While Ohio has traditionally been a national bellwether politically, the state now finds itself in the minority on same-sex marriage heading into Tuesday’s U.S. Supreme Court oral arguments.
When Ohio voters handily passed a state ban in 2004, only Massachusetts allowed such marriages. Today, three dozen states and the District of Columbia do.
Al Gerhardstein, a Cincinnati civil rights attorney who filed challenges to Ohio’s ban that are now before the Supreme Court, compared the state’s position to those of the 16 states where interracial marriage was still illegal in 1967. That’s when the high court outlawed race-based marriage bans in a Virginia case.
“It’s a comparable time in our nation’s history,” he said. “Now Ohio is one (of the remaining states with bans).”
An Ohio State University legal expert says that the cultural and judicial landscape has changed dramatically since November 2004, when Ohio voters were among those in 11 states passing same-sex marriage bans. Polls have shown growing acceptance among Americans of same-sex marriage, and same-sex marriage advocates won a long series of court victories before the Cincinnati-based 6th U.S. Circuit Court of Appeals created a judicial split with a 2-1 ruling last November that upheld bans in Ohio, Kentucky, Michigan and Tennessee.
“It once seemed very unlikely that the Supreme Court would strike Ohio’s and other state marriage bans down as being unconstitutional,” said OSU law professor Marc Spindelman. “That was the picture in 2004. Now it looks unlikely that they would be upheld.”
Spindelman cautioned, though, that the number of states allowing same-sex marriage might not be a decisive factor.
“Now it looks like one might say ‘Hey, look, we only have a relatively small number of states that are left;’ the court can at this point in a sense harmonize the national rule,” he said. But the counter-argument to that is that many states that have changed didn’t do so through the ballot box or other state action.
“A number of the states that now have same-sex marriage have same-sex marriage as a result of federal court intervention,” Spindelman said.
Ohio Attorney General Mike DeWine has repeatedly defended the state’s ban as an issue that should be determined by the democratic process. Judge Jeffrey Sutton’s opinion in the 6th Circuit decision also said it should be resolved politically, not by judges and lawyers.
Phil Burress, leader of the Citizens for Community Values based in suburban Cincinnati, said the cases are an attack on traditional marriage and infringe upon states’ rights.
“There is no such thing as a federal marriage license,” Burress said. “This is not about equality. This is about destroying the institution of marriage.”
He predicts that even after the high court rules, there will be more litigation over marriage, and warned: “Politicians who are on the wrong side of this issue will be held accountable.”
Pam Yorksmith, who travels to other states for work as a health care information technology consultant, said it can be vexing to return home to where her marriage to Nicole Yorksmith, which includes two children, isn’t recognized. They live in northern Kentucky and work in neighboring Cincinnati, where they became part of the legal challenge to Ohio’s ban.
“I’m not married in Kentucky or Ohio, but when I’m in Rhode Island, I’m married,” she said. “When I get to Florida, I’m married. But when I travel back to the state where we have bought a home, pay taxes, and are involved in our community, we’re not recognized as a married couple or a legal family.”
