The middle of the United States continues to generate some of the most radical experiments in (mis)governance in recent American history. From the declared bankruptcy in Detroit, to the moral bankruptcy of the Capitalist Republic of Ferguson, the promises and (moreso) perils of local governance have been on full display over the past few years.
Oklahoma, interestingly enough, has been a particularly active center of this recent local legislative experimentation. First, back in 2010, it started a national trend in anti-shari‘a legislation, by amending its state constitution to prohibit State of Oklahoma courts from looking at “the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.” However, ironically enough, in its 2010 xenophobic eruption, Oklahoma was actually only following in the footsteps of global developments in Islamophobic legislation and politics. For the contra-jihadis, Oklahoma City was just the next stop on a world tour from London to Ontario and onwards.
Now we have the proposal—in front of the Oklahoma Senate now that the Oklahoma House of Representatives has passed it overwhelmingly—for the State of Oklahoma to abandon the issuance of marriage licenses to all, gay, straight, and sundry. Rather, under this legislative proposal, non-state religious denominational religious figures would be in charge of conducting ceremonies and attesting marriage certificates or, if a cooperative religious leader is not available, a (same-sex) couple may themselves file an affidavit of common-law marriage with the state thereby creating a state-recognized marriage.
Predictably, Establishment Gays have gone off the rails at this proposal, but not strictly for Establishment Clause reasons. Such gays believe the only remedy for sex-discriminatory marriage laws is a judicial command that same-sex marriage be made available—rather than, say, the striking down of marriage laws altogether—and, to be sure, NONONONONONONO plural marriage NEVER.
There’s a lot to be said about ALL THAT but, for now, I thought I’d point out an interesting wrinkle that is likely to be overlooked in this all: this Oklahoma proposal actually echoes a proposal vis-à-vis same-sex marriage seriously discussed in South Africa back in 2005. Oklahoma the International, again!
In the well-known 2005 precedent, Minister of Home Affairs v. Fourie, South Africa’s Constitutional Court announced a right to same-sex marriage in South Africa. In doing so, the Court had to wrestle with the scope of its powers to reinterpret judicial common law on marriage—relatively easy to do—versus 'rewriting' Parliamentary legislation—relatively hard to do—including, namely, South Africa’s “Marriage Act.” (The Constitutional Court ultimately gave Parliament a 12-month deadline within which to do a re-drafting of the Marriage Act.)
Before this case came on appeal to the Constitutional Court, South Africa’s Supreme Court of Appeals (SCA) had specifically declined to interfere with the Marriage Act. The majority SCA opinion here was drafted by Judge Edwin Cameron, an internationally-reputed jurist with superb gay rights credentials. As the Constitutional Court described Judge Cameron’s SCA judgment:
“The majority judgment went on to state that the Marriage Act prescribes a verbal formula that must be uttered if the legal consequences of the lawful marriage are to follow. The legislature prescribed this formula, and its words cannot be substituted by ‘updating’ interpretation. If the Court, and not Parliament, is to make a constitutionally necessary change to such a formula, that must be done not by interpretation but by the constitutional remedy of ‘reading-in’. The applicants’ legal advisors, however, had overlooked the question of the Marriage Act.
This did not, however, constitute a complete obstacle to granting them some portion of the relief they sought. The Marriage Act permits the Minister to approve variant marriage formulae for ministers of religion and others holding a ‘responsible position’ within religious denominations. Cameron JA noted that there are currently many religious societies that approve same-sex marriages. Even without amendment to the statute, the Minister is now at liberty to approve religious formulae that encompass same-sex marriages.” (emphasis added)
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