It’s likely the U.S. Supreme Court will have ruled on the constitutionality of state bans regarding same sex marriage by this time next year, experts say.
But it’s less clear whether the Supreme Court will choose a Tulsa case — Bishop vs. Smith — to consider what will be a landmark decision on marriage equality.
On Friday, the 10th U.S. Circuit Court of Appeals affirmed a January federal court ruling that Oklahoma’s ban on gay marriage violated the U.S. Constitution’s equal protection clause. The 10th Circuit also ruled in late June that Utah’s ban on same-sex marriage was unconstitutional.
The volume of court cases nationally that challenge state bans on same-sex marriages will make it difficult for the Supreme Court to avoid addressing the issue sometime during its next term, experts say.
“We’ve now had something like 15 or 16 federal court decisions, all of which have gone the same way,” said Steve Sanders, an associate professor at the Indiana University’s Maurer School of Law. “I just don’t see how the (Supreme) Court can duck the issue.”
The Supreme Court is on recess and the next term begins Oct. 1. That term will conclude by the end of June.
“It’s just a matter of time until the Supreme Court takes up the issue, and not a lot of time,” said Clifford Rosky, chairman of the Equality Utah board of directors and a professor at the University of Utah’s S.J. Quinney College of Law.
In 2004, 76 percent of Oklahoma voters approved amending the state’s constitution to ban same-sex marriage. Two Tulsa-area lesbian couples filed lawsuits challenging the ban the day after it passed.
Plaintiffs Mary Bishop and Sharon Baldwin sued for the right to be married in Oklahoma. Bishop is a Tulsa World editor, and Baldwin is a former World editor. Susan Barton and Gay Phillips also sued to have their legal California marriage recognized in Oklahoma.
Tulsa County Court Clerk Sally Howe Smith appealed January’s U.S. District Court ruling that struck down the Oklahoma marriage ban. Smith is a defendant in the case because her duties include issuing marriage licenses. Smith believes Bishop vs. Smith will be appealed to the Supreme Court but had no other comment, she said.
The Alliance Defending Freedom, which is defending Smith in the lawsuit, issued a statement Friday saying the Supreme Court should decide if states can define marriage.
“Every child deserves a mom and a dad, and the people of Oklahoma confirmed that at the ballot box when they approved a constitutional amendment that affirmed marriage as a man-woman union,” said Byron Babione, senior attorney for the national Christian-based legal group, headquartered in Arizona.
It’s impossible to predict the cases the Supreme Court will choose to hear, said Mike Redman, an attorney and the director of advocacy for Oklahomans for Equality.
The Supreme Court receives between 7,000 and 8,000 requests, or writs of certiorari, a year and only chooses to hear about 300. Redman said he believes the court will hear a same-sex marriage case.
“I think this is an issue that’s so important, because if they don’t (rule on a state marriage equality case), we have a hodgepodge of rulings across the country; and there needs to be some uniformity,” Redman said.
Last month, the 10th Circuit Court affirmed a ruling that struck down Utah’s gay marriage ban. The Supreme Court may choose to hear Utah’s Kitchen vs. Herbert case over Oklahoma’s Bishop vs. Smith, Redman said.
“I think that the Kitchen case is more likely to be taken up over the Oklahoma case,” he said. “The Utah case came out first, and it set all the standards of the decision.”
With so many appeals courts reviewing cases, it’s difficult to say which one could ultimately reach the Supreme Court, Redman said.
“They’ll look at the case that best frames the issues to apply across the country,” he said.
Criteria justices use to select a case could be based on endless factors.
And which case the Supreme Court chooses to hear is not of great importance, Rosky said.
“The question is will they pick a case, and the answer is ‘Yes,’ ” Rosky said.
Both the Utah and Oklahoma cases will be taught in law schools, Redman said.
“Between the Kitchen case and the Bishop case, it’s really creating some interesting constitutional law,” Redman said. “There are going to be a lot of people who are upset with the decision, but when you talk about constitutional rights, you can’t let majority opinion dictate the outcome.”