Brett Turner, Senior Attorney, National Legal Research Group
A federal district court in the Northern District of Oklahoma has held that Oklahoma's constitutional provision barring same-sex marriage violates the federal Constitution. Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 14, 2014).
The rationale is based heavily upon the second part of the Windsor opinion, which held that DOMA section 3 was invalid because it was enacted with intent to discriminate against gay couples. The court cited strong evidence that the purpose of the Oklahoma provision was to express moral disapproval of same-sex marriage. The court continued:
The Court recognizes that moral disapproval often stems from deeply held religious convictions. See Lawrence [v. Texas], 539 U.S. [558], 571 [2008)] (explaining that moral disapproval of homosexual conduct was shaped by "religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family"). However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law. See Lawrence, 539 U.S. at 577 ("'[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.'") (quoting and adopting Justice Stevens' dissent in Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)). Preclusion of "moral disapproval" as a permissible basis for laws aimed at homosexual conduct or homosexuals represents a victory for same-sex marriage advocates, and it forces states to demonstrate that their laws rationally further goals other than promotion of one moral view of marriage. Therefore, although Part A rationally promotes the State's interest in upholding one particular moral definition of marriage, this is not a permissible justification.
Id. at *27 (footnote omitted) (some citations omitted).
The court's direct holding that legislation cannot be based upon moral disapproval of same-sex marriage is extremely broad. Since moral disapproval is the primary basis for all restrictions upon same-sex marriage, the court's reasoning would strike down all such restrictions, creating in effect a broad federal right to same-sex marriage. But the court's interpretation of Windsor is open to question. Windsor discussed at considerable length the long tradition of treating marriage requirements as a subject for state law. If Bishop was correctly reasoned, then a federal right to same-sex marriage essentially exists, and the entire discussion of federalism in Windsor was irrelevant. In addition, Windsor itself could have created a broad federal right to same-sex marriage, and it did not. Thus, Bishop stretches the Windsor rationale to reach a result that the Windsor Court itself failed to reach.
Interestingly, Bishop recognized earlier in its opinion that "[a] state [restriction upon same-sex marriage] must be approached differently, and with more caution, than the Supreme Court approached DOMA" in Windsor. Id. at *19. But the court's very broad holding that state legislatures cannot constitutionally base legislation upon moral disapproval of same-sex marriage shows very little caution. If the federalism language in Windsor carries any weight whatsoever, the reasoning of Bishop is highly questionable.
In other words, Windsor recognizes that states have the power to decide who can and cannot be married. This determination has always been made with consideration of moral issues. For example, provisions barring bigamy and polygamy have traditionally been based upon moral disapproval of bigamists and polygamists. Moral disapproval is part of the rationale for state laws against incest. Morality has often been one relevant factor in deciding who can and cannot be married. If the state legislatures cannot consider morality when determining who can and cannot be married, the effect might be to overturn many provisions other than those barring same-sex marriage.
The author continues to believe that the preferable rationale for creating a federal right to same-sex marriage is Kitchen v. Herbert, 2:13-CV-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013). Kitchen refused to hold that Utah's provision barring same-sex marriage was unconstitutional due to antigay prejudice, finding that the restriction was based upon a complex mixture of good and bad intentions. Instead, Kitchen held directly that same-sex couples have a fundamental constitutional right to marry. The holding was based consciously upon Loving v. Virginia, 388 U.S. 1 (1967), which recognized a similar right for mixed-race couples. Extending Loving to same-sex couples is the cleaner and more logical route for creating a broad federal right to same-sex marriage.
In sum, the fundamental problem with Bishop is that the reasoning goes too far and inflicts too much collateral damage. Some morality-based marriage restrictions, such as provisions that bar polygamy, are generally accepted. The fundamental problem with same-sex marriage is not that the legislature considered morality, but rather that it considered morality in a way that violated the fundamental right of same-sex persons to marry. The proper path for recognition of same-sex marriage is Kitchen, not Bishop.
