“Brand new state, gonna treat you great!”
U.S. District Court judge Terence C. Kern, appointed a federal trial judge in 1994, held on January 14, 2014 that Oklahoma’s exclusion of same-sex couples from marriage, enshrined in its state constitution in 2004, violates the Equal Protection Clause of the U.S. Constitution. That’s a lot of anniversaries in that sentence, and, if the decision is upheld on appeal – he stayed his orders in light of the Supreme Court’s having stayed the judicial injunction against Utah’s marriage exclusion – it will eventually lead to anniversary celebrations for same-sex couples in the Sooner State (the sooner the better!).
|(AP Photo/Tulsa World, James Gibbard)|
Two lesbian couples, Gay Phillips and Sue Barton, and Mary Bishop and Sharon Baldwin, filed a federal lawsuit in 2004 challenging both Oklahoma’s exclusion of same-sex couples from marriage and the federal “Defense of Marriage Act” (“DOMA”) as violating their constitutional right to marry and right to equal protection of the laws.After a long procedural history, Judge Kern dismissed the challenge to DOMA’s definition of marriage as different-sex because the Supreme Court already ruled that unconstitutional in June 2013; dismissed the challenge to DOMA’s section purporting to give states permission not to recognize marriages of same-sex couples from other jurisdictions, concluding that it was not causing Oklahoma to deny the couples marriage licenses; and held that Oklahoma’s marriage ban lacked a rational basis for denying marriage to same-sex couples and so violated equal protection. (The court therefore did not reach the question whether the ban also violates the fundamental right to marry protected by the Constitution’s Due Process Clause. The court also dismissed the challenge to the Oklahoma provision denying recognition to valid marriages of same-sex couples from other jurisdictions because it concluded the plaintiffs had sued the wrong defendants, who lacked authority to “recognize” any out-of-state marriages.)
The court properly concluded that the Supreme Court’s summary (without opinion) affirmance in 1972 in Baker v. Nelson of a decision rejecting constitutional challenges to Minnesota’s exclusion of same-sex couples from marriage did not require courts today to reject such cases; the Supreme court’s equal protection jurisprudence has evolved too much for Baker’s unexplained decision to be binding any more. The Court also concluded that the Supreme Court’s decision striking down DOMA’s heterosexual-only definition of marriage in Windsor did not directly dictate a conclusion either way. Unlike DOMA, Oklahoma’s marriage law did not involved an unusual federal intrusion into the regulation of marriage, something traditionally conducted by states, so the court here viewed Oklahoma’s law with less suspicion than the Supreme Court had for DOMA. On the other hand, the trial court here in the Bishop case correctly appreciated that Windsor says even state definitions of marriage must not violate federal constitutional rights, and it read Windsor to caution against accepting invocation of tradition that might be “a guise for impermissible discrimination against same-sex couples.”
In its equal protection analysis, the trial court somewhat gratuitously rejected the argument that Oklahoma’s marriage exclusion should be analyzed as sex discrimination, as the federal trial court in Utah had recently concluded. Instead, because he saw the law as discriminating against same-sex couples, he judged it tantamount to sexual orientation discrimination. Tenth Circuit Court of Appeals precedent treats sexual orientation discrimination as not suspect of even quasi-suspect, so courts examine it using only the deferential standard of “rational basis review” (instead of a more skeptical “heightened,” “intermediate,” or “strict scrutiny”).
Yet, the court concluded, Oklahoma’s marriage exclusion failed even “deferential rationality review.” Assuming for sake of argument “that Oklahoma has a legitimate interest in encouraging “responsible procreation,’ (i.e., procreation within marriage), and in steering ‘naturally procreative’ relationships into marriage, in order to reduce the number of children born out of wedlock and reduce economic burdens on the State,” the court nonetheless found no rational connection between Oklahoma’s marriage ban and these interests. Couples need not want or even be able to procreate in order to marry; letting same-sex couples marry would “not harm, erode, or somehow water-down the ‘procreative’ origins of the marriage institution, any more than” allowing couples who could not or did not want themselves to procreate “naturally”; marriage would still offer the same incentives to couples who might contemplate such procreation; and especially in light of the fact that same-sex couples do have and raise children by various means, Oklahoma’s “purported justification simply ‘makes no sense’ in light of how Oklahoma treats other non-procreative couples” who want to marry. Even if same-sex couples are not as likely to have an accidental pregnancy as different-sex couples, that does not provide the constitutionally required rational basis: “the state’s exclusion of only same-sex couples in this case is so grossly underinclusive that it is irrational and arbitrary.” Although it is deferential, “[r]ationality review has a limit, and this [argument] well exceeds it.”
The trial court also rejected the notion “that excluding same-sex couples is rationally related to the goal of ‘promoting’ the ‘ideal’ family unit.” The court observed that “[e]xclusion 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” nor could the judge “discern from any of [the defendant’s] cited materials, how exclusion of same-sex couples from marriage makes it more likely that opposite-sex marriages will stay [intact].” Chiding the state or at least suggesting hypocrisy, the court noted that “[e]xcluding 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.” (Snap!)
Relying on a publication from the conservative Witherspoon Institute, the defense also argued “that “it is rational for Oklahoma voters to believe that fundamentally redefining marriage could have a severe and negative impact on the institution as a whole.” The court rejected this fearmongering “negative-impact’ argument” as “impermissibly tied to moral disapproval of same-sex couples as a class….’ In language echoing (though without citing) Justice Alito’s defense in Windsor, where Alito would have upheld DOMA on the grounds that voters could supposedly permissibly choose between a “traditional,” “conjugal” view of marriage and a “newer,” “consent-based view,” the district court noted that “[a]ll of these perceived ‘threats’ are to one view of the marriage institution – a view that is bound up in procreation, one morally ‘ideal’ parenting model, and sexual fidelity.” But a serious problem with this line of defense of the exclusion of same-sex couples from marriage is that “civil marriage in Oklahoma is not an institution with ‘moral’ requirements for any other group of citizens:
“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.”
Accordingly, the trial court held Oklahoma’s marriage discrimination against same-sex couples to be an unconstitutional deprivation of the equal protection of the laws commanded by the Fourteenth Amendment to the U.S. Constitution. “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.” Indeed.