Court takes up Ohio ban
Arguments expected in spring on issue of gay marriage
WASHINGTON — Wading into one of the nation’s hottest controversies, the U.S. Supreme Court will make a historic decision by this summer on whether Ohio’s ban on same-sex marriage violates the U.S. Constitution.
The justices announced yesterday that they will schedule oral arguments this spring on same-sex marriage bans in Ohio, Kentucky, Michigan and Tennessee. A three-member panel of the 6th U.S. Circuit Court of Appeals upheld all four state laws this past November.
The justices consolidated the four cases into one argument — which will
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probably be heard in April — that will run for two hours and 30 minutes instead of the customary one hour.
The court, which has been deeply divided on the question of same-sex marriage, will have to decide whether a statewide referendum approved by Ohio voters in 2004 violates the 14th Amendment to the Constitution, which prohibits government from denying any person equal protection under the law.
Although voters handily approved the 2004 referendum, surveys and political analysts say that the attitudes of everyday Americans have dramatically changed since then and are now supportive of same-sex marriage.
Thirty-six states now permit same-sex marriages, and in a high profile move nearly two years ago, U.S. Sen. Rob Portman, R-Ohio, dropped his opposition to same-sex marriage after his son Will told him he was gay.
In a 5-4 ruling in June 2013, the Supreme Court struck down a 1996 federal law that defined marriage as only between a man and a woman. Joining Justice Anthony Kennedy to form the majority were Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented.
Kennedy “is the fifth vote,” said Carl Tobias, a professor of law at the University of Richmond. “It’s pretty clear it’s 4-to-4 and he’s the one whose vote you have to get.”
In a second 5-4 ruling released that same day in 2013, the justices dismissed a challenge brought by supporters of a California referendum in 2008 that banned same-sex marriage.
A different judicial lineup — Roberts, Kagan, Breyer, Ginsburg and Scalia— concluded that supporters of the California ban failed to demonstrate that they had been harmed by a lower court’s decision in 2010 to invalidate the referendum.
In the Ohio cases, the justices want to focus on whether the 14th Amendment requires states to “license a marriage between two people of the same sex” and whether it forces “a state to recognize” a samesex marriage that was legally performed in another state.
Those two questions are aimed directly at Judge Jeffrey Sutton’s opinion for the 6th Circuit this past November, which said that “nobody in this case ... argues that the people who adopted the 14th Amendment understood it to require the states to change the definition of marriage.”
Susan Sommer, director of constitutional litigation for Lambda Legal, which defends civil rights for gays, said, “The way the (Supreme) Court wrote those questions is exactly the way we have been presenting those questions to the court.
“The 14th Amendment is at the heart of these issues,” she said in a conference call with reporters yesterday organized by the American Civil Liberties Union.
James Obergefell and his husband, John Arthur, both of Cincinnati, challenged the Ohio ban in federal court in July 2013, after the rulings by the Supreme Court. Arthur died in October 2013.
Obergefell said on yesterday’s conference call that he cannot “wait to walk up those steps and have the Supreme Court understand that we want respect and rights.”
U.S. Sen. Sherrod Brown, D-Ohio, said, “A growing majority of Americans support extending full civil rights to our LGBT family, friends and neighbors. It’s time for the courts to recognize that marriage equality is a right guaranteed by the Constitution’s promise of equality for all Americans.”
State Rep. Nickie J. Antonio, a Lakewood Democrat who is gay, said, “I am ever hopeful of a time in our future when all couples will have the right to marry so that families like mine have the opportunity to experience the full depth and breadth of constitutional equality.”
By contrast, Phil Burress, president of Citizens for Community Values, said, “This is good news. They refused to take the other cases that were biased toward gay marriage, so I’m glad they took this one.”
Burress’ group led the charge to amend Ohio’s constitution in 2004 to define marriage as solely between one man and one woman.
Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine, said, “The court’s decision today means it will make the final decision whether states can make their own laws regarding the definition of marriage. It has always been Ohio’s position this is an issue for the people to decide.”
In his ruling, Sutton, a conservative nominated to the federal bench by former President George W. Bush, wrote that it would be better “to allow change through the customary political processes, in which the people — gay and straight alike — become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”