American Foundation for Equal Rights

Marriage News Blog

Federal judge OK’s marriage equality in Oklahoma, finds marriage ban unconstitutional

A federal judge in Oklahoma today found that the state’s ban on marriage for gay and lesbian couples is unconstitutional, ruling:

The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Couples won’t be lining up to get married just yet, however. The judge stayed his decision pending appeal.

This is the second federal judge in as many months to rule that laws preventing gay and lesbian couples from getting married violate the U.S. Constitution.

The case has seen little movement since it was originally filed in 2004 by two couples, Mary Bishop & Sharon Baldwin, who wish to get a marriage license in Oklahoma, and Susan Barton & Gay Phillips, who have a civil union from Vermont and want it to be recognized in their home state.

The historic U.S. Supreme Court decisions last summer on the Defense of Marriage Act and AFER’s challenge to California’s Prop. 8 added momentum to this and other cases throughout the country. There are now over 30 marriage equality-related lawsuits on the state or federal level in 22 states.

In his decision, Judge Terence Kern cited the arguments of AFER’s lead co-counsel Ted Olson at the U.S. Supreme Court

Mr. Olson responded with the rhetorical question [from Justice Scalia] of when did it become unconstitutional “to prohibit interracial marriage” or “assign children to separate schools.” Id. at 38. As demonstrated by Mr. Olson’s response, the mere fact that an exclusion has occurred in the past (without constitutional problem) does not mean that such exclusion is constitutional when challenged at a particular moment in history. This Court has an obligation to consider whether an exclusion, although historical, violates the constitutional rights of Oklahoma citizens.  Pg. 57

Read the full decision: