Analysis: Federal Judge Plans To Rule Against Ohio Gay Marriage Ban

(Brian Bull/WCPN)
(Brian Bull/WCPN)
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It appears Ohio's constitutional amendment that bans gay marriage is in jeopardy. From our Statehouse Bureau Jo Ingles reports that a federal judge is promising to strike down a main part of that law.

Then, ideastream’s Tony Ganzer gets analysis of the announcement from Subodh Chandra, a former federal prosecutor, Cleveland city law director, and managing partner of the Chandra Law Firm in Cleveland.

INGLES: Cincinnati area Attorney Al Gerhardstein, the attorney who has been fighting the state's ban on recognizing gay marriages performed in other states for purposes of death and birth certificates, says Federal Judge Tim Black is poised to rule a key part of Ohio's law unconstitutional.

GERHARDSTEIN: "What this means is Judge Black is saying that he will declare the marriage recognition ban in Ohio unconstitutional so that if you are in a same sex marriage from another state and you come to Ohio, Ohio will have to recognize your marriage."

INGLES: A spokesman for Ohio's Attorney General says he can't comment on the ruling until it has been released. But Dan Tierney says even if the judge does what Gerhardstein says, it won't make gay marriage legal in Ohio.

TIERNEY: "The order would be limited to the recognition of marriages performed outside the state of Ohio according to other state's law. It does not address the overall issue of the law as performed in the state of Ohio."

INGLES: Tierney says Ohio will fight the ruling when it comes down. Gerhardstein says in other cases where the states have challenged similar rulings, the federal edicts have ultimately prevailed.

GANZER: The ruling from Cincinnati, when it is made, will be the latest in a string of decisions against state gay marriage bans. For the broader context, I spoke with Subodh Chandra, a former federal prosecutor and current managing partner of the Chandra Law Firm in Cleveland. I asked first how unusual it is for Judge Black to announce a ruling two weeks before he makes it.

CHANDRA: “It’s a little bit unusual for Judge Black, or any judge, to announce that he’s going to issue a particular decision on a certain day. But it does make sense here, because the judge has already previously indicated his inclinations on the general principle that was asked for initially which was that the birth certificate issue be declared unconstitutional, the restriction on birth certificates. So what the attorney Al Gerhardstein and his co-counsel were asking for on behalf of the plaintiffs was that the judge look at the Ohio marriage amendment as applied to the situation of birth certificates and say that it’s unconstitutional as applied, not on a broader basis. It became clear during the course of the litigation that it was fair game to ask for the judge for a broader ban, and the judge was indicating that he was inclined, based on his prior decision, to get rid of the ban all together. ”

GANZER: “Now this doesn’t necessarily mean that gay marriage will be legal in Ohio after this ruling.”

CHANDRA: “What the ruling will mean, it appears, because this is all the plaintiffs have asked for, is that the gay marriage ban not be used as a way to discriminate against couples who have been married out of state, where their marriages are suddenly dishonored under Ohio law, thus treating them unequally with their home jurisdictions. That’s an important principle. We will have to fight another day over the issue of whether refusing to marry committed, loving couples in Ohio who happen to be of the same sex, as opposed to opposite sex couples, is constitutional or not.”

GANZER: “You, of course, are a former law director of the city of Cleveland. Do you think this ruling will mean anything for how cities handle marriages—will we see couples flooding City Hall, for example, or do we have to wait for the next step?”

CHANDRA: “It appears based on the early news reports that there may have to be a next step of a challenge to the denial of the opportunity to marry within Ohio, but this is nevertheless a major step.”

GANZER: “Is there anything else you think people should keep in mind as we get more information about this ruling?”

CHANDRA: “As we look down the road the great uncertainty is what is going to happen at the Sixth Circuit Court of Appeals or potentially beyond at the U.S. Supreme Court. The Sixth Circuit Court of Appeals is already considering the federal district court decision in Michigan that invalidated as unconstitutional Michigan’s same-sex marriage ban. And they’ve stayed that decision, and they’re going to make a final decision on what to do with that ruling—the Sixth Circuit is—sometime, you would imagine, in the coming months. Around the country every decision has gone in favor of the Constitution, and equal protection, and equality of opportunity, but we don’t know what the Sixth Circuit Court of Appeals is going to do, and it tends to lean conservative. What we’re going to need to see is what happens in that court, and whether fair-minded judges who are not necessarily Democratic appointees will view this the way that some other Republican judicial appointees have around the country, which is to stand up for equality.”

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