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Tuesday, June 25, 2024 | Back issues
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Gay Marriage Ban in Oklahoma Swatted Down

(CN) - Commending the challengers for their "foresight, courage, and perseverance," a federal judge struck down a constitutional amendment banning same-sex marriage in Oklahoma.

U.S. District Judge Terence Kern concluded the ban violated equal protection rights under the 14th Amendment.

The ban is "so attenuated" from the state's moral and child-bearing justifications that it "cannot survive rational-basis review," he added.

The 68-page ruling goes on to call the ban an "arbitrary, irrational exclusion of just one class of Oklahoma citizens."

"Equal protection is at the very heart of our legal system and central to our consent to be governed," Kern wrote. "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."

Two lesbian couples - including Tulsa World journalists Mary Bishop and Sharon Baldwin - sued federal and state officials in 2004 after the constitutional amendments were approved by voters and enacted.

After the Oklahoma governor and attorney general failed to have te case dismissed in 2006, the 10th Circuit later ruled that the plaintiffs lacked standing to sue them. The plaintiffs then filed an amended complaint leaving both elected officials out, replacing them with Tulsa County Court Clerk Sally Smith who refused to issue the the plaintiffs marriage licenses.

"The Bishop couple has been in a loving, committed relationships for many years," Kern wrote. "They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities."

In rejecting the defendants' moral and child-bearing reasons for the ban, Kern concluded the "carrot" of marriage is still shown to most nonprocreative couples, but not to gay, nonprocreative couple.

"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," the decision states. "Rationality review has a limit, and this well exceeds it."

Kern also swiped aside the defendants' argument that it was rational for voters to believe gay marriage could negatively impact the institution of marriage.

"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," Kern wrote. "It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."

Oklahoma Attorney Scott Pruitt rebuked Kern's ruling as "troubling."

"As the Supreme Court recently noted in the Windsor case, it is up to the states to decide how to define marriage, not the federal government," Pruitt said in a statement shortly after the ruling.

In this past summer's United States v. Windsor, the U.S. Supreme Court struck down the Defense of Marriage Act as unconstitutional.

Kern relied heavily on the Windsor ruling, concluding that courts reviewing marriage laws - by either state or federal governments - "must be wary of whether 'defending' traditional marriage is a guise for impermissible discrimination against same-sex couples."

Kern's ruling is the latest by federal judge that invalidates a conservative state's attempt at banning gay marriage. Utah's ban was tossed by U.S. District Judge Robert Shelby in Salt Lake City federal court in December.

The Utah suit will most likely be heard by the U.S. Supreme Court and will determine the legality of Oklahoma's ban, Pruitt added. That suit is currently pending before the 10th Circuit.

Kern's ruling will not immediately result in gay marriages taking place in Oklahoma. The ruling is stayed pending appeal by the defendants. Despite the ongoing ban in Utah, U.S. Attorney General Eric Holder announced last week that the federal government would recognize the marriages of same-sex couples there.

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