                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                  June 5, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                 Clerk of Court
                                    TENTH CIRCUIT


 MARY BISHOP; SHARON
 BALDWIN; SUSAN G. BARTON;
 GAYE E. PHILLIPS, individuals,

          Plaintiffs - Appellees,
                                                      No. 06-5188
 v.                                                    N.D. Okla.
                                               (D.C. No. 04-CV-848-TCK)
 OKLAHOMA, STATE OF, ex rel.,
 DREW EDMONDSON in his official
 capacity as Attorney General and
 BRAD HENRY in his official capacity
 as Governor,

          Defendants - Appellants.

 UNITED STATES OF AMERICA, ex
 rel., ERIC HOLDER, in his official
 capacity as Attorney General and
 BARACK H. OBAMA in his official
 capacity as President,

          Defendant


                             ORDER AND JUDGMENT *


Before O’BRIEN, McKAY and HOLMES, Circuit Judges.


      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A).
Citation to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is
discouraged, except when related to law of the case, issue preclusion or claim
preclusion. Any citation to an order and judgment must be accompanied by an
appropriate parenthetical notation -- (unpublished). 10th Cir. R. 32.1(A).
      After examining the briefs and appellate record, this panel determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case was

therefore ordered submitted without oral argument.

      In this case, we must determine whether appellants, the Governor and

Attorney General of the State of Oklahoma (together, the Oklahoma officials), are

sufficiently connected to the enforcement of the Oklahoma Constitution’s

marriage provisions to establish plaintiffs’ Article III standing and, if so, whether

the Ex parte Young exception to the State’s Eleventh Amendment immunity

applies. Ex Parte Young, 209 U.S. 123 (1908). The district court denied the

Oklahoma officials’ motion to dismiss, concluding the plaintiffs, two lesbian

couples, had standing and the suit could go forward under Ex parte Young. See

Bishop v. Oklahoma ex rel. Edmondson, 447 F. Supp.2d 1239 (N.D. Okla. 2006).

Exercising jurisdiction under the collateral order exception to 28 U.S.C. § 1291, 2

we reverse.

                                I. BACKGROUND

      This lawsuit was brought by two lesbian couples (together, the Couples)




      2
         The collateral order exception to 28 U.S.C. § 1291 “provides for
interlocutory appeal of orders denying motions to dismiss brought on the basis of
Eleventh Amendment immunity as the basis for appellate jurisdiction.” Opala v.
Watt, 454 F.3d 1154, 1157 (10th Cir. 2006).

                                          -2-
challenging the federal Defense of Marriage Act (DOMA) 3 and Oklahoma’s

amendment to its Constitution (Oklahoma Amendment) prohibiting same sex

couples from being married in Oklahoma and the recognition of out-of-state same

sex marriages. Because the federal law is not at issue on appeal, we address only


      3
         The Couples’ complaint challenged the substantive provision of § 2,
codified at 28 U.S.C. § 1738C, which provides:

      No State, territory, or possession of the United States, or Indian tribe,
      shall be required to give effect to any public act, record, or judicial
      proceeding of any other State, territory, possession, or tribe
      respecting a relationship between persons of the same sex that is
      treated as a marriage under the laws of such other State, territory,
      possession, or tribe, or a right or claim arising from such
      relationship.

The Barton Couple also contest the substantive provision of § 3, codified at 1
U.S.C. § 7, which provides:

      In determining the meaning of any Act of Congress, or of any ruling,
      regulation, or interpretation of the various administrative bureaus and
      agencies of the United States, the word “marriage” means only a
      legal union between one man and one woman as husband and wife,
      and the word “spouse” refers only to a person of the opposite sex
      who is a husband or a wife.

       The district court concluded neither couple had standing to bring suit based
on § 2 of the DOMA – the Bishop Couple because they had not entered into a
civil union in any State, and the Barton Couple because Vermont does not treat its
civil union as a “marriage” and because the Full Faith and Credit Clause applies
only to marriages in the United States. The court, however, found the Barton
Couple had standing for purposes of their § 3 claim at the motion to dismiss stage
and their Equal Protection and Due Process claims survived, at least until the
summary judgment stage. Accordingly, the district court dismissed all the federal
claims except the Barton Couple’s Equal Protection and Due Process claims
challenging the substantive portion of § 3 of the DOMA. The federal defendants
did not appeal this ruling.

                                         -3-
the Oklahoma Amendment.

A. The Oklahoma Amendment

      On November 2, 2004, Oklahoma voters approved legislative referendum

No. 334, which amended the Oklahoma Constitution to add, in pertinent part:



      Marriage defined–-Construction of law and Constitution–-
      Recognition of out-of-state marriages--Penalty

      A. Marriage in this state shall consist only of the union of one man
      and one woman . . . . [No] provision of law shall be construed to
      require that marital status or the legal incidents thereof be conferred
      upon unmarried couples or groups.

      B. A marriage between persons of the same gender performed in
      another state shall not be recognized as valid and binding in this state
      as of the date of the marriage.

      C. Any person knowingly issuing a marriage license in violation of
      this section shall be guilty of a misdemeanor.

See Okla. Const. art. 2, § 35.

B. Procedural Background

      Mary Bishop and Sharon Baldwin (the Bishop couple) exchanged vows in a

church ceremony in March 2002 and now wish to be civilly married in Oklahoma.

Susan Barton and Gay Phillips (the Barton couple) were joined in a civil union in

Vermont and legally married in Vancouver, British Columbia, Canada. They wish

to have either or both ceremonies recognized in Oklahoma. To achieve their

goals, the Couples sought, inter alia, a declaration that the Oklahoma Amendment

is unconstitutional, specifically, it violates the Due Process Clause, the Equal

                                         -4-
Protection Clause, the Full Faith and Credit Clause and the Privileges and

Immunities Clause.

      In response to the Couples’ complaint, the Oklahoma officials moved to

dismiss, claiming venue was improper in the Northern District of Oklahoma, the

Couples lacked standing and the suit was barred by the Eleventh Amendment.

The district court determined the Couples lacked standing to challenge subsection

B of the Amendment because neither couple were “married” in another state as

required by subsection B. As to subsection A, the court concluded the Couples

had standing because they wished to be married in Oklahoma but subsection A

precluded them from being married; there is a causal connection between that

injury and the Amendment; and a declaration that the Amendment is

unconstitutional will redress their claims. The court further determined venue

was proper and the Ex parte Young exception to sovereign immunity applied.

      On appeal, the Oklahoma officials challenge only the ruling regarding the

Ex parte Young doctrine. Unfortunately, the unique procedural stance of this

appeal has deprived this Court of a full briefing of the issues. While the standing

issue was briefed in the district court, it has not been raised on appeal. In

addition, the Couples chose not to take advantage of several opportunities to file a

compliant brief with this Court and the Oklahoma officials decided to forego oral




                                          -5-
argument. 4 Nonetheless, jurisdictional considerations, while intertwined in the

Young doctrine, remain our first order of business and we have authority to

examine Article III standing sua sponte. See Alvarado v. KOB-TV, LLC., 493

F.3d 1210, 1214 n.1 (10th Cir. 2007). Because the plaintiffs failed to name a

defendant having a causal connection to their alleged injury that is redressable by

a favorable court decision, we conclude the Couples do not have standing. See Id.

                                 II. DISCUSSION

      “Before we address the merits of [a] case, . . . we must first determine

whether the federal district court, and likewise this court, has subject-matter

jurisdiction over the dispute.” In re Aramark Leisure Serv’s, 523 F.3d 1169, 1173

(10th Cir. 2008). “Article III standing requires that a plaintiff allege an

injury-in-fact that has a causal connection to the defendant and is redressable by a

favorable court decision.” Opala, 454 F.3d at 1157.

      Bronson v. Swensen is a mirror-image of the case before us. 500 F.3d 1099

(10th Cir. 2007). There, we considered the constitutional challenge to Utah’s

polygamy statutes naming Sherrie Swensen, the Clerk of Salt Lake County, Utah,


      4
         On January 5, 2007, the Couples were advised that their brief (due
December 29, 2006) was late and unless a brief was filed within ten calendar
days, we would apply Fed. R. App. P. 31(c), denying them an opportunity to
participate in oral argument. On January 20, they filed a late and deficient brief.
On January 23, we gave the Couples another opportunity, until February 6, to file
a compliant brief. On February 9, we provided them with a final opportunity to
file a compliant brief by February 19. On March 2, 2007, having received no
response from the Couples, we deemed the appeal fully briefed.

                                         -6-
as the only defendant. The plaintiffs, a married couple and the husband’s fiancé,

claimed, inter alia, Utah’s criminal prohibition of polygamy violated the federal

constitution. We concluded the plaintiffs lacked standing because, among other

things, they could not show causation or redress ability in a suit against the

County Clerk. As to causation, they had not shown “a substantial likelihood that

the defendant’s conduct caused plaintiff’s injury in fact” because the County

Clerk had no authority to initiate a criminal prosecution against them. Id. at 1110

(quotations omitted). Similarly, because an injunction against the Clerk would

not shield them from the claimed injury, prosecution for bigamy, the plaintiffs

failed to establish redressability. Id. at 1111-12 (“Enjoining this defendant from

enforcing [Utah’s criminal prohibition of polygamy] would be a meaningless

gesture.”). Thus, without mention of sovereign immunity or Ex parte Young, we

determined the plaintiffs lacked Article III standing. 5

      5
         On appeal, the Oklahoma officials argue only the improper application of
the Ex parte Young exception. While we need not reach this issue, we note in Ex
parte Young, the Supreme Court said: “In making an officer of the state a party
defendant in a suit to enjoin the enforcement of an act alleged to be
unconstitutional, it is plain that such officer must have some connection with the
enforcement of the act, or else it is merely making him a party as a representative
of the state, and thereby attempting to make the state a party.” 209 U.S. at 157;
see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007) (“[T]he state
officer against whom a suit is brought must have some connection with the
enforcement of the [unlawful] act.”) (quotations omitted).The “necessary
connection” language in Young has caused some confusion. As one court has
described the inquiry, the necessary connection between the state defendant and
the subject of the suit is “the common denominator of two separate inquiries:
first, whether there is the requisite causal connection between [the defendant’s]
responsibilities and any injury that the plaintiffs might suffer, such that relief

                                          -7-
       Here, the Oklahoma officials’ generalized duty to enforce state law, alone,

is insufficient to subject them to a suit challenging a constitutional amendment

they have no specific duty to enforce. See Women’s Emergency Network v. Bush,

323 F.3d 937, 949-50 (11th Cir. 2003) (“Where the enforcement of a statute is the

responsibility of parties other than the governor (the cabinet in this case), the

governor’s general executive power is insufficient to confer jurisdiction.”); see

also Waste Mgm’t. Holdings, Inc. v. Gilmore, 252 F.3d 316, 330-31 (4th Cir.

2001) (concluding governor’s general duty to enforce the laws of Virginia

insufficient when he lacks a specific duty to enforce the challenged statutes);

Okpalobi v. Foster, 244 F.3d 405, 422-25 (5th Cir. 2001) (en banc) (constitutional

challenge to state tort statute against Governor and Attorney General not viable

under the Ex Parte Young doctrine because no enforcement connection existed

between Governor or Attorney General and the statute in question); 1st Westco

Corp. v. Sch. Dist. of Phila., 6 F.3d 108, 112-13, 116 (3d Cir. 1993) (“If we were

to allow [plaintiffs] to join . . . [the State officials] in this lawsuit based on their

general obligation to enforce the laws . . ., we would quickly approach the nadir

of the slippery slope; each state’s high policy officials would be subject to defend


against the defendants would provide redress [Article III standing]; and second,
whether our jurisdiction over the defendants is proper under the doctrine of Ex
parte Young . . . . which requires some connection between a named state officer
and enforcement of a challenged state law.” Planned Parenthood of Idaho, Inc. v.
Wasden, 376 F.3d 908, 919 (9th Cir. 2004) (citations and quotations omitted)
(emphasis added). In other words, the Young doctrine does not relieve a plaintiff
of the obligation to name a proper defendant.

                                            -8-
every suit challenging the constitutionality of any state statute, no matter how

attenuated his or her connection to it.”).

      The Couples claim they desire to be married but are prevented from doing

so, or they are married but the marriage is not recognized in Oklahoma. These

claims are simply not connected to the duties of the Attorney General or the

Governor. Marriage licenses are issued, fees collected, and the licenses recorded

by the district court clerks. See Okla. Stat. Ann. tit. 28, § 31; Okla. Stat. Ann. tit.

43, § 5. “[A] district court clerk is ‘judicial personnel’ and is an arm of the court

whose duties are ministerial, except for those discretionary duties provided by

statute. In the performance of [a] clerk’s ministerial functions, the court clerk is

subject to the control of the Supreme Court and the supervisory control that it has

passed down to the Administrative District Judge in the clerk’s administrative

district.” Spreight v. Presley, 203 P.3d 173, 177 (Okla. 2008). Because

recognition of marriages is within the administration of the judiciary, the

executive branch of Oklahoma’s government has no authority to issue a marriage

license or record a marriage. Moreover, even if the Attorney General planned to

enforce the misdemeanor penalty (a claim not made here), that enforcement would

not be aimed toward the Couples as the penalty only applies to the issuer of a

marriage license to a same-sex couple. Thus, the alleged injury to the Couples

could not be caused by any action of the Oklahoma officials, nor would an




                                             -9-
injunction (tellingly, not requested here) 6 against them give the Couples the legal

status they seek.

      Because the Couples lack Article III standing, we REVERSE the district

court’s failure to dismiss the claims against the Oklahoma officials and

REMAND the case for entry of an order dismissing these claims for lack of

subject matter jurisdiction.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




      6
        Here, the Couples’ complaint failed to identify any action that would be
taken by the Governor or the Attorney General which would affect them. They
did not request the court order the Oklahoma officials to act or refrain from
acting. Instead, the sole request for relief was that the Oklahoma Amendment be
declared unconstitutional.

                                         -10-
