Day: 2014.04.14

The End of the Paperwork

It is accomplished. Mark the date. What started in Utah, in December 2013, with Kitchen v. Herbert, has come to its end.

U.S. District Court Judge Timothy Black has formally ruled that Ohio must recognize same-sex marriages performed legally in other states, but he put a hold on his order for the time being.

“Ohio’s marriage recognition is facially unconstitutional and unenforceable under any circumstances,” Black said in a written order he announced verbally 10 days ago.

Alan Johnson’s report for The Columbus Dispatch is charitable, at least compared to the ruling itself.

Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction

On December 23, 2013, this Court ruled in no uncertain terms that:

“Article 15, Section 11, of the Ohio Constitution, and Ohio Revised Code Section 3101.01(C) [Ohio’s “marriage recognition bans”], violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples married in jurisdictions where same-sex marriage is lawful, who seek to have their out-of-state marriage recognized and accepted as legal in Ohio, are denied their fundamental right to marriage recognition without due process of law; and are denied their fundamental right to equal protection of the laws when Ohio does recognize comparable heterosexual marriages from other jurisdictions, even if obtained to circumvent Ohio law.”

Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 997 (S.D.Ohio 2013).

The Obergefell ruling was constrained by the limited relief requested by the Plaintiffs in that case, but the analysis was nevertheless universal and unmitigated, and it directly compels the Court’s conclusion today. The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State’s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.1

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1 The Court’s Order today does NOT require Ohio to authorize the performance of same-sex marriage in Ohio. Today’s ruling merely requires Ohio to recognize valid same-sex marriages lawfully performed in states which do authorize such marriages.

In truth, it only goes downhill from there for traditionalist advocates. The ruling is a barely patient, nearly patronizing lecture on just how finished the marriage equality issue is as a matter of law. Indeed, the footnote on page one is almost ironic; at this point, authorizing the performance of same-sex marriages in the state of Ohio is a mere bureaucratic detail, with the only question being just how badly conservatives want to embarrass themselves. No wonder he reiterates the point later in the ruling.

It’s over. It’s been over since December brought a decision in Utah, Kitchen v. Herbert. After today’s ruling, there are no more encores.

Today’s ruling settled the outstanding Full Faith and Credit question. Judge Black wrote (p.37):

Because this Court has found that Ohio’s marriage recognition bans are constitutionally invalid on their face and unenforceable, Defendants no longer have a basis on which to argue that recognizing same-sex marriages on out-of-state adoption decrees violates Ohio public policy, and thus it is unnecessary to reach Plaintiffs’ arguments based on the Full Faith and Credit Clause. However, the Court determines that, as expressed infra in endnote i, Plaintiffs have also demonstrated a compelling basis on which to find, and the Court does so find, that Plaintiffs Vitale and Talmas have a right to full faith and credit for their New York adoption decree here in Ohio. i

And that endnote (pp.41-43), summarized in one quoted sentence:

In the context of judgments, the full faith and credit obligation is exacting, giving nationwide force to a final judgment rendered in a state by a court of competent jurisdiction.

The paperwork really is finished for the judicial branch. Not even Justice Scalia can help the traditionalists. The show ended in December. The house lights just came on. Don’t care where you go, you just can’t stay here.

Everything else is a matter of bureaucratic details and cleaning up the mess.

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Johnson, Alan. “Ohio ordered to recognize legal same-sex marriages from other states”. The Columbus Dispatch. April 14, 2014.

Black, Timothy S. “Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction”. Henry, et al. v. Himes, et al. United States District Court Southern District of Ohio (W.D.). April 14, 2014.

Shelby, Robert J. “Memorandum Decision and Order”. Kitchen, et al. v. Herbert, et al. United States District Court for the District of Utah Central Division. December 20, 2013.