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Important development on same-sex marriage in Ohio

[UPDATE: You can read the full text of the judge’s ruling here. It is pretty strong stuff. This was not a full trial but a request for a restraining order against the state and thus applies only to this case, but the wording of the reasoning suggests that the judge thinks it should hold widely.]

A federal judge in Cincinnati has ruled that even state officials in Ohio must recognize the rights of same-sex couples that were legally married in other states. This is a significant expansion of the US Supreme Court ruling in the DOMA case where the federal government was told that it had to recognize those rights. The judge’s ruling is a major development because Ohio still has on its books the constitutional amendment passed in 2004 that says that marriage is between a man and a woman only, and steps are currently underway to repeal that provision.

US District Judge Timothy S. Black issued the ruling in the case of a couple James Obergefell and John Arthur who have been together for twenty years and got married in Maryland after that state voted to legalize it last November. But Arthur is gravely ill with Lou Gehrig’s disease and is expected to die shortly. Their story is touching because of the extreme lengths that the couple went through in order to get to Maryland to be married and also infuriating that they had to do so and yet still face obstacles to even being buried together as married partners in the Arthur family’s plot because of a stipulation that allows only descendants and spouses to be buried there.

In his opinion, the judge raised a very pertinent question:

Black said Ohio’s ban on same-sex marriage denies them equal protection under the law, and he also noted that Ohio recognizes other out-of-state marriages, such as between first cousins, that aren’t authorized to be performed in the state.

“How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize?” Black wrote. “The short answer is that Ohio cannot….”

Lyle Denniston reports that:

Although conceding that the Supreme Court’s ruling last month in United States v. Windsor did not directly involve state power to ban same-sex marriages, U.S. District Judge Timothy S. Black declared that the Court’s ruling was pointing toward that issue. He also applied some of the equality principles in the Windsor majority opinion to support his order.

Along with his reliance upon that decision, the Cincinnati judge also pointed to earlier Supreme Court rulings in favor of equality for gays and lesbians, but not involving marriage, and said those precedents all worked against an Ohio state constitutional provision that recognizes marriage only for legal unions of a man and a woman, even if a couple living in Ohio has been legally married in a state that permits it.

The judge is basically saying that he thinks that he fully expects that the Ohio ban will be ruled unconstitutional under the US constitution.

Comments

  1. says

    Interesting. He made it a pure equal protection case. I would have thought that the Full Faith and Credit Clause would have at least made an appearance. After all, a marriage in another state is a public act and record that other states are required to respect.

  2. Mano Singham says

    Yes, usually such restraining orders apply only to the parties asking for them but the judge’s reasoning is very strong and suggests that he thinks the ban in unconstitutional. I have linked to the actual ruling in an update to the post.

  3. jamessweet says

    Expect more of this. Scalia’s dissent in the Windsor case contained buried within all his bluster and self-righteous anger a rather cogent analysis of the majority’s strategy: Kennedy’s opinion contained plenty of language that state courts can cite to broaden the ruling. Wonderful! :)

  4. garnetstar says

    Scalia is a True Prophet, isn’t he? He should give Cindy Jacobs a run for her money.

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