US District Court judge Terence C. Kern ruled yesterday that Oklahoma’s constitutional amendment passed in 2004 limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Judge Kern relied heavily on this year’s US Supreme Court ruling in the DOMA case United States v. Windsor to strike down the Oklahoma law.
In the Oklahoma case, the suit was brought by two lesbian couples Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips. (I thought it kind of cute that one of the people is actually named ‘Gay’.) Barton and Philips have been together since 1984, had a civil union in 2001 in Vermont, were married in Canada in 2005, and then in 2008 were married under California law. Bishop and Baldwin have been together since 2000 and applied for a marriage license in 2009 and were refused.
In his ruling, the judge made the following comments that I thought interesting.
The Court recognizes that moral disapproval often stems from deeply held religious convictions. See Lawrence, 539 U.S. at 571 (explaining that moral disapproval of homosexual conduct was shaped by “religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family”). However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. (p. 54)
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. (p. 57)
The judge examined the four arguments given by the state to justify its exclusion of same sex marriage: promoting morality, encouraging responsible procreation/steering naturally procreative couples to marriage, promoting the “optimal” child-rearing environment, and negative impact on marriage. He said that these arguments could not survive rational review because even granting that the goals were worthy, it was hard to see how denying same-sex couples the right to marriage significantly harmed any of them. (p. 66)
These are the same arguments one hears commonly from opponents of same-sex marriage.
Since the US Supreme Court issued a stay of a similar ruling on 14th Amendment equal protection grounds from Utah that is now up for review by the 10th Circuit Court of Appeals, and since Kern’s court also falls under their jurisdiction, he too has stayed his order until the appeal is heard. It will be up to the Appeals court to decide whether to bundle this case along with the Utah case.