June 15, 3014

By Julie Oliver-Zhang, Esq.

Victory was celebrated this Tuesday by gay rights supporters as Oklahoma joined one of two other federal courts, Utah and California, which have struck down a ban against same-sex marriage as unconstitutional.  In the decision, Judge Terence C. Kern of United States District Court for the Northern District of Oklahoma, using a rational basis review, held that:

“Part A intentionally discriminates against same-sex couples desiring an Oklahoma marriage license without a legally sufficient justification. First, Part A’s disparate impact upon same-sex couples desiring to marry is stark.  Its effect is to prevent every same-sex couple in Oklahoma from receiving a marriage license, and no other couple. This is not a case where the law has a small or incidental effect on the defined class; it is a total exclusion of only one group . . . .  moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law.”

One of the two plaintiff lesbian couples, Susan Barton and Gay Phillips, own a company that provides vocational training to homeless teens.  Barton is an adjunct professor at Tulsa Community College and Phillips has a doctorate in sociology.  They have been in a committed, loving same-sex relationship for thirty years.  In order to legitimize their relationship, they had joined hands in matrimony three times.  The first was in a civil union in Vermont in 2001, then in Canada in 2005.  They again received a marriage license in California in 2008.  Like the Barton couple, many other same-sex couples have to marry outside of the state where they reside in order to qualify for federal benefits, such as the right to immigrate and receive green cards that was made available by Windsor in 2013.

On the heels of the Utah same-sex marriage freeze, Judge Kern had stayed his decision also pending appeal, although Attorney General Holder has affirmed in his recent video statement that all those LGBT couples who did manage to get married in Utah before the freeze are absolutely eligible for federal benefits.  This means that until the appeal is resolved, same-sex couples cannot legally get married and receive marriage licenses in Oklahoma.

Thus, the practical implication of the decision for gay, lesbian, bisexual and transgender couples who are in need of immediate immigration benefits is that they still must get married in another state or country that had legalized same-sex marriage.  USCIS has announced that it is the law of where the marriage was conducted, and not where the gay couple resides, that matters when it comes to the issuance of immigration benefits.  With foreign fiancée or spouses who have lived together and perhaps unlawfully present in the United States for decades because they are unable to receive legal status prior to Windsor, they can now contact an experienced LGBT immigration attorney to discuss their green card and inadmissibility waiver options.  Often, cases involving illegal aliens in same-sex marriages require professional assistance because the penalty can be deportation and permanent bar from re-entering the United States.

Yet, the tidal wave of equality for same-sex marriage is undeniable.  As Judge Kern eloquently concluded in his order:

“Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals, extends constitutional protection to the moral and sexual choices of homosexuals, and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently. There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one. . . .  Equal protection is at the very heart of our legal system and central to our consent to be governed.”