Timothy BlackOhio only recognizes marriages between a man and a woman.  In 2004 Ohio voters overwhelmingly approved  (61.71% to 38.29%) a constitutional amendment defining marriage to be between one man and one woman. Federal District Court Judge Timothy Black on Monday ordered that John Arthur’s death certificate (who is near death) show that he was married and that James Obergefell is his surviving spouse.  They flew to Maryland that issues marriage licenses to same-sex couples.

Arthur and Obergefell sued Ohio Govenror John Kasish, Ohio Attorney General Mike DeWine and a Cincinnati official responsible for issuing death certificates in order to have the death certificate changed so that Obergefell could be buried in Arthur’s family plot located in a cemetery that only allows descendants and spouses.

ABC News reports:

Obergefell said Tuesday that he and Arthur’s fight was about more than just a piece of paper.

“To have a federal judge say, ‘You know what, John and Jim, your relationship exists and it’s just as valid as any other married couple,'” Obergefell said. “It’s an incredible feeling — that we do matter.”

Though Black’s order was specific to the couple’s case, opponents of Ohio’s ban on gay marriage were encouraged by it.

“This is one more step toward marriage equality in the state of Ohio,” said the couple’s attorney, Al Gerhardstein, who said he’s gotten calls from other same-sex couples who married in other states and are exploring their options to have their marriage recognized in Ohio….

…. In his ruling, Black said that historically, Ohio law has recognized out-of-state marriages as valid as long as they were legal where they took place, pointing to marriages between cousins and involving minors.

“How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize?” Black wrote. “The short answer is that Ohio cannot.”

This is a sad circumstance, no doubt, but yes Ohio can.  They have a Constitutional Amendment that forbids marriage licenses to be issued to same-sex couples and for their marriages to be recognized in the state of Ohio.  The Supreme Court, when it struck down the Federal Defense of Marriage, act did state that the definition of marriage has traditionally been up to states.  Ohio doesn’t have to recognize marriages between cousins and involving minors if they chose not to, but the difference with those is that they are involving – one man and one woman.  Judge Black is comparing apples to oranges.

This is exactly why the Federal Defense of Marriage act was passed so other states would not be forced to adopt another state’s redefinition of marriage.  This is an example of why it would have been helpful for the U.S. Supreme Court to rule on California’s Proposition 8.  Can Federal judges ignore or overturn state constitutional amendments?  I’d say in most circumstances no they shouldn’t unless there is a compelling Constitutional argument that a person’s enumerated rights spelled out in the Constitution are violated.  There is no right to redefine marriage or, frankly, even a right to a marriage license.  I know some would argue the government shouldn’t even issue marriage licenses – I can sympathize with that viewpoint, but the horse is already out-of-the-barn on that.  It’s instances like fuel that help make the case for a Federal marriage amendment if Federal courts continue to insert themselves.

States have always been able to determine their own marriage laws and issuing marriages licenses to one man and one woman is demonstrating equal protection under the law.  Every man and every woman in states like Ohio have the ability to marry one (willing) spouse of the opposite sex – provided it’s not an incestuous relationship and they are not minors.

If those who advocate changing the definition of marriage continue to push their agenda on states like Ohio through federal courts – perhaps we should do the same with say – conceal carry permits.  At least we can point to the 2nd Amendment, and the U.S. Supreme Court has come down in favor of gun rights.  Those who have carry permits in states with looser laws should move to Illinois and New York and sue to have their permits recognized.  After all isn’t turnabout fair play?

Photo: Judge Timothy Black (via Linkedin)

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