[1] On July 18, 2014, a panel of the Tenth Circuit upheld Kern's ruling overturning Oklahoma's same-sex marriage ban.
The amendment added a ban on same-sex marriage and any "legal incidents thereof be conferred upon unmarried couples or groups",[4][5][6] such as civil unions or domestic partnerships, to the Constitution of Oklahoma.
On November 3, 2004, the day after Oklahoma voters overwhelmingly approved a constitutional amendment banning same-sex marriage, two lesbian couples, Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips,[8] filed a challenge in federal district court in Tulsa.
Smith was represented by Tulsa County's district attorney and the Alliance Defending Freedom, a non-profit Christian advocacy organization.
The couples sought inter alia a declaration that the Oklahoma Amendment was unconstitutional under the Due Process, Equal Protection, Full Faith and Credit and Privileges and Immunities clauses of the U.S. Constitution.
[9] On July 20, 2006, Judge Terence C. Kern issued a partial victory to the plaintiffs, holding that they could litigate various challenges to the state constitutional amendment; however, he reduced the scope of the case by eliminating certain legal theories from consideration.
Citing Smelt v. Orange County, a California case, he ruled that the couples lacked standing to challenge DOMA as neither had entered into a legal marriage in the United States.
Kern ruled that Bishop and Baldwin lacked standing to challenge the portion of DOMA that excluded same-sex marriage from being recognized by the federal government because they were not married.
However, he ruled that Barton and Philips did have standing, as the couple had married in Canada and entered into a civil union in Vermont, and so determined that it would be premature to dismiss their claims.
Kern found that both couples had standing to challenge the state amendment prohibiting same-sex marriage, since both were interested in being legally married in Oklahoma.
On June 26, 2013, the U.S. Supreme Court ruled in United States v. Windsor that Section 3 of DOMA violated the Due Process Clause of the Fifth Amendment.
[9] On January 14, 2014, Judge Kern granted summary judgement to the plaintiffs and ruled in the case, now Bishop v. United States, that Oklahoma's ban on same-sex marriage was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
He noted that the couple "ha[d] played an important role in the overall legal process leading to invalidation of Section 3 of DOMA" and praised them and their attorneys "for their foresight, courage, and perseverance".
[11] Kern agreed with Bishop and Baldwin that the Oklahoma constitutional amendment banning same-sex marriage violated the Equal Protection Clause.
He applied rational basis review and found the state's justifications, including encouraging responsible procreation, optimal child-rearing and the impact on the institution of marriage, "inadequate".
Kern ruled that the constitutional amendment was "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit".
Governor Mary Fallin responded to the decision by stating, "I support the right of Oklahoma's voters to govern themselves on this and other policy matters.
"[13] Attorney General Scott Pruitt called the decision "troubling" and said that the Supreme Court would have to decide the constitutionality of state bans on same-sex marriage.
[18][19] Jeffrey L. Fisher, a law professor at Stanford University and an experienced Supreme Court litigator, joined as lead counsel for those challenging Oklahoma's denial of marriage rights to same-sex couples in August.
Governor Fallin sharply criticized the Supreme Court's action, but announced that the state would comply and begin licensing and recognizing same-sex marriages.
In May 2004, a lesbian couple from Owasso, Dawn McKinley and Kathy Reynolds, were issued a marriage license by a tribal court deputy clerk.
[31] On August 3, 2005, the Judicial Appeals Tribunal in Tahlequah ruled that Hembree lacked standing to sue and could not show that he suffered any harm from the legal recognition of the marriage.
The Osage Nation held a referendum on March 20, 2017 on whether to legalize same-sex marriage on tribal land, and the measure passed with a 52% majority.
[50][51] While there are no records of same-sex marriages as understood from a Western perspective being performed in Native American cultures, there is evidence for identities and behaviours that may be placed on the LGBT spectrum.
Many of these cultures recognized two-spirit individuals who were born male but wore women's clothing and performed everyday household work and artistic handiwork which were regarded as belonging to the feminine sphere.
[53] Arapaho culture has traditionally recognized two-spirit people who wore women's clothing and were regarded as "esteemed persons with special spiritual powers".
Among the late Baxoje, Jiwére-Ñút'achi elders, the mihxóge were still regarded with awe for their spiritual connection and consecrated role in harmony with the Holy Grandfather spirits.
Sauk two-spirit individuals, known as nîshwi manetôwaki,[62] also characterized their gender role change as "an unfortunate destiny which they cannot avoid, being supposed to be impelled to this course by a vision from the female spirit that resides in the Moon."
[56] The Potawatomi mnedokwé (pronounced [mnədoˈkʷɛ], plural: mnedokwék)[63] "sought out female company" from an early age, possessed the "work skills" of both sexes, "talked like women", and were regarded as "esteemed persons with special spiritual powers".