Federal Court Strikes Down Ban on Same-Sex Marriage in Oklahoma

“This Order addresses challenges to state and federal laws relating to same-sex marriage. The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution...

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. See Lawrence, 539 U.S. at 577 (“‘[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’”) (quoting and adopting Justice Stevens’ dissent in Bowers v. Hardwick, 478 U.S. 186, 216 (1986)) (concluding that “the majority may [not] use the power of the State to enforce [moral] views [disapproving of homosexual conduct] on the whole society through operation of the criminal law”); id. at 582-83 (O’Connor, J., concurring) (explaining that “moral disapproval, without any other asserted state interest,” is not a “sufficient rationale... to justify a law that discriminates among groups of persons”); Mass. v. United States Dept. of Health and Human Servs., 682 F.3d 1, 15 (1st Cir. 2012) (“Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis.”) (internal citations omitted). 37 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...

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. See supra Part I(C). 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.” Lawrence, 539 U.S. at 602 (Scalia, J., dissenting).

Having considered all four proferred justifications for Part A, the Court concludes that exclusion of same-sex couples is “so attenuated” from any of these goals that the exclusion cannot survive rational-basis review...

The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. 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.

The Court declares that Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by precluding same-sex couples from receiving an Oklahoma marriage license. The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals...”

Judge Terence C. Kern, US District Court for the Northern District of Oklahoma, January 14, 2014.

click here to read entire decision