Obergefell v. Kasich: small but important gay marriage victories keep rolling in

“This is not a complicated case.” – Judge Black, in Obergefell

When last month’s big gay marriage wins came down, I was of course quite pleased but not delighted. Between the two of them, Windsor and Hollingsworth dealt a powerful victory to marriage equality, forbidding the federal government from denying marital benefits based on sexual orientation, but otherwise doing little to deal with the real obstacle to equality, which is state-level bans on gay marriage.

Specifically citing to Hollingsworth, a court in Ohio has created some important precedent in dealing with the state-level bans. Obergefell v. Kasich, handed down by Ohio’s Judge Timothy Black yesterday, quickly and decisively decides the question of whether or not Ohio will recognize gay marriages solemnified by states other than Ohio:

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. How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot…

Judge Black’s fairly pointed ruling incorporates gay marriage into both ancient precedent and Constitutional guarantee that the state of Ohio must recognize the judicial determinations of other states, including marriages. As Judge Black observes in his ruling, it has forever been the case that marriages that meet, say, the age requirements or familial restrictions of their native jurisdictions but not Ohio’s must still be treated as full and legal marriages under Ohio law. While this is clearly a victory for gay Ohioans, there are at least three very good reasons that this is a crucial victory for marriage equality nation-wide.

The first is that most states follow precedents about extra-jurisdictional marriages virtually identical to those in Ohio, and all of them are bound by the Full Faith and Credit Clause, requiring total acknowledgment of the official acts of other states. In this sense Obergefell merely reiterates the clear fact that marriages are such official acts and, ipso facto, Ohio is not free to deny their existence within its own borders.

The second, related reason is that this builds a new argument against gay marriage bans, which is that they are simply useless: Ohio has a state-level ban on gay marriage whose ostensible goal is to deny marital rights to gay couples, but instead all it does now is impose upon them the relatively minor inconvenience of traveling to Massachusetts, Maryland, DC, or any of the other jurisdictions that recognize gay marriage, get married, and come home. The illegitimate and discriminatory purposes of state-level marriage bans are simply impossible, for the simple reason that no state has the power to ban marriages of any kind – only to determine what kinds of marriages can be performed within its own borders. This has practical significance as well as constitutional significance – a discriminatory law that cannot really be enforced, or that is truly useless beyond purely-symbolic discriminatory rhetoric, retains the constitutional defect of in-fact discrimination, but lacks the constitutional virtue of serving a legitimate governmental function (since a useless law serves no function whatsoever).

Thirdly, Judge Black graciously decided to expand beyond the very minimal ground he needed in order for him to make his ruling. It would have been enough for him to say “gay marriage, interracial marriage, cousin marriage, turtle marriage, doesn’t matter – if another state says it’s OK, then we have to recognize it.” And that would have achieved all of the ends that are relevant to Ohio’s gay couples. But Judge Black also went on to build a strong Constitutional case on top of his decision to accept extra-jurisdictional gay marriages, citing directly to WindsorHollingsworth, and the mid-90s Romer v. Evans, which struck down a Colorado state ban on all legal recognition of gay couples:

In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the State through at least 2004, the validity of an opposite-sex marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated…

The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: “to impose inequality” and to make gay citizens unequal under the law. See Windsor…. It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group. Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states. Families deserve the highest level of protection under the First Amendment right of association…

This elegantly establishes every important point of a constitutional case against state-level gay marriage bans, which are of course the next logical phase of the gay marriage equality movement. Obergefell is an important win in the next round, which will require more than the harsh constitutional regime under which the federal government operates. What the equality movement needs is robust precedent extending the doctrines that undergird Hollingsworth onto the states, and even obvious arguments like the Full Faith arguments that decided Obergefell go a long way towards de-fanging the existing gay marriage bans.

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