Ph. D., Catherine R. Pakaluk, Ph. D., Joseph Price, Ph. D. and Mark D. Regnerus, Ph. D. in 134178, 14-5003, 14-5006. Original and 7 copies.. Served on 02/10/2014. Manner of Service: email, US
mail. [13-4178, 14-5003, 14-5006]
This entry has been removed from the docket because the amicus curiae brief submitted by Robert P.
George, Sherif Girgis, and Ryan T. Anderson was filed on 2/10/14. MFS
02/10/2014
3 pg, 65.43 KB
[10148189] Notice of appearance filed by Mr. Arthur Andrew Schulcz, Sr. for Parents and Friends of ExGays & Gays in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
45 pg, 589.96 KB
[10148206] Amicus Curiae brief filed by Mr. Ryan Anderson, Mr. Robert P. George, and Sherif Girgis in 13
-4178, 14-5003, and 14-5006. 7 paper copies. Served on 02/10/2014. Manner of Service: email, US mail.
[13-4178, 14-5003, 14-5006]
02/10/2014
02/10/2014
02/10/2014
[10148219] Amicus Curiae brief submitted by Helen M. Alvare. JMF
02/10/2014
This entry has been removed from the docket as the amicus brief submitted by American Leadership
Fund, Douglas Ambrose, Ph.D., Herman Belz, Ph.D., Robert D. Benne, Ph.D., Allan C. Carlson, Ph.D.,
G.M. Curtis, Ph.D., Michael O. Emerson, Ph.D., Dr. Timothy George, Th.D., Harold James, Ph.D., Steven
Justice, Ph.D., et al was filed on 2/10/14 in appeals 13-4178, 14-5003, and 14-5006. FDM
02/10/2014
40 pg, 147.18 KB
[10148229] Amicus Curiae brief filed by Ms. Helen M. Alvare in 13-4178, 14-5003, 14-5006. 7 copies..
02/10/2014
This entry ([10148233] Amicus Curiae brief submitted by Indiana and Other Amici States) has been
removed from the docket as the brief has been filed. [SLS] TMF
02/10/2014
[10148246] Notice of appearance submitted by John C. Eastman for Amicus Center for Constitutional
Jurisprudence and 27 Scholars of Federalism and Judicial Restraint for court review. Certificate of
Interested Parties: No. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
[Edited to remove PDF as pleading has been filed as of 2/10/14--Edited 02/10/2014 by NA] JCE
02/10/2014
43 pg, 123.25 KB
[10148253] Amici Curiae brief filed by State of Alabama, State of Alaska, State of Arizona, State of
Colorado, State of Idaho, State of Indiana, State of Montana, State of Nebraska, State of Oklahoma and
State of South Carolina in 13-4178, 14-5003, 14-5006. Original and 7 copies. Served on 02/10/2014.
Manner of Service: email. [13-4178, 14-5003, 14-5006]
02/10/2014
This entry has been removed from the docket as the amicus brief submitted by Professor David R. Upham
was filed on 2/10/14. [AT] DRU
02/10/2014
This entry has been removed from the docket. [KLP] Per request from counsel. [10148268] Amicus Curiae
brief submitted by State of Michigan. [13-4178, 14-5003, 14-5006] AL
02/10/2014
2 pg, 21.97 KB
[10148295] Admissions letter sent. Response date set to 03/12/2014 for Jennifer L. Bursch. [13-4178, 145003, 14-5006]
2 pg, 21.91 KB
[10148308] Admissions letter sent. Response date set to 03/12/2014 for Dani Hartvigsen. [13-4178, 145003, 14-5006]
02/10/2014
02/10/2014
44 pg, 300.8 KB
02/10/2014
38 pg, 434.79 KB
02/10/2014
[10148325] Amicus Curiae brief filed by Douglas Ambrose, Ph. D., American Leadership Fund, Herman
Belz, Ph. D., Robert D. Benne, Ph. D., Allan C. Carlson, Ph. D., G.M. Curtis, Ph. D., Michael O. Emerson,
Ph. D., Timothy George, Harold James, Ph. D., Steven Justice, Ph. D., Robert C. Koons, Ph. D., Stanley
Kurtz, Ph. D., Gerald R. McDermott, Ph. D., Russell Moore, Robert Paquette, Ph. D., Paul A. Rahe, Ph.
D., Michael A. Reynolds, Ph. D., Robert Louis Wilken, Ph. D., Christopher Wolfe, Ph. D. and Peter W.
Wood, Ph. D. in 13-4178, 14-5003, and 14-5006. 7 paper copies. Served on 02/10/2014. Manner of
Service: email, US mail. [13-4178, 14-5003, 14-5006]
[10148349] Amicus Curiae brief filed by Mr. David R. Upham in 13-4178, 14-5003, and 14-5006. 7 hard
copies. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
[10148352] Notice of appearance submitted by Anthony R. Picarello, Jr. for United States Conference of
Catholic Bishops et al. for court review. Certificate of Interested Parties: No. Served on 02/10/2014.
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
6 of
14-5003
Docket
38 of
5118
Manner of Service: email. [14-5003, 13-4178, 14-5006] [Edited to remove PDF as pleading has been filed
as of 2/10/14-- Edited 02/10/2014 by NA] AD
02/10/2014
[10148357] Amicus Curiae brief submitted by State of Michigan. 7 paper copies to be provided to the
court. Served on 02/10/2014. Manner of Service: email. This pleading complies with all required (privacy,
paper copy and virus) certifications: Yes. [13-4178, 14-5003, 14-5006] AL
02/10/2014
[10148361] Notice of appearance submitted by D'Arcy Winston Straub for D'Arcy W. Straub, Ph.D. for
court review. Certificate of Interested Parties: No. Served on 02/10/2014. Manner of Service: email. [134178, 14-5003, 14-5006] --[Edited 02/10/2014 by SLS to remove PDF file from docket entry.] DWS
02/10/2014
3 pg, 88.79 KB
02/10/2014
[10148372] Notice of appearance filed by Mr. Anthony R. Picarello, Jr. for United States Conference of
Catholic Bishops, National Association of Evangelicals, the Church of Jesus Christ of Latter-Day Saints,
the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and Lutheran ChurchMissouri Synod in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
02/10/2014. Manner of Service: email. --[Edited 02/10/2014 by GH to correct party name order] [13-4178,
14-5003, 14-5006]
4 pg, 104.77 KB
[10148376] Notice of appearance filed by Mr. D'Arcy Winston Straub in 13-4178, 14-5003, 14-5006.
CERT. OF INTERESTED PARTIES: n. Served on 02/10/2014. Manner of Service: email. [13-4178, 145003, 14-5006]
28 pg, 162.62 KB
[10148389] Amicus Curiae brief filed by State of Michigan and the State of Kansas in 13-4178, 14-5003
and 14-5006. Original and 7 copies. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003,
14-5006]--[Edited 03/05/2014 by AT - Pursuant to the court's 3/514 order the State of Kansas is added to
this entry as an Amicus party.]
02/10/2014
02/10/2014
[10148392] Minute order filed - Notice of appearance due on 02/24/2014 for Amicus Curiae State of
Michigan. (Text Only - No Attachment) [13-4178, 14-5003, 14-5006]
02/10/2014
78 pg, 372.32 KB
02/10/2014
4 pg, 170.71 KB
02/10/2014
[10148395] Docketing statement filed by Ms. Susan G. Barton and Ms. Gay E. Phillips. Served on
02/10/2014. Manner of Service: email. [14-5006, 14-5003, 13-4178] JEW
[10148407] Notice of appearance filed by Mr. John C. Eastman for Center for Constitutional Jurisprudence
and 27 Scholars of Federalism and Judicial Restraint (Larry Alexander, Ryan J. Barilleaux, Patrick
McKinley Brennan, Robert Lowry Clinton, Robert Cochran, Lloyd Cohen, Thomas F. Farr, Matthew J.
Franck, Gary D. Glenn, Frank Guliuzza, Mark David Hall, Laurie M. Johnson, Joseph M. Knippenberg,
Ken Masugi, Robert F. Nagel, Walter Nicgorski, Charles Rice, Ralph A. Rossum, Jon D. Schaff, Nathan
Schlueter, Timothy Samuel Shah, Steven Smith, R.J. Snell, David L. Tubbs, Bradley C.S. Watson, Micah
J. Watson, Warner R. Winborne) in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n.
[10148409] Amicus Curiae brief submitted by Center for Constitutional Jurisprudence and 27 Scholars of
Federalism and Judicial Restraint. [13-4178, 14-5003, 14-5006] JCE
02/10/2014
47 pg, 348.28 KB
[10148419] Amicus Curiae brief filed by Center for Constitutional Jurisprudence and 27 Scholars of
Federalism and Judicial Restraint in 13-4178, 14-5003, 14-5006. 7 copies.. Served on 02/10/2014.
Manner of Service: email. [13-4178, 14-5003, 14-5006]
5 pg, 175.89 KB
[10148424] Notice of appearance filed by Mr. Brett Gilbert Scharffs for Mr. Michael J. Perry, Mr. Daniel O.
Conkle and Mr. Brett Gilbert Scharffs in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES:
n. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
02/10/2014
02/10/2014
[10148429] Notice of appearance submitted by Mary Elizabeth McAlister and Stephen M. Crampton for
National Association for Research and Therapy of Homosexuality for court review. Certificate of Interested
Parties: No. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006] [Edited to add
attorney and to remove PDF as pleading has been filed -- Edited 02/11/2014 by NA] MEM
02/10/2014
This entry has been removed from the docket. [KLP] [10148431] Amicus Curiae brief submitted by
National Association for Research and Therapy of Homosexuality. The brief was filed on 2/10/14. [134178, 14-5003, 14-5006] MEM
02/10/2014
This entry has been removed from the docket. [BV] [10148432] Amicus Curiae brief submitted by Dr. Paul
McHugh. The brief was filed on 2/11/14. KTS
02/10/2014
[10148446] Amicus Curiae brief submitted by United States Conference of Catholic Bishops, et al. [145003, 13-4178, 14-5006] AD
02/10/2014
[10148451] Notice of appearance submitted by Mathew D. Staver for Liberty Counsel, Inc for court review.
Certificate of Interested Parties: No. Served on 02/10/2014. Manner of Service: email.--[Edited 02/11/2014
by BV to remove the PDF as pleading has been filed as of 2/11/14] [13-4178, 14-5003, 14-5006] MDS
02/10/2014
This entry ([10148453] Amicus Curiae brief submitted by Liberty Counsel, Inc.) has been removed from
the docket as the brief has been filed. [SLS] MDS
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
7 of
14-5003
Docket
39 of
5118
02/10/2014
This entry has been removed from the docket. [KLP] [10148456] Amici Curiae brief submitted by
Professors Alan J. Hawkins and Jason S. Carroll. The brief was filed on 2/10/14. [13-4178, 14-5003, 145006] LDW
02/10/2014
This entry ([10148458] Amicus Curiae brief submitted by The Becket Fund for Religious Liberty) has been
removed from the docket as the brief has been filed. [SLS] ECR
02/10/2014
[10148459] Amicus Curiae brief submitted by D'Arcy W. Straub. [13-4178, 14-5003, 14-5006] DWS
02/10/2014
53 pg, 193.2 KB
02/10/2014
[10148486] Amicus Curiae brief filed by United States Conference of Catholic Bishops; National
Association of Evangelicals, The Church of Jesus Christ of Latter-Day Saints; The Ethics & Religious
Liberty Commission of the Southern Baptist Convention and Lutheran Church-Missouri Synod in 13-4178,
14-5003, 14-5006. 7 copies.. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 145006]
29 pg, 209.47 KB
[10148493] Amicus Curiae brief filed by D'Arcy Winston Straub in 13-4178, 14-5003, 14-5006. 7 copies..
42 pg, 276.94 KB
[10148507] Amicus Curiae brief filed by Liberty Counsel, Inc. in 13-4178, 14-5003, 14-5006. Original and
7 copies. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
52 pg, 309.62 KB
[10148517] Amicus Curiae brief filed by Becket Fund for Religious Liberty in 13-4178, 14-5003, 14-5006.
Original and 7 copies. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
02/10/2014
02/10/2014
02/10/2014
42 pg, 337.55 KB
02/10/2014
42 pg, 686.78 KB
02/10/2014
[10148547] Amicus Curiae brief filed by National Association for Research and Therapy of Homosexuality
in 13-4178, 14-5003 and 14-5006 Original and 7 copies. Served on 02/10/2014. Manner of Service: email.
[13-4178, 14-5003, 14-5006]
[10148569] Amici Curiae brief filed by Mr. Jason S. Carroll, Ph. D. and Alan J. Hawkins, Ph. D. Original
and 7 copies. Served on 02/10/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
39 pg, 143.68 KB
[10148539] Amicus Curiae brief filed by Paul McHugh, in 13-4178, 14-5003, 14-5006. Served on
02/10/2014. Manner of Service: email. --[Edited 02/12/2014 by GH to correct filing date]. [13-4178, 145003, 14-5006]
4 pg, 59.01 KB
[10148481] Notice of appearance filed by Mr. Stephen M. Crampton and Ms. Mary Elizabeth McAlister for
National Association of Research and Therapy of Homosexuality. CERT. OF INTERESTED PARTIES: n.
4 pg, 57.65 KB
[10148500] Notice of appearance filed by Ms. Anita Staver and Mr. Mathew D. Staver for Liberty Counsel,
Inc. in 13-4178. CERT. OF INTERESTED PARTIES: n. Served on 02/10/2014. Manner of Service: email.
[13-4178, 14-5003, 14-5006]
02/11/2014
02/11/2014
[10148554] Notice of appearance submitted by Aaron D. Lindstrom for Amicus Curiae State of Michigan
for court review. Certificate of Interested Parties: No. Served on 02/11/2014. Manner of Service: email. [13
-4178, 14-5003, 14-5006]--[Edited 02/11/2014 by KLP to delete the attachment; entry filed.] AL
02/11/2014
02/11/2014
9 pg, 100.98 KB
02/11/2014
[10148619] Notice of appearance filed by Mr. Aaron Lindstrom for State of Michigan. CERT. OF
[10148880] Attorney Ms. Jennifer L. Bursch for Institute for Marriage and Public Policy in 13-4178
admitted to the bar of this court. [13-4178, 14-5003, 14-5006]
02/12/2014
2 pg, 22 KB
02/14/2014
6 pg, 10.54 KB
02/18/2014
[10149007] Admissions letter sent. Response date set to 03/14/2014 for Aaron Lindstrom. [13-4178, 145003, 14-5006]
[10149717] Motion filed by Appellant Sally Howe Smith in 14-5003, Appellee Sally Howe Smith in 14-5006
to file an oversize brief 21000 words long. Served on: 02/14/2014. Manner of service: email. This pleading
complies with all required (privacy, paper copy and virus) certifications: Yes. [14-5003, 14-5006] BJB
[10149877] Notice of appearance submitted by Paul M. Smith for American Psychological Association for
court review. Certificate of Interested Parties: No. Served on 02/18/2014. Manner of Service: email. [134178, 14-5003, 14-5006]--[Edited 02/18/2014 by KLP to delete the attachment; entry filed.] PMS
02/18/2014
2 pg, 27.79 KB
[10149934] Order filed by Clerk of the Court Appellant/cross-appellee Sally Howe Smith's unopposed
motion for leave to file an oversized brief is granted. The first brief on cross appellee may be up to, but not
greater than, 21,000 words in length. The deadline for filing the brief remains February 24, 2014. Served
on 02/18/2014. [14-5003, 14-5006]
5 pg, 191.75 KB
[10149953] Notice of appearance filed by Mr. Paul March Smith for American Psychological Association in
13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/18/2014. Manner of
Service: email. [13-4178, 14-5003, 14-5006]
02/18/2014
02/18/2014
6 pg, 58.57 KB
[10150483] Notice of appearance filed by Duane Morley Cox. CERT. OF INTERESTED PARTIES: n.
Served on 02/15/2014. Manner of Service: US mail. [14-5003, 14-5006]
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
8 of
14-5003
Docket
40 of
5118
02/18/2014
7 pg, 65.36 KB
[10150488] Motion filed by Mr. Duane Morley Cox in 14-5003, 14-5006 to file amicus brief out of time.
10 pg, 102.08 KB
[10150491] Motion filed by Mr. Duane Morley Cox in 14-5003, 14-5006 for leave to file an amicus brief.
02/18/2014
This entry has been removed from the docket. [KLP] Brief filed on 2/19/14. [10150495] Amicus Curiae
Brief and appendix received from Mr. Duane Morley Cox in 14-5003, 14-5006 but not filed. Original and 7
copies. Served on 02/15/2014. Manner of Service: US mail. [14-5003, 14-5006]
02/19/2014
02/19/2014
2 pg, 22.32 KB
02/19/2014
81 pg, 1.53 MB
02/20/2014
[10150617] Order filed by Clerk of the Court (EAS) - These matters are before the court on Mr. Duane
Morley Coxs motion for leave to submit an amicus curiae brief out of time, as well as his motion to
become an amicus party in these appeals. Upon consideration, and in light of the Joint Notice of Consent
filed on 1/30/14, both motions are granted. The proposed amicus curiae brief which Mr. Cox has submitted
will be shown filed as of the date of this order. Served on 02/19/2014. [14-5003, 14-5006]
[10150626] Amicus Curiae brief filed by Mr. Duane Morley Cox in 14-5003, 14-5006. Original and 7
copies. Served on 02/18/2014. Manner of Service: US mail. [14-5003, 14-5006]
[10151173] Notice of appearance submitted by John David Luton for Sally Howe Smith for court review.
Certificate of Interested Parties: No. Served on 02/20/2014. Manner of Service: email. [14-5003, 14-5006]
[Edited to remove PDF as pleading has been filed as of 2/20/14-- Edited 02/20/2014 by NA] JDL
02/20/2014
2 pg, 25.95 KB
[10151182] Notice of appearance filed by Mr. John David Luton for Sally Howe Smith in 14-5003, 145006. CERT. OF INTERESTED PARTIES: n. Served on 02/20/2014. Manner of Service: email [14-5003,
14-5006]
191 pg, 484.09 KB
[10151985] First brief on cross-appeal filed by Sally Howe Smith in 14-5003, 14-5006. 7 paper copies to
be provided to the court. Served on: 02/24/2014. Manner of service: email. Oral argument requested?
Yes. This pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-5003,
14-5006] BJB
02/24/2014
02/25/2014
[10152155] Appendix filed by Appellant Sally Howe Smith in 14-5003,14-5006. Original and 1 copy.
Appendix pages: 705. Number of volumes: 4. Hardcopy only. Served on 02/24/2014. Manner of Service:
mail. [14-5003, 14-5006]
02/25/2014
This entry has been removed from the docket. [KLP] [10152253] Notice of appearance submitted by
Stephen Kent Ehat for THE CENTER FOR URBAN RENEWAL AND EDUCATION, et al. An entry was
already filed on 2/3/14. [14-5003, 14-5006] SKE
02/25/2014
This entry has been removed from the docket. [KLP] Brief filed. [10152326] Amicus Curiae brief submitted
by THE CENTER FOR URBAN RENEWAL AND EDUCATION, THE COALITION OF AFRICANAMERICAN PASTORS USA, AND THE FREDERICK DOUGLASS FOUNDATION, INC.. 7 paper copies
to be provided to the court. Served on 02/25/2014. Manner of Service: email, US mail. This pleading
complies with all required (privacy, paper copy and virus) certifications: Yes. [14-5003, 14-5006] SKE
02/25/2014
31 pg, 88.39 KB
02/26/2014
[10152436] Amici Curiae brief filed by The Center for Urban Renewal and Education, The Coalition of
African-American Pastors USA and The Frederick Douglass Foundation, Inc. in 14-5003. Original and 7
copies. Served on 02/25/2014. Manner of Service: email. [14-5003, 14-5006]
This entry has been removed from the docket. [KLP] The brief has been filed. [10152459] Amicus Curiae
brief submitted by Douglas Wortham, et al. Served on 02/26/2014. Manner of Service: email. This
pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [13-4178, 14-5003,
14-5006] RAK
02/26/2014
44 pg, 442.73 KB
[10152496] Amicus Curiae brief filed by Lynn Beltran, Charles Fluke, Nicholas Nero, Claudia O'Grady,
Stanford Rovig and Douglas Wortham in 13-4178, 14-5003, 14-5006. Original and 7 copies. Served on
02/26/2014
[10152602] Minute order filed - Per the Court's order of 1/28/14, second cross-appeal brief and any
supplemental appendix now due 03/17/2014 by Susan G. Barton, Mary Bishop and Gay E. Phillips. (Text
Only - No Attachment) [14-5003, 14-5006]
02/27/2014
[10152900] Notice of appearance submitted by David Christopher Boyle for David Boyle for court review.
Certificate of Interested Parties: No. Served on 02/27/2014. Manner of Service: email. [14-5003]--[Edited
02/27/2014 by AT to remove PDF as pleading was filed on 2/27/14.] DB
02/27/2014
1 pg, 3.32 MB
02/27/2014
[10152958] Notice of appearance filed by Mr. David Boyle in 14-5003 and 14-5006. CERT. OF
INTERESTED PARTIES: n. Served on 02/27/2014. Manner of Service: email. [14-5003, 14-5006]
[10153300] Notice of appearance submitted by Carmine D. Boccuzzi, Jr. for American Sociological
Association for court review. Certificate of Interested Parties: No. Served on 02/27/2014. Manner of
Service: email.--[Edited 02/27/2014 by BV to remove the PDF pleading has been filed on 2/27/14 ] [134178, 14-5003, 14-5006] CDB
02/27/2014
2 pg, 73.86 KB
[10153312] Notice of appearance filed by Mr. Carmine D. Boccuzzi, Jr. for American Sociological
Association in 13-4178. CERT. OF INTERESTED PARTIES: n. Served on 02/27/2014. Manner of Service:
email. [13-4178, 14-5003, 14-5006]
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
9 of
14-5003
Docket
41 of
5118
02/27/2014
[10153326] Notice of appearance submitted by Daniel McNeel Lane, Jr. for SEE ATTACHMENT FOR
LIST OF 21 AMICI CURIAE for court review. Certificate of Interested Parties: No. Served on 02/27/2014.
Manner of Service: US mail, email. [13-4178, 14-5003, 14-5006]--[Edited 02/28/2014 by AT to remove
PDF as pleading was filed on 2/28/14.] DML
02/27/2014
[10153331] Notice of appearance submitted by Sarah Kroll-Rosenbaum; Shawn S. Ledingham, Jr.;

Courtney M. Bowman for Alliance for Better UTAH for court review. Certificate of Interested Parties: No.
Served on 02/27/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006] [Edited to remove PDF as
pleading has been filed as of 2/28/14-- Edited 02/28/2014 by NA] SSL
02/28/2014
[10153343] Notice of appearance filed by Ms. Courtney Bowman, Ms. Sarah Kroll-Rosenbaum and Mr.
Shawn Scott Ledingham, Jr. for Alliance for a Better Utah. CERT. OF INTERESTED PARTIES: n. Served
on 02/27/2014. Manner of Service: email [13-4178, 14-5003, 14-5006]
02/28/2014
10 pg, 96.21 KB
[10153369] Notice of appearance filed by Mr. Daniel McNeel Lane, Jr., Esq. for Mr. Peter Bardaglio, Ph.
D., Ms. Norma Basch, Ms. Stephanie Coontz, Ms. Nancy Cott, Mr. Toby L. Ditz, Ms. Ariela R. Dubler, Ms.
Laura F. Edwards, Ms. Michael Grossberg, Mr. Hendrik Hartog, Ms. Ellen Herman, Ms. Martha Hodes, Mr.
Linda K. Kerber, Ms. Alice Kessler-Harris, Ms. Elaine Tyler May, Ms. Serena Mayeri, Mr. Steve Mintz, Ms.
Elizabeth Pleck, Ms. Carole Shammas, Ms. Mary Shanley, Ms. Amy Dru Stanley and Barbara Welke in
appeals 13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/27/2014.
Manner of Service: email, US mail. [13-4178, 14-5003, 14-5006]
02/28/2014
This entry has been removed from the docket. [KLP] Brief filed on 2/28/14. [10153422] Amicus Curiae
brief submitted by Family Research Council. 7 paper copies to be provided to the court. Served on
02/28/2014. Manner of Service: email, US mail. This pleading complies with all required (privacy, paper
copy and virus) certifications: Yes. [14-5003, 14-5006] PBL
02/28/2014
[10153428] Notice of appearance submitted by Paul R.Q Wolfson, Mark C. Fleming, Felicia H. Ellsworth,
Alan Schoenfeld, Dina B. Mishra, and Leah M. Litman, for Gay & Lesbian Advocates & Defenders for
court review. Certificate of Interested Parties: No. Served on 02/28/2014. Manner of Service: email. [134178, 14-5003, 14-5006] [Edited to remove PDF as pleading has been filed as of 2/28/14-- Edited
02/28/2014 by NA] AES
02/28/2014
38 pg, 203.7 KB
02/28/2014
4 pg, 35.19 KB
03/03/2014
[10153449] Amicus Curiae brief filed by Family Research Council in 14-5003, 14-5006. Original and 7
copies. Served on 02/28/2014. Manner of Service: email. [14-5003, 14-5006]
[10153459] Notice of appearance filed by Felicia H. Ellsworth, Mark C. Fleming, Leah M. Litman, Ms. Dina
Bernick Mishra, Mr. Alan E. Schoenfeld and Mr. Paul Reinherz Wolfson for Gay & Lesbian Advocates &
Defenders. CERT. OF INTERESTED PARTIES: n. Served on 02/28/2014. Manner of Service: email [134178, 14-5003, 14-5006]
This entry [10153650] Amicus Curiae brief submitted by Outserve-SLDN and The American Military
Partner Association has been removed from the docket as the brief has been filed. [NA] - Edited 3/3/14]
CDM
03/03/2014
35 pg, 124.46 KB
[10153656] Amicus Curiae brief filed by American Military Partner Association and Outserve-SLDN.
Original and 7 copies. Served on 03/03/2014. Manner of Service: US mail, email. [13-4178, 14-5003, 145006]
03/03/2014
[10153729] Notice of appearance submitted by Michael L. Whitlock for Employers and Organizations
Representing Employers for court review. Certificate of Interested Parties: No. Served on 03/03/2014.
Manner of Service: email. [14-5003, 14-5006]--[Edited 03/03/2014 by AT to remove PDF as pleading was
filed on 3/3/14.] MLW
03/03/2014
This entry has been removed from the docket. Brief filed 3/3/14. [GH]
[10153747] Amicus Curiae brief submitted by Constitutional Law Scholars. [BV] [13-4178, 14-5003, 145006] LAA
03/03/2014
This entry has been removed from the docket as the amicus brief submitted by The American Sociological
association was filed on 3/3/14. [AT] CDB
03/03/2014
[10153761] Notice of appearance submitted by Ken Salazar for Gay & Lesbian Advocates & Defenders for
03/03/2014 by NA] PRW
03/03/2014
52 pg, 286.2 KB
03/03/2014
[10153773] Amicus Curiae brief filed by Constitutional Law Scholars in 13-4178, 14-5003, 14-5006.
Original and 7 copies. Served on 03/03/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
[10153779] Minute order filed - Notice of appearance due on 03/17/2014 for Constitutional Law Scholars.
(Text Only - No Attachment) [13-4178, 14-5003, 14-5006]
03/03/2014
4 pg, 93.86 KB
[10153789] Notice of appearance filed by Ms. Meghan S. Bailey, Ms. Susan Baker Manning, Ms. Margaret
Sheer, and Mr. Michael Louis Whitlock for Employers and Organizations Representing Employers in 145003 and14-5006. CERT. OF INTERESTED PARTIES: n. Served on 02/28/2014. Manner of Service:
email.
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
14-5003
Docket
42 of10
51of
18
03/03/2014
43 pg, 181.05 KB
03/03/2014
[10153804] Amicus Curiae brief filed by American Sociological Association in 13-4178, 14-5003, and 145006. 7 copies. Served on 03/03/2014. Manner of Service: email, US mail. [13-4178, 14-5003, 14-5006]
[10153890] Notice of appearance submitted by Leah Farrell, John Mejia for The American Civil Liberties
Union, et al. for court review. Certificate of Interested Parties: No. Served on 03/03/2014. Manner of
Service: email, US mail. [13-4178, 14-5003, 14-5006]--[Edited 03/03/2014 by KLP to delete the
attachment; entry filed.] LF
03/03/2014
3 pg, 32.79 KB
03/03/2014
[10153928] Notice of appearance filed by Mr. Kenneth Lee Salazar for Gay & Lesbian Advocates &
Defenders in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 03/03/2014.
[10153932] Minute order filed - Notice of appearance due on 03/17/2014 for American Military Partner
Association and Outserve-SLDN. (Text Only - No Attachment) [13-4178, 14-5003, 14-5006]
03/03/2014
8 pg, 120.57 KB
[10153996] Notice of appearance filed by Mr. John M. Mejia and Leah Farrell for NAACP Salt Lake
Branch & NAACP Tri State Conference of Idaho, Nevada and Utah, Hispanic National Bar Association,
Cimarron Alliance, Asian Americans Advancing Justice-Chicago, Asian Americans Advancing Justice,
Asian Americans Advancing Justice-Asian Law Caucus, Americans Advancing Justice-Los Angeles,
American Civil Liberties Union of Utah Foundation, Inc., ACLU, API Equality-LA, ACLU of Utah, ACLU of
Oklahoma and 9to5. CERT. OF INTERESTED PARTIES: n. Served on 03/03/2014. Manner of Service:
email [13-4178, 14-5003, 14-5006]
03/03/2014
[10154039] Notice of appearance submitted by Andrew J. Davis for Parents, Families and Friends of
Lesbians and Gays, Inc. for court review. Certificate of Interested Parties: No. Served on 03/03/2014.
Manner of Service: email. [13-4178, 14-5003, 14-5006]--[Edited 03/04/2014 by KLP to delete the
attachment; entry filed.] AJD
03/03/2014
[10154067] Notice of appearance submitted by John V. McDermott and Lauren E. Schmidt for Amicus
Curiae Employers and Organizations Representing Employers in 13-4178 for court review. Certificate of
Interested Parties: No. Served on 03/03/2014. Manner of Service: email.--[Edited 03/04/2014 by BV to
remove the PDF as document has been filed as of 3/4/14] [13-4178, 14-5003, 14-5006] JVM
03/03/2014
[10154077] Notice of appearance submitted by Gerard V. Bradley for Professor Paul McHugh, M.D.,
Amicus Curiae for court review. Certificate of Interested Parties: Yes. Served on 03/03/2014. Manner of
Service: email. [13-4178, 14-5003, 14-5006]--[Edited 03/04/2014 by AT to remove PDF as pleading was
filed on 3/4/14.] GVB
03/03/2014
[10154078] Notice of appearance submitted by Jerome C. Roth; Nicole S. Phillis for Bay Area Lawyers for
Individual Freedom; Austin LGBT Bar Association (Austin LGBT Bar); Freedom to Marry; LGBT & Allied
Lawyers of Utah Bar Association; Love Honor Cherish; Marriage Equality USA; Minnesota Lavender Bar
Association; et al. for court review. Certificate of Interested Parties: No. Served on 03/03/2014. Manner of
Service: email. [13-4178, 14-5003, 14-5006] [Edited to remove PDF as pleading has been filed as of
3/4/14-- Edited 03/04/2014 by NA] NSP
03/03/2014
This entry has been removed from the docket as the Amicus Brief submitted by David Boyle was filed on
03/03/14. [AT] DB
03/03/2014
45 pg, 626.46 KB
03/04/2014
4 pg, 29.58 KB
03/04/2014
[10154091] Notice of appearance filed by Mr. Nicole Susan Phillis and Mr. Jerome Cary Roth for Bay Area
Lawyers for Individual Freedom, Austin LGBT Bar Association, Freedom to Marry, LGBT & Allied Lawyers
of Utah Bar Association, Love Honor Cherish, Marriage Equality USA, Minnesota Lavender Bar
Association, National Asian Pacific America Bar Association, New Mexico Lesbian and Gay Lawyers
Association, The OUTLaws, QLaw - the GLBT Bar Association of Washington, Stonewall Bar Association
of Georgia, Inc., Stonewall Bar Association of Michigan and Stonewall Law Association of Greater
Houston in 13-4178. CERT. OF INTERESTED PARTIES: n. Served on 03/03/2014. Manner of Service:
email [13-4178, 14-5003, 14-5006]
2 pg, 125.44 KB
[10154095] Notice of appearance filed by Ms. Lauren Schmidt and Mr. John V. McDermott, Esq. for
Employers and Organizations Representing Employers in 13-4178, 14-5003, 14-5006. CERT. OF
11 pg, 63.53 KB
[10154105] Notice of appearance filed by Mr. Gerard Vincent Bradley for Paul McHugh, M.D. in appeals
13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: y(all of the parties listed were
previously disclosed). Served on 03/03/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
4 pg, 37.88 KB
[10154140] Notice of appearance filed by Ms. Jiyun Cameron Lee and Mr. Andrew John Davis for
Parents, Families and Friends of Lesbians and Gays, Inc. in 13-4178, 14-5003, 14-5006. CERT. OF
INTERESTED PARTIES: n. Served on 03/03/2014. Manner of Service: email [13-4178, 14-5003, 14-5006]
03/04/2014
03/04/2014
03/04/2014
[10154108] Amicus Curiae brief filed by Mr. David Boyle in appeals 14-5003 and 14-5006. 7 copies.
Served on 03/03/2014. Manner of Service: email, US mail. [14-5003, 14-5006]
[10154309] Notice of appearance submitted by Elizabeth B. Wydra for Cato Institute and Constitutional
Accountability Center for court review. Certificate of Interested Parties: No. Served on 03/04/2014. Manner
of Service: email. [13-4178, 14-5003, 14-5006]--[Edited 03/04/2014 by AT to remove PDF as pleading was
filed on 3/4/14.] EBW
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
14-5003
Docket
43 of11
51of
18
03/04/2014
This entry has been removed from the docket. The Amicus Curiae brief submitted by Cato Institute and
Constitutional Accountability was filed on 3/4/14. [AT] EBW
03/04/2014
[10154320] Notice of appearance submitted by Christopher D. Man for Outserve-SLDN and The American
Military Partner Association for court review. Certificate of Interested Parties: No. Served on 03/04/2014.
Manner of Service: email.--[Edited 03/04/2014 by BV to remove the PDF, entry filed] [13-4178, 14-5003,
14-5006] CDM
03/04/2014
[10154327] Notice of appearance submitted by Emily J. Martin for National Women's Law Center et al. for
03/04/2014 by NA] EM
03/04/2014
[10154337] Notice of appearance submitted by Jerome C. Roth; Nicole S. Phillis for Colorado Gay
Lesbian Bisexual Transgender (GLBT) Bar Association for court review. Certificate of Interested Parties:
No. Served on 03/04/2014. Manner of Service: email.--[Edited 03/04/2014 by BV to remove PDF, entry
filed] [13-4178, 14-5003, 14-5006] NSP
03/04/2014
This entry [10154341] Amicus Curiae brief submitted by Parents, Families and Friends of Lesbians and
Gays, Inc.. has been removed from the docket as the brief has been filed. [NA] [13-4178, 14-5003, 145006] AJD
03/04/2014
2 pg, 82.97 KB
[10154344] Notice of appearance filed by Ms. Elizabeth B. Wydra for Cato Institute and Constitutional
Accountability Center in appeals 13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: n.
47 pg, 394.97 KB
[10154347] Amicus Curiae brief filed by Cato Institute and Constitutional Accountability Center in 13-4178,
14-5003, and14-5006. 7 copies. Served on 03/04/2014. Manner of Service: email, US mail. [13-4178, 145003, 14-5006]
32 pg, 110.29 KB
[10154367] Amicus Curiae brief filed by Parents, Families and Friends of Lesbians and Gays, Inc. in 134178, 14-5003, 14-5006. Original and 7 copies.. Served on 03/04/2014. Manner of Service: email. [134178, 14-5003, 14-5006]
03/04/2014
03/04/2014
03/04/2014
This entry has been removed from the docket. The Amicus Curiae brief submitted by American
Psychological Association was filed on 3/4/14. [AT] PMS
03/04/2014
2 pg, 168.82 KB
[10154387] Notice of appearance filed by Ms. Emily Martin for National Women's Law Center, Women's
Law Project, Brad Sears, Colorado Women's Bar Association, Equal Rights Advocates, Legal Momentum,
Southwest Women's Law Center, Legal Voice, National Association of Women Lawyers, National
Partnership for Women & Families, Devon Carbado, Sharon Dolovich, Ms. Nan D. Hunter, Christine A.
Littleton, Nancy Polikoff, Vicki Schultz, Seana Shiffrin and Adam Winkler in 13-4178. CERT. OF
INTERESTED PARTIES: n. Served on 03/04/2014. Manner of Service: email [13-4178, 14-5003, 14-5006]
03/04/2014
[10154392] Notice of appearance submitted by Peter Sacks for Amici Curiae for court review. Certificate
of Interested Parties: No. Served on 03/04/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]-[Edited 03/04/2014 by AT to remove PDF as pleading was filed on 3/4/14.] PS
03/04/2014
This entry has been removed from the docket. [BV] [10154395] Amicus Curiae brief submitted by Amici
Curiae Massachusetts, California, Connecticut, Delaware, District of Columbia, Illinois, Iowa, Maine,
Maryland, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.
[13-4178, 14-5003, 14-5006] PS
03/04/2014
[10154400] Notice of appearance submitted by Nicholas M. O'Donnell (method of service was via e-mail
and FedEx overnight) for GLMA: Health Professionals Advancing LGBT Equality for court review.
Certificate of Interested Parties: No. Served on 03/04/2014. Manner of Service: email. [14-5003, 13-4178,
14-5006]--[Edited 03/04/2014 by KLP to delete the attachment; entry filed.] NMO
03/04/2014
[10154404] Notice of appearance submitted by Jeffrey S. Trachtman for EPISCOPAL DIOCESE OF

UTAH; BISHOP OF THE EPISCOPAL DIOCESE OF UTAH; MORMONS FOR EQUALITY;
RECONSTRUCTIONIST RABBINICAL ASSOCIATION; RECONSTRUCTIONIST RABBINICAL
COLLEGE; UNION FOR REFORM JUDAISM; UNITARIAN UNIVERSALIST ASSOCIATION; ET AL. for
court review. Certificate of Interested Parties: No. Served on 03/04/2014. Manner of Service: email. [134178, 14-5003, 14-5006]--[Edited 03/04/2014 by AT to remove PDF as pleading was filed on 3/4/14.] JST
03/04/2014
This entry [10154419] Amicus Curiae brief submitted by The American Civil Liberties Union et al. has
been removed from the docket as the brief has been filed. [NA] [13-4178, 14-5003, 14-5006] LF
03/04/2014
This entry has been removed from the docket. [BV] [10154420] Amicus Curiae brief submitted by GLMA:
Health Professionals Advancing LGBT Equality. [14-5003, 13-4178, 14-5006] NMO
03/04/2014
3 pg, 53.05 KB
[10154428] Notice of appearance filed by Mr. Peter Sacks for New York, District of Columbia, Maine, New
Mexico, Massachusetts, California, Connecticut, Delaware, Illinois, Iowa, Maryland, New Hampshire,
Oregon, Rhode Island, Vermont, and Washington in 13-4178, 14-5003, and 14-5006. CERT. OF
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
14-5003
Docket
44 of12
51of
18
03/04/2014
43 pg, 140.17 KB
03/04/2014
[10154436] Amicus Curiae brief filed by American Psychological Association and The Utah Psychological
Association in 13-4178, 14-5003 and 14-5006. 7 copies. Served on 03/04/2014. Manner of Service: email,
US mail. [13-4178, 14-5003, 14-5006]
This entry has been removed from the docket. [KLP] This brief has been filed. [10154438] Amicus Curiae
brief submitted by 46 Employers and Organizations Representing Employers. [13-4178, 14-5003, 145006] MLW
03/04/2014
50 pg, 403.88 KB
[10154458] Amicus Curiae brief filed by GLMA: Health Professionals Advancing LGBT Equality in 134178, 14-5003 and in 14-5006. Original and 7 copies. Served on 03/04/2014. Manner of Service: email,
US mail. [13-4178, 14-5003, 14-5006]
8 pg, 149.1 KB
[10154462] Notice of appearance filed by Mr. Nicholas M. O'Donnell for GLMA: Health Professionals
Advancing LGBT Equality in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served
on 03/04/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
03/04/2014
03/04/2014
This entry has been removed from the docket. The Amicus Curiae brief submitted by Equality Utah
Foundation and Utah Pride Center was filed on 3/4/14. [AT] CJR
03/04/2014
This entry [10154468] Amicus Curiae brief submitted by 10 Historians of Antigay Discrimination has been
removed from the docket as the brief has been filed. [NA] [13-4178, 14-5003, 14-5006] CES
03/04/2014
This entry has been removed from the docket. The Amicus Curiae brief submitted by EPISCOPAL
DIOCESE OF UTAH was filed on 3/4/14. [AT] JST
03/04/2014
9 pg, 59.16 KB
[10154483] Notice of appearance filed by Mr. Jeffrey S. Trachtman for Episcopal Diocese of Utah, et al. in
13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 03/04/2014. Manner of
Service: email. [13-4178, 14-5003, 14-5006]
3 pg, 51.6 KB
[10154496] Notice of appearance filed by Mr. Christopher Dowden Man for Outserve-SLDN and American
Military Partner Association in 13-4178. CERT. OF INTERESTED PARTIES: n. Served on 03/04/2014.
03/04/2014
03/04/2014
34 pg, 122.64 KB
[10154503] Amicus Curiae brief filed by Equality Utah and Utah Pride Center in 13-4178, 14-5003, and 14
-5006. 7 copies. Served on 03/04/2014. Manner of Service: US mail, email. [13-4178, 14-5003, 14-5006]
03/04/2014
This entry has been removed from the docket. [KLP] This brief has been filed. [10154506] Amicus Curiae
brief submitted by Gay & Lesbian Advocates & Defenders. [13-4178, 14-5003, 14-5006] PRW
03/04/2014
[10154512] Notice of appearance submitted by Jerome C. Roth; Nicole S. Phillis for Bar Association of
San Francisco (BASF) for court review. Certificate of Interested Parties: No. Served on 03/04/2014.
Manner of Service: email. [13-4178, 14-5003, 14-5006]--[Edited 03/05/2014 by KLP to delete the
attachment; entry filed.] NSP
03/04/2014
This entry has been removed from the docket. [BV] [10154526] Amicus Curiae brief submitted by
HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC. Brief filed on 3/5/14[13-4178, 145003, 14-5006] DSF
03/04/2014
[10154528] Notice of appearance submitted by Camilla B. Taylor for Lambda Legal Defense and
Education Fund, Inc. for court review. Certificate of Interested Parties: No. Served on 03/04/2014. Manner
of Service: email.--[Edited 03/05/2014 by BV to remove the PDF, pleading filed on 3/5/14] [13-4178, 145003, 14-5006] CT
03/04/2014
4 pg, 29.57 KB
[10154533] Notice of appearance filed by Mr. Nicole Susan Phillis and Mr. Jerome Cary Roth for Colorado
Gay Lesbian Bisexual Transgender (GLBT) Bar Association in 13-4178. CERT. OF INTERESTED
PARTIES: n. Served on 03/04/2014. Manner of Service: email [13-4178, 14-5003, 14-5006]
03/04/2014
[10154541] Notice of appearance submitted by Kenneth D. Upton, Jr. for Lambda Legal Defense and
Education Fund, Inc. for court review. Certificate of Interested Parties: No. Served on 03/04/2014. Manner
of Service: email. [13-4178, 14-5003, 14-5006] [Edited to remove PDF as pleading has been filed as of
3/5/14-- Edited 03/05/2014 by NA] KDU
03/04/2014
This entry [10154542] Amicus Curiae brief submitted by Lambda Legal Defense and Education Fund, Inc
has been removed from the docket as the brief has been filed. [NA] [13-4178, 14-5003, 14-5006] KDU
03/04/2014
60 pg, 465.63 KB
[10154543] Amicus Curiae brief filed by ACLU, Leadership Conference on Civil and Human Rights, et al.,
in 13-4178, 14-5003, and 14-5006. Original and 7 copies.. Served on 03/04/2014. Manner of Service:
email. [13-4178, 14-5003, 14-5006]--[Edited 03/05/2014 by NA] [Edited to add attachment, per the court's
order of 3/5/14-- Edited 03/05/2014 by NA]
03/04/2014
This entry has been removed from the docket. [BV] [10154545] Amicus Curiae brief submitted by National
Women's Law Center, Other Women's Legal Organizations, And Professors Of Law Associated With The
Williams Institute. Brief has been filed on 3/5/14. [14-5003, 13-4178, 14-5006] EM
03/04/2014
This entry has been removed from the docket. The Amicus Brief submitted by Historians of Marriage was
filed on 3/4/14. [AT] DML
03/04/2014
This entry [10154562] Amicus Curiae brief submitted by Bay Area Lawyers for Individual Freedom, et al.,
has been removed from the docket as the brief has been filed. [NA] [13-4178, 14-5003, 14-5006] NSP
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
14-5003
Docket
45 of13
51of
18
03/04/2014
29 pg, 254.29 KB
[10154571] Motion filed by Amici Curiae ACLU, Leadership Conference et al., for Leave to File an
Attachment in 13-4178, 14-5003, 14-5006. Served on 03/04/2014. Manner of Service: email. [13-4178, 145003, 14-5006]
44 pg, 278.67 KB
[10154575] Amicus Curiae brief filed by California, Connecticut, Delaware, District of Columbia, Illinois,
Iowa, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New York, Oregon, Rhode Island,
Vermont and Washington in 13-4178. Original and 7 copies. Served on 03/04/2014. Manner of Service:
email, US mail. [13-4178, 14-5003, 14-5006]
03/04/2014
03/04/2014
49 pg, 1.45 MB
03/04/2014
60 pg, 328.05 KB
03/04/2014
4 pg, 15.07 KB
[10154604] Amicus Curiae brief filed by Mr. Peter Bardaglio, Ph. D., Ms. Norma Basch, Ms. Stephanie
Coontz, Ms. Nancy Cott, Mr. Toby L. Ditz, Ms. Ariela R. Dubler, Ms. Laura F. Edwards, Ms. Michael
Grossberg, Mr. Hendrik Hartog, Ms. Ellen Herman, Ms. Martha Hodes, Mr. Linda K. Kerber, Ms. Alice
Kessler-Harris, Ms. Elaine Tyler May, Ms. Serena Mayeri, Mr. Steve Mintz, Ms. Elizabeth Pleck, Ms.
Carole Shammas, Ms. Mary Shanley, Ms. Amy Dru Stanley, and Barbara Welke in 13-4178, 14-5003, and
14-5006. Original and 7 copies.. Served on 03/04/2014. Manner of Service: email. [13-4178, 14-5003, 145006]
[10154607] Amicus Curiae brief filed by Episcopal Diocese of Utah, et al. in 13-4178, 14-5003, and 145006. Original and 7 copies.. Served on 03/04/2014. Manner of Service: email. [13-4178, 14-5003, 145006]
[10154681] Motion to join the brief of amicus curiae State of Michigan filed by State of Kansas in 13-4178.
53 pg, 202.93 KB
[10154729] Amici Curiae brief filed by 46 Employers and Organizations Representing Employers:
American International Group, Inc., et al. Original and 7 copies. Served on 03/04/2014. Manner of Service:
email. [13-4178, 14-5003, 14-5006]--[Edited 03/17/2014 by KLP to attach an errata sheet.]
39 pg, 121.43 KB
[10154771] Amicus Curiae brief filed by Gay & Lesbian Advocates & Defenders in 13-4178, 14-5003, 145006. Original and 7 copies.. Served on 03/04/2014. Manner of Service: email. [13-4178, 14-5003, 145006]
51 pg, 186.7 KB
[10154580] Amicus Curiae brief filed by Historians of Antigay Discrimination in 13-4178, 14-5003, 145006. Original and 7 copies.. Served on 03/04/2014. Manner of Service: email. [13-4178, 14-5003, 145006]
3 pg, 36.9 KB
[10154632] Notice of appearance filed by Mr. Jeffrey A. Chanay and Mr. Bryan Charles Clark for State of
Kansas in 13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 03/04/2014.
Manner of Service: email.
3 pg, 35.03 KB
[10154638] Notice of appearance filed by Ms. Stacy A. Carpenter, Bennett L. Cohen, Esq., Mr. Jon R.
Dedon and Mr. Sean Robert Gallagher for Western Republicans. CERT. OF INTERESTED PARTIES: n.
03/04/2014
03/04/2014
03/05/2014
03/05/2014
03/05/2014
03/05/2014
38 pg, 191.61 KB
03/05/2014
[10154648] Amicus Curiae brief filed by Western Republicans in 13-4178, 14-5003, 14-5006. Original and
7 copies.. Served on 03/04/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
3 pg, 27.81 KB
[10154654] Notice of appearance filed by Mr. Kenneth D. Upton, Jr. for Lambda Legal Defense and
Education Fund, Inc. in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
60 pg, 233.07 KB
[10154655] Amicus Curiae brief filed by Lambda Legal Defense and Education Fund, Inc. in 13-4178, 145003, 14-5006. Original and 7 copies.. Served on 03/04/2014. Manner of Service: email. [13-4178, 145003, 14-5006]
03/05/2014
03/05/2014
54 pg, 185.94 KB
03/05/2014
3 pg, 63.95 KB
03/05/2014
54 pg, 255.08 KB
03/05/2014
[10154661] Amicus Curiae brief filed by Bay Area Lawyers for Individual Freedom, Austin LGBT Bar
Association, Colorado Gay Lesbian Bisexual Transgender (GLBT) Bar Association, Freedom to Marry,
LGBT & Allied Lawyers of Utah Bar Association, Love Honor Cherish, Marriage Equality USA, Minnesota
Lavender Bar Association, National Asian Pacific America Bar Association, New Mexico Lesbian and Gay
Lawyers Association, QLaw - the GLBT Bar Association of Washington, Stonewall Bar Association of
Georgia, Inc., Stonewall Bar Association of Michigan, Stonewall Law Association of Greater Houston and
The OUTLaws in 13-4178, 14-5003, 14-5006. Original and 7 copies.. Served on 03/04/2014. Manner of
Service: email. [13-4178, 14-5003, 14-5006] [Edited to add errata to brief-- Edited 03/05/2014 by NA]
[10154671] Notice of appearance filed by Ms. Camilla Taylor for Lambda Legal Defense and Education
Fund, Inc. in 13-4178. CERT. OF INTERESTED PARTIES: n. Served on 03/04/2014. Manner of Service:
email [13-4178, 14-5003, 14-5006]
[10154696] Amicus Curiae brief filed by National Women's Law Center in 13-4178. Original and 7 copies.
Served on 03/04/2014. Manner of Service: US mail, email. [13-4178, 14-5003, 14-5006]
39 pg, 164.02 KB
[10154704] Amicus Curiae brief filed by Howard University School of Law Civil Rights Clinic in 13-4178.
Original and 7 copies. Served on 03/04/2014. Manner of Service: US mail, email. [13-4178, 14-5003, 145006]
4 pg, 29.76 KB
[10154765] Second supplemental notice of appearance filed by Mr. Nicole Susan Phillis and Mr. Jerome
Cary Roth for Bar Association of San Francisco in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED
PARTIES: n. Served on 03/05/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
03/05/2014
12/26/2014
Case
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Page
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Docket
46 of14
51of
18
[10154814] Notice of appearance submitted by Jerome C. Roth, and Nicole S. Phillis for Oklahoma City
University School of Law OutLaws, and and University of Oklahoma College of Law Legal Group for
Building Tolerance and Acceptance for court review. Certificate of Interested Parties: No. Served on
03/05/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006] [Edited to remove PDF as pleading
has been filed as of 3/5/14-- Edited 03/05/2014 by NA] NSP
03/05/2014
03/05/2014
4 pg, 15.53 KB
03/05/2014
[10154835] Errata sheet filed by Mr. Jerome Cary Roth for Bay Area Lawyers for Individual Freedom,
Austin LGBT Bar Association, Freedom to Marry, LGBT & Allied Lawyers of Utah Bar Association, Love
Honor Cherish, Marriage Equality USA, Minnesota Lavender Bar Association, National Asian Pacific
America Bar Association, New Mexico Lesbian and Gay Lawyers Association, The OUTLaws, QLaw - the
GLBT Bar Association of Washington, Stonewall Bar Association of Georgia, Inc., Stonewall Bar
Association of Michigan, Stonewall Law Association of Greater Houston, Colorado Gay Lesbian Bisexual
Transgender (GLBT) Bar Association and Bar Association of San Francisco in 13-4178, Oklahoma City
University School of Law OutLaws and University of Oklahoma College of Law Legal Group for Building
Tolerance and Acceptance. Original and 7 copies. Served on 03/05/2014. Manner of Service: email. [134178, 14-5003, 14-5006] NSP
6 pg, 140.33 KB
[10154837] Motion filed by Appellants Ms. Susan G. Barton and Ms. Gay E. Phillips in 14-5006, Appellees
Ms. Sharon Baldwin, Ms. Susan G. Barton, Ms. Mary Bishop and Ms. Gay E. Phillips in 14-5003 to file an
oversize brief 21500 words long. Served on: 03/05/2014. Manner of service: email. This pleading complies
with all required (privacy, paper copy and virus) certifications: Yes. [14-5006, 14-5003] JEW
4 pg, 30.32 KB
[10154875] Notice of appearance filed by Mr. Nicole Susan Phillis for and Mr. Jerome Cary Roth for
Oklahoma City University School of Law OutLaws and University of Oklahoma College of Law Legal
Group for Building Tolerance and Acceptance in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED
PARTIES: n. Served on 03/05/2014. Manner of Service: email [13-4178, 14-5003, 14-5006]
3 pg, 29.24 KB
[10154922] Order filed by Clerk of the Court (EAS) at the direction of the court, the motion of the State of
Kansas to join the amicus brief filed by the State of Michigan on 2/10/14. The State of Kansas shall be
added as an amicus part on that brief. Served on 03/05/2014. [13-4178, 14-5003, 14-5006]
3 pg, 29.93 KB
[10154933] Order filed by Clerk of the Court (EAS) This matter is before the court on the motion of the
Amici Curiae 22 Bar Associations, Public-Interest Organizations and Legal Service Organizations for
Leave to File an Attachment. At the direction of the court, the motion is granted. The attachment shall be
shown as filed with the amicus brief. Served on 03/05/2014. [13-4178, 14-5003, 14-5006]
2 pg, 28.06 KB
[10154974] Order filed by Clerk of the Court (EAS) These matters are before the court on the
appellees/cross-appellants' Unopposed Motion for Leave to File an Enlarged Brief. Upon consideration
and at the direction of the court the motion is granted. The appellees/cross-appellants may file a brief that
is no more than 5,000 words above the usual maximum. Served on 03/06/2014. [14-5003, 14-5006]
03/05/2014
03/05/2014
03/05/2014
03/06/2014
03/10/2014
[10155881] Notices of an NDA re-sent to Stacy A. Carpenter[13-4178, 14-5003, 14-5006]
03/10/2014
[10155926] Notice of appearance submitted by Rita F. Lin and Laura W. Weissbein for Amicus Curiae
Family Law Professors for court review. Certificate of Interested Parties: No. Served on 03/10/2014.
Manner of Service: email. [14-5003, 14-5006] --[Edited 03/10/2014 by SLS to remove PDF file from docket
entry and correct docket text re: parties and interested parties.] RFL
03/10/2014
3 pg, 29.72 KB
[10155949] Notice of appearance filed by Rita F. Lin and Laura W. Weissbein for Family Law Professors
in 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 03/10/2014. Manner of Service:
email. [14-5003, 14-5006]
03/11/2014
[10156230] Notice of an NDA re-sent to Stacy Carpenter. [14-5003]
03/12/2014
[10156792] Notice of appearance submitted by Lori Alvino McGill for Amicus Curiae Constitutional Law
Scholars in 13-4178 for court review. Certificate of Interested Parties: No. Served on 03/12/2014. Manner
of Service: email. [13-4178, 14-5003, 14-5006] [Edited to remove PDF as pleading has been filed as of
3/12/14-- Edited 03/12/2014 by NA] LAA
03/12/2014
3 pg, 50.05 KB
03/14/2014
[10156796] Notice of appearance filed by Ms. Lori Ann Alvino McGill for Constitutional Law Scholars in 134178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: n. Served on 03/12/2014. Manner of
Service: email [13-4178, 14-5003, 14-5006]
[10157828] Errata sheet filed by Ms. Meghan Bailey for 46 Employers and Organizations Representing
Employers in 13-4178, Ms. Susan Baker Manning for 46 Employers and Organizations Representing
Employers, Mr. John V. McDermott, Esq. for 46 Employers and Organizations Representing Employers,
Ms. Lauren Schmidt for 46 Employers and Organizations Representing Employers, Ms. Margaret Sheer
for 46 Employers and Organizations Representing Employers and Mr. Michael Louis Whitlock for 46
Employers and Organizations Representing Employers in 14-5006, 46 Employers and Organizations
Representing Employers. Original and 7 copies. Served on 03/14/2014. Manner of Service: email. [134178, 14-5003, 14-5006]--[Edited 03/17/2014 by KLP to delete the attachment; it was placed with the
brief.] MLW
03/17/2014
172 pg, 887.58 KB
[10158185] Second brief on cross-appeal filed by Ms. Sharon Baldwin, Ms. Susan G. Barton, Ms. Mary
Bishop and Ms. Gay E. Phillips in 14-5003, Ms. Susan G. Barton and Ms. Gay E. Phillips in 14-5006. 7
paper copies to be provided to the court. Served on: 03/17/2014. Manner of service: email, US mail. Oral
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
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Docket
47 of15
51of
18
argument requested? Yes. This pleading complies with all required (privacy, paper copy and virus)
certifications: Yes. [14-5003, 14-5006] DGH
[10158563] Minute order filed - Per the Court's order of 1/28/14, Third brief on cross-appeal now due
04/01/2014 by Sally Howe Smith. (Text Only - No Attachment) [14-5003, 14-5006]
03/18/2014
03/20/2014
1 pg, 21.68 KB
03/20/2014
[10158939] Deficiency notice issued. Type of deficiency: no entry of appearance filed. Notice of
appearance due on 03/27/2014 for Historians of Antigay Discrimination [13-4178, 14-5003, 14-5006]
[10158985] Notice of appearance submitted by Catherine E. Stetson for Amicus Curiae Historians of
Antigay Discrimination in 13-4178, 14-5003, 14-5006 for court review. Certificate of Interested Parties:
Yes. Served on 03/20/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006] --[Edited 03/20/2014
by SLS to remove PDF file from docket entry.] CES
03/20/2014
3 pg, 23.91 KB
03/20/2014
[10158994] Notice of appearance filed by Ms. Catherine Emily Stetson for Historians of Antigay
Discrimination in 13-4178, 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: y. Served on
[10159168] Notice of appearance submitted by David S. Flugman for Amicus Curiae Howard University
School of Law Civil Rights Clinic in 13-4178, 14-5003, 14-5006Amicus Curiae Howard University School
of Law Civil Rights Clinic for court review. Certificate of Interested Parties: No. Served on 03/20/2014.
Manner of Service: email. [13-4178, 14-5003, 14-5006]--[Edited 03/20/2014 by AT to remove PDF as
pleading was filed on 3/30/14.] DSF
03/20/2014
4 pg, 81.02 KB
03/21/2014
8 pg, 59.1 KB
03/21/2014
1 pg, 19.67 KB
[10159175] Notice of appearance filed by Mr. David Scott Flugman for Howard University School of Law
Civil Rights Clinic in 13-4178, 14-5003, and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
[10159381] Order filed by Clerk of the Court outlining the protocol to be followed for the oral argument
scheduled for Thursday, April 17, 2014. The order details Courtroom Location and Seating; Identification;
Prohibition on Broadcasting, Recording, and Photography; Use of Laptops and Tablets in Courtrooms;
Cell Phones; Overflow Audio and Video Feed Access; Media and Public Areas; and Digital Recording.
Served on 03/21/2014. [14-5003, 14-5006]
[10159470] Oral Argument Acknowledgment Form filed by Sally Howe Smith in 14-5003, 14-5006. Served
on 03/21/2014. Manner of Service: email. [14-5003, 14-5006] JAC
03/24/2014
[10159741] Returned mail filed. Addressed to: Judson O. Littleton. Reason returned: Illegible Unable to
foward. Document returned: 2/19/14 order. [14-5003, 14-5006]
03/24/2014
[10159757] Notice of appearance submitted by Mark W. Mosier for Political Science Professors for court
review. Certificate of Interested Parties: Yes. Served on 03/24/2014. Manner of Service: email. [14-5003,
14-5006] --[Edited 03/24/2014 by SLS to remove PDF file from docket entry.] MWM
03/24/2014
This entry has been removed from the docket as the amicus brief submitted by Political Science
Professors was filed on 3/24/14. [AT] MWM
03/24/2014
3 pg, 38.33 KB
03/24/2014
38 pg, 219.42 KB
03/24/2014
[10159815] Notice of appearance filed by Mark William Mosier for John Aldrich, Shaun Bowler, Bruce
Cain, Cornell W. Clayton, Donald P. Haider-Markel, Rodney Hero, Taeku Lee, Gregory B. Lewis, Margaret
Levi, Michael McCann, Valerie Martinez-Ebers, Gary Segura, Kenneth Sherrill and Charles Anthony Smith
in 14-5003, 14-5006. CERT. OF INTERESTED PARTIES: y. Served on 03/24/2014. Manner of Service:
email. [14-5003, 14-5006]
[10159891] Amicus Curiae brief filed by (14 Political Science Professors) John Aldrich, Shaun Bowler,
Bruce Cain, Cornell W. Clayton, Donald P. Haider-Markel, Rodney Hero, Taeku Lee, Margaret Levi,
Gregory B. Lewis, Valerie Martinez-Ebers, Michael McCann, Gary Segura, Kenneth Sherrill, and Charles
Anthony Smith in 14-5003, 14-5006. 7 copies. Served on 03/24/2014. Manner of Service: US mail, email.
[14-5003, 14-5006]
[10159902] Notice of appearance submitted by Kathryn R. DeBord, Stephen D. Gurr, Christy L. Anderson,
Sarah E. April for Family Equality Council, COLAGE, Camp Fire Green Country, Inc., Emergency Infant
Services for court review. Certificate of Interested Parties: No. Served on 03/24/2014. Manner of Service:
email. [14-5003, 14-5006]--[Edited 03/24/2014 by AT to remove PDF as pleading was filed on 3/24/14.]
KRD
03/24/2014
6 pg, 88.1 KB
[10160013] Notice of appearance filed by Ms. Christy L. Anderson Ms. Sarah Elizabeth, Ms. Kathryn R.
DeBord, and Stephen D. Gurr for Family Equality Council, Colage, Camp Fire Green Country, Inc., and
Emergency Infant Services in 14-5003 and 14-5006. CERT. OF INTERESTED PARTIES: n. Served on
03/24/2014. Manner of Service: email [14-5003, 14-5006]
03/24/2014
[10160018] Notice of appearance submitted by Rocky C. Tsai for Anti-Defamation League, et al. for court
review. Certificate of Interested Parties: No. Served on 03/24/2014. Manner of Service: email. [14-5003,
14-5006] --[Edited 03/24/2014 by SLS to remove PDF file from docket entry.] RCT
03/24/2014
This entry [10160048] Amicus Curiae brief submitted by Family Equality Council, COLAGE, Camp Fire
Green Country, Inc. and Emergency Infant Services has been removed from the docket. The brief has
been filed. [BV] KRD
12/26/2014
Case
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Page
14-5003
Docket
48 of16
51of
18
03/24/2014
3 pg, 38.04 KB
[10160064] Notice of appearance filed by Mr. Rocky Chiu-feng Tsai for Women's League for Conservative
Judaism, Women of Reform Judaism, T'ruah: The Rabbinic Call for Human Rights, South Asian
Americans Leading Together, Society for Humanistic Judaism, Sikh American Legal Defense and
Education Fund, Religious Institute, Inc., Reconcilingworks: Lutherans for Full Participation, Presbyterian
Welcome, People for the American Way Foundation, Nehirim, National Council of Jewish Women, More
Light Presbyterians, Metropolitan Community Churches, Keshet, Jewish Social Policy Action Network,
Japanese American Citizens League, Interfaith Alliance of Colorado, Interfaith Alliance Foundation, Hindu
American Foundation, Hadassah, The Women's Zionist Organization of America, Inc., Central Conference
of American Rabbis, Bend the Arc: A Jewish Partnership for Justice, Anti-Defamation League and
Americans United for Separation of Church and State in 14-5003, 14-5006. CERT. OF INTERESTED
PARTIES: n. Served on 03/24/2014. Manner of Service: email. [14-5003, 14-5006]
03/24/2014
This entry has been removed from the docket. The Amicus Curiae brief submitted by Anti-Defamation
League et al, was filed on 3/24/14. [AT] RCT
03/24/2014
This entry ([10160084] Amicus Curiae brief submitted by Joan Heifetz Hollinger, Marianne Blair, Courtney
Joslin, Family Law Professors) has been removed from the docket. The brief has been filed. [SLS] RFL
03/24/2014
45 pg, 139.91 KB
03/24/2014
59 pg, 177.01 KB
03/24/2014
[10160150] Amicus Curiae brief filed by Joan Heifetz Hollinger, Marianne Blair, Courtney Joslin, and FiftySeven Other Family Law Professors in 14-5003, 14-5006. Original and 7 copies. Served on 03/24/2014.
Manner of Service: email. [14-5003, 14-5006]
[10160164] Amicus Curiae brief filed by Americans United for Separation of Church and State, AntiDefamation League, Bend the Arc: A Jewish Partnership for Justice, Central Conference of American
Rabbis, Hadassah, The Women's Zionist Organization of America, Inc., Hindu American Foundation,
Interfaith Alliance Foundation, Interfaith Alliance of Colorado, Japanese American Citizens League,
Jewish Social Policy Action Network, Keshet, Metropolitan Community Churches, More Light
Presbyterians, National Council of Jewish Women, Nehirim, People for the American Way Foundation,
Presbyterian Welcome, Reconcilingworks: Lutherans for Full Participation, Religious Institute, Inc., Sikh
American Legal Defense and Education Fund, Society for Humanistic Judaism, South Asian Americans
Leading Together, T'ruah: The Rabbinic Call for Human Rights, Women of Reform Judaism and Women's
League for Conservative Judaism in 14-5003 and 14-5006. Original and 7 copies. Served on 03/24/2014.
Manner of Service: email. [14-5003, 14-5006]
39 pg, 126.91 KB
[10160187] Amicus Curiae brief filed by Camp Fire Green Country, Inc., Colage, Emergency Infant
Services and Family Equality Council in 14-5003. Original and 7 copies. Served on 03/24/2014. Manner of
Service: email. [14-5003, 14-5006]
128 pg, 808.54 KB
[10160919] Motion filed by Appellants Mr. Gary R. Herbert and Sean Reyes to file corrected/substitute
brief. Served on: 03/26/2014. Manner of service: email. This pleading complies with all required (privacy,
paper copy and virus) certifications: Yes. [13-4178, 14-5003] SEP
03/26/2014
03/27/2014
9 pg, 220.37 KB
04/01/2014
75 pg, 156.52 KB
[10161176] Errata sheet filed by Mr. Stanford E. Purser for Mr. Gary R. Herbert and Sean Reyes in 134178. Original and 7 copies. Served on 03/27/2014. Manner of Service: email. [13-4178, 14-5003] SEP
[10162589] Third brief on cross-appeal filed by Sally Howe Smith in 14-5003, 14-5006. 7 paper copies to
be provided to the court. Served on: 04/01/2014. Manner of service: email. This pleading complies with all
required (privacy, paper copy and virus) certifications: Yes. [14-5003, 14-5006] BJB
[10163208] Minute order filed - Pursuant to the 1/29/14 order, fourth brief on cross-appeal now due
04/07/2014 by appellees/cross-appellants, Susan G. Barton and Gay E. Phillips. (Text Only - No
Attachment) [14-5003, 14-5006]
04/03/2014
04/07/2014
26 pg, 208.05 KB
[10164199] Cross-appeal reply brief filed by Ms. Susan G. Barton and Ms. Gay E. Phillips in 14-5003, 145006. 8 paper copies to be provided to the court. Served on: 04/07/2014. Manner of service: email. This
pleading complies with all required (privacy, paper copy and virus) certifications: Yes. [14-5003, 14-5006]
DGH
107 pg, 345.8 KB
[10164283] Motion filed by Amicus Curiae Historians of Antigay Discrimination in 13-4178, 14-5003, 145006 to file corrected/substitute brief. Served on: 04/07/2014. Manner of service: email. This pleading
complies with all required (privacy, paper copy and virus) certifications: Yes. [13-4178, 14-5003, 14-5006]
CES
3 pg, 28.43 KB
[10164625] Order filed by Clerk of the Court (EAS) - These matters are before the court on the motion of
amici curiae Historians of Antigay Discriminination seeking leave to file a corrected brief. Upon
consideration, the motion is granted. The corrected brief attached to the motion shall be shown filed as of
the date of this order. Served on 04/08/2014. [13-4178, 14-5003, 14-5006]
04/07/2014
04/08/2014
04/08/2014
50 pg, 163.04 KB
[10164630] Corrected Amicus Curiae brief filed by Historians of Antigay Discrimination in 13-4178, 145003, 14-5006. Served on 04/07/2014. Manner of Service: email. [13-4178, 14-5003, 14-5006]
8 pg, 36.44 KB
[10167674] Matter argued by James Campbell for Appellant and by Don Holladay for the Appellees;
Submitted to Judges Kelly, Lucero and Holmes. [14-5003, 14-5006]
04/17/2014
04/29/2014
4 pg, 13.18 KB
[10171232] Motion filed by Amicus Curiae Gay & Lesbian Advocates & Defenders in 13-4178, 14-5003 for
attorney Leah Litman to withdraw as counsel.. Served on: 04/29/2014. Manner of service: email. This
LML
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
14-5003
Docket
49 of17
51of
18
04/29/2014
111 pg, 928.55 KB
05/02/2014
2 pg, 85.69 KB
[10171329] Supplemental authority filed by Sally Howe Smith in 14-5003, 14-5006. Served on 04/29/2014.
Manner of Service: email. [14-5003, 14-5006] BJB
[10172511] Response filed by Ms. Sharon Baldwin, Ms. Susan G. Barton, Ms. Mary Bishop and Ms. Gay
E. Phillips in 14-5003, Ms. Susan G. Barton and Ms. Gay E. Phillips in 14-5006 to Appellant's Citation of
Supplemental Authority. Served on 05/02/2014. Manner of Service: email. This pleading complies with all
required (privacy, paper copy and virus) certifications: Yes.--[Edited 05/02/2014 by BV to remove from
case No. 13-4178] [14-5003, 14-5006] DGH
3 pg, 28.67 KB
[10173671] Order filed by Judges Kelly, Lucero, and Holmes granting attorney Leah Litman's motion to
withdraw as counsel for Amicus Curiae Gay & Lesbian Advocates & Defenders' in appeals 13-4178, 145003, 14-5006. Served on 05/06/2014. [13-4178, 14-5003, 14-5006]
107 pg, 265.37 KB
[10192063] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Kelly
(concurring in part and dissenting in part), Lucero (authoring with the exception of Part III), and Holmes
(authoring Part III and concurring). The mandate is stayed. [14-5003, 14-5006]--[Edited 07/21/2014 by
KLP to attach a corrected opinion (corrects appendix to add Family Research Council).]
05/06/2014
07/18/2014
07/18/2014
2 pg, 22.31 KB
07/31/2014
3 pg, 13.4 KB
07/31/2014
[10192073] Judgment for opinion filed. [14-5003, 14-5006]--[Edited 07/18/2014 by KLP to add case
number 14-5006 to the judgment]
[10195308] Motion filed by Amicus Curiae Family Law Professors in 14-5003 and 14-5006 for attorney
Rita F. Lin to withdraw as counsel. Served on: 07/31/2014. Manner of service: email. This pleading
complies with all required (privacy, paper copy and virus) certifications: Yes. [14-5003, 14-5006]--[Edited
07/31/2014 by KLP to delete the filing from Case No. 13-4178 because the motion is not captioned for
Case No. 13-4178 and to clarify the docket text.] RFL
2 pg, 22.21 KB
[10195369] Order filed by Judges Kelly, Lucero and Holmes construing Rita Lin's "Notice of Withdrawal of
Counsel" as a f motion to withdraw as counsel for Amicus Curiae Family Law Professors and granting the
motion, as construed. Served on 07/31/2014. [14-5003, 14-5006]
11 pg, 299.28 KB
[10195650] Motion filed by Appellees Ms. Sharon Baldwin, Ms. Susan G. Barton, Ms. Mary Bishop and
Ms. Gay E. Phillips in 14-5003 for attorney fees. Served on: 08/01/2014. Manner of service: email. This
DGH
2 pg, 27.56 KB
[10195779] Order filed by Clerk of the Court - This matter is before the court on Appellees' Application for
Appeal-Related Attorneys' Fees and Motion for Remand to District Court to Determine Amount and Brief in
Support (the "Motion"). The appellant/cross-appellee, Sally Howe Smith, is directed to file a response to
the Motion on or before 8/18/14. Served on 08/04/2014. [14-5003, 14-5006]
08/01/2014
08/04/2014
08/08/2014
1 pg, 55.95 KB
08/08/2014
6 pg, 11.17 KB
08/11/2014
2 pg, 28.54 KB
10/06/2014
2 pg, 28.01 KB
[10197244] Petition for writ of certiorari filed by Sally Howe Smith on 08/06/2014. Supreme Court Number
14-136. [14-5003, 14-5006]
[10197365] Motion filed by Appellant Sally Howe Smith in 14-5003, Appellee Sally Howe Smith in 14-5006
to extend time to file a response until 06/30/2015. Served on: 08/08/2014. Manner of service: email. This
BJB
[10197500] Order filed by Judges Kelly, Lucero, and Holmes (EAS) - These matters are before the court
on appellant Sally Howe Smith's Unopposed Motion to Extend the Time to Respond to Appellee's
Application for Appeal-Related Attorney's Fees. Upon consideration, the motion is granted. The response
to the attorney fee request will be due 14 days after the United States Supreme Court's final disposition of
the pending petition for certiorari. On or before 10/08/2014 Ms. Smith shall file a written status report
advising the court of the status of the petition. Served on 08/11/2014. [14-5003, 14-5006]
[10212548] Order filed by Judges Kelly, Lucero and Holmes - On this date, the United States Supreme
Court denied certiorari review in these matters. Consequently, the stay of the mandate directed in our
decision dated 7/18/14 is lifted, and the mandate shall issue forthwith. A copy of this order shall stand as
the mandate of the court. Served on 10/06/2014. [14-5003, 14-5006]
10/06/2014
[10212549] Mandate issued - note this is a text entry only for procedural purposes. [14-5003, 14-5006]
10/06/2014
[10212552] Minute order filed - Response to pending motion for attorneys' fees due on 10/20/2014 for
Sally Howe Smith. (Text Only - No Attachment) [14-5003, 14-5006]
10/07/2014
1 pg, 54.1 KB
10/20/2014
6 pg, 51.9 KB
10/28/2014
2 pg, 23.43 KB
[10212973] Supreme Court order dated 10/06/2014 denying certiorari filed by Sally Howe Smith in 145003, 14-5006. [14-5003, 14-5006]
[10216311] Response filed by Sally Howe Smith in 14-5006 to Appellees application for appeal-related
attorney's fees. Served on 10/20/2014. Manner of Service: email. This pleading complies with all required
(privacy, paper copy and virus) certifications: Yes. [14-5006, 14-5003] JDL
[10219234] Order filed by Judges Kelly, Lucero and Holmes (EAS) granting in part and denying in part
plaintiffs' Application for Appeal-Related Attorneys' Fees and Motion for Remand to District Court to
Determine Amount and Brief in support; remanding to the United States District Court for the Northern
District of Oklahoma; directing that a copy of this order stand as a supplement to the mandate. Served on
10/28/2014. [14-5003, 14-5006]
12/26/2014
Case
4:04-cv-00848-TCK-TLW
Page
14-5003
Docket
50 of18
51of
18
10/28/2014
[10219236] Supplement to mandate issued. [14-5003, 14-5006]

1 pg, 20.44 KB
12/26/2014

MARY BISHOP,
SHARON BALDWIN,
GAY E. PHILLIPS,
Plaintiffs,
vs.
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
AFFIDAVIT OF ROBERT B. SARTIN

STATE OF OKLAHOMA
COUNTY OF TULSA
)
) ss.
)
ROBERT B. SARTIN, (Affiant), being duly sworn upon his oath, of lawful age and
knowledgeable of the matters set forth hereinafter, deposes and states as follows:
1.
Affiant is duly licensed to practice law in the state of Oklahoma and a shareholder
with the law firm of Barrow & Grimm, P.C. (Firm).

2.
Affiant received his Juris Doctorate degree from the University of Oklahoma in
1988 and was admitted to practice law in Oklahoma in 1988. He has over 25 years of experience
representing clients in business and litigation matters. His litigation skills and expertise have
been acknowledged by several national organizations and publications serving the legal
profession, including the time-honored AV rating from Martindale-Hubbell; Oklahoma
Magazine; continuously selected as an Oklahoma Super Lawyer in business litigation since its
inception in 2006 and as a prestigious Top Fifty in Oklahoma since 2009; and The Best
Lawyers in America for 2013.
Exhibit 9
Non-compensable time drafting principal brief/notice of appeal for Cross-Appellants Barton and Phillips
entry timekeeper
date
hours
180 Holladay
3/16/2014
2
total hours:
2
hourly rate: $350.00
total amount:
3 Warner
1/23/2014
0.2
total hours:
0.2
total amount:
code
cr-ap
description
Review draft brief in principal.
$700.00
cr-ap
Draft notice of appeal.
$55.00
Non-compensable time spent drafting reply brief for Cross-Appellants Barton and Phillips
entry timekeeper
209 Holladay
214 Holladay
215 Holladay
216 Holladay
date
4/2/2014
hours
3
code
reply
4/6/2014
0.5
reply
4/6/2014
1
reply
4/7/2014
1.5
reply
total hours:
6
total amount: $2,100.00
106 Thai
4/1/2014
4.5
reply
107
108
109
110
111
Thai
Thai
Thai
Thai
Thai
4/2/2014
4/2/2014
4/3/2014
4/4/2014
4/5/2014
3
2.6
2
5
8.5
reply
reply
reply
reply
reply
112 Thai
113 Thai
4/6/2014
4/6/2014
3
3
reply
reply
114 Thai
4/7/2014
5.5
reply
total hours:
37.1
SUB TOTAL:
description
Meeting with co-counsel Joe Thai and James Warner to prepare reply brief arguments, and
follow-up attention to same.
Comments on final draft.
Continued comments with co-counsel on final of reply brief.
Final review of reply brief before filing.
Review and annotate appellant's response brief. Outline replies to points in response brief.
Outline points for reply brief (excluding non-recognition).
Meeting with Holladay and Warner regarding strategy and substance of reply brief.
Draft reply brief (introduction, point 1)
Draft reply brief (point 2)
Draft reply brief (point 2)
Outline and draft remainder of reply brief (point 3 excluding non-recognition, point 4); revise
draft.
Revise and polish draft.
Proof, incorporate edits, cite-checks, and citation formatting from research assistants and
proof readers.
Final cite-checking, editing, proofing, formatting for filing.
$17,695.00
Exhibit "A"
1

23
Non-compensable time spent drafting principal brief for Cross-Appellants Barton and Phillips
entry timekeeper
date
hours
155 Holladay
3/7/2014
3
3
total hours:
half of the total hours:
1.5
total amount:
6
10
11
12
14
15
code
description
50%
Work on principal and response brief.
$525.00
Warner
Warner
Warner
Warner
Warner
Warner
3/3/2014
6.1
50%
3/7/2014
5
50%
3/10/2014
6.5
50%
3/11/2014
2.5
50%
3/16/2014
8
50%
3/17/2014
10.5
50%
38.6
total hours:
19.3
84 Thai
3/15/2014
8.5
50%
Review draft of principal and response brief.

Review and edit draft principal and response brief.
Continue review of draft principal and response brief.
Continue review and revising of draft principal and response brief.
Review and revise principal and response brief.
Finalize principal and response brief.
Check and edit citations throughout entire brief, incorporate cite-checking and edits of
research assistants, and correspond with research assistants regarding same.
total hours:
8.5
4.25
SUB TOTAL:
$7,532.50
Non-compensable time after oral argument and prior to Tenth Circuit's decision
entry
238
239
240
241
242
243
128
129
130
131
132
133
134
135
timekeeper
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
date
hours
code
6/13/2014
0.4
unnsy
6/16/2014
0.4
unnsy
6/18/2014
0.4
unnsy
6/24/2014
0.4
unnsy
6/25/2014
1
unnsy
6/25/2014
0.8
unnsy
total hours:
3.4
description
Attention to Wisconsin decision regarding advisory letter to court.
Attention to oral arguments setting in 6th Circuit.
Attention to Oregon case regarding attorney fees recovery.
Attention to rehearing en banc denial in SmithKline
Receive and review Kitchen decision.
Analysis of Kitchen decision with co-counsel.
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
5/13/2014
0.8
unnsy
5/19/2014
0.7
unnsy
5/19/2014
0.7
unnsy
5/20/2014
0.7
unnsy
6/6/2014
1
unnsy
6/25/2014
1.8
unnsy
6/25/2014
0.8
unnsy
6/26/2014
0.7
unnsy
total hours:
7.2
Review and annotate Latta v. Otter (new Idaho district court decision).
Review and annotate Evans v. Utah (new Utah district court decision).
Review and annotate Geiger v. Kitzhaber (new Utah district court decision).
Review and annotate Whitewood v. Wolf (new Pennsylvania district court decision).
Review and annotate Wolf v. Walker (new Wisconsin district court decision).
Review and annotate Kitchen decision.
Conference with Holladay on Kitchen decision.
Review and annotate Baskin v. Bogan (new Indiana district court decision).
SUB TOTAL:
$4,070.00

23
Non-compensable time drafting brief also requesting certiorari

entry
248
249
250
252
253
254
255
256
257
258
259
260
timekeeper
date
Holladay
8/10/2014
Holladay
8/11/2014
Holladay
8/11/2014
hours
0.6
0.5
4.5
code
unnsy
unnsy
unnsy
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
8/11/2014
8/11/2014
8/11/2014
8/12/2014
8/12/2014
8/12/2014
8/12/2014
8/13/2014
8/13/2014
0.6
1.6
1
1
1
1
0.8
0.2
0.4
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
261 Holladay
8/13/2014
1.4
unnsy
262
263
264
265
266
267
268
269
270
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
8/14/2014
8/14/2014
8/14/2014
8/14/2014
8/14/2014
8/15/2014
8/15/2014
8/17/2014
8/17/2014
1
0.5
0.6
0.6
0.6
0.4
1
1
1
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
271
272
273
274
Holladay
Holladay
Holladay
Holladay
8/18/2014
8/18/2014
8/18/2014
8/19/2014
0.6
0.5
0.5
0.4
unnsy
unnsy
unnsy
unnsy
275 Holladay
276 Holladay
277 Holladay
8/20/2014
8/20/2014
8/21/2014
0.6
1
0.4
unnsy
unnsy
unnsy
278 Holladay
8/23/2014
1.2
unnsy
279 Holladay
280 Holladay
8/23/2014
0.6
unnsy
8/25/2014
0.5
unnsy
total hours:
27.6
31 Warner
8/11/2014
unnsy
32 Warner
8/12/2014
2.6
unnsy
33 Warner
8/13/2014
6.9
unnsy
34 Warner
8/14/2014
1.5
unnsy
35
36
37
38
Warner
Warner
Warner
Warner
138 Thai
139 Thai
143 Thai
8/19/2014
2
unnsy
8/20/2014
4
unnsy
8/25/2014
3.7
unnsy
8/26/2014
1.7
unnsy
total hours:
25.4
7/23/2014
7/24/2014
8/5/2014
0.4
1
1.2
unnsy
unnsy
unnsy
description
Review updated introduction for response to petition for certiorari.
Review Golinski decision for purposes of issue in certiorari response.
Meeting with co-counsel regarding strategy matters (2.5), and telephone conference with
Jeffrey Fisher (0.5), and follow-up regarding case matters (1.5).
Review animus cases for purposes of response to petition for certiorari.
Continued review of animus cases.
Draft animus memo to co-counsel.
Review moral disapproval/animus cases for purposes of response brief to SCOTUS.
Review Bishop panel's concurring opinion.
Review other petitions for certiorari.
Review law review articles regarding constitutional animus.
Review Virginia denial of stay.
Communications with co-counsel regarding case matters regarding amici filings at SCOTUS.
Attention to case strategy matters regarding timing, other certiorari petitions, and positions to
take in response.
Telephone conference with counsel for Utah plaintiffs.
Follow-up conference with co-counsel.
Review draft introduction section of response to petition for certiorari.
Review Utah petition for certiorari.
Review Bostic decision for purposes of response brief.
Prepare for conference with co-counsel.
Conference with co-counsel regarding case matters, and follow-up.
Receive and review rough draft of response briefs introduction and statement of case.
Correspondence to co-counsel Jeffrey Fisher regarding Williams Institute data and
Oklahoma National Guard order regarding same-sex couples.
Proof reading memo to counsel.
Review of response of plaintiffs in Virginia and stay application.
Review of arguments memo (Utah)
Review of original motion to dismiss Oklahoma AG and Governor per co-counsel Fisher's
request.
Review animus and "moral disapproval" law clerk memorandum of law (8/13/14)
Review Respondents draft brief.
Attention to animus topic in response brief and correspondence emails with co-counsel
regarding same,
Review Oklahoma Constitution sections and correspond with co-counsel Jeffrey Fisher
regarding same for inclusion in response brief.
Continuing proof reading and correspond regarding same.
Review and edit revised version of draft response brief.
Conference with D. Holladay, Joe Thai and Jeff Fisher regarding response to petition for
certiorari and plan going forward.
Research regarding lower federal courts' discussions of animus and moral disapproval being
motivating factors behind passage of legislation.
Continue research regarding federal court opinions on animus and moral disapproval and
their respective definitions and effect on legislation.
Continue research regarding federal court opinions on animus and moral disapproval and
their respective definitions and effect on legislation.
Review draft of response brief to petition for certiorari.
Review revised draft of response to petition for certiorari.
Revise draft of response to petition for certiorari.
Revise draft of response to petition for certiorari.
Review and annotate Burns v. Hickenlooper (new Colorado disrtict court decision).
Review and annotate Bostic v. Schaefer (new Fourth Circuit decision).
Review and annotate certiorari petition in Kitchen.

23
144 Thai
145 Thai
8/6/2014
8/6/2014
2.5
1.2
unnsy
unnsy
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
8/6/2014
8/8/2014
8/8/2014
8/8/2014
8/9/2014
8/10/2014
8/11/2014
8/11/2014
8/11/2014
8/11/2014
8/12/2014
8/14/2014
8/14/2014
8/14/2014
8/14/2014
8/15/2014
0.6
1
4.3
1
2.5
0.5
3.8
0.5
1
0.4
4.3
1
0.4
0.8
0.5
1
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
162
163
164
165
166
Thai
Thai
Thai
Thai
Thai
8/15/2014
8/15/2014
8/15/2014
8/16/2014
8/17/2014
0.6
4.8
0.5
4.3
3.4
unnsy
unnsy
unnsy
unnsy
unnsy
167
168
169
170
Thai
Thai
Thai
Thai
8/18/2014
8/18/2014
8/18/2014
8/18/2014
0.4
0.4
1.8
0.8
unnsy
unnsy
unnsy
unnsy
171
172
173
174
175
176
177
178
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
8/18/2014
8/19/2014
8/21/2014
8/21/2014
8/22/2014
8/22/2014
8/22/2014
8/23/2014
4.3
6.4
3
0.6
5.4
0.7
0.8
1.8
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
unnsy
179 Thai
8/24/2014
2.4
unnsy
180 Thai
8/25/2014
3.4
unnsy
181 Thai
8/26/2014
2.8
unnsy
Review and annotate Smith's certiorari petition.

Review cert-stage filings in Windsor and Perry. Memorandum to Holladay and Warner
regarding same.
Review rules of Supreme Court regarding certiorari filings and timing.
Conference with Holladay regarding certiorari strategy.
Draft certiorari response (introduction).
Review and annotate Rainey petition.
Draft certiorari response (introduction, headers).
Conference call with Jeffrey Fisher regarding certiorari strategy.
Conference with Holladay regarding certiorari strategy.
Conference call with Holladay and Fisher regarding certiorary strategy.
Draft certiorari response (introduction).
Review Holladay's animus memorandum.
Draft certiorari response (introduction, statement).
Conference call with Kitchen counsel for plaintiffs.
Conference with Holladay regarding call with Kitchen counsel.
Review Mcaulgg (Virginia) stay application in Supreme Court and related proceedings.
Correspond with Holladay regarding developments in Virginia cases.
Conference with Holladay and Fisher regarding certiorari strategy. Follow-up with Holladay,
Review and annotate stay application by McQuigg (Virginia).
Draft certioriari response (introduction and statement).
Correspond with Fisher and Holladay regarding multiple grant material for response.
Draft certiorari response (introduction and statement).
Draft certiorari response (introduction and statement). Cover memorandum to co-counsel
transmitting draft response.
Review and respond to memorandum from Holladay regarding draft.
Review and annotate response to stay application in McQuigg (Virginia).
Draft certiorari response (merits).
Review draft language of Utah plaintiff's response to certiorari petition and correspond with
Utah counsel regarding same.
Draft certiorari response (merits, intro string cite).
Draft certiorari response (merits).
Review, comment, and revise Fisher's draft sections of response (reasons for granting).
Review and annotate Brenner v. Scott (new Florida district court decision).
Draft certiorari response (merits, conclusion). Cover memorandum to co-counsel.
Review and annotate Rainey response.
Review and annotate Schaefer petition.
Review revised draft response from Fisher. Correspond with co-counsel regarding changes.
Proof, polish, and correspond with co-counsel regarding same. Incorporate edits and cite
checks of research assistants.
Review and line edit latest revised version and memorandum from Fisher regarding same.
Correspond with co-counsel regarding same.
Final reviews, line edits, and proofing of filing candidates after further Fisher revisions in light
of previous correspondence.
total hours:
78.5
SUB TOTAL:
$48,045.00

23
Non-compensable time coordinating and drafting amicus briefs in support of Appellees

entry timekeeper
date
5 Holladay
1/15/2014
8
9
10
23
24
hours
1.4
code
am
Holladay
Holladay
Holladay
Holladay
Holladay
1/16/2014
1/17/2014
1/17/2014
1/22/2014
1/22/2014
1
2
1.4
0.3
3
am
am
am
am
am
25 Holladay
1/22/2014
am
27 Holladay
28 Holladay
29 Holladay
1/23/2014
1/23/2014
1/23/2014
0.4
0.6
0.5
am
am
am
30 Holladay
1/23/2014
0.5
am
31 Holladay
1/23/2014
am
32 Holladay
35 Holladay
1/23/2014
1/24/2014
0.2
0.5
am
am
36 Holladay
1/24/2014
am
38 Holladay
1/27/2014
1.5
am
39b Holladay
1/28/2014
1.5
am
40 Holladay
1/29/2014
0.6
am
44 Holladay
45 Holladay
1/30/2014
1/30/2014
0.4
0.3
am
am
47 Holladay
1/31/2014
2.7
am
51 Holladay
52 Holladay
2/3/2014
2/3/2014
3.6
0.5
am
am
53 Holladay
56 Holladay
2/3/2014
2/3/2014
0.9
0.6
am
am
57
58
59
66
Holladay
Holladay
Holladay
Holladay
2/5/2014
2/5/2014
2/5/2014
2/7/2014
0.3
0.4
0.3
0.7
am
am
am
am
69 Holladay
2/7/2014
am
70 Holladay
2/7/2014
0.5
am
71 Holladay
2/7/2014
0.5
am
76 Holladay
77 Holladay
2/8/2014
2/8/2014
1.2
0.7
am
am
description
Meeting with new co-counsel Joe Thai (0.4) regarding case matters; and review Windsor
amicus parties, and compile list of regarding same.
Attention to arnicus briefs coordination.
Review amicus briefs in Windsor v. United States.
Review Perry arnicus briefs (Prop 8 case)
Correspondence with and between PFLAG regarding content of amicus brief.
Telephone conferences with potential amicus parties, including PFLAG (1.0); review Witt
case and amicus parties in case (0.5); continued review of amicus briefing in Prop 8 case
(1.0); review 9 th Circuit opinion regarding heightened scrutiny (0.5).
Continued review of amicus briefs from organizations filed in Perry (ABA, NAACP, AntiDefamation League, Americans United, APA)
Conference with co-counsel Joe Thai regarding amicus organizations.
Review PFLAG brief filed in Prop 8 case at Supreme Court
Telephone conference with Perry amicus coordinator, and co-counsel Joe Thai regarding
amicus strategy.
Follow-up conference with Joe Thai and delegation of assignments regarding contact of
amicus parties for coordination purposes.
Continued telephone conferences with amicus organizations (1.0), and review of amicus
briefing in Supreme Court Windsor and Perry (Constitutional Scholars, American Academy of
Pediatrics, AMA) (1.0).
Correspondence with attorney Paul Smith, Jenner & Block, regarding APA amicus.
Attention to Outserve as a military members amicus party, and to the AFL-CIO and
Oklahoma tribes as amicus parties.
Exchange of information with Ken Upton, Lambda Legal concerning categories of amicus
briefs, and particular organizations in each category.
Work on amicus contacts from categories list developed with Ken Upton (NAACP Legal
Defense Fund, Constitutional Scholars, Interfaith Alliance, American Sociological Assn, and
organizations representing voices of children).
Correspondence and contacts with amici, Political Science Professors, ABA, faith-based
organizations, Noah Novogrosky (1.5)
Telephone conference with co-counsel Thai regarding amicus matters (0.3); and attention to
joint filings of amici, and exchange with opposing counsel regarding same (0.3).
Correspondence exchange with PFLAG regarding filing matters for amicus schedule.
Exchange information with Family Equality Council regarding voices of children brief to be
filed.
Telephone conference with Mark Lightner and Joe Thai regarding American Sociological
Association amicus information (1.5); and follow-up with co-counsel Thai regarding appeal
matters (1.0). Review Kitchen orders regarding scheduling matters (0.2).
Meeting with co-counsel regarding briefing and appellate strategy, amici briefing.
Telephone conference with Ken Upton, Lamba Legal, and exchange regarding tribes
(Cheyenne-Arapahoe) and tribal law regarding same-sex marriage.
Attention to amicus Family Equality Council information, exchanging information.
Exchanges of information with potential amici from religious entities, political scientists and
foreign and comparative law association.
Coordination of joint filings of amici with Utah counsel
Coordination of amici matters with Mary Bonauto, Shannon Minter
Coordination and exchanges with APSA amicus
Review blog discussion regarding social science arguments, and exchange with Shannon
Minter regarding same.
Meeting with co-counsel regarding amicus brief to be filed by states, and conference with
Assist. AG Johnathan Miller regarding same; status of other amicus briefs and arguments on
appeal.
Telephone conference with Shannon Minter, David Codell and Joe Thai regarding case
matters.
Telephone conference with Ken Upton, Lambda Legal regarding State's interest in children
arguments and Regnerus study.
Review opening and reply briefs filed by Lambda Legal in Virginia case.
Review Dr_ Nancy Cott affidavit regarding history of marriage and forward to co-counsel in
exchange with OU College of Law professor regarding marriage laws and potential amicus
brief.

23
78 Holladay
2/8/2014
am
81 Holladay
89 Holladay
2/10/2014
2/12/2014
0.4
1.5
am
am
92 Holladay
2/13/2014
am
93 Holladay
2/13/2014
2.5
am
94 Holladay
2/13/2014
0.8
am
98 Holladay
2/14/2014
0.8
am
103 Holladay
2/15/2014
0.8
am
113 Holladay
2/19/2014
0.4
am
114 Holladay
2/19/2014
0.5
am
119 Holladay
2/20/2014
1.2
am
123 Holladay
125 Holladay
2/23/2014
2/23/2014
0.6
0.5
am
am
130
142
151
148
Holladay
Holladay
Holladay
Holladay
2/26/2014
3/1/2014
3/3/2014
3/3/2014
0.5
2
2
0.5
am
am
am
am
153 Holladay
3/5/2014
am
154 Holladay
3/6/2014
3.6
am
156 Holladay
160 Holladay
3/7/2014
3/8/2014
2
4
am
am
167 Holladay
174 Holladay
3/11/2014
3/14/2014
2
0.5
am
am
186
190
194
196
207
213
216
223
228
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
4 Warner
7 Warner
4 Thai
3/19/2014
1
am
3/21/2014
2
am
3/24/2014
5.5
am
3/25/2014
2
am
3/31/2014
2.5
am
4/8/2014
2
am
4/9/2014
1.5
am
4/11/2014
2
am
4/13/2014
3
am
total hours:
89.6
2/3/2014
3.6
am
3/4/2014
1.4
am
total hours:
5
1/23/2014
1.3
am
Receipt and review request re amicus filing by Bay Area Lawyers, and review of brief filed in
Perry and Windsor, and transmittal of same to co-counsel.
Exchange correspondence with Utah counsel regarding amicus brief filings
Conference call with Utah counsel concerning case matters (1.0); and follow-up with cocounsel Thai on amici information.
Exchange correspondence with Rev. Chris Moore regarding faith based groups and amicus
filed in Perry case (0.5); exchange correspondence with Mary Bonauto regarding status of
amicus briefing (0.5); Exchange correspondence with amici (1.0).
Conference call with Mary Bonauto and faith based leader, and follow-up conversation with
Rev. Chris Moore (0.8); exchange correspondence regarding OK Equality and Cimarron
Alliance (0.7); exchange correspondence regarding business community amicus briefs,
status of same and conference with coordinator (1.0).
Review American Companies amicus brief and forward to attorney, followed by telephone
conference with coordinating attorney.
Coordination of amicus briefs with Oklahoma organizations, regarding American companies,
The Equality Network, The Cimarron Alliance, The Ok Equality Center, Mayflower
Congregational, and responders to Rev. Chris Moore.
Continued work on coordinating amicus briefs and review of arguments being advanced by
the filing churches, faith based and equality organizations.
Exchanges of information regarding interest of gay law school associations joining amicus
brief.
Exchanges of information with PFLAG regarding content of voices to be used in amicus brief.
Exchanges with Family Equality Council, and telephone calls and emails to locate local
organization to identify for Family Equality Council to contact.
Coordination between religious organizations, Rev. Chris Moore, and New York counsel.
Exchanges with Mary Bonauto regarding amicus briefs being filed in both Utah and
Oklahoma appeals.
Coordination of information with Rev. Amy Venable for amicus brief inquiry.
Review amicus briefs filed on behalf of plaintiffs.
Review amicus briefs for oral arguments notebook.
Email exchanges with amicus coordinator and cocounsel regarding status of certain amicus
filings.
Review amicus filings of Lambda Legal and ACLU and reference in oral arguments
notebook.
Review Bay Area Lawyers brief (1.0) social science spreadsheet tracker ((1.0) and
commence reading American Sociologists Assoc. amicus brief (1.0) and Outserve amicus
brief (0.6)
Review Constitutional Law Scholars brief (1.0) and States amicus brief (1.0)
Review amicus briefs for arguments concerning rational basis test in connection with
parenting, children, traditional manage.
Review Lambda Legal amicus brief and cases regarding same.
Review Clerk and amicus briefs to insure all important points have coverage in response
brief
Attention to APA and Sociologists amicus briefs.
Continued review of amicus briefs from child welfare and public interest organizations.
Review amicus briefs (3.5); work on polygamy and other marriage issues (2.0).
Review arnicus briefs.
Review amicus briefs.
Review amicus briefs for purpose of supplementing oral arguments notebook
Continue preparation /review of cases/amicus briefs.
Review social sciences amicus briefs.
Continued review of amicus briefs (1.5) and Kitchen briefing (1.5).
Meeting with D. Holladay and Joe Thai regarding brief strategy and other matters.
Review amicus brief filed by American Psychological Association.
Conference with Holladay and call with Sara Eisenberg regarding amicus strategy and
outreach.

23
6 Thai
7 Thai
9 Thai
1/28/2014
1/28/2014
1/31/2014
0.3
0.5
2.5
am
am
am
10 Thai
2/3/2014
3.6
am
13 Thai
2/7/2014
am
19 Thai
2/12/2014
1.5
am
41
58
60
64
91
94
100
Thai
Thai
Thai
Thai
Thai
Thai
Thai
2/24/2014
0.6
am
3/3/2014
1.5
am
3/4/2014
4.8
am
3/5/2014
3.5
am
3/19/2014
0.5
am
3/20/2014
0.5
am
3/26/2014
2.5
am
total hours:
25.6
SUB TOTAL:
Call with Holladay to discuss amici outreach efforts and strategy.

Prepare for and call with Travis Tu regarding ABA amicus support and process.
Call with Holladay and Mark Lightner regarding amicus assistance from American
Sociological Association. Meeting with Holladay regarding appellee issues.
Meeting with Holladay and Warner regarding appellee issues, briefing strategy, and amici
support.
Meeting with Holladay regarding progress of amicus outreach and strategy; call to Jonathan
Miller regarding States brief and our appellee arguments.
Conference call with Borauto, Tomsic, Codell, Minter, and Holladay, and meeting with
Holladay to discuss progress of amici outreach and strategy.
Review draft American Sociological Association brief.
Review amici briefs in support of appellees.
Review amici briefs in support of appellees.
Review amici briefs in support of appellees Correspond with amici regarding same.
Review family law draft amicus brief.
Review political scientists draft amicus brief.
Review amici briefs filed in support of appellees in our case.
$42,975.00
Non-compensable time attending oral argument in duplication of Don Holladay's appearance

entry
18
20
21
timekeeper
date
Warner
4/16/2014
Warner
4/17/2014
Warner
4/17/2014
hours
3
2.5
3
code
trvl
dup
trvl
description
Travel to Denver, CO for oral argument before Tenth Circuit Court of Appeals.
Attend oral argument before Tenth Circuit court of appeals.
Return to Oklahoma City, OK from attending oral argument before Tenth Circuit Court of
Appeals.
total hours:
8.5
121 Thai
123 Thai
124 Thai
4/16/2014
3
trvl
4/17/2014
2.5
dup
4/17/2014
3
trvl
total hours:
8.5
SUB TOTAL:
Travel to Denver for oral arguments.

Attend oral arguments.
Return to Oklahoma City.
$5,737.50

23
Non-compensable time performing secretarial tasks

entry timekeeper
date
87 Thai
3/16/2014
88 Thai
3/17/2014
hours
4
10.5
code
sec
sec
description
Work with Warner on converting and formatting response brief for filing.
Format, work on table of contents and authorities, final proof and polish, file with Warner.
total hours:
14.5
SUB TOTAL:
$5,800.00
Non-compensable time traveling to Denver to attend oral argument in different case

entry timekeeper
date
hours
code
215 Holladay
4/9/2014
3.5
trvl
218 Holladay
4/10/2014
3.5
trvl
total hours:
7
SUB TOTAL:
description
Travel to Denver to attend Kitchen (Utah) oral arguments/review cases.
Return travel from Denver to OKC.
$2,450.00
Travel time compensable at 75% discount

entry timekeeper
date
hours
code
234 Holladay
4/16/2014
3
trvl
237 Holladay
4/17/2014
3
trvl
total hours:
6
75% of hourly rate: $262.50
SUB TOTAL:
GRAND TOTAL:
description
Travel to Denver for oral arguments.
Return travel from Denver to Oklahoma City.
$1,575.00
$135,880.00

23
Time spent on Response Brief

entry
1
2
3
4
6
date
hours
1/14/2014
1
1/14/2014
1.6
1/15/2014
1.4
1/15/2014
0.3
1/16/2014
1
rate
$350
$350
$350
$350
$350
11 Holladay
1/17/2014
0.4
$350
12 Holladay
1/17/2014
0.5
$350
13
14
15
16
17
Holladay
Holladay
Holladay
Holladay
Holladay
1/17/2014
1/17/2014
1/17/2014
1/17/2014
1/17/2014
0.4
0.4
0.3
0.4
0.6
$350
$350
$350
$350
$350
18 Holladay
21 Holladay
22 Holladay
1/18/2014
1/21/2014
1/21/2014
0.4
0.2
3
$350
$350
$350
26 Holladay
1/22/2014
0.6
$350
33 Holladay
34 Holladay
1/23/2014
1/23/2014
0.2
0.2
$350
$350
37
43
54
74
80
83
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
1/27/2014
1/30/2014
2/3/2014
2/7/2014
2/9/2014
2/10/2014
2
0.3
0.3
0.8
0.5
0.5
$350
$350
$350
$350
$350
$350
95 Holladay
96 Holladay
2/14/2014
2/14/2014
0.8
0.2
$350
$350
Holladay
Holladay
Holladay
Holladay
2/14/2014
2/15/2014
2/18/2014
2/19/2014
0.4
0.3
0.6
1
$350
$350
$350
$350
116 Holladay
124 Holladay
2/19/2014
2/23/2014
0.8
0.7
$350
$350
126 Holladay
128 Holladay
129 Holladay
2/25/2014
2/26/2014
2/26/2014
1
3
2
$350
$350
$350
132 Holladay
133 Holladay
138 Holladay
2/27/2014
2/27/2014
2/28/2014
1
1
0.6
$350
$350
$350
139 Holladay
140 Holladay
145 Holladay
2/28/2014
3/1/2014
3/3/2014
1.3
1
1.8
$350
$350
$350
149 Holladay
152 Holladay
158 Holladay
3/3/2014
3/5/2014
3/7/2014
1
2.5
0.5
$350
$350
$350
159 Holladay
3/7/2014
$350
3/9/2014
3/12/2014
3/12/2014
3/13/2014
3/13/2014
3/14/2014
1.5
3.5
2
2.5
2
0.5
$350
$350
$350
$350
$350
$350
97
100
110
115
163
168
169
172
173
175
timekeeper
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
description
total
code
350.00 resch&draft Receive and review District Court Opinion.
560.00 resch&draft Continued review of District Court Opinion.
490.00 resch&draft Review appellate rules.
Correspondence with opposing counsel
105.00
misc
350.00
misc
Conference with Utah counsel Peggy Totnsic, Shannon Winter and preparation for same.
Correspondence with Ken Upton regarding consolidation issue, expedited briefing and oral
140.00
misc
arguments.
Telephone conference with opposing counsel regarding expediting schedule and attention to
175.00
misc
same.
140.00 discuss Telephone conference with co-counsel re motion to expedite and content of same.
Further telephone conference with opposing counsel regarding expedited schedule.
140.00
misc
105.00 resch&draft Review notice of appeal filed on behalf of Clerk defendant.
Memo exchange with Ken Upton, Lambda Legal counsel
140.00
misc
Attention to expedite schedule motion and content of same, and correspondence with
210.00
misc
opposing counsel regarding same.
Continued attention to proposed content of motion.
140.00
misc
70.00 resch&draft Review Order filed in Kitchen regarding extending briefing schedule.
1,050.00 discuss Conference with co-counsel James Warner and Joe Thai regarding strategy going forward
regarding motion for expedited schedule, procedural matters, levels of scrutiny arguments
and sexual orientation as suspect class.
210.00 discuss Conference followed by correspondence with cocounsel Joe Thai regarding affirmance on
alternate grounds, due process argument, and Romer decision.
Correspondence with opposing counsel Byron Babione regarding status of motion filed.
70.00
misc
Further correspondence with opposing counsel Jim Campbell regarding strategy to obtain
70.00
misc
action on pending motion before Tenth Circuit.
700.00 discuss Prepare for meeting with co-counsel.
105.00 resch&draft Review proposed introduction to response brief.
Review motion by R. Kaplan for intervention and order regarding same.
105.00
misc
280.00 discuss Telephone conference with James Warner regarding docketing statement.
175.00 discuss Further exchange of ideas with co-counsel Joe Thai regarding Va. reply brief
175.00 resch&draft Attention to status of religious based amicus briefs and exchange of correspondence with
Mary Bonauto regarding same.
280.00 resch&draft Receipt and review of Catholic Bishops brief opposing plaintiffs.
Exchange of correspondence with opposing counsel regarding enlargement of pages for
70.00
misc
briefing.
Telephone conference with clients regarding case matters.
140.00
misc
105.00 discuss Exchange with co-counsel regarding matters in Virginia case briefs.
210.00 resch&draft Review draft statement of case received from co-counsel
350.00 discuss Comments to co-counsel regarding content of draft opening and statement of the case in
appellees brief.
280.00 discuss Conference with and memo to co-counsel regarding arguments.
245.00 discuss Review memo regarding marriage benefits, entitlements and exchanges with family law
practitioner and co-counsel regarding same.
350.00 resch&draft Review amicus brief submissions by religious organizations.
1,050.00 resch&draft Review Court Clerk Smith's principal brief.
700.00 resch&draft Attention to response arguments to Clerk's brief concerning standing argument that 2
statutes were not included in lawsuit.
350.00 discuss Memo to co-counsel regarding response arguments.
350.00 resch&draft Review draft brief section.
210.00 resch&draft Exchange with Ken Upton regarding Clerk argument regarding failure to include statutes in
lawsuit, and review Califano case regarding same.
455.00 discuss Review draft brief with co-counsel Joe Thai.
350.00 resch&draft Review draft response brief content forwarded by co-counsel.
630.00 discuss Attention to supplemental appendix needed documents and exchange information with cocounsel.
350.00 resch&draft Review draft response brief with new sections.
875.00 resch&draft Review new draft brief sections written by co-counsel.
175.00 discuss Correspondence with family law practitioner and co-counsel regarding marriage law
questions.
350.00 discuss
Research marriage and adoption, and correspondence with co-counsel Thai regarding same.
525.00 resch&draft Review draft written by co-counsel.
1,225.00 discuss Meeting with co-counsel Joe Thai and James Warner and review of draft brief.
700.00 resch&draft Continued review of draft brief.
875.00 resch&draft Review Clerk's brief per co-counsel to insure each item is addressed in response brief.
700.00 resch&draft Review content of draft response arguments.
Correspondence.
175.00
misc
Exhibit "B"
1

23
181 Holladay
244 Holladay
3/17/2014
7/18/2014
5
3
$350
$350
246
247
251
1
8/7/2014
8/8/2014
8/11/2014
1/14/2014
1
1
0.4
1
$350
$350
$350
$275
1/21/2014
$275
2/26/2014
3/5/2014
3/5/2014
3/12/2014
1/15/2014
2
0.7
0.3
3.5
0.4
$275
$275
$275
$275
$400
2 Thai
1/21/2014
$400
3 Thai
1/22/2014
0.3
$400
5 Thai
1/26/2014
$400
Thai
Thai
Thai
Thai
1/29/2014
2/6/2014
2/6/2014
2/7/2014
0.4
3
0.8
0.5
$400
$400
$400
$400
15 Thai
2/9/2014
8.5
$400
16 Thai
17 Thai
18 Thai
2/9/2014
2/10/2014
2/11/2014
4
2
4
$400
$400
$400
20 Thai
21 Thai
2/12/2014
2/13/2014
3.5
4
$400
$400
22
23
24
25
26
27
Thai
Thai
Thai
Thai
Thai
Thai
2/13/2014
2/14/2014
2/14/2014
2/15/2014
2/15/2014
2/16/2014
0.8
2
3.5
1
2
3
$400
$400
$400
$400
$400
$400
28 Thai
2/17/2014
8.5
$400
29 Thai
2/18/2014
2.6
$400
30 Thai
31 Thai
2/18/2014
2/19/2014
1.6
0.6
$400
$400
32
33
34
35
Thai
Thai
Thai
Thai
2/20/2014
2/21/2014
2/21/2014
2/22/2014
0.4
2.5
0.1
4
$400
$400
$400
$400
36 Thai
37 Thai
38 Thai
2/23/2014
2/23/2014
2/24/2014
0.8
3.4
0.8
$400
$400
$400
39
40
42
43
44
Thai
Thai
Thai
Thai
Thai
2/24/2014
2/24/2014
2/25/2014
2/25/2014
2/25/2014
1.5
5.5
1.5
0.3
3
$400
$400
$400
$400
$400
45
46
47
48
49
Thai
Thai
Thai
Thai
Thai
2/26/2014
2/26/2014
2/26/2014
2/26/2014
2/26/2014
0.7
0.6
0.8
0.8
3.2
$400
$400
$400
$400
$400
Holladay
Holladay
Holladay
Warner
2 Warner
5
8
9
13
1
8
11
12
14
Warner
Warner
Warner
Warner
Thai
1,750.00 resch&draft Review appellant and response briefs.

Receive and review opinion in Bishop (2.0), and meeting with co-counsel regarding Bishop
1,050.00
misc
decision and certiorari (1.0).
Receive and review petition for certiorari.
350.00
misc
Meeting with co-counsel regarding strategy.
350.00
misc
Follow-up with Ken Upton, senior attorney at Lambda Legal.
140.00
misc
275.00 resch&draft Review district court opinion granting in part and denying in part Plaintiffs' Cross-Motion for
Summary Judgment
825.00 discuss Office conference with D. Holladay and Joe Thai regarding case background, strategy going
forward, and response to court clerk's appeal.
550.00 resch&draft Review court clerk's principal brief.
Draft motion to file enlarged brief.
192.50
misc
Revise motion to file enlarged brief.
82.50
misc
962.50 discuss Conference with D. Holladay and Joe Thai regarding revisions to draft response brief.
160.00 discuss Meeting with Don Holladay regarding preliminary strategic considerations on appeal, and
possibility of co-representation.
1,200.00 discuss Meeting with Holladay and James Warner regarding substantive claims, appellate procedure,
appellee strategy, and expedited schedule.
120.00 discuss Conference with Holladay regarding possible grounds for affirmance; discussion of due
process grounds.
1,600.00 resch&draft Review district court summary judgment rulings in Bishop and Kitchen. Take notes on factual
and legal differences, and implications for appellate strategy.
160.00 resch&draft Draft introductory paragraph to frame response brief.
1,200.00 resch&draft Read and analyze Kitchen opening brief.
320.00 resch&draft Reseach same-sex marriage cases.
200.00 discuss
Call with Holladay and Utah counsel regarding timing, strategy, and appellee arguments.
3,400.00 resch&draft Read and analyze cases and briefs in other recently decided or pending same-sex marriage
cases. Read and analyze leading Supreme Court precedents.
1,600.00 resch&draft Read and analyze case law on equal protection.
800.00 resch&draft Draft introduction.
1,600.00 resch&draft Read and analyze case law on equal protection and fundamental rights. Outline background
section of brief.
1,400.00 resch&draft Research, read, and analyze Oklahoma marital law.
1,600.00 resch&draft Research, read, and analyze Oklahoma marital law. Read and analyze federal case law on
right to marry and fundamental rights.
320.00 resch&draft Review and annotate Bostic v. Rainey (new Viriginia district court case).
800.00 resch&draft Read and analyze federal case law on right to marry.
1,400.00 resch&draft Draft background section on Oklahoma law. Research Oklahoma marital law.
400.00 resch&draft Research Oklahoma marital law and mini-DOMA.
800.00 resch&draft Review record regarding appellees. Draft background section on appellees.
1,200.00 resch&draft Review research on Oklahoma marital law and adoption issues. Research Oklahoma
historical marital laws. Research history of same-sex marriage bans nationwide.
3,400.00 resch&draft Draft legislative and procedural history sections. Review record, lower court opinion, case
history, and research as needed.
1,040.00 resch&draft Complete draft of procedural history section. Review and revise draft thus far. Cover email to
co-counsel forwarding draft with explanations.
640.00 resch&draft Research parental rights and marital benefits.
240.00 discuss Conference with Holladay to discuss draft of appellees' brief thus far. Review Holladay memo
regarding draft.
160.00 resch&draft Revise introduction.
1,000.00 resch&draft Review amici briefs in support of appellants.
40.00 resch&draft Review and annotate Lee v. Orr.
1,600.00 resch&draft Review and revise brief thus far. Draft federal benefits section. Begin drafting summary of
argument.
320.00 resch&draft Review SmithKline opinion and make notes on heightened scrutiny.
1,360.00 resch&draft Draft summary of argument
Review memorandum from Sandy Ingraham on marriage and family law issues and respond
320.00
misc
to same.
600.00 resch&draft Revise and complete summary of argument (up to cross-appeal section).
2,200.00 resch&draft Review and take notes on appellant's 20,000+ word enlarged brief.
600.00 resch&draft Continue review and notes in response to appellants' brief.
120.00 resch&draft Research Oklahoma marital benefits and obligations.
1,200.00 resch&draft Drafted Oklahoma marital benefits and obligations section, revised and expanded other parts
of introduction. Cover email to co-counsel regarding same.
280.00 resch&draft Review memorandum from Sandy Ingraham on appellant's brief and respond to same.
240.00 resch&draft Review briefs in Windsor.
320.00 resch&draft Research Oklahoma law on ballot measures.
320.00 resch&draft Review and annotate DeLeon v. Perry.
1,280.00 resch&draft Review and take notes on Kitchen response brief.

23
50 Thai
2/26/2014
3.5
$400
51 Thai
52 Thai
53 Thai
2/27/2014
2/27/2014
2/28/2014
1.8
6.1
3.9
$400
$400
$400
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
Thai
3/1/2014
3/2/2014
3/3/2014
3/3/2014
3/4/2014
3/4/2014
3/4/2014
3/5/2014
3/5/2014
3/6/2014
3/7/2014
3/7/2014
3/7/2014
3/9/2014
7.8
7.2
0.8
6.2
0.6
0.5
5.8
0.4
4.8
4.5
0.6
0.5
4
4.5
$400
$400
$400
$400
$400
$400
$400
$400
$400
$400
$400
$400
$400
$400
72 Thai
73 Thai
75 Thai
3/9/2014
3/10/2014
3/11/2014
1.5
0.5
4.2
$400
$400
$400
77
78
79
80
Thai
Thai
Thai
Thai
3/12/2014
3/12/2014
3/13/2014
3/13/2014
3.5
3.4
0.5
3.2
$400
$400
$400
$400
81
82
85
86
Thai
Thai
Thai
Thai
3/14/2014
3/14/2014
3/15/2014
3/16/2014
2.8
1.8
2
2.4
$400
$400
$400
$400
98 Thai
125 Thai
126 Thai
3/25/2014
4/29/2014
5/1/2014
0.6
1.4
1
$400
$400
$400
5/2/2014
7/18/2014
7/18/2014
3/7/2014
3/3/2014
3/15/2014
0.3
2.5
1
1.5
19.3
4.25
287.8
$400
$400
$400
$350
$275
$400
54
55
57
59
61
62
63
65
66
67
68
69
70
71
127
136
137
155
615
84
Thai
Thai
Thai
Holladay
Warner
Thai
1,400.00 resch&draft Draft and research Baker v. Nelson section. Begin drafting and researching sexual
orientation discrimination section.
720.00 discuss Meeting with Hollady to discuss draft in progress.
2,440.00 resch&draft Draft and research sexual orientation discrimination section.
1,560.00 resch&draft Complete draft and research of sexual orientation discrimination section. Cover memo to cocounsel regarding same.
3,120.00 resch&draft Draft and research gender discrimination and fundamental rights section.
2,880.00 resch&draft Draft and research application of multiple levels of scrutiny section.
320.00 resch&draft Research on judicial use of legislative history.
2,480.00 resch&draft Draft and research application of multiple levels of scrutiny section.
240.00 resch&draft Research on judicial use of legislative history
200.00 resch&draft Review research assistants' spreadsheet on appellant's sociological arguments.
2,320.00 resch&draft Draft and research purpose of marriage argument section.
160.00 resch&draft Review and revise motion to file enlarged brief.
1,920.00 resch&draft Draft and research justifications for marriage section.
1,800.00 resch&draft Draft and ressearch redefining marriage and regulatory power section.
240.00 discuss Correspond with Holladay regarding state adoption law.
200.00 resch&draft Research on amending state constitution.
1,600.00 resch&draft Draft and research right to marry section.
1,800.00 resch&draft Research appellee standing issue (redressability). Correspond with Hollady and Warner
regarding same.
600.00 resch&draft Revised Warner's draft on redressability.
200.00 resch&draft Draft conclusion.
1,680.00 resch&draft Review and revise draft response brief, including restructuring headers and revising
introductory paragraphs.
1,400.00 discuss Meeting with Holladay and Warner for group review and revision of draft response brief.
1,360.00 resch&draft Review and revise draft response brief.
200.00 discuss Correspond with and incorporate changes of co-counsel into brief.
1,280.00 resch&draft Review and revise draft response brief, including editing for concision statistics on same-sex
families.
1,120.00 resch&draft Review and revise draft response brief, including new text on adoptions.
720.00 resch&draft Review and incorporate changes of external readers of draft response brief.
800.00 resch&draft Proof and polish draft response.
960.00 resch&draft Review and incorporate last set of cite checks and suggestions from research assistants and
external readers. Research and add text on issue preclusion. Proof.
Correspond with Bob Spector regarding family law issues.
240.00
misc
Review appellee's supplemental authority letter and Schuette decision.
560.00
misc
Draft and revise response to appellee's supplemental authority letter on Schuette. Cover
400.00
misc
memorandum to Holladay and Warner.
Review, edit, finalize response to supplemental authority letter for filing.
120.00
misc
Review and annotate Bishop decision.
1,000.00
misc
Conference with co-counsel on Bishop decision. Discuss certiorari considerations.
400.00
misc
Work on both principal and response brief (time has been halved).
525.00
50%
5,307.50
50%
1,700.00
50%
$108,190.00
Time spent preparing for oral argument

entry
7
19
20
timekeeper
date
hours
Holladay
1/16/2014
1.5
Holladay
1/20/2014
1.5
Holladay
1/20/2014
2
rate
$350
$350
$350
total
525.00
525.00
700.00
code
prep oral
prep oral
prep oral
$350
2,450.00
prep oral
description
Review Kitchen v. Herbert decision.
Prepare appellees arguments outline.
Review briefing filed in Windsor v. United States by BLAG regarding legislative purposes.
41 Holladay
1/29/2014
42 Holladay
1/30/2014
$350
1,400.00
prep oral
46 Holladay
1/31/2014
$350
700.00
prep oral
48
49
50
55
Holladay
Holladay
Holladay
Holladay
1/31/2014
1/31/2014
1/31/2014
2/3/2014
2
0.6
0.5
0.7
$350
$350
$350
$350
700.00
210.00
175.00
245.00
prep oral
prep oral
prep oral
prep oral
60 Holladay
2/5/2014
$350
1,050.00
prep oral
61 Holladay
62 Holladay
2/5/2014
2/5/2014
1.5
0.8
$350
$350
525.00
280.00
prep oral
prep oral
Prepare initial outline of arguments topics and review authorities regarding same (Traditional
marriage, Romer, Lawrence, Windsor, fundamental right to many, sexual orientation, suspect
class, Gerstmann "Same-Sex Marriage and the Constitution" materials)
Continued work on topical oral arguments notebook (Traditional marriage, preservation of
religious beliefs, Lawrence, marriage case law).
Continued work on topical oral arguments notebook {Baker v. Nelson, one-man, one-woman,
religious freedom).
Review marriage cases (Loving, Skinner, Baehner, Gerstman book)
Review Emory Law Review article regarding fundamental right to marry.
Review Richard Seamon article regarding presentation of oral argument.
Develop argument regarding effect of Oklahoma National Guard denial of same-sex spouse
benefits per Okla. Constitutional Amendment.
Continued review of pleadings and District Court motions for summary judgment and ADF
briefing.
Review exhibits to ADF motion for summary judgment.
Review prior District Court Order.

23
63 Holladay
64 Holladay
65 Holladay
2/6/2014
2/6/2014
2/6/2014
1
1.5
1.2
$350
$350
$350
350.00
525.00
420.00
prep oral
prep oral
prep oral
67 Holladay
68 Holladay
72 Holladay
2/7/2014
2/7/2014
2/7/2014
0.8
0.6
0.6
$350
$350
$350
280.00
210.00
210.00
prep oral
prep oral
prep oral
73 Holladay
2/7/2014
$350
350.00
prep oral
75 Holladay
79 Holladay
2/7/2014
2/8/2014
3.2
0.7
$350
$350
1,120.00
245.00
prep oral
prep oral
82 Holladay
84 Holladay
2/10/2014
2/11/2014
1
4
$350
$350
350.00
1,400.00
prep oral
prep oral
85 Holladay
2/11/2014
$350
700.00
prep oral
86 Holladay
2/11/2014
0.3
$350
105.00
prep oral
87 Holladay
2/12/2014
0.5
$350
175.00
prep oral
88 Holladay
90 Holladay
2/12/2014
2/12/2014
0.8
3
$350
$350
280.00
1,050.00
prep oral
prep oral
91 Holladay
2/13/2014
$350
350.00
prep oral
99 Holladay
101 Holladay
102 Holladay
2/14/2014
2/15/2014
2/15/2014
0.8
0.6
3
$350
$350
$350
280.00
210.00
1,050.00
prep oral
prep oral
prep oral
104 Holladay
2/16/2014
0.7
$350
245.00
prep oral
105 Holladay
2/17/2014
$350
350.00
prep oral
106 Holladay
107 Holladay
2/17/2014
2/17/2014
1
3
$350
$350
350.00
1,050.00
prep oral
prep oral
108 Holladay
2/18/2014
1.2
$350
420.00
prep oral
109 Holladay
2/18/2014
2.8
$350
980.00
prep oral
111 Holladay
2/19/2014
$350
1,400.00
prep oral
112
117
118
120
Holladay
Holladay
Holladay
Holladay
2/19/2014
2/19/2014
2/20/2014
2/20/2014
2
1.2
1.8
3.2
$350
$350
$350
$350
700.00
420.00
630.00
1,120.00
prep oral
prep oral
prep oral
prep oral
121 Holladay
2/21/2014
$350
1,750.00
prep oral
122 Holladay
127 Holladay
2/22/2014
2/25/2014
7
1
$350
$350
2,450.00
350.00
prep oral
prep oral
131 Holladay
134 Holladay
2/26/2014
2/27/2014
0.8
2
$350
$350
280.00
700.00
prep oral
prep oral
135 Holladay
136 Holladay
2/27/2014
2/27/2014
2
2
$350
$350
700.00
700.00
prep oral
prep oral
137 Holladay
2/28/2014
$350
1,050.00
prep oral
Holladay
Holladay
Holladay
Holladay
3/1/2014
3/2/2014
3/3/2014
3/3/2014
2
2.2
1
0.7
$350
$350
$350
$350
700.00
770.00
350.00
245.00
prep oral
prep oral
prep oral
prep oral
147 Holladay
150 Holladay
157 Holladay
3/3/2014
3/3/2014
3/7/2014
1
1
2.5
$350
$350
$350
350.00
350.00
875.00
prep oral
prep oral
prep oral
141
143
144
146
Review State of Utah's brief in Kitchen v. Herbert.

Continued review of State of Utah's appellant brief in Kitchen v. Herbert.
Review ADF social science arguments in summary judgment briefing, and compare to State
of Utah submission.
Review Gill/Golinski social science discussions.
Review Tanco brief of plaintiffs regarding motion for injunctive relief
Review motion for summary judgment in Obergefell case and section regarding children
argument and Regernus study.
Work on arguments relating to fundamental right to marry vs. right to same-sex marriage.
Work on arguments notebook regarding Loving, Zablocki, Turner and Baker cases.
Further review of briefing in Va. case and exchange of information and ideas with co-counsel
regarding same.
Review decisions in Romer, Lawrence, Windsor
Review case authorities and make notations in arguments notebook regarding ADF
arguments on tradition of marriage, procreation, child rearing (2.0), and case authorities in
State of Utah appellant brief
Attention to arguments notebook regarding insertions based on review of Williams, Heller
and Peny district court opinion.
Correspondence exchange with Oklahoma family law practitioner regarding benefits and
rights of same-sex couples.
Review of list provided by family law practitioner for development in briefing and arguments.
Receipt and review of Kentucky decision setting aside same-sex marriage law.
Continued review case authorities (Golinski, Gill and Perry district court opinion) and
arguments relied on by ADF in summary judment briefing.
Review case authorities re "The way it has always been" argument (Griswold, Brown, Perry).
Attention to appeal issues regarding benefits to married couples.
Review ADF intervention filing in Bostic (Va.) case.
Work on arguments notebook on topics pertaining to levels of scrutiny, and review of Clark v.
Jeter and Craig v. Boren cases.
Attention to wedding cake decorator issue, wedding photographer issue, and exchange with
co-counsel regarding same.
Attention to bulletins regarding marriage status issued by OPM, OTC, and statutes tying
benefits to marriage in state of residence.
Review Rainey and ADF (McQuigg) filings in Virginia case.
Review Lawrence decision, Turner and Windsor BLAG post-hoc justifications regarding oral
arguments;
Attention to Utah, Nevada, Virginia and Kentucky decisions regarding applicability of Baker v.
Nelson.
Review Griswold, and Casey cases regarding marriage arguments, and draft responses for
oral arguments notebook.
Work on arguments notebook regarding irrationality, preserving federalism, protection of
religious beliefs and sexual orientation.
Review case authorities relied on by State of Utah
Review BLAG brief in Windsor (0.5) and United States brief on merits (0.7).
Continued review of arguments regarding levels of scrutiny.
Review case authorities relied on for legislative intent; and work on argument regarding
"actual purpose" and review District Court opinion regarding intent of SQ711
Work on topical arguments notebook for gender discrimination, United States v. Virginia,
Price-Cornelison, Waliner, Rich, National Gay Task Force, Frontiero
Continued work on oral arguments notebook.
Oral arguments notebook work regarding condensing Clerk's brief into responses on specific
points.
Receipt and review of DeLeon v. Perry decision.
Work on arguments notebook regarding responses to points raised in Clerk's principal brief.
Review plaintiffs brief in Utah case.
Review Oklahoma case law and statutes regarding marriage, and summarize points for
arguments notebook.
Review cases relied on by ADF for standing argument concerning failure to challenge
existing Oklahoma statutes.
Review case authorities relied on by Clerk for arguments notebook.
Continued review of ADF brief for arguments notebook.
Work on arguments cards with co-counsel.
Attention to arguments regarding proof of legislative history under federal rules of evidence.
Review Kitchen decision.
Review cases relied on by Clerk.
Additions to outline of oral arguments based on points in amicus briefs.

23
161 Holladay
162 Holladay
164 Holladay
3/9/2014
3/9/2014
3/10/2014
3
2
6
$350
$350
$350
1,050.00
700.00
2,100.00
prep oral
prep oral
prep oral
165
166
170
171
176
177
178
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
3/11/2014
3/11/2014
3/12/2014
3/13/2014
3/14/2014
3/14/2014
3/15/2014
4
0.5
3.5
1.5
2
2.5
4
$350
$350
$350
$350
$350
$350
$350
1,400.00
175.00
1,225.00
525.00
700.00
875.00
1,400.00
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
179
182
183
184
185
187
188
189
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
3/16/2014
3/17/2014
3/18/2014
3/19/2014
3/19/2014
3/20/2014
3/20/2014
3/21/2014
4
2
6
3
2
2.5
2.5
2.5
$350
$350
$350
$350
$350
$350
$350
$350
1,400.00
700.00
2,100.00
1,050.00
700.00
875.00
875.00
875.00
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
191 Holladay
192 Holladay
193 Holladay
3/21/2014
3/22/2014
3/23/2014
3.5
5
5
$350
$350
$350
1,225.00
1,750.00
1,750.00
prep oral
prep oral
prep oral
195 Holladay
197 Holladay
198 Holladay
3/25/2014
3/25/2014
3/26/2014
3.5
1
6
$350
$350
$350
1,225.00
350.00
2,100.00
prep oral
prep oral
prep oral
199
200
201
202
203
204
205
206
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
3/27/2014
3/28/2014
3/28/2014
3/29/2014
3/30/2014
3/30/2014
3/30/2014
3/31/2014
3
2
3
2
2.5
2
1.5
3.5
$350
$350
$350
$350
$350
$350
$350
$350
1,050.00
700.00
1,050.00
700.00
875.00
700.00
525.00
1,225.00
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
208
210
210
211
211
212
212
213
214
217
217
218
219
219
220
221
222
224
225
226
227
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
Holladay
4/1/2014
4/4/2014
4/7/2014
4/4/2014
4/7/2014
4/6/2014
4/8/2014
4/6/2014
4/9/2014
4/7/2014
4/10/2014
4/7/2014
4/7/2014
4/10/2014
4/11/2014
4/11/2014
4/11/2014
4/12/2014
4/12/2014
4/12/2014
4/13/2014
2
3
2
2
1
3
4
0.5
3.5
0.5
1
0.5
0.3
1.5
3
1
1.5
3
2
2
3
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
$350
700.00
1,050.00
700.00
700.00
350.00
1,050.00
1,400.00
175.00
1,225.00
175.00
350.00
175.00
105.00
525.00
1,050.00
350.00
525.00
1,050.00
700.00
700.00
1,050.00
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
229
230
231
232
Holladay
Holladay
Holladay
Holladay
4/14/2014
4/14/2014
4/14/2014
4/15/2014
2
2
2
6
$350
$350
$350
$350
700.00
700.00
700.00
2,100.00
prep oral
prep oral
prep oral
prep oral
233 Holladay
4/16/2014
$350
1,750.00
prep oral
235 Holladay
39a Holladay
4/17/2014
1/28/2014
3
1.5
$350
$350
1,050.00
525.00
prep oral
prep oral
Work on outline of arguments.

Work on brief contents concerning Fent line of cases, and review same.
Prepare for oral arguments with co-counsel Joe Thai, and formulation of responses to
questions from panel (3.0), and additions to oral arguments notebook {3.0).
Prepare for oral arguments with co-counsel Joe Thai.
Continue work on arguments.
Prepare for oral arguments using points in brief.
Outline arguments points for oral presentation.
Research regarding statistical facts about same-sex couples and their children.
Preparation for oral arguments with co-counsel.
Attention to oral arguments notebook, and review of census information regarding same-sex
couples information.
Work on oral arguments.
Research.
Prepare for oral arguments with Joe Thai (4.0); and oral arguments notebook (2.0).
Prepare for oral arguments with co-counsel on levels of scrutiny.
Additions to oral arguments notebook.
Prepare with co-counsel for oral arguments regarding gender, children issues.
Review cases cited in response brief (1.8); and review new Bourke decision (Ky) (0.7).
Prepare with co-counsel for oral arguments (Baker v. Nelson, animus, Windsor, Johnson
case).
Revise topical outline/bullet points, and make additions.
Work on briefing review and read cases cited in principal response brief.
Continued preparation for oral arguments, and review of other federal trial court decisions in
other jurisdictions.
Prepare with co-counsel for oral arguments.
Receive and review new Michigan decision striking down same-sex marriage ban.
Work on oral arguments based on content of principal response brief and cases cited
therein.
Work on oral arguments regarding gender, federalism, judicial activism.
Meeting with co-counsel.
Work on oral arguments.
Review Utah brief and response brief.
Review Utah plaintiffs' response brief.
Update outline.
Work on oral arguments_
Meeting with co-counsel regarding oral arguments on procreation, divorce, Massachusetts
experience with same-sex maniage.
Receive and review response and reply brief filed by defendant.
Prepare for mock oral arguments.
Prepare for mock oral arguments.
Review reply brief filed in Utah case.
Review District Court's Bishop decision in preparation for mock oral arguments.
Prepare for mock oral arguments before volunteer panel.
Prepare for oral arguments by revising and supplementing oral arguments notebook.
Review Loving v. Virginia case decision.
Prepare for oral arguments, and review of Clerk's final brief regarding same.
Review Fent decision.
Attend Kitchen (Utah) oral arguments before Tenth Circuit panel.
Review Hendrick decision.
Review Lankford decision.
Prepare for mock arguments.
Prepare for oral arguments and review opposing brief.
Meeting with co-counsel Joe Thai and James Warner.
Mock arguments before mock panel.
Prepare for oral arguments.
Review Kitchen decision and Bishop decision.
Review other federal trial court decisions regarding same-sex marriage bans.
Continued review of case authorities regarding fundamental right to marry; and gender
discrimination National Women's Center amicus forwarded by David Codell.
Prepare for moot arguments with Lambda legal team.
Conference regarding oral arguments with Lambda legal team and with co-counsel.
Continued preparation for oral arguments, review of defendant appellant's brief.
Continue preparation for oral arguments by reviewing appellants briefs and cases cited
therein.
Continue preparation for oral arguments by reviewing briefing notebook and responses to
potential questions of the panel.
Prepare for oral arguments at hotel room.
Work on arguments notebook and insertion of materials concerning potential question areas
by appellate panel (1.5);

23
16 Warner
4/11/2014
$275
275.00
prep oral
17 Warner
4/11/2014
$275
275.00
prep oral
19 Warner
4/17/2014
0.5
$275
137.50
prep oral
56
74
76
83
89
90
Thai
Thai
Thai
Thai
Thai
Thai
3/3/2014
3/10/2014
3/11/2014
3/14/2014
3/18/2014
3/19/2014
1
3
4
2.5
4
3
$400
$400
$400
$400
$400
$400
400.00
1,200.00
1,600.00
1,000.00
1,600.00
1,200.00
prep oral
prep oral
prep oral
prep oral
prep oral
prep oral
92 Thai
93 Thai
3/19/2014
3/20/2014
0.7
2.5
$400
$400
280.00
1,000.00
prep oral
prep oral
95 Thai
3/21/2014
2.5
$400
1,000.00
prep oral
96 Thai
97 Thai
99 Thai
3/21/2014
3/24/2014
3/25/2014
1
2
3.5
$400
$400
$400
400.00
800.00
1,400.00
prep oral
prep oral
prep oral
101 Thai
3/26/2014
$400
2,400.00
prep oral
102
103
104
105
3/27/2014
3/28/2014
3/28/2014
3/31/2014
1
2.5
2
3.5
$400
$400
$400
$400
400.00
1,000.00
800.00
1,400.00
prep oral
prep oral
prep oral
prep oral
Thai
Thai
Thai
Thai
115 Thai
116 Thai
4/8/2014
4/10/2014
0.5
3.6
$400
$400
200.00
1,440.00
prep oral
prep oral
117 Thai
118 Thai
4/11/2014
4/11/2014
1
1.5
$400
$400
400.00
600.00
prep oral
prep oral
119 Thai
120 Thai
122 Thai
4/14/2014
4/14/2004
4/17/2014
2
0.5
0.5
325.4
$400
$400
$400
800.00
200.00
200.00
$116,417.50
prep oral
prep oral
prep oral
GRAND TOTALS:
234
236
245
22
Holladay
Holladay
Holladay
Warner
613.2
Conference with D. Holladay and Joe Thai regarding preparations for moot oral argument
with Rick Tepker, Steve Henderson and Rob Ramana.
Attend moot oral argument with D. Holladay, Joe Thai, Rick Tepker, Steve Henderson and
Rob Ramana.
Conference with D. Holladay and Joe Thai regarding oral argument before Tenth Circuit
Court of Appeals.
Craft oral arguments with Holladay on child-centric marriage.
Craft oral arguments and responses with Holladay.
Craft oral arguments with Holladay.
Craft oral arguments and responses with Holladay (overview of all levels, strict, intermediate,
Price-Cornelison, rational basis).
Review and annotate Bourke v. Beshear (new Kentucky district court decision).
Craft oral arguments and responses with Holladay (intermediate scrutiny, gender, childcentricity).
Craft oral arguments and responses with Holladay (Baker v. Nelson, Windsor, animus,
traditional marlage, Johnson and rational basis, cf. polygamy etc.).
Review and annotate DeBoer v. Synder.
Craft oral arguments and responses with Holladay (polygamy)
Craft oral arguments and responses with Holladay (redressability, fundamental right to
marry).
Craft oral arguments and responses with Holladay (opening, closing, "unusual character,"
'shape destiny," historical definition, O'Connor concurrence in Lawrence).
Craft oral arguments and responses (legislative history).
Review and annotate Utah reply brief.
Craft oral arguments and responses with Holladay (gender roles, judicial activism)
Craft oral arguments and responses with Holladay (nonprocreative couples, fertility, sexual
complimentarity, no fault divorce, threat/caution on marrage, Massachusetts experience).
Craft oral arguments and responses (summary of Romer-Lawrence-Windsor trilogy).
Listen to Kitchen oral argument (2x). Take notes on questions and responses, and
supplement them.
Meeting with Holladay and Warner to prepare for moot argument.
Moot Holladay with Warner and mock panel (Stephen Henderson, Rob Ramana, Rick
Tepker).
Conference/moot argument with Holladay and Lambda Legal team.
Correspond with Shannon Minter regarding oral argument strategy (levels of scrutiny).
Conference with Holladay and Warner regarding oral arguments.
$224,607.50
4/16/2014
4/17/2014
7/29/2014
7/21/2014
6 $87.50
2.5 $350
1 $350
1.5 $275
525.00
875.00
350.00
412.50
trvl
argument
attyfee
attyfee
23 Warner
7/28/2014
0.6
$275
165.00
attyfee
24
25
26
27
Warner
Warner
Warner
Warner
7/28/2014
7/29/2014
7/30/2014
7/30/2014
5.4
7.5
1.4
0.5
$275
$275
$275
$275
1,485.00
2,062.50
385.00
137.50
attyfee
attyfee
attyfee
attyfee
28 Warner
7/31/2014
0.4
$275
110.00
attyfee
29 Warner
30 Warner
8/1/2014
8/6/2014
0.6
0.3
$275
$275
165.00
82.50
attyfee
attyfee
140 Thai
7/28/2014
0.6
$400
240.00
attyfee
141 Thai
7/30/2014
$400
1,200.00
attyfee
142 Thai
7/31/2014
0.7
$400
280.00
attyfee
Travel to and from Denver for oral arguments (compensable at 25% hourly rate).
To courthouse for oral arguments and presentation of arguments.
Review final draft of motion for appeal-related attorney fees.
Office conference with D. Holladay regarding issues surrounding motion for appeal-related
attorneys' fees.
Telephone conference with D. Holladay and Joe Thai regarding grounds for motion for
appeal-related attorneys' fees.
Draft motion for appeal-related attorneys' fees.
Continue drafting motion for appealrelated attorneys' fees.
Revise motion for appeal-attorneys' fees.
Telephone conference with Joe Thai regarding revisions to motion for appeal-related
attorneys' fees.
Telephone conference with Joe Thai regarding his revisions and comments regarding motion
for appeal-related attorneys' fees.
Finalize motion for appeal-related attorneys' fees.
Telephone conference with Joe Thai and Jim Campbell regarding defendant's request for
extension of time to file response to motion for appeal-related attorneys' fees.
Conference call with Holiday and Warner on content and strtegy regarding attorneys fee
motion.
Review and revise draft motion for appeal-related attorneys' fees. Review related case law.
Correspond with Warner regarding same.
Final review and edits of motion for appeal-related attorney's fees. Correspond with Warner
regarding same.
$8,475.00
Case
Document 299-2
303-9 Filed in USDC ND/OK on
Page25
23of
of
Case 4:04-cv-00848-TCK-TLW
on 01/05/15
12/05/14 Page
25
23
Attachment B to Declaration of Don G. Holladay

(Appeal-Related Expenses Incurred by Plaintiffs' Counsel)*
Amount
Entry
No.
Date
Description
02/11/2014
Travel costs Denver, CO, April, 2014 for D.

Holladay, J. Warner (airfares of Holladay and Warner
each for oral arguments on 4/17/14 and Holladay to
attend Iler ber-t v. Kitchen argument on 4110114)
02/13/2014
FedEx to Tenth Circuit shipped January 29, 2014
03/05/2014
FedEx to Tenth Circuit
04110/2014
FedEx to Tenth Circuit shipped March 18, 2014
$103.40
04/10/2014
Additional travel expense of D. Holladay to attend

Kitchen v. Herbert arguments 4/9/14 4/10/14
(Oklahoma City airport parking, $6.00; Denver hotel,
$287.57; taxi to and from Denver airport to
downtown, $116.00)
$409.57
04/17/2014
Travel expenses Denver, CO 4/16/14 4/17114

(Taxi to and from Denver airport to Denver
downtown, $116.00; Oklahoma City airport parking,
$8.00)
$124.00
04/17/2014
Hotel rooms for D. Holladay, J. Thai, J. Warner

($203.86 each)
$611.58
05/08/2014
FedEx to Tenth Circuit shipped April 8, 2014
$52.91
06/09/2014
Travel expenses Denver, CO 4/16 4/17 (J. Thai)

(airfare, $106.00; Oklahoma City airport parking,
$14.00)
10
08/01/2014
FedEx to Tenth Circuit shipped August 1, 2014
1/3 =
$134.53
$29.77
$30.04
shipped March 5, 2014
TOTAL
$414.00
1/3 =
$203.86
$120.00
$47.10
$1,942.37
The underlying documentation for the above expenses are maintained as a part of the accounting
records of the Holladay Chilton law firm and are available for inspection upon request.
Highlighted
expenses are
noncompensable
$678.51 in
compensable
expenses
Exhibit "C"

MARY BISHOP,
SHARON BALDWIN,
GAY E. PHILLIPS,
Plaintiffs,
vs.
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
AFFIDAVIT OF JANDRA S. JORGENSON

STATE OF OKLAHOMA
)
) ss.
COUNTY OF OKLAHOMA )
JANDRA S. JORGENSON, being duly sworn upon her oath, of lawful age and
knowledgeable of the matters set forth hereinafter, states as follows:
1.
I am duly licensed to practice law in the state of Oklahoma and have been so
licensed since September 27, 1996. I received a bachelors degree from Oklahoma State
University in December of 1992 and began law school the following August at the University of
Oklahoma College of Law. I was a legal research and writing teaching assistant during my
second and third years in law school and during my third year was a law clerk for John Norman,
of Norman & Edem in Oklahoma City, conducting research and writing for the firm. Upon
graduation from law school, I practiced law in Tulsa County for fifteen (15) years, the first two
years with a small private law firm and the next thirteen (13) years as founder of Premier Legal,
LLC, a law firm providing legal research and writing services at all levels of litigation to scores
of law firms in the State of Oklahoma. In 2011, I formed DeVore & Jorgenson, PLC, an
1
Exhibit 10
Oklahoma City law firm primarily engaged in complex civil litigation in state and federal courts,
where I daily perform legal research and writing functions for cutting-edge complex civil cases
including those involving constitutional law issues.
2.
I have been retained by Tulsa County to offer an opinion regarding the attorney
time that would reasonably be spent in defending a favorable ruling on the issue upon which
Mary Bishop and Sharon Baldwin were prevailing parties in the January 14, 2014 Opinion And
Order (the "Kern 1-14-14 Order") entered by Judge Terence C. Kern in Bishop v. United States
of America, No. 04-CV -848-TCK-TL W, District Court for the Northern District of Oklahoma
(the "Northern District Bishop Case") that "Oklahoma' s constitutional amendment limiting
marriage to opposite-sex couples violates the Equal Protection Clause of the Fourtheenth
Amendment to the U.S. Constitution."
3.
In order to formulate my opinion, I relied upon the following documents and
audio files and conducted research on my own:

(i)
various briefs and attachments submitted by the parties in the Northern District
Bishop Case and on appeal to the United States Court of Appeals for the Tenth
Circuit (the "Tenth Circuit Bishop Appeal") and the United States Supreme Court
(the 'U.S.S.Ct. Bishop Appeal");
(ii)
the Kern 1-14-14 Order;
(iii)
the July 18, 2014 Order issued in the Tenth Circuit Bishop Appeal, affirming the
Kern 1-14-14 Order;
(iv)
the United States Supreme Court docket sheet for Smith v. Bishop, No. 14-136,
noting the October 6, 2014 denial of certiorari;
(v)
the October 28, 2014 Order issued in the Tenth Circuit Bishop Appeal allowing
attorney fees for Bishop and Baldwin;
(vi)
various authorities cited in the parties' briefs and the Courts Orders; and
(vii)
oral argument in the Tenth Circuit Bishop Appeal found at

http://www.uscourts.gov/courts/ca10/1 4-5003.mp3 and in the Tenth Circuit
Kitchen appeal found at http://www.uscourts.gov/courts/ca1 0/1 3-4178.mp3 .
4.
It appears from the materials I reviewed that the Plaintiffs in this action are brave
and long-suffering, willing in 2004 to allow their names, likenesses and lives to be used as a sort
of test case, as they and their lawyers began to plow newly-developing legal ground for the
benefit of all same-sex couples in the United States wanting to marry so that they could enjoy
similar benefits and privileges as those offered to opposite-sex couples. My review of the
materials also led me to believe that both the Plaintiffs and Tulsa County were represented by
outstanding legal counsel, who did an impressive job researching, organizing, briefing
strategizing, coordinating arguing, and prevailing on various issues in both the United States
District Court for the Northern District of Oklahoma and in the appellate Courts.
5.
The materials reveal that Plaintiffs Mary Bishop and Sharon Baldwin prevailed on
one Issue - that 'Oklahoma's constitutional amendment limiting marriage to opposite-sex

couples violates the Equal Protection Clause of the Fourtheenth Amendment to the U.S.
Constitution." While the labor and rulings in the Northern District Bishop Case likely had an
impact on other similar cases around the country, by the time the Kern 1-14-14 Order became
final and appealable, the issue upon which Bishop and Baldwin prevailed had been successfully
litigated at the trial level and was on appeal at the Tenth Circuit, 1 and Judge Kern had issued a
stay of enforcement of his injunction in the Northern District Bishop Case, pending final
resolution of any appeals, specifically noting that the United States Supreme Court had stayed
the "nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of
In Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013), the trial court held that the
suit presented a substantial question of federal law over which the court had jurisdiction, Utah
law denied plaintiffs their right to exercise a fundamental right to marry the court would apply a
rational basis test to plaintiffs' equal protection claim, and the state's purported interests in
promoting responsible procreation, promoting optimal child-rearing, and proceeding with
caution were not furthered by marital prohibition. On April 10, 2014, Kitchen v. Herbert oral
arguments were heard in Denver, and on June 25, 2014, the Tenth Circuit affirmed, Kitchen v.
Herbert, 755 F.3d 1193 (1oth Cir. 20 14). The United States Supreme Court denied certiorari on
October 6, 2014, Herbert v. Kitchen, 135 S.Ct. 265 (2014).
3
Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6,
2014)." Also, the United States Supreme Court had held that the definition of marriage as set
forth in the federal Defense of Marriage Act (DOMA) was unconstitutional as a deprivation of
the liberty of the person protected by the Fifth Amendment. See, United States v. Windsor, 133
S. Ct. 2675 (2013). In other words, despite Tulsa County' s continued effort to support the
constitutionality of the amendment to Oklahoma' s Constitution, the ' handwriting was on the
wall. ' Having listened to the Tenth Circuit oral arguments in this case and in Kitchen, it was
apparent to me that the judges clearly thought the same thing.
6.
Noting that Windsor ' mooted the claims of the Barton couple, Judge Kern
commended Plaintiffs and their lawyers for prosecuting those claims, stating: ' Although the
Barton couple will not receive a judgment in their favor as to this claim, they have played an
important role in the overall legal process leading to invalidation of Section 3 of DOMA. The
Barton couple filed this lawsuit many years before it seemed likely that Section 3 would be
overturned. Although other plaintiffs received the penultimate judgment finding DOMA ' s
definition of marriage unconstitutional, the Barton couple and their counsel are commended for
their foresight, courage and perseverance." And the Tenth Circuit denied the request for fees as it
related to an award for Barton and Phillips because Barton and Phillips did not prevail on appeal.
I agree with the legal assessment of both Courts and the sentiments of Judge Kern, where he
recognized the failure of the Barton couple to receive a judgment on their claims, while
applauding their role in contributing to the invalidation of DOMA and Oklahoma' s constitutional
amendment. I regret that so many hours of heroic and historical work must have been expended
without financial compensation. I also find it unfortunate that Plaintiffs ' counsel decided to
forego fees for the work they conducted at the trial court level and that others, like Mr. Fisher,
have a no-compensation policy, because the efforts expended at trial and the appellate work for
which no compensation
IS
sought were exceptionally valuable services, resulting in an
impressive victory at the trial court that was affirmed on appeal. Though many, many attorney
hours over the course of a decade were potentially compensable, mootness, a failure to prevail on
several of the claims, and the decision to forego compensation leave a narrow swath of
compensable time.
7.
In addition to eliminating the non-compensable time devoted to non-prevailing
issues, I also distinguished between Bishop/Baldwin's defense of the Kern 1-14-14 Order and
their understandable and laudable effort to use the instant case as a vehicle to obtain precedent
from the highest Court in the nation to affect rights of same-sex couples throughout the country.
For instance, Plaintiffs' counsel supported a grant of certiorari by the United States Supreme
Court, arguing: "And if certiorari were denied and the stay lifted without an accompanying
decision from this Court on the merits, respondents and other same-sex couples would marry
under a cloud of legal uncertainty, not knowing whether - or when - their marriages would
survive a future ruling by this Court." This position was adverse to the named Plaintiffs'
individual interests since a grant of certiorari would open the door for the United States Supreme
Court to reverse Bishop's and Baldwin's win. Efforts by Plaintiffs' counsel to have certiorari
granted were not necessary to the success of Bishop's and Baldwin's claims, a reality recognized
by Plaintiffs' counsel in their motion for fees wherein they state: "The Supreme Court's denial
of certiorari in all cases at its long conference cemented Plaintiffs' status as prevailing parties.
They married on the same day along with dozens of other same-sex couples across Oklahoma.
There can be no question that Plaintiffs achieved complete and historic success in their challenge
to Part A of the Oklahoma Marriage Ban for themselves as well as thousands of same-sex
couples and their families across Oklahoma." Counsel's statements that: (1) a denial of certiorari
would have left a cloud of doubt hanging over same-sex couples wanting to marry, and then that
(2) the actual denial of certiorari provided them "complete and historic success," are inconsistent
on their face. While the clear goal of urging certiorari - i.e. , to obtain precedent that could be
used to support the efforts of same-sex couples wanting to marry throughout the United States is laudable, Tulsa County should not be saddled with the cost of that goal. Like Judge Kern the
law of this case, as directed by the Tenth Circuit, mandates that I limit my assessment of
reasonable attorney fees to those attributable to the Plaintiffs' individual claims for which they
prevailed on appeal, not the fees that might have been otherwise recoverable in the trial court had
Plaintiffs counsel sought those fees.
8.
In determining reasonable fees on appeal (as opposed to fees prior to the appeal),
I was required to study what new challenges faced Plaintiffs Bishop and Baldwin in defending
their winning claim in the Northern District Bishop Case. Certainly, they did not have to reinvent
the proverbial wheel, one that they had already ' built' to great success; nor did they have to
reinvent wheels provided to them by victories in other jurisdictions during the pendency of the
trial proceedings, even though the lawyers here may have been (and probably were) instrumental
in bringing those extra-territorial cases to a successful conclusion. Plaintiffs' counsel have touted
in their motion for fees "the familiarity of the legal team with the extensive record and
procedural history of this case from that trial-level work [which] directly and materially
contributed to the efficiency and efficacy of the team ' s work on appeal. " Therefore, though I
applied a full-measure time allocation to new materials Plaintiffs' counsel included in their
appellate briefs, I discounted their efforts to locate, review and apply authorities they had
previously located, reviewed and applied. Otherwise, they would be receiving attorney fees for
trial court work, which the Tenth Circuit and Judge Kern determined they were not entitled to
receive, and which Plaintiffs' counsel unilaterally chose to forego .
9.
Had I been tasked with defending the appeal of the issue on which Bishop and
Baldwin prevailed, these are the steps I would have taken:

(i)
I would have carefully reviewed and analyzed the Kern 1-14-14 Order,
determining which findings and authorities would support the defense on an
appeal on the issues upon which my clients had prevailed;
(ii)
I would have gathered the parts of my previous Northern District Bishop Case
briefs relevant to the prevailing issues;
(iii)
I would have KeyCited all the law from the Kern 1-14-14 Order and the trial court
briefing by both sides relevant to the prevailing issues;
(iv)
I would have searched for new legal authorities that had arisen since the trial court
briefing in order to cite them in support of my position on appeal;
(v)
I would have foregone the filing of a cross-appeal if I were only going to be

defending the prevailing issues;
(vi)
upon receipt of Tulsa County's Notice of Appeal, I would have prepared the
appropriate responses and counter-designation of record;
(vii)
upon receipt of Tulsa County's brief in chief, I would have marshalled the
authorities identified in subparagraphs (i)-(iv), above, and determined what
additional authorities I might use to respond to the brief in chief and what
authorities might present themselves during my additional research for the
Plaintiffs' response brief;
(viii)
I would have drafted, edited and filed a response to Tulsa County's brief in chief
in the Tenth Circuit;
(ix)
upon receipt of Tulsa County's reply brief, I would have carefully reviewed any
new arguments and authorities and would have conducted additional research, if
necessary, to counter those new arguments and authorities.
I estimate that the time necessary for me and my co-counsel to perform the services described in
(i)-(ix), above, would have been four (4) attorney work-weeks of 40 billable hours per week, for
a total of 160 hours. Multiplying those 160 hours by the claimed $400/hr. rate for Plaintiffs'
counsel, results in a fee of $64,000.
(x)
in preparing for oral argument in the Tenth Circuit, I would have: (1) reviewed
the briefing in this matter, (2) determined whether there was additional
information from other lawsuits or public records that would lead to my need to
file notices of supplemental authority to aid in my presentation for my clients, and
(3) listened to and taken note of the 40-minute-long arguments and questions
posed in each of the other federal appellate proceedings, particularly those heard
by the Tenth Circuit, where my clients' prevailing issues were addressed, and I
would have done that by listening to audio files available on the circuit court
websites, thus avoiding unnecessary time and expense attending live presentations
in Denver and perhaps elsewhere;
(xi)
at the Tenth Circuit oral arguments, I would have devoted all of my allotted time
to the issue upon which my clients had prevailed, as opposed to spending the vast
majority of the time dealing with questions and offering arguments related solely
to issues on which Bishop and Baldwin were not the prevailing parties and
thereby severely diluting the time I devoted to arguments in support of the
prevailing issues (though I did not discount my time assessment for Plaintiffs'
counsel ' s preparation for or presentation of oral argument because they would
have needed to spend that time even if the arguments had been limited to the
prevailing issues);
(xii)
upon receipt of Tulsa County's petition for certiorari in the United States
Supreme Court, I would have opposed certiorari, citing Kitchen and other new
cases that had been decided.
I estimate that the time necessary to perform the services described in (x)-(xii), above, including
travel time to and from Denver, would have been two (2) attorney work-weeks of 40 billable
hours. Multiplying those 80 hours by the claimed $400/hr. rate for Plaintiffs' counsel results in a
fee of $32,000.
Therefore, it is my opinion that the total attorney fees reasonably awardable to Plaintiffs'
counsel for the services they rendered in defense of Bishop's and Baldwin' s prevailing party
claims is $96,000.
10.
I note that the Plaintiffs' motion for fees cites four (4) cases to demonstrate
' comparable' fee awards in other cases to support an award of the $368,827.50 amount they seek
in attorney fees. Although the four (4) cases cited do, generally, reflect fees in the ballpark range
of those sought by Plaintiffs' counsel, here, each and every one of those cases involved the
award of attorney fees for the entire proceedings, not expedited appellate proceedings for half of
the plaintiffs where they prevailed on the issues. Therefore, these cases actually work against the
Plaintiffs' fee request, where Plaintiffs' counsel seek comparable fees for far less than
comparable recoverable services. Nowhere in the cited cases does it suggest that attorney fees of
8
this magnitude would be properly awarded for the narrow scope of fees dictated by the Tenth
Circuit in this case. In coming to this conclusion, I also took note of the similar recent case of
Latta v. Otter, Case No. 1: 13-cv-482-CWD, United States District Court for the District of
Idaho, and the Memorandum Decision and Order awarding fees [Doc. 139, December 19, 2014]
wherein the Court awarded $397,300 in attorney fees for the trial court proceedings and noted
that "the parties saw fit to file hundreds of pages in briefs on three dispositive [trial court]
motions" and that " [a]ttached to, or referenced by, the briefs were thousands of pages of
declarations, reports, news articles, legislative history, and caselaw." That sort of work was
conducted at the trial court level in the instant case, but was unnecessary for Bishop' s and
Baldwin' s appeallate defense of their prevailing trial court ruling because the trial court record
was already in place.
11.
In the event I am provided with additional information, beyond that which I have
reviewed to date, I remain open to modifying my opinion to take that additional information into
account.
FURTHER, AFFIANT SAITH NOT.
SUBSCRIBED AND WORN TO befori

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Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT

Case No. 04-cv-848-TCK-TLW

DEFENDANTS BRIEF IN OPPOSITION TO PLAINTIFFS MOTION FOR

/s/ John David Luton

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 2 of 27

PLAINTIFFS APPEAL-RELATED ATTORNEYS FEES

PLAINTIFFS APPEAL-RELATED EXPENSES

PLAINTIFFS HAVE FAILED TO EXERCISE SUFFICIENT

AN ENHANCEMENT OF THE LODESTAR IS NOT WARRANTED .

DEFENDANT SMITHS EXHIBITS

MOTION TO EXPEDITE APPEAL WITH

PRINCIPAL AND RESPONSE BRIEF ..

REPLY BRIEF ... Exhibit 4

ORDER RE: ORAL ARGUMENT ...........

TENTH CIRCUIT ORDER RE: ATTORNEYS FEES ...........

DOCKET SHEET ON APPEAL 14-5003 .

AFFIDAVIT OF ROBERT SARTIN .. Exhibit 9

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 3 of 27

Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014) ...

Board of Trustees of Hotel and Restaurant Employees Local 25 v.

Blum v. Stenson, 465 U.S. 886 (1984)

Bostic v. Rainey, 970 F. Supp.2d 456 (E.D. Va. 2014) ..

Brady v. Wal-Mart Stores, Inc., 2010 WL 4392566 (E.D.N.Y. 2010) ...

Carter v. Sedgwick County, Kan., 36 F.3d 952 (10th Cir. 1994)

City of Burlington v. Dague, 505 U.S. 557 (1992) ..

Copeland v. Marshall, 641 F.2d 880 ..

Gragert v. Lake, 2014 WL 3828705 (W.D. Okla. 2014)

Heavener v. Meyers, 158 F.Supp.2d 1278 (E.D. Okla. 2001)

Hensley v. Eckerhart, 461 U.S. 424 (1983) . 7, 12-15

In re Reid, 399 B.R. 307 (Bankr.W.D. Ky. 2008) ..

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) 5, 15-17

League of Wilderness Defenders/Blue Mountains Biodiversity

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 4 of 27

TABLE OF AUTHORITIES (continued)

Perdue v. Kenny, 559 U.S. 542 (2010) 11-12, 19-22

Smith v. Freeman, 921 F.2d 1120 (10th Cir. 1990)

Spradley v. Owens-Illinois Hourly Employees Welfare Ben. Plan,

U.S. v. Windsor, 133 S.Ct. 2675 (2013) ...

OKLA. CONST. ART. II 35 .

William M. Richman and William L. Reynolds, Injustice On Appeal:

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 5 of 27

IN THE UNITED STATES DISTRICT COURT

Case No. 04-cv-848-TCK-TLW

DEFENDANTS BRIEF IN OPPOSITION TO PLAINTIFFS MOTION FOR

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 6 of 27

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 7 of 27

Many of the time entries

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 8 of 27

See Affidavit of Robert Sartin, 12 & 14, Exhibit 9.

See Affidavit of Robert Sartin, 13, Exhibit 9.

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 9 of 27

5/13 6/26 7.2 hrs

See Affidavit of Robert Sartin, 15, Exhibit 9.

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 10 of 27

See Affidavit of Robert Sartin, 16, Exhibit 9.

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 11 of 27

1/23 3/26 25.6 hrs

The Plaintiffs appeal-related attorneys fees should be reduced by an additional $42,975.00 to

See Affidavit of Robert Sartin, 17, Exhibit 9.

See Affidavit of Robert Sartin, 18, Exhibit 9.

Case 4:04-cv-00848-TCK-TLW Document 303 Filed in USDC ND/OK on 01/05/15 Page 12 of 27

The amount of Plaintiffs appeal-related attorneys fees should be reduced by an additional

See Affidavit of Robert Sartin, 19, Exhibit 9.