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a state which not only bans same sex marriage but also recognition of same sex marriages legally performed in other states.

As you can read in this BuzzFeed story,

A federal judge in Ohio ordered state officials Monday to recognize the marriage of two men that was performed in Maryland on the death certificate of an Ohio resident in hospice care who the judge says “is certain to die soon.”
Judge Timothy Black issued a temporary restraining order through August 5th at the request of the two men.   He could extend the order if (a) it has not been overturned by the Circuit Court of Appeals or (b) the dying man is still alive.

It is worth noting the difference between the state of Ohio and the city of Cincinnati on this matter:

Ohio Attorney General Mike DeWine’s office defended the state’s laws in filings with the court on Monday, but Cincinnati city lawyers representing Dr. Camille Jones, the vital statistics registrar for the city, declined to defend the law, telling the court, “The City will not defend Ohio’s discriminatory ban on same-sex marriages,but the City’s vital statistics registrar is bound to follow Ohio law until that law is changed or overturned.”
There are several SCOTUS decisions applicable in this case, starting quite obviously with Windsor, which overturned part of DOMA (but did not require states to recognize out of state same sex marriages).  The other applicable case is Romer v Evans, a 6-3 decisionwhich overturned a Colorado referendum amending the state Constitution to deny gays protection against discrimination, the Court finding the referendum did not meet the rational basis test.

Here is a key paragraph from the Buzz Feed article:  

Looking at Ohio’s bans on recognizing same-sex couples’ out-of-state marriages, while acknowledging its recognition of the marriages of opposite-sex couples who would not be allowed to marry in Ohio, Black concluded, “The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: ‘to impose inequality’ and to make gay citizens unequal under the law.”
The issue on which that paragraph focuses would apply to most states that do not recognize same sex marriages legally performed in other states.  It is this kind of challenge that will inevitably lead to overturning the portion of DOMA that says do not have to recognize same-sex marriage:  if you accept out of state opposite sex marriages you would not allow to be performed in your state (degree of relatedness, age) then to deny same-sex marriages is clearly a violation of equal protection.

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Comment Preferences

  •  Tip Jar (20+ / 0-)

    "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

    by teacherken on Tue Jul 23, 2013 at 05:53:42 AM PDT

  •  We live in Ohio, were married in New York in (5+ / 0-)

    2011, and watch this issue very closely here in Ohio.  I hope that within the decade Ohio's laws will change.  But that's being overly optimistic, I'd wager.

    That's one more thing to add to my long list of small problems. --my son, age 10

    by concernedamerican on Tue Jul 23, 2013 at 06:11:18 AM PDT

  •  Good to hear it. I'm an avid supporter of (7+ / 0-)

    marriage equality and was thrilled to vote YES on Maryland's Question 7, but I'm not sure this case signals the end of DOMA, sadly.  

    If you look at Windsor, the Court's opinion was quite limited.  The Court did NOT hold that recognizing one type of relationship and not another is a violation of equal protection, contrary to what the popular narrative has been on my facebook feed.  Basically, the Court held that marriage is a state issue—states have historically been free to define marriage how they like.  The federal government does not have an interest in defining marriage one way or another—it's just not a federal issue.  Once a state DOES decide to include same-sex couples within the definition of marriage, the federal government cannot decline to recognize those marriages, because it has no interest in defining marriage in the first place.  I'm not sure the same argument would extend to the states.  

    TL;DR: Much of the Court's opinion focused on the traditional role of the states vs. the federal government in defining marriage.  It wasn't a straightforward EP case.  

    •  I think Kennedy's argument of (3+ / 0-)
      Recommended by:
      teacherken, LWelsch, misslegalbeagle

      "equal protection and equal dignity" is more far-reaching than people realize.

      The issue of the feds refusing to recognize a lawful marriage in order to impose a disadvantage on gay couples seems to be a very similar issue as the state of Ohio refusing to recognize a lawful marriage in order to impose a disadvantage on gay couples, and gay couples alone.  

      In no other case does Ohio refuse to recognize other out of state marriages which violate its own marital statute, and that's analogous to the fed's own recognition of all lawful marriages except for those condemned by DOMA.

      •  yep eom (1+ / 0-)
        Recommended by:
        LWelsch

        "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

        by teacherken on Tue Jul 23, 2013 at 10:21:48 AM PDT

        [ Parent ]

      •  Oh you're absolutely right—that's the flip (1+ / 0-)
        Recommended by:
        skrekk

        side of the argument I mentioned; and I think its a pretty good argument.  I was just pointing out that Kennedy's opinion in Windsor was a lot more about federalism than it was about equal protection.  The holding was NOT that all relationships are equal and equally deserving of the protection and dignity of the state.  

        I'm interested to see what happens when the rest of DOMA is challenged.  I don't think its a slam dunk either way.  Although I think your point about Ohio not refusing to recognize other lawful marriages is very powerful.  

        •  I don't think section 2 of DOMA can be challenged (1+ / 0-)
          Recommended by:
          misslegalbeagle

          per se since it essentially restated what the status quo was, that there's a longstanding public policy exception to the recognition of out of state contracts and licenses.   Whether that status quo extends as far as purposefully disadvantaging an entire class of lawful citizens is the larger question, especially on so irrelevant a basis as gender or sexual orientation.

          The advantage of a case like this or like Windsor's is that the harm and animus are both abundantly clear and shocking to the average person (especially to anyone familiar with ALS).    My question is whether it remains an as applied ruling if the plaintiffs are successful or whether it becomes a broader ruling affecting that entire circuit.   And if it does, are the bigots dumb enough to appeal it?   Do they really want to be fighting the widower of an ALS patient and risk having SCOTUS review a case like this?    If anything that's worse than fighting Windsor, the widow of an MS patient.

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