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.”
Tulsa attorney Louis Bullock, who has represented clients in Kern’s courtroom, said that, despite the import of the same-sex marriage decision, parts of it were “as dry as crackers” to read.
“It does not make for exciting reading because he goes through all of the arguments in a dispassionate way,” Bullock said.
Criticism of Kern from state officials has been mostly muted. Gov. Mary Fallin and Attorney General Scott Pruitt referred to him as “the federal government” in statements against the ruling.
Tony Perkins, president of the conservative Family Research Council, called Kern an activist judge who was “overrunning both the constitution and the rule of law in a drive to fundamentally alter America's moral, political and cultural landscape.”
Who’s the judge?
Kern primarily was a defendant’s lawyer when he was nominated for the federal bench. His typical clients were insurance companies, banks, real estate firms, small businesses and individuals who had been sued for personal injury, product liability and other matters.
He was born in Clinton and grew up in Ponca City. He got his bachelor’s degree at Oklahoma State University and his law degree at the University of Oklahoma, served in the U.S. Army Guard and Reserves and did a short stint as an attorney for the Federal Trade Commission before settling into practicing law in Ardmore. He was president of the Oklahoma Bar Association in 1991.
Nominated for the federal judgeship by President Bill Clinton and enthusiastically embraced by both of Oklahoma’s U.S. senators in 1994 — Democrat David Boren and Republican Don Nickles — Kern breezed through the confirmation process. On the questionnaire he filled out for the Senate, he listed his name as Terry; at some point on the bench, he became Terence.
Bullock, a plaintiff’s attorney whose work has led to federal supervision of Oklahoma’s prison system and state institutions for the mentally disabled, praised Kern’s approach to cases.
“My experience with Judge Kern is that he works hard to follow the law,” Bullock said. “That, in my view, is exactly what a plantiff’s lawyer wants in a judge.”
Kern makes everyone in the courtroom feel respected, Bullock said, adding that he “operates the courtroom as a fair place when he puts on the robe.” Bullock and Levit said the judge ran a tight ship.
A rhetorical shift
There never was a trial in the same-sex marriage case; both sides asked Kern to decide the issues. His decision may be part of a landmark U.S. Supreme Court ruling on whether states can prohibit same-sex marriage.
In his decision, Kern wrote, “The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution.
“However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence ... but this Court knows a rhetorical shift when it sees one.”