Virtue and Morality

Bishop v. Smith (2014)

  • February 4 2020



Whether prohibition on same-sex marriage directly violates the Fourteenth Amendment’s Privileges and Immunities, Due Process, and Equal Protection Clauses.


Mary Bishop and Sharon Baldwin were a lesbian couple residing in Oklahoma. They exchanged vows in a church-recognized commitment ceremony in March 2002 but wanted civil recognition of their marriage. Susan Barton and Gay Phillips, a second lesbian couple, were joined in a civil union conducted in Vermont in August 2001, and were legally married in Vancouver, British Columbia, in May 2005. Barton and Phillips reside in Oklahoma and wanted the state to recognize their Vermont civil union and Canadian marriage respectively. The parties sued in the United States District Court for the Northern District of Oklahoma.

The two couples brought action against various government officials claiming that the Defense of Marriage Act DOMA and an amendment to the Oklahoma Constitution violate the Privileges and Immunities, Due Process, and Equal Protection Clauses of the Fourteenth Amendment and the Full Faith and Credit Clause of the Constitution. The government officials brought motions to dismiss.

The Court Below

The United States District Court for the Northern District of Oklahoma was the first court to hear this case. The court held that lesbians who had entered into civil unions in other jurisdictions did not have standing to challenge the non-recognition provision in DOMA, that the couples did have standing to challenge the definition of marriage in DOMA, and that the federal statutory definition of marriage in DOMA did not violate full faith and credit clause or the privileges and immunities clause. See opinion below:

Bishop v. Oklahoma ex rel. Edmondson, 447 F.Supp.2d 1239 N.D. Okla., 2006

On appeal by the State, the Tenth Circuit held that the couples lacked standing to hold the Oklahoma Attorney General and Governor responsible for their alleged injuries. See opinion below:

Bishop v. Oklahoma, 333 Fed.Appx. 36 10th Cir., 2009

The case was then sent back down to the district court for further proceedings. The district court held that Bishop still lacked standing to challenge the non-recognition provision of DOMA, that Bishop’s claim for declaratory relief over DOMA’s definition of marriage was moot, that Bishop lacked standing to challenge the Oklahoma Constitution’s definition of marriage, and that the Oklahoma Constitution had no reason to define marriage that was rationally related to the state’s other interests. See opinion below:

Bishop v. U.S. ex rel. Holder, 962 F.Supp.2d 1252 N.D. Okla., 2014  

The case then moved back to the Tenth Circuit on appeal from both parties. The court held that the amendment prohibiting same-sex marriage was not narrowly tailored to Oklahoma’s interests, and was therefore unconstitutional. This marked the end of the line for the case. See opinion below:

Bishop v. Smith, 760 F.3d 1070 10th Cir., 2014

Question before the Court

Whether the Constitution prohibits the people of a state from retaining the long-standing, biologically rooted definition of marriage as a union of one man and one woman when the procreative function inherent in such relationships makes such unions fundamentally different from same-sex relationships in ways directly relevant to the State’s interest in the institution of marriage?

CCJ filed an amicus curiae brief in support of Smith


The very purpose and definition of marriage are at stake in this case as the plaintiffs seek to radically redefine both here. They claim that for the States of Utah and Oklahoma, respectively, to decline to redefine the institution of marriage so that it encompasses same-sex couples is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The judgments accepting those claims not only fail to respect fundamental policy choices made by the democratic process in the States, but run counter to established precedent of this Court. In both the Utah and Oklahoma cases, the courts held that that the states’ respective marriage laws ran afoul of the Due Process Clause. However, it reached that decision only after concluding that the right to marry which has long recognized by this Court could be redefined to encompass same-sex relationships that, admittedly, formed no part of the history and traditions that gave rise to this Court’s treatment of marriage as a fundamental right. Indeed, although the court below declined to follow it, this Court’s decision in Baker v. Nelson, issued a few years after this Court firmly established the right to marry as a fundamental right in Loving v. Virginia, necessarily rejected the claim accepted by the Court below. The result is a broadside against democratic self-governance. This Court has never taken such a step, and in fact declined to do so when first asked forty years ago.

The courts also held that the Utah and Oklahoma marriage laws violated the Equal Protection Clause because the classification of marriage as between one man and one woman infringed on a fundamental right by failing to provide same-sex couples the same right to marry as is enjoyed by heterosexual couples. However, the Equal Protection Clause is essentially a direction that all similarly situated people must be treated alike. This raises the question of whether same-sex and heterosexual couples are similarly situated. More specifically, the issue at hand requires the couples to be similarly situated in ways relevant to the purpose the challenged laws are supposed to serve. In error, the Tenth Circuit listed a few ways same-sex and opposite-sex couples are similarly situated rather than considering the ways they are not similarly situated. Among the ways the couples are supposedly similar are that both are based on personal aspects like emotional support and public commitment and that both types of couples can raise children. If marriage was only about the relationships adults form among themselves, it might well violate Equal Protection not to recognize as marriage any adult relationship seeking the recognition. This betrays the reality that marriage is and always has been about far more than just personal commitment and self-fulfillment. The institution of marriage has been recognized as one of the cornerstones of civilized society because married couples procreate, something same-sex couples cannot do.  Same-sex and opposite-sex couples are simply not similarly situated with respect to at least that fundamental purpose, which is the core purpose for which states have an interest in marriage at all.

In the present case, the core concern is who makes the policy judgment about the purpose of marriage, the people or the courts. For example, when California’s Proposition 8 was challenged by the California Supreme Court, it recognized that “the principal issue before [it] concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state Constitution itself through the initiative process so as to incorporate such a limitation as an explicit section of the state Constitution.” Recognizing that such policy judgments are quintessentially the stuff of the democratic political process, Justice Baxter criticized the California Supreme Court majority for engaging in “legal jujitsu,” “abruptly forestall[ing] that process and substitut[ing], by judicial fiat, its own social policy views for those expressed by the People themselves.” The lower courts here did exactly the same thing when presented with this federal constitutional challenge. By minimizing the importance of the historical connection between marriage and the unique procreative abilities of male/female unions, they substituted its views about that threshold policy judgment for that of the more than one and a half million voters from Utah and Oklahoma who determined that the historic purpose still mattered.

This Court is acutely aware of the dangers that flow from judicial interference in policy disputes, particularly hotly contested ones. One such attempt, a century and a half ago, led directly to the Civil War, the bloodiest war in our nation’s history. Another, the Roe v. Wade decision, so polarized our nation’s politics since its release in 1973 that respected commentators and legal scholars from both ends of the ideological spectrum have noted the democracy-destructive consequences. The Tenth Circuit’s decision below threatens to drag this Court, and the country, into another quagmire. There are powerful democratic forces at play on both sides of this policy dispute. As a result, there is little prospect that those forces can be cabined by a decision from the Tenth Circuit, or any Court, invalidating on anything less than clear constitutional command the results of that political process. This is simply not going to be a case where judicial negation of democratically chosen policy is going to yield full and quiet acceptance of the judicially-imposed rule.

The lower courts’ foray into this hotly contentious policy dispute is ground enough for this Court to grant review, if history’s lesson about the likely consequences is to be heeded and those consequences avoided. But two other aspects of these particular cases make them perfect vehicles for resolving the significant constitutional issues at stake. First, as the lower courts found, the people of Utah and Oklahoma did not reaffirm their long-standing definition of marriage out of malice toward homosexuals. Instead, the Court in the Utah case specifically acknowledged “the integrity [and] good-faith beliefs of those who supported” Utah’s marriage amendment. Second, there is no complicating concern about jurisdiction or lack of adversariness that arises when the government officials responsible for enforcing and defending their state’s laws not only decline to defend but actively join the challenge to those laws’ constitutionality.

In both of the cases here, appropriate government officials are vigorously defending their state’s marriage laws.

The petitions for writ of certiorari should be granted for consideration of the important constitutional questions they present.

Final Outcome

Ultimately, the Supreme Court declined to hear the case, making the Tenth Circuit the final arbiter of the decision. The Tenth Circuit held that the same-sex couple established redressability, as required for standing to challenge amendment’s definition of marriage. Moreover, contrary to CCJ’s argument, the court held that the constitutional amendment prohibiting same-sex marriage was not narrowly tailored to meet the state’s interest in marriage.