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Pennsylvania District Judge Refuses to Dismiss Transgender Student’s Title IX and Equal Protection Claims

Posted on: November 24th, 2017 by Art Leonard No Comments

U.S. District Judge Robert D. Mariani denied a school district’s motion to dismiss Title IX and Equal Protection claims by a transgender elementary school student in A.H. v. Minersville Area School District, 2017 U.S. Dist. LEXIS 193622, 2017 WL 5632662 (M.D. Pa., Nov. 22, 2017).  The court rejected the school district’s argument that in light of the Trump Administration’s “withdrawal” of a Guidance issued by the Obama Administration on protection for transgender students under Title IX, the complaint failed to state a valid claim.

A.H., the eight-year-old plaintiff (whose suit was brought by “her next best friend and mother, Tracey Handling”), classified male at birth, “was diagnosed with gender dysphoria while in kindergarten,” wrote Judge Mariani, explaining, “Under the care of a pediatric psychologist, Plaintiff and her family have been exploring ways for Plaintiff to express her gender identity at home, in school, and in the community. . . Since beginning kindergarten in 2014, Plaintiff has continuously presented herself both in and out of school as a female.  Plaintiff uses a female name, dresses in clothing traditionally associated with females, is addressed using female pronouns, and is known to her classmates as a female student.”  Even though A.H.’s mother, supportive of her daughter’s needs, asked that she be allowed to use the girls’ bathroom in school, the School Superintendent, Carl McBreen, said they would not allow it in order to protect the privacy of other students.

This was not a problem during kindergarten, since the kindergarten classroom has a single-use bathroom used by all the students, and the only adverse problem during A.H.’s kindergarten year came during a field trip, when teachers required A.H. to wait until all the boys had used a male-designated bathroom and then allowed A.H. to use that bathroom. “The incident upset Plaintiff and resulted in some of her classmates asking her why she, as a girl, was using the boys’ bathroom.”  A.H.’s mother questioned the principal about this.  His response was that it was “school policy that a child must use the bathroom that corresponds with the sex listed on the child’s birth certificate,” and talked about “protecting” the other students from A.H.  However, despite repeated requests, the school never showed A.H.’s mother an actual written policy.  Her request to allow A.H. to use girls’ bathrooms during A.H.’s first grade year was turned down, with Superintendent McBreen stating that “Minersville isn’t ready for this.”  While giving a school tour to Mrs. Handling, the principal referred to A.H. using male pronouns, even after she corrected him.

After the Obama Administration Guidance was distributed to all public school districts, Superintendent Breen informed Mrs. Handling that her daughter could use the girls’ restrooms at school, but the school “has not created any policy on bathroom access for transgender students.” A.H. filed suit seeking a court order to comply with Title IX and Equal Protection requirements.

In its motion to dismiss the Title IX claim, the school first argued that the Trump Administration’s withdrawal of the Obama Administration Guidance left “no legal basis to support a Title IX claim against the school district for transgender discrimination.” After concisely relating the sequence of events surrounding the Obama Administration Guidance and the Trump Administration withdrawal, Judge Mariani, quoting from Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267 (W.D. Pa. 2017), noted that “The 2017 [Trump Administration] Guidance ‘did not propound any “new” or different interpretation of Title IX or [DOE’s restroom regulation], nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents.”  Indeed, the Evancho court had observed, the 2017 Guidance “appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters.”

“Thus,” wrote Judge Mariani, “the fact that the Department of Justice and the Department of Education withdrew their interpretation of Title IX does not necessarily mean that a school, consistent with Title IX, may prohibit transgender students from accessing the bathrooms that are consistent with their gender identity. Instead, it simply means that the 2016 Guidance cannot form the basis of a Title IX claim.”  Lacking a binding precedent on this issue from the U.S. Supreme Court or the 3rd Circuit Court of Appeals (which has jurisdiction over federal courts in Pennsylvania), Judge Mariani looked to the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017), as well as the earlier decision from the Western District of Pennsylvania court in Evancho.  He observed that Title IX courts have looked to precedents under Title VII of the Civil Rights Act for guidance in determining the scope of protection under law banning discrimination because of sex, and that both the 7th Circuit and the Evancho court, following such precedents, had concluded, in the words of the 7th Circuit, that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The 7th Circuit specifically rejected the argument that providing access to a gender-neutral single user restroom is “sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Similarly, the Evancho court, while noting that the law on this issue was currently “clouded with uncertainty,” determined that the transgender student plaintiffs in that case had “made a more than sufficient ‘showing’ in their Complaint of a right to relief under” Title IX.

Mariani pointed out that the Minersville school district had not attempted in its motion to distinguish these precedents or “present any arguments as to why this Court should not follow their holdings. The Court, further, sees no reason why the analysis and holdings of either Evancho or Whitaker are unsound when applied to the facts of this case.”  Mariani concluded, “Contrary to Defendant’s argument, a specific practice need not be identified as unlawful by the government before a plaintiff may bring a claim under Title IX . . .  Further, while the Court recognizes that the Amended Complaint seems to indicate that Plaintiff now has access to the girl’s bathroom at school and thus may not have alleged any continuing violation of Title IX, that does not undercut the fact that Plaintiff has adequately pleaded that a violation of Title IX occurred as some point in time.”  The judge also rejected the school’s argument that it did not, as a matter of law, have any “discriminatory intent” when it acted.  First, he pointed out, discriminatory intent was not a prerequisite to getting injunctive relief, just damages.  And, in any case, statements attributed to school officials could provide a basis for finding discriminatory intent.

Turning to the Equal Protection claim under the 14th Amendment, Judge Mariani found agreement of the parties that heightened scrutiny would apply to judicial review of the school’s alleged policy and its actions.  As to that standard, which requires the defendant to show that the challenged policy serve an important government objective, Judge Mariani found an absence of proof by the school district.  “Here,” he wrote, “Defendant does not advance any important objective that its bathroom policy served.  Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff,” but this argument fails.  “Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status or nonconformity to gender stereotypes.  As such, she has sufficiently stated a claim for relief under the Equal Protection Clause.”  As constitutional discrimination claims require a showing of discriminatory intent, the judge pointed to statements by school officials that adequately serve at this stage of the case as evidence of discriminatory intent.  Judge Mariani noted the similar rulings in Whitaker and Evancho, while also noting a contrary ruling from several years ago by a different district judge in the Western District of Pennsylvania, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), which for some reason the school district never even cited in support of its motion – perhaps because that opinion is somewhat of an embarrassment.

Judge Mariani was appointed to the court by President Barack Obama in 2011.

A.H. and her mother are represented by David L. Deratzian of Hahalis & Kounoupis PC in Bethlehem, Pennsylvania.

Federal Court Awards Preliminary Restroom Access Relief to Transgender Students on Their Constitutional Claim

Posted on: February 28th, 2017 by Art Leonard No Comments

Switching the focus from Title IX of the Education Amendments of 1972 to the Equal Protection Clause of the federal Constitution, U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania awarded a preliminary injunction on February 27 to three transgender high school students represented by Lambda Legal who are challenging a school board resolution that bars them from using sex-segregated restrooms that are consistent with their gender identities. Evancho v. Pine-Richland School District, Civil No. 2:16-01537.

Acknowledging the Trump Administration’s February 22 action withdrawing two letters sent by the U.S. Education Department during the Obama Administration on the subject of transgender restroom access under Title IX as well as the pending U.S. Supreme Court consideration of Gloucester County School Board v. G.G. (certiorari granted October 28, 2016), a Title IX claim by Gavin Grimm, a transgender boy from Virginia, against his school district, in which that Court granted the school district’s request to stay a preliminary injunction issued by the district court (see 136 S. Ct. 2442 (Aug. 3, 2016)), Judge Hornak wrote that he “cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear that they have a reasonable likelihood of success on that claim.”  A “reasonable likelihood” finding is a prerequisite to issuing preliminary relief.

On the other hand, Hornak concluded that the plaintiffs did have such a path under the Equal Protection Clause and decided to blaze a new trail on this issue, in which prior courts have focused their attention almost exclusively on Title IX in line with the general preference of federal courts to rule based on statutes rather than resorting to constitutional rulings.

Hornak prefaced his constitutional analysis with a detailed set of factual findings and a sharp focus on the particular facts of this case, including that the three transgender students involved all began their transitions a few years ago and had been using restrooms consistent with their gender identities without any opposition from school administrators or any disturbance as early as the 2013-14 school year. In each case, they and their parents had met with school administrators, who had agreed to recognize and honor their gender identities in all respects.  Each of them has been living consistent with their gender identity for several years, although because of their ages only one of them has obtained a new birth certificate.  Administrators, teachers and fellow students have consistently used their preferred names and pronouns and treated them accordingly.  It wasn’t until a student mention the restroom use to her parents, who then contacted the school board together with other parents and turned it into an “issue,” that administrators even became aware that the transgender students were using the restrooms, since nobody had complained about it or made it an issue before then.  Ultimately the school board responded to noisy parental opposition at a series of public meetings, first rejecting a resolution allowing the transgender students to use the restrooms consistent with their gender identity by a tie vote, then adopting a contrary resolution by a slim margin.

The judge also pointed out that the boys’ and girls’ restrooms at the Pine-Richland high school were designed with individual privacy in mind, with dividers between the urinals in the boys’ rooms and privacy-protecting stalls with internal locks for the toilets in both rooms. Locker room access is not an issue at this point in the case, since all three plaintiffs have completed their physical education requirements and are not using the locker rooms.  The school also has established numerous single-user restrooms that are accessible to students.  The judge easily concluded, based on uncontested evidence that the restrictive Resolution was not necessary to protecting anybody’s privacy, thus rejecting one of the main justifications advanced by the school board.

Neither the Supreme Court nor the 3rd Circuit Court of Appeals, which has jurisdiction over federal trial courts in Pennsylvania, has ruled on what standard of judicial review applies to government policies that discriminate because of gender identity. The school board argued that this means the court should use the least demanding standard, rationality review, to evaluate its policy.  Judge Hornak rejected that argument, saying, “First, that means that applying an Equal Protection standard other than rational basis in such a setting is not contrary to settled law, and second, when an issue is fairly and squarely presented to a District Court, that Court must address it. Dodging the question is not an option.”  He also observed that an earlier decision by another trial judge in his district involving a transgender student, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 557 (W.D. Pa. 2015), was not binding on him, and he found that case distinguishable on the facts and the law, not least because of the extended period in this case during which the plaintiffs used restrooms without incident and had full recognition of their gender identity by the school administration and staff.

Reviewing the various criteria that the Supreme Court has discussed in cases about the appropriate level of equal protection review, Hornak concluded that the “intermediate standard” used in sex discrimination cases should apply in this case. “The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power.”  Focusing on this particular case, he wrote, “As to these Plaintiffs, their transgender characteristics are inherent in who they are as people, which is not factually contested by the District.  As to these Plaintiffs, and more generally as to transgender individuals as a class, that characteristic bears no relationship to their ability to contribute to our society.  More precisely, the record reveals that the Plaintiffs are in all respects productive, engaged, contributing members of the student body at the High School.  Thus, all of the indicia for the application of the heightened intermediate scrutiny standard are present there.”

That means that the defendants have the burden to justify their discriminatory policy, and the judge concluded they were likely to fall short in that. “Specifically, what is missing from the record here are facts that demonstrate the ‘exceedingly persuasive justification” for the enforcement of Resolution 2 as to restroom use by these Plaintiffs that is substantially related to an important governmental interest,” wrote Hornak.  The Resolution was not shown to be “necessary to quell any actual or incipient threat, disturbance or other disruption of school activity by the Plaintiffs,” he found, and there was no evidence that it was necessary to “address any such threat or disturbance by anyone else in the High School restrooms.” Furthermore, it did not address any privacy concern “that is not already well addressed by the physical layout of the bathrooms,” he found, continuing, “it would appear to the Court that anyone using the toilets or  urinals at the High School is afforded actual physical privacy from others viewing their external sex organs and excretory functions.  Conversely, others in the restrooms are shielded from such views.”  And the school’s existing code of conduct as well as state laws already exist to deal with any “unlawful malicious ‘peeping Tom’ activity by anyone pretending to be transgender,” he wrote, dismissing a concern raised by the defendants as a hypothetical justification for the policy.

The school board argued that some parents had threatened to withdraw their students from school if the Board did not keep transgender students out of the restrooms, but the court was not willing to countenance this as a justification for the policy. “If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents – no matter how sincerely held – runs counter to the legal obligations of the District,” he wrote, “then the District’s and the Board’s legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires,” because the 14th Amendment’s Equal Protection Clause “is neither applied nor construed by popular vote.”

Furthermore, rejecting the Board’s argument that enjoining the Resolution while the case proceeds was an improper change of the “status quo,” the court found that for several years the plaintiffs freely using the restrooms consistent with their gender identity was the “status quo,” even if school officials claimed they were unaware of it. This was a “persistently-applied custom or practice” which had the same weight as a written policy and, of course, until the Resolution was adopted, the District had no written policy on this issue.  The court rejected the defendants’ argument that the availability of single-user restrooms “sprinkled around the High School” provided a sufficient “safety valve” for the plaintiffs, making an injunction unnecessary.  “Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional harm,” he wrote, “the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to ‘solve the problem.’” He found that this was “no answer under the Equal Protection Clause that those impermissibly singled out for different treatment can, and therefore must, themselves ‘solve the problem’ by further separating themselves from their peers.”

He easily concluded that the differential treatment inflicted irreparable harm on the plaintiffs, and that ordering the District to allow them to use gender-appropriate restrooms would “cause relatively little ‘harm’ in the preliminary injunction sense – if any harm at all – to the District and the High School community.” It was crucial to this conclusion, of course, that the plaintiffs had been using the restrooms without incident for years until some parents made an issue out of it.  He also found that issuing the injunction would serve the public interest by vindicating the constitutional rights of the plaintiffs.

In case a second-guessing court of appeals should disagree with his determination that heightened scrutiny applied to this case, Judge Hornak also stated that the Resolution probably would not even survive rationality review, since he found that it was not necessary to achieve any of the goals suggested by the defendants.

Judge Hornak’s decision not to grant the injunction based on Title IX seems prudent in light of the unsettled situation he describes. The 4th Circuit Court of Appeals ruling in the Gavin Grimm case depended on deference to the Obama Administration’s interpretation of the Education Department’s bathroom regulation.  With that interpretation being “withdrawn” by the Trump Administration in a letter that did not substitute any new interpretation in its place, there is nothing to defer to and the construction of the statute and regulation is now pending before the Supreme Court, which voted 5-3 last summer to stay the district court’s preliminary injunction in the Grimm case.  Hornak noted that the criteria for the Supreme Court issuing a stay in a case like that include the Court’s judgment that the case presents a serious possibility of being reversed by the Court on the merits.  What he omits to mention is that the stay was issued only because Justice Stephen Breyer, who would in other circumstances have likely voted against granting the stay, released an explanation that he was voting for the stay as a “courtesy” to the four more conservative justices, undoubtedly because they had the four votes to grant a petition to review the 4th Circuit’s ruling.  Under the Supreme Court’s procedures, five votes are needed to take an action, such as issuing a stay or reversing a lower court ruling, but only four votes are needed to grant a petition to review a lower court decision.  It was clear in that case that the Gloucester County School Board would be filing a petition for review and that there were four justices ready to grant it.  Judge Hornak interpreted that, as Justice Breyer clearly did, as a signal that the interpretation of Title IX in this context is up for grabs.  If Neil Gorsuch is confirmed by the Senate in time to participate in deciding that case, the outcome will probably turn on Justice Anthony Kennedy, who voted for the stay.  (Justices Ginsburg, Sotomayor and Kagan announced that they would have denied the stay.)

Judge Hornak’s ruling confirms that for the overwhelming majority of educational institutions subject to Title IX because they receive federal funds, it does not really matter whether Title IX requires them to afford gender-consistent restroom access to transgender students (or staff, for that matter), because as government-operated institutions they are bound to respect the Equal Protection rights of their students and employees. However, for non-governmental educational institutions that receive federal funds, either through work-study programs, loan assistance, or research grants in the case of the major private universities, their federal obligations towards transgender students depend on Title IX and whatever state or local laws might apply to them as places of public accommodation, which vary from state to state, only a minority of states and localities protecting transgender people from discrimination.

In light of the lack of 3rd Circuit appellate precedent on the constitutional issue, it would not be surprising if the defendants seek a stay of this injunction from the court of appeals, and there is no predicting how that court would rule, although the likelihood that the Supreme Court will issue a ruling of some sort in the Grimm case by the end of June might lead them to err on the side of caution to give the school district temporary relief.

Lambda Legal’s attorneys representing the plaintiffs are Omar Gonzalez-Pagan, Christopher Clark and Kara Ingelhart, who are joined by local counsel in Pennsylvania, Tracie Palmer and David C. Williams of Kline & Specter, P.C..

Oklahoma Federal District Court Declares Anti-Gay Marriage Amendment Unconstitutional

Posted on: January 15th, 2014 by Art Leonard No Comments

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.