By Sarah Clay Leyshock
In 2004, Ohio amended its constitution to prohibit the creation or recognition of same sex marriages by the State of Ohio. But last month, in June of 2013, the highest court in our country in United States v. Windsor found there is no legitimate purpose served by a state refusing to recognize same sex marriage celebrated in states where they are legal. Then, earlier this month, on July 22, 2013, the United Stated District Court for the Southern District of Ohio declared in Obergefell v. Kasich that “discriminating against lawful, out-of-state same sex marriages” has no legitimate purpose.
The Plaintiffs in Obergefell v. Kasich are a same sex couple of twenty years and Cincinnati residents, James Obergefell and John Arthur. The two were legally married on July 11, 2013 in the state Maryland, which recognizes same sex marriage. Arthur, who is currently in hospice and dying of amyotrophic lateral sclerosis, is certain to die soon. Before his death, the couple wanted a court order requiring the local Registrar of Ohio death certificates to record Arthur as “married” and Obergefell as his “surviving spouse.” The couple got their wish.
Judge Timothy S. Black, writing for the district court, declared that “by treating lawful same sex marriages differently than it treats lawful opposite sex marriages . . . Ohio law, as applied to these Plaintiffs, likely violates” the Fourth Amendment to the United States Constitution. The Fourth Amendment guarantees that “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction equal protection of the laws.”
For over a hundred years, Ohio has recognized out-of-state marriages between first cousins and minors, despite Ohio’s refusal to authorize such marriages, because those marriages were valid in the state where the marriage was registered. The same could not be said of same sex marriages, until Obergefell.
Justice Black also pointed out that “there was no evidence in the record” that granting the Plaintiff’s order would “cause substantial harm to the public.” The court ordered the local Registrar of Ohio to only accept a death certificate for Arthur that records his status as “married,” and Obergefell as Arthur’s “surviving spouse.”
While this decision requires Ohio to recognize the out-of-state marriage of Arthur and Obergefell, the Ohio Constitution remains a barrier for other same sex married couples seeking to have their marriage recognized by Ohio domestic relations and probate courts. And, the Ohio attorney general has indicated that the state will appeal this decision. After that appeal to the First District Court of Appeals, either side could potentially appeal to the Ohio Supreme Court. The appeals process could take years. So, while the Obergefell case is a great victory on one hand, it is clear that the road to equal rights for all same sex couples in Ohio must be paved with additional, substantial legal and legislative action.