A federal judge has ruled Oklahoma’s gay marriage ban is unconstitutional. While the ruling is stayed pending appeal, Senior U.S. District Judge Terrence C. Kern had some interesting things to say about the 2004 constitutional amendment and the arguments used to justify it. Here are five of the best comments and why they matter.
1. Oklahoma’s Gay Marriage Ban Intentionally Discriminates
Judge Kern recognizes in his ruling that Oklahoma’s gay marriage ban intentionally discriminates. In doing so, he quotes a number of blatant discriminatory statements that were used to motivate people into voting for the ban back in 2004. They are rather illuminating:
… Oklahoma legislators promoted Part A as upholding one specific moral view of marriage. In February 2004, prior to HB 2259’s passage, House Minority Floor Leader Todd Hiett stated that “‘[t]o recognize something other than what God has ordained as traditional marriage obviously detracts or deteriorates the importance of the traditional marriage.’” Marie Price, Republican Legislators Wary of Same-Sex Ruling, Tulsa World, Feb. 6, 2004 (quoting Mr. Hiett).State Representative Bill Graves said, “‘This is a Bible Belt state . . . . Most people don’t want that sort of thing here. . . . Gay people might call it discrimination, but I call it upholding morality.’”
While noting that plaintiffs in this case, a female couple, cannot claim gender-based discrimination (they would have been discriminated against even if they were two men), Judge Kern notes this does qualify as sexual orientation discrimination. While this isn’t immediately classed as suspect, Kern is already framing the ban as something that aims at hurting gay couples for the sake of popular opinion.
2. Moral Disapproval Isn’t Justification for a Gay Marriage Ban
We’ve heard this before, of course. Most notably in the Supreme Court of the United State’s ruling in Windsor v. United States. However, given that it keeps coming up under the guise of a “sincerely held religious belief,” it does warrant repeating, and Judge Kern does it well:
“However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. … 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.
3. Responsible Procreation? Stopping at Just Gay Couples Isn’t Rational
In defending the law the state has argued that the same-sex marriage ban is consistent with the state’s effort to encourage responsible procreation. Judge Kern wrote this isn’t a rational justification because the state hasn’t followed through by stopping other kinds of couples, for instance the infertile, from marrying:
With that, Judge Kern turned to the other so-called justifications for this ban.
4. Oklahoma’s Gay Marriage Ban Doesn’t Promote an Optimal Child Rearing Environment
The reasoning Kern employs on the child rearing argument is particularly interesting:
Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner… .
Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country. … The Court concludes that denial of same-sex couples from marriage “does nothing to promote stability in heterosexual parenting.”
This is devastating to the state’s defense of the ban, but in terms of wider arguments it also effectively takes a sledgehammer to the “responsible parenting” lie because it firmly points out the inconsistencies in the state’s policy making.
5. Same-Sex Marriage’s So-Called Negative Impact on Straight Marriage
Despite there being no evidence to actually tie legalizing same-sex marriage to falling marriage rates across the globe, the Religious Right continues to justify same-sex marriage bans on grounds that gay marriage could impact straight marriage.
Not so fast, says Kern:
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.
For these reasons, Judge Kern finds that the ban is unconstitutional. His closing remarks are worth repeating too because they squarely outline why the popular vote argument and the so-called “will of the people” fail to justify marriage related sexual orientation discrimination:
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 case will now need an appellate review but there are hopes that because Kern’s judgement is so comprehensive it will stand up well on appeal.
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