Oklahoma's Voter-Approved Gay Marriage Ban Ruled Unconstitutional

January 15, 2014

A Tulsa-based federal judge on Tuesday ruled that an Oklahoma constitutional amendment that precludes same-sex couples from receiving state marriage licenses violates the U.S. Constitution.

U.S. Senior District Judge Terence Kern ruled that Part A of the amendment, approved by Oklahoma voters in November 2004, violates the Equal Protection Clause of the Fourteenth Amendment.

"Equal protection is at the very heart of our legal system and central to our consent to be governed," Kern wrote. "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 wrote that his review "reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."

Two lesbian couples — Sue Barton and Gay Phillips, and Mary Bishop and Sharon Baldwin — filed the lawsuit in 2004 in the immediate aftermath of the election.

There has been a flurry of activity in nation's courts regarding same-sex marriage since June when the U.S. Supreme Court ruled in the United States v. Windsor case that the federal Defense of Marriage Act's section defining marriage as being between one man and one woman was unconstitutional.

The Tulsa case was stayed while the Windsor case was pending.

Kern stayed execution of the permanent injunction he issued on Tuesday until the final disposition of any appeal to the 10th U.S. Circuit Court of Appeals. Still, the ruling set off celebrations in some quarters.

Toby Jenkins, executive director of Oklahomans for Equality, said Tuesday, "It's a great day to be gay in Oklahoma."

Jenkins said champagne had been chilling for a long time in anticipation of a celebration at the Dennis R. Neill Equality Center, 621 E. Fourth St., in the event of such a ruling.

The party featured a cake with rainbow frosting with "Congratulations Oklahoma" spelled out across the top.

Jenkins said those who voted for the amendment in 2004 "voted against their neighbors" when actually gay people were seeking "to strengthen our families and strengthen our relationships."

However, not everybody was glad to hear the news.

Gov. Mary Fallin issued a statement saying, "In 2004, the people of Oklahoma voted to amend the state's constitution to define marriage as 'the union of one man and one woman.' ... The people of Oklahoma have spoken on this issue. I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government."

Last Friday, U.S. Attorney General Eric Holder said the federal government would recognize same-sex unions in Utah. On Dec. 20, a federal judge there overturned Utah's ban on same-sex marriage and hundreds of couples got married.

However, the U.S. Supreme Court intervened last week and put a halt to the Utah weddings until the courts sort out the matter.

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