Amanda Lee Myers
CINCINNATI: A federal judge’s ruling ordering Ohio authorities to recognize gay marriages on death certificates has added momentum to hopes of overturning the state’s ban on same-sex marriage and already is raising the divisive issue’s profile ahead of the 2014 state elections.
It didn’t take long for political types to weigh in on Judge Timothy Black’s ruling Monday that said Ohio’s gay marriage ban is unconstitutional and designed primarily “to disparage and demean the dignity of same-sex couples in the eyes of the state and the wider community.”
Black stopped short of striking down the ban altogether, a move the judiciary has made in other states, but predicted that his ruling would spark further litigation aimed at striking down the state’s ban on gay marriage.
“In the real world out there, the stakes are larger,” he said last week during oral arguments in his Cincinnati courtroom.
Although Black’s ruling applies only to recognizing gay marriage on Ohio death certificates, he wrote in broad and unequivocal terms that “once you get married lawfully in one state, another state cannot summarily take your marriage away.”
Ohio Attorney General Mike DeWine said the state will appeal Black’s ruling to the 6th U.S. Circuit Court of Appeals in Cincinnati, saying the state’s “job is to defend the Ohio Constitution and state statutes.”
Harvard Law School professor Mark Tushnet said “the metaphor of dominoes falling is occurring,” referring to a spate of recent rulings in Utah, New Mexico and New Jersey that allowed same-sex marriages, bringing to 18 the number of states allowing gay marriage; Washington, D.C., also allows them.
“The more judges who do this, who express their views that gay marriage is constitutionally required, it’ll be easier for other judges to follow in the same line,” Tushnet said. “The judge doesn’t see himself or herself as strange or pushing the limits of the law. Rather, it’s what everyone else is doing.”
Tushnet said there’s a fairly strong belief in the constitutional law community that “at some point in the relatively near future, there will be a constitutional right to gay marriage, pretty much everywhere in the country.”
“Nobody’s sure when the tipping point will come,” but five to 10 years seems about right, he said.
Supporters of gay marriage see Black’s ruling as a clear victory that will help them forge a path to getting another court to strike down the statewide ban or doing so in the November election, which would be 10 years after the 2004 ban passed with 62 percent of the vote.
“There are times when litigation combines with democracy to ultimately do justice, and we’re hoping this is one of those times,” said Al Gerhardstein, the Cincinnati civil rights attorney representing the two gay Ohio men whose lawsuit against the state sparked Black’s ruling.
Ideally, he said, voters will repeal the marriage ban, but that won’t stop him and other attorneys from pursuing the matter in the courts.
“While deference to the public is important, there shouldn’t be an undue delay in getting marriage equality,” he said.
Looking to the ballot
Members of a group known as FreedomOhio say they’ve collected enough signatures to put gay marriage back on the ballot next November.
The group’s executive director, Ian James, praised Black’s ruling and said it’s “yet another step in the right direction on the road to freedom for gay and lesbian couples throughout Ohio.”
Given the ruling’s appeal, he said his group will redouble its efforts to repeal the gay marriage ban and allow same-sex couples to obtain marriage licenses before the Supreme Court considers the matter.
Phil Burress, who chaired the 2004 effort to ban same-sex marriage, said his group is prepared to fight any ballot initiative to repeal the ban and is confident they will prevail.
“It’s only been 10 years since the voters of Ohio voted 62 percent to define marriage as between one man and one woman,” he said, also adding that he thinks Black’s ruling will be overturned.
He pointed out that only three of the 18 states and Washington, D.C., legalized same-sex marriage through popular vote.
“So all this hoopla about the momentum they have on their side is nothing but propaganda,” Burress said.
Associated Press writer Dan Sewell contributed to this report.