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Jul 25 2013

Judge Orders Ohio to Recognize Same-Sex Marriage

A federal judge has ordered the state of Ohio to grant full recognition to a same-sex marriage performed in Maryland a couple weeks ago in a case involving a dying man. The judge noted that Ohio recognizes marriages performed elsewhere that would not be legal if performed in that state in a variety of other circumstances:

Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Likewise, under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors.

How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot, at least not under the circumstances here.

By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that “No State shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.”

This is just a temporary restraining order, but it obviously indicates how the judge is likely to rule on the case itself.

28 comments

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  1. 1
    gshelley

    Are there states that are consistent in their refusal to recognise SSM? ie that don’t recognise any marriage that could not be legally performed in that state?

  2. 2
    jws1

    This judge will probably be labeled an “activist” judge by the temper-tantrum throwing bigots, even though the judge simply applied existing law, overturning nothing.

  3. 3
    Cuttlefish

    Everything I have read on this says that the judge’s decision is limited strictly to the two men in Cincinnati; I hope a more thoroughgoing test of the law will show up a) soon and b) in front of this judge.

    http://freethoughtblogs.com/cuttlefish/2013/07/22/john-and-jim-an-update/

  4. 4
    eric

    @1 – I don’t think so. I think the ‘you recognize other state marriages that would be illegal in this state’ argument is going to be relevant to a whole lot of states. Like, 50 of them.

  5. 5
    Chiroptera

    One more ruling where it’s unconstitutional to single out gays just because you hate them.

    You know, as much as we want full equality in one swoop, I’m enjoying the screams of pain as the homophobes suffer death by a thousand small cuts.

    Of course, I’d prefer people have full equality NOW, but since the wheels of justice are turning so slowly at least I’m going to take whatever pleasure I can in the meantime.

  6. 6
    Abby Normal

    I’m guessing that the judge’s reasoning is essentially the 14th Amendment trumps DOMA section 2. Is that right? Has anyone seen a good legal analysis?

  7. 7
    Strewth

    Chiroptera – Schadenfreude is best freude.

  8. 8
    Wes

    Of course, I’d prefer people have full equality NOW, but since the wheels of justice are turning so slowly at least I’m going to take whatever pleasure I can in the meantime.

    I’d also like to see full equality now, but I do see the merit in arguments made by people like Justice Ginsberg that the best way to go is to slowly, gradually role it out, let the public get used to it bit by bit, and then go for full legalization everywhere a few years down the road. Ginsberg worries that Roe v. Wade may have been a few years too soon, and if the public had been allowed to become more accustomed to abortion, full legalization wouldn’t have galvanized the opposition the way it did. People will be far less inclined to oppose it if it already feels like the status quo.

    Also, most opposition to gay marriage comes from toothless, shit-britches geezers anyway. Their worst enemy is time. Let a few more of them die off, and in a few years gay marriage will have such a strong majority that we could have full equality with little controversy.

    I’m not convinced that this is the best way to go, but I see the reasoning behind it, and it’s mostly sound.

    Plus, I agree with you on the Schadenfreude part of it. Watching the bigots throw one hissy fit after another as they lose more and more battles is quite entertaining. :)

  9. 9
    tomh

    @ #1

    I don’t know about “any” marriage that could not be legally performed in that state but there are a number of states that, unlike Ohio, will not recognize first cousin marriages, even though they are legally performed in other states. They consider them void. In Kentucky, married first cousins run a greater risk than SSM, in that KRS 402.010 says, “Marriages prohibited by subsection (1) of this section are incestuous and void.” That is, marriages closer than second cousins. Incest is a Class B misdemeanor in Kentucky.

  10. 10
    Modusoperandi

    Wes “Ginsberg worries that Roe v. Wade may have been a few years too soon, and if the public had been allowed to become more accustomed to abortion, full legalization wouldn’t have galvanized the opposition the way it did. People will be far less inclined to oppose it if it already feels like the status quo.”
    She’s worrying based on a bad example. I don’t have my links with me, but Roe v Wade wasn’t such a cultural hot button until the Protestant Right (see: Falwell) saw that the issue they were fighting (Brown v Board of Education, etc) was losing both traction and respectability. Up until the rise of the Christian Right, abortion was “the Catholic issue”. Working from memory, the Christian Right at that time consisted almost to a man of virulent SB racists and anti-modernity Catholics, with a smattering of pro-rich people politicos (see: Paul Weyrich) who provided funding and think-tank cover.
    Unraveling the history is like pulling a loose thread on a sweater, except instead of a thread it’s a chain of really awful people. Also, the sweater is itchy.

  11. 11
    skemono

    I think the ‘you recognize other state marriages that would be illegal in this state’ argument is going to be relevant to a whole lot of states.

    I’m not so sure. The issue of states recognizing marriages performed in other states has been fairly muddled. There were many states, for instance, that refused to recognize interracial marriages that were valid in the state they happened in. On the other hand, other states would recognize out-of-state interracial marriages while forbidding them within their own borders. But I would not bet on all 50 states accepting gay marriages that were performed in states where they were legal.

  12. 12
    Scr... Archivist

    Another thing we’ve seen recently is the failure of new state laws and amendments prohibiting same-sex marriage. This is a change from the previous period where such state laws kept passing.

    When things turn the next corner and state legislatures (and maybe even referenda) increasingly pass laws to protect marriage equality, I think we’ll hear even more screaming from the Right. The icing on that cake is that they will not be able to use their usual talking point about how these decisions should come from legislators and the people instead of judicial decisions.

    What will the bigots have then?

  13. 13
    Wes

    She’s worrying based on a bad example. I don’t have my links with me, but Roe v Wade wasn’t such a cultural hot button until the Protestant Right (see: Falwell) saw that the issue they were fighting (Brown v Board of Education, etc) was losing both traction and respectability. Up until the rise of the Christian Right, abortion was “the Catholic issue”. Working from memory, the Christian Right at that time consisted almost to a man of virulent SB racists and anti-modernity Catholics, with a smattering of pro-rich people politicos (see: Paul Weyrich) who provided funding and think-tank cover.
    Unraveling the history is like pulling a loose thread on a sweater, except instead of a thread it’s a chain of really awful people. Also, the sweater is itchy.

    You make good points. And, as I said, Ginsberg hasn’t convinced me yet. I see some merit to her ideas, and I can understand why someone might think the way she does, even if I disagree.

    Also, your analogy at the end makes me want to listen to Weezer. I think I’ll spend the next several minutes doing just that.

  14. 14
    exdrone

    tomh @9:

    In Kentucky, married first cousins run a greater risk than SSM, in that KRS 402.010 says, “Marriages prohibited by subsection (1) of this section are incestuous and void.”

    So there are bible belt states that have legal barriers to imbreeding? … I’m confused.

  15. 15
    hunter

    I think the key question about states recognizing marriages from other states that are not recognized under their own law is “Does anyone ever ask?” In the case of first cousins (and possibly even minors), it’s not going to be real obvious.

  16. 16
    doublereed

    I think Maryland used to be the only state that recognized same sex marriages but didn’t have them legal for the state. Then we legalized them. Shrug.

    Isn’t it kind of strange to not recognize another states’ marriage? That seems like a states’ rights issue the other way. States have the right to be recognized by other states. It would be like if Ohio didn’t recognize a Maryland driver’s license.

  17. 17
    escuerd

    exdrone @14,

    I know you were just kidding, but for the record, a lot of the mostly rural states are more likely to prohibit first cousin marriage (stereotypes notwithstanding). It might have to do with the amount of recent immigration they’ve had, and more specifically, how large of a Muslim community there is. First cousin marriage is quite common in many predominantly Muslim societies.

  18. 18
    cptdoom

    @16 double weed – NY had the same setup as MD which is how Edie Windsor won at the SC. She and her wife were married in Canada because NY did not authorize same-sex marriages in the state but did recognize such unions if they were valid where solemnized.

    Actually the parallels with the Ohio case are pretty strong. In both cases the parties had to travel to get a valid marriage and in both cases one partner was near death.

  19. 19
    tomh

    @ #17

    First cousin marriages are prohibited in 25 states . Of course, many of those states recognize cousin marriages from other states. In Western culture they were generally considered acceptable until the first half of the twentieth century. Perhaps it had something to do with the spread of information about genetics.

  20. 20
    steve84

    The US prohibition on cousin marriages is almost unique in the western world:
    http://en.wikipedia.org/wiki/File:CousinMarriageWorld.svg

    It’s really only a problem if the practice is endemic (like in many Muslim countries) and genetic defects accumulate over several generations. You can see the negative effects of that in Pakistan for example or with Pakistani Britons. But in a single marriage the risk is relatively small – about the same as with a 40 year old mother.

  21. 21
    Cuttlefish

    Ohio’s attorney general (Repub, natch), having walked back from an actual appeal of the ruling, vows to continue the more general fight:
    http://freethoughtblogs.com/cuttlefish/2013/07/25/why-oh-why-oh-why-oh-would-you-act-this-way-ohio/

  22. 22
    zekehoskin

    I note that only North Carolina allows first cousin marriage but prohibits double cousin marriage, and most states that allow double cousin marriage prohibit the marriage of adopted siblings. When I first read that, i thought of two couples having two children each, who then marry each other and have two children per couple, and so on down through the generations until one child falls in love with someone outside the family, so they quickly adopt the outsider to make him/her unavailable.

  23. 23
    juicyheart

    Well shoot. I can’t figure ow to email you Ed, but here a video taping of a cop you might enjoy. Unfortunately it happened in Sweden.
    http://www.wimp.com/swedenpolice/

  24. 24
    dingojack

    juicyheart – Kurt Wallander he ain’t!
    :) Dingo

  25. 25
    John Pieret

    tomh @ 19:

    In Western culture they [first cousin marriages] were generally considered acceptable until the first half of the twentieth century. Perhaps it had something to do with the spread of information about genetics.

    Darwin married his first cousin and he had qualms about it. The effect was well known even before the genetic basis for it was.

  26. 26
    democommie

    “It might have to do with the amount of recent immigration they’ve had, and more specifically, how large of a Muslim community there is.”

    Notwithstanding the fact that muslims might have a greater propensity for cousin marriage, I doubt that most of the statues in the 25 states are based on that.

    I’ve been lucky to have had no heartbreakingly beautiful first cousins who extruded their sensualityness to tempt me. Come to think of it, even the ugly ones didn’t do that.

  27. 27
    whheydt

    Re; zekehosin @ #22:

    My fathers brother married one of my mothers sisters. They had 3 kids. Those are my “double cousins”, at least as we’ve always stated when referring to them. Neither I nor my sisters married any of them, though.

  28. 28
    democommie

    As I said, elsewhere:

    “We’ve been beside each other for 20 years. We deserve to be beside each other in perpetuity,” (from a news article about the ruling–no link)

    They put them there homoickybuttseckzerz in the ground next to each other, next thing you know they’ll be buryin’ catz next to dogz!

    I wonder how many of these clueless fucktards finally get that the two nice people living next door, who are both ladies or men–you know the ones, the ones who helped when your mother was dying and keep their home and grounds in tip-top condition*, those neighbors–are not “roommates, zackly? When the wedding reception is held in the backyard and they get an invite?

    * n.b. : Not all gay people are Architectural Digest wannabes nor are all straight people slobs–your correspondent, however, is straight and messy.

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