11/7/2013 12:45:00 PM Point/Counterpoint: Gay Marriage in Oklahoma
(Editor’s Note: EastWord provided this week’s topic to two local community members that have agreed to participate in our Point/Counterpoint. Their identities will remain anonymous to our readers, but are known by EastWord’s editor. We hope this new feature in the paper encourages our readers to engage in a friendly conversation.)
Topic: Gay marriage in Oklahoma - Two male Oklahomans recently tied the knot in our state. They received their license from an Indian tribe and sparked comments from both sides of this controversial issue.
Point: (What Should Be) The Final Word on Same-Sex Marriage Less than four months after the U.S. Supreme Court struck down the Defense of Marriage Act (DOMA), two Native Americans, Jason Pickel and Darren Black Bear, received an official marriage license from the Cheyenne and Arapaho Tribal Court, which is subject to federal law but not state law. What is sad is that this couple (who happen to be gay) had to find a loophole to get married in the Great State of Oklahoma. Under state law, same-sex marriage is illegal and any same-sex marriage performed in another state where such marriages are legal are not recognized as legitimate here. In her role as governor, Mary Fallin has asked the National Guard not to process any benefits for same-sex couples in spite of a federal directive to the contrary.
My how this issue brings out the best in people.
A few things to consider:
1. "Marriage" is considered a holy institution by most Oklahomans, thus the reason for their overwhelming vote to define that institution in the state’s constitution. If, as many believe, marriage is a faith-based arrangement, then it has been adopted by the government. Government adopted this concept in order to build laws around it. So, if one hates "Big Government" as conservatives claim they do, one should be outraged that the government is choosing to define marriage, which, as many claim, has been defined by God.
How dare Government intrude upon freedom like that!
The only reason this outrage has not exploded is that the government’s definition just happens to fit with the definition believed to be the "right" one by the predominant religion of the voting Oklahoma populace.
2. Current law views marriage as a contract between two people. Think about that. Only those who can legally contract can legally marry. Dogs, cats, aardvarks, underage children, none of these can legally marry because they legally cannot contract for themselves. Two people of the same sex CAN legally contract for themselves. As a matter of law, there is no reason to ban same-sex marriage.
3. Who here can honestly say that if Bill and Bob got married that they would look to their wife and say, "Honey! We might as well get a divorce now, because the gays cheapened the love we have for each other. I don’t love you as much today as I did yesterday because Frank and Ed got hitched!"
In short, the government should have a vehicle applied equally for legally binding two people together, whether they be of opposite genders or same-sex. The couple getting married should be left alone to determine what is or what is not a "marriage" based on their own beliefs. That is true freedom.
It’s actually a common sense issue.
So, congratulations to Jason and Darren. As an Oklahoman, I apologize for all the trouble you had to endure to become a legally married couple here.
Counterpoint: Gay Marriage In The Wild West
Earlier this month two gay men in Oklahoma were permitted to marry pursuant to the laws of the Cheyenne & Arapaho Nation. This marriage brought Oklahoma to the forefront of the national same-sex marriage debate. To be clear, Oklahoma law does not recognize same-sex marriage and despite being married under tribal law, this couple will be ineligible for certain legal rights available to heterosexual couples in the State. They will be eligible for certain federal recognition. The problem with the Tribe’s actions is that it isn’t entirely clear that this marriage represents the will of the Cheyenne & Arapaho Nation as a whole. In fact, members of the Tribe hastily called a meeting to denounce the union and as of the date of this column, there is no real clear consensus amongst the Tribe that this is something that their laws should recognize. What is clear is that Oklahomans resoundingly disapprove of gay marriage by a ratio of 3:1. So in the end, the Tribe sanctioned a marriage that the Tribe as a whole may not support and that the State of Oklahoma clearly does not support. Although it may be a symbolic victory for the couple, it is a hollow one in nearly every meaningful way.
This current controversy comes on the heels of two major gay marriage-related Supreme Court opinions. The first in U.S. v. Windsor in which the Supreme Court in a 5-4 ruling declared that Section III of the Defense of Marriage Act was unconstitutional. Gay rights advocates wrongly cited this as a victory for same-sex marriage. In reality, the majority in that case wasn’t clear as to why Section III was unconstitutional. Section III of DOMA prevented the federal government from recognizing state-sanctioned same-sex marriages so the striking down of Section III could be argued to be a win for state’s rights because the federal government now has to recognize same-sex marriages lawfully recognized by the State in which it took place. Because the case is legally complicated and the 5-4 decision was confusing and awkwardly worded, many people wrongfully believe it was a victory for same-sex marriage and a defeat for traditional marriage. I don’t have the space to explain why that’s not true, but on the simplest level, if it was a victory for gay marriage, it was merely a symbolic one although it does provide some concreted benefits to same-sex couples.
Also, in Hollingsworth v. Perry, the Supreme Court refused to hear a challenge to a lower court ruling that California’s Proposition 8 was unconstitutional. California voters approved Proposition 8 in 2008 which forbade same-sex marriage. A lower Court ruled it was unconstitutional. The proponents of Proposition 8 appealed to the Supreme Court and the Supreme Court dismissed their appeal because the proponents lacked standing. Again, gay rights advocates saw this as a victory and it was to a certain degree because it allowed gay marriage to move forward in California. However, the Supreme Court did not "strike down" Proposition 8 as has been reported. The Supreme Court simply held that the proponents of the appeal did not have standing to be before the Court. Without proper standing, the Court would not and did not hear their appeal. Thus the lower court ruling stood and Proposition 8 was ruled unconstitutional.
So the legal wrangling and social upheaval continues. The result of these three legal battles is that the will of the people was trampled and thwarted. Proposition 8 was by referendum-meaning a vote of the people and their will was thwarted by an appeals court. DOMA was passed by a Democrat President (Bill Clinton) with the insight of the Republican controlled House and Senate and was vacated in part by the Supreme Court. Finally, the Cheyenne & Arapaho nation acted on a controversial issue without the input of its members and without contemplating the social, cultural and political environment of the State in which it operates. This is becoming commonplace in the same-sex marriage debate. The will of the people seems to take a back seat to the powerful political forces that support the re-defining of marriage. In the end, my view is a simple one. As a state’s rights advocate, I believe same-sex marriage should be decided state-by-state considering the social and cultural norms of the community. In Oklahoma, that may mean that same-sex marriage might never be legally recognized but by dealing with the issue in this way, we do a greater service to the people whose voice goes often unheard and we prevent needless and unwarranted interference from the judiciary.
Reader Comments
Posted: Thursday, November 07, 2013
Article comment by:
Candice Garza
A few points of order to the Counterpoint argument.
First: The author notes that Oklahomans voted to specifically define marriage as being between one man and one woman and, regarding the Tribe, was concerned that the "will of the Cheyenne & Arapaho Nation as a whole" was not considered." But here's the caveat: this is a civil rights issue and as such should not be up to the will of the people. This isn't about states' rights, this is about human rights.
Second: The author writes (re DOMA), "many people wrongfully believe it was a victory for same-sex marriage and a defeat for traditional marriage." One of us has a complete misunderstanding of what the fight for marriage equality truly means. By tying "victory for same-sex marriage" to a "defeat for traditional marriage" the author makes it sound as though this is a one-or-the-other issue. It is not. Those fighting to lift bans on same-sex marriage are in no way trying to take away rights or freedoms or benefits from heterosexual couples. We are not trying to defeat traditional marriage--most of us are in traditional marriages! We who are fighting alongside our LGBT brothers and sisters are not threatened by their strive toward equality we lose nothing when they achieve it and we anxiously await that day.
Third: the author points out that when the U.S. Supreme Court looked at California's Prop 8, they ruled that "the proponents of the appeal did not have standing to be before the Court." Let's be clear, this was indeed a victory for same-sex marriage activists. As the author states, it allowed same-sex marriage to move forward in California but, more importantly, while the Supreme Court did not specifically rule on the merits of the case, their decision that the proponents "lacked standing" spoke volumes. Those who stand opposed to allowing two consenting adults enter into a marriage contract have no legal standing. You may stand religiously or even morally opposed as long as you like but you cannot rightfully claim that you have been wronged--there is no legal remedy for being offended.
Finally: A note about the "traditional marriage" that the opponents to marriage equality claim they are defending--and be honest with yourselves here: If you are divorced, you do not get to stand on the ground that marriage is sacred. If your reason for being against same-sex marriage is that marriage was designed by God and meant to be holy but you are guilty of having "put assunder" that annointed bond, you do not get to insist that you are fighting to protect something you helped break long before the question of marriage equality came along.
Oh, and one more thing. The seventy-five percent of you who voted to define marriage in 2004 (and, by a striking coincidence, the lottery was passed by the same percentage of voters that same November night) would be served to remember this: there are couples in Oklahoma comprised of two men or of two women. They buy property. They own businesses. They pay taxes. They raise their children. They vote. They donate to charities. They live as married couples and it has not injured you in the slightest. One piece of paper would grant them the same benefits you take for granted and cost you nothing. You are on the wrong side of history.
