Kentucky To Hire Outside Counsel To Defend Its Refusal To Recognize Same-Sex Marriages, Over AG's Dissent

As previously reported, last month a federal district court ordered Kentucky to recognize same-sex marriages performed in other jurisdictions. The state quickly however filed a motion asking for a stay while it considered its options, and last Friday the court granted a stay until March 20. (Louisville Courier Journal). As reported by AP, yesterday Kentucky Attorney General Jack Conway announced that he will not appeal the decision or seek further stays. In a statement (full text) posted on the Attorney General's website, he said that the federal court's decision was correct and that he should not be wasting state resources on a case the state is unlikely to win.  He added that he "came to the inescapable conclusion" that defending Kentucky's refusal to recognize same-sex marriage would be defending discrimination. However moments after the Attorney General's announcement, Kentucky Governor Steve Beshear announced (full text) that the state will hire other counsel to seek a further stay and pursue an appeal to the 6th Circuit in order to "bring certainty and finality to this important matter." [Thanks to Tom Rutledge for the lead.]

Recent Articles, Forthcoming Books and Movie, of Interest

From SSRN:

• Nicole Jones, Did Fortune Tellers See this Coming? Spiritual Counseling, Professional Speech, and the First Amendment, (February 13, 2014).
• Allison G. Morrow, Will Your Religion Allow You…to Live? The Mature Minor Doctrine, Religious Exemptions, and a Look into Louisiana Law, (December 1, 2013).
• Mark L. Movsesian, Defining Religion in American Law: Psychic Sophie and the Rise of the Nones, (Robert Schuman Centre for Advanced Studies Research Paper No. 2014/19 (2014)).
• Ian C. Bartrum, The Curious Case of Legislative Prayer: Town of Greece v. Galloway, (Northwestern University Law Review Online Vol. 108, p. 218, 2014).
• Steven Douglas Smith, Is God Irrelevant?, (Boston University Law Review, Forthcoming).
• Caroline King, The Most Reasonable Standard: Why Justice O'Connor's Endorsement Test Applying the Reasonable Observer Should Be the Preferred Test for Evaluating Establishment Clause Violations, (February 7, 2014).
• James M. Oleske, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses, (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 50, Forthcoming).
• Priscilla J. Smith, Who Decides Conscience? RFRA's Catch 22, (Brooklyn Journal of Law and Policy, Forthcoming).
• Courtney M. Cahill & Geoffrey Christopher Rapp, Does the Public Care How the Supreme Court Reasons? Empirical Evidence from a National Experiment and Normative Concerns in the Case of Same-Sex Marriage, (93 North Carolina Law Review, 2014, Forthcoming).
• Cary Franklin, Discriminatory Animus, (A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press 2014)).
• SpearIt, Muslim Radicalization in Prison: Responding with Sound Penal Policy or the Sound of Alarm?, (Gonzaga Law Review, Vol. 49, No. 1, 2014).

From SSRN (non-U.S. law):

• Steven Douglas Smith, West and East: the Continuity of Persons, (San Diego Legal Studies Paper No. 14-141 (Feb. 2014)).
• Paula Defensor Knack, Legal Frameworks and Land Issues in Muslim Mindanao, (in Land and Post-conflict Peacebuilding, Jon Unruh & Rhodri Williams (eds.), Earthscan, 2013, pp 451-474).
• Gustavo Ariel Kaufman, Racial Discrimination vs. Religious Freedom in the JFS Decision, (February 19, 2014).
• Ioanna Tourkochoriti, Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States, (45 Columbia Human Rights Law Review (2014), Forthcoming).

SCOTUS Blog Contraceptive Mandate Symposium (Feb. 24-28, 2014):

• Rick Garnett, Symposium: Accommodations, religious freedom, and the Hobby Lobby case
• Elizabeth Wydra, Symposium: Under a straight-forward reading of constitutional text and history and fundamentals of corporate law, Hobby Lobby’s claims fail
• Mailee Smith, Symposium: In a battle of semantics, the family businesses win with scientific facts
• Ilya Shapiro, Symposium: Mandates make martyrs out of corporate owners

From elsewhere:

• Mark E. Chopko, Regulating Religious Charity: Current Issues and Future Challenges, 44 Rutgers Law Journal 55-88 (2013).
• Eugene Volokh, Religious Law (Especially Islamic Law) In American Courts, 66 Oklahoma Law Review 431-458 (2014).

Forthcoming Books:

• Steven P. Miller, The Age of Evangelicalism: America's Born-Again Years,  (Oxford Univ. Press, June 2014).
• Jimmy Carter, A Call to Action: Women, Religion, Violence, and Power, (Simon & Schuster, March 2014).

Forthcoming Movie:

• Daniel Lusco, Persecuted, (May 9, 2014) (reviewed by the Christian Post).

Court Issues Final Order On Recognition of Out-of-State Same-Sex Marriages In Kentucky; Intervenors Pursuing Additional Relief

As previously reported, earlier this month a Kentucky federal district court issued an opinion holding unconstitutional Kentucky provisions that deny recognition to same-sex marriages performed in other jurisdictions. As reported by the Louisville Courier Journal and Insider Louisville, after a hearing on Tuesday, the court issued its final order (full text) implementing the decision (Bourke v. Beshear,  (WD KY, Feb. 27, 2014)). At the hearing, the deputy attorney general told the court that he did not have authority at that time to ask for a stay of the decision, and the court's final order thus did not contain a stay pending appeal. However the state subsequently quickly filed a motion (full text) asking for a 90-day stay to "give Defendants time to determine if they will appeal the order, and the Executive Branch time to determine what actions must be taken to implement this Court’s Order if no appeal is taken."

Meanwhile, the court yesterday also allowed (full text of order) two other couples to intervene in the case to pursue their claims (full text of intervenors' complaint) that Kentucky laws banning the issuance of marriage licenses to same-sex couples are also unconstitutional. [Thanks to Tom Rutledge for the lead.]

Federal District Court Strikes Down Texas Ban On Same-Sex Marriage

Yesterday in De Leon v. Perry, (WD TX, Feb. 26, 2014), a Texas federal district court held unconstitutional Texas' statutory and constitutional bans on same-sex marriages and their prohibition on recognizing same-sex marriages performed elsewhere. Granting a preliminary injunction, the court said:

[T]oday's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation born out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Applying the United States Constitution and the legal principles binding on this Court by Supreme Court precedent, the Court finds that Article I, Section 32 of the Texas Constitution and corresponding provisions of the Texas Family Code are unconstitutional. These Texas laws deny Plaintiffs access to the institution of marriage and its numerous rights, privileges, and responsibilities for the sole reason that Plaintiffs wish to be married to a person of the same sex. The Court finds this denial violates Plaintiffs' equal protection and due process rights under the Fourteenth Amendment to the United States Constitution.

The court however stayed the execution of the preliminary injunction pending final disposition of any appeal to the 5th Circuit. According to the Dallas Morning News , state attorney general Greg Abbott says the state will appeal.  Washington Post places the decision in a broader context. Texas Gov. Rick Perry yesterday issued a statement (full text) reacting to the decision, saying in part:

it is not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions, and this is yet another attempt to achieve via the courts what couldn't be achieved at the ballot box.

Missouri County Treasurer Will Accept Same-Sex Marriages From Other States In Unclaimed Property Claims

According to Monday's Columbia Daily Tribune, in Boone County, Missouri (which includes Columbia) County Treasurer Nicole Galloway has announced she will recognized same-sex marriages from out of state. This means that after the death of a spouse, a surviving same-sex spouse can obtain unclaimed property of the deceased being held by the county. The county treasurer took the step despite the provision in Sec. 33 of the Missouri Constitution that provides: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman." Galloway said: "In Boone County and in my office, we accept legal documents from every state in America, and this is just an extension of that." [Thanks to Alliance Alert for the lead.]

Court Rules That Illinois Same Sex Couples Can Wed Immediately In Cook County

In Lee v. Orr, (ND IL, Feb. 21, 2014), an Illinois federal district court, in a 4-page opinion, held that Illinois statutes barring same-sex marriages violate the 14th Amendment's equal protection clause by discriminating on the basis of sexual orientation.  Illinois has already enacted a law allowing same-sex marriages, but that law does not take effect until June 1. (See prior posting.) In this decision, however, the court ruled that same-sex couples need not wait for June:

There is no reason to delay further when no opposition has been presented to this Court and committed gay and lesbian couples have already suffered from the denial of their fundamental right to marry.

However because the suit was filed only against the Cook County Clerk, the court's decision applies only to marriage licenses issued by Cook County. The Chicago Tribune reports that same-sex couples began lining up for marriage licenses within an hour after the ruling was issued.

Arizona Legislature Passes RFRA Amendments To Allow Businesses To Refuse To Serve Gays On Religious Grounds

The Arizona legislature on Thursday passed and sent to the governor SB 1062 which amends the state's Religious Freedom Restoration Act to extend its coverage to the exercise of religion by corporations and other business organizations. The bill also provides that its protections may be asserted in lawsuits even if the government is not a party. (Background form Arizona Center for Policy.) The controversial bill is designed to permit businesses that oppose homosexuality or same-sex marriage on religious grounds to refuse to provide goods or services if it violates their religious beliefs. ABC News reports that Gov. Jan Brewer is still deciding whether or not to sign the bill. Some suggest that if the controversial bill becomes law, it could lead to boycotts in connection with the Super Bowl scheduled for Arizona next year. AP reports further on the legislation.

Oregon Will Not Defend Its Same-Sex Marriage Ban In Pending Litigation

In its answer filed yesterday in Geiger v. Kitzhaber, a suit challenging Oregon's same-sex marriage ban, Oregon officials notified the federal district court:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

The lawsuit was filed last October. (See prior posting.) SCOTUSblog reports on Oregon's decision not to defend its ban.

Church of England Issues Pastoral Guidance on Same-Sex Marriage

In Britain last week, the House of Bishops of the Church of England issued Pastoral Guidance on Same Sex Marriage (full text) in response to Parliament's enactment of the Marriage (Same Sex Couples) Act 2013. (See prior posting.) The Bishop's statement says in part [emphasis in original]:

12.  When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition the Act makes clear that any rights and duties which currently exist in relation to being married in church of England churches do not extend to same sex couples....

18.  We recognise the many reasons why couples wish their relationships to have a formal status. These include the joys of exclusive commitment and also extend to the importance of legal recognition of the relationship. To that end, civil partnership continues to be available for same sex couples. Those same sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments....

20.   The 2005 pastoral statement said that it would not be right to produce an authorized public liturgy in connection with the registering of civil partnerships and that clergy should not provide services of blessing for those who registered civil partnerships. The House did not wish, however,  to interfere with the clergy's pastoral discretion about when more informal kind of prayer, at the request of the couple, might be appropriate in the light of the circumstances....

21.  The same approach ,,, should therefore apply to couples who enter same-sex marriage, on the assumption that any prayer will be accompanied by pastoral discussion of the church's teaching and their reasons for departing from it. Services of blessing should not be provided. Clergy should respond pastorally and sensitively in other ways....

27.  The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church's teaching in their lives.

Law & Religion UK blog has more on the Bishop's statement.

Federal District Court Strikes Down Virginia's Ban on Same-Sex Marriages; Delays Injunction To Allow Appeal

Yesterday in Bostic v. Rainey, (ED VA, Feb. 13, 2014), a Virginia federal district court concluded that Virginia's constitutional and statutory provisions that bar same-sex marriage and prohibit recognition of lawful same-sex marriages performed elsewhere are unconstitutional under the due process and equal protection clauses of the 14th Amendment:

The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry.  Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.

The court began its opinion with a quotation from Mildred Loving, one of the plaintiffs in the 1967 U.S. Supreme Court decision in Loving v. Virginia that struck down Virginia's laws barring interracial marriage and established the modern doctrine of marriage as a "fundamental right." However the court yesterday also stayed the effectiveness of its preliminary injunction to give the parties time to appeal its decision to the 4th Circuit. Washington Post reports on yesterday's decision.

UPDATE: An amended opinion (full text) was issued on Feb. 14 correcting a reference in the first paragraph of Judge Allen's opinion.  The sentence that originally read: "Our Constitution declares that "all men" are created
equal." was corrected to read: "Our Declaration of Independence recognizes that "all men" are created equal." Politico reports on the change. [Thanks to Mirror of Justice for the lead.]

Suits Challenge Missouri's and Louisiana's Refusals To Recognize Out-of-State Same-Sex Marriages

Yesterday, the ACLU announced that has filed a state court lawsuit on behalf of 8 Missouri same-sex couples challenging Missouri's statutory and state constitutional provisions that deny recognition to plaintiffs' marriages that were legally entered into in other jurisdictions. The complaint (full text) in Barrier v. Vasterling, (MO Cir. Ct. Jackson County, filed 2/12/2014) contends:

Missouri’s exclusion of married same-sex couples from the protections and responsibilities of marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because Missouri’s refusal to recognize the legal marriages of same-sex couples does not rationally further any legitimate government interest. It serves only to disparage and injure same-sex couples and their families.

Reporting on the lawsuit, the Columbia Missourian notes:

Missouri Gov. Jay Nixon drew criticism from gay marriage opponents in November when he directed the state Department of Revenue to accept joint tax returns from same-sex couple who are legally married in other states.... The directive prompted a lawsuit filed by same-sex marriage opponents, and led a Republican lawmaker last week to file articles of impeachment against the Democratic governor.

Meanwhile, in Louisiana an organization that advocates for LGBT equality filed a federal court lawsuit challenging Louisiana's statutory and state constitutional provisions that bar recognition of same-sex marriages validly performed elsewhere. The complaint (full text) in Forum for Equality Louisiana, Inc. v. Barfield, (ED LA, filed 2/12/2014), in claiming that the Louisiana Anti-Recognition Laws violate plaintiffs' equal protection and due process rights, focuses particularly on the state's refusal to accept joint tax returns from married same-sex couples and its refusal to issue birth certificates naming same-sex couples as parents of a child.  The New Orleans Times Picayune reports on the lawsuit.

Court Says Kentucky Must Recognize Valid Same-Sex Marriages From Elsewhere

In Bourke v. Beshear, (WD KY, Feb. 12, 2014), a Kentucky federal district court struck down Kentucky's state constitutional and statutory provisions that deny recognition to valid same-sex marriages performed elsewhere. The court held that "denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review."  Explaining its decision, the court said in part:

Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer. 

Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.

The court added that while it was not presented with the question of the validity of Kentucky's ban on issuing marriage licenses for same-sex marriages in the state, "there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question."  WFPL News reports on the decision. [Thanks to Tom Rutledge for the lead.]

Nevada Tells 9th Circuit It Will No Longer Defend Its Same-Sex Marriage Ban

According to AP, Nevada's attorney general yesterday filed a statement with the U.S. 9th Circuit Court of Appeals informing the court that the state will no longer defend its ban on same-sex marriage. The move comes in the pending appeal in Sevcik v. Sandoval, in which a Nevada federal district court upheld the ban against an Equal Protection Clause challenge. (See prior posting.) The attorney general told the court:

After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable.

Nevada's Governor Brian Sandoval agrees with the attorney general.

As described by SCOTUSblog, the state changed its position after considering the 9th Circuit's decision last month in SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., Jan. 21, 2014) holding that heightened scrutiny must be applied to equal protection claims based on sexual orientation. The case held that peremptory jury challenges may not be made on the basis of sexual orientation.

Developments In Utah Same-Sex Marriage Litigation

Numerous amicus briefs have been filed in the 10th Circuit in Kitchen v. Herbert, the appeal of the Utah federal district court's decision striking down the ban on same-sex marriage in Utah. Of particular interest is the amicus brief (full text) filed yesterday by major religious organizations urging reversal of the district court. The brief, filed by the 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 argues:

Undermining the husband-wife marital institution by redefining it to include same-sex couples will, in the long term, harm vital child-welfare interests that only the husband-wife definition can secure. The result will be more mothers and fathers concluding that the highest end of marriage is not the welfare of their children but the advancement of their own life choices. We know, from personal experience over numerous decades of ministering to families and children, that more focus on satisfying adult needs will not benefit vulnerable children.

The Salt Lake Tribune has a summary of the over 20 briefs filed in support of Utah's position, and reports at more length on the brief filed by religious organizations.

Meanwhile, last month the ACLU filed a lawsuit (press release) seeking to require Utah to recognize as valid the more than 1000 same-sex marriages performed in the state after the district court struck down the ban and before the U.S. Supreme Court stayed the decision.  The complaint (full text) in Evans v. State of Utah, (UT 3d Dist. Ct., filed 1/21/2014), argues that by not fully recognizing the marriages, the state has deprived couples of liberty and property interests protected by the due process clause of the Utah constitution and by 42 USC Sec. 1983:

By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of all same-sex married couples, including Plaintiffs and their families and children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives.

The ACLU provides links to other documents and items relating to the case.

Court Upholds Hawaii Law Permitting Same-Sex Marriage

A news release from Hawaii's Department of Attorney General reports that on Jan. 29 a state trial court judge upheld the constitutionality under both the state and federal constitutions of Hawaii's Marriage Equality Act of 2013:

In his ruling from the bench, Judge Sakamoto noted the importance of marriage under the federal constitution, drawing an analogy to Loving v. Virginia, the landmark United States Supreme Court case that struck down state laws banning inter-racial marriage. He concluded that the Marriage Equality Act is consistent with Article I, section 23 of the Hawaii State Constitution, and that “same-sex marriage is legal.”

Article I, Sec. 23 of Hawaii's constitution provides: "The legislature shall have the power to reserve marriage to opposite-sex couples."

Administrative Complaint Charges Catholic School With Discrimination For Terminating Employee In Same-Sex Marriage

The Boston Globe reports on the employment discrimination complaint  (full text) filed yesterday with the Massachusetts Commission Against Discrimination by Matthew Barrett who was hired as food services director at a Catholic school. Three days after he accepted the position with Fontbonne Academy, the school terminated his employment because it learned from paperwork he had filled out that he was gay and had a same-sex spouse.

The Massachusetts law against discrimination (MGL Title XXI, Ch. 151B, Sec. 1(5)) provides:

[N]othing herein shall be construed to bar any religious or denominational institution or organization, or any organization operated for ... educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, and which limits membership, enrollment, admission, or participation to members of that religion, from... taking any action with respect to matters of employment, discipline, faith, internal organization, or ecclesiastical rule, custom, or law which are calculated by such organization to promote the religious principles for which it is established or maintained.

In its press release on the case, GLAD says: "Our laws carefully balance the important values of religious liberty and non-discrimination.  When Fontbonne Academy fired Matt from a job that has nothing to do with religion, they came down on the wrong side of the law."

Orthodox Patriarch Warns Russian Parliament About Same-Sex Marriage

According to ITAR-TASS News Agency, on Tuesday Patriarch Krill, head of the Russian Orthodox Church, spoke at the Federation Council (the upper house of Russia's parliament) to warn against the legalization of same-sex marriage and to lament marital infidelity. He said that if a person is unfaithful to his family, he may be unfaithful to his homeland.  After Krill's presentation, the Federation Council and religious leaders adopted a joint statement which reads in part: "Preservation of marriage as a union between a man and a woman based on love and mutual understanding and birth of beloved children are a precondition for survival of humankind."

Virginia's Attorney General Will Not Defend State's Ban On Same-Sex Marriage

In an NPR interview, Virginia's newly-elected Attorney General, Mark Herring, says that his office will no longer defend the state's ban on same-sex marriage. He has concluded that the ban violates the federal equal protection clause. The state's solicitor general will tell a federal court next week that the state is joining the plaintiffs in Bostic v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban. According to the Washington Post, defendants in the case include two county clerks who are represented by separate counsel, so there will still be a defense of the Virginia law presented.

Suit Challenges Florida's Ban On Same-Sex Marriage

Yesterday Equality Florida Institute and six same-sex couples who were denied Florida marriage licences in Miami-Dade County filed suit in state court in Florida challenging state constitutional and statutory provisions that prevent same-sex couples from marrying in the state.  The complaint (full text) in Pareto v. Ruvin, (FL Cir. Ct., filed 1/21/2014), contends that these restrictions violate the due process and equal protection clauses of the U.S. Constitution's 14th Amendment. Equality Florida Institute and the National Center for Lesbian Rights issued a press release announcing the planned filing of the lawsuit. Liberty Counsel in a press release said it would help defend the Florida Marriage Protection Amendment which "affirms the natural created order of marriage...."

Federal District Court Strikes Down Oklahoma Same-Sex Marriage Ban; Stays Effectiveness of Decision

In Bishop v. United States, (ND OK, Jan. 14, 2014), an Oklahoma federal district court, in a 68-page opinion, held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the U.S. Constitution. After a lengthy discussion of the justifications for the ban offered by the state, the court said:

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 same-sex couples, from this privilege without a legally sufficient justification.

The court however-- with an eye on the stay granted by the U.S. Supreme Court to a similar Utah federal district court decision-- granted a stay of its injunction against enforcing Oklahoma's provision pending disposition of any appeal to the 10th Circuit. The court dismissed on standing grounds plaintiffs' challenges to provisions in the Oklahoma constitution and DOMA precluding recognition in the state of same-sex marriages performed elsewhere. The Los Angeles Times reports on the decision.