Let's begin with the closing paragraph on the merits: Judge Kern's conclusion that Oklahoma laws violate the Bishops' right to Equal Protection of the laws:
Judge Kern's observation that Equal Protection is "central to our consent to be governed" has its roots in what Abraham Lincoln said in 1854 in the Peoria Address. Lincoln's opponent Stephen Douglas had argued that white people could vote to institute slavery under the principle of "self-government" -- if the white people of a state or a territory voted to make slavery the law, that was simply their right to govern themselves. Lincoln made this response to Douglas: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. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same sex couples, from this privilege without a legally sufficient justification. (p. 67)
Judge Kern is right. When the majority governs "by a set of rules altogether different from those which [they] prescribe for [themselves]" that is not self-government -- that is the government of others.The doctrine of self government is right – absolutely and eternally right – but it has no just application, as here attempted. Or perhaps I should rather say that whether it has such just application depends upon whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him. But if the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too shall not govern himself? When the white man governs himself that is self-government; but when he governs himself, and also governs another man, that is more than self-government---that is despotism. If the negro is a man, why then my ancient faith teaches me that “all men are created equal;” and that there can be no moral right in connection with one man's making a slave of another.… [N]o man is good enough to govern another man, without that other's consent. I say this is the leading principle – the sheet anchor of American republicanism. Our Declaration of Independence says:“We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, DERIVING THEIR JUST POWERS FROM THE CONSENT OF THE GOVERNED.” I have quoted so much at this time merely to show that according to our ancient faith, the just powers of governments are derived from the consent of the governed. Now the relation of masters and slaves is, PRO TANTO, a total violation of this principle. The master not only governs the slave without his consent; but he governs him by a set of rules altogether different from those which he prescribes for himself. Allow
ALLthe governed an equal voice in the government, and that, and that only is self government.
Judge Kern's opinion contains a number of other compelling arguments.
Under Equal Protection, the plaintiff has the burden of proving that the government intentionally treated his or her group differently. That is, the plaintiff must demonstrate that the government was guilty of "purposeful discrimination" -- that the government singled out his or her group for disparate treatment. The Oklahoma law does not mention sexual orientation; it simply provides that the only marriages that the State of Oklahoma would recognize were those between one man and one woman. However, Judge Kern had little difficulty finding that the 2004 amendment to the Oklahoma Constitution was intended to treat gay and lesbian couples differently. Although the law itself was silent as to who was being targeted, lawmakers were not silent. Oklahoma, like many states, does not officially document the legislative process, but in this case not only did Oklahoma lawmakers make numerous public speeches affirming that the purpose of the law was to ban same sex marriage, but after approving the amendment the Oklahoma Senate issued a press release proudly announcing its opposition to "homosexual marriages" and proclaiming that it had stymied "efforts by liberals and activist judges seeking to redefine marriage by allowing same-sex unions." (pp. 43-44) In light of all this evidence, there was no doubt that the law was directed at gays and lesbians, and intentionally treated people differently because of their sexual orientation.
The next element in an Equal Protection claim is to determine whether the group being discriminated against is a "suspect class." This factor has already been decided by the Tenth Circuit Court of Appeals, who ruled in 2010 that sexual orientation is not a suspect classification. Accordingly, the rational basis test applies. In the field of Equal Protection, however, rational basis is not a toothless standard. Judge Kern quoted the following passage in which the Tenth Circuit eloquently articulated the test that a law that intentionally treats group differently must satisfy in order to be considered constitutional:
There must be, "at the very least, a rational reason" to treat a group differently.the Equal Protection Clause is a more particular and profound recognition of the essential and radical equality of all human beings. It seeks to ensure that any classifications the law makes are made without respect to persons, that like cases are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference. (p. 41)
Judge Kern then listed the reasons that were given by the State of Oklahoma for denying gay and lesbian couples the right to marry, and he concluded that none of these reasons was "rational."
The first, and evidently the primary reason why Oklahoma adopted this law was to promote "morality." Judge Kern quoted legislator after legislator who asserted that banning same-sex marriage was "upholding morality" or that same-sex marriage was "just not right." (p. 53) But, Judge Kern noted, the Supreme Court has already ruled that "the 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." Lawrence v. Texas (2003). (pp. 54-55) Furthermore, the oft-repeated mantra that laws like this are "defending the institution of marriage" adds nothing to the state's argument. Judge Kern quoted Justice Scalia on this point. Justice Scalia had stated:
Preserving the traditional institution of marriage is just a kinder way of describing the State’s moral disapproval of same-sex couples. (Lawrence v. Texas, Justice Scalia, dissenting). (p. 65)As to the state's other purported interests -- encouraging procreation, promoting the "optimal" environment for child-rearing, and preventing a negative impact on the institution of marriage -- Judge Kern found that there was no causal connection, no "rational link" between the law in question and any of these goals. Preventing gay and lesbian couples from marrying would not to any extent encourage other people to have children, or help them to raise children better, or strengthen their marriages. (pp. 56-66)
Judge Kern's opinion is particularly thoughtful, careful, and articulate. It is a pleasure to read, and it is inspiring.
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