Judges doing what judges do, go figure

Oklahoma recently had its law banning gay marriage deemed by the courts as being unconstitutional. Since then, supporters from both sides of the issue have been arguing back and forth about why it it should or should not stand. Those supporting the ban often make comments about liberal judges and the will of the people. Those who support gay marriage are saying things in response such as the majority does not get to vote away individuals rights, and often make responses to constitutional amendments, usually the 14th.

The one thing that is clear is very few are really looking at what the courts had to say on the subject. This is actually kind of understandable because you have to actually track down the document giving the information, or just go here, and then translate all 68 pages from legalese into something understandable. Not a task many are up to.

While the language of the document isn’t extremely difficult to slug through, even those of us with a passing familiarity for such things don’t necessarily jump at the chance to try. The good news, however, is someone else did.

A forum user on the Tulsanow.com forums by the name of cannon_fodder decided to take on the task of creating a more digestable summary of the case. With a background in legal matters, he has been able to break it down into layman’s terms for you. So next time you find yourself debating this subject, you can now go in with a knowledge of why the decision was made.

Below is the meat of the posting that can be found at http://www.tulsanow.org/forum/index.php?topic=20377.msg278450#msg278450

1.   Long discussion on jurisdictional issues, each couple had standing on different issues and were challenging different portions of the law.  The DOMA challenge was deemed moot (thrown out by SCOTUS).  In the end, §A of the Oklahoma constitutional amendment defining marriage as only between a man and a woman and prohibited legal benefits of marriage to gay couples was the only portion decided.
2.   The actual decision begins on page 30,
a.   with a discussion of a distinguished case (holding Baker v. Nelson, 1972, which held that gay marriage laws in MN are not a Federal Question, does not apply because circumstances have materially changed);
b.   discussing the impact of Windsor (2013 Supreme Court holding that DOMA identified a subset of marriages and made them unequal in violation of the US Constitution); and
c.   a discussion of how marriage works in Oklahoma (apply for a State license [cannot be related, cannot be currently married, must be 18 or…, and cannot be same sex], have a ceremony to “solemnize” the marriage, file the marriage license and the marriage certificate with the State).

3.   Starting on Page 41 the Court goes into the equal protection discussion (legal holding)
a.   Does the challenged state action intentionally discriminate between groups of persons? And if so…
b.   Can state’s intentional decision to discriminate be justified by reference to some legitimate government purpose?  If no… it is unconstitutional and the State cannot do it.

4.   Does it discriminate?   Yes, yes it does. (starting on P. 42)
a.   The group singled out is “Same-sex couples desiring an Oklahoma marriage license”
b.   The amendment prevents every same-sex couple in Oklahoma from receiving a marriage license, and no one else.
c.   The amendment was adopted for the purpose of excluding some Oklahoma citizens from marriage (citing many statements from politicians on their intent).  “Exclusion of a defined class was nota  hidden or ulterior motive, it was consistently communicated to Oklahoma citizens as justification for SQ 711.”  P.
d.   “This is a classic, class-based equal protection case in which a line was purposefully drawn between two groups of Oklahoma citizens”

5.   Is the intentional discrimination justified?  No, no it is not. (starting on P. 47)
a.   Sexual orientation is not a protected or suspect class (race, religion, etc.), so the government only needs a “rational basis” to discriminate against homosexuals.
b.   The government needs to show “any conceivable state of facts that couple provide a rational basis for the classification” and discrimination.
c.   The state fails to show any rational basis for the following reasons:

6.   What were the stated basis , and why they are not rational? (starting on p. 53)
a.   Promoting Morality – moral disapproval of a class of persons is not a permissible justification for a law discriminating against them
b.   Encouraging Procreating – We don’t require anyone else to procreate, or have the ability to procreate in order to get married.  Also, banning gay marriage is not likely to encourage anyone to procreate that wasn’t already considering it (can’t get gay married?  OK fine, I’ll have a baby with a man).
c.   Responsible Procreation – it is in the state’s interest to encourage couples to have children in wedlock (reduces the burden the chances of the State having to pay for the kid), but there is no link between gay marriage and the goal of having procreating couples be married.    “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 marriage of couples who cannot ‘naturally procreate’ or do not wish to ‘naturally procreate.”  Also – if the stated goal is to have children born into married couples, allowing gay marriage will enhance this goal as currently unmarried gay couples can, and do have children and are prohibited from marriage.
d.   Lack of interest – the argument that the State of Oklahoma has no interest in gay marriage because it doesn’t advance a State interest fails because in this instance the State took specific action to prevent it.  Not caring is not justification to ban it.
e.   Promoting the “Optimal Child-Rearing Environment” – Excluding gay couples from marriage does not make it more likely that a same-sex couple desiring or already having children will change course and marry an opposite-sex partner.  Gay marriage does not make it more likely that a heterosexual couple will decide to forgo marriage and have children out of wedlock.  Same-sex marriage does nothing to promote stability of heterosexual parenting.  No other couple is required to provide an “optimal” child rearing environment to get a marriage license.  If the goal is to promote stable, loving, financially successful, and responsible parenting by a committed couple – gay marriage actually helps this goal.
f.   Negative Impact on Marriage – No other couple is tasked with upholding the entire institution of marriage as a condition of getting a license.  Oklahoma consistently is near the top of the nation in the divorce rate for heterosexual couples, accusing same sex couples of eroding the institution of marriage is ”insulting to the same-sex couples, who are human beings capable of forming loving, committed, and enduring relationships.”  “Preserving the institution  of marriage” is just another inappropriate way of passing moral judgment disguised as law.
g.   NONE of the reasons hold up as rational

7.   The amendment to the Oklahoma constitution is “an arbitrary exclusion of just one class of Oklahoma citizens from a governmental benefit.  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 our 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 relationship for many years… and want 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 legally sufficient justification.”  P.67

8.   “The Court declares that Part A of the Oklahoma Constitutional Amendment violates the Equal Protection Clause of the Fourteen Amendment to the US Constitution by precluding same-sex couples from receiving an Oklahoma Marriage license.”  P.67

9.   The order is STAYED in line with the Supreme Court’s ruling in the Utah case.  No marriage licenses can be issued in Oklahoma to same-sex couples until the 10th Circuit rules.

And the children shall lead the way

In 1967 the Supreme Court of the United States deemed discriminating against inter-racial relationships is unconstitutional, yet it seems society has yet to catch up to it, unless you ask the children.

Cheerios recently produced a commercial that consisted of a mixed race family.  The commercial did not focus on the race of the family, in fact, it did not even mention it or allude to it, it was simply a fact of the family.  The response was, in large part, accepting, but that was overshadowed by the very vocal outcry against such a practice.  The anger at the cereal company for presenting such a thing was so negative that the comments on the YouTube video of the commercial had to be disabled.

All is not lost, however.  The YouTube user TheFineBros, brothers Benny and Rafi Fine, produce an online video production called React, in which they get candor reactions from people on various subjects.  The brothers tackled the issue of the controversial commercial by having some children watch the video and getting their reaction to it.  Interestingly enough, not a one of them even fathomed the possibility that there was something wrong with the family.  When asked about it, they were simply aghast that anyone would have a problem with it.  See the full video for yourself.

In response to the negative reactions, YouTube user Kenji America posted a parody of the original commercial, complete with a mother and daughter that look very much like those in the original commercial.  It has a very straight forward message to those who spoke out against Cheerios for its commercial, and puts it own twist on the punchline.