LGBT rights in Oklahoma

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LGBT rights in Oklahoma
Oklahoma (USA)
Same-sex sexual activity legal? Legal since 2003
Gender identity/expression State does not alter sex on birth certificates for transsexual people
Discrimination protections None
Family rights
Recognition of
relationships
None
Restrictions:
Constitution limits marriage to one man/one woman
Adoption No restrictions

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Oklahoma face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Oklahoma. Same-sex couples and families headed by same-sex couples are not eligible for all the protections available to opposite-sex married couples.

Law regarding same-sex sexual activity[edit]

Same-sex sexual activity has been legal in Oklahoma since 2003, when the United States Supreme Court struck down all state sodomy laws with its ruling in Lawrence v. Texas.[1]

Recognition of same-sex relationships[edit]

Oklahoma does not permit the issuance of marriage licenses to same-sex couples. The state forbids, both by statute and in its constitution, the recognition of same-sex marriages and other form of same-sex partnership solemnized in other jurisdictions.[2] Oklahoma Question 711, a constitutional amendment defining marriage as only between a man and a woman, was approved in a voter referendum in November 2004.[3]

Legislative actions[edit]

In 1996, the Oklahoma state legislature passed its own Defense of Marriage act, which defined marriage as between one man and one woman and prohibited same-sex marriages from other states from being recognized in Oklahoma.[4]

In May 2012, the Oklahoma Senate passed SCR 62, a non-binding resolution reaffirming marriage between one man and one woman. It passed 40-4, with 4 senators absent from the vote.[5]

In April 2013, the Oklahoma House of Representatives passed HCR 1009, a non-binding resolution reaffirming marriage between one man and one woman, and urging the Supreme Court to uphold the Defense of Marriage Act and the right of states to regulate marriage. It passed 84-0, with 71 Republicans and 13 Democrats voting yes, while 16 Democrats walked out of the chamber instead of voting in protest. Republican John Trebilcock was also absent of the vote. The Oklahoma Senate later that month approved the non-binding resolution.[6]

Cheyenne and Arapaho Tribes[edit]

As November 1, 2013, despite the official state prohibition, three same-sex couples have been issued licenses through the Cheyenne and Arapaho Tribes, a sovereign nation within the borders of Oklahoma.[7]

Bishop v. Oklahoma[edit]

On November 3, 2004, the day after Oklahoma voters overwhelmingly approved a constitutional amendment banning same-sex marriage, two lesbian couples, Mary Bishop and Sharon Baldwin and Susan Barton and Gay Phillips,[8] filed a challenge in federal court in Tulsa. The first couple was denied a marriage license by the Court Clerk for Tulsa County, Sally Howe Smith. The latter couple was married in Canada in 2005 and again in California in 2008. They were represented by Holladay and Chilton, an Oklahoma City law firm. County Clerk Smith was represented by the county's District Attorney and the Alliance Defending Freedom, a non-profit Christian advocacy organization.

The case was originally Bishop v. United States and later Bishop v. Oklahoma when the part of the suit that named the federal government as a defendant was dismissed. On January 14, 2014, U.S. District Court Judge Terence C. Kern ruled that Oklahoma's ban on same-sex marriage was unconstitutional. He stayed enforcement of his judgement pending appeal.[9] The Tenth Circuit has scheduled oral argument for April 17.[10]

Baker v. Nelson no longer binding[edit]

Baker v. Nelson was a 1971 Minnesota Supreme Court decision that upheld the state's denial of a marriage license to a male couple. The U.S. Supreme Court dismissed the appeal in Baker "for want of a substantial federal question." The Court ruled that Baker was not binding precedent. Kern's decision noted that "Baker presented the precise legal issues presented in this case" but found that the U.S. Supreme Court would no longer take the same view because "there have been significant doctrinal developments in Supreme Court jurisprudence since 1972 indicating that these issues would now present a substantial question". The Court also noted that two justices commented in the United States v. Windsor (2013) decision as to how lower courts might interpret Windsor in a case challenging a state ban on same-sex marriage, implying that lower courts would rightly consider such cases in the light of Windsor, not Baker. "If Baker is binding," Kern wrote, "lower courts would have no reason to apply or distinguish Windsor, and all this judicial hand-wringing over how lower courts should apply Windsor would be superfluous."

Standing of Barton couple[edit]

The plaintiffs had made different claims on behalf of each couple. The Court found the Barton couple lacked standing to challenge Section 2 of the federal Defense of Marriage Act because its enforcement was a question for state officials rather than the federal officials against whom they sought a judgement and the couple had no concrete evidence that Oklahoma officials had failed to recognize their out-of-state marriage. Even as it denied their claims, the Court wrote:[11]

Although the Barton couple will not receive a judgment in their favor as to this claim, they have played an important role in the overall legal process leading to invalidation of Section 3 of DOMA. The Barton couple filed this lawsuit many years before it seemed likely that Section 3 would be overturned. Although other plaintiffs received the penultimate judgment finding DOMA's definition of marriage unconstitutional, the Barton couple and their counsel are commended for their foresight, courage, and perseverance.

Equal Protection[edit]

The Court agreed with the Bishop couple that Part A of the Oklahoma constitutional amendment banning same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Court applied rational basis review and found the state's justifications inadequate, including encouraging responsible procreation, optimal child-rearing, and the impact on the institution of marriage. It said that part of the constitutional amendment was "an arbitrary, irrational exclusion of just one class of Oklahoma citizens from a governmental benefit."[12]

Of the Supreme Court's jurisprudence on the issue of sexual orientation discrimination and equal protection, the decision said:[11][12]

The Supreme Court has not expressly reached the issue of whether state laws prohibiting same-sex marriage violate the U.S. Constitution. However, Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.

He concluded:[11][12]

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 out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights.... Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.

Response[edit]

Governor Mary Fallin said: "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."[13] Attorney General Scott Pruitt called the decision "troubling" and said that the Supreme Court would have to decide the constitutionality of state bans on same-sex marriage.[14] The defendant, County Clerk Smith, filed a notice of appeal with the Tenth Circuit Court of Appeals on January 16.[15] She asked the Court to expedite the appeals process so that the court can hear the case along with a similar Utah case, Kitchen v. Herbert.[16]

Adoption and parenting[edit]

Oklahoma permits adoption by an unmarried adult without regard to sexual orientation.[17]

In August 2007, the Tenth Circuit Court of Appeals in the case of Finstuen v. Crutcher ordered Oklahoma to issue a revised birth certificate showing both adoptive parents to a child born in Oklahoma who had been adopted by a same-sex couple married elsewhere.[18]

Discrimination protection[edit]

Oklahoma law does not address discrimination based on gender identity or sexual orientation.[19] Oklahoma City and Tulsa both have nondiscrimination policies that prohibit discrimination in employment for sexual orientation only.

Hate crime laws[edit]

State law does not address hate crimes based on gender identity or sexual orientation.[20]

National Guard[edit]

Proposed legislation to institute in the Oklahoma National Guard a local version of "Don't ask, don't tell" (DADT), the federal policy that formerly prohibited gays and lesbians from serving openly in the U.S. military, was proposed in January 2012 and withdrawn in February.[21][22]

Following the U.S. Supreme Court decision in Windsor in June 2013 invalidating Section 3 of the Defense of Marriage Act, the U.S. Department of Defense issued directives requiring state units of the National Guard to enroll the same-sex spouses of guard members in federal benefit programs. Guard officials in Oklahoma enrolled some same-sex couples until September 5, 2013, when Governor Fallin ordered an end to the practice.[23] Defense Secretary Chuck Hagel on October 31 said he would insist on compliance.[24] On November 6, Fallin announced that members of the Oklahoma National Guard could apply for benefits for same-sex partners at federally owned ONG facilities, where most staffers are federal employees, and at federal military installations.[25] When DoD officials objected to that plan, Fallin ordered that all married couples, opposite-sex or same-sex, would be required to have benefits requests processed at those facilities.[26]

See also[edit]

References[edit]

  1. ^ "Oklahoma Sodomy Law". Human Rights Campaign. June 26, 2003. Retrieved November 2, 2013. 
  2. ^ "Oklahoma Marriage/Relationship Recognition Law". Hrc.org. March 16, 2007. Retrieved November 2, 2013. 
  3. ^ CNN: Ballot Measures, accessed May 15, 2011
  4. ^ Section 3.1 - Marriage Between Persons of Same Gender Not Recognized
  5. ^ [Oklahoma Senate defends marriage http://www.lifesitenews.com/news/oklahoma-senate-defends-marriage]
  6. ^ HCR 1009
  7. ^ Heide Brandes (November 1, 2013). "Oklahoma gay couple marry under Native American law". Reuters. Retrieved November 4, 2013. 
  8. ^ Lavers, Michael K. (January 14, 2014). "Federal judge strikes down Oklahoma same-sex marriage ban". Washington Blade. Retrieved January 14, 2014. 
  9. ^ Harper, David (January 11, 2014). "Oklahoma ban on gay marriage ruled unconstitutional". Tulsa World. Retrieved January 14, 2014. 
  10. ^ https://www.ca10.uscourts.gov/sites/default/files/calendar/events/calendar-4-17.pdf
  11. ^ a b c Bishop v. United States, January 14, 2014
  12. ^ a b c Geidner, Chris (January 14, 2014). "Oklahoma Ban On Same-Sex Marriages Is Unconstitutional, Federal Judge Rules". Buzz Feed. Retrieved January 15, 2014. 
  13. ^ Peralta, Eyder (January 14, 2014). "Federal Judge Strikes Down Oklahoma Ban On Gay Marriage". NPR. Retrieved January 14, 2014. 
  14. ^ Dunn, Tyler (January 14, 2014). "US District Judge rules Oklahoma ban on gay marriage unconstitutional, ban in effect pending appeal". KHRH Tulsa. Retrieved January 14, 2014. 
  15. ^ Averill, Mike (January 16, 2014). "Appeal filed in Oklahoma same-sex marriage ruling". Tulsa World. Retrieved January 21, 2014. 
  16. ^ Sanchez, Juan (January 21, 2014). "Court Clerk Requests Expedition of Gay Marriage Appeal". KTUL. Retrieved January 21, 2014. 
  17. ^ Human Rights Campaign: Oklahoma Adoption Law, accessed May 15, 2011
  18. ^ Finstuen v. Crutcher (10th Cir. 2007), accessed July 11, 2011
  19. ^ Human Rights Campaign: Oklahoma Non-Discrimination Law, accessed May 15, 2011
  20. ^ "Oklahoma Hate Crimes Law". Human Rights Campaign. Retrieved 15 May 15, 2011. 
  21. ^ "Bill Would Reintroduce DADT to Oklahoma Guard". Military.com. January 10, 2012. Retrieved February 22, 2012. 
  22. ^ "DADT Bill Apparently Shelved in Oklahoma House". Military.com. February 21, 2012. Retrieved February 22, 2012. 
  23. ^ "Oklahoma Gov. Mary Fallin tells National Guard to deny same-sex benefits". New York Daily News. September 18, 2013. Retrieved December 3, 2013. 
  24. ^ Johnson, Chris (October 31, 2013). "Hagel to direct nat'l guards to offer same-sex benefits". Washington Blade. Retrieved December 3, 2013. 
  25. ^ Allen, Silas (November 7, 2013). "Oklahoma National Guard will process same-sex spouse benefits at a few federal facilities". NewsOK. Retrieved December 3, 2013. 
  26. ^ Mills, Russell (November 20, 2013). "Fallin: OK will no longer process benefits for National Guard couples". KRMG. Retrieved February 14, 2014. 

External links[edit]