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Oklahoma same-sex marriage ban struck down

A federal judge in Tulsa, ruling that the majority view of Oklahoma voters that marriage should be open only to a man and a woman “must give way to individual constitutional rights,” on Tuesday struck down the state’s ballot measure banning same-sex marriages.  Senior U.S. District Judge Terence C. Kern put his ruling on hold during any appeal that is pursued by the state to the U.S. Court of Appeals for the Tenth Circuit.

The judge’s sixty-eight-page ruling is here. If upheld, it would add Oklahoma to the expanding list of states where same-sex marriage has become legal, either by court ruling, state legislation, or ballot measure.

Without counting Oklahoma, and without counting Utah, where a judge issued a similar ruling last month, seventeen states and Washington, D.C., now allow such marriages.  The Utah ruling has been blocked by the Supreme Court while an appeal in that case goes ahead in the Tenth Circuit.  Judge Kern noted, in delaying the Oklahoma ruling, that he was following the Supreme Court’s lead.

“Equal protection,” Judge Kern wrote, “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.”

His ruling came in response to a challenge by two women, both of whom are editors at the local newspaper, the Tulsa World.  The couple, Mary Bishop and Sharon Baldwin, lives in Broken Arrow; they have been in a committed relationship for more than fifteen years. In 2009, they were denied a marriage license, based upon the state’s ban on same-sex marriage.

They and another lesbian couple had been pursuing their challenge to the ban since 2004, shortly after Oklahoma voters approved “Amendment A.”  The case has taken a number of procedural side paths, but ultimately led to Judge Kern’s final ruling Tuesday.

Oklahoma voters had also approved a provision in the state constitution saying that Oklahoma would not recognize any same-sex marriage performed in another state.  That provision survived a challenge by the other couple, because Judge Kern found that they technically did not have a claim.

The other couple, Susan Barton and Gay Phillips of Tulsa, has twice been married — in Canada in 2005 and in California in 2008.  They have sought to have their California marriage recognized in Oklahoma, but have been refused.  The judge ruled Tuesday that they were not in a legal position to challenge the lack of recognition in Oklahoma.

Similarly, the judge found that Barton and Phillips could not go forward with a challenge to a part of the federal Defense of Marriage Act — a part not ruled on by the Supreme Court last year — that seeks to give states permission to refuse to recognize same-sex marriages from other states.  Judge Kern blocked that claim, finding that DOMA’s Section 2 was not the reason for a lack of recognition of their California marriage.

In ruling against the state’s ban on same-sex marriage, the judge declared that it violated the U.S. Constitution’s guarantee of legal equality.  He ruled that the Supreme Court’s ruling last Term in United States v. Windsor actually provided some support both for the challenging couple and for state officials defending the state ban.

The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the Court majority about the purpose behind DOMA could also be applied to state bans on same-sex marriage.  It supports the state, the judge added, because of the lengthy commentary in the opinion about states’ primary power to define marriage.

In the end, however, the judge decided that Oklahoma’s ban was based on intentional discrimination, with a “stark” negative impact on gay and lesbian couples.  “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.”

The ban, he added, “was adopted, at least in part, for the purpose of excluding the class from marriage.”

Judge Kern took note of a string of decisions by the Supreme Court favoring gay rights, between 1996 and 2013, and said that, while “there is no precise legal label for what has occurred,” his court “knows a rhetorical shift when it sees one.”


Recommended Citation: Lyle Denniston, Oklahoma same-sex marriage ban struck down, SCOTUSblog (Jan. 14, 2014, 6:49 PM),