The Court recognizes that moral disapproval often stems from deeply held religious convictions….However, moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.
There is no rational link between excluding same-sex couples from marriage and the goals of encouraging “responsible procreation” among the “naturally procreative” and/or steering the “naturally procreative” toward marriage. Civil marriage in Oklahoma does not have any procreative prerequisites.
If a same-sex couple is capable of having a child with or without a marriage relationship, and the articulated state goal is to reduce children born outside of a marital relationship, the challenged exclusion hinders rather than promotes that goal.
Same-sex couples are being subjected to a “naturally procreative” requirement to which no other Oklahoma citizens are subjected, including the infertile,the elderly, and those who simply do not wish to ever procreate. Rationality review has a limit, and this well exceeds it
Exclusion from marriage does not make it more likely that a same-sex couple desiring children, or already raising children together, will change course and marry an opposite-sex partner (thereby providing the“ideal” child-rearing environment).
Excluding same-sex couples from marriage has done little to keep Oklahoma families together thus far, asOklahoma consistently has one of the highest divorce rates in the country.
With respect to marriage licenses, the State has already opened the courthouse doors to opposite-sex couples without any moral, procreative, parenting, or fidelity requirements. Exclusion of just one class of citizens from receiving a marriage license based upon the perceived “threat” they pose to the marital institution is, at bottom, an arbitrary exclusion based upon the majority’s disapproval of the defined class. It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships. “‘Preserving the traditional institution of marriage,’”which is the gist of Smith’s final asserted justification, “is just a kinder way of describing the State’s moral disapproval of same-sex couples.”
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. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. 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.