Federal Judge Finds Ohio Can’t Refuse to Recognize Couple’s Out-of-State Same-Sex Marriage

by Linda Beale

Federal Judge Finds Ohio Can’t Refuse to Recognize Couple’s Out-of-State Same-Sex Marriage

Dear Readers:

This has been a much needed break for me, but now I am ready to resume daily postings on tax, economics, and the potential for a just and fair society.  As you all are undoubtedly aware, Messrs Camp and Baucus continue their claim that they will accomplish “tax reform” before Baucus leaves the Senate in January 2015.  I remain unconvinced that this pair will put together the kind of reform that could merit passage.  Too much likelihood of favoritism for capital income at the expense of ordinary workers; too much likelihood of favoritism for multinationals and natural resource extractives, etc.

On another front, the expected surge of additional cases challenging gay-marriage restrictions is taking place.  Just Monday, a federal judge in Ohio ordered the state to recognize a 20-year couple’s relationship, suggesting that at least some judges will read Windsor expansively to declare that same-sex married couple‘s marriages in one state must be recognized in other states just like any other out-of-state marriage would be.  The case is Obergefell.  Here’s how Salon describes the ruling.

[Obergefell’s husband] Arthur was diagnosed with amyotrophic lateral sclerosis (ALS), a progressive neurodegenerative disease. Earlier this month, the couple sued the state to have Arthur’s death certificate reflect Obergefell as his spouse, and secure Obergefell’s right to be buried in Arthur’s family plot, which is only open to direct descendants and spouses.

Al Gerhardstein, the attorney for the two husbands, argued that Ohio should recognize same-sex marriages from other states because it recognizes opposite-sex marriages from other states, including some that are banned in Ohio like first cousins or too young people marrying.

Black found that the Ohio Constitution on the issue “violates rights secured by the … United States Constitution in that same-sex couples married in jurisdictions where same-sex marriages are valid who seek to have their out-of-state marriage accepted as legal in Ohio are
treated differently than opposite-sex couples who have been married in states where their circumstances allow marriage in that state but not in Ohio.”

This suggests that the Windsor decision invalidating (at least) section 3 of DOMAmay be read more broadly a s finding the entire statute unconstitutional, including section 2’s provision permitting states to refuse to recognize gay marriages from other states.  It also foreshadows the likely trend in cases challenging states’ statutory and constitutional prohibitions on same-sex marriage on the grounds that they violate the Equal Protection Clause of the U.S. Constitution.

cross posted with ataxingmatter

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