Bishop v. United States: Oklahoma gay marriage

[cannon_fodder]

I had a couple discussions about the "Oklahoma gay marriage" case with several people.  Most had not read and will not read the holding.  They had an opinion one way or another, and wanted to discuss their opinion instead of the holding.  A non-attorney friend asked me for an "executive summary" of the case in "non-lawyery words" so I did my best to comply.  I share here.

For those interested in the holding of the Oklahoma gay marriage case.  I have condensed a 68 page ruling into a 2 page summary.  The full opinion and the amendment in question is linked at the bottom.

1.   Long discussion on jurisdictional issues, each couple had standing on different issues and were challenging different portions of the law.  The DOMA challenge was deemed moot (thrown out by SCOTUS).  In the end, §A of the Oklahoma constitutional amendment defining marriage as only between a man and a woman and prohibited legal benefits of marriage to gay couples was the only portion decided.
2.   The actual decision begins on page 30,
a.   with a discussion of a distinguished case (holding Baker v. Nelson, 1972, which held that gay marriage laws in MN are not a Federal Question, does not apply because circumstances have materially changed);
b.   discussing the impact of Windsor (2013 Supreme Court holding that DOMA identified a subset of marriages and made them unequal in violation of the US Constitution); and
c.   a discussion of how marriage works in Oklahoma (apply for a State license [cannot be related, cannot be currently married, must be 18 or..., and cannot be same sex], have a ceremony to "solemnize" the marriage, file the marriage license and the marriage certificate with the State).

3.   Starting on Page 41 the Court goes into the equal protection discussion (legal holding)
a.   Does the challenged state action intentionally discriminate between groups of persons? And if so...
b.   Can state's intentional decision to discriminate be justified by reference to some legitimate government purpose?  If no... it is unconstitutional and the State cannot do it.

4.   Does it discriminate?   Yes, yes it does. (starting on P. 42)
a.   The group singled out is "Same-sex couples desiring an Oklahoma marriage license"
b.   The amendment prevents every same-sex couple in Oklahoma from receiving a marriage license, and no one else.
c.   The amendment was adopted for the purpose of excluding some Oklahoma citizens from marriage (citing many statements from politicians on their intent).  "Exclusion of a defined class was nota  hidden or ulterior motive, it was consistently communicated to Oklahoma citizens as justification for SQ 711."  P.
d.   "This is a classic, class-based equal protection case in which a line was purposefully drawn between two groups of Oklahoma citizens"

5.   Is the intentional discrimination justified?  No, no it is not. (starting on P. 47)
a.   Sexual orientation is not a protected or suspect class (race, religion, etc.), so the government only needs a "rational basis" to discriminate against homosexuals.
b.   The government needs to show "any conceivable state of facts that couple provide a rational basis for the classification" and discrimination.
c.   The state fails to show any rational basis for the following reasons:

6.   What were the stated basis , and why they are not rational? (starting on p. 53)
a.   Promoting Morality – moral disapproval of a class of persons is not a permissible justification for a law discriminating against them
b.   Encouraging Procreating – We don't require anyone else to procreate, or have the ability to procreate in order to get married.  Also, banning gay marriage is not likely to encourage anyone to procreate that wasn't already considering it (can't get gay married?  OK fine, I'll have a baby with a man).
c.   Responsible Procreation – it is in the state's interest to encourage couples to have children in wedlock (reduces the burden the chances of the State having to pay for the kid), but there is no link between gay marriage and the goal of having procreating couples be married.    "Permitting same-sex couples to receive a marriage license does not harm, erode, or somehow water-down the "procreative" origins of the marriage institution" any more than marriage of couples who cannot 'naturally procreate' or do not wish to 'naturally procreate."  Also – if the stated goal is to have children born into married couples, allowing gay marriage will enhance this goal as currently unmarried gay couples can, and do have children and are prohibited from marriage.
d.   Lack of interest – the argument that the State of Oklahoma has no interest in gay marriage because it doesn't advance a State interest fails because in this instance the State took specific action to prevent it.  Not caring is not justification to ban it.
e.   Promoting the "Optimal Child-Rearing Environment" – Excluding gay couples from marriage does not make it more likely that a same-sex couple desiring or already having children will change course and marry an opposite-sex partner.  Gay marriage does not make it more likely that a heterosexual couple will decide to forgo marriage and have children out of wedlock.  Same-sex marriage does nothing to promote stability of heterosexual parenting.  No other couple is required to provide an "optimal" child rearing environment to get a marriage license.  If the goal is to promote stable, loving, financially successful, and responsible parenting by a committed couple – gay marriage actually helps this goal.
f.   Negative Impact on Marriage – No other couple is tasked with upholding the entire institution of marriage as a condition of getting a license.  Oklahoma consistently is near the top of the nation in the divorce rate for heterosexual couples, accusing same sex couples of eroding the institution of marriage is "insulting to the same-sex couples, who are human beings capable of forming loving, committed, and enduring relationships."  "Preserving the institution  of marriage" is just another inappropriate way of passing moral judgment disguised as law.
g.   NONE of the reasons hold up as rational

7.   The amendment to the Oklahoma constitution is "an arbitrary exclusion of just one class of Oklahoma citizens from a governmental benefit.  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 our 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 relationship for many years... and want 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 legally sufficient justification."  P.67

8.   "The Court declares that Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteen Amendment to the US Constitution by precluding same-sex couples from receiving an Oklahoma Marriage license."  P.67

9.   The order is STAYED in line with the Supreme Court's ruling in the Utah case.  No marriage licenses can be issued in Oklahoma to same-sex couples until the 10th Circuit rules.

The full case (68 pages) is available here:
http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/A_U.S.%20news/US-news-PDFs/130114-oklahoma-marriage-ruling-maj.pdf

The section of the Oklahoma constitution that has been struck down is here:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=441397

[Conan71]

Well-written CF.

I especially like 6a and 7.

[heironymouspasparagus]

Thank you for that!

[nathanm]

Yes, thanks for that easy to understand summary, c_f!

[nathanm]

Sorry, I just have to highlight this bit of orwellian newspeak on the part of the defendant's attorneys:

Smith is represented by ... attorneys with an organization known as the "Alliance Defending Freedom."

[jacobi]

Wow!  Well done, cf.  Now, what recourse do people like the governor have to overturn this ruling?  Things this good never last in OK.  What's next?  Reasonable liquor laws?


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[Ed W]

I expect that when this is final and the state loses its appeal, Fallin & Co. will do everything possible to delay or deny implementation.

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[custosnox]

Mind if I repost this on my blog?

[cannon_fodder]

Mind if I repost this on my blog?

Post away, feel free to clean it up.  Also please post the link to the full version.

[custosnox]

Post away, feel free to clean it up.  Also please post the link to the full version.

will do

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[custosnox]

Post away, feel free to clean it up.  Also please post the link to the full version.

Done, and just quoted you straight from the post. You did such a great job I didn't see any need to clean it up. If your interested, here is the link.

http://corylgage.wordpress.com/2014/01/17/judges-doing-what-judges-do-go-figure/

[guido911]

Looks like there will be an appeal and another attempt at legislating this issue.

[jacobi]

Looks like there will be an appeal and another attempt at legislating this issue.

I knew it would happen.  I wonder of they think that passing it again will make it any less unconstitutional.


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[Conan71]

A number of conservative voices are expressing disappointment over Oklahoma's surprise ruling on same-sex marriage earlier this week.

Oklahoma State Rep. Sally Kern, who sparked outrage among lesbian, gay, bisexual and transgender (LGBT) rights advocates in 2008 when she announced "the homosexual agenda is just destroying this nation," re-iterated those views in a new interview with local news channel News on 6.

"Homosexuality is not a civil right, it's a human wrong," she said.

Kern then went on to note, "Homosexuals are saying, 'This is who we are. This is how we're born.' You tell a lie long enough, people start to believe it."

Echoing Kern's sentiments as part of the same broadcast was former state lawmaker James Williamson, who drafted Oklahoma's constitutional amendment banning same-sex marriage in 2004. Still, Williamson said the new ruling didn't surprise him.

Although U.S. District Judge Terrence Kern ruled that Oklahoma's gay marriage ban violated the U.S. Constitution Jan. 14, same-sex marriages won't be taking place in the state for quite some time. The ruling is expected to be fought in court, according to reports.

http://www.huffingtonpost.com/2014/01/16/sally-kern-gay-marriage-_n_4610329.html

Someone needs to explain to Sally that sexual orientation is not a reason to deny someone civil rights based on religious moral code.  We are a nation which was formed with the concept of freedom from religious oppression.  If this isn't a form of religious oppression, I'd like to see a valid argument denying it.  To date, I've not seen it yet.  That's what the far right conservatives keep missing on this issue. 

I don't want to be gay married, but I fail to see why it's okay to keep denying certain civil rights that others enjoy because of their heterosexual orientation.

Here's the full story on Turner's new bill.  If it's been ruled unconstitutional once, why would it not be ruled unconstitutional again?

OKLAHOMA CITY — An Oklahoma lawmaker has filed a bill that would call for a second vote to change the Oklahoma Constitution to ban gay marriage.

Rep. Mike Turner, R-Edmond, on Tuesday said he filed the measure, House Joint Resolution 1076, in anticipation that the state's current constitutional ban on gay marriage would be struck down.

A federal district judge in Tulsa on Jan. 14 tossed out a 2004 voter approved constitutional ban on gay marriage. However, U.S. Senior District Judge Terence Kern stayed his ruling pending an appeal, which has been filed. Kern ruled that it violated the Equal Protection clause of the Fourteenth Amendment.

"Equal protection is at the very heart of our legal system and central to our consent to be governed," Kern wrote. "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 the individual constitutional rights."

Two lesbian couples — Sue Barton and Gay Phillips, and Mary Bishop and Sharon Baldwin — filed the lawsuit in 2004 after the election. Bishop and Baldwin are Tulsa World editors.

After an earlier ruling in Utah, Turner said he had an inclination that the Oklahoma court would do something similar and thought it was necessary to give House leadership the "opportunity" to have "an arrow in the quiver" and a vehicle to proceed if the Constitutional amendment was overturned.
He has also filed a shell bill, House Bill 2466, dubbed the "Preservation of Marriage Act." It contains no substantial language and can be modified, as can the other measure.

"I think House leadership will be responsible and wait until we have reached our own legal consensus until we make a move on those," Turner said of the measures.

Turner said he opposes the recognition of gay marriage and believes marriage should be between a man and a woman.

Toby Jenkins, executive director of Oklahomans for Equality, said the public's opinion on the issue has changed in the last 10 years. Gay people want to be part of the American family and are not trying to redefine it, Jenkins said. "We want to protect our children and have the same benefits that our neighbors do when they have long-lasting relationships," Jenkins said.

"The law is unconstitutional and any effort to reinstate it or reinvigorate it is will be a waste of time and money," said Laura Belmonte, chair of The Equality Network.

She said there are more pressing issues facing the state. "Many Oklahomans really want our legislators to focus on things like improving education, public safety and economic development and are growing increasingly tired of the Legislature passing bills that are unconstitutional and really do nothing," Belmonte said.

http://www.tulsaworld.com/homepage3/edmond-lawmaker-files-bill-for-second-vote-to-ban-gay/article_8163e57a-82f3-11e3-8718-001a4bcf6878.html

[AquaMan]

Why wouldn't they keep trying to pass it? It costs them personally nothing. In fact being associated with the effort makes it easier to fund the next election cycle.

If this legislation is on the agenda every session, followed by court decisions, they have effectively prohibited gay marriage in OK. Expensive strategy for the tax payer, but we elected them so we deserve the treatment.