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.

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.