Box Turtle Bulletin

Oklahoma’s Same-Sex Marriage Ban Declared Unconstitutional

Senior U.S. Federal District Judge Terence C. Kern has struck down the amendment to Oklahoma’s constitution prohibiting same-sex marriage, saying that the ban violates the U.S. Constitution’s Equal Protection clause. But unlike in Utah, Oklahoma’s same-sex couples won’t be rushing to marry anytime soon, as Judge Kern has stayed his ruling pending an appeal.

Oklahoma constitutional amendment banning same-sex marriage was passed by referendum in 2004 when 75% of Oklahomans approved State Question 711 (SQ 711). The amendment states: “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.” It also bars the state from recognizing same-sex marriages performed in other states.

The court challenge to the amendment was filed soon after voters approved it. Sharon Baldwin and Mary Bishop sought the right to marry, and Gay Phillips and Susan Barton, who were legally married in California, sought their marriage’s recognition. They sued the U.S. Attorney General seeking to overturn the Defense of Marriage Act entirely (including section 3, which allows states to refuse to recognize marriages performed in other states), and they sued the Tulsa County Court Clerk, Sally Howe Smith, for refusing to issue a licence to Baldwin and Bishop. The Phoenix-based anti-gay group Alliance Defending Freedom (formerly the Alliance Defense Fund) provided lawyers for Smith, and the U.S. House of Representatives’ Bipartisan Advisory Group, under the direction of House Speaker John Boehner (R-OH) intervened on behalf of the U.S. government.

Judge Kern declined to rule on the question of whether Oklahoma was required to recognize marriages from out of state on jurisdictional grounds.

Judge Kern’s reliance on the Windsor case, in which the U.S. Supreme Court struck down part of the Defense of Marriage Act as unconstitutional, was limited to two principles (PDF: 207KB/68 pages):

This Court has gleaned and will apply two principles from Windsor. First, a state law defining marriage is not an “unusual deviation” from the state/federal balance, such that its mere existence provides “strong evidence” of improper purpose. A state definition must be approached differently, and with more caution, than the Supreme Court approached DOMA. Second, courts reviewing marriage regulations, by either the state or federal government, must be wary of whether “defending” traditional marriage is a guise for impermissible discrimination against same-sex couples. These two principles are not contradictory, but they happen to help different sides of the same-sex marriage debate.

Judge Kern then set out to identify the Equal Protection principles that apply to the case, starting with whether Oklahoma’s ban on same-sex marriage discriminates against an identifiable class of people.

The Court defines the relevant class as same-sex couples desiring an Oklahoma marriage license. The Bishop couple has easily satisfied the first element – requiring a showing that Part A intentionally discriminates against this class – for two reasons. First, Part A’s disparate impact upon same-sex couples desiring to marry is stark. Its effect is to prevent every same-sex couple in Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law has a small or incidental effect on the defined class; it is a total exclusion of only one group. …

Second, both the timing of SQ 711 in relation to certain court rulings and the statements in the public domain before passage of SQ 711 raise the inference that it was adopted, at least in part, for the purpose of excluding the class from marriage. SQ 711 originated from legislation entitled the Marriage Protection Amendment, which passed the Oklahoma Legislature as part of House Bill 2259 (“HB 2259”)

Judge Kern then reviewed the history of SQ 711, including public statements by Oklahoma legislators, and determined that:

Exclusion of the defined class was not a hidden or ulterior motive; it was consistently communicated to Oklahoma citizens as a justification for SQ 711. This is simply not a case where exclusion of same-sex couples was a mere “unintended consequence” of the law. Instead, this is a classic, class-based equal protection case in which a line was purposefully drawn between two groups of Oklahoma citizens – same-sex couples desiring an Oklahoma marriage license and opposite-sex couples desiring an Oklahoma marriage license

As for whether the marriage ban serves a rational purpose, the court turned to the arguments used to promote the ban during the 2004 campaign. First, there was the “promoting morality” argument, which Judge Kern dispensed with rather quickly:

The Court recognizes that moral disapproval often stems from deeply held religious convictions… However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law… Preclusion of “moral disapproval” as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage. Therefore, although Part A rationally promotes the State’s interest in upholding one particular moral definition of marriage, this is not a permissible justification.

Judge Kern then addressed other justifications provided by the State of Oklahoma for the marriage ban: “(1) encouraging responsible procreation and child-rearing; (2) steering naturally procreative relationships into stable unions; (3) promoting ‘the ideal that children be raised by both a mother and a father in a stable family unit;’ and (4) avoiding a redefinition of marriage that would ‘necessarily change the institution and could have serious unintended consequences.'” Kern dealt with those arguments’ pretty directly, and they are a joy to read.

Let’s take them one at a time. Point 1, that banning marriage equality somehow encourages “responsible procreation and child-rearing”:

First, the wealth of scholarly articles in this section of Smith’s brief, which range from William Blackstone to John Locke, simply demonstrate that state-recognized marriages developed in part as a means of encouraging and incentivizing procreation within marriage. … These articles do not provide what is necessary in an equal protection case – that is, a link between the legal classification now being drawn by Part A against same-sex couples and a historical state objective of encouraging procreation to occur within marriage. Traditional exclusion of the disadvantaged group from state-sanctioned marriage does not itself evidence a rational link to the identified goal of promoting responsible procreation within marriage…

During oral arguments in Hollingsworth, Justice Scalia asked Mr. Theodore Olson, counsel for the proponents of Proposition 8, when it became unconstitutional “to exclude homosexual couples from marriage.” …Mr. Olson responded with the rhetorical question of when did it become unconstitutional “to prohibit interracial marriage” or “assign children to separate schools.” As demonstrated by Mr. Olson’s response, the mere fact that an exclusion has occurred in the past (without constitutional problem) does not mean that such exclusion is constitutional when challenged at a particular moment in history. This Court has an obligation to consider whether an exclusion, although historical, violates the constitutional rights of Oklahoma citizens.

…Second, there is no rational link between excluding same-sex couples from marriage and the goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering the “naturally procreative” toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites. Permitting same-sex couples to receive a marriage license does not harm, erode, or somehow water-down the “procreative” origins of the marriage institution, any more than marriages of couples who cannot “naturally procreate” or do not ever wish to “naturally procreate.” …

…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.

Points 2 and 3 are considered together, that banning marriage equality somehow promotes “steering naturally procreative relationships into stable unions” and encourages “the ideal that children be raised by both a mother and a father in a stable family unit”:

Again, however, the question remains whether exclusion of same-sex couples promotes this interest, or is simply a guise for singling out same-sex couples for different treatment due to “moral disapproval” of a same-sex household with children. Smith has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will “promote” this “ideal” child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the “ideal” child-rearing environment). …

In addition, Smith has not explained, and the Court cannot discern from any of Smith’s cited materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex marriages will stay in tact (thereby remaining “optimal” child-rearing environments). 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.

 As for Point 4, the so-called “unintended consequences” to the institution of marriage. Judge Kern quoted from a document supplied by the Witherspoon Institute which supposedly laid out the case that same-sex marriage would harm marriage itself and found:

The “negative impact” argument is impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. All of these perceived “threats” are to one view of the marriage institution – a view that is bound up in procreation, one morally “ideal” parenting model, and sexual fidelity. However, civil marriage in Oklahoma is not an institution with “moral” requirements for any other group of citizens… Smith 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. “‘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.”

After reviewing those four points, Judge Kern found that Oklahoma’s ban on same sex marriage failed the rational basis test. As for the Equal Protection test under the U.S. Constitution:

Against this backdrop, the Court’s task is to determine whether Part A of the Oklahoma Constitutional Amendment deprives a class of Oklahoma citizens – namely, same-sex couples desiring an Oklahoma marriage license – of equal protection of the law. Applying deferential rationality review, the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Court’s rationality review reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.

Equal protection is at the very heart of our legal system and central to our consent to be governed. 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. The Bishop couple has been in a loving, committed relationships for many years. 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. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.