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Same-sex marriage has been legal inOklahoma since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, following theU.S. Supreme Court's refusal to reviewBishop v. Smith, a case that had found the ban unconstitutional, theTenth Circuit Court of Appeals ordered Oklahoma to recognize same-sex marriages. On January 14, 2014, JudgeTerence C. Kern of theU.S. District Court for the Northern District of Oklahoma declared the state's statutory and constitutional same-sex marriage bans unconstitutional. The case,Bishop v. Smith (formerlyBishop v. Oklahoma andBishop v. United States), wasstayed pending appeal.[1] On July 18, 2014, a panel of the Tenth Circuit upheld Kern's ruling overturning Oklahoma's same-sex marriage ban. However, the panel put its ruling on hold pending disposition of a petition forcertiorari by the U.S. Supreme Court. On October 6, 2014, the U.S. Supreme Court rejected the request for review, leaving the Tenth Circuit Court's ruling in place. State officials responded by implementing the Tenth Circuit's ruling, recognizing same-sex marriage in the state.
In 1975, theOklahoma Legislature passed its firststatute definingmarriage as between "one man and one woman".[2] In 1996, the Oklahoma Legislature passed another piece of legislation, defining marriage as between "one man and one woman" and prohibiting same-sex marriages performed out-of-state from being recognized in Oklahoma.[3]
In April 2004, theOklahoma Senate, by a vote of 38 to 7, and theOklahoma House of Representatives, by a vote of 92 to 4, approved aconstitutional amendment banning same-sex marriage. On November 2, 2004, Oklahoma voters approved the ban asQuestion 711. 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 ascivil unions ordomestic partnerships, to theConstitution of Oklahoma.
In April 2013, the Oklahoma House of Representatives passedHCR 1009, a non-binding resolution reaffirming marriage as "between one man and one woman", and urging the U.S. Supreme Court to uphold Section 3 of theDefense of Marriage Act (DOMA) and the right of states to regulate marriage. It passed 84–0, with 71Republicans and 13Democrats voting in favor. 16 Democrats walked out of the chamber in protest rather than vote. The Oklahoma Senate approved the resolution later that same month.[7] The U.S. Supreme Court struck down Section 3 of DOMA inUnited States v. Windsor on June 26, 2013.
On November 3, 2004, the day after Oklahoma voters overwhelmingly approved a constitutional amendment banning same-sex marriage, twolesbian couples, Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips,[8] filed a challenge infederal district court inTulsa. The first couple had been denied amarriage license by the Tulsa County Clerk, Sally Howe Smith, while the latter couple had formed aVermont civil union in 2001 andmarried in British Columbia in 2005 while deliberations were pending. They were represented by Holladay and Chilton, anOklahoma City law firm. Smith was represented byTulsa County's district attorney and theAlliance Defending Freedom, a non-profit Christian advocacy organization. The case wasBishop v. Oklahoma. The defendants were theAttorney General of Oklahoma,Drew Edmondson, GovernorBrad Henry, theU.S. Attorney General,John Ashcroft, and PresidentGeorge W. Bush. The couples soughtinter alia a declaration that the Oklahoma Amendment was unconstitutional under theDue Process,Equal Protection,Full Faith and Credit andPrivileges and Immunities clauses of theU.S. Constitution. They also challenged the federalDefense of Marriage Act (DOMA), passed in 1996. The state sought to dismiss, arguing that the couples lackedstanding and their suit was barred by theEleventh Amendment.[9]
On July 20, 2006, JudgeTerence 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. CitingSmelt v. Orange County, aCalifornia case, he ruled that the couples lacked standing to challenge DOMA as neither had entered into a legal marriage in theUnited States. Kern ruled that Bishop and Baldwin lacked standing to challenge the portion of DOMA that excluded same-sex marriage from being recognized by thefederal government because they were not married. However, he ruled that Barton and Philips did have standing, as the couple had married inCanada and entered into a civil union inVermont, 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. State officialsappealed to theTenth Circuit Court of Appeals. The Tenth Circuit issued an unpublished decision on June 5, 2009, reversing the district court's failure to dismiss the claims against the Oklahoma officials, and dismissed the plaintiffs' claims for lack ofsubject-matter jurisdiction. The remaining defendants, Smith and the United States, filed a motion to dismiss on October 13, 2009.[9]
On February 25, 2011, prior to the court issuing a decision on the motions to dismiss, the United States notified the court that it would cease defending the constitutionality of Section 3 of DOMA. TheBipartisan Legal Advisory Group of theU.S. House of Representatives sought tointervene to defend DOMA. On June 26, 2013, theU.S. Supreme Court ruled inUnited States v. Windsor that Section 3 of DOMA violated the Due Process Clause of theFifth Amendment. That same day, the court also ruled inHollingsworth v. Perry, allowing same-sex marriages to resume inCalifornia.[9]
On January 14, 2014, Judge Kern grantedsummary judgement to the plaintiffs and ruled in the case, nowBishop v. United States, that Oklahoma's ban on same-sex marriage was unconstitutional under the Equal Protection Clause of theFourteenth Amendment. He issued an order permanently enjoining enforcement of the state's same-sex marriage ban, butstayed enforcement of his judgement pending appeal, citing the U.S. Supreme Court's issuance of a stay in a nearly identical case inUtah,Kitchen v. Herbert.[10] Kern wrote that the U.S. Supreme Court's dismissal of a similar case,Baker v. Nelson, in 1972 was not bindingprecedent because "there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question". He found that two of the plaintiffs, Barton and Phillips, lacked standing to challenge Section 2 of DOMA because the federal officials they named as defendants had no responsibility for its enforcement and the record did not show that Oklahoma officials had failed to recognize Barton and Phillips' marriage in other jurisdictions. 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 appliedrational 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".[12] Of the Supreme Court's jurisprudence on the issue ofdiscrimination based onsexual orientation and equal protection, the decision said:[11][12] "The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning withRomer in 1996 and culminating inWindsor in 2013, but this Court knows a rhetorical shift when it sees one."
GovernorMary Fallin responded to the decision by stating, "I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government."[13] Attorney GeneralScott Pruitt called the decision "troubling" and said that the Supreme Court would have to decide the constitutionality of state bans on same-sex marriage.[14]
Smith filed a notice of appeal with theTenth Circuit Court of Appeals on January 16,[15] and asked the court to expedite the appeal process and hear the case along withKitchen v. Herbert.[16] The same 3-judge panel of the Tenth Circuit that heardoral arguments inKitchen on April 10 heard oral arguments inBishop v. Smith on April 17.[17] On July 18, the court upheld the district court's ruling in a 2–1 decision, concluding that Oklahoma's same-sex marriage ban violated the U.S. Constitution, though it immediately stayed its ruling pending disposition of a petition forcertiorari by the U.S. Supreme Court.[18][19]Jeffrey L. Fisher, a law professor atStanford 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.[20] The Supreme Court rejected Oklahoma's appeal on October 6, 2014, and the Tenth Circuit's ruling subsequently went into effect, thus legalizing same-sex marriage in Oklahoma.
Governor Fallin sharply criticized the Supreme Court's action, but announced that the state would comply and begin licensing and recognizing same-sex marriages.[21][22] RepresentativeSally Kern, who had in the past stated thathomosexuality was "a greater threat to national security thanterrorism", decried the court decision, "Oklahoma, or any state for that matter, should not have unelected judges who are not accountable to the people deciding what the laws will be." Scott Hamilton, executive director of a local LGBT group, said "We will be treated the same way as any other couple. And, the property that I have or that he [Hamilton's spouse] has when one of us passes will not be the same rigorous process that an inheritance might. To say that it's a big relief would be an understatement".[23] The Oklahoma County Court Clerk, Tim Rhodes, said in the early afternoon of October 6 that his office was "bustling with activity". Mary Bishop and Sharon Baldwin were the first same-sex couples to receive a marriage license in Oklahoma, doing so at the Tulsa County Courthouse on Monday, October 6 at 1:20 p.m.[24] Kristen and Heather Dickey were the first couple to receive a license inCleveland County on October 6.[23]
In May 2025, SenatorDusty Deevers and RepresentativeJim Olsen introduced a resolution to the Oklahoma Legislature urging the U.S. Supreme Court to overturnObergefell.[25][26] The measure is likely to encounter significant civil opposition if passed, as the majority of Oklahoma residents support the legal recognition of same-sex marriage according to polling.[27] "For the Oklahoma legislature to choose at this moment to say that they don't value the sanctity of marriage between queer constituents is definitely concerning," said Nicole McAfee, the executive director ofFreedom Oklahoma.[28]
Same-sex marriage is legal on the reservations of theCheyenne and Arapaho Tribes, theCherokee Nation, theChickasaw Nation, theChoctaw Nation, and theOsage Nation. Same-sex marriage is explicitly banned in theCitizen Potawatomi Nation,[29] theMuscogee (Creek) Nation,[30] and theSeminole Nation.[31] The Cheyenne and Arapaho Tribes were the firstNative American tribe in Oklahoma to legalize same-sex marriage. In October 2013, Jason Pickel and Darren Black Bear were issued a marriage license at the tribal courthouse inConcho. While this was the first public same-sex marriage performed on the reservation, tribal officials confirmed that two other same-sex couples had married prior to this. According to tribal law, parties who wish to marry must do so on sovereign land and one party must be a member of the tribes, but the Tribal Code does not specify thegender of the couple.[32][33]
The Cherokee Nation legalized same-sex marriage on December 9, 2016. In May 2004, a lesbian couple fromOwasso, Dawn McKinley and Kathy Reynolds, were issued a marriage license by a tribal court deputy clerk.[34] The tribe quickly placed amoratorium on additional same-sex marriages. On June 14, the Tribal Council passed a law banning same-sex marriage, and the Tribal Council Attorney, Todd Hembree, filed a petition on June 16 in court to nullify the marriage license issued to McKinley and Reynolds.[35] On August 3, 2005, the Judicial Appeals Tribunal inTahlequah ruled that Hembree lacked standing to sue and could not show that he suffered any harm from the legal recognition of the marriage.[36] In December 2005, the tribunal rejected a second lawsuit challenging the validity of the marriage. In January 2006, the Cherokee Court Administrator, Lisa Fields, responsible for recording marriage licenses, filed a third lawsuit challenging the validity of the marriage. The petition remained unanswered.[37] On December 9, 2016, the Attorney General of the Cherokee Nation, Todd Hembree, who had originally challenged the marriage of McKinley and Reynolds back in 2004, issued an opinion that the same-sex marriage ban was unconstitutional under the Cherokee Nation Constitution, legalizing same-sex marriage in the tribe.Chad Smith, who had served asprincipal chief of the Cherokee in 2004, welcomed Hembree's opinion, saying, "It as adhering to past Cherokee law. But our constitution incorporates the provisions of the US Constitution, and the Supreme Court (of the United States) has since made its ruling", referencing the U.S. Supreme Court's decision inObergefell v. Hodges, which legalized same-sex marriage nationwide in the United States.[38][39] As a result, McKinley and Reynolds were the first married same-sex couple in the Cherokee Nation.
The Osage Nation held areferendum on March 20, 2017 on whether to legalize same-sex marriage on tribal land, and the measure passed with a 52% majority.[40]
The Chickasaw Code was amended on April 18, 2022 to allow marriage between any two individuals and to repeal language barring recognition of marriages between persons of the same gender. The definition of marriage now reads: "'Marriage' means a personal relation arising out of a civil contract between two individuals to which the consent of parties legally competent of contracting and of entering into it is necessary, and the Marriage relation shall be entered into, maintained or abrogated as provided by law."[41] On May 23, 2023, the Constitutional Court of the Choctaw Nation ruled that same-sex couples have a constitutional right to marry and allowed a couple, Kennedy and Chelcie Barker, to adopt their 10-year-old daughter.[42]ChiefGary Batton welcomed the ruling and said, "Based on this decision, we will review our Codes to see what changes need to be made. We offer our love and support to the family involved in this case."[43] A bill to legalize same-sex marriage in the Muscogee Nation was rejected on February 15, 2024.[44]
Some tribal codes usegender-neutral language with regard to whom may marry, including theComanche Nation,[a] and theKaw Nation;[b] however, it is unclear if same-sex marriage is explicitly allowed on their reservations. Some nations recognize same-sex marriages validly performed outside their reservations, including in the state of Oklahoma, notably theAbsentee Shawnee Tribe of Indians,[48] the Comanche Nation,[46] theIowa Tribe of Oklahoma,[49] theKickapoo Tribe of Oklahoma,[50] thePawnee Nation of Oklahoma,[51] and theSac and Fox Nation.[52] In addition, theBureau of Indian Affairs operates courts established throughout the U.S. under theCode of Federal Regulations (CFR), and "until such time as a particular Indian tribe establishes their own tribal court, the Court of Indian Offenses will act as a tribe's judicial system".[53] As of 2023, same-sex marriages can thus be performed in these federal CFR courts for members of theApache Tribe of Oklahoma, theCaddo Nation of Oklahoma, theFort Sill Apache Tribe, theKiowa Indian Tribe of Oklahoma, theOtoe–Missouria Tribe of Indians, theWichita and Affiliated Tribes, theEastern Shawnee Tribe of Oklahoma, theModoc Nation, theOttawa Tribe of Oklahoma, thePeoria Tribe of Indians of Oklahoma, and theSeneca–Cayuga Nation.[54][55]
While there are no records of same-sex marriages as understood from aWestern perspective being performed inNative American cultures, there is evidence for identities and behaviours that may be placed on the LGBT spectrum. Many of these cultures recognizedtwo-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. This two-spirit status allowed for marriages between two biological males or two biological females to be performed in some of these tribes. InCheyenne culture, two-spirit people are known ashe'émáné'e (pronounced[hɛ̀ʔɛ́mánɛ́ʔɛ̥]),[56] and filled an important role in Cheyenne society as athird gender. They were revered as warriors, directed the traditional scalp dances, were believed to be able to talk tocoyotes, and were known for their skills inmatchmaking, particularly for young, unmarried men who sought to impress young women. Thehe'émáné'e often served as a second wife in a married man'spolygynous household.[57]Arapaho culture has traditionally recognized two-spirit people who wore women's clothing and were regarded as "esteemed persons with special spiritual powers". They are known ashoxúx (pronounced[hɔxʊ́x], plural:hoxúxuno)[58] in theArapaho language. Manyhoxúxuno marriedcisgender men without indication of polygyny.
ThePonca people of thePonca Tribe of Indians of Oklahoma refer to two-spirit individuals asmíⁿquga (pronounced[mĩꜜxʼuga]).[59] They were believed to have been "instructed by theMoon", and would sometimes take men as partners.[60] Among theOsage, two-spirit people, known as𐓨𐓣𐓸𐓪𐓤𐓟 (mixóke,pronounced[miɣókə]),[61] "talked like women", wore women's clothing, but continued to fulfill an essentially masculine gender role,[62] and they married women. They are known asmįxóke (pronounced[mĩxóke]) in theQuapaw language,[63]miⁿxóge (pronounced[mĩxógɛ]) in theKansa language,[64] andmihxóge (pronounced[mihxoꜜgɛ]) in theChiwere language. "Themihxóge were respectfully treated as a special class of religious leaders. Among the lateBaxoje,Jiwére-Ñút'achi elders, themihxóge were still regarded with awe for their spiritual connection and consecrated role in harmony with the Holy Grandfather spirits."[65] Among all theseSiouan-speaking peoples, two-spirit people had "visions of female deities or the Moon that served to endorse their identity".
Sauk two-spirit individuals, known asnîshwi manetôwaki,[66] 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." They were sacred and honored annually with a dance in which only those men who had hadsexual intercourse with anîshwi manetôwaki were allowed to participate.[60] ThePotawatomimnedokwé (pronounced[mnədoˈkʷɛ], plural:mnedokwék)[67] "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".[68] TheLenape, who were displaced to present-dayCaddo County in the 1860s, refer to two-spirit individuals asnisha manëtuwàk (pronounced[ˈniʃamanəˈtuwʌk]),[60][69] theShawnee asnishwie monnitowali,[70] and theMiami people, today living on the reservation of theMiami Tribe of Oklahoma, aswaapinkweeta. ThePawnee people call two-spirit individualskúsaat (pronounced[kʊ́sɑt]),[60][71] and theModoc people, exiled to modern-dayOttawa County after theModoc War, call themtʼwiniˑqʼ (pronounced[tʼwɪˈniːqʼ]). Thetʼwiniˑqʼ wore women's clothing and "behaved as women". They married cisgender men, usually took the role of ashaman and were credited with great spirit power.[72] TheSeneca people refer to two-spirit individuals ashënöjaʼjáʼgöh, and theCayuga people refer to them asdeyodǫhétra:ge:.[73] In theMescalero-Chiricahua language, two-spirit people are known asndé ʼisdzán (pronounced[nᵈɛ́ʔìstsán]), and in thePlains Apache language asdèènáá čʼèèčéé (pronounced[tɛ̀ːnáːtʃʼɛ̀ːtʃɛ́ː]).[60]
Literature about two-spirit individuals among theCherokee,Chickasaw andChoctaw is more limited. It is likely that these societies did have a designation like two-spirit, but a lot of traditional knowledge was lost in the aftermath of colonization and theTrail of Tears. Among the Cherokee,ᎠᏎᎽ ᎤᏓᏅᏙ (asegi udando,[74]pronounced[àse̋ːgĩ́ùdàntṍ]) refers to people who either fall outside of men's and women's roles or who occupy both men's and women's roles.[75] In theChoctaw language, two-spirit people are known asohoyo holba (pronounced[ohoːjóhólba]),[76] though the term is relatively modern. Choctaw authorLeAnne Howe stated in a 2022 book, "Often they weren't just involved with other men but had many levels of relationships. They were also involved with our community in very special ways. They could be healers. They're people that protected our children because they embodied more than one thing. And what is part of Choctawan aesthetics is that we revere things that are unusual. Different. When you look at the spirit that's connected in [ohoyo holba], and when they put on that dress in olden times, they are saying 'the embodiment of many'." Some female-bodied two-spirit individuals use the termhattak holba (pronounced[hat.ták hólba]).[77] In theChickasaw language, two-spirit individuals are calledhattak hoobak.[78] Among theAlabama people, they are known asaatinaani tayyihahókkìita,[79] and inMuscogee aspoyvfekcv hokkolvn (pronounced[po.jəfɪ́ktʃə hok.kôːlɪn]).[80] These modern terms usually tend to mean a gay, lesbian, or transgender person, though some two-spirit people do identify with them. In theYuchi language, two-spirit people are referred to aswãne nõwẽ,[81] and inNatchez astama·l tsuna, meaning "chief of the women".[82] It is unknown if two-spirit individuals were historically allowed to marry among these peoples.
There is little to no historical resources on whether two-spirit individuals existed among theCaddo,Kiowa,Wichita, andWyandot peoples. A dictionary published by theTonkawa Tribe of Indians of Oklahoma and compiled from words gathered in the 19th and 20th centuries has the entryyɑtalʼa meaning "to engage in homosexual relations", suggesting that two-spirit people or same-sex relationships may have existed in Tonkawa society.[83]
Data from the2000 U.S. census showed that 5,763 same-sex couples were living in Oklahoma. By 2005, this had increased to 8,159 couples, likely attributed to same-sex couples' growing willingness to disclose their partnerships on government surveys. Same-sex couples lived in allcounties of the state, exceptCimarron, and constituted 0.7% of coupled households and 0.4% of all households in the state. Most couples lived inOklahoma,Tulsa andCleveland counties, but the counties with the highest percentage of same-sex couples wereRoger Mills (0.70% of all county households) andPushmataha (0.65%). Same-sex partners in Oklahoma were on average younger than opposite-sex partners, and more likely to be employed. However, the average and median household incomes of same-sex couples were lower than different-sex couples, and same-sex couples were also far less likely to own a home than opposite-sex partners. 26% of same-sex couples in Oklahoma were raising children under the age of 18, with an estimated 4,075 children living in households headed by same-sex couples in 2005.[84]
The2020 U.S. census showed that there were 6,294 married same-sex couple households (2,504 male couples and 3,790 female couples) and 5,327 unmarried same-sex couple households in Oklahoma.[85][86]
| Poll source | Dates administered | Sample size | Margin of error | Support | Opposition | Do not know / refused |
|---|---|---|---|---|---|---|
| Public Religion Research Institute | March 9 – December 7, 2023 | 208 adults | ? | 55% | 41% | 4% |
| Public Religion Research Institute | March 11 – December 14, 2022 | ? | ? | 54% | 44% | 2% |
| Public Religion Research Institute | March 8 – November 9, 2021 | ? | ? | 64% | 35% | 1% |
| Public Religion Research Institute | January 7 – December 20, 2020 | 529 adults | ? | 66% | 29% | 5% |
| Public Religion Research Institute | April 5 – December 23, 2017 | 794 adults | ? | 53% | 36% | 11% |
| Public Religion Research Institute | May 18, 2016 – January 10, 2017 | 1,154 adults | ? | 52% | 40% | 8% |
| Public Religion Research Institute | April 29, 2015 – January 7, 2016 | 1,038 adults | ? | 44% | 48% | 8% |
| Public Religion Research Institute | April 2, 2014 – January 4, 2015 | 737 adults | ? | 47% | 48% | 5% |
| SoonerPoll | October 25–29, 2014 | 404 likely voters | ± 4.9% | 29% | 62% | 9% |
| New York Times/CBS News/YouGov | September 20 – October 1, 2014 | 1,244 likely voters | ± 3.3% | 37% | 51% | 12% |
| SoonerPoll | June 4–12, 2014 | 393 likely voters | ± 4.9% | 23% | 66% | 11% |
Person of the same gender will not be allowed to marry or divorce.
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