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Ban on the run?

Oklahomans ponder how the Supreme Court ruling on the Defense of Marriage Act will impact same-sex couples in the Sooner State.

Greg Horton July 2nd, 2013

The U.S. Supreme Court decision on the Defense of Marriage Act (DOMA) last week energized both opponents and supporters of same-sex marriage in Oklahoma.

Supporters of same-sex marriage rallied at the Cimarron Alliance the day of the Supreme Court announcement.

Hours after the high court announced it had struck down DOMA and rejected California’s Proposition 8 ban on same-sex marriage, Gov. Mary Fallin issued a public statement reconfirming her opposition to “expanding the definition of marriage.”

By contrast, state advocates for lesbian, gay, bisexual and transgender equality called it a day for celebration.

“This will likely be seen as the single most important day in terms of LGBT equality,” said Scott J. Hamilton, executive director of Cimarron Alliance Equality Center. “I believe it will galvanize more support for even more equality.”

State bans
The end of DOMA will have no immediate effect in Oklahoma, where voters in 2004 overwhelmingly passed a constitutional amendment outlawing same-sex marriage. Still, the court’s rulings are the first step in what surely will be a deluge of lawsuits in the 38 states that currently have bans.

“The Supreme Court really avoided the issue of state bans in the California case, but they know they won’t avoid it forever,” said Andrew Spiropoulos, a law professor at Oklahoma City University School of Law.

In declining to rule on the merits of Proposition 8, the justices in effect sidestepped the question of state bans. But many legal experts say the DOMA defeat is likely to prompt more lawsuits challenging such bans.

“Basically, a couple will have to apply for a marriage license and be denied one,” Spiropoulos said.

Scott Hamilton

What will happen the next time the issue comes before the Supreme Court depends on several factors, not the least of which being the court’s future ideological composition. Five of the current justices are 65 or older, and liberal Justice Ruth Bader Ginsberg has battled cancer and other health problems for several years.

Spiropoulos said he believes it could take two to four years before such a case would come before the high court.

Banned in Oklahoma
In written statements after the decision, Fallin and U.S. Rep. James Lankford, R-Oklahoma City, emphasized that more than 75 percent of Oklahoma voters approved the same-sex marriage ban, State Question 711, nine years ago.

But Rick Tepker, a University of Oklahoma law professor, said a ruling majority does not define the rights of U.S. citizens.

Tim Fields and Eddie Walker, here with their children Campbell and Samuel, have been together for 18 years.
Credit: Angel Porch

“I should think every attorney knows this,” he said. “It’s been that way since the beginning of the country; the majority cannot take away individual rights.

They can enforce their will in terms of public policy, but not where constitutional guarantees are concerned.”

That is the heart of the fight going forward: Is same-sex marriage a constitutionally protected right? Both Tepker and Spiropoulos said they believe Justice Anthony Kennedy hinted at the court’s opinion in his majority decision.

“Justice Kennedy clearly said a national majority lacks power to discriminate among state-sanctioned marriage,” Tepker said.

But all that remains to be seen, including whether same-sex couples lawfully married elsewhere and now living in Oklahoma are subject to the same federal benefits as other married couples. Tepker said he believes they are. President Barack Obama has said his administration is reviewing which federal benefits are applicable.

In the meantime, the Sooner State’s LGBT community will have to live with the ban or go elsewhere — a possibility at least one couple is contemplating.

Tim Fields and and Eddie Walker have been together for 18 years and are raising two adopted children. Fields is a hairstylist and freelance writer; Walker is executive director of the Oklahoma City Philharmonic.

Sixteen years ago, they had a commitment ceremony. The couple hopes to reaffirm that commitment in a place where it has the force of law.

“I was hopeful that the court would strike down the bans, but they didn’t,” Fields said, “so now we’re considering our possibilities.”

Those options include getting married in a state that has marriage equality.

“We feel positive that change will come, even slowly,” he said, “but we are considering the possibility of leaving Oklahoma, too.”

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