Addressing the constitutional question, Black explained, “Although the law has long recognized that marriage and domestic relations are matters generally left to the states, the restrictions imposed on marriage by states, however, must nonetheless comply with the [U.S.] Constitution.”
To that end, the court examined the Supreme Court’s decision striking down part of the Defense of Marriage Act this June in United States v. Windsor, the 1996 decision in Romer v. Evans, and in other decisions addressing differential treatment found to be unconstitutional under the Constitution’s guarantee of equal protection of the laws.
Looking at Ohio’s bans on recognizing same-sex couples’ out-of-state marriages, while acknowledging its recognition of the marriages of opposite-sex couples who would not be allowed to marry in Ohio, Black concluded, “The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: ‘to impose inequality’ and to make gay citizens unequal under the law.”
Needless to say, if other courts follow this lead, we’ll have coast-to-coast legal gay marriage as a matter of Full Faith and Credit with the only limitation on gay couples their ability to travel to a pro-SSM state temporarily to get hitched. The Windsor decision that the court cites here in support of its ruling held that section 3 of DOMA, which bars the federal government from recognizing gay marriages performed in pro-SSM states, is unconstitutional. The point of the Ohio ruling is that section 2 of DOMA, which allows states to refuse to recognize gay marriages performed in other jurisdictions, should also be deemed unconstitutional under the logic of Windsor. Is that true, though? Read pages 18-21 of Kennedy’s majority opinion. He’s making two arguments, really. One is that, as the Ohio judge notes, the legislature can’t impose special restrictions on gays consistent with the Equal Protection Clause. The other, though, is that Congress overreached with DOMA by intruding on the states’ sovereign prerogative to regulate marriage as they see fit. It’s not just an equal protection ruling, it’s a federalism ruling too. And unlike Section 3, Section 2 of DOMA attempts to preserve state sovereignty by allowing each state to decide for itself whether gay marriages from other jurisdictions will be recognized there, which might be a complicating factor for Kennedy if this case works its way up to SCOTUS. It shouldn’t be, says the Ohio judge — equal protection under the Fourteenth Amendment trumps states’ rights, especially when you have a history of full faith and credit for out-of-state marriages as precedent — but only Kennedy knows which way that shakes out.
Speaking of full faith and credit, a key passage from the Ohio court’s ruling:
[U]nder Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio Sup. Ct. 1958) (marriage of first cousins was legal in Massachusetts and therefore is legal in Ohio regardless of the Ohio statute to the contrary).
Likewise, under Ohio law, out-of-state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. See Hardin v. Davis, 16 Ohio Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (“But, although first cousins cannot marry in Ohio, it has been held that if they go to another state where such marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio”); see also Slovenian Mut. Ben. Ass’n v. Knafelj, 173 N.E. 630, 631 (Ohio App. 1930) (“It is true that, under the laws of Ohio, if she were his first cousin he could not marry her; but they could go to the state of Michigan, or the state of Georgia, and perhaps many other states in the United States, and intermarry, and then come right back into Ohio and the marriage would be legal”); see also Peefer v. State, 182 N.E. 117, 121 (Ohio App. 1931) (where underage couples leave the state to marry in a state in which their marriage is valid and return to Ohio, the marriage cannot be set aside based on Ohio’s law against marriage of underage people); see also Courtright v. Courtright, 1891 Ohio Misc. LEXIS
161, at *7, aff’d without opinion, 53 Ohio 685 (Ohio 1895) (marriage between persons considered underage in Ohio married in a state where their marriage is legal “cannot be set aside, either because it was not contracted in accordance with the law of this state, or because the parties went out of the state for the purpose of evading the laws of this state”).
Ohio decided long ago that Full Faith and Credit means honoring marriages performed in other jurisdictions even if those marriages conflict with Ohio’s moral and legal preferences. Why should gay marriage be different?
All of that said, there may be an opportunity here for social conservatives. The big problem with a Federal Marriage Amendment, which seeks to ban gay marriage nationwide, is that not only is it opposed by gay-marriage supporters, it’s even opposed by some gay-marriage opponents who resist it as an infringement on federalism. The Ohio court ruling yesterday brings the federalism argument over to the social conservative side: Why shouldn’t the states, the laboratories of democracy, be allowed to follow their own rules on SSM rather than the rules of another state? There may be meaningful support in Congress and at the state level for an initiative that makes section 2 of DOMA a constitutional amendment. I give it near-zero chance of passing, but it’s a better talking point for opponents of SSM than the FMA is.