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Ohio ruling likely to spark litigation aimed at striking down gay marriage ban

Tuesday, December 24, 2013
Ohio

Glenn Hartong, The Cincinnati Enquirer (AP)
In this July 11, 2013 file photo, Jim Obergefell, left and John Arthur, right, are married by officiant Paulette Roberts, in a plane on the tarmac at Baltimore/Washington International Airport in Glen Burnie, Md. Federal Judge Timothy Black on Wednesday, Dec. 18, 2013, 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. Black earlier ruled in favor of the couple in a lawsuit seeking to recognize the couples’ marriage on Arthur’s death certificate before he died in October from ALS.

CINCINNATI — A federal judge’s decision ordering Ohio authorities to recognize gay marriages on death certificates may be a narrow ruling, but observers – and even the judge himself – predict it will spark further litigation aimed at striking down the state’s ban on same-sex marriage.

In a broadly written ruling Monday, Judge Timothy Black said Ohio’s ban is unconstitutional and that that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

Although the ruling applies only to death certificates, his statements about the ban were sweeping and unequivocal, and are 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 2004),” Black said in reference to the year Ohio’s gay marriage ban passed. “Under the Constitution of the United States, the answer is no.”

His ruling stems from a July lawsuit by two gay Ohio men whose spouses recently died and wanted to be recognized as married on their death certificates.

The men’s attorney, Al Gerhardstein, said he was considering whether to file further litigation right away or let Black’s decision “percolate for a little bit.”

“I can tell you that the reasoning in this opinion is broad and the principals he set out are firmly rooted in solid legal arguments, but they would support a broader attempt on marriage recognition and marriage celebration in Ohio, so we’re looking at that,” he said.

Attorney General Mike DeWine said the state will appeal B lack’s decision to the 6th U.S. Circuit Court of Appeals, 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 Black’s Cincinnati courtroom 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.”

Black said that constitutional rights trump Ohio’s gay marriage ban, questioning whether it was passed for a legitimate state interest “other than simply maintaining a ‘tradition al’ 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.

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

Also Monday, a federal judge in Utah allowed gay weddings to continue in that state, rejecting a request to put them on hold as the state appeals a decision that sent couples flocking to county clerks for marriage licenses.

Judge Robert Shelby overturned Utah’s ban on same-sex marriage Friday, ruling the voter-approved measure is a violation of gay couples’ constitutional rights.

New Mexico’s highest court also legalized same-sex marriage last Thursday.

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48 more reader comments:

  1. Gay marriage is the same as any other marriage. I know when I die and I need to be put under I want my man to be able to deal with that. I hope that many agree. Many things don’t make since but what woundt make since is all the drama around us gays. We are just like everyone else and sparking the gas on the fire over that is pointless. Lets all realize that we came from the same God who is not judgmental like humans. He loves us all and wont stop.

    Posted on Tuesday, December 24, 2013 at 7:13am
  2. I mostly agree. :)

    Replied on Tuesday, December 24, 2013 at 9:45am
  3. equality! for LOE

    Replied on Tuesday, December 24, 2013 at 10:58pm
  4. LOVE

    Replied on Tuesday, December 24, 2013 at 10:58pm
  5. I LIKE The Desicion and Petitions. FOR Everybody

    Posted on Tuesday, December 24, 2013 at 7:14am
  6. Awesome :)

    Posted on Tuesday, December 24, 2013 at 7:29am
  7. I hope that they can strike down the ban and that more and more states allow marriage for all, cause it honestly makes no difference if it is a gay couple, straight couple, or even transgendered couple. Love is love plain and simple, and a couple who love each other should be able to marry. I mean seriously my wife and I’s marriage is not threatened at all by gay marriage, and any straight couple who feels theirs are has been brainwashed by fear mongers who are fed and fueled by ignorance and hatred.

    Posted on Tuesday, December 24, 2013 at 7:38am
  8. Thank you, Brian, for sharing. I wish more people were as open-minded. Merry Christmas to you and your wife... <3

    Replied on Tuesday, December 24, 2013 at 7:36pm
  9. Homosexual is a Sin.. turn from the lifestyle because we were not created like that. How were you created? It was not man and man…

    Posted on Tuesday, December 24, 2013 at 7:40am
  10. Are you really putting that here dude?!?! So what if I wasn't made by to guys or two girls! If gays really want kids, they can adopt them! Witch would give more kids homes and at least a family! If god hated homosexuals then why would he create them! Love is love no matter what gender we are! I have many friends who are gays and one of them will soon be married! Gays should have the same rights as a person who is not gay. This country was built on how we the people should have equal rights and freedom. If you say gays will ruin our country, well they said the same things about womans rights and African American rights. What did it do, it made our country look better and stronger then ever.

    Replied on Tuesday, December 24, 2013 at 7:55am
  11. The bible is not anti-gay. Please take the time to read the articles here with an open heart and mind: http://www.wouldjesusdiscriminate.org/ Sincerely, a gay Christian.

    Replied on Tuesday, December 24, 2013 at 8:46am
  12. Okay, you think that. That's fine. There's a simply enough solution though. DON'T BE GAY!!! In the meantime, leave everyone else who IS gay alone! They aren't bothering you, so back the fuck off!

    Replied on Tuesday, December 24, 2013 at 12:45pm
  13. Aww Rabara so sad so sad. Merry Christmas.

    Posted on Tuesday, December 24, 2013 at 7:43am
  14. troll alert ^ Rabara Marvin

    Posted on Tuesday, December 24, 2013 at 7:49am
  15. I did not say God hate Homosexuals. He does not permit the sin…Have you read the Bible? It speak the truth of that what we should love our lives…

    Posted on Tuesday, December 24, 2013 at 8:01am
  16. First, I don't give a shit about your bible anymore than I give a shit about the koran or the Jewish torah or the Roman pantheon! RELIGION IS NOT WHAT WE BASE OUR LAWS UPON! Second, if you're right, and god doesn't permit the sin, since she DOES allow homosexuals to exist, that means that she doesn't think it's a sin...

    Replied on Tuesday, December 24, 2013 at 12:47pm
  17. Mr Rabara: not everyone believes in your bible, and you can't force people to live the way you want them to.

    Replied on Tuesday, December 24, 2013 at 2:18pm
  18. nopt more of this assholic shit

    Posted on Tuesday, December 24, 2013 at 8:10am
  19. Well until you got here it wasn't.

    Replied on Tuesday, December 24, 2013 at 12:45pm
  20. Rabara Marvin, if you live by the Old Testament you will be judged by the old rules, that’s why Jesus died for us. Judge not, lest you be judged!!! You need to learn to LOVE, cause that is what Christ is all about

    Posted on Tuesday, December 24, 2013 at 9:28am
  21. God said to Peter "That which was unclean, I have made Clean". Jesus said "Some will make themselves Eunuchs for my sake. Perhaps he was talking about LGBT members who chose to live in healthy monogamous relationships, and transsexuals who transitioned.

    Replied on Tuesday, December 24, 2013 at 11:16am
  22. No! Really? Shocking. Not…

    Posted on Tuesday, December 24, 2013 at 10:54am
  23. Most of the federal courts, and the Supreme Court, have been basing their rulings on gay marriage on the fact that any ban on gay marriage violates the 5th Amendment Rights to “Due Process” for the spouse based on the fact that they are the same sex as their other spouse.

    The Ohio Ruling is the “Booby Prize”, but it looks like the Ohio court realized it would lose the case if they tried to fight the property rights and tax benefits of being a surviving spouse, so they tried to concede that to the court, to limit the ruling. The problem is that Marriage provides the spouse with benefits while both spouses are LIVING as well. For example, if one spouse has health insurance that would cover a life-saving procedure for an opposite sex spouse, but refuses such coverage for a same-sex spouse, then the same sex spouse who is refused coverage is being deprived of life without due process of law.

    Posted on Tuesday, December 24, 2013 at 11:21am
  24. Justice !

    Posted on Tuesday, December 24, 2013 at 11:39am
  25. Go Ohio team!

    Posted on Tuesday, December 24, 2013 at 12:21pm
  26. Let’s hope it does and that it’s successful!

    Posted on Tuesday, December 24, 2013 at 12:53pm
  27. Forget Ohio, it’s already happening in Utah. Mark my words, Utah will be site of the ‘Brown v. The Board of Education’ battle that will legalize gay marriage.

    Posted on Tuesday, December 24, 2013 at 12:59pm
  28. Its OK to believe “GOD” does notthink its right to lay with another man but the thing you fucking bible thumpers need to uunderstand. Religion and government are two separate things! Its about equality! Not what others think is best .

    Posted on Tuesday, December 24, 2013 at 2:06pm
  29. Ohio sucks!!!

    Posted on Tuesday, December 24, 2013 at 2:07pm
  30. It should not make any difference to anyone whom they choose to love!!! Why should it matter and these so called “bans” on marriage is so absurd I have to laugh sometimes because as a citizen of this country I have the right to marry the man I love!!!!!! PERIOD!!!!

    Posted on Tuesday, December 24, 2013 at 2:27pm
  31. Viva la revolucion!

    Posted on Tuesday, December 24, 2013 at 11:30pm
  32. Let all be equal!

    Posted on Thursday, December 26, 2013 at 6:30pm
  33. awesome

    Posted on Thursday, December 26, 2013 at 6:35pm
  34. Love in all equality shall set us free!!!

    Posted on Thursday, December 26, 2013 at 6:39pm
  35. Please Ohio!

    Posted on Thursday, December 26, 2013 at 6:43pm
  36. All our hard work is starting to pay off! 2014 is going to be our year! Marriage Equality Ohio!!!!!

    Posted on Thursday, December 26, 2013 at 6:45pm
  37. It will fall in Ohio. Sooner rather than later, I think!

    Posted on Thursday, December 26, 2013 at 6:48pm
  38. Come on Ohio! I would like to be more than federally and after death recognized!

    Posted on Thursday, December 26, 2013 at 6:48pm
  39. Pennsylvania next! :-)

    Posted on Thursday, December 26, 2013 at 6:52pm
  40. As a former Ohioan now living in New Mexico (17th State for Marriage Equality) I wish all a quick success. This action is possible in 2014. The tide has turned.

    Posted on Thursday, December 26, 2013 at 7:37pm
  41. I’m not a member of the LGBT community but it sickened me to see that same sex couples couldn’t marry in my state. Looks like I won’t have to worry about that soon. Some of my friends can get married.

    Posted on Thursday, December 26, 2013 at 7:39pm
  42. Me and hubby can get married soon. When it passes!! Come on ohio!!!!

    Posted on Thursday, December 26, 2013 at 7:42pm
  43. at least after iam dead,, Ohio will recognize iam a LEGALITY MARRIED GAY MAN !!!!!!!!

    Posted on Thursday, December 26, 2013 at 7:55pm
  44. It and we are here to stay.

    Posted on Thursday, December 26, 2013 at 8:15pm
  45. But of course! Soon LGBT will feast on the tears of defeated bigots in all Red States.

    Posted on Thursday, December 26, 2013 at 9:59pm
  46. I don’t see how it’s not allowed. We pay our taxes and all that just like the straight people of this country. It’s no one’s business if I wanna marry my partner. The government should be able to control my personal life. This is a personal decision that doesn’t affect anyone except our families. Get over yourselves government. Stop controlling the personal lives of the country that depends on you to make the right decisions for us.

    Posted on Thursday, December 26, 2013 at 10:43pm
  47. GO EQUAL, OHIO!!!!!!

    Posted on Thursday, December 26, 2013 at 11:11pm