By Constitution Staff

A federal judge in Tulsa has ruled that Oklahoma's definition of marriage violates the U.S. Constitution, but stayed the effects of the ruling while the case is on appeal. On January 14, U.S. District Judge Terence Kern ruled that Part A of a constitutional amendment approved by Oklahoma voters in 2004, violates the Equal Protection Clause of the Fourteenth Amendment.

Judge Kern wrote that his review "reveals Part A as an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit." The constitutional amendment, overwhelmingly approved by Oklahoma voters, says marriage in the state consists "the union of one man and one woman." The judge said the measure violates the U.S. Constitution's equal protection clause by precluding same-sex couples from receiving an Oklahoma marriage license. He described the ban as "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."

The Oklahoma ruling comes just a month after a federal judge in Utah overturned that state's ban on same-sex marriage. The ruling in Utah resulted in hundreds of couples getting married before the U.S. Supreme Court intervened, putting a halt to the weddings until the courts settle the case. Kern cited that case in issuing a stay of his own ruling until the final disposition of an appeal to the U.S. 10th Circuit Court of Appeals. In addition to Utah and Oklahoma, 27 other states have constitutional prohibitions on same-sex marriage. Four states -- Indiana, Pennsylvania, West Virginia and Wyoming -- have prohibitions based on state law.

Following passage of the Oklahoma constitutional amendment in November of 2004, two lesbian couples -- Mary Bishop and Sharon Baldwin along with Sue Barton and Gay Phillips -- filed the lawsuit. The couples were seeking marriage licenses based on marriages in another jurisdiction recognized by Oklahoma. In 2006, the case went to the 10th U.S. Circuit Court of Appeals after the district court denied the governor of Oklahoma and the state attorney general's motion to dismiss the case. In 2009, the appeals court ruled that the couples lacked standing, so the they filed an amended complaint removing the governor and attorney general and substituting the Tulsa County Court Clerk who issues marriage licenses.

On January 15, Tulsa County Clerk Sally Howe Smith responded to Judge Kern's ruling by filing an appeal with the U.S. 10th Circuit Court of Appeals in Denver.

State Senate President Pro Tem Brian Bingman reacted to the ruling. "We are disappointed in this judge's ruling as the people of Oklahoma overwhelmingly made their beliefs on this issue known at the ballot box. This is an unfortunate example of the federal government once again overstepping its bounds and asserting its will on the people of Oklahoma."

Oklahoma Fifth District Congressman James Lankford said, "This is why the American people are so frustrated with government and government officials; the people speak clearly but elected officials and judges ignore them. In 2004, Oklahomans overwhelmingly decided marriage is a unique institution between a man and a woman. Since the Constitution leaves marriage laws to the states, the State of Oklahoma has the right to define marriage in a way consistent with the values of our state." He pointed to the Tenth Amendment to the U.S. Constitution which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people..." Lankford noted that in his dissent opinion for the Supreme Court case, U.S. v. Windsor, Justice Scalia was clear when he wrote: "But no one questions the power of the States to define marriage."

State Rep. Sally Kern (R-Oklahoma City), who has been the target of gay and lesbian groups because of her past opposition to their agenda, issued a statement following the ruling: "I, like many other Oklahomans, am saddened by the ruling of Judge Kern (no relation) declaring that the freedom of 76 percent of the voters of our great state to believe in the moral principles on which our Constitution is founded is unconstitutional. America has a rich heritage of legal principles that involve liberty for all, equality and consent of the governed."