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Same-sex marriage ban harms couples and children, lesbian couples argue in appeal

Attorneys for Oklahoma couples who successfully challenged state marriage ban say discrimination against gay couples is on par with gender discrimination.
by Chris Casteel Published: March 18, 2014
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WASHINGTON — Oklahoma’s ban on same-sex marriage causes far-reaching harm to thousands of couples in the state and their children, attorneys for two lesbian couples argued in a brief filed Monday with a federal appeals court.

The ban, approved in 2004, was based on “deeply held — but constitutionally impermissible — moral disapproval” and cannot withstand scrutiny under the 14th Amendment’s guarantees of due process and equal protection, the attorneys said.

Denying marriage to same-sex couples “writes inequality across countless areas of law that confer substantial benefits and obligations based on marital status, and harms as well as humiliates a growing number of children raised by same-sex couples who are legally classified as strangers by their state,” the brief states.

U.S. District Judge Terence Kern, of Tulsa, struck down Oklahoma’s constitutional ban on same-sex marriage in January, ruling that it violated the couple’s 14th Amendment right to equal protection under the law for no rational reason.

Kern’s ruling was that Oklahoma couldn’t meet even the least stringent standard — rational basis — for a law that didn’t afford the same rights to all.

Attorneys for the Oklahoma couples — including University of Oklahoma law professor Joseph Thai and Norman attorney Don Holladay — argued in their brief that Oklahoma’s law should be subjected to a tougher standard than Kern applied.

“In fact, intermediate scrutiny should be the appropriate level of review,” they argued to the appeals court.

“In all critical respects — including a long history of severe discrimination against gays and lesbians that persists today — classifications on the basis of sexual orientation warrant the same level of skepticism, and demand the same level of justification, as discrimination on the basis of gender.”

Appeal on fast track

The Oklahoma appeal is on a fast track at the 10th U.S. Circuit Court of Appeals, along with an appeal from Utah, where a judge in December struck down a state constitutional ban. Oral arguments in the Utah case are set for April 10; arguments in the Oklahoma case will be held on April 17. The same panel of judges will hear both cases in Denver.

Since Kern ruled against Oklahoma’s ban, a federal judge in Texas struck down a similar ban and a federal judge in Tennessee ordered the state to recognize the marriages of three same-sex couples while a case there proceeds.

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by Chris Casteel
Washington Bureau
Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. After covering the police beat, federal courts and the state Legislature in Oklahoma City, he moved to Washington in 1990, where...
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