Ohio’s Gay Marriage Fight: Showing Conservative States How it’s Done
A federal judge has ruled that Ohio cannot refuse to recognize same-sex marriages that were conducted out of state. Here’s how we reached this point and why the road to equality might rely on smaller court challenges like this rather than blockbuster decisions.
On Monday, April 14, federal judge Timothy Black ruled that the state’s 2004 enacted constitutional ban on recognizing same-sex marriages from other states ”is unconstitutional and unenforceable under any circumstances.”
The ban was challenged by four couples over Ohio’s refusal to list both same-sex parents on the birth certificates of their adopted children. The couples in question had married outside of the state and contended that they should be able to jointly adopt or foster within Ohio.
“When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction by refusing to recognize the marriage, that state unlawfully intrudes into the realm of private marital, family and intimate relations specifically protected by the Supreme Court,” Black said in his ruling.
This decision does not strike down the constitutional amendment in its entirety, only the portion of the ban affecting those married out of state. However, it’s hard to imagine that Black, when faced with a challenge over the full ban, could rule to uphold it when in this most recent ruling he makes statements like: “The record before this court … is staggeringly devoid of any legitimate justification for the state’s ongoing arbitrary discrimination on the basis of sexual orientation.”
Black has stayed the decision so that the state could appeal to the Sixth Circuit Court of Appeals. Given the strength of Black’s ruling, however, and the harms that he found the ban forces on same-sex couples, he also issued a short statement regarding his motivation for the stay, saying, “premature celebration and confusion do not serve anyone’s best interests. The court recognizes that recognition of same-sex marriages is a hotly contested issue in the contemporary legal landscape, and, if [the] appeal is ultimately successful, the absence of a stay … is likely to lead to confusion, potential inequity and high costs.”
The judge, however, made an exception for the four couples who filed the case in February and ordered Ohio to list both spouses in each relationship as parents on their respective’s children’s birth certificates.
The decision to exempt the couples from the stay was not contested by the state. However, state Attorney General Mike DeWine has said this doesn’t change his position that the wider ban must be defended in the appeals courts, saying, “My job as attorney general is to defend statutes and defend Ohio’s constitutional provisions,” he said. “This was voted on by voters so my job is to do that.”
Interestingly, DeWine has been unwilling to say whether he believes the state can win, opting instead to look ahead to the inevitable Supreme Court ruling. “Every state is having a lively debate over this and I think that’s a proper thing to do. I think it’s pretty obvious that all these issues are going to be resolved by the 6th Circuit and some cases are going to get to the Supreme Court. They’re going to have a decision in the United States Supreme Court and we’re all going to have to accept that.”
This ruling marks a steady progression toward equality that started just before Christmas when Judge Black ruled in a separate case involving plaintiffs Jim Obergfell and his now deceased spouse John Arthur that the state could not lawfully refuse to list the couple as spouses on Arthur’s death certificate. The ruling meant all married same-sex couples would henceforth be listed by the State as spouses in the event of one of their deaths.
Monday’s ruling advances marriage equality with a careful and logical expansion of Black’s original reasoning. This serves to dramatically undermine the in-state gay marriage ban but also sets up a very carefully measured and conservative series of rulings that, nevertheless, add up to a strong case for marriage equality. These cases, then, may provide a basis for couples from other states to launch similar bids with the ultimate goal being to achieve state-wise marriage equality.
Meanwhile, lawyers in Ohio are looking to tackle the remaining portion of the ban, the state’s refusal to issue same-sex marriage licenses–and they believe they have a strong chance of succeeding.
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