The Ohio gay marriage ban amendment will be struck down according to Federal District Court Judge Timothy Black, who has been hearing arguments about a voter-endorsed amendment n that denied recognition for gay marriages performed in other states. Judge Black has already indicated that he will issue a ruling on April 14 that will bar Ohio officials from refusing to recognize the legality of gay marriages performed in other states.
Judge Black’s ruling strikes down only the part of Ohio gay marriage ban that affects recognition of gay marriages performed in other states on the basis of the equal protection clause of the 14th Amendment to the Constitution, which guarantees equal treatment for couples married in other states as if they were legally married in Ohio. The ruling does not, however, grant gay couples the right to marry in Ohio.
In controversial cases in which the state is the defendant, and the ruling may affect the way business is conducted in the state, justices often give early warnings to the state’s attorneys so that they can prepare a motion to stay the ruling pending appeal. By implication, Judge Black is saying that he thinks he is on firm legal ground, but wants the state to have another day in court to challenge his ruling. This prevents the see-saw effect that sometimes occurs when reversals change government policy back and forth several times over a short period of time.
The case currently before the court requests that the court strike down the section of the Ohio gay marriage ban approved by Ohio voters in 2004 which required Ohio officials to refuse to list gay spouses as the parents on the birth certificates for their children.
Black’s ruling follows a December 2013 ruling in which he upheld a suit by the surviving partners of recently deceased spouses to have themselves listed on as spouses on their partners’ death certificates. Certification as a marital partner on a death certificate is significant in terms of the disposition of the remains and the distribution of the decedent’s estate. Ohio officials had refused to issue death certificates listing the gay men as the spouses of the deceased. Black ruling enabled James Obergefell to bury his late partner of 20 years, John Allen, in a family plot in an Ohio cemetery that only allows spouses and descendants to be buried there. Allen and Obergefell had flown to Maryland to be married there shortly before Allen passed away from Lou Gehrig’s disease.
In all of the cases under consideration, the marriages in question were performed in other states, 14 of which now explicitly recognize gay marriage. Under the Constitution, states must recognize as valid all contracts entered into in other states. That includes articles of incorporation, wedding licenses, marriage certificates, birth certificates and death certificates. In effect, then, all legally binding contracts solemnized in any state are considered binding in all other states. The equal protection clause comes into effect because Ohio was refusing to recognize legally sanctioned marriages – a type of legal contract – endorsed by other states when the parties to those marriages were gay while recognising the marital contracts for heterosexual couples.
The judge in the case, Timothy Black, a Democrat, was appointed United States District Judge for the Southern District of Ohio in 2009 by President Barack Obama and was sworn into office in June of 2o12. His rulings on gay marriage have outraged Ohio lawmakers, with State Representative John Becker, of Union Township, calling upon Ohio Republican Congressman Brad Wenstrup to initiate impeachment proceedings against Judge Black on the grounds of “malfeasance and abuse of power.”
Impeachment of a federal judge is no laughing matter. Since 1797, only eight judges have been removed from the federal bench. Three more have resigned while facing impeachment proceedings. Federal judgeships are lifetime appointments. There is no maximum age for a sitting federal judge. Those calling for impeachment claim that Black’s ruling has violated Ohio’s constitution, while Judge Black has explicitly stated that Ohio’s constitution, itself, is in violation of the U.S. Constitution. As a federal judge, Black is sworn to protect and defend the Constitution of the United States, but he is not sworn to uphold the Ohio State Constitution, nor is any other federal magistrate sworn to uphold a state constitution when it violates federal law.
The Ohio gay marriage ban itself still remains in effect, with the result that, while legally married gay couples who have been married in other states may finally achieve full recognition, gay couples living in Ohio will continue to be denied equal rights beginning with the right to get hitched there.
By Alan M. Milner
Follow me on Twitter: @alanmilner