Federal Ruling Could Lead To Challenge Of State's Same-Sex Marriage Ban

Dec 23, 2013

A federal judge in Cincinnati today ordered state officials to recognize same-sex marriages on death certificates, saying the state's ban on such unions is unconstitutional.

The case before Judge Timothy Black was brought on behalf of two same-sex couples who were legally married in other states, and sued the state to have that marital status reflected on the death certificates. Cincinnati attorney Alphonse Gerhardstein argued the case for the plaintiffs. He says that todays ruling was limited in scope, but paves the way for further litigation challenging the state's gay marriage ban passed by voters in 2004.

AG:  Well, the plaintiffs that were in front of Judge Black, their problem was the lack of recognition on death certificates, so that's the extent of that ruling.  But in order to get to that ruling, you needed to decide whether marriage is fundamental - and it is.  And you needed to decide whether the denial of recognition of same-sex marriage violates the equal protection clause - and it does.  And by making those rulings, he's opening the door to a broad range of equality arguments,  and we're gonna go make 'em.

AH:  In recent polls that have come out, there seems to be a change in voters perspective on same-sex marriage and marriage equality since the constitutional amendment.  Does the changing climate of public opinion on these rulings?

AG: the changing public climate probably doesn't have an impact on these rulings.  But I'm hopeful that these rulings have an impact on these changing public climate.  Because what we get when a judge looks at something so thoroughly is a detailed analysis of our fundamental principals as applied to this issue.  And that should help inform the public as to what the constitution requires if we're going to treat all people fairly.  Judge Black has said that marriage is fundamental.  He said that marriage has to be regulated consistently with equal protection.  And hopefully the public will read that, see that, and it will influence public opinion in a way that will make marriage equal for everyone.

AH:  Does changing the ban in Ohio come from voters?  Or the courts?

AG: Well, that's a good question.  And it could come from the court.    But our hope is that as the public sees the trend, and as these opinions get fully aired, the public itself will say: 'you know what?  We want to change things.'  I need only to point you to Cincinnati.  We had a charter amendment  in Cincinnati that denied to gay people their right to secure laws that would protect them from discrimination, and that was passed in 1993.  And ultimately it was the voters that turned it around and repealed it in 2004.  I'm hopeful that now, 10 years after the Ohio laws prohuibitingsame-sex marriage were put into our constitution that it will be the voters that will ultimately repeal all of it.

Making the case for the state before Judge Black last week, attorney Bridget Coontz noted that the US Supreme court this summer found that states have the right to decide for themselves whether to recognize gay marriage, and Ohio voters decided not to in 2004. Ohio's attorney general says the state will appeal the judge's ruling ordering recognition of gay marriages on death certificates. Attorney General Mike DeWine says Judge Black's decision wasn't a surprise, given the Cincinnati-based judge's earlier rulings in the case. DeWine says the state will ask the 6th U.S. Circuit Court of Appeals to overturn it.