14-5003 #4199 plaintffs' reply

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 [email protected]

ORAL ARGUMENT REQUESTED

April 7, 2014

Appellate Case: 14-5003 Document: 01019229819 Date Filed: 04/07/2014 Page: 1

KPerr

Text Box

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. App’x. 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 Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003) ....................................................................................... 6 Panhandle E. Pipeline Co. v. Oklahoma ex rel. Comm’rs of the Land Office, 83 F.3d 1219 (10th Cir. 1996) ................................................................ 14, 15 Panhandle E. Pipeline Co. v. Oklahoma ex rel. Comm’rs 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 Mem’l 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 Ban—including the non-

recognition provision that is the subject of Plaintiffs Barton and Phillips’ cross-

appeal—Defendant’s 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 Oklahoma’s 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 “second-

tier.” 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.” Appellant’s

Principal Br. (“Aplt. Principal Br.”) at 3, 85.

Second, Defendant does not dispute that marriage in Oklahoma is—and

always has been—defined solely as a civil contract arising from the mutual consent

of two adults, without any requirement whatsoever relating to a couple’s 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

acknowledges—and Plaintiffs could not agree more—that conditioning marriage

on “procreative potential or plans” would “impinge upon constitutionally protected

privacy rights.” Appellant’s 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 1 Indeed, as Defendant also cannot deny, the lack of a procreative prerequisite is “a ubiquitous, cross-cultural feature” of the civil institution of marriage. Appellant’s 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 states—against their asserted societal interests—to

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-cv-

01159, 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’ reasoning—and of course with the reasoning of all eight

federal court rulings against same-sex marriage bans after Windsor 2 —but

2 To the seven unanimous post-Windsor decisions discussed in Appellee’s 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 non-

recognition 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 53-

56. 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 more—and no less—guilty 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 Oklahoma’s anti-

miscegenation 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 couples—who lack the “natural capacity to create children”

according to Defendant (Aplt. Response Br. at 12) nonetheless do bring children

into the world. 4 Consequently, Defendant’s real war is not with same-sex

marriage, but with the procreative freedom made possible by modern progress, as

3 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, Defendant’s repeated slander of same-sex marriages as “genderless”

(Aplt. Response Br. at 2, 3, 11, 17, 19, 54) not only demeans and dehumanizes—as

if Plaintiffs both lost their XX chromosomes when they wed in California and

became something less than women—but reveals yet again Defendant’s 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 Dep’t 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 law—including “[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 Oklahoma’s

refusal to recognize Plaintiffs’ marriage under the cover of standing. Those

attempts remain unpersuasive.

a. Defendant excises as “ambiguous” (Aplt. Response Br. at 48) this

Court’s 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 Ban’s non-recognition provision. Bishop v. Oklahoma ex rel.

Edmondson, 333 Fed. App’x. 361, 365 (10th Cir. 2009) (unpublished). That


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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 Court’s ruling still

governs as law of the case. See Rishell v. Jane Phillips Episcopal Mem’l 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 Defendant’s office. Bishop, 333 Fed. App’x. 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 Defendant’s 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 Court’s 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, Defendant’s 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 Court’s ruling on who should be sued on a claim of non-

recognition 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 Defendant’s efforts to cast doubt, Oklahoma caselaw on

this point is clear and unbroken.

5 Likewise beside the point is Defendant’s attempt to discredit Plaintiffs’ non-recognition 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. App’x. 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, Defendant’s 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 Oklahoma’s 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 Court’s 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 invalidation—namely, 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 Ban’s 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 non-

recognition 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


14

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. Comm’rs 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. Defendant’s authorities

6 In Printz, the Supreme Court invalidated one provision of the Brady Handgun Violence Prevention Act that applied to the law’s 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 non-recognition 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”).


15

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. Comm’rs 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, 504-

06 (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.” Adrian Vermeule, Saving Constructions, 15 Geo. L.J. 1945, 1951

(1997). Moreover, as a pure legal question of statutory interpretation “of

7 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. 2 Sutherland Statutory

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 Constitution’s

guarantees of freedom and equality. President Abraham Lincoln, Gettysburg

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.


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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 [email protected] [email protected] -and- Joseph T. Thai, OBA No. 19377 300 Timberdell Rd. Norman, OK 73019 (405) 204-9579 Telephone [email protected] ATTORNEYS FOR APPELLEES AND CROSS-APPELLANTS MARY BISHOP, SHARON BALDWIN, SUSAN BARTON AND GAY PHILLIPS


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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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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.



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CERTIFICATE OF SERVICE

I hereby certify that on April 7, 2014, I electronically filed the foregoing using the court’s 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



14-5003 #4199 plaintffs' reply

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