I’m late to saying anything, but on Tuesday, U.S. District Judge Terence Kern ruled that Oklahoma’s anti-marriage law violates the 14th amendment and is therefore unconstitutional. You can read the document here.
Nobody’s marching to the courthouse to get their papers yet, things are still kind of up in the air, but we’ve gotten this far, and that’s a hell of a lot farther than I expected us to get this soon. I thought we’d have to be dragged kicking and screaming, but Kern’s language is a powerful blow.
In the conclusion of the court ruling, Kern eviscerates nearly every justification for denial of equal benefits under the law, using other court rulings to prove that denying marriage rights to same-sex couples is unjustifiable and irrational. About the only thing he didn’t attack is the assertion that if same sex couples are allowed to marry, there would be nothing to stop people from marrying (and fucking — that’s where all the pearl-clutching comes in) animals, appliances, cartoon characters, or children. I’m assuming he considered addressing that beneath his attention.
This article by David Badash at The New Civil Rights Movement is pretty excellent as far as overviews go, but I’ll pick a few passages. Emphasis added.
The Court recognizes that moral disapproval often stems from deeply held religious convictions. However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.
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. If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal.
Same-sex couples are being subjected to a “naturally procreative” requirement to which no other Oklahoma citizens are subjected, including the infertile, the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it.
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).
In addition, the Court cannot discern how exclusion of same-sex couples from marriage makes it more likely that opposite-sex marriages will stay in tact (thereby remaining “optimal” child-rearing environments).
Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. “‘Preserving the traditional institution of marriage,’” which is the gist of Smith’s final asserted justification, “is just a kinder way of describing the State’s moral disapproval of same-sex couples.”
The conclusion is simple, short, and sweet:
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.
There you have it.
This isn’t going to stop. This isn’t a thing that can be turned back. We have to keep fighting, the struggle still requires us to remain fully engaged, but this is most definitely a struggle we can win if we continue to demand that all adults be allowed to marry as they wish.
Oklahoma’s littered with failure on the civil rights front so I think it’s far too late for me to salvage any pride in my state, but I am damn proud of Kern. If you wish to thank him personally for standing up for Oklahomans’ marriage rights, drop him a line:
TERENCE C. KERN, District Judge
224 S. Boulder Ave., Room 241
Tulsa, OK 74103
Because I rather imagine he’s getting a lot of hate mail right about now, and some encouragement might be nice.