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Same-sex marriage (SSM) In Ohio.

Part 6:
2014-FEB: Lawsuit Henry v. Wymyslo filed by 4
same-sex couples. 2014-APR: Judge issues ruling
Ohio required to recognize out-of-state SSMs.

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On this web site:

"SSM" refers to same-sex marriage.
"LGBT" refers to the Lesbian, Gay, Bisexual, Transgender and Transsexual community.

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This topic is continued from the previous essay

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2014-FEB-10: Four same-sex couples file lawsuit requesting ordinary birth certificates:

Four same-sex couples filed a lawsuit in the federal District Court for the Southern District of Ohio -- Western Division seeking the same type of birth certificates that opposite-sex couples receive. Three of the couples are composed of women: Brittani Henry & Brittni Rogers; Georgia Nichole Yorksmith & Pamela Yorksmith; Kelly Noe & Kelly McCracken. One of the women in each couple has become pregnant through artificial insemination; all are expected to give birth in June. The remaining couple is composed of two men: Joseph J. Vitalie & Robert Talmus. They live in New York and have adopted a child who was born in Ohio. All four couples were married in out-of-state weddings. Each couple wants an ordinary Ohio birth certificate for their child that lists both spouses as parents. 1

The lawsuit states in part:

"All of the (couples) seek an order that will establish for children and parents in families established through same-sex marriages the same status and dignity enjoyed by children and parents in families established through opposite-sex marriages." 2

Referring to Ohio's 2004 constitutional amendment that bans same-sex marriages, Alphonse Gerhardstein, the lawyer for the Plaintiffs, said:

"When a majority vote to pass an unconstitutional law, that's why the federal courts are here." 2

The Ohio case is very similar to previous District Court lawsuits in in Kentucky, Michigan, Oklahoma, Texas, Utah, and Virginia. In each case, judges have ruled in favor of same-sex marriages. All were argued on the basis of the equal protection clause in 14th Amendment of the U.S. Constitution. This clause requires the federal and state governments to treat all people -- and thus all couples -- equally under the law. Meanwhile the state constitution in Ohio calls for discrimination against same-sex couples and is considered by many commentators as being in clear violation of the federal Constitution.

In case of a conflict between the federal and a state constitution:

  • According to many religious and political conservatives, the wording of the state constitution takes priority because it is the result of a direct vote of the people.

  • According to everyone else -- including the judges and justices in the federal court system, the wording of the U.S. Constitution rules because it is the superior/higher level document.

Phil Burress heads the advocacy group Citizens for Community Values. It is a conservative agency promoting "Judeo-Christian moral values." They have campaigned against pornography, equal rights for sexual minorities, and obscenity. They promote "traditional values" including the restriction of marriage to one woman and one man. He said that Gerhardstein has:

"... obviously filed a lawsuit because what he's trying to do is against the law. ... My issue is protecting marriage and not continuing to experiment with different types of marriages so people can feel good about themselves." 2

Burress notes that voters in Ohio and 30 other states approved banning same-sex marriages either by changing state law statutes or constitutions. Seventeen states and the District of Columbia allow same-sex marriage through a public vote, change in state law or via court decisions. Two states have judicial reviews pending on the issue.

Gerhardstein said:

"When a majority vote to pass an unconstitutional law, that's why the federal courts are here," Gerhardstein said.

Burress said that the plaintiffs:

"... are not going to get what they want through public opinion. So they're going shopping for a liberal judge ... a judge who doesn't care about the law." 2

Deputy Cincinnati Solicitor Aaron Herzig said:

"The city did not defend the law in the Obergefell case, and it won't defend it in this case. The city does not have any local laws treating same-sex marriages differently from opposite-sex marriages. In 2004, city voters repealed the charter amendment that had prohibited the city from giving legal protections based on sexual orientation." 2

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2014-APR-04: OH District Court Judge announced what his ruling will be:

Ann Thompson, a reporter for station WVXU reported that District Court Judge Timothy Black said that he will rule on APR-14 that Ohio must recognize legal marriages by same-sex couples solemnized out-of-state. She also said:

"Attorney Al Gerhardstein, representing plaintiffs in a lawsuit about birth certificates, amended his request to ask Black to declare aspects of Ohio's gay marriage ban unconstitutional. In federal court Friday morning, the judge said he would do that."

Mike DeWine (R), the Ohio Attorney General, promised that he will appeal such a decision.

Gerhardstein told WVXU that:

"This case will not say that people have a right to be married to same-sex partners in Ohio, but the precedent is getting stronger and stronger to the point where maybe that relief will come next." 3

Judge Black stated in court that:

"Ohio's recognition bans that have been relied upon to deny legal recognition to same-sex (marriages) validly entered in other states ... violate the rights secured by the 14th Amendment to the U.S. Constitution" 4

Judge Black ruled in a different case during 2013-DEC that same-sex couples married out-of-state could have their marriage recognized on their death certificates. But first, they have to die!

Attorney General DeWine said:

"Ours is a narrow case, but I don't think there's any secret that basically the United States Supreme Court is going to get the broader question on gay marriage."

Plaintiff Pam Yorksmith said that they are:

"... teaching kids of future generations that all families are different, and just because our family doesn't look like your family doesn't mean that ours shouldn't be recognized." 4

Some same sex couples would not be satisfied with Judge Black's expected ruling that Ohio must recognize out-of-state same-sex weddings. Jeff Caywood of Cincinnati has been with his partner, Rob Neel for 15 years. He said:

"That's a long time to wait to get married. We shouldn't have to travel somewhere else to get married. We're from here. We grew up here. We want to get married here." 4

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2014-APR-14: District Court Judge Timothy Black issues his ruling:

His ruling said, in part:

"The record before the Court, which includes the judicially-noticed record in Obergefell, is staggeringly devoid of any legitimate justification for the State’s ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances."

Judge Black only ordered the state to recognize marriages of same-sex couples solemnized out-of-state. He did not carry the above ruling to its logical conclusion and require Ohio to allow same-sex couples to marry within its borders. He will hold a stay pending briefing during the week of APR-13 to decide whether to issue a stay on his ruling. He is inclined to require the state to recognize the marriages of the plaintiffs, but not the general population of the state. He wrote:

"The Court is inclined to stay its finding of facial unconstitutionality but not to stay the Orders as to the as-applied claims of the four couples who are Plaintiffs because they have demonstrated that a stay will harm them individually due to the imminent births of their children and other time-sensitive concerns. The Court inclines toward a finding that the issuance of correct birth certificates for Plaintiffs’ children, due in June or earlier, should not be stayed. The Court is further inclined to conclude that the Defendants will not be harmed by compliance with the requirements of the United States Constitution. ..." 5

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Text of the complaint, Case No. 1:14-cv-129, is available on Scribd at: http://www.scribd.com/
  2. "Suit: Gay parents want their names on birth certificates," USA Today, 2014-FEB-10, at: http://www.usatoday.com/
  3. "Federal Judge Says He'll Require Ohio To Recognize Same-Sex Marriages," National Public Radio, 2014-APR-04, at: http://www.npr.org/
  4. Chrissie Thompson, "Ohio will have to recognize gay marriages, judge says," USA Today, 2014-APR-04, at: http://www.usatoday.com/
  5. Scottie Thomaston, "Federal judge strikes down Ohio’s ban on recognition of out-of-state same-sex marriages," EquityOnTrial, 2014-APR-14, at: http://equalityontrial.com/

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Ohio > here

Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-APR-04
Latest update: 2014-APR-14
Author: B.A. Robinson

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