Wednesday, January 15, 2014

Oklahoma Federal Judge Delivers Yet Another Blow against Same-Sex Marriage Bans

by Nomad

Across the nation, state-by-state same-sex marriage bans are being overturned by federal justices. Yesterday it was Oklahoma's turn. The governor of that state has invested a lot of political capital in attempting to stop marriage equality for gay Oklahoma couples. Has Conservative governor Mary Fallin's crusade finally come to the end? 

In what campaigners for marriage equality will see as a victory a federal judge ruled on Tuesday that an Oklahoma law limiting marriage to heterosexual couples violates the U.S. Constitution. The judge ruled that Oklahoma’s constitutional amendment violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Fourteenth Amendment has been the basis for most civil rights legislation since it provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. (This is, incidentally, the basis for corporate personhood.)

Oklahoma now joins California, Connecticut, Iowa Massachusetts), New Jersey, Utah and New Mexico where courts have ruled against same-sex marriage bans. A further 8 states have voted for recognition by legislative action and 3 more by popular vote.
By any measure, it has been a political disaster for conservatives. 

Governor Fallin
And a costly one for political groups. Millions of dollars have been spent by conservative Christian organizations like The Arlington Group to pass same-sex marriage bans in 13 states. Today there are 17 states that legally recognize same-sex marriages and that number will undoubtedly continue to rise.

Oklahoma Governor Fallin: Flailing and Failing 
This will come as a blow to many conservatives in the state who have politicized the issue. For example, Oklahoma Governor Mary Fallin had taken an active role in the matter since taking office. As if Oklahoma has absolutely nothing else to worry about.

In November, in order to stop same-sex couples from receiving benefits, she ordered the Oklahoma National Guard to stop processing benefits for all service members regardless of whether they are same-sex or opposite-sex. She told reporters that the reason for this was purely legislative. 

The state of Oklahoma does not recognize same-sex marriages, nor does it confer marriage benefits to same-sex couples. The decision reached today allows the National Guard to obey Oklahoma law without violating federal rules or policies. It protects the integrity of our state constitution and sends a message to the federal government that they cannot simply ignore our laws or the will of the people.
The Fallin decision was in breach of an order by order from Defense Secretary Chuck Hagel which required states to provide same sex couple with the federal benefits they were legally entitled to. As a result of Fallin's decision, all married couples were forced to travel to one of the five federal facilities in Oklahoma to apply for benefits. 
Many thought it was a petty attempt to turn the National Guard against the federal government. In any event, it was a foolish decision because if nothing else, instead of turning straight couples against same-sex couples, it might well have had the opposite effect.
To add to this hypocrisy, ThinkProgress notes:
Incidentally, the state’s facilities were built almost entirely with federal funds and 90 percent of the Oklahoma Military Department — which includes the National Guard — is funded by the federal government.
Thus Fallin has taken the odd position that by denying everybody their rightful reward for defending the state she is somehow protecting the state constitution. Looking over her track record, it shouldn't surprise anybody that former Alaska governor Sarah Palin in 2010 gave her strong endorsement for Mary Fallin. 
“Mary Fallin is another strong, smart conservative who I am proud to support. Mary’s another fiscal conservative with policy experience, political backbone, and real world knowledge that will serve the entire state well as she proves her mettle as Oklahoma’s next CEO."
As if Sarah Palin, of all people, has any conception of what the "real world" looks like.

The Will of the People?
In response to yesterday's federal court ruling, Fallin claimed that the court decision defied the will of the people of Oklahoma. Seventy-five percent voted in favor of limiting marriage to a man and a woman. She made her feelings clear in a press conference:
"I support the right of Oklahoma's voters to govern themselves on this and other policy matters. I am disappointed in the judge's ruling and troubled that the will of the people has once again been ignored by the federal government."
The problem with the argument against gay marriages has always been proving how gay marriage has any negative impact - outside being personally offensive to some people- on traditional marriage.  Vague talk of destroying the institution of marriage has never been supported by any credible evidence other than citing Biblical tracts.

That's very dangerous ground because the Bible says a lot of things that we of the modern age have chosen to ignore. And there is a far better argument for divorce destroying the traditional marriage than same-sex marriages. The Bible is quite clear about prohibitions on divorce and yet there is no talk of drafting laws against it in Oklahoma legislature.
Governor Fallin is not gay - as far as I know- so any ban on same-sex marriage wouldn't affect her directly. However Fallin is divorced. (And it was a messy one too with allegations in court of Fallin having an affair with her state trooper bodyguard.)
As far as adultery goes, The Bible is also pretty clear about its position. I wonder how she would have felt about the state of Oklahoma limiting the rights of divorcees or making adultery a punishable offense? Just as gay Oklahomans have done, she would have every right to take the issue to federal court. 
Not to worry about that, you divorced and fornicating couples, that's not going to happen.

A Fundamental Misunderstanding 
More importantly, her remarks point to a fundamental misunderstanding of the way government works. (And that's a little frightening for somebody at so high a level.) The opinions of the majority have a say in things that affect them directly.  For example, if the government forced young men and women into same sex marriage, then there would be a valid case to be made for a referendum vote. The voters have a right to rule over themselves but, according to the constitution, the majority doesn't have the right to decide all issues for everybody. 
If that were the case, then states where Christians are a majority could outlaw synagogues and mosques or it could mandate each citizen to be baptized before being allow to vote. As ridiculous as that sounds, many of the laws being dreamed up at a state level are nearly as absurd. 

The phrase "will of the people" is often used by demagogues but it has been used to restrict the rights of minorities. It certainly seems like a patriotic jingoism though.  

History also points to the fact that states are often not very good at respecting rights of the minority. For example, in the past, the majority of voters in  supported bans on interracial marriage. It was not until 1967 when all states banned miscegenation laws and it took a Supreme Court decision (Loving v. Virginia ). At that time, there were still 14 states with laws banning marriage between races and such laws had been considered the most tenacious form of legal segregation

map states laws banning inrracial marriage
U.S States, by the date of repeal of anti-miscegenation laws:
  No laws passed
  Before 1887
  1948 to 1967
  12 June 1967
Had there been a popular vote of that matter, what would have been the outcome? It's hard to know what "the will of the people" would have decided. We don't know the answer to the interesting question because that's not how the American system works.
Today, no state would dream of going back to restricting interracial marriage and, despite the outcry from conservatives, the same will be true of same-sex marriage.

The Flawed Secular Argument 
The secular argument is even less serious. Supporters of the laws say that government recognition of same-sex marriage on a par with traditional marriage and in doing so, demeans traditional marriage. Same-sex marriage, they'll tell you, makes real marriage less valuable. A government that recognizes same-sex unions as equal to traditional marriage is, therefore, giving its stamp of approval. 
But then the opposite is also true. 
As one source points out, the state doesn't require a stamp of approval for the character and motives of heterosexual couples so, outside of personal prejudice, why should it demand it for gay Americans?
Same-sex couples are not like B-grade singers or cheating athletes—or at least no more so than heterosexual couples. They want to get married for reasons very similar to those of heterosexuals: to express love and commitment, to gain religious sanctification for their union, to obtain a package of civil benefits—and, often, to have or raise children.

Traditional marriage has its share of creeps, and there are same-sex creeps as well. But the existence of creeps among the heterosexuals has never stopped the state from marrying heterosexuals. Nor do people talk or think that way. I’ve never heard anyone say that the state’s willingness to marry Britney Spears or O. J. Simpson demeans or sullies their own marriage.

But somehow, without even knowing anything about the character or intentions of the same-sex couple next door, they think their own marriages would be sullied by public recognition of that union.
Now What?
Fallin has led the state conservatives on a merry chase and there appears to be little more left in the fight (outside of secession.) In theory, the federal court's decision could be appealed and then it would move up to the next level, the Supreme Court.
That's probably going to be a waste of time. Last June, the Supreme court justices declined to rule against a lower court's decision in California which struck down the same-sex ban there. In doing so, the court in effective gave its approval to the ruling. Specifically, the majority report written by Justice Kennedy, notes:
“The federal statute [which banned same-sex marriages] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
He also noted that the law was motivated by a desire to restrict the rights of a certain class of citizen and in doing so, harm the individuals and their families. demeaning the “moral and sexual choices” of such couples and humiliating “tens of thousands of children now being raised by same-sex couples.”
That opinion doesn't leave much wiggle room in this debate. 

The ruling applied to states where same-sex marriage was banned. As consequences of this decision,   state-by state challenges were launched. This is, in effect, the last stage in the debate. So, the law of the land, whether the conservatives like it or not, has been established and justice for gay Americans has won the day.

So if the Oklahoma governor tries to proceed to the next level , oh, Mary is going to be quite contrary.

For an thorough exploration of the debate, I recommend Martha Nussbaum's essay, A Right to Marry? Same-sex Marriage and Constitutional Law