Oklahoma gay marriage ban lawsuit pending 9 years

AP Photo/Eric TurnerIn this Oct. 10

Two same-sex couples who sued for the right to marry in conservative Oklahoma knew it would be a struggle, but they couldn't have expected that nine years later, they would still be awaiting their day in court.

Their federal lawsuit is the longest-running active lawsuit against the Defense of Marriage Act, according to national gay marriage advocacy group Freedom to Marry.

Mary Bishop and Sharon Baldwin, a Tulsa couple together for 17 years, and another couple filed the lawsuit in November 2004, shortly after Oklahoma voters overwhelmingly passed a constitutional amendment banning same-sex marriage. Although the suit was revised in 2009 to name the Tulsa County clerk as a defendant, it maintains its original claim that the women should be allowed to marry in Oklahoma.

“While some people are getting their day in court and finding justice, we are sitting here, for nine years, with our hands tied,” Bishop said.

The duration of the case strikingly contrasts the spate of lawsuits filed since the U.S. Supreme Court ordered the federal government in June to recognize legal same-sex marriages. The case that sparked that ruling — involving 83-year-old New York widow Edith Windsor — reached the high court only three years after it was filed. The case challenged an estate tax levied after Windsor's wife died.

Yet even with that case decided, Bishop and Baldwin, who met while working at the Tulsa World newspaper, haven't been able to get a hearing in a Tulsa court. Their fellow plaintiffs are Gay Phillips and Susan Barton, who legally married in Canada and have a civil union in Vermont.

Their lawsuit also challenges the Defense of Marriage Act, including parts addressed in Windsor's case but also phrasing that says individual states don't have to recognize same-sex marriages performed in other jurisdictions.

The couples' lawyer recently filed paperwork with U.S. District Court Judge Terence Kern, the judge overseeing their case, noting the U.S. Supreme Court's ruling in case he was waiting for the high court to weigh in on the issue, Baldwin said.

“We've had absolutely no guidance from the judge in terms of what he's thinking, what his idea of is how this is going to proceed,” she said. “Just let us have our day in court. I mean, we're being held hostage and the right of gays and lesbians all over the state of Oklahoma are being held hostage.”

A message left with Kern by The Associated Press was not returned.

The lawsuit made it to the 10th U.S. Circuit Court of Appeals in 2006 after the district court denied the governor and the state attorney general's motion to dismiss the case.

The appeals court ruled in 2009 that they lacked standing, so the two couples filed an amended complaint removing the governor and attorney general as defendants, and adding the Tulsa County Court clerk, who issues marriage licenses.

A trial was scheduled for May 2012, but it was held up as other gay marriage-related cases made their way through other federal courts.

After the couples' lawyer pointed out the Windsor decision to Kern, lawyers for the Tulsa County clerk said the couples had overstated the U.S. Supreme Court's ruling.

“Windsor does not forbid States like Oklahoma from preserving marriage as the union of one man and one woman. On the contrary, Windor's (sic) repeated references to state sovereignty over the definition of marriage bolster the defense of Oklahoma's Marriage Amendment,” attorney Byron Babione wrote.

It's unclear what will happen in the case. But Evan Wolfson, president of Freedom to Marry, lauded Baldwin and Bishop for their persistence.

“Whatever the wisdom of a particular litigation in a particular state in the midst of a national movement for the freedom to marry, couples like Mary and Sharon who have gone the full mile to walk down the aisle attest to the undeniable fact that marriage matters, for gay couples as for non-gay,” Wolfson said.

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