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Ohio AG appeals judge’s pro-marriage equality ruling

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A quick piece of news out of Ohio, where Attorney General Mike DeWine has appealed a judge’s order issued last month requiring the state to recognize same-sex couples’ out-of-state marriages only for the purposes of issuing death certificates.  BuzzFeed reports:

Ohio Attorney General Mike DeWine is appealing a December order that the state recognize same-sex couples’ marriages conducted out of the state.

The case itself is a narrow one, limited to the request that the state list the couples married out of state as married on death certificates. Under Ohio’s 2004 marriage amendment, the state can neither grant marriages to same-sex couples nor recognize those marriages if performed elsewhere.

In December, U.S. District Court Judge Timothy Black ruled that, “[U]nder the Constitution of the United States, Ohio must recognize on Ohio death certificates valid same-sex marriages from other states.”

DeWine’s office, which had previously said it would appeal the decision, filed a notice with Black’s court on Thursday that it would be appealing the case. The appeal will be heard by the 6th Circuit Court of Appeals.

Black’s ruling was limited to the narrow request made in the case, but his reasoning likely would be used by other couples seeking recognition of their marriages by the state. More broadly, Black suggested he would likely reach a similar ruling if asked whether Ohio’s constitutional amendment banning the state from granting such licenses is constitutional.

We’ll likely see renewed litigation in Ohio seeking an invalidation of the state’s entire marriage equality ban.  For now, though, Judge Black’s more limited ruling is the only relief for same-sex couples in the state–and only a small percentage of those, at that.

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  • 1. StraightDave  |  January 16, 2014 at 1:35 pm

    So I guess OH is trying to get even more of its laws shot down. A circuit court agreement will just provide more support for other district judges to extend Black's ruling to all marriages, sooner rather than later…… connecting those SCOTUS dots one by one. Go for it, boys!

  • 2. Dr. Z  |  January 16, 2014 at 2:04 pm

    Not sure that's true in this case? The plaintiffs themselves only requested a narrow injunction. Can the Sixth broaden the ruling?

  • 3. Straight Dave  |  January 16, 2014 at 5:20 pm

    Not likely, but what I meant was if the 6th affirms the district ruling, that will provide more persuasive clout in the direction of equality. That, in turn, should make it easier for other courts to take that tiny remaining baby step to recognizing all out of state marriages, not just the ones for dead people.

  • 4. Richard Weatherwax  |  January 16, 2014 at 6:59 pm

    I agree. The Ohio AG is taking a big gamble, with little to gain. Any favorable ruling by the 6th could be used by other lower courts in the 6th circuit in deciding their marriage cases.

  • 5. grod  |  January 21, 2014 at 6:27 am

    Dave: While Judge T Black takes a wide consideration of the matter in his analysis, his First Finding said: "The Court finds and declares that Article 15, Section 11, of the Ohio Constitution, and Ohio Revised Code Section 3101.01(C), 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." OK's Judge T Kern wished the out-of- state 2 married Burtons used this line of reasoning to attack Part B of OK's Marriage Constitutional amendment, rather than focus on Section 2 DOMA, a figleaf. Do you recall the disbelief of the NM Judges when told by the AG’s agent that the State recognizes out-of-state marriages only – even those of its own citizens.
    The right to remain married and to have a valid marriage recognized is an element of the fundamental right to marry says Black. Having the 6th Circuit Appeals Court concur would be a significant step. Analysis associated with a Fundamental Right of individual citizens requires heightened scrutiny, and neither government, nor the people's majority can abridge a fundamental right. There are 14 other cases before the Courts where recognition of 'out-of-state' is an aspect. And such a finding would be precedential in the states within the 6 Circuit.

  • 6. Lymis  |  January 17, 2014 at 9:16 am

    Not a lawyer.

    But if the Sixth affirmatively declares that strict scrutiny applies, that would not broaden the actual ruling, but it would definitely affect any other cases and impact all anti-gay laws in the Circuit.

    Probably won't, absent such a ruling from SCOTUS, but the certainly could. All the reasons given by SCOTUS for applying heightened scrutiny certainly apply.

  • 7. Dr. Z  |  January 17, 2014 at 12:46 pm

    As long as there's no existing precedent in the Sixth establishing the level of scrutiny they could do it. That was the issue in the First and Second Circuits in the pre-Windsor DOMA cases.

  • 8. Dr. Z  |  January 16, 2014 at 1:38 pm

    What a low, mean-spirited, spiteful thing to do. AG DeWine should be ashamed of himself.

  • 9. Steve  |  January 16, 2014 at 1:42 pm

    Pure evil.

  • 10. Thomas Ranzenberger  |  January 16, 2014 at 1:46 pm

    I think Dave has it right. This appeal is a good thing; a favorable ruling in the 6th circuit sets precedent in the rest of the circuit.

  • 11. ebohlman  |  January 16, 2014 at 9:06 pm

    And every state in the 6th has a marriage equality case pending; in particular, the case in TN is also about out-of-state recognition.

  • 12. Zack12  |  January 16, 2014 at 2:17 pm

    Only bad thing about the 6th circuit,George W. Bush was able to get eight appointees on there,so they very well may rule against us.

  • 13. Lymis  |  January 17, 2014 at 9:17 am

    Even a Bush appointee has to either have some legal justification or a willingness to blatantly ignore law and precedent. Those justifications are getting fewer and fewer.

  • 14. StraightDave  |  January 17, 2014 at 1:51 pm

    It's only 8 out of 23. So with any luck, we'll only get 1 Rove appointee. There's still a bunch from Obama, Clinton, Carter, and Reagan (yes, Reagan. It was a different world back then). En banc is always possible if the ruling looks truly nuts.

  • 15. MikeM  |  January 16, 2014 at 3:00 pm

    Ruling against us might be a good thing also. That would give SCOTUS two conflicting verdicts and they would have to settle the score

  • 16. Bruno71  |  January 16, 2014 at 3:27 pm

    As I've mentioned elsewhere, it's actually if they rule in our favor that we have a split:

  • 17. SoCal_Dave  |  January 16, 2014 at 3:46 pm

    Thanks for this, Bruno. I was not aware. I guess we don't have a split now because the ruling from the 9th sort of "doesn't count" because of the standing issue, right? So effectively, there is only one circuit decision, and it's against us?

  • 18. Bruno71  |  January 16, 2014 at 5:47 pm

    Yes, that's correct. The 9th's ruling in Perry was completely vacated.

  • 19. Dr. Z  |  January 16, 2014 at 6:05 pm

    The district court ruling was interesting in that it found the DOMA law to be an impermissible Bill of Attainder. I've never heard anyone use that angle before.

  • 20. Dr. Z  |  January 17, 2014 at 6:21 am

    The ADF is appealing the Oklahoma ruling on behalf of the Tulsa County clerk.

  • 21. Marriage Equality Round-U&hellip  |  January 17, 2014 at 6:50 am

    […] USA Ohio: The state’s attorney general is appealing the narrow marriage equality victory there from last month. full story […]

  • 22. RAJ  |  January 17, 2014 at 7:23 am

    OT but in case it hasn't been reported:

    Utah attorney general hires 3 lawyers to fight same-sex marriage ruling

    "SALT LAKE CITY — A Washington, D.C., lawyer with Utah ties and vast constitutional and appellate law experience will handle the state's case against same-sex marriage in an unconventional arrangement involving a conservative political think tank.

    Attorney General Sean Reyes named Gene C. Schaerr as lead outside counsel among three lawyers the state hired Thursday to make Utah's case in the 10th Circuit Court of Appeals.

    "Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community," Reyes said."

    Also, the Utah State Tax Commission has switched its position and will now gay couples to file joint state income tax returns.

  • 23. RAJ  |  January 17, 2014 at 7:35 am

    briefly — looks like his bio is has already been removed from the Winston & Strawn page, I had to look at the cached version. BA from BYU and he clerked for Chief Justice Warren Burger and Antonin Scalia.

  • 24. StraightDave  |  January 17, 2014 at 7:47 am

    Great. I hope he brings Scalia's bias and attitude to the scene 🙂

  • 25. Steve  |  January 17, 2014 at 12:54 pm

    Him being from BYU takes care of that too.

  • 26. SoCal_Dave  |  January 17, 2014 at 9:57 am

    "Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community," Reyes said."

    Yes, Utah's unique history of non-traditional marriage.

  • 27. allen  |  January 17, 2014 at 12:17 pm

    As if gay people are not a part of Utah's history and community..

  • 28. Dr. Z  |  January 17, 2014 at 12:43 pm

    They're "unique". We're "special".

  • 29. RAJ  |  January 17, 2014 at 1:04 pm

    It would be so strange if final national resolution to LGBT marriage equality happens as a result of cases coming out of Utah.

    This guy Schaerr is thoroughly Mormon (no surprise there). As a prominent Mormon lawyer, there's no shortage of stuff out there on him. Here's an essay he co-authored having to do with the Supreme Court and, as you say, non-traditional marriage. It's titled "The Mormon Polygamy Cases":

    "Although most Church members have heard about the case of Reynolds v. United States, few realize that during the late 1800s a total of twelve Mormon polygamy cases reached the Supreme Court within a fifteen-year period. The Court decided in favor of the Mormons in only three of these twelve cases, and handed down a total of sixteen opinions on the constitutionality or interpretation of the laws and judicial doctrines that were created to eliminate polygamy among the Mormons"

    It sounds like the court was completely fed up by the time the issue was finally resolved.

  • 30. Marriage Equality Round-U&hellip  |  January 17, 2014 at 7:49 am

    […] USA Ohio: The state’s attorney general is appealing the narrow marriage equality victory there from last month. full story […]

  • 31. Jim  |  January 17, 2014 at 10:43 am

    Schaerr resigned from Winston & Strawn. W&S likes to talk up W&S's 100% perfect score from HRC. I guess W&S didn't want the bad publicity that would come from employing a 100% anti-gay, pro-discrimination attorney, so Schaerr is gone.

  • 32. Equality On TrialState of&hellip  |  January 17, 2014 at 12:21 pm

    […] in Oklahoma, striking down that state’s same-sex marriage ban. Bishop v. United States is on appeal, also to the Tenth Circuit. (The Tulsa County Clerk also filed their notice of appeal in that […]

  • 33. Policy and Legal Update &&hellip  |  January 20, 2014 at 4:45 pm

    […] OHIO  •  On 16 January 2014, in Jim Obergefell & John Arthur v. OH Public Health Director Theodore Wymyslo, about OH recognition of legal marriages from other states when issuing death certificates, OH attorney general Mike DeWine appealed the district court ruling to the 6th Circuit U.S. Court of Appeals.  •  MEUSA Summary  •  News Source […]

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