US Court Says Ohio Recognition Ban Unconstitutional on its Face
BY ARTHUR S. LEONARD | Having ruled in December that Ohio’s ban on recognizing same-sex marriages from other states was unconstitutional in the narrow context of recording marital status and surviving spouses on death certificates, a federal district court judge has expanded his ruling in response to a second lawsuit brought by married same-sex couples seeking recognition for purposes of their children’s birth certificates.
In an April 14 ruling, however, Judge Timothy S. Black didn’t restrict his ruling to that issue alone, instead finding that Ohio’s recognition ban was unconstitutional in all its applications.
Black temporarily stayed his ruling to give the four plaintiff couples time to file a response to the state’s request that his ruling be stayed through the duration of its appeal to the Sixth Circuit Court of Appeals. He promised to rule expeditiously on this question and stated his “inclination” to require his ruling to go into effect for the four plaintiff couples even while Ohio appeals.
Editor’s note: On April 16, Black issued a stay of his order as it generally applies to marriage recognition in Ohio, but not as applied to the four plaintiff couples. The judge wrote, “While this Court believes that [the state] is unlikely to prevail on the merits of [its] appeal and will not be irreparably harmed by compliance with the requirements of the United States Constitution, the Court acknowledges that recognition of same-sex marriages is a hotly contested issue in the contemporary legal landscape, and, if [the state’s] appeal is ultimately successful, the absence of a stay as to this Court’s ruling of facial unconstitutionality is likely to lead to confusion, potential inequity, and high costs.” The four plaintiff couples, however, “have demonstrated that a stay will irreparably harm them individually due to the imminent births of their children and other time-sensitive concerns,” Black wrote. As a result, he did not stay his order as it applied to them .]
Federal district judge broadens ruling in birth certificate case to all couples married out of state
The plaintiffs, four same-sex couples represented by Alphonse Gerhardstein, Jacklyn Gonzales Martin, and Jennifer Lynn Branch of the Gerhardstein & Branch law firm, were all married in other states. Three lesbian couples are Ohio residents, and each is expecting a child in the next few months, conceived through donor insemination. The couples 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, the state issues a birth certificate identifying the mother’s spouse as the child’s other legal parent. The state Health Department, however, refuses equal treatment for same-sex spouses, claiming the state’s Marriage Amendment and its marriage recognition laws prevent it.
Joseph Vitale and Robert Talmas, the fourth couple, who live in Manhattan, are married, and adopted an Ohio-born infant boy, 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 are asking that Ohio recognize that adoption and their parental status on the boy’s birth certificate.
Black pointed out that Ohio used to follow the procedure requested by Vitale and Talmas. However, when the current Republican administration took office in January 2011, Governor Bill Kasich and Attorney General Mike DeWine ordered the Health Department to stop recognizing out-of-state same-sex marriages for this purpose, even though such couples and their children reside out of state and Ohio was merely being asked to issue substitute birth certificates.
Unsurprisingly, Black found that nothing has happened since his December decision to change his legal analysis. In fact, he noted that “ten out of ten federal rulings” since last summer’s Supreme Court Defense of Marriage Act decision have struck down similar bans.
For Black, the conclusion was clear and sweeping and his opinion was written in emphatic terms: “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.”
At times, Black’s opinion seemed to be responding as much to arguments raised by marriage equality opponents in lawsuits from other states as to the those made by Ohio’s attorneys. Quoting from a 1990 Supreme Court ruling on abortion, he wrote, “The regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.” And, referring to several other Supreme Court decisions, he wrote, “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.
“US 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.
Cases involving state abridgement of fundamental rights are typically analyzed using a “strict scrutiny” test –– the most searching form of review under which a challenged statute is presumed unconstitutional and the state has the burden of showing it is necessary to achieve a legitimate and compelling state interest. Black, however, employed a less stringent form of review –– more favorable to Ohio’s case –– using heightened scrutiny, which balances the interests of the plaintiffs and the state.
He found that the high court’s DOMA ruling directly addresses the many burdens that denying marriage recognition places on same-sex couples — and particularly those raising children. In the DOMA majority opinion, Justice Anthony M. Kennedy described same-sex marriages denied federal recognition as “second-tier” marriages, and wrote, “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,” finding also that “it humiliates tens of thousands of children now being raised by same-sex couples,” a point Black emphasized with underscored bold print.
By contrast, he found that the interests identified by Ohio’s attorneys simply did not measure up. He was particularly dismissive of the notion that Ohio’s marriage ban was sacrosanct because voters enacted it in a constitutional referendum.
“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 wrote.
And, in response to Ohio’s argument that the Supreme Court DOMA ruling recognized that regulation of domestic relations in the US has traditionally been an exclusive function of the states, he noted that such state regulation is “subject to constitutional guarantees.”
Ohio’s refusal to recognize legal same-sex marriages, he concluded, “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.”
Black also found an equal protection violation. Noting that the ban on recognition “most directly affects the children of same-sex couples, subjecting these children to harms spared the children of opposite-sex married parents,” he pointed to Supreme Court precedent that “disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause.” The state, Black found, could not even provide a rational basis for this discrimination, much less meet the heightened scrutiny standard he concluded is appropriate to apply in the wake of last year’s DOMA decision.
In a footnote, Black noted that because an adoption procedure results in a judicial order subject to the Constitution’s Full Faith and Credit Clause (unlike a marriage), denying the relief New Yorkers Vitale and Talmas sought could also be held to violate that constitutional guarantee.
The State of Ohio is already appealing Black’s December ruling in the death certificate case to the Sixth Circuit, and Kasich and DeWine immediately announced they will appeal this decision as well. Noting that the Supreme Court ordered a stay on the December Utah marriage equality ruling after the district court and the 10th Circuit declined to do so, Black indicated he was “inclined” to stay his ruling on the facial unconstitutionality of the recognition ban as broadly applied. [See editor’s note above.]
However, given the “imminent births of their children and other time-sensitive concerns” facing the four plaintiff couples, he was not “inclined” to stay his ruling as it applies specifically to them.