In declaring that Ohio would oppose a federal judge’s ruling last week that recognizes same-sex marriages on death certificates, state Attorney General Mike DeWine committed to defending state law and the Ohio Constitution. But Mr. DeWine must know that Ohio’s discriminatory law that bans gay marriage may violate the U.S. Constitution. Nor does it, likely, any longer represent the will of most Ohioans.
Six states legalized same-sex marriage this year, bringing the total to 18 states and the District of Columbia. In June, the U.S. Supreme Court invalidated parts of the federal Defense of Marriage Act, which had barred federal benefits for same-sex couples.
Given the raft of recent court decisions upholding rights related to same-sex marriage, and a remarkable shift in public opinion, it’s almost certain that the entire country — including Ohio — will have a constitutional right to gay marriage within a decade.
Ohio came another step closer last week. Although U.S. District Judge Timothy Black’s ruling applies only to death certificates, it invites broader legal challenges aimed at striking down the state’s voter-approved 2004 ban on gay marriage by arguing that the law is unconstitutional. Ohio, the Cincinnati judge said, cannot discriminate against same-sex couples simply because some of its voters don’t like homosexuality.
Also last week, a federal judge in Utah allowed gay weddings to continue there, rejecting a request to place them on hold as the state pursues an appeal. The week before, a judge overturned Utah’s ban on same-sex marriage, ruling the voter-approved measure violates gay couples’ constitutional rights. In arguably the nation’s most conservative state, hundreds of gay couples flocked to county clerks for marriage licenses.
New Mexico’s highest court also legalized gay marriage this month. Judicial momentum will make it easier for judges in other states to make similar decisions and remain in the mainstream.
The seismic shift in public opinion on gay marriage is practically unprecedented. Polls show support for same-sex marriage nationwide at as high as nearly 60 percent. Ohio’s ban passed in 2004 with almost 62 percent of the vote, but polls suggest most Ohioans would likely oppose such a measure today.
A July poll by Gallup found support for gay marriage nationwide at a record 54 percent — double the support Gallup measured when it first asked the question in 1996. With support for gay marriage highest among young people — more than 80 percent of adults between the ages of 18 to 29 appear to favor it — these trends will continue.
In Ohio, polls show a potential 2014 ballot effort to overturn the ban on gay marriage would have a good chance of succeeding, with support from high-profile Republicans such as U.S. Sen. Rob Portman.
Meanwhile, courts will continue to undermine or eliminate bans on same-sex marriage. Judge Black made his ruling with sound logic and solid legal arguments.
The U.S. Constitution generally requires states to recognize legal proceedings from other states, including marriage. The judge referred to our state’s historic practice of recognizing other out-of-state marriages even though they can’t legally be performed in Ohio, such as those involving first cousins or certain minors.
“Once you get married lawfully in one state, another state cannot summarily take your marriage away,” Judge Black wrote, saying that the right to remain married is a fundamental liberty in the U.S. Constitution.
Still, the ruling leaves Ohio with an absurd law on the books that invites further litigation. As it stands, Ohio law does not recognize the legitimacy of same-sex marriages until after one of the couple dies.
Ohio’s attorney general has no duty to defend a state law that is unconstitutional. Mr. DeWine should stand down. Either way, public opinion and the Constitution eventually will end Ohio’s ban on gay marriage.