Federal Judge says Oklahoma gay marriage ban is unconstitutional

Gay marriage may be coming to one of the most conservative states in America after a federal judge Tuesday (Jan. 14) struck down Oklahoma's state constitutional amendment banning gay marriage – an amendment similar to one approved by Arkansas voters in 2004 that remains in effect in Arkansas.

U.S. Senior District Judge Terence Kern, based in Tulsa, said the gay marriage ban approved by voters in 2004 violated the U.S. Constitution's 14th Amendment under the equal protection clause.

In explaining his decision in the case, brought by plaintiff Mary Bishop, Kern said Bishop and her partner Sharon Baldwin, who had attempted to obtain a marriage license in Tulsa County, were being denied constitutional rights due to the Oklahoma law.

"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."

Kern said the couple had "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," he said. "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."

Chad Griffin, president of gay-rights group Human Rights Campaign, said Kern's ruling was no different than that of many other judges who have struck down various state laws across the nation that ban gay marriage.

“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," he said. "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.”

Gov. Mary Fallin, R-Okla., released a statement late Tuesday attacking Kern's ruling, saying that the will of the people of Oklahoma was being denied with this ruling.

"In 2004, the people of Oklahoma voted to amend the state's constitution to define marriage as ‘the union of one man and one woman.’ That amendment passed with 75 percent support," she said. "The people of Oklahoma have spoken on this issue. I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government."

While Kern ruled the gay marriage ban in Oklahoma to be unconstitutional, gay marriages will not soon take place in the state. Kern stayed his ruling, waiting for the outcome of a similar case in Utah, which is to be heard soon by Denver's 10th Circuit Court of Appeals, before any changes to Oklahoma law take effect.

Arkansas voters in 2004 approved Amendment 83 to the Arkansas Constitution which says marriage “consists only of the union of one man and one woman.” The law also prohibits any Arkansas official from recognizing gay marriages performed in other states.

Amendment 83 language notes: “Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.”

The 2004 election had 753,770 votes for Amendment 83 and 251,914 against.