COMMENTARY

Why is Ohio wedded to its ban on gay marriage?

3/29/2014

Second class. Less than. Beneath consideration. Ohio’s constitutional ban on gay marriage discriminates.

It designates a class of people as being unequal to others.

It denies the legal rights inherent in a marriage license to all but heterosexual couples. Those with different sexual orientations share none of the spousal benefits granted to couples who are legally wed.

Ohio, like many other states, considers the issue its own to decide. It alone will determine what is acceptable and what is not within its borders.

Ohio, like many other states, once deemed interracial marriages unacceptable. In 1861, it adopted a constitutional ban declaring it unlawful for a person of “pure white blood” to intermarry or have “illicit carnal intercourse, with any Negro or person having a distinct and visible admixture of African blood.”

The statute was repealed in 1887. But a legally married mixed-race couple in Ohio could still be jailed in Georgia.

It took a unanimous ruling by the U.S. Supreme Court in 1967 to end the legal bigotry against interracial marriage that remained on the books in more than a dozen states. It will take the Supreme Court to end the prejudice, enshrined in law, against same-sex marriage.

But the pendulum is swinging toward justice for all. Increasingly, the right of states to decree gay marriages wrong is challenged.

State voters may have overwhelmingly supported a constitutional ban on gay marriage, as Ohioans and Michiganians did in 2004. But that doesn’t justify what was approved, said the federal judge who struck down Michigan’s ban last week.

“The court is not aware of any legal authority that entitles a ballot-approved measure to special deference in the event it raises a constitutional question,” U.S. District Judge Bernard Friedman wrote in his ruling. On the contrary, the judge said, quoting the late Supreme Court Justice Robert H. Jackson, the very purpose of the Bill of Rights is to protect unalienable rights from such political referendums.

“One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; [wrote Justice Jackson] they depend on the outcome of no elections.”

Judge Friedman acknowledged that “many Michigan residents have religious convictions whose principles govern the conduct of their daily lives and inform their own viewpoints about marriage.” But these views, he said, “cannot strip other citizens of the guarantees of equal protection under the law.”

Unmarried same-sex couples are being denied the same protections and privileges that are granted to married straight couples. Like interracial couples of yesteryear, same-sex couples are treated differently solely because they are not the norm.

A Michigan couple, prohibited by law from marrying, was denied the right to adopt children as a couple. In Wisconsin a state law made it a crime for couples to get married in another state — if the union wouldn’t be recognized in the Badger State.

In Ohio a federal judge upheld the rights of a same-sex couple, lawfully married in another state, to be thusly recognized on their death certificates. That prompted other legally married gay couples to sue for their marriages to be recognized on birth certificates.

The Supreme Court opened the door to a flood of lawsuits against state gay marriage bans when it struck down part of the federal Defense of Marriage Act. The provision denied federal benefits to legally married same-sex couples.

Justice Ruth Bader Ginsburg observed that because marriage “affects every area of life,” DOMA created a kind of caste system in the United States for gay people in which “there were two kinds of marriage, the full marriage (for straight couples) and then this sort of skim milk marriage (for gay couples).”

It was unfair, the Supreme Court concluded, and violated core principles of the U.S. Constitution. The tide has turned just as it did for interracial marriage.

State attorneys general in California, Virginia, Illinois, Pennsylvania, Nevada, and Oregon have decided not to defend lawsuits challenging their states’ ban on gay marriage.

In a brief, Oregon’s attorney general, Ellen Rosenblum, explained: “Because the same-sex marriage ban does not further the state’s interest in protecting and promoting families and actually damages that interest, there is no rational justification for maintaining the law.”

If only Ohio Attorney General Mike DeWine would concur.

Contact Blade columnist Marilou Johanek at: mjohanek@theblade.com