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BREAKING: Federal judge strikes down Ohio’s ban on recognition of out-of-state same-sex marriages

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Ohio state sealJudge Black has issued his anticipated ruling in Henry v. Wymyslo, challenging Ohio’s refusal to recognize same-sex marriages performed outside the state.

From the opinion:

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.

The ruling doesn’t require the state to perform same-sex marriages.

There’s a stay pending briefing on whether the judge should issue a stay pending appeal. Briefing on the stay is due to be completed tomorrow. The opinion notes that the judge is not inclined to stay the effects of the ruling on the plaintiffs to the case, but he is inclined to stay the effects of the ruling striking down the non-recognition provisions for all same-sex married couples.

He noted:

The Court STAYS enforcement of this Order and the Permanent Injunction until the parties have briefed whether or not this Court should fully stay its Orders until completion of appeal to the United States Court of Appeals for the Sixth Circuit and the United States Supreme Court. The Court is inclined to stay its finding of facial unconstitutionality but not to stay the Orders as to the as-applied claims of the four couples who are Plaintiffs because they have demonstrated that a stay will harm them individually due to the imminent births of their children and other time-sensitive concerns. The Court inclines toward a finding that the issuance of correct birth certificates for Plaintiffs’ children, due in June or earlier, should not be stayed. The Court is further inclined to conclude that the Defendants will not be harmed by compliance with the requirements of the United States Constitution. Nevertheless, Plaintiffs shall file today their memorandum contra Defendants’ oral motion to stay, and Defendants shall file a reply memorandum before 3:00 p.m. tomorrow. The Court shall then rule expeditiously.

Thanks to Kathleen Perrin for this filing

For more information on Obergefell v. Wymyslo from The Civil Rights Litigation Clearinghouse, click here.


  • 1. Michael Grabow  |  April 14, 2014 at 8:24 am

    The links in "ruling" and "opinion" give this when clicked:

    Sorry! This document is not publicly available.

    The owner has set this document to private.

    You will not be able to read it unless the owner changes it to public on their "My Uploads" page, or sends you a direct link.

    Was a stay issued?

  • 2. Scottie Thomaston  |  April 14, 2014 at 8:26 am

    Kathleen is having Scribd issues this morning :/ She's uploading it again so check back! Sorry.

  • 3. Michael Grabow  |  April 14, 2014 at 8:35 am

    No problem! I just wanted to let someone know in case you weren't aware.


  • 4. Scottie Thomaston  |  April 14, 2014 at 8:37 am

    Updated with better filing links.

    I couldn't check before to see if there was a stay, but there is a temporary one issued until the parties can file briefs on whether a stay pending appeal should be issued. Just added that now.

  • 5. Michael Grabow  |  April 14, 2014 at 8:35 am

    Oh, and was there a stay issued?

  • 6. Andrew T.  |  April 14, 2014 at 8:32 am

    Will this mean that your Michigan same-sex marriage won't be recognized in Michigan, but will be recognized in Ohio?

  • 7. Scottie Thomaston  |  April 14, 2014 at 8:37 am

    More likely it will be stayed pending appeal.

  • 8. sfbob  |  April 14, 2014 at 11:01 am

    It's complicated. See footnote 25 on page 40. The judge notes that he is inclined to stay his decision on the facial challenge aspect of the case, but is not inclined to do so with respect to the claims of the plaintiffs. But still he asks that they submit briefs arguing against issuing a stay in their specific case. I suppose he is doing what he can to prevent any questions of abuse of discretion. At the same time he's seems to be putting everyone on notice that time is running out for those who would deprive us of our rights.

    One thing that is pertinent here is that since this ruling applies ONLY to recognition of marriages performed in other states, it's tough to see what damage or confusion the absence of a stay could generate. There will not be any rush to get married before a higher court issues a stay and therefore no class of couples with "suspect" marriages will be created.

  • 9. Zack12  |  April 14, 2014 at 8:39 am

    I believe it was established that even though Ohio won't allow first cousins to marry, their marriages will be acknowledged if they move to Ohio.
    Not the case for same sex couples and as the judge will likely point out in his ruling, there really is no way to get around that fact without acknowleding bigotry.

  • 10. StraightDave  |  April 14, 2014 at 8:48 am

    "Staggeringly devoid of any legitimate justification…".
    Don't mince any words there, judge. Let us know how you feel.
    Given that this case is "only" about recognition, it would surprise me if he issued a stay. What the 6th does is another story. But Kitchen does not serve as precedent. One day there will be a crack in the auto-stays, and this might be the one. It's really hard to argue "staggeringly devoid" = stay. SCOTUS might even have to think twice on that one… or maybe think once, is what I really meant 🙂

  • 11. davep  |  April 14, 2014 at 9:22 am

    Yes, the language used in these rulings keeps getting stronger and more blunt. Good!

  • 12. Retired lawyer  |  April 14, 2014 at 9:00 am

    This posting of Judge Black's opinion seems to be missing pages, including 17, 18, 20, 21, 23, and 27.

  • 13. sfbob  |  April 14, 2014 at 10:27 am

    Looks like that's now been corrected.

  • 14. Ranjit  |  April 14, 2014 at 9:39 am

    Issuing a stay pending a briefing on whether a stay should be issued has become my new favorite move that lower courts have been forced to perform to keep in line with the unofficial SCOTUS mandate of making sure no actual same sex marriages occur any time soon.

    This narrowly beats out the Ninth Circuits "simply refuse to schedule a hearing and make sure to fire that clerk who accidentally scheduled one" tactic.

  • 15. ABC  |  April 14, 2014 at 9:42 am

    Was the clerk fired? missed that story…

  • 16. Ranjit  |  April 14, 2014 at 9:50 am

    Sorry I was (not so) clearly being sarcastic at all the judicial gymnastics.

  • 17. SoCal_Dave  |  April 14, 2014 at 9:40 am

    "The Court is further inclined to conclude that the Defendants will not be harmed by compliance with the requirements of the United States Constitution. "

    Does it get any better than that? 🙂

  • 18. RCChicago  |  April 14, 2014 at 10:07 am

    It's beautifully put.

    I couldn't help but wonder as I read his well-articulated, rational reasoning:

    Given the strong case he makes for how the State is acting on animus, how it practices a double-standard of rules for straight vs gay couples—particularly since it used to provide these birth certificates under similar circumstances until the current administration took over—and how its actions are having real and immediate and harmful impact on these people, what does the State have left for making a continued case as it appeals? Judge Black even dismissed the "specious" actions of lawyers who know better but still point to the need of protecting the will of the people as indicated by their votes. He barely wasted any time on the irrationality of the hetero procreation arguments as justification of the ban because he deemed them so ridiculous. As a non-lawyer, I can't imagine what argument any self-respecting, intelligent lawyer would make in a courtroom against any of the Judge's points.

  • 19. davep  |  April 14, 2014 at 10:03 am

    I'm about half way through it and wow, this is a REALLY strong ruing with some very compelling wording. I especially like this part, which appears in BOLD and UNDERLINED in the ruling, where the court is telling the opposition 'enough is enough with that will-of-the-people crap!':

    "given that all practicing attorneys, as well as the vast majority of all citizens in this country, are fully aware that unconstitutional laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal to the purportedly sacred nature of the will of Ohio voters is particularly specious. "

  • 20. sfbob  |  April 14, 2014 at 10:29 am

    I liked that one as well…"repeated appeal to the purportedly sacred nature of the will of the…voters is particularly specious."

    That one should be bolded, italicized and underlined and thrown in the face of any of the defendants of these cases who seek to use that argument in the future. Also at NOM. The love to whine about how a ruling against a marriage equality ban insults the people who voted for it. On that basis one of course has to ask whether those who voted against such a ban are not likewise entitled to dignity and respect.

  • 21. weaverbear  |  April 14, 2014 at 4:48 pm

    It is the work of the judiciary to defend the rights of the minority from the tyranny of the majority. Since when is it ever appropriate to subject any minority's civil rights to a popular vote?

    Given the unmitigated lies that I saw on the airwaves here in California prior to election day in '08, and I am certain continue in other parts of this county, how any court could conclude that a public's vote would not be guided in large part by animus would amaze me. That federal judge after federal judge in the last few years continue to affirm out rights as a community not to special rights, but to the same rights as everyone else, regardless of the justice's politics, reaffirms my faith in our judiciary.

    It's wonderful to be able to refer to them as just that – justices.

  • 22. Schteve  |  April 16, 2014 at 3:04 pm

    The popular vote aspect isn't a relevant argument. The fact is, constitutional rights are granted and revoked by amending constitutions. It just so happens that 49 states require popular votes for state constitutional amendments.

    Yes these bans are unconstitutional under the federal constitution, but there is simply no way to extend or modify state constitutional rights in general without going through a popular vote.

  • 23. StraightDave  |  April 14, 2014 at 1:08 pm

    I rarely, if ever, have seen bold underlining in a federal court judgement. Italics seems the more modest emphasis of choice. I got the feeling the judge was essentially yelling at people to pull their heads out of their ass and stop embarrassing themselves in public, especially the attorneys who all know better and are taking the judge for a fool.

  • 24. davep  |  April 14, 2014 at 10:14 am

    …… and there it is, on page 32. Heightened Scrutiny applies:

    "The Court’s entire Obergefell analysis applies and controls here, and classifications based on sexual orientation must pass muster under heightened scrutiny to survive constitutional challenge. "

  • 25. davep  |  April 14, 2014 at 10:17 am

    …. and it goes on to say that the ban doesn't even survive Rational Basis review. Good.

  • 26. Zack12  |  April 14, 2014 at 10:33 am

    It's nice to see a judge finally come out and tell it like is.
    Even if some of the people who voted for this didn't do so out of animus, the people who created the bill and played ads to get support for the bill certainly were motivated by just that.

  • 27. davep  |  April 14, 2014 at 10:34 am

    Did you guys notice, at the very end of the PDF, the song lyrics for "Happy Adoption Day"? I couldn't tell if that is included as some kind of necessary legal footnote because of some reference to it somewhere earlier in the ruling, or if it was just included as a message from the court to the plaintiffs…? Anyway, it's really nice.

  • 28. Retired lawyer  |  April 14, 2014 at 3:17 pm

    The lyrics for "Happy Adoption Day" are part of the Opinion. The Judge appended them as the last, 45th page, where they stand alone, without any explicit explanation. I say explicit, because I am guessing that the Judge is giving his readers credit for the ability to recognize an anthem when they see one.

  • 29. sfbob  |  April 14, 2014 at 10:44 am

    To harken back to the old trope of "won't somebody think of the children" as a device for targeting our rights, Judge Black has indeed thought of the children.

    "Here, Defendants’ discriminatory conduct most directly affects the children of same-sex couples, subjecting these children to harms spared the children of opposite-sex married parents. Ohio refuses to give legal recognition to both parents of these children, based on the State’s disapproval of their same-sex relationships."

  • 30. Zack12  |  April 14, 2014 at 11:12 am

    Their response would be that it's the gay and lesbian couples fault for putting the children in that scenario.
    Their hatred sickens me to no end, it really does.

  • 31. sfbob  |  April 14, 2014 at 11:42 am

    And by doing so they reinforce the opinion of the judge. This of course makes their hatred no less sickening, but putting it out there for all the world to see does us the favor of making it quite obvious just what is going on.

  • 32. Mike in Baltimore  |  April 14, 2014 at 1:55 pm

    That is the exact same type of comment bigots in Virginia and other states had for the children of mixed race parents. "Won't anybody think of the prejudice the children will face?" was one of the cries.

    The problem with that question is who would be the people showing prejudice? Not the parents, but the bigots.

  • 33. grod  |  April 15, 2014 at 10:08 am

    Hopefully, this week Don Holladay, lawyer for Oklahoma's Barton and Bishop will take note of Judge Black's opinion about impact on kids on not treating their parents as full citizens when he addresses to 10 Circuit Appeal Court Justices Paul Kelly, Jerome Holmes and Carlos Lucero. These three heard Utah's Kitchen v Herbert case last week, peppering lawyers Gene Schaerr and Peggy Tomsic with questions. I was disappointed that Tomsic let stand such statements by Schaerr's as kids not raised by both biological parents are likely to be criminals. Perhaps Holladay will find the occasion to right the record, at least in the mind of Judge Kelly.

  • 34. StraightDave  |  April 14, 2014 at 1:01 pm

    The conclusion hits the high points with no exceptions, weasel words, or special rights.

    " same-sex couples married in jurisdictions where same-sex marriage is lawful, … are denied significant liberty interests and fundamental rights"

    "Defendants … are permanently enjoined from … (c) denying full faith and credit "

    Just the same unadorned straightforward words used to describe the rights of all citizens. Nothing special here. And especially, Fundamental Rights!!

  • 35. Retired lawyer  |  April 14, 2014 at 1:36 pm

    This opinion fairly bristles with anger at the State defendants, with Governor Kasich and Attorney General DeWine singled out for their deplorable behavior. I cannot recall ever reading an opinion so dismissive of the arguments presented to oppose marriage equality.

  • 36. grod  |  April 15, 2014 at 12:17 pm

    Retired – Imagine that this week you were standing with lawyer Don Holladay of the Barton and Bishop case before Judges Kelly, Holmes and Lucero of the 10 Circuit Appeals Court. How would you use Judge Black's opinion to marshal your facts?

  • 37. Craig Nelson  |  April 14, 2014 at 1:39 pm

    Yes it' a very strong ruling. One would of course like a true marriage equality ruling but it would only be stayed in any case. I appreciate that the judge here has isolated a particular aspect – not the denial of marriage per se, but one component of that – the recognition of out of state marriages.

    It opens up some interesting parallel arguments and because it is only in the borderlands of the full legal argument it can subject these aspects to particularly rigorous examination. It's hard to argue that a State can do what in Windsor the Federal Government cannot. And the more energy the State puts into trying to assert a sovereign right to not even recognise other States' marriages the more the thought dawns that we are in fact dealing with animus.

  • 38. sfbob  |  April 14, 2014 at 2:13 pm

    One thing I've noticed repeatedly in the past few months is that states seem to be asserting the "public policy exception" in which their own laws otherwise do not support. They really are just painting themselves into a corner.

  • 39. Rick O.  |  April 14, 2014 at 2:37 pm

    Holy Moley, Batman, Black is wielding the terrible swift sword of Justice. I'm sure he's a Republican, as in one of the Radicals from the 1860's backing the 14th Ammendment. Have we heard such rhetorical oomph since Bryan's Cross of Gold speech? Maybe Scalia has a counterweight now.
    Clearly Black, after 8 months of Obergefell plus, has lost patience but not reason (and doesn't give a hoot about being appointed to Appeals). He makes federal judge number 8 in a row to find marriage inequality unconstitutional, which leads me to wonder, can any district or Appeals ruling come out differently? If so, the language and reasoning will be either remarkable or laughable.

  • 40. Zack12  |  April 14, 2014 at 3:44 pm

    I think if this case had been about the whole ban, he would have struck that down.
    As it was, he didn't go the Judge Friedman route and only dealt with the issue in front of him, the lack of recognition for out of state marriages.

  • 41. Andrew  |  April 14, 2014 at 9:12 pm

    I think its clear in his ruling that he thinks his justification would also apply to in-state gay marriages. However, its good to have this ruling by itself rather than a ruling on whether the state has to perform gay marriages. This is because this ruling more closely tracks the Supreme Court ruling in the DOMA case. As such, it makes it harder for any appeal to say he was reaching too far in interpreting the Supreme Court ruling. The odd thing is, because of this step by step division of different angles on the issue, it becomes clear that 1) since the Feds have to recognize each state's definition of marriage, that 2) each state has to recognize other state's definitions, so 3) having a different in-state definition when you recognize out-of state gay marriages is meaningless if everybody can just take a vacation, get married and have "effective" gay marriage in their home state. This is why all judges are taking the DOMA ruling to the next logical interpretation beyond what the Supreme Court actually said in that ruling. There is no other logical interpretation of how to apply the DOMA ruling if you project forward how it must inherently play itself out.

  • 42. Michael Grabow  |  April 15, 2014 at 7:57 am

    There are a lot of residency rules when it comes to getting married though.

  • 43. Pat  |  April 14, 2014 at 3:54 pm

    If the language is so spectacularly strong and blunt, it actually seems quite odd and disappointing that he mentions that the court is "inclined" to stay the ruling pending appeals (and only let the marriages of the sole plaintiffs be recognized right away). Come on, enough already…

  • 44. Retired lawyer  |  April 15, 2014 at 6:16 am

    Others share your disappointment, Pat, but Judge Black, like all the other Federal judges, must obey the Supreme Court. By reversing the 10th Circuit's decision to not stay the District Court's decision by Judge Shelby in Kitchen v. Herbert, and ordering a stay, the Supreme Court sent an unmistakable signal that it wants District Court decisions invalidating same sex marriage bans to be stayed pending appellate action. As an aside, I think that this appreciation of the Supreme Court's signal accounts for the phenomenon of all three of the briefs supporting us in the Virginia Bostic v. Schaeffer case asking for the 4th Circuit to stay its mandate pending Supreme Court review. I personally would not second guess Theodore Olson, a former Solicitor General, nor Paul Smith, who also has extensive Supreme Court experience, in making such a tactical decision. It was Olson, by the way, who dared to answer Justice Scalia's rhetorical questions , "when did…" with his own set of rhetorical questions. That was gutsy, and remarkably enough, it shut Scalia up.
    That took place during oral argument in the Perry prop 8 case.

  • 45. SeattleRobin  |  April 14, 2014 at 4:27 pm

    Since the Loving vs. Virginia case is important to how our cases are going, I thought it worth mentioning that I just recently watched a documentary about it. The first half covers who the Lovings were and how they ended up going to court. The second half covers the case. Of special interest to those who read all these briefs and opinions, there is a section with audio clips of the actual oral arguments before the Supreme Court. The State's "for the children" Hail Mary could have come from any of the current cases.

    The documentary is called The Loving Story and is available on Netflix. (If you don't have Netflix, you can sign up for a one month free trial in order to watch it.)

  • 46. Ragavendran  |  April 14, 2014 at 5:37 pm

    Thanks Robin. I'll be sure to check it out!

  • 47. Josh  |  April 14, 2014 at 4:49 pm

    I find this ruling stupid in a way. So now this one will be appealed and it doesn't even allow marriages in Ohio. So there has to be ANOTHER lawsuit for that to happen. Too many cases clogging up the courts. I mean it's great for the people involved and I guess couples can go to IL or MD to get married, whichever might be closest for the couple, and supposedly have it recognized by OH, after all appeals are exhausted. I love some of the quotes others have mentioned above and it's all great, but just feels like such an endless journey taking baby steps. I can't wait until the USSC finally finishes what they should have last year.

    Of course the next thing will be lawsuits against the "religious liberty" statues and likely constitutional amendments for those horrid laws. Other photog, baker, florist, etc cases. Including Kinsey scale/honest human sexuality variation in basic public school sex ed classes. Cases against transgender rights and banning minors from "reparative therapy" etc etc….. And ENDA still hasn't passed. Looks like we'll be fighting cases for GLBT equality for the rest of my lifetime and then some.

  • 48. Eric  |  April 14, 2014 at 6:39 pm

    In American jurisprudence, the courts can only address the issues brought before the court.

  • 49. ebohlman  |  April 14, 2014 at 11:12 pm

    And, I might add, when American courts address a new issue, they look to previous decisions on somewhat-related issues and try to build on them. Right now Windsor appears to be serving as the foundation, and since Windsor itself was a recognition ruling, the path to rulings like Judge Black's is pretty direct and obvious. And in turn the path from state recognition rulings to state licensing rulings is almost as direct, whereas the path from Windsor directly to state licensing rulings is a little rockier (though several district judges plainly think the rocks aren't impassible).

  • 50. SeattleRobin  |  April 14, 2014 at 9:34 pm

    You're right that there will be an endless parade of cases on various issues. But that's no different than any other category of rights. Look at how states are making it more difficult to vote. Look at how reproductive rights are constantly being challenged. Look at racial profiling and unequal pay for women. ALL of our liberties must constantly be protected.

  • 51. grod  |  April 15, 2014 at 12:39 pm

    Robin – what is innovative in Black's ruling is the assertion that as an aspect of the right to marry is a right to remain married and the right of you and your children (if any) to be recognized. Equally situated children also have a right to keep their parents being their parents when they move from state to state! Which American wouldn't concede under normal circumstances self-evident fact?

  • 52. Warren  |  April 14, 2014 at 7:44 pm

    Why federal judge ruled Ohio must recognize gay marriages

    A federal judge did not overturn Ohio's constitutional ban on gay marriage, but he said the state has to treat same-sex couples married legally in other states the same way it treats heterosexual couples.

    I think this ruling is really going against Section 2 of the DOMA. Wonder if the SCOTUS would take this case and only ruled on Section 2 of the DOMA and not the 14th amendment?

  • 53. sfbob  |  April 15, 2014 at 10:17 am

    I think the purpose of Section 2 of DOMA was to provide states with a means of invoking the public policy exception to Full Faith & Credit. Section 2 was not litigated in the first round of cases, up to and including Windsor (well it IS being litigated in Bishop, which began long ago but the groundwork was not there at the time). The current batch of cases contest the rights of states to invoke the public policy exception in order not to recognize same-sex marriages performed in other states. They keep making the point that the public policy exception cannot be used in an arbitrary, "just because" kind of way, no matter what Section 2 of DOMA says. What they are doing is de-fanging Section 2 so that by the time a case about it reaches SCOTUS, Section 2 will already be effectively dead.

  • 54. Ragavendran  |  April 14, 2014 at 8:21 pm

    Plaintiffs filed their brief opposing the Defendant's oral motion for stay:

  • 55. sfbob  |  April 15, 2014 at 10:30 am

    So they got it done even before Judge Black's deadline of 3 p.m. today.

    The brief is very good and very clear. One of the signal points is that, unlike those cases in which state marriage equality bans were entirely overturned, recognition of marriages solemnized out-of-state takes place on a one-at-a-time basis as circumstances may dictate. The state is therefore hard pressed to show how it would be irreparably harmed if the ruling is not stayed.

  • 56. Rose  |  April 15, 2014 at 12:01 am

    It appears from reading this ruling that if the State(ANY State) is going to recognize a legal heterosexual marriage performed OUTSIDE of a State(again ANY State) it MUST also recognize the legal marriage of a Same-Sex couple whose marriage was performed legally in a State that grants that right……these rulings are bringing in the Full Faith and Credit Clause even though that's NEVER been done before!!!

    My BIGGEST issue is NOT with the rulings themselves, but granting a Stay when the District Judge and the defendants know there is NO chance of being successful on appeal or with SCOTUS…….all that is happening is just DELAYING the INEVITABLE!!!

    Marriage is a FUNDAMENTAL RIGHT and it SHOULDN'T only be a Fundamental right if the person happens to be of the OPPOSITE-SEX from you!!!

  • 57. Fr. Bill  |  April 15, 2014 at 12:51 pm

    A very clear brief. Might this be the end of "gay means stay" ? Refusing to stay the opinion would cause no disruption or mayhem and would not burden the State in any significant way. I see no reason why the Sixth Circuit would overrule it. Justice Kagan is assigned to the Sixth Circuit. If she refused they could go Justice shopping but I wonder if even Scalia would touch this.

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