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PUBLISH

UNITED

STATES

COURT

OF

APPEALS

TENTH

CIRCUIT

MARY BISHOP and SHARON BALDWIN, Plaintiffs - Appellees, and SUSAN G. BARTON and GAY E. PHILLIPS, Plaintiffs - Appellees/ Cross-Appellants, v. SALLY HOWE SMITH, in her official capacity as Court Clerk for Tulsa County, State of Oklahoma, Defendant - Appellant/ Cross-Appellee, 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; THAD BALKMAN; OKLAHOMAN’S FOR PROTECTION OF MARRIAGE, Nos. 14-5003 & 14-5006

FILED United States Court of Appeals Tenth Circuit

July 18, 2014

Elisabeth A. Shumaker Clerk of Court

Appellate Case: 14-5003 Document: 01019281407 Date Filed: 07/18/2014 Page: 1

-2- Intervenors - Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA (D.C. No. 4:04-CV-00848-TCK-TLW)

James A. Campbell, Alliance Defending Freedom, Scottsdale, Arizona (Byron J. Babione and David Austin R. Nimocks, Alliance Defending Freedom, Scottsdale, Arizona, and John David Luton, Assistant District Attorney, District Attorney’s Office, Tulsa, Oklahoma, with him on the briefs), for Defendant–Appellant/Cross-Appellee. Don G. Holladay, Holladay & Chilton PLLC, Oklahoma City, Oklahoma (James E. Warner III, Holladay & Chilton PLLC, Oklahoma City, Oklahoma, and Joseph T. Thai, Norman, Oklahoma, with him on the briefs), for Plaintiffs–Appellees/Cross-Appellants.

*

Before

KELLY

,

LUCERO

, and

HOLMES

, Circuit Judges.

LUCERO

, Circuit Judge. This appeal was brought by the Court Clerk for Tulsa County, Oklahoma, asking us to overturn a decision by the district court declaring unenforceable the Oklahoma state constitutional prohibition on issuing marriage licenses to same-sex couples. It followed quickly on the heels of an analogous appeal brought by State of Utah officials requesting similar relief. Recognizing that the ruling in the Utah case would likely control the disposition of her appeal, the Oklahoma appellant asked that we assign these cases to the same panel. Our court did so.

*

The names of all amicus curiae parties are contained in Appendix A to this Opinion.


-3- Preliminary to reaching the merits, we are presented with two arguments challenging the plaintiffs’ standing. The first challenges whether plaintiffs may attack state constitutional provisions without simultaneously attacking state statutes to the same effect. The second challenges whether the Court Clerk is a proper defendant as to the non-recognition portion of the Oklahoma constitutional prohibition. We hold that plaintiffs possess standing to directly attack the constitutionality under the United States Constitution of Oklahoma’s same-sex marriage ban even though their claim does not reach Oklahoma’s statutory prohibitions on such marriages. Under Oklahoma law, a constitutional amendment “takes the place of all the former laws existing upon the subject with which it deals.” Fent v. Henry, 257 P.3d 984, 992 n.20 (Okla. 2011) (per curiam) (quotation omitted). Because the statutory prohibitions are subsumed in the challenged constitutional provision, an injunction against the latter’s enforcement will redress the claimed injury. An earlier appeal of this same case involving the standing inquiry led to a decision by a panel of our court that dismissed proceedings brought against the Governor and Attorney General of Oklahoma. That panel ruled that “recognition of marriages is within the administration of the judiciary.” Bishop v. Okla. ex rel. Edmondson, 333 F. App’x 361, 365 (10th Cir. 2009) (unpublished) (“Bishop I”). We conclude that the law of the case doctrine applies to Bishop I, but that the doctrine is overcome by new evidence demonstrating that the Tulsa County Court Clerk could not redress the non-recognition injury, thereby depriving Gay Phillips and Susan Barton (the “Barton couple”) of standing to sue.
