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Dec 26 2013

Narrow Ohio Ruling With Broad Implications For Same-Sex Marriage

If you’re living in Ohio
And you want to wed your mate
There are certain situations
Where they’ll send you out of state:

See, Ohio has its standards;
Still, the balance of your life
They will recognize your union—
He’s the husband; she’s the wife.

If you’re more-than-kissing cousins
And you want to tie the knot
There are states where you can do so
(Roughly twenty—not a lot)

You could fly to Alabama,
California, or New York,
Maybe Cape Cod, Massachusetts,
Say “I do”, and pop the cork

When you fly back to Ohio,
The remainder of your life
They will recognize your union:
He’s the husband; she’s the wife.

If you want to wed your sweetheart
But she isn’t yet fifteen
There are states that you could fly to
(Well, there’s one or two I’ve seen)

Though Ohio doesn’t like it,
You could wed your child bride,
Then it’s back as married Buckeyes
Cos it cannot be denied

Though Ohio doesn’t like it
It remains, for all your life—
They will recognize your union:
He’s the husband; she’s the wife.

But they made one big exception
Yes, they made a special note
And they said it was important
Cos they put it to a vote

And the people used the ballot
On that cold November day
To deny a legal status
If the wedded pair were gay

Adding injury to insult
Voters made it very clear—
If you’re legal in some other state
You’re still not legal here!

No, it won’t apply to everyone
With un-Ohio ways…
Not the cousins, nor the children,
No, it just applies to gays

But… the U.S. Constitution,
As amended, makes it clear
That we’re equally protected
Though Ohio thinks it queer

When majorities discriminate
And do it “just because”
It falls to the judicial branch
To scrutinize our laws

So, Ohio may not like it—
Disagreement may be rife—
But a man can wed a husband
And a woman wed a wife

Seems this is the week for court rulings you’ll want to bookmark. This time, it’s Ohio. The latest installment of (among other things) the story of John and Jim, whom we have seen here, here, and here.

Ohio’s ruling this week is very narrow, but with explicit hints that it applies to much bigger issues:

The court’s ruling today is a limited one, and states simply, that under the Constitution of the United States, Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates, just as Ohio recognizes all other out-of-state marriages, if valid in the state performed, and even if not authorized nor validly performed under Ohio law, such as marriages between first cousins, marriages of certain minors, and common law marriages.

That is, once you get lawfully married in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution. U.S. Const. amend. XIV, § 1.

Moreover, as this Court held in its initial Orders this summer and reaffirms today, by treating lawful same-sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins, marriages of certain minors, and common law marriages), Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s guarantee of equal protection: that “No State shall make or enforce any law which shall… deny to any person within its jurisdiction equal protection of the laws” U.S. Const. amend XIV, § 1.

Therefore, under the Constitution of the United States, Ohio must recognize on Ohio death certificates valid same-sex marriages from other states.

As with the last decision reported here, Scalia’s dissent in Windsor is cited–judges apparently love irony.

And in case subtle irony is too subtle, the final footnote (22, on page 43) is more explicit:

As a final note, although the question of whether Ohio’s refusal to grant same-sex marriages also violates Ohio same-sex couples’ right to due process and equal protection is not before the Court in this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that Ohio’s violation of the constitutional rights of its gay citizens extends behond the bounds of this lawsuit.

5 comments

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  1. 1
    MikeMa

    Love it.
    Equal protection is not just a good idea, its the law!

  2. 2
    Johnny Vector

    Faith and Credit shall be given
    In each State to public Acts,
    Records, and legal Proceedings
    Of all others. Them’s the facts.

    Though the way that it was written
    By the framers at the time
    Had a slightly different meter
    (And of course, it didn’t rhyme),

    That is yet the very meaning
    Of the Article they penned
    (That’s the fourth one, section one),
    And they never did amend

    That particular instruction
    So it really seems to me
    That if one state says you’re married,
    Why then, married you shall be.

  3. 3
    Al Dente

    Scalia must be pissed to see how his dissent in Windsor keeps getting cited in same-sex marriage cases.

  4. 4
    Gregory in Seattle

    Due Process again. I’m curious, has a federal court EVER invoked Full Faith and Credit? It seems that it would be a far more solid basis for this ruling.

  5. 5
    Markita Lynda—threadrupt

    Finally, at some point, the U.S. will recognize the legality and validity of same-sex marriages authorized in other countries, as they are supposed to do because of full faith & credit.

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