If it passes, I'll be going to prison
1804 update

Clarification of HB 3408

Americans United raised concern about this bill at their legislative preview, leading me to look at it yesterday, at which point I became alarmed.  Last night a couple of people, on Facebook, pointed out that the bill seemed to be adjusting language already in the statutes.  This seems to be one of those laws that gets left on books that needs to be repealed and is never enforced.  Except, of course, when they are, which is why law codes need to be cleaned up.

This morning I received an e-mail from Rep. Nelson clarifying that the bill was a shell bill for marriage in case he wanted to develop marriage-related legislation. 

He wrote:

"I actually do not have any plans to run this bill or about 18 other shell bills I filed for this session related to issues from schools to the landlord and tenant act."

"Many legislators will file several shell bills "just in case." Members must have all bills they wish to introduce submitted in December before session begins in February. So just in case some unforeseen issue arises after the deadline to submit bills passes members often file numerous shell bills to keep their options open. House members can actually only run a total of eight of the bills they file with some rare exceptions. "

We are grateful for the clarification.  Now we just need to get this language removed from the books.


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Scott Jones

According to Tamya Cox of the ACLU of Oklahoma, this was part of the 2004 act against same-sex marriage. She writes:

"from my understanding..when Oklahoma banned gay marraige it became unlawful for a person of faith to conduct a wedding. It is very possible that Oklahoma all ready had a law in place to prohibit unlawful marriages but I am not aware of that."

Tom McDonald

I have done the research for what I am about to say. This HB is amending the language of the current law from reading State Penetentiary to Department of Corrections. This section of law 43 O.S. section 14 is actually referring to those who perform a marriage in violation of sections 2 and 3, not 3.1. There is no where in this title of law that says Same Sex Marriage is illegal. Section 3.1 says it will not be recgognized. The only place where Same Sex marriage is prohibited is in the Oklahoma Constitution which is in Article 2 Section 35. The courts have consistantly held that you cannot use one section of law that refers to only that area of law to enforce another section of law. You can not use a section of law to uphold a section of the constitution unless it is specifically mentioned in that section of law.

Scott Jones

wonderful news!

Jason Nelson

More details about HB3408

As this bill is a shell bill I was not familiar with the existing statute and therefore asked House legal staff to provide information about what Title 43, Sec. 14 relates to. I have included information based on their report to me.

First, the existing statutory language in the bill does not address same sex marriage. The language you suggest I’m attempting to pass has actually been in the Oklahoma Statutes since 1910.

Second, the current state law found in shell bill HB3408 addresses the following circumstances, “Marriages between ancestors and descendants of any degree, of a stepfather with a stepdaughter, stepmother with stepson, between uncles and nieces, aunts and nephews, except in cases where such relationship is only by marriage, between brothers and sisters of the half as well as the whole blood, and first cousins are declared to be incestuous, illegal and void, and are expressly prohibited.” (Title 43, Sec. 2)

Additionally, current law addresses, “…no person under the age of eighteen … years shall enter into the marriage relation, nor shall any license issue therefor, except … upon the consent and authority expressly given by the parent or guardian ….” (Title 43, Sec. 3) Also, in section 3, “Every person under the age of sixteen … years is expressly forbidden and prohibited from entering into the marriage relation ….”

Section 3C of the 1910 law also states, “No marriage may be authorized when such marriage would be incestuous under this chapter.”

Section 4 of the 1910 law further states, “No person shall enter into or contract the marriage relation, nor shall any person perform or solemnize the ceremony of any marriage in this state without a license being first issued by the judge or clerk of the district court….”

Third, the 1910 text found in HB3408 makes clear that it is only concerned with this “chapter” of Title 43 for which I have included the relevant language above. The prohibition of same-sex marriage passed by a vote of the people is not included in this title or section of statute.

Please take the time to verify what I’ve written here. I assume you would object to removing the nearly 100 year old statute which provides penalties for performing marriages where the relationship is incestuous or involves a child – and which has nothing to do with same-sex marriage.

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