Timothy S. Black

A Throwback to the Future

Patience is one of the most challenging virtues. As marriage equality finds its home in state after state after various federal courts strike down exclusion laws passed amid political panic in the wake of Lawrence v. Texas, what seems a straightforward issue has observers on the edges of their seats.

Squire Patton BoggsMeanwhile, how about a throwback, just for nostalgia’s sake? You know, all of ten days.

That is to say, in the wake of the Supreme Court’s refusal to hear heterosupremacist appeals earlier this month, Steve Delchin, writing for the Sixth Circuit Appellate Blog maintained by the D.C. law firm Squire Patton Boggs, looked ahead to what is supposed to be a bated-breath decision coming from the Sixth Circuit sometime before winter arrives:

Some media outlets are calling today’s cert denials a surprise given the high-profile issue involved. But the denials are not really unexpected when you consider there has been little disagreement among lower courts over whether same-sex marriage bans are constitutional. Perhaps the Court is waiting for a split to emerge (as we predicted in prior posts and media comments). All eyes are therefore on the Sixth Circuit’s forthcoming decisions to see whether they will be in line with other courts or whether the Sixth Circuit will blaze a different path. We will continue to keep close watch.

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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.