Tulsa Attorney BlogGay Marriage Case Clouds Oklahoma Same-Sex Divorce Law

oklahoma same sex divorce attorneyAs of July 18, 2014, federal courts have made it clear: Oklahoma’s prohibition on gay marriage is unconstitutional. The 10th Circuit Court affirmed a lower court’s decision that cited a 2013 U.S. Supreme Court case, U. S. v. Windsor (2013), as the basis for striking Oklahoma’s ban on same-sex marriage.

The decision was only a partial victory for advocates of gay marriage in Oklahoma. In a conclusion the court admitted “may seem a harsh result” the ruling left intact Oklahoma’s prohibition against recognizing out-of-state marriages.

Such an odd result raises several questions. For some of those questions, the most practical answer for same-sex couples married in other states might be to get married again – in Oklahoma.

Couples whose out-of-state marriage does not qualify for tax benefits in Oklahoma, for example, might get better results if their marriage is renewed in an Oklahoma court. Oddly, that might be the simplest approach for same-sex divorce in Oklahoma. Gay couples married out of state now residing in Oklahoma who want to get a divorce might soon find it easier to first get an Oklahoma marriage license.

Gay Marriage Legal In Oklahoma? Soon, Probably

The 10th Circuit decision does not take effect immediately. The court stayed its decision pending any appeals that might be filed.

The couples who filed the case could potentially appeal the court’s refusal to strike the ban on recognizing out-of-state marriages. Likewise, defendants could appeal the decision that requires court clerks to issue marriage licenses to same-sex couples.

Ongoing appeals could further complicate Oklahoma same-sex divorce cases. If the court’s decision were final and no appeals were pending, almost any state court could conceivably accept reasoning that out-of-state same-sex marriages must be recognized in Oklahoma. Here is why.

The 10th Circuit declined to invalidate Oklahoma’s ban on recognition of same-sex marriages from other states because couples who filed the case never asked the Tulsa County Court Clerk to recognize an out-of-state marriage. Although the couples offered several arguments urging the court to strike the ban on recognizing out-of-state gay marriages, the court adhered to procedures that only allow action when someone with standing files a case against a defendant who has harmed them.

This part of the ruling, based on procedural rules, was complex. Even though one of the couples had been married in California, they had not tried to get married in Oklahoma. The court said any injury they might allege from Oklahoma’s shunning out-of-state same-sex marriages could not be traced to the Tulsa County Court Clerk who was named as defendant.

The couples had earlier named the Oklahoma governor and attorney general as defendants, but the appellate panel in 2009 upheld a U.S. District Court’s decision to dismiss action against executive officials because the “recognition of marriages is within the administration of the judiciary.”

As the new 10th Circuit decision admits, the couples came back to court with an understanding that the earlier decision was:

“…a directive instructing them to name (the Tulsa County Court Clerk) as the lone defendant for all of their grievances. It was reasonable of the Barton couple to follow that perceived directive, and it is regrettable that their compliance has resulted in a lack of standing, especially after nearly a decade of complex, time-consuming, and no doubt emotional litigation. “

The court noted that the lawsuit might have been more persuasive if the couple had named an Oklahoma tax official as defendant. Never mind that the same court had earlier told them “recognition of marriages is within the administration of the judiciary.”

The couple argued on appeal that the ban on recognizing out-of-state gay marriages cannot be severed from the law banning gay marriage in Oklahoma. Both prohibitions must fall together, they argued. The court determined, however, that they had not raised those “severability” arguments in lower court briefings, and thus could not introduce them on appeal.

Out-of-State Gay Marriage Ban Untested

The 10th Circuit did not conclude that Oklahoma’s 2004 prohibition on recognizing out-of-state same-sex marriages passes constitutional muster. It only concluded that nobody had legitimately brought the question into court.

In subsequent cases, any lower court might resolve the strange conflict whereby Oklahoma must grant same-sex-marriage licenses but is not required to recognize same-sex couples’ out-of-state marriage licenses. Anyone with standing might argue that same-sex couples married in other states must be afforded equal protection under the law.

Full-faith-and-credit arguments might also come into play. In the United States, all 50 states have agreed to afford full faith and credit to the courts of other states – and in some cases to tribal courts.

After potential appeals in Bishop v. Smith are settled, any same-sex couple who is denied access to Oklahoma courts in a divorce proceeding would likely have a sound basis for an appeal to the Oklahoma Court of Civil Appeals, the Oklahoma Supreme Court and, if necessary, to a federal court.

Attorneys for Oklahoma Same Sex Divorce

Divorce can be a difficult process for any family. Same-sex couples living in Oklahoma who want to end their marriage must generally rely on state courts to adjudicate their divorce. For those individuals, a complicated, emerging legal context can make the process even more difficult. One way to make the process less difficult is to retain a knowledgeable Oklahoma family lawyer who is ready to navigate the complex process.

Wirth Law Office has previously advised same-sex couples married in other states about same-sex divorce questions in Oklahoma. Our family lawyers stand ready to challenge legal barriers that refuse same-sex couples access to Oklahoma courts – including Oklahoma’s remaining ban on recognition of out-of-state same-sex marriage.

Free Consultation: Tulsa Divorce Lawyer

If you are in a same-sex marriage and need advice or representation in a matter involving divorce, spousal support, child support, child custody, paternity, adoption or other family law matters in Oklahoma, contact the Tulsa family law attorney at Wirth Law Office.

For a free consultation with a Tulsa family attorney, call (918) 879-1681, or send your question using the form at the top of this page.

Read the full decision in Bishop v. Smith here: (pdf)

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