BY M.J. DENMAN
On April 17, Jim Campbell, the Tulsa County Clerk’s office attorney in its appeal of Federal District Court Judge Terence Kerns’s ruling knocking down Oklahoma’s ban on same sex marriage before the 10th U.S. Circuit Court of Appeals in Denver, was asked to explain the state’s interest in Oklahoma’s law banning such unions.
Campbell argued, “The natural, procreative potential of opposite-sex couples distinguishes that group from same-sex couples.”
He didn’t argue the federal Defense of Marriage Act was properly struck down by the Supreme Court because it invoked power never granted the federal government, thus violating the 9th and 10th Amendments of the Constitution. He didn’t argue Oklahoma’s appeal before the 10th Circuit because it was a states’ right issue.
He argued that procreative potential was an interest of the state. This interest was, he said, the rational reason for the state to distinguish who should be allowed to marry.
Taking this analysis to its reasonable conclusion, the state can decide that because a citizen can’t procreate, he/she can’t marry. Does this include a woman who had that hysterectomy because of cancer?
You had a vasectomy when you were married to your first wife, she cheated on you, you got a divorce. Sorry, you’re not eligible for marriage here.
Ma’am, on your application for marriage you stated your age was 45. The state of Oklahoma considers that to be too old for child-bearing. Your application for a marriage license is rejected.
I am very sorry soldier that you were paralyzed in Afghanistan defending our nation’s interest; however, in Oklahoma, you are not eligible for a marriage license.
Moving a few steps further with the progress being made in genetics, your marriage application has been denied: It has been discovered you both have certain recessive traits that might be expressed in any offspring you may have together. You both are still eligible to obtain a marriage license, just not to each other.
Other questions were asked if the plaintiffs had standing or if the proper entity had actually been sued in the matter.
It is important to note that the expected swing vote of the three-judge panel is Jerome Holmes, an African-American appointee by President George W. Bush. He denied Utah a stay of a federal judge’s decision to strike down that State’s ban against gay marriage.
The Utah case and Oklahoma’s are similar but not duplicate. If the case is decided on the issues, the loser will surely appeal.
– M.J. Denman is a Tulsa criminal defense attorney