Oklahoma is OK with same-sex marriage, for now

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.


  1. Nightshade says

    Aren’t Laws simply the codification of morals?If morals aren’t the bases of laws how is any law to be justified?Laws compel people to engage in certain types of behavior or prohibit them from engaging in certain types of behavior on penalty of punishment.How people ought to behave is the subject matter of Ethics or Moral Philosophy thus Morality and Law concern themselves with behavior.Morality with the determination of norms and Law with their enforcement. a law not grounded in morality isn’t justified at all.

  2. Chiroptera says

    Nightshade, #1:

    I don’t understand your objection. The legal tradition in most secular democracies that laws don’t prohibit an activity or behavior just because some people’s, or even most people’s, moral disaproval. Our secular democracy is based on certain legal and social theories about the proper role fo the state in society and the limitations on what it should do.

    There is, of course, debate on what exactly that proper role is and what the limitations should be, but simple moral disapproval has never been sufficient to outlaw behavior or mandate certain responsibilities. Even when the moral activists have succeeded in passing laws based on their moral beliefs, they have almost always had to dress it up and claim that there were larger social concerns that had to be taken into account.

    In the case of gay marriage, the only case to be made against it is that some people think that it is morally wrong. That is not sufficient to outlaw it under our theories of limited government. The anti-gay marriage activists need to also demonstrate that allowing gay marriage will cause problems that we, as a society, agree would be bad and that we agree that the state has the authority to prevent, and/or that preventing gay marriage will result in social benefits that we as a society agree are desirable and that we agree the state has the authority to promote.

    Every attempt by the anti-gay activists to describe these problems or benefits have always been show to be inaccurate and false.

  3. Jared A says


    No, I don’t think that law is always defined as simply the codification of morals. As a counterexample, consider the codification of contract laws. It is desirable to have a set of standards for defining a “proper” contract, but the standards themselves are not morals, nor are the behaviors that they are meant to encourage.

  4. Nightshade says

    My objection was to the principle I believe to be implicit in the statement, ” However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.,that moral approval/disapproval of any behavior is not a permissible justification of a law. I took this to mean:
    All laws based on moral considerations are unjustified.

  5. Nightshade says

    (as I was saying)All laws based on moral considerations are unjustified.The law against same-sex marriage is based on moral considerations. Therefore the law against same-sex marriage is unjustified.
    I don’t believe any judge in the world, in any tradition would accept the first premise.

  6. Nightshade says

    The term “moral activist” I suspect you meant as a pejorative aimed at those with whom you have moral disagreements probably Christians,social conservatives etc.However In my opinion those advocating for an increase in the minimum wage,civil right’s activist,advocates of the welfare state are moral activist as well.The transfer of wealth from one individual to another through taxing one to provide services to the other is a moral issue for those on both sides of it.All these activist the one’s you (Chiroptera) mean as well as the one’s I listed believe their particular issue (gay marriage,or whatever) has larger social concerns and the larger concerns are moral issues as well.Even Contract Law is not made in a moral vacuum.

  7. Chiroptera says

    Nightshade, #6: The term “moral activist” I suspect you meant as a pejorative aimed at those with whom you have moral disagreements probably Christians,social conservatives etc.

    By the term “moral activist” I meant those who advocate for laws banning personal, private behavior for no other reason than they find the behavior immoral.

    In my opinion those advocating for an increase in the minimum wage,civil right’s activist,advocates of the welfare state are moral activist as well.

    You may use the words to mean whatever you want. Me, I used “moral activist” in a rather specific manner. Civil rights advocates and advocate for a comprehensive advocates, whatever the underlying emotional reasons for their advocacy, (1) are not trying to regulate or prohibit or obligate purely person behavior that is no one else’s business, and (2) can explain the benefits to society of the programs they advocate.

    Those who oppose gay rights or, specifically, gay marriage are not in this category. First of all, the only real reason they oppose these things are because they feel homosexuality is wrong, period.

    Now, they may try to claim that their positions have clear benefits to society, but we know that this is not true:

    (1) It has been shown again and again in any historical investigation and in all rigorous, repeatable socilogical studies that their claims are factually false. That they still desparately cling to these fallacious reasons despite all the evidence to the contrary shows, in my opinion, that these cannot actually be the true reason for their advocacy, but rather post hoc rationalizations for things that they already believe.

    (2) Their political and religious ideology leads them to support many positions that haver ill effects similar to what they claim for gay marriage and/or oppose many positions that would have the beneficial effects they claim would result from prohibiting gay marriage.

    (3)And they themselves admit that this is a moral issue for them. They themselves admit that most important than anything else, homosexuality is evil and must always be opposed.

    Finally, I would say something about the goals of “moral activism.” It is one thing to be an activist for a position that actually helps people for purely ethical reasons, it is another thing to be an advocate for a position that hurts people for purely ethical reasons.

    If someone, for purely moral reasons, advocates in favor of same sex marriage, they are working for a program that will bring real, tangible benefits to many people while hurting absolutely no one else.

    If someone, for purely moral reasons, advocates against same sex marriage, they are working for policies that hurt many people with absolutely no benefit whatsoever to anyone else.

    To me, that is a big difference. Obvious, when I speak against “moral activists,” I am speaking about those people who for no good reason whatsoever decide that their purpose in life is make life harder for other people who are just minding their own business.

  8. Nightshade says

    I haven’t said anything about my position on same-sex marriage. My only point is that laws are rooted in moral beliefs.If I were to ask you why you support same-sex marriage I suspect you would say”Because government should not “regulate or prohibit or obligate purely personal behavior” that is nobody else’s business.” If this is the opinion you would express then it is based on your moral belief concerning what governments should or should not do which would be based on a more basic moral belief about the most just and fair ie. morally best government/society. A person with a different set of moral beliefs might question your premise that sexual behavior is a purely private matter with no ramifications for society.Or accept that sex is personal but marriage is a public matter a social rite(ritual) not a natural right,which society has a right to define and regulate as in the case of polygamy or marriage between siblings when both are consenting adults.

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