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ADF: US Supreme Court should uphold Oklahomans’ freedom to affirm marriage

ADF attorneys file petition with nation’s high court on behalf of county clerk
Related Case:
“Just Who do We Think We Are?”

WASHINGTON – Alliance Defending Freedom attorneys representing an Oklahoma county clerk asked the U.S. Supreme Court Wednesday to uphold the freedom of Oklahomans to affirm marriage as the union of one man and one woman in their laws.

Last month, in a 2-1 ruling, the U.S. Court of Appeals for the 10th Circuit upheld a federal district judge’s decision that struck down part of an Oklahoma constitutional amendment that affirms marriage as the union of a man and a woman. Both decisions are on hold until all appeals have been exhausted.

“The people of every state should retain the freedom to preserve marriage if they so choose,” said ADF Senior Counsel Byron Babione. “Courts shouldn’t decide the legal destiny of marriage in any state, let alone in every state.”

“The Supreme Court has already declared that marriage law is the business of the states,” added ADF Senior Legal Counsel Jim Campbell. “The high court has also recognized that the people in those states should be free to decide even the most controversial social issues within the democratic system that we inherited from our Founders.”

A February CBS News/New York Times poll found that 64 percent of American adults believe that states should have the freedom to determine marriage policy for themselves.

ADF attorneys represent Tulsa County Clerk Sally Howe Smith. In 2009, a same-sex couple allegedly asked Smith’s office to issue a marriage license to them. Smith, however, cannot legally issue a marriage license to two people of the same sex, so neither she nor her office could honor that request.

According to the petition that ADF attorneys filed with the Supreme Court in Smith v. Bishop, “Some now seek to… redefin[e] marriage from a gendered (man-woman) institution to a genderless (any two persons) institution. Others, however, want to preserve marriage as a gendered institution because they have reasonably determined that redefining marriage would obscure its still-vital purposes and thereby undermine its social utility…. The Tenth Circuit’s decision in this case, if allowed to stand, would end this robust political debate. That court…broadly held that States may no longer define marriage as a man-woman union…[and] ‘place[d] the matter [of marriage’s definition] outside the arena of public debate and legislative action….’ This Court should grant review and return to the People this critical issue of marriage policy.”

The petition also points out that, despite erroneously removing the authority over marriage from the people, the 10th Circuit rightly passed over “flawed animus arguments” that wrongly accuse Americans of supporting marriage laws like Oklahoma’s primarily because of irrational bigotry.

In his concurrence, Judge Jerome A. Holmes explained that Oklahoma’s marriage amendment, like all other man-woman marriage laws, “is not plagued by impermissible animus” because it “formalized a definition [of marriage] that every State had employed for almost all of American history, and it did so in a province the States had always dominated.”

Holmes cited agreement with the language of New York’s highest court, which wrote, “The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”

  • Snapshot: Smith v. Bishop 
  • Pronunciation guide: Babione (BABB’-ee-ohn)


Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.


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Jim Campbell
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Jim Campbell serves as chief legal counsel with Alliance Defending Freedom, where he leads the U.S. Legal Advocacy team.