Mike DeWine has taken another step against marriage equality. He is continuing to fight against a federal court decision requiring Ohio to recognize a same sex marriage legally performed in another state.
The facts of this case, in case you forgot, are definitely compelling. Two men, John Arthur and Jim Obergefell, wished to get married before Arthur died of ALS. So they took a charter flight to Maryland, got hitched, and then sued to compel Ohio to recognize the marriage on a death certificate. We can’t link enough times to the Cincinnati Enquirer must read story.
The couple won in the federal district court. The judge ruled, following Windsor, that the Constitution forbids Ohio from singling out same sex marriages from other states as ones it will not recognize while continuing to recognize opposite sex marriages from out of state. Judge Black said, “there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal.”
Judge Black’s decision released a whole Kracken of right wing crazy. Our favorite was Representative Becker’s call to impeach Judge Black so that the United States could return to 19th Century values (like, you, know, blacks as slaves and women unable to vote).
DeWine, for his part, has promised to “lead the fight” against same sex marriage in Ohio.
Arthur died on Oct 22, 2013.
Which brings us to the most recent court proceedings in the case. DeWine filed a brief last week in preparation for arguments on Wednesday, December 18, in federal court on whether to make Judge Black’s initial ruling permanent.
Let’s get this out of the way. If an Attorney General believes that a law is unconstitutional, then the Attorney General does not have to continue to defend the law.
Mike DeWine is committed to this principal. As the Huffington Post pointed out, DeWine acknowledged in cases involving conservative causes that the “Attorney General has a special duty, as an officer of the Court and representative of the public, to acknowledge when the government’s side might be wrong, and especially when a statute might be unconstitutional.”
This is what happened in California. After the federal district court judge declared that the Proposition banning same sex marriage was unconstitutional, the California attorney general and governor refused to defend the law. More recently, Pennsylvania attorney general Kathleen Kane announced that she would not defend the state in a federal lawsuit filed this week challenging the constitutionality of the state’s ban on same-sex marriage, calling the prohibition “wholly unconstitutional.”
Which is why it is so sadly and predictably depressing that DeWine doubles down on the right wing talking points to defend Ohio’s ban on same sex marriage. He had a choice to conceded that the law ins unconstitutional. Instead, he argued that “avoiding judicial intrusion upon a historically legislative function (defining “marriage”) is a legitimate basis for the passage of Ohio’s marriage laws.” Huh? Has DeWine never heard of the Loving decision. In that case, the Supreme Court struck down a state ban on inter-racial marriage. Presumably DeWine believes that this decision was incorrect because a judge infringed on the right of Virginia to keep marriage within races.
But the brief gets better. DeWine re-writes history but suggesting that Ohio’s ban on same sex marriage was designed to give the people of Ohio time “to examine the impact that changing marriage laws has had or will have in other States and wait before allowing any such change to occur in Ohio.” Really? We were there in 2004. To suggest that the Ohio Amendment was motivated by anything but animus towards gays and lesbians is beyond naïve.
DeWine is like Homer Simpson; he is complaining that “The whole world’s gone gay!” Meanwhile, real people are trying to lead real lives. DeWine should get out of their way and stop defending this unconstitutional law.