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Federal Judge Strikes Down Ohio Marriage-Recognition Ban as “Facially Unconstitutional”

Posted on: April 14th, 2014 by Art Leonard No Comments

U.S. District Judge Timothy S. Black, who ruled in December that Ohio’s ban on recognizing same-sex marriages from other states was unconstitutional in connection with recording marital status and surviving spouses on death certificates, today expanded his ruling in the context of a second lawsuit brought by married same-sex couples seeking recognition for purposes of birth certificates. However, Judge Black didn’t restrict his ruling to that issue, instead finding that Ohio’s recognition ban was unconstitutional in all its applications. Judge Black temporarily stayed his ruling to give the plaintiffs time to file a written response to the state’s request that it be stayed pending appeal to the 6th Circuit Court of Appeals, and promised to rule expeditiously on this question, while stating his “inclination” to require his ruling to go into effect for the four plaintiff couples. [Additionally noted: On April 16, Judge Black issued an order, granting the state’s motion for a stay, except for the four plaintiff couples, as to whom he directed that the state issue birth certificates for their children showing both spouses as parents.]

The plaintiffs, four same-sex couples represented by Alphonse Gerhardstein, Jacklyn Gonzales Martin and Jennifer Lynn Branch of Gerhardstein & Branch Co. LPA, were all married in other states. The three lesbian couples are Ohio residents, and each couple is expecting a child to be born in the next few months, conceived through donor insemination. For purposes of birth certificates, they want these births to be treated the same way Ohio treats other births to married couples where the wife becomes pregnant through donor insemination. In such cases, Ohio issues a birth certificate identifying the mother’s spouse as the child’s other legal parent, but the state’s Health Department, under the direction of named defendant Lance Himes, refuses such equal treatment, claiming that the state’s Marriage Amendment and marriage-recognition statutes prevent it. The fourth couple, two gay men in New York who adopted an Ohio-born child, want Ohio to follow its statutory procedure for issuing new birth certificates for children adopted in other states, which requires recording the names of both parents on the birth certificate. In this case, the men jointly adopted the child in a New York proceeding, and ask that Ohio recognize that adoption and their parental status.

Judge Black pointed out that Ohio used to follow the procedure requested by the male couple, Joseph Vitale and Robert Talmas. However, when the current Republican administration took office in January 2011, Governor Bill Kashich and Attorney General Mike DeWine ordered that the Health Department cease recognizing out-of-state same-sex marriages for this limited purposes, even though the same-sex couple and their child reside out of state and all that Ohio was being asked to do was to issue a substitute birth certificate for the child.

Unsurprisingly, Judge Black found that nothing has happened since his December decision to change his legal analysis. Indeed, he noted on the second page of his decision “ten out of ten federal rulings since the Supreme Court’s holding in United States v. Windsor — all declaring unconstitutional and enjoining similar bans in states across the country.” Furthermore, he wrote, “The pressing and clear nature of the ongoing constitutional violations embodied by these kinds of state laws is evidence by the fact that the Attorney General of the United States and eight state attorneys general have refused to defend provisions similar to Ohio’s marriage recognition bans.”

This led Judge Black to a sweeping conclusion: “This court’s analysis in [its December ruling] controls here, and compels not only the conclusion that the marriage recognition ban is unenforceable in the birth certificate context, but that it is facially unconstitutional and unenforceable in any context whatsoever.” Judge Black’s opinion is written in emphatic terms, and to drive home his key points, he issued a slip opinion where those points are in bold, underlined type.

He rooted his ruling in prior decisions by the United States Supreme Court, and seemed at times to be responding as much to arguments being raised by marriage equality opponents in lawsuits from other states as to the argument raised by Ohio’s attorneys. For example, quoting from a 1990 U.S. Supreme Court ruling, Hodgson v. Minnesota, “the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicted on legitimate state concerns other than disagreement with the choice the individual has made,” or, referring to several Supreme Court decisions, he wrote that “the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right.” He concluded that “the right to marriage is a fundamental right that is denied to same-sex couples in Ohio by the marriage recognition bans.” He found that denial of this right also affected another fundamental right, the right to parental authority. “U. S. Supreme Court rulings, reflected in state laws, make clear that these parental rights are fundamental and may be curtailed only under exceptional circumstances,” he wrote.

While cases involving state abridgement of fundamental rights are usually analyzed using the “strict scrutiny” test, under which the challenged statute is presumed unconstitutional and the state has the burden of showing that the statute is necessary to achieve a legitimate and compelling state interest, Judge Black decided to treat this as a heightened scrutiny case, using a balancing approach between the interests of the plaintiffs and the state. He described the many burdens that denial of recognition places on married same-sex couples — and particularly those raising children, as in this case — and found that the Supreme Court’s decision last June in U.S. v. Windsor addresses the issue directly. In that case, Justice Anthony M. Kennedy described same-sex marriages being denied recognition under federal law as “second-tier” marriages, and wrote, “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,” and that “it humiliates tens of thousands of children now being raised by same-sex couples,” a point that Judge Black emphasized with underscored bold print.

By contrast, he found that the interests that counsel for Ohio had identified just did not measure up. He particularly dismissed the idea that Ohio’s marriage ban enjoyed some sort of special legitimacy because it was enacted as a constitutional amendment by the voters. “In particular,” he wrote, “the Court notes that given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious.” He also responded to the state’s argument that the Supreme Court in Windsor had recognized that regulation of domestic relations in the U.S. has traditionally been an exclusive function of the states by pointing out that such state regulation is “subject to constitutional guarantees.”

Thus, he found, the state’s refusal to recognize same-sex marriages performed elsewhere “violates the substantive due process rights of the parties to those marriages because it deprives them of their rights to marry, to remain married, and to effectively parent their children, absent a sufficient articulated state interest for doing so.”

Judge Black also found an equal protection violation. He pointed out that 6th Circuit equal protection precedents involving gay litigants pre-dated the Windsor decision, which required deciding anew whether sexual orientation discrimination should invoke heightened scrutiny. Referring back to his earlier decision, he found that heightened scrutiny was the correct approach, noting in passing the 9th Circuit’s conclusion on this point in its jury selection ruling in January. “Here,” he wrote, “Defendants’ discriminatory conduct most directly affects the children of same-sex couples, subjecting these children to harms spared the children of opposite-sex married parents. Ohio refuses to give legal recognition to both parents of these children, based on the State’s disapproval of their same-sex relationships.” But this clearly runs afoul of another well-established Supreme Court precedent, Plyler v. Doe, for the proposition that “disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause.” And, he found, the state had no rational basis for imposing such a discriminatory policy, much less an important policy reason that would be sufficient to withstand heightened scrutiny.

In a lengthy textual footnote, Judge Black also noted that Ohio’s refusal to issue an appropriate new birth certificate to the New York couple who had adopted an Ohio child could be held to violate the Constitution’s Full Faith and Credit Clause. An adoption order is a judicial order that is entitled to full faith and credit, and Judge Black identified as an outlier the 5th Circuit ruling in a Louisiana case suggesting that a federal court could not order a state to issue such a birth certificate.

Ohio has already appealed Black’s earlier ruling, Obergefell v. Wymyslo, to the 6th Circuit, and Governor Kasich and Attorney General DeWine have already announced that they will appeal this ruling as well, so the immediately pressing question is whether Black will stay his ruling. In a footnote at the end of his opinion, he wrote that he is “inclined” to stay the ruling on facial unconstitutionality, which would be consistent with what other federal trial judges have been doing since the Supreme Court stayed the order in the Utah marriage case. However, noting the “imminent births of their children and other time-sensitive concerns,” he was also inclined not to stay the order as it applied to the four plaintiff couples in the case. He promised to rule promptly after receiving final briefing from the parties on the stay issue. [On April 16, he followed his inclinations, as noted above, staying the ruling pending appeal except as to the four plaintiff couples, for whom the Order goes into effect. One hopes that the Ohio government defendants will have the good sense not to appeal this order.]

Monday Trifecta: Three significant same-sex marriage rulings on December 23, 2013

Posted on: December 23rd, 2013 by Art Leonard No Comments


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.