Just as we predicted a few weeks ago, same sex marriage has come to Ohio.  A Federal Judge in Cincinnati has ruled that the Constitution prohibits Ohio from not recognizing a same sex marriage from Maryland.

After the Supreme Court’s decision in Windsor (the case that struck down the federal defense of Marriage Act), we said “we expect same sex couple who were married in other states to seek Ohio to recognize their marriage.”

The two men had filed the lawsuit alleging that Ohio could not refuse to list the surviving spouse on a death certificate and that Ohio had to the man’s marital status at death as married.  The facts of the case are pretty compelling.  James Obergefell and John Arthur (pictured, from Cincinnati Enquirer) have lived together for 20 years.  They were married two weeks ago in Maryland.  The Cincinnati Enquirer had a must read story on the wedding, including how the couple had to charter a plane and be married on a runway because Arthur suffers from ALS.


The judge started out by noting: “This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated.”

A copy of the decision is available here.

In other words, the Constitution forbids Ohio from singling out same sex marriages as ones it will not recognize.

The legal standard is important here.  The judge was required to find that the same sex couple had a strong likelihood of success on the merits of the claim that Ohio’s refusal to recognize same sex marriages from another state was unconstitutional.  The judge relied on the Windsor decision to find that the plaintiffs had met that burden:

[A]s the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”  The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor . . .: “to impose inequality” and to make gay citizens unequal under the law. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. (citations omitted.)

The importance of this decision can’t be underestimated.  If the decision is upheld – and an appeal is a certainty – then same sex couples in Ohio can get married in other states and Ohio would be forced to recognize that marriage.

The decision, sadly, sheds a poor spotlight on the Ohio ACLU.  As this New York Times article explains, the ACLU is aggressively pursuing new litigation in Pennsylvania and is preparing lawsuits challenging the ban on same sex marriage in Virginia and North Carolina. Moreover, in Michigan the ACLU is defending a lower court decision blocking a state law denying domestic partner benefits to public employees and in Illinois the ACLU announced plans to seek an early resolution to a lawsuit challenging the ban on same sex marriage in Illinois.  We don’t know why the Ohio ACLU is timid where lawyers in other states are moving aggressively; maybe they should read this lifecoach post on “fear of failure.”

The time for same sex marriage in Ohio is NOW.  At least one federal judge agrees.  What we said immediately after Windsor is even more true today: the courthouse door is open!