US judge strikes down Oklahoma gay marriage ban as 'arbitrary, irrational'

A federal judge in Oklahoma struck down that’s state’s ban on gay marriage Tuesday, declaring that the 10-year-old state constitutional amendment violated equal protection guarantees in the US Constitution.

US District Judge Terence Kern’s decision was in response to a lawsuit filed by two lesbian couples challenging the Oklahoma constitutional amendment, which restricts marriage to a union between one man and one woman.

Judge Kern based his ruling on his conclusion that the Oklahoma ban “intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification [for the discrimination].”

He said Oklahoma lawmakers who passed the constitutional amendment had engaged in “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a government benefit.”

The judge issued the decision less than a month after a federal judge in Utah struck down a constitutional ban on same-sex marriages in that state. In the Utah case, the judge based the decision on his conclusion that gay men and lesbians have a fundamental right under the US Constitution to marry.

In contrast, Kern’s decision is based on a less ambitious analysis involving equal protection principles – that same-sex couples in Oklahoma cannot be subject to different treatment by the state based in part on moral disapproval of their desire to marry.

Also unlike the Utah judge, whose ruling was later stayed by the Supreme Court, Kern issued a stay of his decision pending an expected appeal to the Tenth US Circuit Court of Appeals.

Kern acknowledged that his opinion resides at the cutting edge of the law.

“The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the US Constitution,” Kern wrote.

“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,” he said.

The judge observed that the legal landscape in same-sex marriage cases had changed markedly as a result of the Supreme Court’s landmark decision last June striking down the federal Defense of Marriage Act.

“There is no precise legal label for what has occurred in Supreme Court jurisprudence,” the judge said, “but this Court knows a rhetorical shift when it sees one.”

Oklahoma’s constitutional amendment was passed in 2004, shortly after the Supreme Judicial Court in Massachusetts declared that the Massachusetts constitution required recognition of same-sex marriages.

The Oklahoma ban passed the Oklahoma Senate by a vote of 38 to 7, and the Oklahoma House, 92 to 4.

In reaching his decision, Kern rejected all four justifications offered by Oklahoma officials seeking to defend the same-sex marriage ban. They had argued that the ban would help encourage responsible procreation by encouraging opposite-sex couples to marry.

They also argued that excluding same-sex couples from marriage would promote an optimal child-rearing environment involving children being raised by their biological father and mother. And they said that permitting same-sex marriage would have a negative impact on heterosexual marriage and undercut the traditional institution of marriage.

The judge said the final reason was “just a kinder way of describing the state’s moral disapproval of same-sex couples.”

“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,” Kern wrote in his 68-page ruling.

“It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships,” he added.