WASHINGTON — Nearly 20 years ago, Terry C. Kern told the U.S. Senate Judiciary Committee that he had reviewed his country club’s by-laws in the 1970s and found a provision that was, “frankly, discriminatory.”
Kern, who was then an attorney in Ardmore, was appearing before the Senate panel as a nominee for a U.S. judgeship in the district based in Tulsa.
He told the committee members that he pointed out the discriminatory language to the club’s chairman and it was removed.
Last month, Kern, now a senior U.S. district judge, expressed his legal opinion about equal treatment on a much broader scale, ruling that an Oklahoma law banning same-sex marriage discriminated against same-sex couples and violated the 14th Amendment’s equal protection clause.
“Equal protection is at the very heart of our legal system and central to our consent to be governed,” Kern wrote in his Jan. 14 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.”
Kern has presided over many high-profile and controversial cases in almost two decades on the federal bench — a fraud suit involving the Koch brothers, racial discrimination claims against the city of Tulsa, a battle over a drug used for lethal injections — but his name became part of a big national story with the same-sex marriage decision, and his reasoning in the case soon will be considered by the 10th U.S. Circuit Court of Appeals.
A long-awaited decision
The Oklahoma case — along with a similar one from Utah, which is also part of the 10th Circuit — is ultimately expected to reach the U.S. Supreme Court, probably later this year.
That would be extraordinarily fast movement for a case that took nine years to get to a decision. Kern got the case when he was 60, took senior status in the midst of it, and issued his opinion at age 69.
A host of circumstances drove the delays. Five years in, the case had to be reworked by a new attorney for the two lesbian couples who brought the challenge. Then, the U.S. Supreme Court accepted two same-sex marriage cases, and action on the issue at district courts across the country stalled as judges awaited guidance from the high court.
After a federal judge in Utah struck down that state’s ban on same-sex marriage in December and the decision was immediately challenged to the 10th Circuit Court, some wondered if Kern would even render a decision in the Oklahoma case. Any decision reached by the appeals court on the Utah law would apply to Oklahoma and other states in the circuit.
But three weeks after the Utah decision, Kern released a 68-page opinion that reflected a close analysis of the arguments, the precedents and volumes of materials submitted by the parties on both sides.
Attorney Ken Levit, who was a clerk for Kern shortly after the judge took the bench in 1994, called Kern “a super fair person and not an ideologue.”
Levit, now the executive director of the George Kaiser Family Foundation in Tulsa, said he didn’t think people who knew the judge could have predicted how Kern would rule in the same-sex marriage case “because it wouldn’t come to mind that he would be leaning one way or the other.”
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