The Limited(?) Nature of the Ohio Same-Sex Marriage Decision

Like Jonathan (posting directly below) I saw a lot of early reports suggesting that Judge Black, in the Southern District of Ohio, had invalidated Ohio’s ban on same-sex marriage. But Chris Geidner has a link to the actual decision, and as a technical matter it is slightly more limited: it invalidates Ohio’s ban as applied to those who have “valid same-sex marriages from other jurisdictions.”

This makes more sense. Judge Black had already issued a decision that said basically the same thing a few months ago. I discuss that decision (criticizing it in part and endorsing it in part) in my latest article in the NYU Journal of Law and Liberty’s Supreme Court issue: Interstate Recognition of Same-Sex Marriage after Windsor. This is a right to remain married when you travel, not a right to get married in Ohio.

That said, there is a footnote toward the end of Judge Black’s decision that makes clear that he would also declare a general right to same-sex marriage in Ohio if he had a chance:

As a final note, although the question of whether Ohio’s refusal to grant same-sex marriages also violates Ohio same-sex couples’ right to due process and equal protection is not before the Court in this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that Ohio’s violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.

But as a technical matter, the judge acknowledges that question was outside of the scope of his decision. Ohio clerks should not start issuing marriage licenses to same-sex couples.

Finally, I want to say that I’ve repeatedly noticed and appreciated the reporting of Chris Geidner in all of these same-sex marriage decisions over the past six months. More than any other journalist I’ve seen, Geidner makes an effort to give readers access to the actual legal documents at issue (and faster than anybody else). Since reporters regularly misreport the subtleties of high-profile legal decisions, this is a great service, and he should be commended for it.