There has been a lot of progress on the same sex marriage front in recent days.

In Utah, a federal judge declared that the State of Utah’s statutory and constitutional ban on same sex marriages violated the federal constitution.  This led to a flurry of same sex couples seeking marriage licenses and getting hitched.

In Ohio, a federal district court judge ruled that Ohio must recognize same sex marriages legally performed in other states on death certificates.

All of this legal maneuvering can be confusing, so we reached out to some legal experts to answer some of the most frequently asked questions here in Ohio.

 

Can Same Sex Couples in Ohio get married today?

No.  The Ohio decision was very narrow.  The judge was initially dealing with the case of a same sex couple who were married in Maryland.  The couple wanted the death certificate for one of the men (who was terminally ill) to reflect their marital status.

The judge’s ruling affects only death certificates.  [JOE, PLEASE LINK TO OPINION]  So, at the moment, a same sex couple living in Ohio can get married in one of the 18 other states where same sex marriages are legal.  However, Ohio will only recognize the legitimacy of that marriage after one of the couple dies.  So, same sex couples in Ohio, you got that going for you.

 

What Happens Next in the Ohio Case?

Attorney General DeWine will appeal to the Sixth Circuit Court of Appeals.

Procedurally, the AG will likely ask for a stay of the district court’s ruling.  This will give the Appeals Court a chance to reveal its preliminary view of the matter.  In evaluating a request for a stay, the court must consider whether the appeal has a substantial likelihood of success.

The case will then proceed to full briefing, oral argument, and a decision from three of the judges on the Court of Appeals.  This could take between six to twelve months.  After that, whichever side loses could ask for the entire panel of judges on the Sixth Circuit Court of Appeals to review the case, or could seek to take the case to the United States Supreme Court.

 

Does Attorney General DeWine Have to Appeal?

No.  The Attorney General does not need to continue to defend a state law that he believes is unconstitutional.

In other words, DeWine could let the decision stand.  He is, of course, under a lot of pressure from his right wing allies to continue to fight against same sex marriage.  But, FWIW, here is his contact info, so consider sending him a message urging him not to continue the appeals in the same sex marriage case.

 

Can Someone Make a Broader Attack on the Ohio Ban on Same Sex Marriages?

Yes.  The decision by the Ohio Judge is a red carpet invitation for someone to make a broader attack on Ohio’s ban on same sex marraiges.  The judge wrote,

Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates, just as Ohio recognizes all other out-of-state marriages, if valid in the state performed, and even if not authorized nor validly performed under Ohio law, such as marriages between first cousins, marriages of certain minors, and common law marriages.  That is, once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution.

Important legal point on how this attack would work.  The judge is not saying that Ohio must allow same sex marriages.  Rather, the judge is saying that if you get married in a state where same sex marriage is legal, then Ohio must recognize this marriage.

This is the approach we suggested last July after the Windsor decision.  At that time,  we said, “we expect same sex couple who were married in other states to seek Ohio to recognize their marriage.”

The legal argument is simple.  Under the Full Faith and Credit Clause of the United States Constitution, Ohio is generally required to recognize legal proceedings from other states.  This includes marriages.  Because Ohio currently recognizes all other out of state marriages, even if they could not be performed within Ohio (like a marriage between cousins), Ohio is compelled to also recognize same sex marriages that are legal in the state where they are performed.

 

If successful, would the broader challenge suggested by the Ohio federal judge’s opinion allow same sex marriages in Ohio?

No.  Ohio same sex couples would need to go to another state to get married.  However, once married in the other state they would be treated like any other married couple under Ohio law.

From a legal perspective, this would effectively end the ban on same sex marriage in Ohio, as any same sex couple living in Ohio would have a path towards full legal equality.

From a social/political perspective, Ohio would still ban same sex marriages.

 

Utah – Utah! – is now allowing same sex marriages.  What is different?

The Utah case involved a straight challenge to the ban on same sex marriage enacted by the Utah legislature.  Utah adopted a state constitutional amendment similar to Ohio’s ban on same sex marriage.

The plaintiffs in Utah convinced the federal judge that this ban on same sex marriages was unconstitutional.  So in Utah, same sex couple were able to get married, and can continue to do so until a higher court issues an order either staying or repealing the judge’s order.

 

Could the Utah Decision lead to a similar decision in Ohio?

Typical lawyer answer:  “There is no reason that this could not happen in Ohio.”  The Utah decision is not binding on the Ohio judges, however, until it makes its way to the United States Supreme Court.

Some of the lawyers we have spoken to are hesitant to bring this challenge in Ohio.  One of the reasons is that the Sixth Circuit Court of Appeals is considered by some to lean conservative.  To be fair, some lawyers remain skeptical of this go slow strategy, noting that the “go slow lawyers” were proven wrong in California.

 

How do these opinions fit together?

Lawyers love hypotheticals, so here is one to illustrate the current state of the law:

A same sex couple living in Cincinnati couple could take the 8:15 am flight on Delta on Christmas Eve to Salt Lake City.  (The round trip fare is $719; an upgrade to first class is only about $150 more.)  The couple arrives in time to get married in Utah.  After spending Christmas in Salt Lake City, the couple returns to Ohio on December 26 at about 3:15.  The couple is not considered to be legally married in Ohio.  So not joint tax returns, etc . . . BUT, if the couple dies in a car crash in Ohio on the way home from the airport, the death certificates would indicate that they were married.

Crazy.

 

Any other questions?

The comment board is open.  Post questions there and we will try to get answers.

Evangelize!
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  • Mark Szabo

    2 of the circuit court of appeals that are the most liberal will not rule on marriage equality because the states in those districts all have marriage equality. Of the remaining the 6th is considered a moderate court in comparison. The Michigan case is going forward and is in the 6th circuit. It is as Rachel Maddow calls it a Nuclear option case. Much like the Utah case but it includes adoption. The judge in Michigan has decided to have a trial with witnesses much like Prop 8. Would it be better for folks in Ohio to wait on this case or push forward with a broader DOMA section 2 challenge that Judge Black laid the ground work for?

  • Leonidas

    Excellent question.

    Different lawyers give different opinions.

    The best path for Ohio may be (1) to wait for the Michigan and Utah cases to wind their way through the system for “full equality”; but (2) to pursue a more limited action seeking to compel Ohio to fully recognize out of state marriages immediately.

  • Mark Szabo

    Last couple of questions. In Virginia there are several suits going forward. Recently the state offices were swept with supposedly pro-equality candidates. The question there is if the Gov or AG will continue to defend the ban. If the current AG and Gov lose here in Ohio and their opponents decide against defending the ban who would defend the law? The legislature and/or locality (Clerk of Courts/County Clerk)? Do they have standing to appeal? I don’t think that was specifically addressed in the Prop 8 case by SCOTUS.

  • Mark Szabo

    This question is crazy but I’ve seen it asked but never answered. Can a straight couple sue to overturn the ban and what would the success be?

  • Leonidas

    They probably would not have standing.

  • Leonidas

    The authority to defend an Ohio law rests with the Attorney General. In most instances, nobody else could step in to decide the case. In the Prop 8 case, the Supreme Court, in a decision, written by Chief Justice Roberts and joined by Justices Antonin Scalia, Ginsburg, Breyer and Kagan, held that the supporters of Proposition 8 who argued in favor of the California ban on same-sex marriage had no legal standing to pursue an appeal.

  • Leonidas

    We don’t criticize the assistant attorneys general who must defend these positions. They answer the questions as best they can, and they have a duty under the rules of professional responsibility to zealously advocate for their position.

    The elected officials are the ones who have responsibility.

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