Wednesday, January 15, 2014

Watch Out, Alaska: Oklahoma's Constitutional Definition Of Marriage Now Invalidated By Another Unelected U.S. District Court Judge

Alaska's constitutional definition of marriage is becoming more tenuous and in jeopardy of legal challenge with each passing day. Not only has Utah's constitutional definition of marriage been invalidated by a Federal district judge, but now Oklahoma's constitutional definition of marriage has likewise been tossed, although U.S. District Court Judge Terrence Kern, a Clinton appointee, has at least granted a stay of his order pending the state's appeal. So traditional marriage has been attacked by unelected judges in two of the reddest states in the Union. Both Oklahoma and Utah lie within the jurisdiction of the 10th Circuit Court of Appeals, so there's a chance Utah and Oklahoma might choose to combine their appeals.

-- Read the 68-page Oklahoma court decision HERE

Background: In 2004, after 76 percent of Oklahoma voters approved a statewide question to prohibit same-sex marriage, the Oklahoma state legislature added Section 35 to Article II of the Oklahoma State Constitution, defining legal marriage as only between one man and one woman. Here's the specific language:

A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.
C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.

Added by State Question No. 711, Legislative Referendum No. 334, adopted at election held Nov. 2, 2004. Addition proposed by Laws 2004, c. 156, § 1.

Two couples, Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton, promptly filed a legal challenge, also seeking to overturn the federal DOMA still in effect at that time. Bishop and Baldwin contended that Sections 2 and 3 of DOMA and Parts A and B of the Oklahoma Constitutional Amendment violated the U.S. Constitution. In August 2006, the Court denied a motion to dismiss filed by the Oklahoma Attorney General and Oklahoma Governor, rejecting their sovereign immunity argument. The state officials appealed this Court’s denial of sovereign immunity, and the Court stayed the proceedings pending appeal. On June 5th, 2009, the Tenth Circuit issued an unpublished decision reversing this Court’s failure to dismiss the claims against the Oklahoma officials and remanded the case for entry of an order dismissing these claims for lack of subject matter jurisdiction. The Tenth Circuit’s reversal was based on plaintiffs’ lack of standing to pursue their claims against the named state officials. Following remand, the plaintiffs retained new counsel and were granted leave to file an amended complaint, this time suing the Tulsa County Court, Sally Howe Smith, for refusing to grant them a marriage license. Each side exchanged motions until DOMA was overturned in 2013, which leads to the current situation.

Phillips and Barton joined the suit for slightly different reasons. They had previously contracted a civil union in Vermont in 2001, were married in Canada in 2005, and received a marriage license in California in 2008. Their primary beef is that Oklahoma does not recognize their California marriage, which they claim is violative of equal protection and substantive due process rights guaranteed by the Fourteenth Amendment.

In arriving at his decision, Judge Kern referred to two previous Supreme Court decisions. One, in 1996, ruled that Colorado could not pass laws taking away legal protections for gays, while the other, in 2013, ruled the federal government must recognize same-sex marriages that are legal in the states where they were performed. However, Judge Kern issued a rather murky statement: "There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one".

According to the Daily Oklahoman, Judge Kern also said that moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification to restrict marriage. Moreover, he didn't consider protecting the sanctity of marriage a valid reason for the ban, given Oklahoma's high divorce rate of opposite-sex couples, and he also claimed that encouraging procreation wasn't logical either since opposite-sex couples aren't required to say they'll produce offspring in order to get a marriage license. He also said that equal protection is at the very heart of our legal system and central to our consent to be governed, and it is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, Judge Kern contends the majority view in Oklahoma must give way to individual constitutional rights.

Official Reaction: Gov. Mary Fallin 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 Attorney General E. Scott Pruitt agreed with the governor's sentiments, adding "It is a troubling decision. As the Supreme Court recently noted in the Windsor case, it is up to the states to decide how to define marriage, not the federal government. There is a case involving the State of Utah currently pending before the 10th Circuit that is identical to the case in Tulsa. The issue most likely will end up at the U.S. Supreme Court and the outcome will dictate whether Oklahoma’s constitutional provision will be upheld".

Prognosis for Alaska: With two of the reddest states in the country under judicial attack for restricting legal marriage to heterosexual couples, there can be no doubt that Alaska will soon be in the crosshairs of the Gay Mafia. While no official legal challenge to Alaska's constitutional definition of marriage has been filed. back on December 29th, Alaska Dispatch hinted that a challenge might be in the works. Caitlin Shortell, a lifelong Alaskan and attorney in private practice in Anchorage, said she's interviewed about nine couples interested in pursuing a court case that would directly challenge Alaska's same-sex marriage ban. It's still tentative and details on how the case will move forward are still being worked out, but Shortell hopes to file in Alaska's federal district court sometime in January. Shortell has been following other cases around the country closely and has been in contact with the Utah attorney representing the couples in that case. In addition, one case currently working its way through the Ninth U.S. Circuit Court of Appeals, Sevcik v. Sandoval, is directly challenging Nevada's constitutional ban on same-sex marriage. If Nevada's ban is overturned, it could have ripple effects in the nine states over which the Ninth Circuit court has jurisdiction, including Alaska.


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