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June 1, 2015

How even same-sex marriage becomes a prison story in incarceration nation

My students never — or perhaps always — get tired of hearing me say that every notable legal or social issue in the United States is always, in some way, a significant sentencing or corrections issue.  The latest example proving my point comes from this local article headlined "Prison weddings in Oklahoma on hold until U.S. Supreme Court rules on same-sex marriage." Here is how it gets started:

The state Corrections Department has halted all weddings within prison walls until after a U.S. Supreme Court ruling on whether same-sex couples are guaranteed the right to marry, The Oklahoman has learned.

If the high court rules in favor of gay marriage, corrections officials will alter department policy to allow an offender to marry someone of the same sex, spokeswoman Terri Watkins said. “If same-sex marriages are ruled legal, then the policy will need to be changed. We will follow the law,” she said.

Prison facilities in Oklahoma designate up to two days a year on which inmates are allowed to marry. But the department stopped permitting such ceremonies earlier this year and doesn’t expect to resume until the fall, Watkins said.

The temporary halt drew criticism from Ryan Kiesel, director of the American Civil Liberties Union of Oklahoma, who said a state agency should be following the law as it stands now, not waiting to see if the law changes. “To hit the pause button on marriages performed in prison is completely at odds with what the state of Oklahoma is obligated to do,” he said. “There is simply no justification for what DOC is doing.” Even a temporary delay is an unnecessary restriction and a burden to the engaged couples, he added.

Prisoners have a constitutionally guaranteed right to marry, though states can impose restrictions. In Oklahoma, the prisoner and fiance or fiancee must have the mental capacity to enter into marriage, be at least 18 years old and, if previously married, provide proof of divorce.

Twenty prisoners were married in Oklahoma in 2014 and two have married so far in 2015, Watkins said.

Of the offenders’ pending requests for marriage, none are same-sex couples, Watkins said. The department’s current policy doesn’t address same-sex marriages behind bars, but does prohibit two currently incarcerated offenders from marrying.

June 1, 2015 at 08:19 AM | Permalink


Turner v Safley is an important right to marry case -- has a long passage on why the right matters & more than one court has cited it to show how the reasons are applicable to SSM.

There is a right to marry while incarcerated. One red flag some might bring up is marrying those in the same complex. I gather you can stop that sort of thing or at least separate the two people into different prisons ... though I guess that might not always be possible if there isn't another comparable one to place one of them.

Posted by: Joe | Jun 1, 2015 8:49:19 AM

The SC has dug itself a hole, if there is no right to "conjugal" relations, then what is the right to "marriage", the right to see someone not related to you?

Historically marriage was a legal way via the government or church to legitimize your relationship with the opposite gender and to have children and not view them as bastards. Of course certain tribes have had gay marriage and other different customs but I will not go into that here.

Exactly, what is the right to "marry", marriage confers contractual obligations upon eachother, but also special tax,immigration,spousal testimony exemption, property,etc rights and consequences.

Posted by: Alex | Jun 15, 2015 3:58:32 AM

Marriage involves a range of things as the second comment ends up saying. Therefore, if a person is overseas on a military mission, the lack of conjugal visits doesn't change the fact a marriage is an important thing to have. This is so even if the person cannot have children. It is not merely about having sex. So, what makes the prison situation so much a game changer with or without same sex marriage?

Posted by: Joe | Jun 27, 2015 3:34:51 PM

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