U.S. District Judge Terence Kern ruled on July 20 that two Oklahoma same-sex couples can litigate various challenges to the federal Defense of Marriage Act and Oklahoma’s constitutional amendment barring same-sex marriage.
At the same time, the judge sharply reduced the scope of the case, eliminating certain legal theories from consideration and finding that the couples lacked standing to pose some of the challenges they did.
The Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, has two key provisions—one excusing states from recognizing same-sex marriages performed in other states, and another establishing an opposite-sex definition of marriage for all federal law purposes. The Oklahoma constitutional amendment restricts marriages there to opposite-sex couples, denies any of the “incidents” of legal marriage to unmarried couples, and says that same-sex marriages performed in other states will not be recognized in Oklahoma.
The U.S. Constitution limits federal courts to deciding “actual cases or controversies,” preventing them from issuing advisory opinions or declaring laws unconstitutional in the abstract. This constraint creates the issue of “standing”—the requirement that a plaintiff demonstrate a personal stake in the outcome of a lawsuit he or she files.
The question of standing affected the two couples differently. Mary Bishop and Sharon Baldwin had a church commitment ceremony in Oklahoma in 2002 and wish to be civilly married there as well. Susan Barton and Gay Phillips, also Oklahoma residents, had a Vermont civil union performed in 2001, and married in Vancouver, British Columbia, in 2005. They want the federal government and the state of Oklahoma to recognize both their civil union and their marriage as valid.
Judge Kern applied a very precise reading to both DOMA and the Oklahoma amendment in weighing the standing of each couple. Looking to the recent 9th Circuit Court of Appeals ruling that an Orange County, California, couple who are domestic partners lack standing to challenge DOMA because they are not married and the law deals only with state and federal marriage recognition, Kern easily concluded that Bishop and Baldwin lacked standing regarding any portion of DOMA, because they cannot claim to be married—or to have any legal relationship to each other.
Barton and Phillips presented a more analytically difficult problem, because they are married in Canada. Kern concluded that when DOMA allowed states to ignore same-sex marriages entered into in another “state,” it was referring to the 50 states and not using the word in its broader sense of nation. Thus, he found that DOMA does not give Oklahoma the authority not to recognize a foreign marriage, and so Barton and Phillips also lacked standing to challenge that part of the law.
However, since Barton and Philips have a legal marriage from Canada and a Vermont civil union, Kern concluded that it would be premature to dismiss their claims regarding the federal marriage definition at this early stage in the litigation, at least until after evidence discovery.
Turning to the state constitutional amendment, Kern decided that due to the narrow way its marriage recognition provision was drafted, neither plaintiff couples had standing to challenge that portion of it. Again, Bishop and Baldwin had no out-of-state marriage to be recognized. More significantly, Kern ruled that the Oklahoma amendment provided no barrier to recognition of the Barton-Phillips civil union or their Canadian marriage in Oklahoma, because the amendment only bans recognition of a same-sex “marriage” performed in another “state,” again defining that word to exclude any jurisdiction other than one of the 50 states, just as he did with DOMA. Oklahoma does not necessarily have any obligation regarding either Vermont civil unions or Canadian marriage; its state constitutional amendment merely fails to address them, in Kern’s view.
There’s a Catch-22 here: As a federal judge, Kern has no binding authority on the Oklahoma courts, which remain free to interpret the amendment differently—to bar recognition of Canadian marriages, and even Vermont civil unions.
Kern found that both couples can challenge the portion of the Oklahoma amendment that prohibits same-sex marriage there, or any of its “incidents,” since each wishes to marry there.
However, in a further blow to the plaintiff couples, Kern threw out several potential grounds for their claims, including the full faith and credit clause of the federal Constitution, by which states generally accord recognition to each others’ laws and contracts. The two couples must instead challenge both DOMA and the Oklahoma amendment on federal due process and equal protection grounds, already rejected by several other federal trial courts, and most recently by the U.S.
Court of Appeals for the 8th Circuit in upholding the Nebraska marriage amendment. Since Oklahoma is in the 10th Circuit, the Nebraska ruling is not binding precedent on Kern.
The constitutionality of DOMA and of state anti-marriage amendments will eventually be determined by the U.S. Supreme Court—but how a challenge will work its way up to that venue is unclear. If Kern were to declare one or both of the measures unconstitutional, even in part, and that ruling were upheld by the 10th Circuit, the stage would be set for a Supreme Court confrontation. But the 10th Circuit and 8th Circuit both represent deep-Red State portions of the Midwest, so a split between them over these questions seems unlikely.