Federal Court Orders Interstate Recognition of Same-Sex Marriage

As readers of the VC all surely know, the Supreme Court’s decision last month in Windsor struck down Section 3 of DOMA, which restricts the recognition of marriage for purposes of federal statutes. One of the big unanswered questions after Windsor was what would happen to Section 2 of DOMA, and more generally the question of whether states must start recognizing same-sex marriages that were performed elsewhere.

Chris Geidner reports that today a federal district court in Ohio answered “yes,” issuing a preliminary injunction forcing the state to recognize a Maryland same-sex marriage. The court concluded that the Constitution required the state to recognize the marriage, and invalidated an Ohio ballot measure saying that same-sex marriages should not be recognized:

[A]s the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Obviously, this decision will not be the last word on the issue and may not even be the last word in this case. It also may be foolish to try to analyze these issues as a matter of precedent or logic, rather than as a matter of predicting the general gestalt direction of equal protection law.

That said, two quick thoughts:

– For the most part, the opinion strikes me as a plausible interpretation of Windsor. Windsor did have some discussion of federalism, which wouldn’t necessarily extend to the interstate context. But the opinion also put emphasis on how “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import,” and this logic might well extend to interstate recognition of marriage in addition to federal recognition. Expect to see Windsor cited in a lot of same-sex marriage recognition cases in the near future.

– The couple in this case apparently were not domiciled in Maryland when they got married there (“Plaintiffs traveled to Maryland in a special jet equipped with medical equipment and a medical staff necessary to serve Mr. Arthur’s needs, whereupon plaintiffs were married in the jet as it sat on the tarmac in Anne Arundel County, Maryland. They returned to Cincinnati that same day”). It is not clear whether such a marriage must be recognized even for federal purposes — a question Windsor avoided because Ms. Windsor’s home state of New York chose to recognize her marriage. That is a noticeable extension of Windsor.