In Oklahoma, Another Court Against Using Religion as Justification for Discrimination

In yesterday’s ruling striking down Oklahoma’s ban on same-sex marriage, federal district court judge Terence C. Kern flatly rejected the idea that religion should be used as a justification for a discriminatory law.

In the decision, which is stayed pending appeal, Judge Kern ruled that the state’s ban violated the constitutional rights of same-sex couples, drawing on Supreme Court precedent—most recently, its decision striking down the Defense of Marriage Act in Windsor v. United States

Judge Kern wrote, “This Court interprets Windsor as an equal protection case holding that DOMA drew an unconstitutional line between lawfully married opposite-sex couples and lawfully married same-sex couples.” The Windsor decision, though, was not based on equal protection principles but rather on DOMA’s “blatant improper purpose and animus,” which “was to impose inequality.” While Windsor requires some caution in permitting states to regulate marriage, he went on, it also demands that “courts reviewing marriage regulations, by either the state or federal government, must be wary of whether ‘defending’ traditional marriage is a guise for impermissible discrimination against same-sex couples.”

That is the heart of the question: whether states can invoke “Judeo-Christian” or “traditional” or “family” values to justify bans on same-sex marriage. In answering that question with an unequivocal “no,” Judge Kern provided a detailed legislative history of Oklahoma’s 2004 passage of its ban, noting that legislators’ statements clearly demonstrated that “exclusion of the defined class was not a hidden or ulterior motive; it was consistently communicated to Oklahoma citizens as a justification” for the law.

Citing the Windsor decision’s chronicle of DOMA’s supporters’ morality claims, the court compared them to how Oklahoma legislators promoted the ban as “upholding one specific moral view of marriage,” including statements about “what God has ordained as traditional marriage.” One legislator opined, “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.” At a rally in support of the bill, another legislator said, “As Christians, we are called to love homosexuals. . . But I hope everyone at this rally knows the Scriptures prohibit homosexual acts.” And the mayor of Tulsa added, “If you believe in Christ, if you believe in this country, and if you believe in this city, you believe that marriage is a covenant between God, a man, and a woman.”

The state tried to argue, as further justification for the law, that same-sex marriage would have a “negative impact” on the institution of marriage. But Judge Kern rejected that argument as “impermissibly tied to moral disapproval of same-sex couples as a class of Oklahoma citizens. All of these perceived ‘threats’  are to one view of the marriage institution—a view that is bound up in procreation, one morally ‘ideal’ parenting model, and sexual fidelity.” The claim to be “preserving” the “traditional institution of marriage,” wrote Kern, is just a “kinder way” of expressing the state’s “moral disapproval” of same-sex couples. 

Oklahoma, Judge Kern concluded, could not articulate “a rational link between exclusion of this class [same-sex couples] from civil marriage and promotion of a legitimate governmental objective.” He recognized that although the Supreme Court has not decided the question of whether state same-sex marriage bans are unconstitutional, in reading a line of cases culminating in Windsor, “this Court knows a rhetorical shift when it sees one.” And that rhetorical shift is significant. We are now seeing the consequences of the Windsor court’s rejection of religious belief as a justification for discrimination, a serious, potentially fatal, challenge to claims that “Judeo-Christian” values or a “biblical worldview” must undergird our laws.

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email

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