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COLUMBUS — For the second time in less than two months, same-sex marriage bans have been at least partly overturned in border states, but activists in Ohio have instead taken their own approach to chip away at the state’s ban.
It may be only a matter of time before a campaign is started against Ohio’s constitutional ban, which was adopted in 2004 at the same time voters approved Michigan’s ban.
The 6th U.S. Circuit Court of Appeals, based in Cincinnati, over the weekend put a halt to the same-sex marriages that occurred sporadically in Michigan in the hours after U.S. District Judge Bernard Friedman overturned the state’s ban. The 6th Circuit must decide by Wednesday whether its temporary stay should remain in place while Michigan Attorney General Bill Schuette appeals the ruling.
A federal judge overturned part of Kentucky’s ban in February, saying that the state’s refusal to recognize gay marriages legally performed elsewhere violates 14th Amendment protections against discrimination.
“We’ve been looking at ways to work from the periphery inward,” said Ian James, executive director of Freedom to Marry Ohio, a group gathering signatures for a ballot issue to overturn Ohio’s 2004 ban that could be put to voters as early as the Nov. 4 general election.
“From our last conference call with our legal team, it’s clear the fear of losing has diminished,” he said. “There is a need to move forward on a 14th Amendment challenge. We’ve seen a Reagan appointee, Judge Friedman in Michigan, rule thusly on the 14th Amendment. We shouldn’t have atychiphobia — fear of failure.”
But the Ohio gay rights community remains divided on this issue. While there is consensus that voters will eventually be asked to reverse its ban, there are disagreements over when that should happen and whether it’s time for an outright legal challenge to the ban as occurred in Michigan.
Why Marriage Matters Ohio, a coalition that believes a 2014 ballot issue would be premature, supports recent legal challenges that have chipped away at the ban, but it does not support an all-out legal assault yet.
“Given the makeup of the 6th Circuit, the likelihood that a case would be successful on appeal is kind of remote,” said campaign manager Mike Premo. “Barring a Supreme Court decision on marriage equality nationally, we believe we’ll have to go to the ballot in 2016.”
Ohio’s 2004 amendment was championed by Cincinnati-based Citizens for Community Values. The organization’s president, Phil Burress, said he doesn’t believe decisions in Michigan and Kentucky have changed the landscape in Ohio.
“The 6th Circuit is not a place that will be friendly to their cause,” he said. “The federal 6th Circuit has been very good at interpreting the law and Constitution rather than having rogue judges who impose their own will, which we’re seeing across the country. … Their only hope of forcing same-sex marriage upon the rest of the country is through the U.S. Supreme Court.”
He said he doesn’t believe the High Court will overturn state constitutional bans. Last year, the court voted 5-4 to strike down the federal Defense of Marriage Act affecting the federal government. It let stand a lower court ruling that struck down California’s ban.
In Ohio, U.S. District Court Judge Timothy Black of Cincinnati ruled last year that same-sex marriages must be recognized on Ohio death certificates. Ohio Attorney General Mike DeWine’s appeal is pending in the 6th Circuit.
A separate case was recently filed before Judge Black to have same-sex marriages recognized on birth certificates.
The Ohio Constitution restricts marriage to unions of a man and a woman and prohibits government from extending rights approximating those of marriage to same-sex and unmarried couples.
Freedom to Marry Ohio’s proposed constitutional amendment would require recognition of same-sex marriages while stating that religious institutions would not be forced to perform them. Mr. James said the group will be ready by the July 2 deadline to submit its petitions if the group’s board votes to go for the Nov. 4 election.
A Quinnipiac Poll released last month found an even 50 percent of Ohio’s registered voters support recognition of same-sex marriage. Forty-four percent oppose it.
Contact Jim Provance at: email@example.com or 614-221-0496.