Oklahoma and Utah grab a beer. “We’re not gay, right?” “Nah, man. We’re as straight as they come.” “Did our knees touch? Never mind.”
— Jon Lovett (@jonlovett) January 15, 2014
Lyle Denniston unpacks yesterday’s news out of Oklahoma:
In ruling against the state’s ban on same-sex marriage, the judge declared that it violated the U.S. Constitution’s guarantee of legal equality. He ruled that the Supreme Court’s ruling last Term in United States v. Windsor actually provided some support both for the challenging couple and for state officials defending the state ban.
The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the Court majority about the purpose behind DOMA could also be applied to state bans on same-sex marriage. It supports the state, the judge added, because of the lengthy commentary in the opinion about states’ primary power to define marriage.
In the end, however, the judge decided that Oklahoma’s ban was based on intentional discrimination, with a “stark” negative impact on gay and lesbian couples. “This is not a case where the law has a small or incidental effect on the defined class; it is a total exclusion of only one group.”
Allahpundit chimes in:
If they want to discriminate against gay couples, they need to show some rational reason for doing so.
“Moral disapproval” isn’t a rational reason per the Supreme Court’s ruling in Lawrence v. Texas, the landmark case from 2003 that declared Texas’s anti-sodomy law unconstitutional. The upshot of Lawrence is that you can’t legislate morality when you’re targeting intimate relationships between consenting adults. You can regulate those relationships if you have some other rational reason for doing so, but the state couldn’t produce one here: “Encouraging procreation” doesn’t fly if you’re not also excluding straight infertile couples from marriage and “encouraging mother/father households” doesn’t fly if you can’t show how banning gay marriage would actually encourage the formation of those households. As I say, all of this is S.O.P. for federal SSM jurisprudence lately. The only real novelty is that, between this ruling and the ruling in Utah last month, the new legal battlefield over gay marriage lies in America’s reddest states. That may be an extra inducement for SCOTUS to deal with this sooner rather than later.