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Broader same-sex marriage ruling in Ohio

A federal judge in Cincinnati, broadening an earlier ruling in favor of same-sex marriage, ruled on Monday that the state of Ohio must give full marital rights to gay and lesbian couples who were or will be married in other states.  The ruling, the judge stressed in a forty-five-page decision, does not require Ohio to allow new marriages of same-sex couples living in the state.

U.S. District Judge Timothy S. Black said he would put his ruling temporarily on hold, until he can decide on whether to delay it further during any appeal by Ohio officials.  But he said he was not inclined to delay applying the ruling to the four couples who brought the challenge, noting that some of them are about to have babies born, or have other “time-sensitive concerns.”

The judge said that the record made before him in the case of Henry v. Himes was “staggeringly devoid of any legitimate justification” for Ohio’s “arbitrary discrimination on the basis of sexual orientation.”  So he struck down the ban on recognizing legally valid marriages, saying it could not be enforced “under any circumstances.”

Finding that the issue of same-sex marriage implicated “the fundamental rights of some minority of citizens,” the judge noted that the same principle had led to unanimity — “ten out of ten” — in rulings across the country in favor of marital equality, since the Supreme Court’s decision last Term in United States v. Windsor.

The Windsor decision struck down a federal ban on marital benefits for couples who were legally married in states that allowed such unions.  It did not deal directly with the constitutionality of state bans on such marriages.  Even so, judge after judge has interpreted that ruling more broadly, relying upon it to strike down state bans on all same-sex marriages, or — as Judge Black did Monday — a state ban against recognizing already performed marriages.

At issue in the Ohio case is a state constitutional amendment, adopted in 2004 by a sixty-two-to-thirty-eight percent margin, that bars recognition of same-sex marriages from other states.  (The amendment also prohibits same-sex marriages from being performed in the state, but that part was not before Judge Black.)

The four couples, who originally sought only to have both parents’ names entered on birth certificates for children (already born or on the way), later asked the judge to widen his ruling and strike down as written — that is, for all circumstances — the ban against recognizing existing marriages.

Turning to that wider issue, Judge Black declared: “There can be no circumstance under which this discriminatory classification is constitutional, as it was intended to, and on its face does, stigmatize and disadvantage same-sex couples and their families, denying only to them protected rights to recognition of their marriages and violating the [Constitution’s] guarantee of equal protection.”

Referring again to the series of recent rulings in federal courts in favor of same-sex married couples, the Cincinnati jurist said “there is a growing national judicial consensus that state marriage laws treating heterosexual and same-sex couples differently violates the Fourteenth Amendment, and it is this court’s responsibility to act decisively to protect rights secured by the U.S. Constitution.”

As other judges have done, Judge Black interpreted the claim of same-sex couples to equality in their marriages not as a plea to create a new right to marry based on sexual orientation, but as a claim to have equal access with other couples to the “fundamental right” to marry.

The Supreme Court, the judge said, “has consistently refused to narrow the scope of the fundamental right to marry” based upon the specific characteristics of the couple seeking marriage . . . .  Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.”

While Monday’s opinion repeatedly referred technically to the sole question of recognition of out-of-state same-sex marriages, the judge frequently used much more sweeping language in condemning the differing treatment of same-sex couples regarding “the fundamental right to marry.”

On the constitutional standard of review, Judge Black ruled that “intermediate scrutiny is appropriate” when a state seeks to “erase” marriage and family relations that have already been established.  (Intermediate scrutiny is a middle level of constitutional analysis, more demanding than “rational basis” but less than “strict scrutiny.”)

The judge sharply rejected Ohio’s attempts to justify the differing treatment of same-sex couples, and was especially harsh in denouncing the claim that the courts should respect the votes of Ohioans who had gone to the polls to approve the same-sex marital bans.  “Given that all practicing attorneys, as well as the vast majority of citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, [Ohio officials’] repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious.”

Although most of the opinion focused on the judge’s finding of violations of the rights of equal protection and due process, the ruling also applied the Constitution’s “full faith and credit clause” in Article IV to require Ohio to give full legal effect to one couple’s decree of adoption of their child in New York.

The judge anticipated that the state would be appealing his new decision to the U.S. Court of Appeals for the Sixth Circuit, which includes Ohio in its geographic region.  The Sixth Circuit is also expected to be ruling on state appeals in other same-sex marriage cases from other states in its region:  Kentucky, Michigan, and Tennessee.

In the Michigan case, state officials have asked the Sixth Circuit to grant initial review of that case before all of the judges on that bench, rather than the normal three-judge panel. (See this earlier post.) On Friday, the same-sex couples who challenged the Michigan ban said they are opposed to en banc review, arguing that that would slow down the process.

Recommended Citation: Lyle Denniston, Broader same-sex marriage ruling in Ohio, SCOTUSblog (Apr. 14, 2014, 1:20 PM),