Yet another federal district judge has declared a state constitutional amendment that bans same-sex marriages an unconstitutional infringement of rights under the 14th Amendment of the U.S. Constitution. On January 14, Senior U.S. District Judge Terence C. Kern, who has been dealing with the case of Bishop v. United States since 2004, held that the constitutional amendment adopted by an overwhelming vote of Oklahoma citizens that year, fails to meeting the deferential “rationality review” test under the Equal Protection Clause.
Although Judge Kern declared the part of the Oklahoma Marriage Amendment that bans same-sex marriages unconstitutional, he stayed his ruling pending an expected appeal by the state. Oklahoma is within the 10th federal appellate circuit, the same one that includes Utah, and thus this appeal will go to the same court that is now considering Utah’s appeal of a similar marriage quality ruling. The Utah case is on an expedited schedule, with initial briefing due in a few weeks and reply briefs due by the end of February. It seems unlikely that Oklahoma would fall in with such a fast-track schedule unless ordered to do so by the 10th Circuit, but handling both cases in one appellate proceeding would make eminent sense, so perhaps if Oklahoma officials decide to move quickly, this case could be consolidated with the pending appeal in Kitchen v. Herbert, making a subsequent trip to the U.S. Supreme Court that much more likely.
The strange name for this case, Bishop v. United States, relates to the unusual way it got started. After the Oklahoma Marriage Amendment was passed, two lesbian couples — Mary Bishop and Sharon Baldwin, and Susan Barton and Gay Phillips — filed a Complaint against both the federal and state governments, seeking a declaration that Sections 2 and 3 of the federal Defense of Marriage Act (DOMA) and Parts A and B of the Oklahoma Marriage Amendment, were unconstitutional. Section 2 of DOMA purports to allow states to refuse to give “full faith and credit” to same-sex marriages contracted in other states, while Section 3 provided that the federal government would recognize only different-sex marriages. Part A of the Oklahoma amendment bans same-sex marriage in that state, and Part B refuses recognition to same-sex marriages contracted in other states.
The case took a few procedural twists and turns, including a trip up to the 10th Circuit Court of Appeals, leading to some changes in the identity of defendants. Ultimately, the summary judgment motion upon which Judge Kern ruled involves a suit between the two couples and Sally Howe Smith, the Tulsa County Clerk, who denied the Bishop couple a marriage license. The Barton couple, being dissatisfied with the pace of events in Oklahoma, have married in Canada and in California (in 2008). A major part of Judge Kern’s opinion considers the Barton couple’s challenge to DOMA, holding that they lack standing to challenge Section 2, because that provision did not compel Oklahoma to refuse to recognize their marriage, and that their challenge to Section 3 is moot because the U.S. Supreme Court declared it unconstitutional last year in U.S. v. Windsor. Thus, the Barton couple is effectively out of the case.
The Bishop couple, not being married, were only challenging Part A of the Oklahoma marriage amendment, under which Ms. Smith rejected their request for a marriage license. For reasons not explained in Judge Kern’s opinion, they did not challenge the Oklahoma statutes that also ban same-sex marriage, just the constitutional amendment, so that is all Judge Kern rules on, although he notes that much the same constitutional analysis would apply to the question whether the statutes are also unconstitutional.
Judge Kern’s opinion on the Oklahoma amendment goes through three stages.
First, he rejects the argument that the U.S. Supreme Court’s 1972 Baker v. Nelson decision is binding on the court. In that case, the Supreme Court dismissed a challenge to the Minnesota ban on same-sex marriage, which had been upheld by the Minnesota Supreme Court. The U.S. Supreme Court dismissed that appeal as not raising a “substantial federal question” and didn’t even bother to hear oral arguments or issue a written opinion explaining its conclusion. Such “summary affirmances” by the Supreme Court are technically binding on lower courts, unless subsequent developments in the law render them obsolete. In this case, Judge Kern, agreeing with Judge Robert Shelby of the U.S. District Court in Utah, held that subsequent developments had rendered Baker of little precedential value. Most significantly, of course, the Supreme Court’s rulings in Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor have changed the landscape for constitutional analysis of gay rights claims. “It seems clear that what was once deemed an ‘unsubstantial’ question in 1972 would now be deemed ‘substantial’ based on intervening developments in Supreme Court law,” wrote Judge Kern.
Second, the court had to decide what impact the Windsor decision would have. Judge Kern found that Windsor did not decisively tip the balance toward either party. “This Court interprets Windsor as an equal protection case holding that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples,” he wrote. He found that the Windsor court “did not apply the familiar equal protection framework,” but instead “based its conclusion on the law’s blatant improper purpose and animus.” He continued, “Both parties argue that Windsor supports their position, and both are right.” That is, Windsor supports the state’s argument that as a matter of history and practice, the regulation of marriage is a state function, not a federal function. But it supports the Bishop couple’s position because “much of the majority’s reasoning regarding the ‘purpose and effect’ of DOMA can be readily applied to the purpose and effect of similar or identical state-law marriage definitions.” As had Judge Shelby in Utah, Judge Kern noted Justice Scalia’s dissenting opinion in Windsor, explaining how the majority’s reasoning in that case would support a same-sex marriage claim.
Kern drew two lessons from the Windsor case. Because it is usual for states to define marriage, state marriage definitions “must be approached differently, and with more caution, than the Supreme Court approached DOMA.” But, when courts are reviewing marriage regulations, they “must be wary of whether ‘defending’ traditional marriage is a guise for impermissible discrimination against same-sex couples.”
Finally, in the third part of the analysis, Kern turned to the 14th Amendment claim in this case. He embraced a much narrower doctrinal analysis than did Judge Shelby in the Utah case, Kitchen v. Herbert. Kern decided that this was a case of sexual orientation discrimination, not sex discrimination, and thus was not subject to heightened scrutiny, and he did not accept the alternative argument that this was a fundamental right to marry case under the due process clause. This means there is no presumption against the constitutionality of the Oklahoma amendment, and it will be upheld if the court can think of any rational justification for it. After reviewing the history of the amendment’s adoption, Judge Kern concluded that it was adopted specifically to exclude same-sex couples from marriage because of moral disapproval of homosexuality by the legislators who proposed it (and presumably the voters who approved it), making it an instance of intentional discrimination with an impermissible motivation. The question was whether there was any other justification, once the court had ruled out “promoting morality,” which has not been a legitimate justification for anti-gay policies at least since the Supreme Court’s 1996 decision striking down Colorado Amendment 2, Romer v. Evans.
Not surprisingly, the court confronted the same arguments that have been raised in other states about promoting responsible procreation and providing an ideal setting for child rearing, but Judge Kern found no merit to these arguments in the context of excluding same-sex couples from marriage. He found that “there is no rational link between excluding same-sex couples from marriage and the goals of encouraging ‘responsible procreation’ among the ‘naturally procreative’ and/or steering the ‘naturally procreative’ toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites,” he pointed out. As to the argument that allowing same-sex marriages would somehow undermine the stability of different-sex marriages in Oklahoma, he evidently found the assertion laughable, pointing out that despite its same-sex marriage ban, Oklahoma has one of the highest divorce rates in the country. (Unlike, he might have added, Massachusetts, which has one of the lowest divorce rates and has been allowing same-sex marriages for almost a decade.)
While acknowledging that the state has an interest in incentivizing different-sex couples to get married before having kids, he said that this “asserted justification” for excluding same-sex couples from marriage “makes no sense because a same-sex couple’s inability to ‘naturally procreate’ is not a biological distinction of critical importance, in relation to the articulated goal of avoiding children being born out of wedlock. The reality is that same-sex couples, while not able to ‘naturally procreate,’ can and do have children by other means.” Citing 2010 census data showing that “there were 1,280 same-sex ‘households’ in Oklahoma who reported as having ‘their own children under 18 years of ago residing in their household,'” he pointed out that the articulated goal of reducing the number of children born outside of a marital relationship is hindered rather than promoted by a gay marriage ban.
As to the “ideal environment” for raising children argument, Judge Kern said that the state “has not articulated, and the Court cannot discern, a single way that excluding same-sex couples from marriage will ‘promote’ this ‘ideal’ child-rearing environment. Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the ‘ideal’ child-rearing environment). It is more likely that any potential or existing child will be raised by the same-sex couple without any state-provided marital benefits and without being able to ‘understand the integrity and closeness of their own family and its concord with other families in their community,'” quoting U.S. v. Windsor.
Having rejected all the arguments in support of the ban, Judge Kern turned back to the Supreme Court precedents. Although that court has not yet ruled on the precise question, he found its rulings on related issues compelling. “Supreme Court law now prohibits states from passing laws that are born of animosity toward homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex and same-sex marriages differently,” he wrote. “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.”
“Applying deferential rationality review,” he continued, “the Court searched for a rational link between exclusion of this class from civil marriage and promotion of a legitimate governmental objective. Finding none, the Court’s rationality review reveals Part A [of the Oklahoma Marriage Amendment] as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.” He found that the exclusion was “without a legally sufficient justification.”
Thus, he declared Part A unconstitutional. He did not rule on the constitutionality of Part B, which denies recognition to same-sex out of state marriages, because the Bishop couple was not challenging it. Because the Oklahoma marriage statutes bans on same-sex marriages were not challenged, he did not rule on them in this opinion, although as noted above, he observed that the legal analysis of a challenge to those statutes would be essentially the same. However, observing that the Supreme Court recently stayed the Utah marriage ruling pending appeal, he adopted a similar stay, anticipating what would happen if he denied a stay and the state appealed for one.
Thus, same-sex marriage may not actually happen in Oklahoma for some time as this case makes its way through the appellate process, but Judge Kern has provided another nail in the coffin of state bans on same-sex marriages, in an opinion that is relatively modest compared to the more far-ranging opinions written by Judge Shelby and now-retired Judge Vaughn Walker in the California Proposition 8 case. This more modestly reasoned opinion may well be more sustainable on appeal for that very reason, as the Supreme Court tends to prefer moving in smaller rather than large doctrinal steps when addressing politically controversial issues.