On December 23, Judge Timothy Black of the U.S. District Court for the District of Ohio issued a ruling striking down Ohio’s constitutional amendment and state statute purporting to define marriage in that state as exclusively between a man and a woman. Judge Black’s order consists of both a declaratory judgment—that the Ohio constitutional amendment and statute violate the federal Constitution—and a permanent injunction, which prohibits state officials from enforcing those provisions.
In this column I will discuss the facts of the case, explain the judge’s reasoning for his holding as to the due process argument, and discuss how the ruling affects gay men and lesbians in Ohio and potentially in other jurisdictions.
An Eleventh-Hour Marriage
As I discussed in prior column, plaintiffs James Obergefell and John Arthur were both residents of Cincinnati, ohio, and had been in a committed relationship together for over twenty years. In 2011, Arthur was diagnosed with amyotrophic lateral sclerosis (ALS or Lou Gehrig’s Disease), a terminal illness. In 2013, after the U.S. Supreme Court decided United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act (DOMA), Arthur and Obergefell decided to get married in Maryland, where their same-sex union would be legally performed and recognized. Arthur’s illness was in its last stages, and, among other reasons, they wanted to ensure that Obergefell was listed on Arthur’s death certificate as the surviving spouse. They flew to Maryland in a medically equipped plane and were legally married on the tarmac there before flying back to Ohio later that same day. Although their marriage was recognized as valid in Maryland, Ohio law precluded its recognition in their home state.
Because Arthur’s death was imminent at the time they filed the lawsuit, the court heard arguments and issued a temporary injunction requiring that Obergefell be listed as the surviving spouse on Arthur’s death certificate, should he die before the case reached a final judgment. Indeed, Arthur died on October 22, and had it not been for the preliminary injunction (originally issued on July 22 and extended a few times), his death certificate would have listed his “marital status at the time of death” as “unmarried” despite his Maryland marriage to Obergefell.
The Temporary and Permanent Injunctions
To be entitled to a permanent injunction, a plaintiff must prove that he or she “suffered a constitutional violation and will suffer ‘continuing irreparable injury’” and that money damages do not adequately remedy the injury.
In contrast, a preliminary injunction requires a court to consider the following factors:
- Whether the moving party has shown a strong likelihood of success on the merits;
- Whether the moving party will suffer irreparable harm if the injunction is not issued;
- Whether the issuance of the injunction would cause substantial harm to others; and
- Whether the public interest would be served by issuing the injunction
When it ordered the preliminary injunction, the court found that the U.S. Supreme Court’s decision in United States v. Windsor was dispositive to the likelihood that the plaintiffs could succeed on the merits of their case, and the other factors also supported the issuance of a preliminary injunction.
Indeed, upon evaluation of the arguments on the merits, the court found that the two state provisions purporting to preclude recognition of same-sex marriages in that state were unconstitutional. The court first looked at the history of marriage laws in Ohio and nationwide, and found that Ohio had a strong history of recognizing marriages that were valid where performed, even if they would not have been valid had they been performed in Ohio. The court noted that the state’s prohibition on same-sex marriages was inconsistent with its history of recognizing out-of-state marriages generally.
Under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, no state may “deprive any person of life, liberty, or property, without due process of law.” Moreover, the court cited Loving v. Virginia for the proposition that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” that is protected by the Due Process Clause. The court acknowledged that “most courts have not found that a right to same-sex marriage is implicated in the fundamental right to marry.”
However, the court distinguished the fundamental right to marry from “the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.” The court relied on U.S. Supreme Court precedents Roberts v. U.S. Jaycees and Lawrence v. Texas for the proposition that “existing marital, family, and intimate relationships are areas into which the government should generally not intrude without substantial justification.” Thus the right to remain married implicated in this case and constitutes a fundamental liberty interest, which may not be violated without due process of law.
Based on an assessment of the type of right implicated, the court concluded that the right to remain married was subject to intermediate scrutiny. Under that level of scrutiny, when “the government attempts to intrude upon the private lives of homosexuals,” then “the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.” After undertaking a probing analysis, the court found that Ohio’s law did not survive this level of scrutiny and was therefore unconstitutional.
The court also struck down the state laws as violating the Constitution’s Equal Protection Clause, but I will not discuss the court’s analysis on that point here. In essence, the court held that classifications based on sexual orientation (as Ohio’s laws were) were subject to heightened scrutiny and that the laws did not pass muster under that level of scrutiny, nor even under the lowest rational basis scrutiny. The court powerfully concluded that “[i]t is beyond debate that it is constitutionally prohibited to single out and disadvantage an unpopular group.”
Finally, the court considered whether a permanent injunction was the appropriate remedy for the injury, and it found that it was: “weighing all factors applicable to analyzing whether injunctive relief should issue, the Court finds that each factor supports the granting of a permanent injunction.”
The Effect of the Ruling
The most immediate effect of the ruling was to permit James Obergefell to be listed on John Arthur’s death certificate as the surviving spouse. The language of the injunction was admittedly narrow; it merely requires Ohio authorities to recognize same-sex marriages on death certificates. However, the declaratory judgment that the relevant Ohio laws violate the fundamental right to marriage recognition paves the way for subsequent litigation securing greater rights for lesbians and gay men to marry in that state.
This court’s decision was merely one of many victories for gay rights advocates this year. The nation took note when its highest court decided two cases—United States v. Windsor and Hollingsworth v. Perry—striking down DOMA Section 3 and California’s Proposition 8, respectively, on June 26. In a seeming domino effect after that, New Jersey, Hawaii, New Mexico, and Utah all took steps toward marriage equality as well.
It remains to be seen whether Windsor will be the key to marriage equality in every state, or whether other factors may also play a role. However, it is clear that both law and public opinion are turning, and it will be interesting to see what 2014 brings.