A federal judge did not overturn Ohio’s constitutional ban on gay
marriage, but he said the state has to treat same-sex couples married
legally in other states the same way it treats heterosexual couples.
By Warren Richey
A federal judge has ordered Ohio officials to give full legal
recognition to same-sex marriages performed in other states.
U.S. District Judge Timothy Black ruled on Monday that Ohio
prohibition on recognizing same-sex marriages from other states were
unconstitutional and unenforceable.
The decision does not strike down the state’s 2004 voter-approved
constitutional ban on same-sex marriage, but it lops off a significant
portion of the state’s regulation of marriage.
The decision requires state officials to grant the same privileges and
benefits enjoyed by opposite-sex spouses in Ohio to same-sex couples
who were legally married out-of-state.
“The record before this court… is staggeringly devoid of any
legitimate justification for the State’s ongoing arbitrary
discrimination on the basis of sexual orientation,” the judge wrote in
a 40-page decision.
The content of the decision was no surprise. The Cincinnati-based
judge had announced two weeks ago that he would rule against the Ohio
same-sex marriage statute.
Nonetheless, Judge Black’s decision marks an important addition to a
growing number of lower court rulings rejecting state efforts to
uphold and protect the traditional definition of marriage as a union
of one man and one woman.
Same-sex marriage is recognized in 17 states and the District of
Columbia. Thirty-three states have banned gay marriage either by
passing a statute or enacting a constitutional amendment.
In recent months, federal judges have struck down same-sex marriage
bans in five states — Utah, Oklahoma, Texas, Virginia, and Michigan.
Those cases are either under appeal or are about to be appealed.
Black said he would stay enforcement of his order for at least a day
until lawyers in the case could file briefs arguing whether a stay is
Lawyers for the state are expected to urge the court to delay its
enforcement of the decision to allow completion of expected appeals to
the Sixth U.S. Circuit Court of Appeals in Cincinnati and, perhaps, to
the U.S. Supreme Court.
Black said he was inclined to allow his ruling to take effect for the
four same-sex couples who filed the initial lawsuit.
The context of the Ohio case is somewhat different than litigation in
other states mounting outright challenges to same-sex marriage bans.
The lawsuit challenging the Ohio same-sex marriage restrictions was
filed by four same-sex married couples seeking to have both their
names included on birth certificates issued by Ohio authorities.
Three of the plaintiffs are lesbian couples who have been legally
married in states that support such unions. They relied on anonymous,
artificial insemination in each case to conceive the child. The birth
mothers in all three couples are due to give birth this June.
Ohio officials are willing to list the birth mother on the birth
certificate, but have declined to include the other same-sex spouse as
a parent, because the state does not recognize the marriages as legal.
The fourth couple is comprised of two men legally married in New York.
They adopted a child from Ohio. They want both their names listed on
the Ohio birth certificate as the child’s parents.
Ohio performs that service for adoptive parents in other states who
are heterosexual couples. But it refused to issue a certificate to the
“There is a growing national judicial consensus that state marriage
laws treating heterosexual and same-sex couples differently violate
the Fourteenth Amendment, and it is this Court’s responsibility to act
decisively to protect rights secured by the United States
Constitution,” Black wrote in his decision.
Black, an appointee of President Obama, had faced a similar issue in a
case last year dealing with the listing of a same-sex spouse on a
The judge ordered Ohio officials to record the name of the spouse on
the state-issued death certificate. Officials had declined to do so.
The judge ruled that the state’s refusal violated the surviving
spouse’s constitutional right to not be deprived of one’s
already-existing legal marriage and its associated benefits and
In ruling for the couples Monday, Black said it was clear that Ohio
lawmakers and voters who supported the same-sex marriage ban had acted
“with discriminatory animus and without a single legitimate
“Ohio’s marriage recognition ban embodies an unequivocal, purposeful,
and explicitly discriminatory classification, singling out same-sex
couples alone, for disrespect of their out-of-state marriages and
denial of their fundamental liberties,” he wrote.
The judge said the state’s action relegated lesbian and gay married
couples to “a second-class status in which only their marriages are
deemed void in Ohio.”
Lawyers for the state had argued that Ohio’s same-sex marriage ban was
justified as a legitimate effort by the state to preserve the
traditional definition of marriage without regard to decisions made by
They said judges should respect decisions made by lawmakers and
referendum results that represent the declared will of the people of
Ohio. They argued that democratic mechanisms in the state were able to
encounter and embrace social change in a deliberate and careful way.
Black was not impressed. “Repeated appeal to the purportedly sacred
nature of the will of Ohio voters is particularly specious,” he said.
“These vague, speculative, and/or unsubstantiated state interests rise
nowhere near the level necessary to counterbalance the specific,
quantifiable, particularized injuries… suffered by same-sex
couples,” Black said.
The judge noted that the state’s refusal to act on the birth
certificate requests subjected children of same-sex couples to a
variety of harms that children of opposite-sex couples will never
“The Supreme Court has long held that disparate treatment of children
based on disapproval of their parents’ status or conduct violates the
Equal Protection Clause,” Black wrote.
Children in families of same-sex couples could not be “denied the
right to two legal parents, reflected on their birth certificates and
given legal respect, without sufficient justification.” The judge
noted, “No such justification exists.”
Evan Wolfson, president of the gay rights group Freedom to Marry
praised Black’s decision.
“Couples who are married should be treated as married no matter where
they are in the country, including Ohio,” he said. “Couples should not
have to play ‘now you’re married, now you’re not’ as they travel,
work, move, or return home.”
The case is Henry v. Himes (14cv129).