Friday, November 05, 2004

Tulsa Tussle

Against the spirit of the moment, two lesbian couples filed a federal lawsuit in Tulsa, Oklahoma. They want a Massachusetts-style court decision granting one of them (Mary Bishop and Sharon Baldwin) the right to marry and the other (Susan Barton and Gay Phillips) recognition of their civil union that they legally had in Vermont three years ago.

I haven't been able to read the suit yet. However, they have a much harder argument to make there than the parties did in Boston.

The Oklahoma law has been gender-specific since 1925. In addition, it is not nearly as strong in describing marriage as a civil contract as Massachusetts is. While I am a native of Oklahoma, I would not have picked that state for a court battle.

You can browse the Sooner statutes.

Even before the recent constitutional amendment limiting marriage to one man/one woman, the statutes included a 1996 restriction of:
  • A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage. (43 O.S. 2001, § 3.1)

The 1903 statute was spongier and probably easier to challenge. Its definition read:
  • Marriage is a personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary, and the marriage relation shall only be entered into, maintained or abrogated as provided by law. (43 O.S. 2001, § 1)

By 1925, the Oklahoma Supreme Court had interpreted who is qualified narrowly, as:
  • "Marriage" as at common law creates the status of husband and wife under the law of this state. Whenever the minds of the parties meet in a common consent thereto, the marriage immediately arises. It is a contract between the man and woman, each accepting the other into the ties of that relation, neither remiss to its possible sorrows, nor the enjoyment of its incidental pleasures. Mudd v. Perry , 235 P. 479

This specificity makes this lawsuit a lot tougher than the state suit of the much vaguer Massachusetts statutes. Absent federal guidelines, this is a hard sell.

As the Oklahoma suit becomes available, I'll see what their arguments are.

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