Friday, January 17, 2014
On Jan. 14, 2014, Judge Terence Kern, a federal judge in the Northern District of Oklahoma, rejected an Oklahoma ban on gay marriage. He made two points that seemed especially apt.
First, he addressed the incorrigibly perplexing, but inconsolably persistent, objection by foes of gay marriage that said marriage threatens traditional heterosexual unions. Judge Kern, an Okie who graduated from Oklahoma State and the University of Oklahoma School of Law, wrote: "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."
Next, he pointed out something important as a matter of legal interpretation: moral disapproval in and of itself is a dicey basis for upholding a law. Here, Judge Kern enlisted the concurrence by Justice O'Connor in Lawrence: “Lawrence ruled that moral disapproval alone cannot justify legislation discriminating on that basis. Moral judgments can hardly be avoided in legislation, but Lawrence and Romer have undercut this basis.”