With a legislative agenda here that’s on the fast track to litigation, it’s worth noting how the courts are handling similar challenges elsewhere.
Yesterday, a federal judge in North Dakota blocked that state’s recently enacted ban on most abortions, describing that law as “in direct contradiction to a litany of United States Supreme Court cases addressing restraints on abortion.”
U.S. District Judge Daniel L. Hovland issued a temporary injunction delaying enforcement of that ban until the challenge could be resolved at trial, saying that he had no choice but to block the law. “The State has extended an invitation to an expensive court battle over a law restricting abortions that is a blatant violation of the constitutional guarantees afforded to all women,” he wrote.
And on Monday in Ohio, a federal judge ordered state officials to recognize the unions of same-sex couples who were married in other states but live in Ohio.
According to Lyle Denniston at scotusblog, U.S. District Judge Timothy S. Black conceded in his ruling that the Supreme Court’s decision last month in United States v. Windsor did not directly involve state power to ban same-sex marriages. But he said that the Court’s ruling was pointing toward that issue and applied some of its equality principles in support of his order.
This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated.
Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Likewise, under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors.
How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot … at least not under the circumstances here.