Obergfell v. Wymyslo: Ohio Must Recognize Same-Sex Marriages From Other States

Judge Timothy S. Black, a federal district court judge for the Southern District of Ohio, has issued a ruling in Obergfell v. Wymyslo ordering the State of Ohio to recognize same-sex marriages that were lawfully entered into in other states. Like last week's district court decision in Utah, the judge based his ruling on the Supreme Court's decision in United States v. Windsor which ordered the federal government to recognize the validity of same-sex marriages entered into in the states that allow them.


In 2004 the people of the State of Ohio adopted Ohio Issue 1, an amendment to the Ohio Constitution which provided that Ohio would refuse to recognize the validity of same-sex marriages even if they were valid in the state where the marriage was performed. Ohio Issue 1 provided:

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

Judge Black based his decision on both the Due Process Clause and the Equal Protection Clause of the Constitution; he found that the Ohio law infringes on a fundamental right ("the right not to be deprived of one's already-existing legal marriage" (p. 5)) and unfairly discriminates against married gay and lesbian couples. He stated:

That is, once you get married lawfully in one state, 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. U.S. Constitution amend. XIV, sec. 1.

Moreover, as this Court held in its initial Orders this summer and reaffirms today, 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: that “No State shall make or enforce any law which shall ... deny to any person within its jurisdiction equal protection of the laws.” 

U.S. Constitution amend. XIV, sec. 1.

Therefore, under the Constitution of the United States, Ohio must recognize on Ohio death certificates valid same-sex marriages from other states. (p. 1)

Like the district court judge in Utah who issued a broader ruling stating that the states must not only recognize but must permit same-sex couples to marry within the state, Judge Black based his ruling on the Supreme Court's decision in United States v. Windsor -- both the majority opinion by Justice Kennedy and the dissenting opinion of Justice Scalia. Judge Black stated:

 This conclusion flows from the Windsor decision of the United States Supreme Court this past summer, which held that the federal government cannot refuse to recognize a valid same-sex marriage. And now it is just as Justice Scalia predicted ¹—the lower courts are applying the Supreme Court's decision, as they must, and the question is presented whether a state can do what the federal government cannot— i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004). Under the Constitution of the United States, the answer is no, as follows. (p. 1)

 There are a number of significant aspects to Judge Black's reasoning, including the following:

1. Judge Black noted that "the general rule" in the United States was for states to recognize as valid the marriages from other states, even though such marriages would not have been permitted to be solemnized in Ohio. For example, marriages between first cousins, marriages where one or both of the parties was underage, and common law marriages that were lawfully entered into in other states were always recognized as valid in the State of Ohio. With the adoption of Ohio Issue 1 and statutes to the same effect, the State of Ohio "departed from this tradition." (p. 2)

2. Judge Black found that the anti-gay marriage campaign that was waged in Ohio in 2004 was misleading and treated homosexuality as a "danger." Here is how Judge Black described the activities of CCV, the principal sponsor of Ohio Issue 1:

The primary sponsor for the 2004 Ohio constitutional amendment, Citizens for Community Values (“CCV”), described as its core principle its goal to protect Ohio from the “inherent dangers of the homosexual activists' agenda.”

CCV sent letters to school boards and superintendents in Ohio warning them, erroneously, that they would face criminal and “daunting” civil liability if they took measures to protect lesbian and gay students from violence and harassment. In one of CCV's campaign publications, the organization misled Ohio voters about the need for the amendment, stating that marriage equality advocates sought to eliminate age requirements for marriage, advocated polygamy, and sought elimination of kinship limitations so that incestuous marriages could occur. CCV warned Ohio employers that “[s]exual relationships between members of the same sex expose gays, lesbians and bisexuals to extreme risks of sexually transmitted diseases, physical injuries, mental disorders and even a shortened life span.” The television and media campaign in support of the amendment contained misleading statements, such as “[w]e won't have a future unless [heterosexual] moms and dads have children,” and that “[e]very major social science study tells us time and again: families are stronger with a wife and a husband; children do better with a mother and a father.” (p. 3)

[Op. - My memory of the 2004 election season in Ohio was that it was one long vicious attack on gays and lesbians. The Republican Party consciously exploited fear and generated hatred in order to gain political advantage in this critical swing state.]

3. Unlike the District Court in Utah, Judge Black did not find that same-sex couples have a constitutional right to marry under the Due Process Clause; instead, he issued a narrower ruling stating that they have a fundamental right not to be deprived of an already existing legal marriage. (p. 5). In the striking down the Ohio laws under Equal Protection, Judge Black applied "intermediate scrutiny" standard,. (p. 6) Judge Black found that gay and lesbian couples meet all four of the criteria to qualify as a "suspect class": they have been historically discriminated against, they are equally able to contribute to society, they lack political power sufficient to protect their own rights through the democratic process, and the trait that distinguishes them is relatively immutable. (pp. 14-18)

4. The specific factual context of this case were claims by surviving spouses to be listed as spouses on their partners' death certificates, and the defendants in the case consist only of state and local public officials who responsible for death certificates. Accordingly, the injunction issued by the court applies only to those parties and that specific legal right. However, by declaring Ohio Issue 1 and accompanying statutes to be unconstitutional, the judge's ruling extends to all benefits that married couples are entitled to under Ohio law. In the following passage Judge Black gives some examples of legal rights that the State of Ohio currently withholds from same-sex couples:

Couples moving from state to state have an expectation that their marriage and, more concretely, the property interests involved with it—including bank accounts, inheritance rights, property, and other rights and benefits associated with marriage—will follow them. When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. After Lawrence, same-sex relationships fall squarely within this sphere, and when it comes to same-sex couples, a state may not “seek to control a personal relationship,” “define the meaning of the relationship,” or “set its boundaries absent injury to a person or abuse of an institution the law protects.” Lawrence, 539 U.S at 578.

For example, when a parent's legal relationship to her child is terminated by the state, it must present clear and convincing evidence supporting its action to overcome the burden of its loss. Here, in this case, a similar legal familial relationship is unilaterally terminated by Ohio's marriage recognition bans, without any due process. (p. 7)

Judge Black observed that under Ohio law same-sex spouses were denied inheritance rights, parental rights extended to step-parents, local and state tax benefits, and access to entitlement programs; were barred by hospital staff from their partners' bedsides; were not entitled to sue for wrongful death or loss of consortium; and were evicted from their homes following a spouse's death.

5. The State of Ohio contended that the court should respect the democratic process and should uphold the restrictions on same-sex couples. Like several other recent judicial opinions involving the constitutionality of laws denying same-sex couples equal rights, in his opinion Judge Black quoted the memorable words of Justice Robert Jackson from his decision in West Virginia State Board of Education v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

6. As in Windsor and the District Court decisions in New Mexico and Utah, Judge Black found that the Ohio laws refusing to recognize same-sex marriages from other states did not even pass the rational basis test. (p. 18) The State of Ohio asserted the following interests, and the District Court found that each of these was either not a legitimate governmental interest or was not served to any appreciable degree by the Ohio law:

   a. Tradition: The State of Ohio claimed that Ohio Issue 1 and corresponding statutes were defending the institution of marriage as it was traditionally understood. Judge Black stated:

To survive rational basis scrutiny, the marriage recognition bans must be justified by some legitimate state interest other than simply maintaining a “traditional” definition of marriage.

   b. Parenting: The State of Ohio argued that children were best off if they were raised by a mother and a father. In footnote 20 of his opinion Judge Black unequivocally rejected this idea, instead adopting the conclusions of psychologists and social scientists who have found that gay and lesbian couples are just as good parents as heterosexual couples:

The overwhelming scientific consensus, based on decades of peer-reviewed scientific research, shows unequivocally that children raised by same-sex couples are just as well adjusted as those raised by heterosexual couples. (Doc. 43–1 at ¶¶ 18–19) (“[i]n ... widely variable studies, the same findings continue to emerge: children reared by lesbian and gay parents are doing as well as children raised by heterosexual parents”). The American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the American Academy of Family Physicians (among others) have all released statements in support of gay and lesbian parents and their ability and rights to rear children. ( Id. at ¶ 16). This consensus has also been recognized by numerous courts. See Perry, 704 F. Supp.2d at 980 (finding that the research supporting the conclusion that “[c]hildren raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted” is “accepted beyond serious debate in the field of developmental psychology”); In re Adoption of Roe, 2008 WL 5006172 at 20 (Fla. Cir. Ct. Nov. 25 2008) (“[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption”); Howard v. Child Welfare Agency Rev. Bd., Nos. 1999-9881, 2004 WL 3154530, at 9 and 2004 WL 3200916, at 3-4 (Ark. Cir. Ct. Dec. 29, 2004) based on factual findings regarding the wellbeing of children of gay parents that “there was no rational relationship between the [exclusion of gay people as foster parents] and the health, safety, and welfare of the foster children”), aff'd sub nom. Dept. of Human Servs v. Howard, 367 Ar, 55, 238 S.W.3d 1 (Ark. 2006); Varnum, 763 N.W. 2d at 899 n. 26 (concluding, after reviewing “an abundance of evidence and research,” that “opinions that dual-gender parenting is the optimal environment for children ... is based more on stereotype than anything else”); Golinski, 824 F.Supp..2d at 991 (“ More than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated that children raised by same-sex parents are as likely to be emotionally healthy, and educationally and socially successful as those raised by opposite-sex parents ”). (p. 20)

7. As in Windsor, Judge Black concluded that the Ohio law found that the principal purpose and effect of the Ohio law was to harm same-sex couples and demean their relationships. He stated:

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. (p. 21)

As a practical matter, this ruling means that same-sex couples who were lawfully married in other states must now be treated as married couples by the State of Ohio. No doubt the State will appeal this decision to the Sixth Circuit Court of Appeals.