OK gay marriage appeal cites 1888 opinion

Oklahoma City (AP) — Lawyers who are appealing a federal judge's ruling that overturned Oklahoma's ban on same-sex marriage said in a court filing Monday that legalizing gay marriage would harm children, undermine society and make traditional marriages unstable.

The Alliance Defending Freedom cited courts and anthropologists, saying children are better off in a home with a mother and a father. It said traditional couples would be less likely to marry, or stay together, if marriage became a genderless institution not focused on procreation.

U.S. District Judge Terence Kern ruled last month against Tulsa County Court Clerk Sally Howe Smith, whose office refused to grant a marriage license to two women who wanted to marry. Monday's appeal is the first step in the process ahead of an April 17 hearing before the 10th Circuit Court of Appeals in Denver.

In its court filing Monday, Alliance said marriages should be about children, not adults.

"Marriage encourages mothers and fathers to remain together and care for the children born of their union," the group's 93-page filing said. Severing the link, it said, "would powerfully convey that marriage exists to advance adult desires rather than serving children's needs."

Citing a court opinion from 1888 — 19 years before Oklahoma's statehood — Alliance said marriage "is the foundation of the family and of society, without which there would be neither civilization nor progress," and cited a 1978 ruling that said traditional marriage was "fundamental to the very existence and survival of the (human) race."

Sharon Baldwin and Mary Bishop, who had applied for the marriage license, issued a statement Monday night saying Alliance's brief relies "on outdated and debunked science as far as saying that children need both a mother and a father."

"(W)e believe they're wrong that marriage is only about children. While many couples who wish to marry, both heterosexual and homosexual, want children, many others are infertile, are elderly or simply do not want children," they said.

In his ruling, Kern said Oklahoma, by enforcing the ban, violates the U.S. Constitution's Equal Protection Clause because it precludes same-sex couples from receiving an Oklahoma marriage license.

"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," he wrote. "It is also insulting to same-sex couples, who are human beings capable of forming loving, committed, enduring relationships."

Oklahoma's Republican governor, attorney general and other elected officials blasted the ruling. Kern immediately stayed the effects of his ruling, anticipating an appeal.

Alliance's brief Monday said that, over time, marriage would lose its distinction as the place where heterosexual couples traditionally have children and instead be regarded as merely an option.

"Without the stability that marriage provides, more man-woman couples would end their relationships before their children are grown ... and more children would be raised outside a stable family unit led by their married mother and father," the group wrote, predicting an increase in the divorce rate.

Byron Babione, senior counsel for Alliance Defending Freedom, said 76 percent of Oklahoma voters expressed what they thought was best for children and society, referring to the amendment vote.

"Marriage expresses the reality that men and women bring distinct, irreplaceable gifts to family life, especially for children who deserve both a mom and a dad," Babione said in a statement Monday night.

Kern's ruling was one of several in the past few months to strike down or void part of such a ban.

A similar appeal out of Utah is being heard by the 10th Circuit. Utah state attorneys filed their opening arguments earlier this month, saying the optimal environment for raising a child is with a mother and father. A federal judge there had ruled in December that the voter-approved ban was unconstitutional. More than 1,000 gay couples got married in Utah before the U.S. Supreme Court granted a stay in the case, halting the marriages during the appeals process. Oral arguments in the Utah case are scheduled for April 10.

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by Kristi Eaton, Associated Press

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Gayly – February 25, 2014 @ 12:30pm