U.S. District Judge Terence Kern is under fire today from religious conservatives as an “activist judge” after he joined a growing list of federal judges striking down bans on same-sex marriage. Kern found that the state law violated the U.S. Constitution’s equal protection clause. What is most interesting is that, like the earlier Utah ruling, Kern relies heavily on last summers rulings in Windsor and Hollingsworth. While Windsor had positive language for same-sex couples, the Court actually avoided the merits of the constitutional question on equal protection in favor of leaving the matter to the states in striking down the Defense of Marriage Act (DOMA). Yet, courts are reading the ruling as a green light for broader constitutional rulings on the federal level.
Kern ruled that the prohibition was “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.”
His opinion in Bishop v. United States is an interesting read. Notably, the Obama Administration has opposed their lawsuit and attacked their standing to bar them from judicial relief.
The plaintiffs originally challenged both sections of DOMA and two subsections of an amendment to the Oklahoma Constitution, which are set forth in article 2, section 35(A)-(B).
Some 27 states still have constitutional prohibitions on same-sex marriage and four states — Indiana, Pennsylvania, West Virginia and Wyoming,
Utah was the 18th state to allow gays to marry and Oklahoma would have been the 19th. However, the Utah ruling was stayed pending review.
The Oklahoma Constitutional Amendment provides:
“Marriage” Defined – Construction of Law and Constitution – Recognition of Out-of-State Marriages – Penalty
A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be [*5] construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.2
B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.3
C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
Okla. Const. art. 2, § 35
Once again, it is Scalia’s jab at the majority in Windsor that is being cited as a basis for extending the ruling:
although the Supreme Court’s decision in Windsor was silent as to Baker’s impact,22 statements made by the Justices indicate that lower courts should be applying Windsor (and not Baker) to the logical “next issue” of state prohibitions of same-sex marriage. See Windsor, 133 S. Ct. at 2696 (Roberts, C.J., dissenting) (urging that the Windsor majority’s reasoning must not be extended to state-law bans because the majority’s “judgment is based on federalism”); id. at 2709-10 (Scalia, J., dissenting) (stating his opinion that the majority decision “arms well every challenger to a state law restricting marriage to its traditional definition”) (explaining that “state and lower federal courts” will be able to distinguish Windsor due to its “scatter-shot rationales” and inviting lower courts to “distinguish away”). If Baker is binding, lower courts would have no reason to apply or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply Windsor would be superfluous.
It is an ironic twist. The majority actually carefully crafted the decision to avoid the merits, but Scalia’s taunting asides are being used as evidence of the obvious import of the ruling.
The growing list of opinions against these bans raises a profile much like what we saw before Roe v. Wade. The Supreme Court will have to decide whether it wants to resolve the question for all of the states (as with Roe) and risk the blow back that comes with such intervention. Notably, Ruth Bader Ginsburg has questioned whether Roe was the right decision as opposed to letting states decide the question. She noted that, once the Court intervened, it triggered a backlash where prior victories for choice were reversed and decades of divisive political debate followed.
Family Research Council President Tony Perkins slammed the ruling and called Kern an “activist judge overrunning both the constitution and the rule of law in a drive to fundamentally alter America’s moral, political and cultural landscape.” Kern does not exactly fit that image, though we have previously discussed how judges appear “activist” when we disagree with their rulings.
Terence C. Kern was born in 1944 in Clinton, Oklahoma and received a B.S. from Oklahoma State University in 1966 and a J.D. from the University of Oklahoma College of Law in 1969. He served in the United States Army Reserve from 1969 to 1975 as well as a stint as a general attorney of Federal Trade Commission. He was in private practice in Ardmore, Oklahoma from 1970 to 1994 before being appointed by President Bill Clinton on March 9, 1994. He assumed senior status in January 2010.
20 thoughts on “Federal Judge Strikes Down Oklahoma Ban On Same-Sex Marriage”
You really need to reread Windsor if all you found in the Kennedy DOMA ruling was a ‘states rights’ decision. DOMA was overturned explicitly for violation of equal protection.
Windsor contains 16 pages on deprivation of human rights and a total of three lines about ‘states rights’. In each and every instance ‘states rights’ is followed by the language ‘subject to constitutional guarantees of equality’. How does one leave out the MOST important part of the language on states rights when quoting Windsor?
Something else to consider. The very same groups that financed & backed a federal law, DOMA, are the ones now claiming ‘states rights’. Irony.
Professor, you have highlighted the slippery slope that is the Windsor decision. When Constitutional protections and or rights are handed over to the tender mercies of the states, they now longer exist as Constitutional rights in practice. The euphoria over Windsor was misplaced.
Who needs a piece of paper from the state?
It is a fraud perpetrated by the state upon free peoples everywhere that we must ask and receive permission to marry.
What kind of nonsense is that? Ah, yes, genuflect USA.
If your in love with someone and they consent and want to marry then marry.
Non-cooperation with immoral laws is the first step to freedom.
What’s the point of States if they are over-ruled so easily?
The validity of states is hardly the issue. The first critical issue is understand that all states and all citizens have acknowledged the supremacy of the US Constitution. That supremacy encompasses not only all the state Constitutions in US, but it is superior in the making of our secular laws to whatever might be written in a Bible, Quaran, Torah or whatever other scripture folks might try to put in front of the Constitution. Second is that all or virtually all the states’ Constitutions mirror the master document, as well they should. Thus equal means equal for all citizens, not just the ones some group chooses to favor or to discriminate against That’s why Jim Crow laws are un-Constitutional. The exact same principal is at work here.
There has never been a provision in the US Constitution that would permit an individual state to pass laws which violate the precepts of the US Constitution or to inhibit the rights of any American citizens guaranteed by that document. At no time can a city, county or state enact any legislation which provides for the tyranny of the majority against the inalienable rights of any minority. None of this is new.
Since the ONLY source of the deep seated desire to discriminate against gays is contained in scriptures and they are irrelevant to writing our secular laws, the question is moot. There is no medical, legal, scientific, environmental or economic justification for opposing same-sex marriage. The US and the world now has several years of allowing same-sex couples to marry with NO ill-effects. Those who continue to insist on these illegal restrictions make themselves look more and more foolish each day.
rcampbell: Well said!
If the Feds interfere with a decision to ban same sex marriage (not saying some same sex union might be possible, the Feds are rendering the States impotent. What’s the point of States if they are over-ruled so easily?
As for equal rights, you must consider the sex of a person to some degree. A man cannot demand anytime access of a women’s bathroom & vice versa.
We have many incompetent judges – the people must take a stand.
Fully Informed Jury Association is very informative, along with SEDM.
Dog, yes because it would naturally follow that if gays can marry each other you can marry your human.
Scalia must have been a choir boy in the good old days.
[Christians should be setting themselves on fire, across the country… as a form of protest!]
Not the gay ones. Their sexual desire may have skyrocketed along with the courage. Praise Jesus for that.
This trend is going to continue no matter how long the GOP stays in the closet. They will have to come out eventually. Family values are evolving but the GOP and its bubble dwellers want to impose theirs which is a sign of disrespect to anyone.
Thanks to the Supreme Court decision of no decision about DOMA, they have opened the flood gates of equality.
Although there is a stay in Utah, the DOJ said that the ones who got married can get all federal benefits.
The sooner the hateful lot of any religion can come to grips that we are all equal no matter what, the easier, better and peaceful this country would become.
Some judges are amazing me….
Scalia would ask: what was the intent of the Framers of the 14th Amendment when they passed it with the equal protection of laws Klaus. Or would he ever ask the intent of Those Framers who were not the Original Framers of the Original Constitution? I think that a man or woman human should be able to marry their dog.
The GOP set up religious fundamentalists to be their vehicle to power, and it worked through 2004. But then came social media in which insults hurled at anyone, including gay people, are heard by friends, family, coworkers and fellow worshippers pretty much immediately, and recorded forever. And they have said N-O to many things, including discrimination based on magic-thinking.
Now all the evil men who used these religious people are no where to be found to be held accountable.Their candidates cannot be elected nationally, as they were led to believe what passes in the The Hollar passes for the rest of the nation. They were sold a bill of frail and defective goods that will shut these people out of power for a generation. The Roves and Armys and Becks and Limbaughs all got fat eating at that trough, to the long-term detriment of all conservatives. Ask them if they care.
And given the vile rhetoric that has been amped, validated and made holy, it’s hard to feel sorry for them.
Christians should be setting themselves on fire, across the country… as a form of protest!
It is an easy decision for me. If anyone can get a state sanctioned marriage, how can it be limited?
“Some 27 states still have constitutional prohibitions on same-sex marriage and four states — Indiana, Pennsylvania, West Virginia and Wyoming,…”
Was there supposed to be some end to this sentence that got accidentally lopped off?
(apologies if this double-posts. Had connection hiccough in mid-send)
A rolling stone gathers no moss. Now when some say gay marriage isn’t a fundamental right and where is it in the Consitution, I can say Equal Protection Clause, 14th Amendment. Congratulations Oklahoma gay folks!
I thought Oklahoma was like Iran and doesn’t have any gay people.
Reblogged this on Dead Citizen's Rights Society.
I have always maintained my same sex so am I included in the ruling?
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