Oral History: OK marriage case plaintiffs recount 9 years of working toward victory
Mar 19, 2014 at 10:00 am
(Updated 4/15) For nearly a decade, Mary Bishop and Sharon Baldwin have been waiting for their day in court: The day that their 2004 lawsuit seeking the freedom to marry in their home state of Oklahoma would be heard by a federal judge. The day that they would be able to stand up publicly for same-sex couples across the Sooner State and make the case for why marriage matters. The day they would have the chance to argue that no couple should be denied the dignity and respect that only marriage can provide.
On January 14 of this year, Mary and Sharon celebrated an enormous victory in their case (Bishop v. Smith, formerly Bishop v. United States) when U.S. District Court Judge Terence Kern struck down anti-marriage laws in Oklahoma. It's a victory that has reenergized activists in the state and across the country, fueling momentum for marriage as Mary and Sharon prepare alongside their attorneys to argue against an appeal of the judge's ruling. Their case will be heard by the 10th Circuit Court of Appeals this Thursday, on April 17, and as they get ready, they're watching as all around them, Americans are discussing the issue and increasingly coming to one conclusion: No one should be denied the freedom to marry the person they love.
January 14 was a huge day for Mary and Sharon, the lead plaintiffs in the case - and the ruling was one more signal that America is ready for marriage for all.
Now, as all eyes shift to the 10th Circuit Court of Appeals in Denver, where a decision striking down the marriage ban in Utah is also being appealed - Freedom to Marry caught up with Mary and Sharon to reflect on the past ten years, the decision day, and their hopes for the future. Read their oral history of their landmark case, and don't miss two audio clips about their life together:
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MARY BISHOP: I think our decision to file this case probably goes back to the summer of 2004, when Gavin Newsom, the mayor of San Francisco, authorized his clerks to begin issuing marriage licenses to same-sex couples. We felt like we wanted to get married there, but there were so many people who wanted to do it that you had to call in advance and schedule an appointment with the clerk's office. So we had our date set, and before the calendar rolled around to that date, the courts out there stopped the marriages, and we didn't get to take part.
[Those marriage licenses, ultimately, were declared invalid by the California Supreme Court, although four years later, in May 2008, the same court ruled in favor of the freedom to marry for all couples]
After the San Francisco plans fell through, we thought - you know what? It's just as well - we're Oklahomans, and we want to get married in our home state. We should have the same rights as people in other parts of the country, and we want our state to allow us to marry.
The lawyer who had drawn up our estate documents - documents we had gone through the effort to pursue so we could protect each other as much as possible, even though we couldn't be legally married - called us one day and explained that an attorney friend of his was working to bring a marriage equality lawsuit in Oklahoma and was interested in whether we wanted to be plaintiffs.
We immediately said yes. We didn't even have to think about it - we were willing to do that because this was what's right.
SHARON BALDWIN: There was another couple who went through this process with us of potentially joining the case. They very much wanted to be plaintiffs - but one of them worked for a state institution, and she realized at that point that she could be fired for doing this. So she thought, well, maybe we better not.
And in the time since we filed it without them, her partner, who was a good bit older than she was, has died. It just struck me the other day when I was reflecting that these two people never got to marry - because this case has taken so long, and because this process has been so lengthy.
TAKING A STAND
MARY: While we were talking with the lawyers and getting ready to file this case, the state of Oklahoma put a state constitutional amendment on the ballot to ban same-sex couples from marrying. We knew that the vote in November 2004 was coming up, and we told our lawyers, 'Get it ready: We want to be able to file it the day after this election happens."
[Listen to an audio clip of Mary and Sharon explaining more about the weeks leading up to the November 2004 election, where anti-gay forces in Oklahoma - and eleven other states - managed to push through draconian constitutional amendments prohibiting same-sex couples from marrying or attaining any form of family status.]
SHARON: We knew how the vote was going to go - public sentiment at the time was nowhere near favorable. It was kind of a forgone conclusion that the vote was going to go against LGBT people - it was just a matter of how high the percentage would be. But we knew it was going to go against us.
MARY: The very next day, we filed our lawsuit: We knew that this was not the way that Americans should be treated. We were indignant that people were allowed to vote on our rights. Sharon and I believe wholeheartedly that the rights of the minority should never be subjected to the votes of the majority. It was really frustrating that that happened - but we always had hope in the law that this would be overcome, and we were insistent that we do something about it.
SHARON: Because we're journalists, we were in the newsroom the night of that election, and any time someone's passing a vote like that, you know it's just a devastating vote, and you're obviously going to be depressed about it. But I remember feeling in my heart thinking, 'Just wait until tomorrow - just wait,' knowing that we were going to fire the first shot across the bow. People thought that they could just walk over us, but they had no idea what was coming the next day. It was a very, very empowering feeling.
[Mary and Sharon filed their initial complaint on November 3, 2004, challenging both the Oklahoma ban on same-sex couples from marrying and the so-called Defense of Marriage Act, which denied any federal respect for legal marriages of same-sex couples. Over the next few years, it moved slowly through the courts, set back by legal rulings concerning the plaintiffs' standing or process in filing this case.]
MARY: Judge Terence Kern had this case the entire time, and he made some initial rulings about four or five years into it.
SHARON: The initial rulings were that Mary and I did not have standing to sue over DOMA because DOMA is about recognizing marriages and we did not have a marriage to be recognized. So while the judge dropped us out of that part of the challenge, he left in our co-plaintiffs, Sue Barton and Gay Phillips, because they have valid marriages in California and Canada.
MARY: The ruling about standing was appealed to the 10th Circuit, which sent the case back down to Judge Kern.
SHARON: The 10th Circuit agreed with Kern that we did not have standing to challenge DOMA. They also said that we had sued the wrong people in the Oklahoma challenge. We had sued the Governor and the Attorney General in the initial challenge, the top enforcers of the law. The 10th Circuit said that really, we had to sue the county clerk court, the person who issues marriage licenses. We thought that was unusual that the 10th Circuit told us who we should sue.
MARY: At that point, we felt like the case was on life support - it was barely hanging on. About the same time, our attorney had been having some problems with her health and needed to drop the case. So after the ruling came back from the 10th Circuit, Don Holladay contacted our attorney and said that he would really like to take on a marriage case, asking our attorney if she needed any help. Our attorney at the time directed Don to us, explaining that she had to drop the case. So we met with Don and fell in love with him, and the case then fell to him. He took what the 10th Circuit had said and filed a new complaint - an amended complaint - which essentially restarted the case.
That was in 2009. At that point, the case just really came back to life. He lit a fire under the case, and it's gone fast and furious since then.
STALLED IN THE COURTS
MARY: We had the bench trial on the schedule for May of 2012, and then the opposing counsel asked that the scheduling order be suspended - they didn't want to prepare for a trial with motions for summary judgment still pending since the judge could have, at any time, ruled for either side. The judge did suspend the scheduling order, and nothing happened for a long time after that. I think he was waiting for the Supreme Court rulings in the Windsor and the Prop 8 cases to see what direction they were going to go.
[On June 26, 2013, the United States Supreme Court ruled in favor of plaintiff Edith Windsor in Windsor v. United States, which effectively struck down the central part of DOMA. That summer, couples across the country began filing lawsuits seeking the freedom to marry, citing the Windsor ruling as evidence that denying same-sex couples the freedom to marry is unconstitutional. Those cases - now more than 50 in 28 states - joined Mary's and Sharon's, which still sat, undecided.]
MARY: After the Windsor and Prop 8 rulings were issued last summer, we figured that he was going to have to rule at any time. And then he didn't - and he didn't - and he didn't. We started getting some publicity for the case because it had been going on nine years without any resolution, and so toward the end of the year, we kept saying, 'All I want for Christmas is a ruling.'
And then as it turns out, he ruled three weeks after Christmas. So I got my Christmas present - just a little bit late.
SHARON: There was a lot of talk and a lot of speculation toward the last few months of 2013 swirling around about when this was going to come down. And so we started really putting pressure on Judge Kern. We filed briefs after the Windsor ruling, basically drawing the judge's attention to an update from a recent authority. We did a couple of more briefs in the fall of last year when different states would enact same-sex marriage laws. We even did it with Utah - in the wake of Utah, we filed something saying, 'Hey judge, just want to let you know, other people are still getting rulings, and here we sit.'
MARY: We pointed out that we had the longest running active case - that other states were moving along, and here we sat.
We're all Americans, no matter where we live, and we all have to depend on the federal courts when our states refuse to treat us as equals. The federal courts are allowed to step in and say, "No, these are all Americans, and all residents of Oklahoma have the same civil rights as any other American."
SHARON: Interestingly enough, the one thing that we all agreed on - us and our defendants - is that we just wanted a ruling. That was the first time that even the opposition had said, 'Hey, let's move on here.' I think the frustration was really palpable - so his ruling, besides being a ruling that we like and giving us something to work with, you can't imagine what an invigorating feeling it's been for Oklahomans to be able to say, 'OK, now we know what he was thinking, where he was going.' It really did a lot to change people's attitudes and energize people here in Oklahoma.
A VICTORY 9 YEARS IN THE MAKING
MARY: We knew this ruling could have come down any day, but we had no idea when it would be. So we were going to work that day, and when I got into the office, our city editor said that we should go check PACER, the website where federal court decisions are filed. We ran over to the federal court reporter's desk, and he had pulled up the ruling.
I was over his shoulder, and I kept saying, 'What does it say? What does it say?' and our reporter goes, 'Hmm, it's 68 pages, let's see.' And he scrolls down slowly while Sharon and I are like, 'Get to the part where he says what his ruling is!' and we saw it and were elated.
SHARON: It was really funny to watch because Mary is just about to hyperventilate, and David is saying, 'Well, let's see. I'm going to have to read this and see what it says.'
MARY: So we screamed, and people in the newsroom were aware that something was going on, and then tears started flowing as people started congratulating us and hugging us.
As soon as we left work, we went straight down to the Dennis R. Neill Equality Center, which is where Oklahomans for Equality is based, and the media were already there ready to interview us. Later that night, the Equality Center hosted a big celebration: They had a wedding cake and champagne, and we had speeches and it was just a really great celebration.
MARY: We're at the 10th Circuit now - we have our oral arguments scheduled for April 17, and then we will be waiting for the 10th Circuit to make its ruling in our case and the Utah case, and we really believe that we're going to win at this level. And we believe that Oklahoma will appeal the case, and we just hope that the Supreme Court will decide that it's time to take a marriage case and that within the next year after that, we will have a ruling that will apply to the entire United States.
That's really our goal: This is not just for us - not just for Sharon and Mary. Not just for Oklahoma. It's for all of us in the United States. That's been our goal since the beginning.
[Sharon talks about why a nationwide ruling is so important in this audio clip, where she discusses the dangers and pitfalls of the current chaotic landscape of marriage laws across the states. LISTEN:]
SHARON: After all, winning marriage state by state just isn't sustainable - and it doesn't make much sense.
On the one hand, any time a state got it right on marriage, we rejoiced: That's a wonderful thing. As each state came on board, we rejoiced with that state, but what we noticed in all of these cases is that it was just a state-by-state ruling, just for that state.
But here's the problem with that: You shouldn't have to get out a book to consult your rights when you cross a state border. You can be legally married in Massachusetts, and you can even have a child together where you're both legally that child's parents. But if you come to Oklahoma to visit that child's grandparents, you have no rights. And if that child is in an accident in Oklahoma and you go to a hospital, the non-biological parent has no rights, because Oklahoma does not recognize your rights out of Massachusetts.
This patchwork quilt of marriage laws across the United States hasn't really been good for anybody. Even if you live in a marriage state, you still don't have your full rights when you cross state lines into states where marriage equality is not the law of the land.
For nine years, it has been our goal to change the country - to change the nation. And we're finally waking up to the realization that we're about there. After nine years of stagnant waiting, we're about there.