Here We Go, Ohio
Posted on February 10, 2014 Posted by John Scalzi 53 Comments
Couples Sue to Force Ohio’s Hand on Gay Marriage:
CINCINNATI (AP) — Four legally married gay couples filed a federal civil rights lawsuit Monday seeking a court order to force Ohio to recognize same-sex marriages on birth certificates despite a statewide ban, echoing arguments in a similar successful lawsuit concerning death certificates.
The couples filed the suit in federal court in Cincinnati, arguing that the state’s practice of listing only one partner in a gay marriage as a parent on birth certificates violates the U.S. Constitution.
“We want to be afforded the same benefits and rights as every other citizen of the United States,” said one of the plaintiffs, Joe Vitale, 45, who lives in Manhattan with his husband and their adopted 10-month-old son, who was born in Ohio. The pair married in 2011 shortly after New York legalized gay marriage.
A spokesman for Ohio Attorney General Mike DeWine, whose office will fight the lawsuit, declined to comment.
Good for them; I hope the plaintiffs win. It’s embarrassing for the state I live in — and which I have lived in for a dozen years, and which I like quite a bit — not to offer equal rights to all of its citizens. Hopefully this takes us further down that road.
While I’m at it, good on the federal government for expanding benefits and services to married same-sex couples, even if they live in a state that doesn’t recognize their union (like, for instance, Ohio). I think it makes it more difficult for these states to continue the calumny that some marriages should be treated with more respect and recognition than others. Again: Good.
Here, here.
I’ve always wondered why more gay married folks didn’t fight this under the full faith and credit clause, particularly as more states recognize it via statute and case law. It really never came up under segregation, either.
Anyway, Go Ohio!
Equal treatment under the law? How radical!
My spouse and I were talking just yesterday about how matter-of-fact most people in Massachusetts have become about same-sex marriages in the past 10 years. It’s very nice to see.
Personally I find the idea of sex with another man to be kinda unpleasant-sounding and would never want to marry one. So I have coped with this by only sleeping with women and marrying one of them instead. It has worked out well for me as a coping technique and I heartily advocate it for those folks who oppose legalizing gay marriage.
Then again, we adopted and use birth control so I’m not sure any of those “marriage is to protect procreation and its result” people would think I should marry either, so my odds of parlaying my technique into a successful spot on the Post editorial page are low. Oh well.
It’ll be our 5th wedding anniversary in May and I still remember hearing the announcement on the radio while driving home that the DC Council had introduced a bill to recognize same sex marriages from other states. It was one of the best wedding presents we got. I’d be cool with these sorts of things being anniversary presents, though I’m also kind of eager for there to me no more of them to get.
Go Ohio and equality!
It occurs to me that I have left out the one aspect of our personal experience most (dis)similar to the underlying parts of this lawsuit – when my wife and finalized the adoption of our son last year (something that takes a period of time after taking custody, of a term that varies by state but is somewhere between a few months and a year) one of the results was that they re-issued our son’s birth certificate.
On that new birth certificate is my name and my wife’s name as the natural parents of our son. There’s no indication that we didn’t spawn him in the traditional and gooier way – we are in every sense the recognized legal parents of that child. The same methodology applies in Ohio; when an adoption is finalized a new certificate is issued with the adoptive parent(s) listed as the natural parent of that child. That’s true even if it’s a case where a step-parent is adopting the 16-year-old child of their spouse.
Given that, it’s hard to see any practical reason why Ohio can’t just give people the legal recognition and basic human respect they’re asking for. Nothing will change in Ohio’s system other than letting go of an irrelevant interest in the chromosomal makeup of the people listed on that government document.
I hope it works in Ohio and elsewhere so the tactic can then be applied here in NC (where a few years back “we” passed an amendment to the state constitution forever banning same-sex marriage). Added bonus if it produces exploding heads amongst some of our most conservative members of the state’s general assembly.
Bearpaw, I was just thinking the same thing about Canada. It’s been over 10 years since it’s been legal here in Ontario, and almost 9 years since it’s been legal in the entire country, and the country hasn’t imploded yet. It’s at the point now where any politician that campaigned against gay marriage would almost definitely be voted out of office. It’s just not brought up any more. Even when the law was being changed here, I don’t remember there being that much vitriol in the media (although I was in university at the time, so I didn’t watch the news as much).
Out biggest problem recently on this file was when a foreign gay couple that was married here came back to try to get divorced, and apparently there was no law covering divorce of foreign people from jurisdictions that don’t recognize their marriage, but that gap in the law got solved pretty quickly.
Good luck to all the people challenging the laws in the US. It seems like a huge uphill battle, but it looks like the times are (slowly) changing for the better.
Snoopy Dance!
I’m really torn on this. I’m very much in favor of gay marriage, but I want to see it come in through the front door. The tide has turned very strongly on this, and IMHO another ten years would see most states signing on. Having it arrive by judicial fiat, while valid, will lead to endless carping that it’s judicial activism and will provide endless grist for those who whine about such. Mind you, I’ll take it no matter how we get it. But I’d feel much happier if it came from positive affirmation by the country.
I’d also love to see the Supreme Court rule that Article 4 Section1 of the U. S. Constitution (often called the ‘Full Faith and Credit’ clause) applies to all marriages. This to me seems a no-brainer, yet it’s still dragging on.
I agree with the idea but was wondering how the Constitution directly applied. Thanks to stevecsimmons for answering the q before I got it typed.
Unfortunately, the other side (that favoring old fashioned, unjust, religious-based legislation and public policy) doesn’t have any qualms about back-dooring legislation or by de-facto legislating through judicial fiat, so I don’t think we should either.
On another note, I’m waiting for a certain other sci-fi author to post a 10-page rant about how “the sodomites” are further eroding christendom. We’ll probably have it by the end of the day, knowing him. I don’t really find them hilarious anymore, more sad, like looking at train wreck that keeps happening over and over.
@stevecsimmons: While I understand your desire for legitimacy, it’s worth noting that almost no civil rights improvements have come in ‘through the front door’ in this country. Almost all of them have been the result of determined oppressees forcing the government to obey their own laws in court. Almost never in the modern era have governments (state or federal) acceded to the wishes of the oppressed in the face of vocal opposition – it’s always been perceived as too politically risky. It took supreme court verdicts to establish most of the civil rights laws in this country and even then local governments have resisted them regardless of the legitimacy of the merits of the case. Trust me, the angry racist mob screaming at the little black schoolgirls who were being ushered to class under guard of the 101st airborne were NOT made up of disaffected legal scholars! As a progressive, I’ll take any extension of civil rights I can get regardless of how they’re obtained. Partly because it’s awfully hard to roll them back once granted and partly because once they become the new normal those who oppose them are effectively doomed to the fringes of political discourse. A good example is Roe.v. Wade which effectively legalized abortion, but was based on a legally dubious right to privacy. Legal scholars are still bitching about that one, but abortion is not only legal today but nearly impossible to re-criminalize. Even the most ardent anti-choice politicians hide under the weasel-words of ‘abortion regulation’ when they try to make it nearly impossible for women to access abortion services. They know full well that calling for the criminalization of abortion will relegate them to the political fringe and effectively doom their candidacies in all but the most far right-wing constituencies. Within a generation anyone opposed to gay marriage will be seen as a hopelessly out-of-touch bigot, just as the segregationists and the anti-choicers are seen today.
“Judicial fiat” always sounds like “doesn’t understand the role of the judiciary branch in the determination of Constitutionality of laws” to me.
Loving V. Virginia may have been “judicial fiat” but I’d argue the only people you’d find these days who disagree with it are the most racist of assholes.
“Case law” is still the law.
Yep.
My spouse and I were talking just yesterday about how matter-of-fact most people in Massachusetts have become about same-sex marriages in the past 10 years. It’s very nice to see.
Amazing, isn’t it?
I recall some speculation that the reason the Right was fighting so hard against even just one breach of “traditional marriage” was that they knew that even when only one State had it, their game was going to be up. Where gays are able to get married, the effect on straights after the initial kerfuffle died down is simply “meh”, which sorta takes the wind right out of the sails of those who claim it means The End Of The World.
Of course, here we had equality in “civil unions” first, de facto marriage equality, in the typical Kiwi cowardly compromise. After that settled down to “meh” a private members bill was pushed through to legalise de jure marriage equality as well. And the result to the rest of us in society is still “meh”.
They’re starting to look as silly as someone still ranting about “miscegenation”.
as a person who PROBABLY benefits directly from Loving v Virginia [it’s a toss up whether i really count as “white”. i have no clue what the laws are about Native people marry black people? the “one drop” bullshit doesn’t seem to count for Natives, but i’m half. so…?] i determined years ago that until EVERYONE i know can get married, i won’t.
i’ll have been with the same guy for 10 years in a few months. why should i get the benefits of being married, just because we can – at least in theory; in practice, it pregnancy would be highly deadly to me — produce “natural” children.
hell, i think i’m the ONLY straight person in my family under the age of 40. maybe under the age of 50. it’s so AWFUL for my siblings and cousins :( i’m not gonna til THEY can…
stevecsimmons,
Judicial decisions are just as much of a “front door” as legislative action or even a popular vote.
Yes, it’s nice when a majority of the public is on board with a decision, but thankfully civil rights don’t always depend on that. Most of the carping about the process in Massachusetts died out after a few weeks, and the relatively few remaining loud holdouts are mostly ignored. The same people would have found some other reason to carp about the change, however it came about.
Also, ten years is a *long* time when people are being discriminated against. I highly recommend reading Martin Luther King’s “Why We Can’t Wait”.
I don’t see the problem with gay marriage. Even though I’m politically conservative, I also believe that people have a right to their own lives and happiness without my interference. So, when people say, “It’s not right. The Bible says……” I have to wonder, since being agnostic, I’d have to ask them if they get all their guidance from mythological history books. I don’t do that, because that starts up a whole different firestorm. I just figure that if everybody worried about their own goddamned lives, and not about the married couple across the street being the same sex, a lot of problems would be avoided. But…….people….
@Mark Towler Well said about front-door vs. back-door legislation. I agree: I think any social progress in this country must come in through the back door simply because the entrenched social conservatives are unaware of their level of privilege vs. the various groups they’re oppressing.
The US has always been very slow to adopt socially progressive measures, and is frequently one of the latecomers to the party for any social change. Marriage equality is only the most recent of these measures, but women’s suffrage, abortion rights, banning slavery, and other causes have all been adopted by most of the other first-world (and many second-world) countries long before the US has.
I should add that I do have skin this game: my beloved eldest and her wife are married in every way but legally. They live and teach in the Philly area and are mothers to my favorite granddaughter. Pennsylvania’s day for marriage equality will come soon, I think, but it can’t come soon enough. I want them to be legally married and have the many protections and privileges that that entails.
(The tl;dr version of “Why We Can’t Wait” is King’s “Letter from Burmingham Jail”, which can be found free-of-charge via a simple Google search.)
Arg. “Letter from *Birmingham* Jail”
Good for those couples in Ohio. I’m grateful to all the couples who have stepped up to a grueling and expensive process to make the world better.
My spouse and I have been gobsmacked, over and over, at what a difference legal marriage has made for our 26 year partnership. We truly didn’t realize how oppressed we were. All that stuff took a toll. I do not think it is an exaggeration to say that our life expectancies probably went up last summer when DOMA and California’s Prop 8 went down.
Still pinching myself, months later.
@stevecsimmons – gay marriage was legalized in Massachusetts via judicial fiat. That has not kept it from becoming perfectly normalized here. Only a couple of years after it was legalized, the number of people opposed had gone down drastically, because instead of seeing gay couples wanting to marry as “those people”, they were being seen as the nice couple down the street who are such good neighbors, etc.
“Judicial fiat” is otherwise known as “fulfilling their constitutionally-mandated responsibilities.”
Good on Ohio! Wisconsin actually beat you by a whole week – the Federal lawsuit here (also on behalf of four same-gender couples) was filed a week ago today. I’ve been floating on air ever since.
I fully agree with those who would prefer that universal marriage rights be enacted at the voting booth by a simple majority of voting citizens, or failing that, by legislation enacted by the elected representatives of the state. But between gerrymandering and the right wing’s well-oiled machine that rumbles into action shouting “obscene! Wrong! Mumblety-mumbleth verse of the bible says no!” I couldn’t see that happening in this state in my lifetime. I’ll happily welcome universal marriage here, however we get it. And with Federal-level support for it, I’m betting that a lot of states will be added to the list of universal-marriage states within the next half-decade.
Looking forward to celebrating with the citizens of Ohio, just as I hope to celebrate with my own compatriots in Wisconsin!
Good luck, Ohio. Let’s hope the right-wing trollbois make asshats out of themselves, thereby ensuring the plaintiffs’ success and giving us some entertainment while we wait.
I’ve had a rough day, and I needed this piece of good news.
@stevecsimmons: I know you almost certainly mean well, but I recommend you think carefully about the implications of wanting an entire minority group to wait another decade to be granted civil rights just because you think it’ll be more “elegant” do have states ‘voluntarily’ deciding to do the right thing.
mattmarovich wrote:
“”Judicial fiat always sounds like ‘doesn’t understand the role of the judiciary branch in the determination of Constitutionality of laws’ to me.”
Yup. Seventy years ago, when I first studied American History, it quickly dawned on me that The Founding Fathers were mostly either lawyers or people who had significant dealings with The Law and fully understood that Judges and Justices of the Peace produced Case Law that updated Legislative Law to almost-current standards, and nothing I’ve seen since then has caused me to think differently. (Okay, maybe Blackstone — or whoever — was not far from right in saying -“Law is always a generation behind reality”-, but…ummm… I can remember sitting on a transit bench in Glendale, California, waiting for the transfer bus en route home from the community college, and observing a police car draw up and the officer opening the door and inviting the elderly Black lady house-cleaner sitting next to me to ride to the Red Cars/Pacific-Electric Railway stop just south of the city limits because it was almost sunset and he’d have to arrest her if she was within the city later than that. (To do him credit, he was clearly apologetic about this, and I got the feeling that he was conspiring to save her about ten cents in carfare.) And when we moved to the Covina area in about 1953 the only Black family living in the city limits was that of the guy who washed cars for the Clippinger Chevrolet dealership — as a matter of grandfathering-in (rather like the few hispanic families that had lived here since before 1849, and the handful of Jewish families that had somehow infiltrated). And hey, (at the time of posting this, anyhow) I’m still alive, so we’re talking about one generation, right?
The quote — I don’t remember now who said it or its exact wording, but it was quoted at one elected official by another elected official during a debate on gay marriage, specifically in rebuttal of the argument that because the Bible was “agin” it, the law should be, too: “You didn’t swear on the Constitution to uphold the Bible; You swore on the Bible to uphold the Constitution.” When the religious right get their head of steam up, they seem to forget that there is and has been since this country’s inception, a legal and complete separation of church and state, and that the government, state or federal, cannot, and should not, mandate the caveats of any religion. The religious right cannot seen to get it into their heads that that “any religion” includes theirs. I live in Texas (and, no, I didn’t vote for those senators) and I recently saw a bumper sticker on a car parked in the parking lot of our local VA clinic that read “Love knows no gender.” and had to forcibly restrain myself from doing a “Yes!” fist pump.
We also have a similar suit going on here in Texas. Yeah, Texas. And like you in Ohio, I hope they win. But of course, being here in the land of Ted Cruz, the Tea Party, and the Christian Right, I also hope no one takes a shot at the plaintiffs… :/
My, what a set of responses to two short paragraphs.
To the many people above – we’re actually on the same page for most of this. I’ve been a supporter of gay rights since my college roommate came out in 1971, and yes, that means I had an eye on what had to happen to get the civil rights laws passed and enforced.
I am not suggesting that we ask people to wait another ten years for their rights. The various court rulings that have struck down exclusive male/female marriage are a win, and I would not for a moment suggest turning them back.
None of these court rulings are as moving as the states which have stood up and said (in effect) we were wrong, we welcome you, we have stopped this injustice. It’s a far more powerful affirmation than the court rulings. And I’m astounded by it. To me the speed with which public opinion has changed, no matter the cause, is amazing. Racial equal rights had (have) a far tougher sled of it, and I think that has made the struggle through today much harder.
The broader issue is gay equality. A publicly voted affirmation of those rights makes a more powerful statement, and it’s better than the piecemeal and inconsistent effects we get when courts rule on narrower specific issues. What we want – what we can and will have – is equality. Piecemeal rulings are exactly that – piecemeal. And yes, I recognize that in many cases even the voted rights have been piecemeal. Jeez, how specific do I need to be here before we reach tl;dr? (Already there, I suppose.)
A publicly voted affirmation also cuts much of the rug out from under those who oppose such rights. Despite popular claims, most of us in this country do still believe in democracy, including those who oppose homosexuality. When the people or their legislatures vote to do the right thing, those who oppose it are far more willing to go along with the result. It destroys opposition claims that activist courts have rammed this down the throats of a silent majority, that their opinions were never heard, that the true voice of the people was suppressed. We are much more likely to go forward peaceably and respectfully.
As I said above, I would not for a moment suggest turning back the court rulings, nor force people to wait an extra ten years to have their rights recognized and enforced. But none of those court rulings are as socially effective or as emotionally satisfying as the states which, bless their hearts, have opened the front door. And that’s what I was trying to say.
@Jerome: as I understand it, full faith and credit falls into one of those clauses that courts have been reluctant to enforce when it comes to marriage. So on the one hand, states have never been forced to respect a marriage if they made a federal case out of not doing so; on the other hand, probably not too many courts are going to give deference to decisions allowing states to shun interracial marriages they themselves made illegal.
@stevecsimmons: I’m guessing you were not in California when the rulings came down, if you believe that your own preference for using the legislative branch is universally shared. When you use phrases like “the back door” and “judicial fiat” and “piecemeal”, you suggest that courts are not really a legitimate avenue but are better than nothing. That’s not only a fundamental misunderstanding of what the court rulings on marriage equality are; it’s buying directly into the bigot propaganda about “activist judges” that you otherwise reject.
That has got to be the ugliest flag I have ever seen. Is that really the best the people of Ohio can come up with?
ok to stay on topic. Gay Marriage will be legal everywhere. Yet another lawsuit that leads to it really isn’t news.
@mythago
I don’t know if they’ve been “reluctant to enforce it” so much as they “haven’t been asked” to enforce it. People simply haven’t been making the full faith and credit case. Almost all of the civil rights lawsuits were filed under equal protection (14th Amendment) grounds – which is fine, as it worked – and so have many of the current marriage equality cases. It seems to me that a strong case could be made on original wording (for those “strict constructionist” types) with 220 years of history behind it.
I suspect that the reluctance to rely on Full Faith and Credit is based on two things. First, Loving v. Virginia was decided on the Equal Protection clause and the Due Process clause; by emphasizing those, the plaintiffs hope to make it much easier for the Supreme Court to decide in their favor. If you read the Loving decision, lines like
“Because we reject the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.”
and
“The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.”
really stand out. Just substitute “a person of the same sex” for “a person of another race” and the opinion is practically written.
Second, the courts have long recognized a “public policy” exemption for the Full Faith and Credit clause; it was that loophole that Congress attempted to exploit when they enacted DOMA. Basically, if a contract made in another state violates the public policy of your state, then your state is not obligated to recognize the contract (even if the public policy is stupid). By claiming that the public policy was set when the voters of a state decided to make same sex marriage against the Constitution of that state, the state could reduce the effect of a Full Faith and Credit appeal.
So by relying on the 14th Amendment the plaintiffs avoid the distraction of having their arguments being dismissed by an appeal to public policy. But in any case, it doesn’t matter. This train has left the station and soon same sex marriage will be recognized in all fifty states! Yeah!
That makes all kinds of good sense.
thanks for the update
The new Virginia attorney general has declined to defend Virginia’s constitutional amendment against gay marriage in an upcoming court challenge and is siding with the plaintiffs, so it’s going to happen here soon, too, I’m sure. I think Utah will be the first case to make it to the Supreme Court, but that probably won’t happen for at least a couple more years, even assuming the court grants cert.
As far as the whole issue, however, I have never understood why people can’t just live and let live. How does a gay couple getting married affect MY marriage? It doesn’t, unless I have any prurient interest in what goes on behind closed doors, which frankly, I don’t.
One gay couple I know who’ve been together for nearly 25 years and now live in a state that has legal gay marriage (Washington) is being urged to get married by their daughter, however, because then she can be their flower girl. Possibly the best reason for marriage, gay or straight, I’ve heard in years!
Good for Ohio.
Meanwhile, the state legislature here in Indiana is trying to top its existing gay marriage ban by putting a constitutional amendment on the ballot. What’s worse is the effort is probably at least in part a ploy to gin up Republican turnout in the midterm elections.
Gregory:
Partly? Hah. That was the whole reason for the wave of anti amendments in 2004.
I wish the plaintiffs the very best of luck with their lawsuit. The idea that they cannot be listed as the parents on their child’s birth certificate seems nonsensical to me – particularly since, up in Canada, we’re finally recognizing that a child can have more than two legal parents for this purpose!
http://news.nationalpost.com/2014/02/10/vancouver-baby-becomes-first-person-to-have-three-parents-named-on-birth-certificate-in-b-c/
This is the only discussion about same sex marriage that I have ever come across on the internet that does not contain even a single homophobic comment (at least not yet)!
Perhaps there is hope for humanity after all. Today my glass is half full.
Probably be half empty again by tomorrow though.
Earlier today, a Federal District Judge in Kentucky ruled that Kentucky must recognize valid same-sex marriages from other states. I note that Kentucky and Ohio are both in the Sixth Circuit.
JoelZakem:
Yeah. I would take it as a positive sign. But we’ll see.
JohnD-I have not read the decision but, according to newspaper reports, Judge Heyburn relied on “equal protection.”
JoelZakem – It wouldn’t surprise me a bit. As noted before, that is a much stronger reed to lean on and follows strong SCotUS precedents.
Unfortunately, the opinion isn’t available online yet; when it does show up, it will be at the Court’s website. Skimming the opinions that are there makes me want to buy the guy a beer; he is clearly a strong Constitutionalist who knows that historic precedent alone doesn’t make something constitutional (would that Scalia were so honest!).
Kentucky decision is at:
http://www.scribd.com/doc/206720265/Kentucky-Gay-Marriage-Decision
Wow. that Scribd document was almost unreadable. Fortunately, the title helped me find a pdf version:
http://thinkprogress.org/wp-content/uploads/2014/02/KYMarriage.pdf
As expected, it includes a note about the public policy exemption to Article IV; the plaintiffs in this case did raise the point but the judge decided that equal protection was a more appropriate part to consider (i.e., he wanted to avoid the public policy quagmire) as “If equal protection analysis decides this case, the Court need not address any others (constitutional questions)” and “No one seems to disagree that, as presented here, the equal protection issue is purely a question of law”.
BTW, the bit about gays being a suspect class is actually a point in their favor in the ruling; it means that they have historically been discriminated against and so deserve extra legal protections to prevent new discrimination. One of those protections is “does the law treat them differently from other groups that are otherwise indistinguishable from them simply to treat them differently” (i.e., is there a reason behind the discrimination or is it just because they are a member of that group) – if it does, then that is a point against the law. And that’s why the judge concludes “From this analysis, it is clear that Kentucky’s laws treat gay
and lesbian persons differently in a way that demeans them” ; it means that the laws are unconstitutional under DOMA.
And his flurry of punches about similar civil rights issues over the decades is fantastic! Women’s rights, interracial marriage, blockbusting – they are all in there. And then he adds in the final sucker punch of “allowing same-sex couples the state recognition, benefits, and obligations of marriage does not in any way diminish those enjoyed by opposite-sex married couples”. Man, I love this judge!
Some interesting facts about Judge Heyburn (from Wikipedia):
“He also served as Special Counsel for then – Jefferson County Judge/Executive Mitch McConnell. …On the recommendation of Senator Mitch McConnell, Heyburn was nominated by President George H. W. Bush on March 20, 1992…”
Hardly the CV of a liberal activist Judge.
Is this a surprise? This state, which is white dominated, also is the home of John boner the leader for the evil house. Of course people who wish equal rights are going to have to fight for the right.
Gregory @ February 11, 2014 at 8:12 pm:
Indiana, go try to put up a ballot measure that would make gay marriage legal. See how they do head-to-head…