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Tulsa County court clerk defends state right to define marriage

by Chris Casteel Published: April 2, 2014

The 10th Circuit Court of Appeals should uphold Oklahoma’s ban on same-sex marriage because the U.S. Supreme Court ruled last year that states have the power to define marriage, attorneys defending the law said in a brief filed Tuesday night.
If the appeals court rules that the Oklahoma ban on same-sex marriage is unconstitutional, the ruling “would permanently install a genderless-marriage institution as federal domestic-relations policy nationwide. In that world, the People could never recapture the man-woman marriage institution, regardless of what the best interests of society might dictate,” according to the brief filed by Alliance Defending Freedom, a Christian legal group representing Tulsa County Court Clerk Sally Howe Smith in the case.
U.S. District Judge Terence Kern, of Tulsa, in January struck down Oklahoma’s voter-passed ban on same-sex marriage, ruling that it violated a lesbian couple’s 14th Amendment right to equal protection under the law without a rational reason.
Smith has appealed Kern’s decision to the 10th Circuit Court of Appeals, based in Denver. The court is considering the Oklahoma case in concert with a similar case from Utah, where a state ban was also struck down by a federal judge.
Oral arguments in the Oklahoma case are set for April 17.
The U.S. Supreme Court last year struck down a key provision of the federal Defense of Marriage Act that denied federal benefits to same-sex couples.
Smith argued in the brief filed Tuesday that the justices in the DOMA case reaffirmed states’ rights to define marriage.
“The Supreme Court recently stressed that the States have ‘essential authority to define the marital relation’ … that the power to define marriage is within the “province of the States’ … and that the federal government traditionally “defer(s) to (such) state-law policy decisions,’” the brief states.
“Plaintiffs treat as empty rhetoric all these assurances of the State’s authority over the definition of marriage, effectively arguing that the Fourteenth Amendment requires a genderless definition of marriage throughout the Nation.”
The Christian legal group defending the Tulsa County Court Clerk also takes the position in the new brief that the U.S. Supreme Court was right to strike down the Defense of Marriage Act provision.
The brief says “DOMA’s effect on same-sex couples was entirely gratuitous and unwarranted because it resulted from the federal government’s meddling with a topic, the definition of marriage, over which it has no authority.
“Here in contrast, the (Oklahoma) Marriage Amendment’s effect on same-sex couples is the incidental result of the State’s exercising its essential authority to maintain the man-woman marriage institution and thereby preserve marriage’s efficacy in accomplishing the procreative and child-related interests it has always served.
“In other words, while the federal government had no legitimate interest in enacting DOMA, the State (as demonstrated) has legitimate and compelling reasons for affirming the man-woman marriage institution.”

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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