Commentary

04.01.15

Obergefell v. Hodges: What’s Wrong With the State’s Argument?

By

Supreme Court

Ohio has urged U.S. Supreme Court justices to reject marriage equality by deferring to the “democratic process” that resulted in Ohio’s 2004 bans on the licensing and recognition of same-sex couples’ marriages.

In the brief filed last week, Ohio Attorney General Michael DeWine also reframed the litigation before the Court as a debate over “social change.”

The state reliance on these two themes crumbles under closer examination.

Deference to Democratic Process

Ohio banned the licensing and recognition of marriage by same sex-couples in 2004 via legislation and a ballot initiative. Ohio now urges the Supreme Court to defer to the democratic process that produced these bans rather than subject them to constitutional scrutiny.

The fatal flaw in Ohio’s argument is both obvious and dangerous: constitutional rights should not be determined by popularity contests at the polls or absolute legislative fiat. The consequences of removing judicial review from our system of checks and balances would be disastrous to democracy.

Absent judicial review, either slightly more than 50 percent of voters—or the barest majority of legislators—could routinely employ the democratic process to pass laws regardless of the content of those laws.

The U.S. Supreme Court will hear oral arguments April 28 on whether the refusal of Ohio and other states to recognize marriage equality violates the U.S. Constitution’s equal protection and due process clauses.

In such a system, unpopular minorities could easily be stripped of any or even all of the rights guaranteed by our state and federal constitutions. And citizens whose rights have been eviscerated could not turn to the courts seeking reinstatement of their fundamental rights.

Marriage Equality as a Debate over “Social Change”

Ohio recasts the legal issues arising from Ohio’s refusal to recognize the legal status of plaintiff’s out-of-state marriages as a matter of “social change.” Social change, Ohio further asserts, is an area in which courts have no role to play.

Citing the First Amendment’s broad protections for free speech and public debate, the state concludes: “Our Constitution establishes local debate and consensus as the usual method for social change.”

Accepting that statement at face value, it is irrelevant to the marriage equality cases now before the court.

Plaintiff John Arthur did not ask the courts to encourage his neighbors and co-workers to be supportive of his marriage to James Obergefell: John sought a legal order requiring the state to record James as John’s spouse on John’s death certificate—a legal document.

Similarly, plaintiffs Nicole and Pam Yorksmith did not ask the court to declare that everyone who interacts with their family must fully embrace the couple and their two sons: they sought a legal order requiring Ohio to place both women’s names on their sons’ birth certificates, again, legal documents.

Courts may or may not effect social change, but they are indisputably the appropriate forum for the changes to Ohio law that the plaintiffs seek.

What’s Missing?

The state weaves these themes throughout its analysis of federalism, fundamental rights, equal protection, and other constitutional doctrines at issue in these cases. Despite its length and complexity, Ohio’s brief contains a glaring omission.

While acknowledging that “same-sex-marriage recognition could involve thousands of couples within the State,” Ohio’s brief never addresses the impact that denial of marriage recognition has on these couples and their children. And that impact is severe.

Due to Ohio’s recognition bans, same-sex couples married in other states revert to legal strangers when they return home. Ohio’s refusal to recognize their marriages denies these couples and their children the benefits of all state and federal laws that should protect and nurture all Ohio families.

Ohio defends its marriage recognition bans by divorcing itself from reality, especially the harsh inequalities its bans impose.

What’s Next?

Plaintiffs will file their response to Ohio’s brief by April 17. The Supreme Court will hear oral arguments on April 28, and its decision is expected by June 30.

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