WASHINGTON — A federal judge in Tulsa struck down Oklahoma's ban on same-sex marriage as unconstitutional on Tuesday but prevented his ruling from going into effect while the issue makes its way through appeals.
Senior U.S. District Judge Terence C. Kern, ruling more than nine years after Oklahoma voters overwhelmingly approved a statewide question to prohibit same-sex marriage, said the ban discriminated against same-sex couples for no rational reason.
After dissecting the arguments supporters voiced to justify the ban, Kern said that “moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification.”
Moreover, he said, protecting the sanctity of marriage wasn't a valid reason for the ban, given Oklahoma's high divorce rate of opposite-sex couples, and encouraging procreation wasn't logical either since opposite-sex couples aren't required to say they'll produce offspring in order to get a marriage license.
“Equal protection is at the very heart of our legal system and central to our consent to be governed,” Kern said in his 68-page decision.
“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.”
Don Holladay, the Norman attorney who took over the case after it lost steam several years ago, said Tuesday, “It's a good victory for marriage equality. It's a good victory for couples who have lived together for years in committed relationships.”
A federal judge in Utah last month struck down that state's ban on gay marriage — passed in 2004, the same year as Oklahoma's — and the 10th U.S. Circuit Court of Appeals has agreed to hear an appeal from Utah on a fast track.
Oklahoma is in the same federal circuit as Utah, and Holladay said he hopes the two cases are combined. The U.S. Supreme Court last week put gay marriages on hold in Utah while the appeals court hears the case, but U.S. Attorney General Eric Holder said the marriages that already had occurred would be recognized by the federal government.
Tulsa County Court Clerk Sally Howe Smith was the primary defendant in the challenge to the state ban because she declined to issue a marriage license to a same-sex couple. She was represented in the case by an Arizona group called Alliance Defending Freedom.
Byron Babione, an attorney for the group, said Tuesday that Kern's decision ignores the “time-tested and rational definition of marriage — affirmed by 76 percent of Oklahoma voters — and replaces it with the recently conceived notion that marriage is little more than special government recognition for close relationships.”
“A court should not impose this novel view of marriage on the people of Oklahoma. We will review the decision with our client, the Tulsa County clerk, and consider her next steps.”
Oklahoma Attorney General Scott Pruitt called the decision “troubling” and said Tuesday that the issue “most likely will end up at the U.S. Supreme Court and the outcome will dictate whether Oklahoma's constitutional provision will be upheld.”