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Ohio

Narrow ruling on death certificates rejects Ohio’s ban on same-sex marriage

“The question presented is whether a state can do what the federal government cannot – i.e., discriminate against same-sex couples … under the Constitution of the United States, the answer is no.”
Monday, December 23, 2013

Updated: 3:15 p.m. EST

CINCINNATI — A federal judge Monday ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

Judge Timothy Black

Judge Timothy Black

Although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s gay-marriage ban are sweeping, unequivocal and expected to incite further litigation challenging the law.

Ohio’s attorney general said the state will appeal.

Black cited the Supreme Court’s June decision striking down part of a federal anti-gay marriage law, saying that the lower courts are now tasked with applying that ruling.

“And the question presented is whether a state can do what the federal government cannot – i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2 004),” Black said in reference to the year Ohio’s gay marriage ban passed. “Under the Constitution of the United States, the answer is no.”

Eighteen states and the District of Columbia allow same-sex weddings, up from six before the Supreme Court decision.

Black wrote that “once you get married lawfully in one state, another state cannot summarily take your marriage away,” saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

“When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court,” he wrote.

Black referenced Ohio’s historical practice of recognizing other out-of-state marriages even though they can’t legally be performed in Ohio, such as those involving cousins or minors.

Black’s decision stems from a lawsuit in July by two gay Ohio men whose spouses recently died and wanted to be recognized on their death certificates as married. The two couples got married over the summer in states that allow same-sex marriage.

Black said “there is absolutely no evidence that the state of Ohio or its citizens will be harmed” by his ruling but that without it, the harm would be severe for two men who filed the lawsuit because it would strip them of the dignity and recognition given to opposite-sex couples.

Black ordered the state not only to recognize the marriages of the two men who filed the lawsuit on their respective spouses’ death certificate but also to communicate his orders to anyone in the state involved in completing death certificates.

Attorney General Mike DeWine said the state will take its case to the 6th U.S. Circuit Court of Appeals, also based in Cincinnati. He called Monday’s decision “not a huge surprise,” given earlier rulings Black made in the case.

“Our job is to defend the Ohio Constitution and state statutes … and that’s what we intend to do,” DeWine said.

Bridget Coontz, the attorney who argued on behalf of the state, said Wednesday in court that in the Supreme Court’s historic June decision, the justices also found that states have the right to decide for themselves whether to recognize gay marriage, and Ohio voters decided not to in 2004.

“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 was “about love surviving death” and said that the state had no right to recognize certain out-of-state marriages and not others.

Black sided with Gerhardstein, saying that constitutional rights trump Ohio’s gay marriage ban, questioning whether it was passed for a legitimate state interest “other than simply maintaining a ‘traditional’ definition of marriage.”

He quoted then-Gov. Robert Taft who said in 2004 that the law was intended “to reaffirm existing Ohio law with respect to our most basic, rooted, and time-honored institution: marriage between a man and a woman.”

Black wrote that “the fact that a form of discrimination has been ‘traditional’ is a reason to be more skeptical of its rationality.”

“No hypothetical justification can overcome the clear primary purpose and practical effect of the marriage bans … to disparage and demean the dignity of same-sex couples in the eyes of the state and the wider community,” Black wrote.

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29 more reader comments:

  1. We’re getting that much closer!!!!!

    Posted on Monday, December 23, 2013 at 5:23pm
  2. Come on, Ohio! Marriage equality would be the best Christmas gift of all :)

    Posted on Monday, December 23, 2013 at 5:24pm
  3. The bigots seems to be losing at every turn

    Posted on Monday, December 23, 2013 at 5:28pm
  4. Thank you Judge Black

    Posted on Monday, December 23, 2013 at 5:32pm
  5. Baby steps…it’s coming folks! One day I’ll look here and our marriage will be recognized!

    Posted on Monday, December 23, 2013 at 5:33pm
  6. Wow. I think this is a start, correct?

    Posted on Monday, December 23, 2013 at 5:35pm
  7. So let me get this right… Are there more rights in Ohio if your are dead than alive?

    Posted on Monday, December 23, 2013 at 5:37pm
  8. At the moment, sorta. According to this ruling, which is limited SOLELY to death certificates based upon the case that was brought to the judge, if you've been legally married in a state that allows it, then the state has to recognize that marriage ONCE YOU DIE. It will quickly be expanded to the state having to recognize you once you get married and are still alive shortly.

    Replied on Monday, December 23, 2013 at 6:17pm
  9. Inching step by step towards our rights in different states.

    Posted on Monday, December 23, 2013 at 5:39pm
  10. ;-)bless his heart

    Posted on Monday, December 23, 2013 at 5:44pm
  11. Chris

    Posted on Monday, December 23, 2013 at 5:46pm
  12. Thanks Kyle Sinks!

    Posted on Monday, December 23, 2013 at 5:48pm
  13. Celebrating the small victories! All I want for the holidays is equality. Have a Happy holiday season everyone :)

    Posted on Monday, December 23, 2013 at 5:48pm
  14. so now Gay dead people can get married, wow this is a joke right? Why this judge was afraid to say that every gay people can get married now, not only people that are going to die, wow, maybe I’m wrong on this

    Posted on Monday, December 23, 2013 at 5:56pm
  15. Getting closer

    Posted on Monday, December 23, 2013 at 6:02pm
  16. Come on Ohio!

    Posted on Monday, December 23, 2013 at 6:04pm
  17. Wow, first Utah, now Ohio!?

    Posted on Monday, December 23, 2013 at 6:05pm
  18. All for one and one for all…LGBT justice will prevail!

    Posted on Monday, December 23, 2013 at 6:12pm
  19. Oh wow!

    Posted on Monday, December 23, 2013 at 6:46pm
  20. And they shall fall like a house of cards!! EQUALITY IS FINALLY NEAR!!

    Posted on Monday, December 23, 2013 at 6:48pm
  21. Posted on Monday, December 23, 2013 at 7:11pm
  22. When will the OH court mandate that OH follow the US Constitution and recognize/permit same sex civil marriage equality?

    Posted on Monday, December 23, 2013 at 8:20pm
  23. This is great! Now if only we could get them to stop discrimination against women..

    Posted on Monday, December 23, 2013 at 9:36pm
  24. Come on ohio,i can’t wait to my wife an it be legal although in our hearts an eyes we are married, lets go ohio..

    Posted on Monday, December 23, 2013 at 10:14pm
  25. SO happy for Ohio!

    Posted on Monday, December 23, 2013 at 11:04pm
  26. if thats the case that a state can’t do what the federal gov can’t do then why are we still fighting this in court, it should all just fall and be legal everywhere

    Posted on Monday, December 23, 2013 at 11:19pm
  27. Another notch in the armor.

    Posted on Tuesday, December 24, 2013 at 12:22am
  28. This sounds REALLY promising; except the final say may come from the Roberts Supreme Court…

    Posted on Tuesday, December 24, 2013 at 12:48am
  29. In the end Equal Marriage will be law of the land, or the Religious Bigots will succeed in making the nation a mock Puritan Theocracy. A world where Corporations dictate, Police Enforce, and Religion oppresses. Those are the only two choices.

    Posted on Tuesday, December 24, 2013 at 1:10am