A federal judge invalidated Oklahoma’s constitutional amendment banning same-sex marriage late Tuesday, finding that it violated the Fourteenth Amendment’s equal protection clause. In a ruling that is the culmination of ten years of litigation, U.S. District Judge Terence Kern rejected Oklahoma’s stated child-rearing and moral reasons for banning same-sex marriage as “so attenuated” that exclusion cannot survive even the most basic level of court review. Kern writes:
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. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.
The court cites the U.S. Supreme Court’s ruling last term in United States v. Windsor that struck down the Defense of Marriage Act in finding that courts “must be wary of whether ‘defending’ traditional marriage is a guise for impermissible discrimination against same-sex couples.” Kern also rejected a host of arguments about marriage’s relationship to procreation, writing, “same-sex couples are being subjected to a ‘naturally procreative’ requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate.”
The ruling is a win for two lesbian coupes who have been litigating this case for more than ten years, and follows on the heels of similar rulings in New Mexico and Utah. But it was put on hold pending appeal, so the ban remains in effect for the time being.