On August 6, 2014, we suggested that oral arguments taking place in the 6th Circuit Court of Appeals could offer some clarity with respect to same-sex marriage in Ohio. Three months later, the decision issued by the 6th Circuit may indeed offer at least short-term clarity. But the pivotal decision likely creates an opportunity for further litigation on the issue before the US Supreme Court.
The 6th Circuit decision reversed district court rulings that found gay marriage bans in several states, including Ohio, to be unconstitutional. The 2-1 ruling by the 6th Circuit is in conflict with recent rulings in at least 4 other circuit courts of appeal. The other circuit courts found that gay marriage bans are unconstitutional. The majority in the 6th Circuit did not directly address the constitutional issue and instead concluded that the issue was one more properly determined at a state level, with any changes to occur through the “political process.”
Most legal pundits believe the US Supreme Court recently refused to consider the issue of same-sex marriage recognition because there was no conflict in circuit court opinions regarding the issue. With the 6th Circuit ruling reversing the tide of momentum for same-sex marriage recognition, it is believed that the “conflict” that now exists at the circuit court level makes the issue ripe for review by the US Supreme Court.
So while the prospect for clarity suggested by our August 6th blog posting may indeed be available, it is likely available only on a short term basis as the ruling invites further litigation (and resolution) before the highest court in the country.
Until that happens, Ohio courts may continue to struggle with consistency when it comes to the issue of proceeding with a divorce for same-sex couples. An October 2014 article in the Toledo Blade cited the “patchwork approach” to same-sex divorce in Ohio, noting that the interpretation of law varies from county-to-county and, sometimes, judge-to-judge. The article found that at least four counties (Franklin, Lucas, Cuyahoga, and Summit) are known to have granted divorces to same-sex couples who were married in another state. Many rural counties have not had occasion to confront the issue. But at least one county, Franklin, has refused to grant a same-sex divorce, confirming that the approach can vary from judge-to-judge.
With the issue of same-sex divorce confronting more and more Ohio counties, and with litigation in federal courts likely to play out at the highest level, the issue projects to remain in Ohio headlines for the foreseeable future.