Attorney General Mike DeWine's decision to appeal a federal judge's ruling ordering Ohio to recognize out-of-state gay marriages on death certificates -- along with other pending appeals of similar rulings in Utah and Oklahoma -- could set the stage for an eventual Supreme Court ruling on same-sex marriage.
Voters in Ohio, Utah and Oklahoma banned gay marriage in 2004. Federal courts in all three states have issued rulings recently that have contested the bans, citing last summer's decision by the U.S. Supreme Court that The Defense of Marriage Act, which barred the federal government from recognizing same-sex marriages legalized by the states, is unconstitutional.
The rulings in Utah and Oklahoma cleared the way for gay marriages in both states, but same-sex unions there were halted pending appeals.
The Ohio decision being appealed by DeWine was not as broad as the rulings in Utah and Oklahoma. The ruling ordered the state to recognize legally valid gay marriages on death certificates. It criticized the state's ban on such unions as demeaning "the dignity of same-sex couples in the eyes of the state and the wider community."
Judge Timothy Black's ruling said Ohio's ban on gay marriage, passed by voters in 2004, is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don't like homosexuality, but he did not call for legalizing gay marriages in the state. In the ruling, Black wrote that "once you get married lawfully in one state, another state cannot summarily take your marriage away," saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution. He referenced Ohio's historical recognition of other out-of-state marriages even though they can't legally be performed in Ohio, such as those involving cousins or minors.
Following Black's ruling, DeWine said his job "is to defend the Ohio Constitution and state statutes ... and that's what we intend to do." He noted the 2004 voter mandate banning gay vows in Ohio; officials in Utah and Oklahoma have also raised the same argument.
Judge Terrence Kern's ruling in the Oklahoma case challenged that contention. "Equal protection is at the very heart of our legal system and central to our consent to be governed," Kern wrote. "It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights."
Citing the Defense of Marriage Act ruling, Kern continued, "Supreme Court law now prohibits states from passing laws that are born of animosity against homosexuals ... and prohibits the federal government from treating opposite-sex marriages and same-sex marriages differently."
In addition to Ohio, Utah and Oklahoma, the legality of a ban on gay marriage also is being questioned in Virginia, where newly elected Attorney General Mark Herring said last week that he would not defend the state's constitutional ban but would support gay couples who have filed court challenges against it. The same-sex ban will remain in force, however.
Regardless of the outcome of the appeals in the Ohio, Utah and Oklahoma cases, it appears that the final decision on same-sex marriage, an issue that appears to be taking on increasing importance as more states legalize gay vows, will eventually end up being made by the nation's highest court.