Much of the recent progress on marriage equality has come on the hands of progressive state lawmakers who chose to expand civil rights. States like Hawaii and Illinois recently endorsed equal marriage rights for all through the political process.
But when it comes to same-sex marriage in deep “red” states, don’t discount the importance of the judiciary.
A federal judge declared Oklahoma’s ban on same-sex nuptials unconstitutional Tuesday, making it the second deep-red state in less than a month to dramatically change course on marriage equality.
“The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” wrote U.S. District Judge Terence Kern in his opinion. “Equal protection is at the very heart of our legal system and central to our consent to be governed,” he continued. “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.”
A full copy of the ruling is online here (pdf). Note that Kern, a Clinton appointee, went on to call Oklahoma’s ban “an arbitrary irrational exclusion of just one class of Oklahoma citizens from a governmental benefit.”
News out of the Sooner State comes nearly a month after a different federal judge reached a similar conclusion about Utah’s ban on marriage equality. Unlike in Utah, however, where officials forgot to include a request for a stay, attorneys representing Oklahoma were a little more on the ball – the state ban on same-sex marriages will remain in place during the appeals process.
In the larger context, though, a pattern is taking shape.
As Emma Margolin noted, thanks in part to the U.S. Supreme Court’s ruling striking down the Defense of Marriage Act six months ago, civil rights proponents in conservative states are turning to the courts with increased vigor, recognizing a unique opportunity that didn’t exist before: “Similar suits are pending in Pennsylvania, North Carolina, and Virginia,” among others.
But there is certainly something striking about the states affected by court rulings in recent weeks. As Rachel explained on the show last night, “Utah is a really, really, really red state. Really red. But, you know, what’s redder than Utah? Oklahoma. And now as of tonight, these are the two most recent states to have their gay marriage bans struck down in the courts.”
As for the ban’s proponents, Gov. Mary Fallin (R) emphasized the fact that when the issue went before voters in 2004, the ban was approved by a 3-to-1 margin. “The people of Oklahoma have spoken on this issue,” Fallin said in a statement. “I support the right of Oklahoma’s voters to govern themselves on this and other policy matters.”
In other words, for much of the right, civil rights should be a popularity contest – whether it’s just matters less than whether it’s politically popular. A growing number of courts apparently disagree.
It’s also a reminder as to why fights over judicial nominations in Washington are so important and consequential.