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Gay Phillips, left, her partner Sue Barton, and Mary Bishop and her partner Sharon Baldwin have a champagne toast during a celebration at the Dennis R. Neill Equality Center, Tuesday, Jan. 14, 2014 in Tulsa, Okla. A federal judge struck down Oklahoma's gay marriage ban Tuesday, but headed off any rush to the altar by setting aside his order while state and local officials complete an appeal. (AP Photo/Tulsa World, James Gibbard) ONLINE OUT; KOTV OUT; KJRH OUT; KTUL OUT; KOKI OUT; KQCW OUT; KDOR OUT; TULSA OUT; TULSA ONLINE OUT
Judge tosses Oklahoma gay-marriage amendment
10th Circuit » The ruling, calling the ban a violation of the 14th Amendment, mirrors Utah’s in a number of ways.
First Published Jan 14 2014 05:31 pm • Last Updated Jan 17 2014 02:52 pm

A federal judge in Oklahoma ruled Tuesday that a state amendment barring same-sex marriage is unconstitutional — a decision that comes less than four weeks after a federal judge struck down a similar amendment in Utah.

U.S. District Court Judge Terence C. Kern said the state amendment, approved by Oklahoma voters in 2004, violates the equal protection clause of the 14th Amendment. Kern immediately stayed his decision because of a Utah same-sex marriage case pending before the 10th Circuit Court of Appeals, which also oversees Oklahoma.

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Kern made several references to Utah’s Dec. 20 decision in Kitchen v. Herbert by U.S. District Court Judge Robert J. Shelby, which he said also found that lower courts must look to the landmark U.S. Supreme Court order in United States v. Windsor for guidance in state bans on same-sex marriage.

"This court interprets Windsor as an equal protection case holding that [the federal Defense of Marriage Act] drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples," Kern said, though like Shelby, he noted the Supreme Court decision wasn’t a "perfect fit."

He said the constitutional amendment adopted in Oklahoma had, at least in part, the purpose of excluding only same-sex couples as a group from marriage.

"This is a classic, class-based equal protection case in which a line was purposefully drawn between two groups of Oklahoma citizens — same-sex couples desiring an Oklahoma marriage license and opposite-sex couples desiring an Oklahoma marriage license," the judge said.

The aim of that line was to promote "one specific moral view of marriage," Kern said, but "moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law."

He quoted Shelby’s opinion that same-sex couples were not seeking a "new" right but rather an already established, "fundamental right."

And like Shelby, Kern said the defendants had not proved a rational link between discriminating against same-sex couples and its interest in encouraging responsible procreation and child-rearing or promoting stable, opposite-sex relationships.

"Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country," Kern said.

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Oklahoma Attorney General Scott Pruitt’s office, which has supported the law, did not immediately have a comment on the ruling.

Not including Utah and Oklahoma, 27 states still have constitutional prohibitions on same-sex marriage.

The Oklahoma lawsuit was originally filed in 2004 by two lesbian couples. They challenged two provisions in the Oklahoma constitution that limited marriage rights to opposite-sex couples and two sections of the federal Defense of Marriage Act (DOMA). The two sections in the state amendment barred same-sex marriage and recognition of such marriages performed in other states.

The two couples’ amended complaint named the Tulsa County Court Clerk as a defendant as well as U.S. Attorney General Eric Holder, who later declined to defend one of the challenged sections of DOMA. Instead, the Bipartisan Legal Advisory Group of the U.S. House of Representatives temporarily stepped in as a defendant.

Kern said that the U.S. Supreme Court decision in United States v. Windsor, which struck down one of the contested sections of DOMA, made any ruling on that claim moot since there "is no longer any live or ongoing controversy."

"All evidence before the court indicates that Section 3 [of DOMA] will no longer be used to deprive married same-sex couples of federal benefits that are bestowed upon married opposite-sex couples, even when those couples live in non-recognizing states such as Oklahoma," Kern said in his decision.

However, he commended one couple, Susan Barton and Gay Phillips, and their attorneys for their "foresight, courage, and perseverance" in filing their lawsuit "many years before it seemed likely that Section 3 [of DOMA] would be overturned."

Barton and Phillips have married in three different places — Vermont, Canada and California — and sued over the refusal of Oklahoma and the federal government to recognize them as a married couple. The other couple, Mary Bishop and Sharon Baldwin, have been together for 15 years; they sought a marriage license in 2009 in Tulsa County but were refused.

Kern dismissed a claim that a section in DOMA that allowed Oklahoma to refuse to recognize Barton’s and Phillips’ other marriages based on standing since it was the U.S., not the court clerk, who authorized the act giving states that power. Kern said the couple had not shown that they had been injured by Oklahoma’s refusal to recognize their California marriage.

The Associated Press contributed to this article.


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