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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Wednesday, January 15, 2014

Federal Judge Strikes Oklahoma's Constitutional Ban on Same-Sex Marriage

As predicted here at the Law Blogger, 2014 will be a banner "floodgate" year relative to same-sex marriage cases.  Yesterday, federal judge Terence Kern issued a 68-page opinion that struck Oklahoma's constitutional provision limiting marriage between a man and a woman.

The effect of Judge Kern's ruling is stayed pending appeal to the 10th Circuit.  As our nation's marriage law jurisprudence deepens with a collection of cases spread across the 11 appellate circuit courts, there is no doubt that one of these cases will make it to the SCOTUS to supplement United States vs Windsor.

The Oklahoma case, Bishop vs United States, pending long before the Windsor decision was handed down, challenged the marriage definitions of the Defense of Marriage Act and the Oklahoma state constitutional provisions expressly prohibiting same-sex marriage.  Oklahoma's constitutional provisions were passed by voter initiative in 2004 and provide:
A. Marriage in this state shall consist only of the union of one man and one woman.  Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
B.  A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.
C.  Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
Well, you can probably kiss these restrictive prohibitions good bye for good if the momentum of our federal marriage law continues apace from the SCOTUS Windsor decision.

The Bishop case has been kicking around for nearly a decade.  The two lesbian couples that make up the plaintiffs in the case already have been to the 10th Circuit once on appeal, successfully challenging a summary judgment, changing lawyers upon remand, and amending their complaint to include finely-tuned constitutional allegations and bringing the case against the United States as well as the State of Oklahoma.

The now-struck constitutional provisions set forth above have counterparts in many states, including here in Michigan.  Each of these states have lawsuits, or will soon have lawsuits, seeking declarative relief that such provisions are unconstitutional under our federal constitution.

At some point along the way, another case or two will be granted certiorari by the SCOTUS so that the matter can be settled across the nation, presumably along the lines of Loving vs Virginia; the decision that struck Virginia's state law proscribing inter-racial marriage.  This case could come in the next term, or it could be a decade out.

In the meantime, this blog will continue to chronicle the state-by-state struggle for same-sex marriage that has become the civil rights struggle of our time.

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