In a landmark ruling, a federal judge in Oklahoma strikes down the Oklahoma Constitution’s ban on same-sex marriage. Judge Terence C. Kern found on Tuesday that denying same-sex couples the right to a marriage license to be an “arbitrary, irrational exclusion. . . from a governmental benefit” which denies them equal protection under the law. The Tulsa County Court Clerk defended the constitutional ban on several grounds, but the court found no rational basis for any of the clerk’s claims.
In 2004, Oklahoma citizens voted in favor of an amendment to the Oklahoma Constitution banning same-sex marriage. Article 2, Section 35 provides in part:
“A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
The constitutional amendment passed by a three-to-one margin.
Plaintiffs Mary Bishop and Sharon Baldwin sought a marriage license from Tulsa County Court Clerk Sally Howe Smith. Smith refused them a marriage license based upon their status as a same-sex couple. Bishop and Baldwin challenged Part A of Article 2, Section 35, of the Oklahoma Constitution as violating their equal protection and substantive due process rights guaranteed by the Fourteenth Amendment to the U.S. Constitution.
The Court used a “rational basis” test for determining whether Bishop and Baldwin were denied equal protection under the law. The Court noted that “classifications against homosexuals and/or classifications based on a person’s sexual orientation are not subject to any form of heightened review in the Tenth Circuit.” The Court then analyzed the various bases suggested by defendant Smith for discrimination against same-sex couples, and found none of them rationally related to a legitimate government purpose.
Promoting Morality – Promoting or upholding morality was one justification offered by the state to the public before passage of the constitutional amendment. The law requires that state officials demonstrate goals other than promoting one view of morality to justify discrimination against certain citizens. Citing several Supreme Court cases striking down laws criminalizing homosexual conduct or discriminating against homosexuals, the Court noted, “moral disapproval, without any other asserted state interest, is not a “sufficient rationale . . . to justify a law that discriminates among groups of persons.” (Opinion, p. 55)
Encouraging responsible procreation and child-rearing – The Court accepted that Oklahoma has a legitimate interest in promoting procreation within marriage, to reduce out-of-wedlock births and the resulting economic burden on the state. The state failed to show that discriminating against same-sex couples somehow furthers that goal. Just because discrimination is historical does not make it constitutional when challenged at a given moment. The court found no rational basis for discriminating against same-sex couples when opposite sex couples who cannot or choose not to have children can marry, stating,
“marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.” (Opinion, p. 58)
“Same-sex couples are being subjected to a ‘naturally procreative’ requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it.” (Opinion, p. 61)
Steering naturally procreative relationships into stable unions – Defendant Smith argued that opposite-sex, married biological parents are the “ideal” environment for child-rearing, and the state has a legitimate state interest in promoting the ideal environment. Without challenging the state’s premise, the Court determined that denying same-sex couples the benefit of marriage does nothing to promote that interest. Opposite-sex couples who procreate and stay married can still have unstable, high-conflict, violent family relationships. The Court found no evidence that denying same-sex couples the right to marry will help keep opposite-sex marriages intact and healthy, noting that “excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.” (Opinion, p. 63)
Negative impact on marriage – Defendant Smith argued the State has an interest in avoiding redefinition of marriage that would necessarily change the institution and could have serious unintended consequences. The Court dismissed this argument as “impermissibly tied” to the moral disapproval of same-sex couples as a class.
“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. . . ‘Preserving the traditional institution of marriage,’ which is the gist of Smith’s final asserted justification, ‘is just a kinder way of describing the State’s moral disapproval of same-sex couples.’” (Opinion, p. 65)
Judge Kern concluded that Oklahoma’s ban on same-sex marriage violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. He noted the clear “rhetorical shift” taking place at the federal level.
“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.” (Opinion, p. 66)
Rather than buck the shift, Judge Kern followed it.
Noting the U. S. Supreme Court stay of a similar decision out of Utah, the Court stayed the effect of its Order pending review by the 10th Circuit Court of Appeals. There will be no rush to the courthouse for same-sex marriage licenses in Oklahoma as occurred in Utah.
You will find a link to the opinion here. Please share your thoughts on this case, and its relation to other same-sex marriage cases, in the comments section below.
by David A. Tracy
By David A. Tracy
Washington this week becomes the 7th state to authorize marriages between persons of the same gender. The law does not take effect right away. Opponents of the law have until June 6th to gather enough petition signatures to force a statewide vote on the law in November. Assuming the petition drive falls short, or the law survives a vote of the people, this is the list of U.S. states allowing same-sex marriage licenses (and the year they were first authorized).
The following states allow “civil unions” for same-sex couples, with all the rights of opposite-sex married couples.
The following states allow “domestic partnerships” for same-sex couples, but don’t grant all the rights enjoyed by opposite-sex married couples.
District of Columbia
The following states have statutes passed by their legislatures that define marriage as between a man and a woman
The following states have constitutional amendments that define marriage as between a man and a woman:
In 2004, Oklahoma voters approved an amendment to the Oklahoma Constitution banning same-sex marriages. Oklahoma Constitution, Article 2, Sec. 35, states:
“A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other 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.”
Since 1996, the federal government has denied benefits to same-sex couples under the Federal Defense of Marriage Act. Same-sex couples married under their state’s law cannot file joint federal income tax returns and take deductions available in traditional marriages. There are no spousal Social Security benefits. They can’t take advantage of the Family and Medical Leave law that protects one’s job and health insurance during emergency absences.
UPDATE: On February 22, 2012, a federal district judge in California ruled the Defense of Marriage Act (DOMA) unconstitutional. The court held that DOMA violated the equal protection rights of a lesbian married in California who could not get health insurance benefits for her spouse through her employer. Read the opinion here.
Gregoire signs gay marriage into law, Seattle Times, Feb. 13, 2012 http://bit.ly/wOUi3B
Gay marriage in the US: seven ways states differ on the issue, Christian Science Monitor, Feb. 9, 2012 http://bit.ly/zE9FGo
Status of Marriage Equality Worldwide, Lambda Legal http://bit.ly/AecGPU
Oklahoma Constitution, Article 2, Sec. 35 http://bit.ly/xBp28r
Federal Defense of Marriage Act
Senate panel OKs repeal of Defense of Marriage Act, USA Today, Nov. 10, 2011 http://usat.ly/upt5bV
Same-Sex Marriage, Suffolk University Law School http://bit.ly/gVJ6BR