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Judge Overturns Oklahoma Ban on Same-Sex Marriage

A federal judge has overturned the law in Oklahoma that bans same-sex marriage, which was passed as an amendment to the state constitution by popular referendum in 2004. The court did, however, issue an immediate stay on that order pending the state’s inevitable appeal to the 10th Circuit Court of Appeals. This passage sticks out:

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.

This, along with a similar decision in Utah, will almost certainly be the next big Supreme Court test of how far it is willing to go on this issue. In Windsor, Justice Kennedy stopped short of overturning state laws banning same-sex marriage. In fact, his ruling was quite explicitly federalist and left states free to do as they please, affecting only federal recognition of same-sex marriages in states that recognized their validity. But the inexorable logic of his written opinion applies just as logically to those state bans, a fact he certainly knew when he wrote it.

The question is, how long before Kennedy is comfortable following his own logic through to its obvious conclusion? When this case reaches the court, likely in 2015, will that be a long enough time for him to overcome his reluctance to go all the way to full marriage equality? Only time will tell.

You can read the full ruling here.

Comments

  1. eric says

    The question is, how long before Kennedy is comfortable following his own logic through to its obvious conclusion? When this case reaches the court, likely in 2015, will that be a long enough time for him to overcome his reluctance to go all the way to full marriage equality?

    Good question. I don’t have a clue to the answer but I think both Kennedy and Roberts (yes, Roberts) will be windsocks on this issue. The more states that legalize it, the more likely they are to go along.

  2. Chiroptera says

    It [equal protection] is not a scarce commodity to be meted out begrudgingly or in short portions.

    What a great sentence!

  3. kosk11348 says

    Interestingly, this is almost exactly what Scalia feared would happen when he originally chose to dissent, that the Supreme Court ruling would force state judges to declare same-sex marriage prohibitions unconstitutional. Now that his prediction has come to pass, will Scalia agree with his own logic that state governments can no longer ban same-sex marriage?

  4. Michael Heath says

    The court:

    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.
    [Heath bolded]

    It’d be interesting understanding why this judge switched gears, from rights to a privilege. Perhaps it’s oblivious sloppy thinking or rhetoric from this judge, or was there an actual rationale?

  5. John Pieret says

    It’d be interesting understanding why this judge switched gears, from rights to a privilege.

    Rights AND privileges is a common phrase in the law and used in this sense they are equivalent.

  6. Michael Heath says

    John Pieret writes:

    Rights AND privileges is a common phrase in the law . . .

    I would have to know this to raise this question in the first place.

    John Pieret writes:

    Rights AND privileges is a common phrase in the law and used in this sense they are equivalent.

    Such confidence. The constitutional scholars I follow do not conflate the two but instead insure their readers understand how they’re very different. The framers often substituted “immunities” for rights to better distinguish the two concepts; i.e., a [negative] right/immunity is an inalienable trait of all humans, a privilege is a benefit to at least some humans granted by the government.

  7. whheydt says

    Slate has an article suggesting that the Oklahoma judge has “called the Supreme Court’s bluff” in the sense of following the trend from Lawrence through Windsor.

    In other news..Utah blinked. The Utah government says that any couple that files joint Federal taxes can file joint state taxes, too. Perhaps reality is beginning to seep in…

  8. chilidog99 says

    whheydt, interesting. I think that they knew that that was a losing angle to peruse and it would just reinforce their ultimate fail.

  9. John Pieret says

    Michael Heath:

    The constitutional scholars I follow do not conflate the two but instead insure their readers understand how they’re very different. The framers often substituted “immunities” for rights to better distinguish the two concepts; i.e., a [negative] right/immunity is an inalienable trait of all humans, a privilege is a benefit to at least some humans granted by the government.

    Sorry, I was leaving work at the time and didn’t know you wanted the long-winded version. Officially recognized marriages confer certain legal “privileges” on couples (automatic inheritance, the right to make medical decisions for one’s spouse, etc. as the judge laid out). But there is a right to be treated equally before the law if you are equally situated. Thus, people cannot be taxed differently (i.e. given tax breaks) just because their skin color is different or because their gender is different or because their religion, or lack thereof, is different than some other group who is extended a “privilege” of tax breaks by the state. What the judge was saying is that gay people are similarly situated to heterosexual people and if heterosexuals have the right/privilege to claim certain benefits, LGBT have the same right/privilege to them. In this context, the judge did not switch gears from rights to a privilege, he was talking about equal rights before the law.

  10. Crudely Wrott says

    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.

    Let us hope that the clarity of this statement endures.
    (emphasis mine)

  11. Crudely Wrott says

    And, upon reading the above comments, it should be understood and stated as such in future court decisions, the word “privilege” is replaced with the word “right”.

  12. whheydt says

    Apologies in advance for a semi-derail (there is a tie in)..

    Accord to the Salt Lake Tribune (here: http://www.sltrib.com/sltrib/news/57412265-78/utah-state-court-appeal.html.csp), Utah wants more time to prepare their argument for the appellate court. This is hilarious because, IIRC, Utah asked for an expedited appeal if they couldn’t get a stay. One wonders if the other side will point this out and oppose giving Utah more time.

    The tie to the Oklahoma case…at the bottom of the article, they mention that an appeal has been filed in that case with the 10th Circuit.

  13. says

    Scalia railed in his dissents to some of Kennedy’s decisions that Kennedy’s logic would lead to universal same-sex marriage rights throughout the states. Scalia may be a no-good, lousy bastard, but his legal scholarship cannot be gainsaid in this instance. Kennedy pulled up short out of cowardice, not logic.

  14. anubisprime says

    As an outsider to the American justice system I cannot engage with the minutiae of passed decisions and rulings.

    But it would appear that the Supreme Justices are being led kicking and screaming, in a direction they least wanted to tramp, in fact hoisted by their own petard of past judgements, that were meant to delay if not filibuster the argument into the long grass but instead that lazy if not actually cowardly performance has backfired momentously because the lower court judges are applying the logic behind the Supreme’s attempts to have an easy life.

    They have seemingly been forced to employ the spirit and the intent of the Constitution of the USA where before they were content with the intent and not the spirit…methinks they will not perch comfortably on that fence for long.

  15. John Pieret says

    anubisprime:

    I can see how it looks that way to outsiders and, in fact, there is a certain truth to it. The Supreme Court tends to follow public sentiment rather than to lead it. The Roe v. Wade decision, granting a constitutional right to abortion, was one of its few decisions by SCOTUS that got out ahead of popular sentiment and it has had consequences that are still with us, in our fractious political situation, 40 years later. There is a case to be made (not that I subscribe to it) that SCOTUS can do more harm than good by enshrining “rights” into the Constitution that large parts of the populace do not recognize as rights.

    It is certain that Kennedy (and the rest of the court) wanted to go slowly … to give people more time to accept the inevitability of same sex marriage. Fortunately, polling indicates that a majority of Americans accept that and SCOTUS, as it has been said, ‘does read the newspapers.’

    I suspect that, in 2015, when one or both of the Utah and Oklahoma cases reaches SCOTUS, there will be at least a 6-3 decision declaring a constitutional right to SSM. Roberts is reportedly very concerned about the legacy of “his” court and I think he does not want his name mentioned in the same breath as Roger B. Taney and Dred Scott.

  16. says

    @4

    My assumption would be that in the first case he is referring to constitutional rights, while in the second he is referring to spousal privileges.

  17. jameshanley says

    Contra Ed, I think Kennedy is quite ready to follow the logic he has developed now in a series of cases to its logical conclusion. But Windsor was not about a state’s authority to regulate marriage, so Kennedy, as is the Court’s tradition (although admittedly sometimes ignored), he answered only the question at hand.

    Others have noted that Scalia’s dissent pointed out where Kennedy’s logic leads. Indeed both opponents and supporters of the Court’s opinion immediately noted this–it was so evident that it was impossible to not notice. To suggest Kennedy may not be ready to follow his own logic, but I think that mistakes the situation. As I see it, Kennedy deliberately set up the logic in preparation for the next case. He knows it’s coming–everybody knows it’s coming–and he strategically prepared the way for the nrxt decision. (I had worries about the Windsor and Perry cases, but now I have little worry about the next cases.)

  18. Michael Heath says

    Me at @ 4:

    It’d be interesting understanding why this judge switched gears, from rights to a privilege. Perhaps it’s oblivious sloppy thinking or rhetoric from this judge, or was there an actual rationale?

    stuartsmith @ 18:

    My assumption would be that in the first case he is referring to constitutional rights, while in the second he is referring to spousal privileges.

    Possibly, but the way the paragraph is written it’s kind of a non sequitur. Either way it’s either sloppy writing or thinking. The latter if the judge defectively conflated rights and privileges as John Pieret falsely asserted was A-OK a @ 5, but then retreated from @ 10 without noting he was actually doing so.

    jameshanley @ 19 – I agree with James’ analysis if Justice Kennedy continues to be a rational thinker. However J. Kennedy’s dissent in the Obamacare case was incredibly bizarre. It was also demonstrably and zealously driven by a partisan agenda. I can’t recall any justice going from consistently arguable positions that are articulately presented to a dissent more line with something Bill O’Reilly would yell out. Perhaps only his clerks kept him from using all-caps in much of his text.

    So was J. Kennedy’s Obamacare dissent a one-off or have the conservative viral emails infected even his thinking? Because I can draw no conclusion on that opinion, I can no longer predict what J. Kennedy will do next.

  19. John Pieret says

    Michael Heath:

    The latter if the judge defectively conflated rights and privileges as John Pieret falsely asserted was A-OK a @ 5, but then retreated from @ 10 without noting he was actually doing so.

    If it makes you feel better to think so, be my guest, but the simple fact is if the state confers a “privilege” on one group it has to confer it equally on all individuals who qualify. So, since Utah confers privileges on “marriage” all its citizens have the right to access those privileges on an equal basis. As long as the privileges exist, others have the right to them. The state can do away with the privilege for everyone but unless and until it does, it is equivalent, in the sense the judge used the terms, of a right of all similarly situated individuals. It was neither sloppy writing or thinking on the judge’s part, it was just a more than superficial understanding of the law.

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