Judge says ban approved by Oklahoma voters in 2004 is unconstitutional, but he puts a hold on his ruling while the issue is appealed.
WASHINGTON — A federal judge in Tulsa struck down Oklahoma’s ban on same-sex marriage as unconstitutional on Tuesday but prevented his ruling from going into effect while the issue makes its way through appeals.
Senior U.S. District Judge Terrence C. Kern, ruling more than nine years after Oklahoma voters overwhelmingly approved a statewide question to prohibit same-sex marriage, said the ban discriminated against same-sex couples for no rational reason.
After dissecting the arguments supporters voiced to justify the ban, Kern said that “moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification.”
Moreover, he said, protecting the sanctity of marriage wasn’t a valid reason for the ban, given Oklahoma’s high divorce rate of opposite-sex couples, and encouraging procreation wasn’t logical either since opposite-sex couples aren’t required to say they’ll produce offspring in order to get a marriage license.
“Equal protection is at the very heart of our legal system and central to our consent to be governed,” Kern said in his 68-page decision.
“It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights.”
Don Holladay, the Norman attorney who took over the case after it lost steam several years ago, said Tuesday, “It’s a good victory for marriage equality. It’s a good victory for couples who have lived together for years in committed relationships.”
A federal judge in Utah last month struck down that state’s ban on gay marriage — passed in 2004, the same year as Oklahoma’s — and the 10th U.S. Circuit Court of Appeals has agreed to hear an appeal from Utah on a fast track.
Oklahoma is in the same federal circuit as Utah, and Holladay said he hopes the two cases are combined. The U.S. Supreme Court last week put gay marriages on hold in Utah while the appeals court hears the case, but U.S. Attorney General Eric Holder said the marriages that already had occurred would be recognized by the federal government.
Tulsa County Court Clerk Sally Howe Smith was the primary defendant in the challenge to the state ban because she declined to issue a marriage license to a same-sex couple. She was represented in the case by an Arizona group called Alliance Defending Freedom.
Byron Babione, an attorney for the group, said Tuesday that Kern’s decision ignores the “time-tested and rational definition of marriage — affirmed by 76 percent of Oklahoma voters — and replaces it with the recently conceived notion that marriage is little more than special government recognition for close relationships.”
“A court should not impose this novel view of marriage on the people of Oklahoma. We will review the decision with our client, the Tulsa County clerk, and consider her next steps.”
Oklahoma Attorney General Scott Pruitt called the decision “troubling” and said Tuesday that the issue “most likely will end up at the U.S. Supreme Court and the outcome will dictate whether Oklahoma’s constitutional provision will be upheld.”
Oklahoma Gov. Mary Fallin said, “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.”
Ryan Kiesel, executive director of the ACLU of Oklahoma, said, “We’re thrilled that the court has struck down this discriminatory law.”
‘So much emotion’
The lawsuit ruled on Tuesday was filed by two couples the day after the Oklahoma constitutional amendment was approved.
Mary Bishop and Sharon Baldwin, of Broken Arrow, who are both editors at the Tulsa World newspaper, challenged the state ban prohibiting same-sex marriages.
“There’s so much emotion; I’m kind of crying right now,” Bishop told The Associated Press on Tuesday. “It’s overwhelming to think that we finally won.
“Sharon and I want to get married here in Oklahoma. We’ve been together for more than 17 years — it’s time. This is something that when I was young, I thought I’d never see in my lifetime.”
Susan Barton and Gay Phillips, of Tulsa, who were married first in Canada and then in California, challenged the state law and the federal law that was struck down last year by the U.S. Supreme Court.
In his decision, Kern dismissed the complaints regarding the federal law, and said Barton and Gay did not have standing to sue the Tulsa County court clerk over the state’s prohibition on recognizing their out-of-state marriage because the clerk wasn’t the right person to sue over that issue.
Kern’s decision marked the third time a federal judge had struck down a state ban; Utah and California were the other states.
Kern, a 1994 appointee of former President Bill Clinton, said in his decision that civil marriage in Oklahoma “is not an institution with ‘moral’ requirements” for opposite-sex couples.
The Tulsa County court clerk, he said, “does not ask a couple if they intend to be faithful to one another, if they intend to procreate, or if they would someday consider divorce, thereby potentially leaving their child to be raised in a single-parent home.
“With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements.
“Exclusion of just one class of citizens from receiving a marriage license based upon the perceived ‘threat’ they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.”
Source: The Oklahoman, “Federal judge strikes down Oklahoma ban on same-sex marriage,” By Chris Casteel Modified: January 14, 2014 at 9:31 pm • Published: January 14, 2014