December 23, 2013, was an incredibly busy day on the same-sex marriage legal front.:
In Utah, U.S. District Judge Robert Shelby denied a motion by the state to stay his ruling of a few days before holding that same-sex couples have a federal constitutional right to marry, and the state filed an “emergency” appeal to the U.S. Court of Appeals for the 10th Circuit (their third such motion) seeking a stay pending appeal. Meanwhile, hundreds of same-sex marriages were performed throughout the day in Utah, although a handful of county clerks kept their offices closed to refuse to issue licenses. The 10th Circuit directed that the plaintiffs in the marriage case file a response to the state’s motion by 5 pm Mountain Time on the 23rd.
In Virginia, U.S. District Judge Michael F. Urbanski rejected a motion by Virginia’s registrar of marriages, Janet M. Rainey, and the Staunton County Clerk, Thomas E. Roberts, to dismiss a marriage equality case that had been filed jointly by Lambda Legal and the ACLU LGBT Rights Project, rejecting their arguments that the plaintiffs lacked standing and the dispute was not “ripe” for adjudication. At the same time, Judge Urbanski held that Governor Robert F. McDonnell, who was sued in his official capacity, was immune from suit under the 11th Amendment. Since McDonnell’s term ends shortly, and his elected successor, Democrat Terry McAuliffe, is a marriage-equality supporter, that is just as well.
Finally, in Ohio, U.S. District Judge Timothy S. Black issued an injunction against Ohio officials, mandating that henceforth Ohio death certificates record as married any decedent who had been lawfully married to a same-sex partner in another jurisdiction. Although Black’s order was narrow, the extensive decision he issued to explain it was worded sufficiently broadly to confirm his view that in light of the Supreme Court’s DOMA decision of June 26, same-sex couples have the right to marry.
But Black based his ruling, however, on a narrower theory: the right to remain married. “Once you get married lawfully in one state,” he wrote, “another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution.” Furthermore, he wrote, “by treating lawful same-sex marriages differently than it treats lawful opposite sex marriages ( e.g., marriages of first cousins, marriages of certain minors, and common law marriages), Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s guarantee of equal protection.”
The original plaintiffs in the case before Black were James Obergefell and John Arthur , a same-sex couple who had recently married out-of-state, hoping to tie the knot legally before Arthur, seriously ill with Lou Gehrig’s disease, died, and David Michener, a surviving spouse who had married his partner, William Herbert Ives, just weeks before, only to lose him suddenly and unexpectedly. Judge Black allowed Robert Grunn, gay funeral director, who handled Mr. Arthur’s funeral in October, to join as a plaintiff. Under Ohio law, funeral directors have direct responsibility for accessing the state’s database to submit the facts for death certificates, and must attest to their accuracy, placing Grunn in the position of risking prosecution under state law if he listed as married somebody whose marriage would not be recognized under state law. Judge Block issued preliminary relief during the summer, directing state officials to designate Arthur and Ives as married on their death certificates. The December 23 ruling made that relief permanent and prospective, requiring Ohio officials to list similarly situated decedents on death certificates as married.
In explaining his ruling, Judge Black recounted the many ways that Ohio’s refusal to recognize validly-entered same-sex marriages of its gay citizens imposed substantial injuries and complications. He found that the right to remain married and have one’s state of domicile honor that marriage was a fundamental right, and that at least heightened scrutiny should apply to require the state to prove an important policy reason for refusing to recognize such a marriage when it recognized many other kinds of different-sex marriages contracted out-of-state that could not be contracted within the state. He found that Ohio failed to meet that burden.
“Defendants cite “’Ohioans’ desire to retain the right to define marriage through the democratic process,’ ‘avoiding judicial intrusion upon a historically legislative function,’ ‘Ohio’s interest in approaching social change with deliberation and due care,’ ‘the desire not to alter the definition of marriage without evaluating steps to safeguard the religious rights and beliefs of others,’ and ‘[p]reserving the traditional definition of marriage,’ although they raise these interests in the context of a rational basis equal protection analysis.,” he wrote. “In the intermediate scrutiny context, however, these vague, speculative, and unsubstantiated state interests do not rise anywhere near the level necessary to counterbalance the specific, quantifiable, and particularized injuries evidenced here and suffered by same-sex couples when their existing legal marriages and the attendant protections and benefits are taken from them by the state.”
While he conceded that the Supreme Court in Windsor had acknowledged the traditional interest of states in controlling the institution of marriage, he noted that the Supreme Court had intervened in the past to strike down state marriage provisions that violated federal constitutional rights. That Ohio voters had adopted an anti-gay marriage amendment did not matter, in his view, because federal constitutional rights cannot be abridged by a popular vote.
“The fact that each state has the exclusive power to create marriages within its territory does not logically lead to the conclusion that states can nullify already-established marriages from other co-equal states absent due process of law. Perhaps the interests raised by Defendants may be more compelling in the context of marriage creation than they are in the context of marriages that have already taken place and same-sex relationships that already exist, i.e., marriage recognition.” This recognition that the state’s interests might be different in a more wide-ranging case undoubtedly led Judge Black to frame his order narrowly, rather than broadly ordering Ohio to recognize same-sex marriages contracted elsewhere in all circumstances. But he clearly signaled that the logic of the Windsor ruling led in that direction, quoting (as had Judge Shelby in Utah) Justice Antonin Scalia’s dissenting opinion to that effect.
Having concluded that Ohio’s refusal to recognize these marriages violated the due process clause by abridging a fundamental right without sufficient justification, Black could have ended his decision, but instead, picking up on the themes of his original ruling in July when he granted temporary relief to Obergfell and Arthur, he wrote a lengthy equal protection analysis, reaffirming his earlier conclusion that Ohio’s treatment of same-sex marriages differently from first-cousin marriages, and other marriages that might be contracted in other states violated the equal protection rights of same-sex couples. “Here, in derogation of law,” he wrote, “the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.” This language was drawn from Justice Anthony Kennedy’s Windsor opinion, in which he said that the federal government could not create “two tiers” of couples, recognizing the marriages of one and not the other, without some rational justification, and the Supreme Court found that the state failed this test.
In a footnote, Black referenced Section 2 of the Defense of Marriage Act, which he had not mentioned in his July ruling, only to dismiss its relevance and suggest that after Windsor it probably could not withstand judicial review.
Black extensively considered the appropriate level of judicial review for an equal protection challenge to Ohio’s refusal to recognize same-sex marriages, and concluded that such sexual orientation discrimination met all the requirements for a suspect classification meriting heightened or strict scrutiny, but concluded that the Ohio policy would not even survive rational basis review.
“Because there is no rational connection between Ohio’s marriage recognition bans and the asserted state interests, this Court can conclude that the ban violates equal protection even without considering whether it is motivated by an impermissible purpose,” he wrote. “In this case, however, the lack of any connection between Ohio’s marriage recognition bans and any legitimate state interest also leads to the conclusion that it was passed because of, not in spite of, its burden on same-sex couples.” Citing the Windsor case as his authority on this point, he wrote further, “Even if it were possible to hypothesize regarding a rational connection between Ohio’s marriage recognition bans and some legitimate governmental interest, no hypothetical justification can overcome the clear primary purpose and practical effect of the marriage bans … to disparage and demean the dignity of same-sex couples in the eyes of the State and the wider community. When the primary purpose and effect of a law is to harm an identifiable group, the fact that the law may also incidentally serve some other neutral governmental interest cannot save it from unconstitutionality.”
Finally, Judge Black concluded that granting the injunction would inflict no harm on the state of Ohio or its citizens, while denying it would cause harm to the plaintiffs. For one thing, it would require amending the death certificates of Arthur and Ives and depriving their surviving spouses of the protections and benefits of the law that Ohio extends to surviving spouses. For another, it might require the exhumation of Arthur, since he had expressed the wish to be buried next to his husband, and restrictions on his family’s cemetery plots would exclude Obergfell if the marriage were not legally recognized. And, of course, with the prospective relief sought by Grunn, the funeral director, similar married couples would suffer the same deprivation of rights in the future.
For Black, the conclusion was clear, and he granted the injunctive relief. The Governor and Attorney General of Ohio announced they would appeal the ruling to the U.S. Court of Appeals for the 6th Circuit.Tags: Judge Michael Urbanski, Judge Robert Shelby, Judge Timothy Black, Ohio same-sex marriage, same-sex marriage, Utah same-sex marriage, Virginia same-sex marriage