‘Moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law,’ judge wrote
OKLAHOMA CITY — Oklahoma’s LGBT community celebrated after U.S. District Judge Terence Kern on Tuesday declared the state’s constitutional ban on same-sex marriage illegal.
Scott Hamilton, executive director of Cimarron Alliance, Central Oklahoma’s largest LGBT equality organization, said the community held impromptu parties, but they decided not have a rally until marriages actually begin.
“Yesterday was explosive,” Hamilton said. “People were so excited.”
He said he expects a court challenge.
Gov. Mary Fallin was displeased with the ruling, she said, because 75 percent of the state’s voters passed the amendment.
“I support the right of Oklahoma’s voters to govern themselves on this and other policy matters,” she said in a statement. “I am disappointed in the judge’s ruling.”
Hamilton said that was the same logic used after interracial marriage, which was opposed nationally by about the same percentage, became legal.
He expects the state to appeal.
Ken Upton, Lambda Legal supervising senior staff attorney in the South Central office, called the decision an interesting, conservative opinion. He said he thought the Oklahoma ruling would be easier for an appeals court to uphold than the Utah ruling. He said Oklahoma might try to consolidate the cases so it would have input in the Utah case, which is already in the courts. Utah may or may not want Oklahoma involved because it would slow down the case. Both states are in the 10th Circuit, so a decision in either case would affect both.
Upton, who has appeared in Kern’s court, called him an attorney’s dream judge — organized and fair. He said the opinion reflected none of the judge’s personal views.
As additional rulings are handed down in Southern and other conservative states, Upton expects them to be similar to the Oklahoma opinion because it’s grounded in what the Supreme Court has already ruled. While he said he agrees with the broad ruling issued in the Utah case, he’s more comfortable that Oklahoma’s will be upheld.
Kern based his decision on three Supreme Court cases and quoted from them.
The first was Romer v. Evans, which overturned a Colorado constitutional amendment preventing local governments from offering nondiscrimination protections.
“… a Colorado constitutional amendment targeting homosexuals based upon animosity lacked a rational relation to any legitimate governmental purpose,” Kern wrote.
Next was Lawrence v. Texas, which overturned the sodomy law.
“… moral disapproval did not provide a legitimate justification for a Texas law criminalizing sodomy,” Kern wrote.
The Windsor case decided last June also played an important part in this ruling.
“ … the U.S. Constitution prevented the federal government from treating state-sanctioned opposite-sex marriages differently than state-sanctioned same-sex marriages, and that such differentiation ‘demean[ed] the couple, whose moral and sexual choices the Constitution protects,’” he wrote.
In his decision, Kern also quoted Oklahoma legislators who supported the marriage amendment.
“To recognize something other than what God has ordained as traditional marriage obviously detracts or deteriorates the importance of the traditional marriage,” House Minority Floor Leader Todd Hiett said.
“This is a Bible Belt state. … Most people don’t want that sort of thing here. … Gay people might call it discrimination, but I call it upholding morality,” state Rep. Bill Graves said.
Using these quotes, he wrote that “moral disapproval of same-sex marriage” was at least one reason many voted in favor of the amendment. He acknowledged moral disapproval may stem from deeply held religious beliefs.
“However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law,” he concluded.
Rather than allow marriage to begin, as the 10th Circuit did in Utah, Kern placed a stay on his decision that remains in place until the appeals court hears the case.
This article appeared in the Dallas Voice print edition January 17, 2014.