Gay Marriage Activists Turn Focus On States That Ban It

A federal judge ruled last week that Ohio, which bans gay marriage, must recognize the marriage of two men wed this month in Maryland. The ruling is seen as likely to unleash more lawsuits challenging states that don't allow same-sex unions to recognize marriages legalized in other states.

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For the first time, a state has been forced by a federal court to recognize a gay marriage from another state. The ruling comes just weeks after the U.S. Supreme Court overturned a key part of the Defense of Marriage Act, or DOMA, and as NPR's Tovia Smith reports, that's opened up a new front in the fight for gay marriage.

TOVIA SMITH, BYLINE: Federal District Court Judge Timothy Black called the case as simple as it is sad. An Ohio man who'd been with his partner more than two decades was dying of Lou Gehrig's disease. The couple wanted eventually to be laid to rest beside each other, but a family plot allowed only spouses and Ohio bans gay marriage. So the two men chartered a special medical jet to Maryland, where gay marriage is legal, and held a simple ceremony on the runway.

UNIDENTIFIED WOMAN: John and Jim, I was going to say take each other's hand, but I don't think you've let go.

SMITH: Cincinnati.com recorded the two grooms, Jim Obergefell and John Arthur, who was propped up on his hospital gurney to say his vows.

JOHN ARTHUR: With this ring, I thee wed.

JIM OBERGEFELL: He was able to say with this ring I thee wed, and those were the most beautiful words I could hear.

SMITH: After hugs and kisses, the newlyweds immediately lifted off and returned to Ohio to start the legal battle to get their Maryland same-sex marriage recognized back home. It took just days. Judge Black cited the U.S. Supreme Court DOMA decision and ruled that just as the federal government can't ignore a same-sex marriage from a state where it's legal, neither can another state, much to Obergefell's delight.

OBERGEFELL: I think it's historic. I hope that it's the first chink in doing away with these hateful laws. I really do.

SMITH: Ironically, Judge Black in Ohio referred back to Supreme Court Justice Scalia's dissent in the DOMA case where Scalia warned that even though the DOMA ruling dealt only with federal law, not state law, it would not take long, Scalia said, for quote, "the other shoe to drop."

RUTHANN ROBSON: Yes, as predicted, here comes the drop.

SMITH: City University of New York School of law professor Ruthann Robson says the Ohio decision affects only one couple, but will likely ripple.

ROBSON: The ruling is limited, but certainly the reasoning and the rationale are not limited.

SMITH: The Ohio judge used an equal protection argument like the U.S. Supreme Court's decision to say that since Ohio already recognizes other kinds of out-of-state marriages that don't meet Ohio standards - for example, marriage of minors or first cousins - it's unfair for Ohio to only refuse out-of-state gay marriages. Al Gerhardstein is the couple's attorney.

AL GERHARDSTEIN: I suspect there will be lots of places where same-sex couples could make this same argument. So no state ultimately may be free of this legal reasoning.

SMITH: And once courts rule that states can't ignore gay marriages from other states, it may not be long before states are told they can't deny gay marriage in-state either.

STEVEN SCHWINN: I do think it's kind of like a sequence of dominos.

SMITH: John Marshall Law School Professor Steven Schwinn.

SCHWINN: It's going to be tougher and tougher and tougher for states to hold the line against gay marriage.

PETER SPRIGG: It may be a sort of bait and switch.

SMITH: Peter Sprigg of the Family Research Council says it's wrong to contort the Supreme Court's Windsor decision to, quote, obliterate states' rights to set their own marriage laws.

SPRIGG: I think the courts will have to twist themselves into knots, taking the argument that the federal government has to recognize the policy choices of the state and then turning that into precedent for saying that states are not permitted to make their own policy choices to begin with. I don't see the logic in that.

SMITH: Neither does John Eastman with the National Organization for Marriage. He says the Ohio decision flies in the face of the U.S. Supreme Court decision and will ultimately be overturned.

JOHN EASTMAN: The Supreme Court said that the states are supposed to be the primary place where marriage policy is set, and this judge has just replaced Ohio's policy with his own.

SMITH: In the meantime, newlyweds Arthur and Obergefell are making end-of-life arrangements and hoping this is also just the beginning. It's a bittersweet victory, says Obergefell, and his effort to simply get his name on Arthur's death certificate may end up with both their names immortalized on a historic decision on gay marriage. Tovia Smith, NPR News.

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