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Ohio’s Ban on Recognizing Gay Marriages Ruled Unconstitutional, But Still in Place for the Moment

Monday, April 14, 2014 at 5:48 PM

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Activists demonstrate in favor of legalizing same-sex marriage in Ohio. (Nick Castele / ideastream)

A federal judge has ruled Ohio’s ban on recognizing gay marriages is unconstitutional. But that doesn’t mean the state must recognize those marriages immediately. And as Ohio Public Radio’s Jo Ingles reports, this decision has people on both sides of the issue wondering what will happen in the coming days.

Federal Judge Timothy Black says the marriage ban on recognizing same-sex marriages Ohio voters passed in 2004 is unconstitutional. And Ohio Attorney General Mike DeWine says that means “that Ohio has to recognize out-of-state marriages of couples of the same sex,” DeWine said.

Dewine says the ruling does not go into effect immediately, since the case is being appealed. But the temporary block on the order could be lifted as early as Tuesday afternoon by the Sixth Circuit Appeals Court.

The attorney who brought the suit, Al Gerhardstein says if it is, that could open the door to recognition of gay marriages performed in the 17 states where it is legal.

“Now when they show up at the Ohio border, they don’t lose their marriage,” Gerhardstein said.

But this particular case is narrow, and involves just who can be listed as a parent on a birth certificate Four couples are named in the suit, and the ruling could allow for just those couples to be listed on their children’s birth certificates. But there’s a chance it could allow for the recognition of the marriages of all same-sex couples. 

Jennifer Lape and Leah Kaiser were united in a non-legal commitment ceremony in front of their friends and family in Ohio last year.  And they were married in a legal ceremony in Chicago this past weekend in hopes this court ruling will allow their union to be recognized by state law.

Lape says they’ve thought about adopting children, but right now, it’s complicated.

“If we were to adopt a child, we would not both be on the birth certificate of the child,” said Lape. “And even if one of us were to carry the child, the other one would not be legally the parent for that child.  So that’s a pretty big consideration that we take into account. And we have personally chosen not to have children because of that reason.”

Some other same-sex couples say Ohio law requires one of them to legally be treated as a stranger on an adoption. 

Columbus attorney Carol Fey is a parent to two children, though birth certificates show her as the parent of one, her partner as the parent of the other. Fey says she’s been drafting legal agreements with gay couples for two decades. But she says there are gaps the law cannot fill.

“How we treat them as far as tax dependencies cannot be patched,” Fey said. “Their eligibility for health insurance on their respective health insurance policies can’t be patched very easily. There are just an assortment of things out there—their ability to inherit through grandparents. The child I adopted doesn’t inherit through Joan’s family.  The child Joan adopted doesn’t inherit through mine. Certainly they can make more complicated wills to do that but families don’t think that way. They think of themselves as an integrated unit. And it really takes adoption to allow that unit to be legally complete.”

Fey is ready to file for legal adoptions for herself and her partner, as well as another gay couple, if the federal court opens the door for that opportunity later this week.

But even if that happens, an advocate for the voter-passed amendment banning gay marriage says it won’t make much of a difference. Phil Burress with the Citizens for Community Values says this is a case of a liberal federal judge overstepping his authority.

“Judge Black’s decision is basically meaningless,” Burress said. “And this is going to go up to the Supreme Court. When it gets to the Sixth Circuit Court of Appeals, then we will have judges that will interpret the law, not legislate from the bench.”

No one disputes this issue will eventually go on to a higher court. But this case is being watched very carefully because it could eventually be the one, or be combined with the one, that the nation’s highest court would consider at some point. 

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