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Opening Arguments

Married in Ohio

When the Supreme Court said it was unconstitutional discrimination to treat straight and gay married couples differently in states that recognized gay marriage, the obvious question was (and it was asked by a lot of people), well, what about same-sex couples in states that don't recognize gay marriage? Is it any less discriminatory to treat people differently in some states than it is in other states? Now, a federal judge in Ohio is pushing that very federalism button:

A federal judge in Ohio ordered state officials Monday to recognize the marriage of two men that was performed in Maryland on the death certificate of an Ohio resident in hospice care who the judge says “is certain to die soon.”

“The end result here and now is that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as ‘married’ and James Obergefell as his ‘surviving spouse,’” Judge Timothy Black wrote in granting the couple a temporary restraining order Monday. The order is in effect until 5 p.m. Aug. 5, unless the court extends the order at a later date.

“By treating lawful same sex marriages differently than it treats lawful opposite sex
marriages,” the judge concluded, Ohio’s 2004 constitutional amendment banning recognition of same-sex couples’ marriages and Ohio’s statute addressing the same issue “likely violate[] the United States Constitution.”

[. . .]

Addressing the constitutional question, Black explained, “Although the law has long recognized that marriage and domestic relations are matters generally left to the states, the restrictions imposed on marriage by states, however, must nonetheless comply with the [U.S.] Constitution.”

To that end, the court examined the Supreme Court’s decision striking down part of the Defense of Marriage Act this June in United States v. Windsor, the 1996 decision in Romer v. Evans, and in other decisions addressing differential treatment found to be unconstitutional under the Constitution’s guarantee of equal protection of the laws.

Looking at Ohio’s bans on recognizing same-sex couples’ out-of-state marriages, while acknowledging its recognition of the marriages of opposite-sex couples who would not be allowed to marry in Ohio, Black concluded, “The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: ‘to impose inequality’ and to make gay citizens unequal under the law.”

In considering the DOMA case and the one from California, the Supreme Court seemed to be leaving most of the questions about marriage to the states, where they have always been. But the rulings were just vague and confusing enough to guarantee lots of other cases. This particular one seems to be almost certain to be headed to the Supreme Court, since it represents the next logical step in the progression we are in. Those of us who hoped for (and even predicted) a useful, state-level debate on the issue (instead of an untimely edict, as in the case of abortion) might have been guilty of a little wishful thinking.