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.