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Nos. 14-5003, 14-5006 UNITED STATES COURT OF APPEALS 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 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 thai@post.harvard.edu

ORAL ARGUMENT REQUESTED April 7, 2014

Docket Reference Number: [10164199]

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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

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TABLE OF AUTHORITIES 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 Bishop v. United States ex rel. Holder, 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
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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
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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
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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.
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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

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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).
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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

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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

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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.
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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.

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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. 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. That Those

Edmondson, 333 Fed. Appx. 361, 365 (10th Cir. 2009) (unpublished).

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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

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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).

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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.

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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.
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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

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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

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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

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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

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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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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

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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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importance second only to the initial determination of validity, severability is proper for resolution in the first instance on appeal. 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. 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. President Abraham Lincoln, Gettysburg 2 Sutherland Statutory

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Appellate Case: 14-5003

Document: 01019229819

Date Filed: 04/07/2014

Page: 23

Respectfully submitted, s/ Don G. Holladay 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 dholladay@holladaychilton.com jwarner@holladaychilton.com -andJoseph T. Thai, OBA No. 19377 300 Timberdell Rd. Norman, OK 73019 (405) 204-9579 Telephone thai@post.harvard.edu ATTORNEYS FOR APPELLEES AND CROSSAPPELLANTS MARY BISHOP, SHARON BALDWIN, SUSAN BARTON AND GAY PHILLIPS

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Appellate Case: 14-5003

Document: 01019229819

Date Filed: 04/07/2014

Page: 24

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

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Appellate Case: 14-5003

Document: 01019229819

Date Filed: 04/07/2014

Page: 25

CERTIFICATE OF DIGITAL SUBMISSION 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

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Appellate Case: 14-5003

Document: 01019229819

Date Filed: 04/07/2014

Page: 26

CERTIFICATE OF SERVICE 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: 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 Date: April 7, 2014 s/ Don G. Holladay

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