Federal Judge Declares Oklahoma’s Ban on Gay Marriage Unconstitutional


U.S. District Judge Terence Kern has ruled Oklahoma's ban on same-sex marriage is unconstitutional but the ruling has been stayed pending appeal, HRC reports:

“Judge Kern has come to the conclusion that so many have before him – that the fundamental equality of lesbian and gay couples is guaranteed by the United States Constitution.  With last year’s historic victories at the Supreme Court guiding the way, it is clear that we are on a path to full and equal citizenship for all lesbian, gay, bisexual and transgender Americans.  Equality is not just for the coasts anymore, and today’s news from Oklahoma shows that time has come for fairness and dignity to reach every American in all 50 states.”
Two plaintiff couples, Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton, filed their case, Bishop v. Oklahoma, in the U.S. District Court for the Northern District of Oklahoma in November 2004.  Lead counsel in the case are Don Holladay and James Warner of the Oklahoma City law firm Holladay & Chilton PLLC.   

The NYT adds:

The state’s ban on marriage by gay and lesbian couples is “an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit,” wrote Judge Terence C. Kern of United States District Court for the Northern District of Oklahoma, in Tulsa, deciding a case that had languished for nine years. The amendment, he said, is based on “moral disapproval” and does not advance the state’s asserted interests in promoting heterosexual marriage or the welfare of children.

Towleroad reported on the case in December, while Oklahoma was still stalling on the ruling, nine years after the lawsuit was first filed.

Towleroad's Sean Mandell wrote, back in August, that the case was revived after the SCOTUS ruling on DOMA:

A 2004 challenge to the state's ban on same-sex marriage has been in a holding pattern for over a year while the federal court in Tulsa waited for the outcome of several high profile gay marriage cases including Hollingsworth v. Perry and United States v. Windsor. The couples who first brought the suit, Mary Bishop and Sharon Baldwin and Susan Barton and Gay Phillips, are challenging not only Oklahoma's ban on same-sex marriage but also a crucial part of DOMA not addressed in the Supreme Court's recent landmark ruling, the section that "allows states not to recognize gay marriages performed in other states."


  1. ben~andy says

    As a former resident of Tulsee Town [61st and Peoria], congrats to my dear friends back there. It won’t be too long now. I’m sure, besides a certain governor, there’s a certain fundamentalist bible college preacher who’s spinning in his grave over this. He didn’t live long enough to see the day, but from whatever his current vantage point [I’m going with Hell, but Pergatory would be a dead loss for him too], he’s not a happy camper.

  2. Sally Kern's Nuts In A Vice says

    The State should have to pay monetary damages, with interest, in perpetuity. Reallocate Sally Kern’s pension toward damages for affected plaintiffs. Hit them where it hurts most.

  3. ben~andy says

    There was a comment about the Arizona cases that mentioned they’re going to be heard in the 10th [or making the point that AZ isn’t in the 9th]. But AZ IS in the 9th [which they kinda hate], so is there something special about those AZ cases or was the person just wrong about it?

  4. ben~andy says

    Sally Kern is her married name. Her husband, Steve Kern is pastor of the Mt. Olivet Baptist Church in the OKC area. There slogan is “The end of your search for a friendly church”.

    What a terrible place to stop. Probably through dismay, but still; try anyplace else. It could only be better than there.

  5. KJPNYC says

    Shock and awe is all I can say. I grew up in this hideous state filled with the most hostile Xianist fascists you can imagine. I was bullied tortured and often considered suicide as the only way out. My parents still live there, but it has been years since I have been back because the memories are just too painful for me. My parents are total liberals by the way and very nice people. I am telling you there will be blood on the streets before a legally binding gay marriage happens in Oklahoma.

  6. BRIAN says

    The Arizona case (Connolly, et al v. Brewer) was filed in the District of Arizona. The case will be heard by a federal judge assigned to the District of Arizona. The appeal (and there will be an appeal) will be heard by the Ninth Circuit Court of Appeals (three-judge panel with an option for en banc, or a full bench).

    There is no chance that the Arizona case would ever be transferred to another District court or Circuit. There’s no perceived/reasonable prejudice shown by the judiciary.

    The 11th Circuit just ruled against a defendant that requested the entire Circuit be recused from his appeal due to a perceived bias caused by his guilty verdict 20 years ago in murdering an 11th Circuit judge and sending a bomb to a Circuit courthouse.

    Anyways. This case will never leave the Ninth Circuit.

  7. Francis says

    Although there was a stay, and yes, just like Utah, it’s not as if Oklahoma citizens support marriage equality, but momentum is on our side (obviously). Target Obama/Clinton appointees, file suits against a state’s marriage ban, and watch the state bans get ruled unconstitutional. That’s what we’re seeing and we’re going to keep seeing. This fight is just about over.

  8. ben~andy says

    The “sovereign nations” concept muddies the river if a state has to recognize marriages legal on native lands. Rather than being like another US state, a reservation is more like a different country, just one established by treaty with the US. It is vastly complicated law.

  9. MiddleoftheRoader says

    The Judge’s 68-page ruling is an excellent repetition, but in his own words, of what other courts have decided (as in Utah). However, the Judge also has pointed out that the Supreme Court’s Windsor decision does NOT lead to the automatic conclusion that state cannot prohibit same-sex marriage. The Judge has candidly admitted that he has taken the Windsor decision to its next step to reach that result.

    The bottom line is that although the US Supreme Court may ultimately agree that states cannot prohibit same-sex marriage, there is enough wiggle-room in Justice Kennedy’s Windsor decision to allow a contrary result. As before, it will come down to Justice Kennedy, and that will be at least a year (or more) away.

  10. Brian says

    We have to stand up and fight back to stop this egregious abuse of judicial power!
    Please click here to make an end-of-the-year donation to the National Organization for Marriage right away and help us defend marriage from radical judges seeking to overturn the will of We the People and to impose their radical social agenda on ordinary Americans!
    Pig head Brown

  11. steven says

    the more the various circuits are concluding that DOMA and Windsor are too narrow the more likely the case goes to the supremes, I find if very hard to conceive of a SCOTUS reversing rulings on all of these various cases, which are on various parts of the constitution and would have to be decided separately. My suspicion is that other than Scalia and his puppet, what’shisname, most would like to leave it at the appeals courts level and become law by accretion rather than the SCOTUS knocking the stuffings out of all holy roller types. by leaving gay rights to happen by the circuits, there would always be wriggle room to fundraise for other right wing causes and eventually declare homosexual rights not needed because like racism homophobia no longer exists.

  12. steven says

    Brian, like desegregation? like sodomy? like miscegenation? Leaving decisions on “rights” to the public means we would still have slavery. Go back to your page on NOM.

  13. Howard B says

    @Steven, I think you are right up to a point. SCOTUS does not want to touch this so soon after Windsor and Prop 8, but if the Circuit Courts start issuing conflicting rulings then they will have to step in. My gut feeling is SCOTUS will not get involved again unless they have to.

  14. Randy says

    I haven’t read the whole decision, but why weren’t Oklahoma’s marriage-banning statutes challenged at the same time? (see page 3) Even if the Oklahoma constitutional amendment is found to violate the US constitution, won’t this mean they have to start all over again to strike down the state statutes the the amendment protects?

  15. Randy says

    “Smith testified that she is not the state official connected to recognition of out-of-state marriages, and the Barton couple failed to controvert this evidence. Thus, the identity of the “appropriate State official” remains unclear.”

    Well, that’s convenient. We have a law banning recognition of out-of-state marriages that can’t be attacked, because nobody is responsible for it?!

  16. says

    Kern on Windsor
    ‘… citation to Loving is a disclaimer of enormous proportion. Arguably, the “state rights” portion of the Windsor decision stands for the unremarkable proposition that a state has broad authority to regulate marriage, so long as it does not violate its citizens’ federal constitutional rights’

    On Equality
    ‘Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions.’

    There was tons more in Justice Kern’s ruling; intent to harm, actual harm, the absurdity of state arguments for excluding same sex couples, codifying religious views of morality. He did his homework. Broad scope but very pragmatic and like Shelby not afraid to call it like it is.

    ‘With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships.’

    Kern’s chiding of Kennedy’s Windsor for not making the decision about constitutionality of state laws barring same sex marriage is IMHO misplaced. Windsor was about federal laws and the Kennedy ruling left it at that, the federal, while actually using very strong language as is always cited about state laws meeting constitutional rights.

    ‘There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.’

    Love this wonderful hat tip to the SCOTUS Justices that waded the storm to help break the tide of social injustice long endured.

    Thank you Justice Kern.

  17. Randy says

    Although much of the first half of this decision is disappointing (mootness, and lack of standing) you come across wonderful footnotes like these:

    The Court is reminded of a quote by Harriet
    Beecher Stowe: “[N]ever give up, for that is just the place and time that the tide will turn.”

  18. MiddleoftheRoader says

    In response to some good comments/ questions above:
    1) Randy: The plaintiffs did not ask the Court to find the Oklahoma anti-marriage statutes unconstitutional, only the Oklahoma constitution. That’s exactly what the Judge said, and why he said he would not rule on the statutes. Of course, it’s essentially impossible for the statutes to be valid in light of his ruling on the state constitution — but a careful lawyer would have challenged both the statute and constitution.

    2) Randy: The reason the Judge didn’t decide whether Oklahoma could refuse to recognize same-sex marriages that took place elsewhere is because the plaintiffs who married in CA (and Canada) never applied for anything from Oklahoma for which they were turned down. They didn’t try to file a joint tax return, they didn’t ask for name-changes on their drivers’ licenses, they didn’t try to transfer property as a married couple, etc. Again, another example of not-so-good lawyering. Because no state official denied them recognition for anything concrete (unlike Edie Windsor re her tax filing), the Judge is essentially without authority to decide an “abstract” dispute over recognition of their marriage.

    3) Steven (and Howard): It may not take long for there to be a conflict in US Circuit Courts (a conflict in US District Courts would not lead to US Supreme Court review because those decisions have to go through the US Circuit Courts). The Ninth Circuit is soon to decide a case from Nevada where the US District Court found that Nevada’s restriction against same-sex marriage IS constitutional; the Ninth Circuit is likely to reverse. However, the Tenth Circuit (for the Utah and Oklahoma cases) is a crap-shoot,as it is very conservative and could rule that state same-sex marriage ban are constitutional. The US Supreme Court simply cannot let conflicting decisions stand in this area of marriage (unlike many other issues where US Circuit Courts remain in conflict for many years). So as soon as at the first conflict arises between US Circuit courts, the US Supreme Court may accept review. However, let’s hope the Tenth Circuit and Ninth Circuit are in agreement, and that other Circuit Courts follow suit in the next year or two — because as you guys recognize, the more Circuit Court cases that come out in favor of same-sex marriage, the more difficult it will be more the US Supreme Court to reverse.

  19. says

    Kern ‘Barton couple’s evidentiary deficiencies’

    Barton argued ‘Tenth Circuit “has deemed [Smith] to be the appropriate party.”

    Barton relied on Tenth that county clerk was the person to sue, she claimed not so in affidavit, no statutory support, and Barton wasn’t able to refute w evidence.

    There is this line also from their DOMA 3 part
    ‘Although the Barton couple will not receive a judgment in their favor as to this claim, they have played an important role in the overall legal process leading to invalidation of Section 3 of DOMA. The Barton couple filed this lawsuit many years before it seemed likely that Section 3 would be overturned. Although other plaintiffs received the penultimate judgment finding DOMA’s definition of marriage unconstitutional, the Barton couple and their counsel are commended for their foresight, courage, and perseverance.’

  20. Randy says

    It tickles me to see statements like this (from an Oklahoma Senate press release) become self-fulfilling prophecies, as they are evidence against them for the “activist” courts they fear:

    “Many other states – from Ohio to Georgia – have taken action to provide constitutional protections to traditional marriage to combat efforts by liberals and activist judges seeking to redefine marriage by allowing same-sex unions.”

  21. NotSafeForWork says

    Randy, they didn’t ask for that relief so that’s why it wasn’t covered. The statutes are now essentially invalidated and if the appeals continue to be in our favor, will remain so. They may remain on the books similar to the sodomy laws that are still on the books in many states, but invalidated by Lawrence v Texas. It would take an act of the OK legislature to remove the statutes from OK State Code.

  22. Randy says

    “As explained above, the Court’s defined class is same-sex couples…”

    The court’s focus on couples seems an intentional ignorance of the fact that a couple isn’t a thing that exists on its own, but necessarily consists of two individuals. Even married couples, which used to be considered more like a single person, are now increasingly recognized as two people with some independent thoughts and needs.

    If these had been two people who basically just met, but decided to share accommodations to save on rent, and were denied an apartment with a nice riverfront view, because they are of the same sex, would they have been regarded as a unit, or as individuals? Their only relationship is their desire to save money together while renting a particular apartment.

    The court is wrong in defining the class as same-sex couples desiring to marry in Oklahoma. The class is individuals seeking to marry individuals of the same-sex in Oklahoma. Licenses record each individual’s name, not a name the couple might have together (e.g. “The Two Jims”). Consider any other organization… are they recognized on government forms by their full membership list, or by their group’s name?

    In any case, the discrimination is tightly-related to gender stereotypes, contrary to the court’s opinion.

  23. Randy says

    Wow. Even O’Connor doesn’t escape unscathed…

    “Justice O’Connor believed that “reasons
    exist,” … for prohibiting same-sex marriage … However, she did not explain or list what
    these “other reasons” may be, and the Court has found none present in this case.”

  24. says

    Footnote 29 p42
    It is somewhat unusual to define a class of couples, but the Court finds it proper here. The classification made by Part A is aimed only at same-sex couples who want to marry, rather than all homosexuals. A couple must apply together in person for a marriage license, and it is the fact that they are of the same sex that renders them ineligible.

  25. Mark says

    “Posted by: Sally Kern’s Nuts In A Vice | Jan 14, 2014 5:46:34 PM — The State should have to pay monetary damages, with interest, in perpetuity. Reallocate Sally Kern’s pension toward damages for affected plaintiffs. Hit them where it hurts most.”

    I agree about the damages, but a simple apology would suit me just fine.

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