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Federal judge questions if Ohio officials can refuse to recognize legal gay unions

Wednesday, December 18, 2013

Updated: 3:30 p.m. EST

CINCINNATI — A federal judge on Wednesday questioned the constitutionality of Ohio’s ban on gay marriage and whether state officials have the authority to refuse to recognize the marriages of gay couples who wed in other states.

Judge Timothy Black’s comments came as he heard arguments in federal court in Cincinnati over whether gay marriage should be recognized on Ohio death certificates despite a statewide constitutional ban.

Judge Timothy S. Black

Judge Timothy S. Black

Although Black’s decision, expected within two weeks, only will pertain to the recognition of gay marriage on Ohio death certificates, he noted that “in the real world out there, the stakes are larger,” and that his upcoming ruling could serve as starting point for further litigation seeking gay marriage to be recognized in Ohio.

Black cited a prediction by Supreme Court Justice Antonin Scalia, who wrote in a strong dissenting opinion in June that “no one should be fooled” by the court majority’s decision to stri ke down part of an anti-gay marriage law.

“It is just a matter of listening and waiting for the other shoe (to drop),” Scalia wrote. “The majority arms well every challenger to a state law restricting marriage to its traditional definition.”

Said Black on Wednesday, “The shoe dropped and now it’s here, and I’m required to follow the law of the United States Supreme Court.”

“Politicians say, ‘I’ll leave this to the states,’” but if the United States Supreme Court said the federal government cannot fail to recognize valid same-sex marriages, why can the states?” Black asked Bridget Coontz, the state’s attorney arguing against allowing gay couples’ marriages to be recognized on Ohio death certificates.

Coontz pointed out that in the same Supreme Court decision, the justices found that states have the right to decide for themselves whether to recognize gay marriage and Ohio voters overwhelmingly decided in 2004 to amend the state constitution to ban gay m arriage.

“Ohio doesn’t want Delaware or Maryland to define who is married under Ohio law,” she said. “To allow that to happen would allow one state to set the marriage policy for all others.”

Civil rights attorney Al Gerhardstein argued to Black that the case “is about love surviving death” and that his clients, two recently widowed gay men, deserve to have their out-of-state marriages recognized on their deceased spouses’ Ohio death certificates, and so does every other gay married couple in the state.

Black has previously sided with Gerhardstein in rulings limited solely to the two men, who both live in Cincinnati.

Black wrote that the surviving spouses deserved to be treated with respect and that Ohio law historically has recognized out-of-state marriages as valid as long as they were legal where they took place, citing marriages between cousins and involving minors.

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

The case has drawn attention in other states, including helping spark a similar but much broader lawsuit in Pennsylvania, which also does not permit gay marriage. Black’s decision also has irritated some conservative groups and lawmakers in Ohio, with one Republican state legislator calling for Congress to impeach him.

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18 more reader comments:

  1. It comes with the whole marriage packet there judge.If not take it out of straight marriages so straight people who are married wont get benefits after their mate dies too

    Posted on Wednesday, December 18, 2013 at 3:00pm
  2. yes it should. equality in all things in all ways always.

    Posted on Wednesday, December 18, 2013 at 3:05pm
  3. Just treat everyone as the same

    Posted on Wednesday, December 18, 2013 at 3:06pm
  4. Rick Snyder has had 3 years to protect the freedom of the LGBTQ Community. Rick Snyder has allowed discrimination against Women and LGBTQs. This type of discrimination is illegal, so why has Snyder allowed it? Now, with a new election on the horizon, he wants to talk… KevinGravesForGovernorOfMichigan@outlook.com Green Party Candidate for Equal Rights: Women Rights and LGBTQ Rights… http://bit.ly/1jfzU8

    Posted on Wednesday, December 18, 2013 at 3:10pm
  5. I can’t wait til the headlines read: PEOPLE GET MARRIED. Sick of the bullshit. We’re no different than they are. Love is love, marriage s marriage. Procreation is a silly point to focus on when it comes to reasons for a union, so…ITS JUST MARRIAGE…GAY OR OTHER.

    Posted on Wednesday, December 18, 2013 at 3:12pm
  6. Laura is completely correct. Just treat everyone the same. Small posit, truth spoken.

    Posted on Wednesday, December 18, 2013 at 3:14pm
  7. I hate these things are still being ” considered”… it’s basic human rights to be happy! No debates, no thinking about it. The answer should be yes if it makes someone happy without hurting others!!!!

    Posted on Wednesday, December 18, 2013 at 3:15pm
  8. Get with it Ohio!

    Posted on Wednesday, December 18, 2013 at 3:28pm
  9. yes it seems simple enough right laura,because it is.

    Posted on Wednesday, December 18, 2013 at 3:34pm
  10. him & his wife are gay..treat real men the same..man on man is masculine,dont feel intimidated.

    Posted on Wednesday, December 18, 2013 at 3:54pm
  11. For fucks sake…even in death we are still being discriminated against. Fucking hateful bigots.

    Posted on Wednesday, December 18, 2013 at 5:40pm
  12. REALLY?! Is this crap even up for debate in the 21st century? People are stupid and as such they are damn funny.

    Posted on Wednesday, December 18, 2013 at 6:51pm
  13. Of course, why wouldn’t you?

    Posted on Wednesday, December 18, 2013 at 8:02pm
  14. When will this insane knitpicking stop….equality for all.

    Posted on Wednesday, December 18, 2013 at 8:04pm
  15. it’s about equality U think if you don’t recognize it it didn’t happen?

    Posted on Wednesday, December 18, 2013 at 8:47pm
  16. The other shoe will drop. It always has and always will no matter how bigots and haters try to stop it. Good and right will win.

    Posted on Wednesday, December 18, 2013 at 9:06pm
  17. People who get legally married currently have to worry about whether their marriage will be recognized in another state. It’s like wondering if your drivers’ license will be recognized. Really? If you can drive in one place, why not in another?

    Posted on Wednesday, December 18, 2013 at 9:22pm
  18. Ohio doesn’t want other states to dictate who is married in Ohio, yet they recognize marriages performed in other states that violate Ohio marriage laws? If Ohio doesn’t want other states or the Federal government to dictate who’s married in Ohio then they should refuse to recognize all marriages made outside of Ohio. Get real Ohio, Marriage Equality is coming.

    Posted on Wednesday, December 18, 2013 at 9:47pm