Oklahoma Same Sex Divorce

October 5, 2014 4:23 pm

As of the date of this post, Oklahoma same sex marriage is illegal.  The issueOklahoma Same Sex Marriage | Tulsa Divorce Attorneys has been in the public eye for some time, and a brief history of how we got here is in order.

In 1975, Oklahoma passed Okla. Stat., tit. 43, Sec. 3 which defined marriage as being between two members of the opposite sex.  In 1996, the legislature passed Sec. 3.1 which prohibited Oklahoma from recognizing same-sex marriages entered into in other states.  As the issue came to the forefront, in April 2004, the Oklahoma Legislature approved a constitutional ban on gay marriage. Further, this ban was achieved with a overwhelming majorities.  Finally, Oklahoma voters followed suit on November 2, 2004 by approving Oklahoma Question 711. Again this vote was a majority of 76% in favor of a constitutional ban on Oklahoma same sex marriage.

Oklahoma Same Sex Marriage Ban Challenges:

The day after the law makers voted, two lesbian couples filed a lawsuit in federal court challenging the new law. The first a same sex couple had attempted to obtain a marriage license at the Tulsa Courthouse and was denied. The second couple were previously married in Canada and in California and were attempting to get a divorce.

Nevertheless, on January 14, 2014, the U.S. District Court ruled for the plaintiffs. The court stating that the Oklahoma same sex marriage ban on gay marriage was an unconstitutional. The Court reasoned that the ban was a violation of the Equal Protection Clause of the Fourteenth Amendment.  However, the Court stayed enforcement of the judgment pending appeal to the Tenth Circuit.

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Tulsa County District Court Clerk Smith, the named defendant in the lawsuit who had denied the plaintiffs’ request for a marriage license, appealed the lower court decision to the Tenth Circuit Court of Appeals on January 16, 2014.  In a 2-1 decision on July 18, 2014, the Appeals Court upheld the District Court ruling however, holding that the Oklahoma ban violated Fourteenth Amendment Due Process and Equal Protection.  The Court also stayed enforcement of its ruling pending the outcome of an appeal to the U.S. Supreme Court.  On August 6, County Clerk Smith asked the U.S. Supreme Court to hear the appeal and “return to the People this critical issue of marriage policy.”

Supreme Court and Gay Marriage:

Currently, the U.S. Supreme Court is considering gay marriage petitions from five states — Oklahoma, Indiana, Utah, Virginia, and Wisconsin.  In 2013, the Court struck down the federal Defense of Marriage Act (DoMA), but did not rule on a state’s ability to ban the practice of gay marriage.  On September 29, the Justices will conference together to decide whether to accept these appeals from the five states mentioned.  Still pending is a Sixth Circuit case out of Ohio which may produce a different result than the other Circuits, which have all struck down gay marriage bans.  If the Sixth Circuit fails to rule before the September 29 conference, or rules to strike down the gay marriage ban as the other Circuits have done, then the U.S. Supreme Court may decide not to hear the pending cases this term, preferring instead to await divergent decisions from other lower courts.

Not all judges though have agreed with the Circuit Courts that have invalidated these laws. A federal court in Louisiana recently voted to uphold a state ban on gay marriage, and a state court in Tennessee similarly upheld a law refusing to recognize gay marriages conducted in other states.

Contact a Divorce Attorney About Gay Marriage:

If you are a resident of Oklahoma and would like legal advice regarding any aspects of marital or family law we can help. Feel free to call today for a consultation. Our Tulsa divorce attorneys help with divorce, which includes gay divorce, child custody and all other family law issues in Oklahoma. With the advent of same sex marriage comes the issues of same sex divorce. Call today for a Free consultation