Why federal judge ruled Ohio must recognize gay marriages

A federal judge did not overturn Ohio's constitutional ban on gay marriage, but he said the state has to treat same-sex couples married legally in other states the same way it treats heterosexual couples.

Al Behrman/AP
Attorney Al Gerhardstein (l.) stands with several same-sex couples at a news conference earlier this month in Cincinnati. A federal judge ruled Monday in favor of the couples, who want the state to recognize their marriages.

A federal judge has ordered Ohio officials to give full legal recognition to same-sex marriages performed in other states.

US District Judge Timothy Black ruled on Monday that Ohio prohibition on recognizing same-sex marriages from other states were unconstitutional and unenforceable.

The decision does not strike down the state’s 2004 voter-approved constitutional ban on same-sex marriage, but it lops off a significant portion of the state’s regulation of marriage.

The decision requires state officials to grant the same privileges and benefits enjoyed by opposite-sex spouses in Ohio to same-sex couples who were legally married out-of-state. 

“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,” the judge wrote in a 40-page decision.

The content of the decision was no surprise. The Cincinnati-based judge had announced two weeks ago that he would rule against the Ohio same-sex marriage statute.

Nonetheless, Judge Black’s decision marks an important addition to a growing number of lower court rulings rejecting state efforts to uphold and protect the traditional definition of marriage as a union of one man and one woman.

Same-sex marriage is recognized in 17 states and the District of Columbia. Thirty-three states have banned gay marriage either by passing a statute or enacting a constitutional amendment.

In recent months, federal judges have struck down same-sex marriage bans in five states – Utah, Oklahoma, Texas, Virginia, and Michigan. Those cases are either under appeal or are about to be appealed.

Black said he would stay enforcement of his order for at least a day until lawyers in the case could file briefs arguing whether a stay is appropriate.

Lawyers for the state are expected to urge the court to delay its enforcement of the decision to allow completion of expected appeals to the Sixth US Circuit Court of Appeals in Cincinnati and, perhaps, to the US Supreme Court.

Black said he was inclined to allow his ruling to take effect for the four same-sex couples who filed the initial lawsuit.

The context of the Ohio case is somewhat different than litigation in other states mounting outright challenges to same-sex marriage bans. The lawsuit challenging the Ohio same-sex marriage restrictions was filed by four same-sex married couples seeking to have both their names included on birth certificates issued by Ohio authorities.

Three of the plaintiffs are lesbian couples who have been legally married in states that support such unions. They relied on anonymous, artificial insemination in each case to conceive the child. The birth mothers in all three couples are due to give birth this June.

Ohio officials are willing to list the birth mother on the birth certificate, but have declined to include the other same-sex spouse as a parent, because the state does not recognize the marriages as legal.

The fourth couple is comprised of two men legally married in New York. They adopted a child from Ohio. They want both their names listed on the Ohio birth certificate as the child’s parents.

Ohio performs that service for adoptive parents in other states who are heterosexual couples. But it refused to issue a certificate to the gay couple.

“There is a growing national judicial consensus that state marriage laws treating heterosexual and same-sex couples differently violate the Fourteenth Amendment, and it is this Court’s responsibility to act decisively to protect rights secured by the United States Constitution,” Black wrote in his decision.

Black, an appointee of President Obama, had faced a similar issue in a case last year dealing with the listing of a same-sex spouse on a death certificate.

The judge ordered Ohio officials to record the name of the spouse on the state-issued death certificate. Officials had declined to do so.

The judge ruled that the state’s refusal violated the surviving spouse’s constitutional right to not be deprived of one’s already-existing legal marriage and its associated benefits and protections.

In ruling for the couples Monday, Black said it was clear that Ohio lawmakers and voters who supported the same-sex marriage ban had acted “with discriminatory animus and without a single legitimate justification.”

“Ohio’s marriage recognition ban embodies an unequivocal, purposeful, and explicitly discriminatory classification, singling out same-sex couples alone, for disrespect of their out-of-state marriages and denial of their fundamental liberties,” he wrote.

The judge said the state’s action relegated lesbian and gay married couples to “a second-class status in which only their marriages are deemed void in Ohio.”

Lawyers for the state had argued that Ohio’s same-sex marriage ban was justified as a legitimate effort by the state to preserve the traditional definition of marriage without regard to decisions made by other states.

They said judges should respect decisions made by lawmakers and referendum results that represent the declared will of the people of Ohio. They argued that democratic mechanisms in the state were able to encounter and embrace social change in a deliberate and careful way.

Black was not impressed. “Repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious,” he said.

“These vague, speculative, and/or unsubstantiated state interests rise nowhere near the level necessary to counterbalance the specific, quantifiable, particularized injuries … suffered by same-sex couples,” Black said.

The judge noted that the state’s refusal to act on the birth certificate requests subjected children of same-sex couples to a variety of harms that children of opposite-sex couples will never encounter.

“The Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause,” Black wrote.

Children in families of same-sex couples could not be “denied the right to two legal parents, reflected on their birth certificates and given legal respect, without sufficient justification.” The judge noted, “No such justification exists.”

Evan Wolfson, president of the gay rights group Freedom to Marry praised Black’s decision.

“Couples who are married should be treated as married no matter where they are in the country, including Ohio,” he said. “Couples should not have to play ‘now you’re married, now you’re not’ as they travel, work, move, or return home.”

The case is Henry v. Himes (14cv129).

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