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Cover series: Same-sex opponents have few, if any, options

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State Rep. Sally Kern reads her Morality Proclamation during a signing rally held at the State Capitol on 7-2-09.  Mark Hancock
  • State Rep. Sally Kern reads her Morality Proclamation during a signing rally held at the State Capitol on 7-2-09. Mark Hancock

Opponents to same-sex marriage were quick to criticize the Supreme Court’s decision not to hear Oklahoma’s case last week, which resulted in the legalization of same-sex marriage across the state.

“The will of the people has now been overridden by unelected federal justices, accountable to no one,” Gov. Mary Fallin said in a statement hours after the court’s decision.

Oklahoma Attorney General Scott Pruitt called the decision “troubling,” and Congressman James Lankford said the legalization of same-sex marriage would have “far-reaching effects on our American society.”

In a state in which 75 percent of voters agreed to ban same-sex marriage just 10 years ago, there is bound to be some disagreement with last week’s court ruling. But there doesn’t appear to be too many options for reversing course.

“I am calling on my colleagues and the governor to stand in unity that Oklahoma will let Oklahoma decide what marriage is and should be,” Rep. Sally Kern, R-Oklahoma City, said last week. “Every child deserves a mother and a father, and only natural marriage provides that.”

Kern offered strong words, but when asked for any details on how the state could limit same-sex marriage, she told Oklahoma Gazette there were no ideas at this time.

Two Tulsa-area same-sex couples filed a lawsuit in 2004 challenging the state’s ban and won a favorable verdict from a district that declared the state ban unconstitutional just last January. The decision was appealed by Tulsa County Court Clerk Sally Howe Smith to the U.S. 10th Circuit Court of Appeals, which upheld the district judge’s ruling this summer.

Marriages were put on hold, however, in order to give the U.S. Supreme Court time to decide if it wanted to take up the case. Last week, the Supreme Court said it would not take up any of the several same-sex marriage cases before it, resulting in the legalization of same- sex marriage in 11 states, including Oklahoma.

(Christopher Street)

(Christopher Street)

Still fighting

That leaves no other court for Oklahoma same-sex marriage advocates to appeal to. However, that’s not to say lawmakers won’t try to come up with some way to fight back. Rep. Mike Turner, R-Edmond, proposed banning all marriages this year in an attempt to outlaw same-sex marriage.

“[My constituents are] willing to have that discussion about whether marriage needs to be regulated by the state at all,” Turner said earlier this year.

The proposal gained little traction, and legal experts said they had never seen a similar law in another state. But the upcoming legislative session could provide a platform for lawmakers to continue expressing their objections, even if there is little they can actually do about it.

Many Oklahoma religious leaders were also critical of the Supreme Court’s inaction.

“Marriage is not merely a human institution that can simply be redefined at will, but one established by our Creator and necessary for human flourishing,” Oklahoma City Archbishop Paul Coakley said in a statement.

“It is truly a shame that the Courts of the land have gone against God’s Word,” said Anthony Jordan, executive director of the Baptist General Convention of Oklahoma.

There were also several religious leaders who praised the decision, including Robin Meyers, senior minister at Mayflower Congregational UCC Church in Oklahoma City, where dozens of same-sex weddings were performed last week.

“I want you to remember where you are,” Meyers told couples last week, reminding them that not every church was against their marriage.

The Supreme Court decided not to hear Oklahoma’s same-sex marriage case last week, but there is still a chance that another case could make its way to the nation’s highest court.

“One of the reasons the Supreme Court would get involved is if you have a circuit court split,” said Brady Henderson, legal director for the Oklahoma chapter of the American Civil Liberties Union. “Right now, there isn’t one, so the [Supreme Court’s] take is that there is no need to get involved.”

The Fifth Circuit Court of Appeals has two cases before it regarding same-sex marriage bans in Texas and Louisiana.

If the court, which agreed last week to expedite hearings for both cases, were to rule in favor of the bans, it would create a conflict with other rulings that could force the Supreme Court to step in.

If that were to happen, legal observers believe it would just result in a decision to legalize same-sex marriage nationwide.

“It’s really hard to imagine the Supreme Court would have allowed thousands of same-sex couples to get married, including in some very conservative areas like Utah, and then turn around and say, ‘Just kidding, there’s nothing wrong with state bans,’” Sarah Warbelow, legal director for the Human Rights Campaign, told various news outlets last week.

The growth of states allowing same- sex marriage, which now sits at 30, comes at a time when a majority of Americans support marriage equality.

Last week’s inaction by the Supreme Court not only legalized same-sex marriage in Oklahoma, it also opened the door to marriages in other states that make up the 10th Circuit, such as Kansas. A district judge in Johnson County, Kansas, gave the go-ahead for marriage certificates to be issued to same- sex couples. However, other counties in the state have not followed suit.

“You can go ahead and get a marriage license,” University of Kansas law professor Richard Levy told The Kansas City Star. “But if you do that, you may run the risk that the order under which you got your license is declared invalid.”

Opponents to same-sex marriage might still have a chance in other states, and a favorable ruling in another circuit court could force the Supreme Court to step in. But in Oklahoma, where opposition remains high, same- sex marriage is the law of the land and appears likely to stay that way.

Print headline: Pushback // Opponents speak out on same-sex law, but few options — if any — remain to reverse course.

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