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Oklahoma same-sex marriage ban struck down by federal judge

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A federal judge in Tulsa struck down Oklahoma's ban on same-sex marriage Tuesday but suspended his decision while it's appealed to higher courts.

The ruling is the latest in a series of legal victories for same-sex marriage proponents around the country.

U.S. District Judge Terence Kern's ruling stemmed from a lawsuit filed in 2004, the same year Oklahoma passed its constitutional amendment with 76% of voters in favor of banning same-sex marriage.

Kern's ruling said Oklahoma's ban violated the 14th Amendment of the U.S. Constitution. He cited comments from state Republicans in 2004 in ruling that Oklahoma's amendment was intended to discriminate against gays.

"Moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law," Kern, a Bill Clinton appointee, wrote in the ruling, which called the ban "arbitrary" and "irrational."

Oklahoma joins Utah in awaiting a federal appeals court's decision on whether gay and lesbian couples can wed in two of the nation's most conservative states.

The Oklahoma lawsuit was brought by two longtime couples seeking to strike down the state's ban and the federal Defense of Marriage Act, which restricted recognition of same-sex marriages. One couple had married in another state; the other had not.

“We want the state of Oklahoma to marry us,” Sharon Baldwin told the Los Angeles Times in an interview. “I am at least a fourth-generation Oklahoman, and Mary at least a sixth-generation Oklahoman. It doesn't occur to us that we should have to leave our state.”

She said she and her partner, Mary Bishop, had a unofficial commitment ceremony 14 years ago in Florida. They have been together 17 years. 

The couples sued the federal government and a county clerk who had denied one couple a marriage license. The clerk, Sally Howe Smith of Tulsa County, was defended by attorneys from the Alliance Defending Freedom, an Arizona-based Christian legal group.

Kern's ruling was delayed when the U.S. Supreme Court took up the Defense of Marriage Act, striking down part of that law in June and making part of the Oklahoma lawsuit moot.

In his opinion, Kern had particularly sharp words for the Alliance lawyers' arguments that Oklahoma's ban protected the sanctity of marriage.

"Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, as Oklahoma consistently has one of the highest divorce rates in the country," Kern wrote.

Kern added that such a justification for a same-sex marriage ban was "insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."

But wedding bells won't be ringing in Oklahoma just yet, as they did in Utah last month when federal Judge Robert Shelby in Salt Lake City shocked the state by invalidating a similar ban.

Hundreds of Utah couples rushed to wed, but the legal status of those unions is in limbo because the U.S. Supreme Court put Shelby's decision on hold and halted same-sex weddings in the state while an appeals court considers the case.

That court, the U.S. 10th Circuit Court of Appeals based in Denver, is the same appeals court that presides over Oklahoma. It is already set to hear arguments in the Utah case and decide whether gays and lesbians have a constitutional right to marry.

The 10th Circuit’s decision will govern the Oklahoma case as well, since the issues are identical. But the cases are not likely to end there. The losing side almost certainly will appeal to the U.S. Supreme Court and seek a final ruling on the constitutional issue.

Baldwin said she and her partner were "indignant" over the state's same-sex marriage ban. “How dare they think that my rights are subject to their vote?” she said. 

Alliance Defending Freedom senior counsel Byron Babione, in a statement provided to the Los Angeles Times, blasted Kern's ruling and his finding that marriage was what Babione called "little more than special government recognition for close relationships."

"A court should not impose this novel view of marriage on the people of Oklahoma," Babione said. "We will review the decision with our client, the Tulsa County clerk, and consider her next steps.”

Kern acknowledged that the Supreme Court, in its ruling last summer, had stopped short of guaranteeing marriage as a constitutional right for same-sex couples. But times are changing, he noted.

"There is no precise label for what has happened in Supreme Court jurisprudence" since the mid-1990s and culminating with the court's decision to strike down parts of the Defense of Marriage Act last summer, Kern wrote.

"But this court knows a rhetorical shift when it sees one," Kern said, then proceeded to strike down Oklahoma's ban.

Times staff writer David G. Savage contributed to this report from Washington.

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