Same-sex marriage has been legal in Oklahoma since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, following the U.S. Supreme Court's refusal to review Bishop v. Smith, a case that had found the ban unconstitutional, the Tenth Circuit Court of Appeals ordered Oklahoma to recognize same-sex marriages. On January 14, 2014, Judge Terence C. Kern of the U.S. District Court for the Northern District of Oklahoma declared the state's statutory and constitutional same-sex marriage bans unconstitutional. The case, Bishop v. Smith (formerly Bishop v. Oklahoma and Bishop v. United States), was stayed pending appeal.Federal lawsuit renewed against Oklahoma's constitutional ban of same-sex marriage Accessed December 11, 2010 On July 18, 2014, a panel of the Tenth Circuit upheld Kern's ruling overturning Oklahoma's same-sex marriage ban. However, the panel put its ruling on hold pending disposition of a petition for certiorari by the U.S. Supreme Court. On October 6, 2014, the Supreme Court rejected the request for review, leaving the Tenth Circuit Court's ruling in place. State officials responded by implementing the Tenth Circuit's ruling, recognizing same-sex marriage in the state.

Legal history Restrictions In 1975, the Oklahoma Legislature passed its first statute defining marriage as between "one man and one woman".SAME-SEX MARRIAGE LAWS IN THE UNITED STATES (Current as of December 31, 2013) In 1996, the Oklahoma Legislature passed another piece of legislation, defining marriage as between "one man and one woman" and prohibiting same-sex marriages performed out-of-state from being recognized in Oklahoma.Section 3.1 - Marriage Between Persons of Same Gender Not Recognized In April 2013, the Oklahoma House of Representatives passed a non-binding resolution reaffirming marriage as "between one man and one woman", and urging the U.S. Supreme Court to uphold Section 3 of the Defense of Marriage Act (DOMA) and the right of states to regulate marriage. It passed 84–0, with 71 Republicans and 13 Democrats voting in favor. 16 Democrats walked out of the chamber in protest rather than vote. The Oklahoma Senate approved the resolution later that same month.HCR 1009 The U.S. Supreme Court struck down Section 3 of DOMA in United States v. Windsor on June 26, 2013.

In April 2004, the Oklahoma Senate, by a vote of 38 to 7, and the House of Representatives, by a vote of 92 to 4, approved a constitutional amendment banning same-sex marriage. On November 2, 2004, voters approved the ban as Question 711. The amendment added a ban on same-sex marriage and any "legal incidents thereof be conferred upon unmarried couples or groups",CNN: Ballot Measures, accessed May 15, 2011US judge strikes down Oklahoma gay marriage ban as 'arbitrary, irrational' (+video) such as civil unions or domestic partnerships, to the Constitution of Oklahoma.

Bishop v. Smith Background On November 3, 2004, the day after Oklahoma voters overwhelmingly approved a constitutional amendment banning same-sex marriage, two lesbian couples, Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips, filed a challenge in the U.S. District Court for the Northern District of Oklahoma in Tulsa. The first couple had been denied a marriage license by the Tulsa County Clerk, Sally Howe Smith, while the latter couple had formed a Vermont civil union in 2001 and later married in British Columbia in 2005 while deliberations were pending. They were represented by Holladay and Chilton, an Oklahoma City law firm. Smith was represented by Tulsa County's district attorney and the Alliance Defending Freedom, a non-profit Christian advocacy organization. The case was Bishop v. Oklahoma. The defendants were the Attorney General of Oklahoma, Drew Edmondson, Governor Brad Henry, the U.S. Attorney General, John Ashcroft, and President George W. Bush. The couples sought inter alia a declaration that the Oklahoma Amendment was unconstitutional under the Due Process, Equal Protection, Full Faith and Credit and Privileges and Immunities clauses of the U.S. Constitution. They also challenged the federal Defense of Marriage Act (DOMA), passed in 1996. The state sought to dismiss, arguing that the couples lacked standing and that their suit was barred by the Eleventh Amendment.

On July 20, 2006, Judge Terence C. Kern issued a partial victory to the plaintiffs, holding that they could litigate various challenges to the state constitutional amendment; however, he reduced the scope of the case by eliminating certain legal theories from consideration. Citing Smelt v. Orange County, a California case, he ruled that the couples lacked standing to challenge DOMA as neither had entered into a legal marriage in the United States. Kern ruled that Bishop and Baldwin lacked standing to challenge the portion of DOMA that excluded same-sex marriage from being recognized by the federal government because they were not married. However, he ruled that Barton and Philips did have standing, as the couple had married in Canada and entered into a civil union in Vermont, and so determined that it would be premature to dismiss their claims. Kern found that both couples had standing to challenge the state amendment prohibiting same-sex marriage, since both were interested in being legally married in Oklahoma. State officials appealed to the Tenth Circuit Court of Appeals. The Tenth Circuit issued an unpublished decision on June 5, 2009, reversing the district court's failure to dismiss the claims against the Oklahoma officials, and dismissed the plaintiffs' claims for lack of subject-matter jurisdiction. The remaining defendants, Smith and the federal government, filed a motion to dismiss on October 13, 2009.

On February 25, 2011, prior to the court issuing a decision on the motions to dismiss, the federal government notified the court that it would cease defending the constitutionality of Section 3 of DOMA. The Bipartisan Legal Advisory Group of the U.S. House of Representatives sought to intervene to defend DOMA. On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of DOMA violated the Due Process Clause of the Fifth Amendment. That same day, the court also ruled in Hollingsworth v. Perry, allowing same-sex marriages to resume in California.

District court decision

On January 14, 2014, Judge Kern granted summary judgement to the plaintiffs and ruled in the case, now Bishop v. United States, that Oklahoma's ban on same-sex marriage was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. He issued an order permanently enjoining enforcement of the state's same-sex marriage ban, but stayed enforcement of his judgement pending appeal, citing the U.S. Supreme Court's issuance of a stay in a nearly identical case in Utah, Kitchen v. Herbert. Kern wrote that the U.S. Supreme Court's dismissal of a similar case, Baker v. Nelson, in 1972 was not binding precedent because "there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question". He found that two of the plaintiffs, Barton and Phillips, lacked standing to challenge Section 2 of DOMA because the federal officials they named as defendants had no responsibility for its enforcement and the record did not show that Oklahoma officials had failed to recognize Barton and Phillips' marriage in other jurisdictions. He noted that the couple "ha[d] played an important role in the overall legal process leading to invalidation of Section 3 of DOMA" and praised them and their attorneys "for their foresight, courage, and perseverance". Kern agreed with Bishop and Baldwin that the Oklahoma constitutional amendment banning same-sex marriage violated the Equal Protection Clause. He applied rational basis review and found the state's justifications, including encouraging responsible procreation, optimal child-rearing and the impact on the institution of marriage, "inadequate". Kern ruled that the constitutional amendment was "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit". Of the Supreme Court's jurisprudence on the issue of discrimination based on sexual orientation and equal protection, the decision said: "The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one."

Governor Mary Fallin responded to the decision by stating, "I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government." Attorney General Scott Pruitt called the decision "troubling" and said that the Supreme Court would have to decide the constitutionality of state bans on same-sex marriage.

Appeal to the Tenth Circuit Court of Appeals Smith filed a notice of appeal with the Tenth Circuit Court of Appeals on January 16, and asked the court to expedite the appeal process and hear the case along with Kitchen v. Herbert. The same 3-judge panel of the Tenth Circuit that heard oral arguments in Kitchen on April 10 heard oral arguments in Bishop v. Smith on April 17. On July 18, the court upheld the district court's ruling in a 2–1 decision, concluding that Oklahoma's same-sex marriage ban violated the U.S. Constitution, though it immediately stayed its ruling pending disposition of a petition for certiorari by the U.S. Supreme Court. Judge Jerome Holmes wrote:

Jeffrey L. Fisher, a law professor at Stanford University and an experienced Supreme Court litigator, joined as lead counsel for those challenging Oklahoma's denial of marriage rights to same-sex couples in August. The Supreme Court rejected Oklahoma's appeal on October 6, 2014, and the Tenth Circuit's ruling subsequently went into effect, thus legalizing same-sex marriage in Oklahoma. Governor Fallin sharply criticized the Supreme Court's action, but announced that the state would comply and begin licensing and recognizing same-sex marriages. Representative Sally Kern, who had in the past stated that homosexuality was "a greater threat to national security than terrorism", decried the court decision, "Oklahoma, or any state for that matter, should not have unelected judges who are not accountable to the people deciding what the laws will be." Scott Hamilton, executive director of a local LGBT group, said "We will be treated the same way as any other couple. And, the property that I have or that he [Hamilton's spouse] has when one of us passes will not be the same rigorous process that an inheritance might. To say that it's a big relief would be an understatement". The Oklahoma County Court Clerk, Tim Rhodes, said in the early afternoon of October 6 that his office was "bustling with activity". Mary Bishop and Sharon Baldwin were the first same-sex couple to receive a marriage license in Oklahoma, doing so at the Tulsa County Courthouse on Monday, October 6 at 1:20 p.m. Kristen and Heather Dickey were the first couple to receive a license in Cleveland County on October 6.

Developments after legalization