Oklahoma Ban on Gay Marriage Unconstitutional, Judge Says

Oklahoma’s constitutional prohibition on same-sex marriage violates the rights of gay couples to be treated equally under the law, a federal judge ruled, leaving the ban in place until any appeal is resolved.

U.S. District Judge Terence C. Kern in Tulsa yesterday struck down the part of a constitutional amendment approved by voters in 2004, concluding it violated the U.S. Constitution’s guarantees of equal protection under the law.

“Equal protection is at the very heart of our legal system and central to our consent to be governed,” Kern said in his decision. “It is not a scarce commodity to be meted out begrudgingly in short portions. Therefore the majority view in Oklahoma must give way to individual constitutional rights.”

Same-sex marriage is now legal in 17 U.S. states and the District of Columbia. That doesn’t include Oklahoma or Utah, where the state is seeking to reverse a ruling by a federal judge in Salt Lake City last month that struck down its gay marriage ban.

After the U.S. Supreme Court decided in June to overturn part of the federal Defense of Marriage Act and leave standing an order ending California’s ban on same-sex marriage, gay unions also became legal in Minnesota, Rhode Island, New Jersey, Hawaii and, as of June 1, 2014, Illinois.

Kern delayed his decision from taking effect until the U.S. Court of Appeals in Denver has had a chance to evaluate it. The Utah ruling was stayed by the U.S. Supreme Court while that state appeals to the Denver-based court.

‘Rhetorical Shift’

Still, citing the high court’s June rulings and others dating back to 1996 that expanded legal protections for homosexuals and gay marriage, Kern said, “this court knows a rhetorical shift when it sees one.”

He also said the Supreme Court’s Defense of Marriage Act decision, overturning a provision that barred federal recognition of same-sex marriage, made the plaintiffs’ challenges before him directed at the U.S. law moot.

“It’s a troubling decision,” Oklahoma Attorney General Scott Pruitt said in a statement after Kern’s ruling. Citing the U.S. Supreme Court ruling on the Defense of Marriage Act, he said, “it is up to the states to decide how to define marriage, not the federal government.”

Calling the Utah dispute “identical” to the one in his state, Pruitt, a Republican, said, “The issue will most likely end up at the U.S. Supreme Court and the outcome will dictate whether Oklahoma’s constitutional provision will be upheld.”

Not Parties

The state and its attorney general were removed as parties to the case, which was brought against Tulsa County, according to Diane Clay, a spokeswoman for Pruitt’s office. The attorney general’s office is monitoring the case, she said in an e-mail.

Don G. Holladay, a lawyer with Oklahoma City-based Holladay & Chilton PLLC representing the plaintiffs, said in an e-mail, ``We consider this a significant victory for the countless same-gender couples in a committed relationship in Oklahoma who have been unable to enjoy marriage equality because of Oklahoma's constitutional marriage ban.''

The lawsuit was filed in 2004 after voters approved the challenged amendment.

Kern denied a challenge by one of the two plaintiff couples to a section of the amendment known as Part B, which prevents recognition of same-sex marriages performed in another state. He said they couldn’t pursue their challenge because they hadn’t taken any steps to obtain such recognition.

Kern, named to the bench by former President Bill Clinton, a Democrat, said he examined Part A of the amendment for a rational link between its exclusion of same-sex couples from civil marriage and 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,” the judge said.

The case is Bishop v. U.S., 04-cv-848, U.S. District Court, Northern District of Oklahoma (Tulsa).

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