Why the Oklahoma Gay Marriage Ruling is a Blueprint for Virginia's Marriage Cases

Virginia plaintiffs Tim Bostic and Tony London

I was quoted yesterday in GayRVA on the federal court ruling this week in Oklahoma that struck down Oklahoma's gay marriage ban.  The opinion was well written and relied on both the U.S. Supreme Court rulings in Lawrence v. Texas and United States v. Windsor which made it clear that moral disapproval and animus, respectively, toward a particular group could not justify deliberately discriminatory laws.  While the Oklahoma and Utah rulings are not technically binding precedent on either the Eastern District or Western District of Virginia, they lay out a reasoning easily applicable to the two pending gay marriage lawsuits in Virginia.  Especially when one looks at the anti-gay animus and moral disapproval of gays which was a steady current in the propaganda war led by The Family Foundation and its allies to push passage of the Marshall-Newman Amendment in 2006.  The New Civil Rights Movement reviews the Oklahoma ruling and the reasoning is 100% on point for Virginia.  Here are excerpts:

The Judge notes that Oklahoma’s constitutional ban on same-sex marriage “intentionally discriminates.”

He labeled Oklahoma’s ban “a classic, class-based equal protection case,” and cited numerous press releases noting animus as the reason the law was passed, like this:

State Representative Bill Graves said, “‘This is a Bible Belt state . . . . Most people don’t want that sort of thing here. . . . Gay people might call it discrimination, but I call it upholding morality.’”

And he effectively slammed every so-called “pro-family” anti-gay group, every evangelical and every Christian organization’s arguments against marriage equality.

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.

But wait — it gets better!

Judge Kern writes “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.”

Permitting same-sex couples to receive a marriage license does not harm, erode, or somehow water-down the “procreative” origins of the marriage institution, any more than marriages of couples who cannot “naturally procreate” or do not ever wish to “naturally procreate.”

And then, bingo!

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.

Kern keeps on hitting it out of the ballpark, exploding the so-called “every child deserves a mom and a dad” claim groups like NOM and the Family Research Council use.

He writes “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…”

“The Court concludes that denial of same-sex couples from marriage “does nothing to promote stability in heterosexual parenting.””

Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country.

And then, finally, this:

“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.”

What happened in Oklahoma is identical to what happened in Virginia and, if the judges in Virginia are responsible jurists, they have no option but to rule as the U.S. District Court in Oklahoma ruled.