Weird Bill Intended To Block Marriage Equality In Oklahoma May Totally Backfire


Rep. Todd Russ

Earlier this week, Oklahoma lawmakers took the first step in passing a bill that was originally poised to hinder marriage equality. But after a wave of criticism pressured lawmakers to tweak the measure, it now might actually end up supporting LGBT people — assuming it doesn’t send the state’s marriage system into chaos first.

On Wednesday, the Oklahoma state house passed H.B. 1125, a Republican-backed bill which has raised concerns for potentially violating the U.S. Constitution. The sponsor of the bill, state Rep. Todd Russ (R), said the proposed law was designed with two goals in mind: remove government from the business of issuing marriage licenses by requiring clergy who officiate weddings to file “certificates of marriage” on their own, and preventing judges who disapprove of marriage equality from having to officiate same-sex weddings, which are legal in the state.

“The point of my legislation is to take the state out of the process and leave marriage in the hands of the clergy,” Russ told the Oklahoman.

Russ openly admitted in an interview with ThinkProgress that the bill stemmed from his opposition to marriage equality, saying that he wrote it after the Supreme Court “crammed” same-sex marriage “down our throats” when it upheld a decision by a federal judge to strike down the state’s same-sex marriage ban last October — something Russ contends is an example of government “overreach.” He also justified the law by appealing to antiquated theocratic monarchies, telling KFOR news, “You know in the early days, the king actually went before the priest to ask for marriage.”

The initial bill was widely criticized for being unconstitutional, with LGBT advocates, Americans United for the Separation of Church and State, and news outlets blasting its requirement that only “an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination” or a rabbi be allowed to contract a formal marriage. The bill also included a provision requiring people who don’t want a clergy person to officiate their wedding — such as atheists or members of some religions — to file for “common law” marriages instead of traditional ones. Taken together, the measure was accused of privileging religiously-sanctioned marriages over others, and almost certainly violated the establishment clause in the First Amendment, which demands that “Congress shall make no law respecting an establishment of religion.”

Oddly, if the bill’s goal was to inhibit same-sex couples from getting married, it failed out of the gate. Troy Stevenson, head of the LGBT advocacy group Freedom Oklahoma, noted that Russ may not have realized that “there are … 160 members of clergy who have publicly declared their willingness to marry LGBT people,” and that several major Christian denominations already allow clergy to officiate same-sex marriages, many of which already have a presence in Oklahoma.

As pressure mounted on Russ to kill the legislation, however, something strange happened: instead of pulling the bill, Russ simply amended it, re-inserting a clause that allowed judges to officiate weddings. The change was initially welcomed by LGBT advocates such as Stevenson, but also caused confusion, because it defeated the bill’s aim of fully removing government officials from marriages services. In fact, without the clergy-only provision, some Democrats noted that the bill was arguably pro-LGBT, since it does not define marriage specifically as a union between a man and a woman, effectively re-affirming the legitimacy of same-sex unions in the state. Other lawmakers also pointed out that, since Russ’ bill requires the government to simply file marriage certificates, it removes the state’s ability to prevent instances bigamy or polygamy.

Russ called the arguments about bigamy and polygamy “absurd” because other laws prohibiting such unions are still on the books. But he cautiously agreed with those who say his bill doesn’t directly challenge marriage equality.

“Clearly the Supreme Court [said] that it cannot be constitutionally appropriate to have an opposite sex stated in the language, so that was struck,” he told ThinkProgress. “My objective here today is not to overthrow the [Supreme Court] ruling. My bill is basically an attempt to sidestep what is basically the claim by the Supreme Court … [The bill] doesn’t condone same-sex marriage, and it doesn’t disallow same-sex marriage — my bill is silent on that matter.”

But as the vote neared Wednesday, Republicans doubled down on what many were now calling the “Marriage Chaos Bill” — even if they weren’t exactly sure what they were voting for.

“I had one of the most anti-LGBT [state] legislators walk up to me and say ‘I don’t know if I’m voting for you or against you or what.’” Stevenson said.

Ultimately, the bill passed handily on Wednesday in a 67-24 vote, and while several news outlets incorrectly reported that the measure makes clergy the sole arbiters of marriage in the state, many Okies remain genuinely unsure as to what was approved.

“People are asking us why we don’t support it,” Stevenson said. “We’re not supporting it because we don’t understand it. It doesn’t seem to achieve anything.”

Indeed, Russ’ claim that the law allows government to “exit the [marriage] game” appears incomplete at best. True, while judges are able to officiate marriages under the law, they are not required to, and whereas previously clerks issued marriage licenses, they are now asked simply to file “marriage certificates” (or common law affidavits) created elsewhere. But this only tweaks some aspects of how government interacts with the beginning of the marriage process — it doesn’t change the fact that marriages are still legal entities recognized by the state.

Also, while the most offensive parts of the bill appear to be corrected, there remain several legal concerns. The measure, for instance, might expose a violation of the establishment clause already existent in Oklahoma law. In its current form, the bill makes concessions for accepting marriage certificates from Quakers, Baha’is, and Mormons who do not have traditional clergy, but it does not outline similar explanations for Muslims, Hindus, or Buddhists, groups who also lack Christian-style clergy but which have communities in the state. There are also lingering questions over whether or not same-sex marriages — or really any marriage performed under this system — would still be recognized if people moved out-of-state.

On Friday, Stevenson and other Oklahomans were still unclear on whether the bill, which still has to be voted on by the state Senate, hurts or helps LGBT people, or even how it affects straight couples across the state.

“It’s a solution without a problem, and it’s a confusing solution,“ Stevenson said.