10th Circuit strikes down Okla. marriage amendment, clerk considering appeal

The following quote may be attributed to Alliance Defending Freedom Senior Counsel Byron Babione regarding the U.S. Court of Appeals for the 10th Circuit’s 2-1 decision Friday in Bishop v. Smith to strike down Oklahoma’s voter-approved constitutional amendment that affirmed marriage as the union of one man and one woman. ADF attorneys represent Tulsa County Clerk Sally Howe Smith in defense of the amendment.

“Every child deserves a mom and a dad, and the people of Oklahoma confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union. In his dissent, Judge Kelly correctly noted that ‘any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.’ We are consulting with our client and considering her options. Ultimately, the question whether the people are free to affirm marriage as a man-woman union will be decided by the U.S. Supreme Court. If the high court remains consistent with what it held in its Windsor decision, the states will ultimately be free to preserve man-woman marriage should they choose to do so.”

Excerpt from dissent by 10th Circuit Judge Paul J. Kelly:

pp. 10-11: “Simply put, none of the Supreme Court cases suggest a definition of marriage so at odds with historical understanding. The Court has been vigilant in striking down impermissible constraints on the right to marriage, but there is nothing in the earlier cases suggesting that marriage has historically been defined as only an emotional union among willing adults. Removing gender complementarity from the historical definition of marriage is simply contrary to the careful analysis prescribed by the Supreme Court when it comes to substantive due process. Absent a fundamental right, traditional rational basis equal protection principles should apply, and apparently as a majority of this panel believes, the Plaintiffs cannot prevail on that basis. Thus, any change in the definition of marriage rightly belongs to the people of Oklahoma, not a federal court.”