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‘It’s a fairness issue’


A 9-year legal struggle involving LGBT rights might finally come to a conclusion

Greg Horton September 18th, 2013

Gay Phillips and Sue Barton have been a couple for 29 years. For the past nine, they’ve been fighting the state of Oklahoma to recognize their marriage. They joined a federal lawsuit filed by Tulsans Mary Bishop and Sharon Baldwin in 2004 after state voters passed a same-sex marriage ban.

Photo courtesy Tulsa World / Michael Wyke / file

Wheels in the suit are again grinding as state and federal laws continue to collide. Recently, all four, with their attorney, Don Holladay, filed paperwork with U.S. District Judge Terence Kern requesting he rule in their favor. They also said the Oklahoma law violates their constitutional right to equality.

“We believe it’s a fairness issue,” Bishop said.

Phillips and Barton have taken every legal opportunity to see their relationship recognized and afforded the same legal status as heterosexual marriage. They had a civil union ceremony in Vermont in 2001 because it was the only legal status available at the time.

In 2005, they “went to Canada as soon as same-sex marriage was legalized there, too,” Phillips said.

In 2008, the couple were married in California just three days before California voters passed Proposition 8, a state constitutional amendment stating “only marriage between a man and a woman is valid or recognized in California.”

The case wound through near-countless filings through the years, both in Oklahoma and the United States Department of Justice. At one point, a governor and attorney general also were named and then released from the suit.

After 9 years, a decision?
In June, with millions of other gay men and lesbians around the country, they waited for the U.S. Supreme Court’s decisions on Prop 8.

They also hoped for the dissolution of the 1996 Defense of Marriage Act (DOMA), the law that blocked federal recognition of same-sex marriage.

However, the United States Supreme Court delivered a mixed decision.

Section 3 of DOMA was overturned [per the United States v. Windsor decision], but section 2 was left intact. The section 2 ruling gives legally married gay and lesbian couples the same federal benefits as straight peers, including health insurance and pensions, social security,

joint tax filing and more. The section 2 ruling does not require states to recognize gay marriages lawfully performed in other states.

But Prop 8 was referred back to California courts. The net result was that Phillips and Barton and Baldwin and Bishop are still fighting for their right to have their relationships legally recognized.

Phillips is a sociology professor at Tulsa Community College, and Barton operates a consulting firm that works with nonprofits serving high-risk youth. Bishop and Baldwin work for the Tulsa World newspaper.

Said Bishop, “We want to hear Judge Kern say, ‘You won,’ in regard to section 3 of DOMA, and because the decision didn’t affect section 2, we would like for Kern to exercise his power to say the state law violates federal law.”

Conflicting laws
The problems with allowing states and the federal government to have separate laws defining marriage are quickly obvious in Oklahoma, said Holladay, who has represented the couples since 2009.

For example, a recent Internal Revenue Service decision allows same-sex couples to file taxes as married filing jointly, thus giving gay men and lesbians rights to federal tax benefits, even in states where same-sex marriage is banned.

However, Oklahoma state law requires taxpayers to file with the same marital status on state and federal returns, and also prohibits couples like the plaintiffs from accessing those federal benefits. So, same-sex couples are breaking state law while abiding by federal law, Holladay said.

In other words, the conflict created by DOMA’s section 2 and state bans against the Windsor decision nullifies the ability of plaintiffs to access the federal benefits to which they have a legal right, Holladay said.

“They [courts] will eventually have to answer the question of how states can exist side by side with different laws that affect a married couple who lives in one state and works in another, as well as an assortment of other issues,” Holladay said.

Holladay said there is no deadline upon which the judge has to make his decision, but he said both plaintiffs and defendants are hoping for an expedited judgment.

Even so, the fight won’t be over. “No matter what the judge decides, one side is going to appeal,” Holladay said. “This will move to the 10th Circuit, and very possibly, if it’s expedited quickly enough, Oklahoma could be the test case that moves to the [U.S.] Supreme Court for a final decision on state bans.”

What’s next
Observers of the U.S. Supreme Court and legal scholars agree that the next round of the same-sex marriage debate will be a decision by the Supreme Court on the constitutionality of state bans.

The conservative, Christian defense ministry Alliance Defending Freedom, the defendant’s attorney, asserted the sovereignty of states in deciding marriage laws. In a brief filed in response to the plaintiffs’ contention that the Windsor decision laid the groundwork for U.S. courts to assess the constitutionality of state bans, a response reads, in part:

“Windsor does not forbid States like Oklahoma from preserving marriage as the union of one man and one woman.

“On the contrary, Windsor’s repeated references to state sovereignty over the definition of marriage bolster the defense of Oklahoma’s Marriage Amendment.”

 
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