Judge orders Ohio to recognize same-sex marriages

Judge Black's ruling declares Ohio must recognize same-sex marriages performed legally in other states, such as the marriage of Beth Asaro, left, and Joanne Schailey, right who were wed in Lambertville, N.J. in October, 2013.

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Federal Judge Timothy Black

COLUMBUS — Ohio must recognize same-sex marriages legally performed elsewhere despite the state’s own ban on such marriages in its constitution, a federal judge in Cincinnati officially ruled today.

Attorney General Mike DeWine has said he will appeal the decision as he already has another by U.S. District Judge Timothy Black that required the state to recognize same-sex marriages on death certificates.

The latest ruling, promised by Judge Black more than a week ago, does not mean that same-sex couples may be wed in Ohio. But it strikes a blow against another portion of the constitutional amendment Ohioans adopted in 2004 that prohibits government from extending rights approximating those of marriage to same-sex and unmarried couples.

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The case before Judge Black initially dealt solely with the issue of having the names of same-sex couples legally married in another state on the birth certificates of children born here. But Judge Black, a 2010 appointee by President Obama, went a step further by ordering the state to recognize all such marriages performed legally.

Judge Black wrote that the state’s defense “is staggeringly devoid of any legitimate justification for the State’s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.”

The case was brought by four couples married in California, New York, and Massachusetts who have had or soon expect to have children in Ohio. Three are female couples in which one spouse was impregnated through artificial insemination while the fourth is a male couple who adopted a child born here.

Another plaintiff is Adoption S.T.A.R., an adoption agency that sued on behalf of future same-sex couples it will serve.

Judge Black ruled that Ohio’s ban unconstitutionally violates the couples’ 14th Amendment right to equal protection under the law.

The court stayed its own general order pending possible appeal, but he noted in a footnote to his order that he is "inclined" not to delay his order as it pertains to the four plaintiff couples.

Ohio is just one of a number of states with same-sex marriage cases in the appeals pipeline with at least one likely to work its way up to the U.S. Supreme Court.

Judge Black's ruling declares Ohio must recognize same-sex marriages performed legally in other states, such as the marriage of Beth Asaro, left, and Joanne Schailey, right who were wed in Lambertville, N.J. in October, 2013.

The high court voted 5-4 decision last year to strike down the federal Defense of Marriage Act affecting the federal government. But it left the question at the state level unresolved when, without ruling on the substance of the case, it let stand a California ruling striking down that state’s ban.

"I've talked to judges and lawyers, and nobody has heard of a judge telling everyone ten days ahead of time how he's going to rule," said Phil Burress, president of Citizens for Community values, the Cincinnati-based organization that spearheaded the 2004 vote.

"It's all about politics and legislating from the bench," he said. "He will be overturned by the 6th Circuit (Court of Appeals) when the case is appealed by Mike DeWine."

Mr. DeWine today certified a revised proposed constitutional amendment that seeks to overturn the ban even as the group behind it claims to have enough signatures to qualify the original for the November ballot.

The organization FreedomOhio will hit the streets to gather signatures for the new amendment, this time with the intention of submitting it first to the General Assembly in hopes it will vote to put the question to voters. Failing that, more petitions will be circulated to put the proposed amendment on the ballot.

The revised amendment specifies that a “religious house of worship,” which would not be forced to perform same-sex marriages, as one where “the primary activity is religious worship.”

The new wording also adds the requirement that “all legally valid marriages” be treated equally.

The General Assembly route would postpone a vote until at least November of 2015.

The revisions occur even as the gay-rights community remains divided over whether enough has changed in Ohio since the 2004 vote to make this year the right time to put the question to voters. Some are instead eyeing the 2016 presidential election.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.