Judge to end Ohio ban on recognizing gay marriage

CINCINNATI  -- A federal judge says he will strike down Ohio's voter-approved ban on gay marriage, meaning the state must recognize marriages of gay couples who legally wed elsewhere.

Judge Timothy Black's ruling will not mean Ohio has to allow couples to marry in the state.

Black says he will issue the ruling April 14, giving time for the state to prepare an appeal that can be filed as soon as he rules. He did not say if he would grant an immediate stay for an appeal.

Black made the announcement Friday following final arguments in a lawsuit by four same-sex Cincinnati couples. Black said he would grant their request to require the state to place the names of both parents on the birth certificates of their children.

Black says the ban violates constitutional rights to equal protection and due process.

Attorneys for the state had argued that it is Ohio's sole province to define marriage as between a man and a woman.

The attorney for the plaintiffs, Al Gerhardstein, said he was surprised at the timing of Black's announcement.

"It's always a bit of surprise when a judge tells you from the bench what he's going to do," Gerhardstein said. "He was clearly eager to let the community know where he's headed."

Phil Burress, President of Cincinnati-based Citizens for Community Values, issued this statement:

"The people of Ohio voted 62-38 percent in 2004 defining marriage as one man and one woman. The only way homosexual activists have any chance of forcing upon all Americans same-sex marriage is through the courts. Attorney General Mike DeWine will vigorously defend the will of the people and appeal Judge Black's decision."

More appeals on gay marriage are pending in the Sixth Circuit, including one from Indiana.

In September, Black ordered that a deceased gay man from Cincinnati must be listed on his death certificate as married and his husband must be listed as his spouse despite Ohio's gay marriage ban. The newest lawsuit seeks to build on the success of that suit from David Michener and William Herbert Ives .

“At both ends of our life spans, a marriage is a marriage," said Gerhardstein, who represented Michener and Ives. "Ohio must recognize same-sex marriages and the families founded on those marriages throughout life.”

The plaintiffs in the latest suit are three lesbian couples who were recently married in states that have legalized gay marriage. One woman in each of those marriages is pregnant through artificial insemination, and their babies all are due to be born this summer in Cincinnati hospitals. The plaintiffs are Brittani Henry and LB Rogers, Nicole and Pam Yorksmith and Kelly Noe and Kelly McCracken.

"The donor of the sperm is anonymous and (these couples) will want birth certificates," Gerhardstein said. "They could deliver anytime now because they are all getting close enough... so we need a preliminary injunction, a temporary restraining order to solve their problem before the babies come."

Joseph J. Vitale and Robert Talmas, the fourth couple in this suit, live in New York, where gay marriage is legal. Last year they adopted a boy who was born in Ohio.

If the four couples were in marriages with opposite-sex partners, they would apply for their birth certificates while in the hospital and the Cincinnati registrar would place the names of both parents on the child’s birth certificate.

But because of Ohio’s current same-sex marriage laws, the state will only place one parent on birth certificates.

"If something happens to my wife and she's unable to care for my child, I do not want my child to be in an adoption agency," Rogers said. "I want to be listed as a legal parent for my child."

Gerhardstein said birth certificates are the "primary identity document in our society."

He said medical care, access to schools, travel and release of information are all easily accomplished with birth certificates -- and without an "accurate" one, children will be constantly burdened.

“Birth certificates tell the child, ‘these adults are your parents,’ and tell the community that these adults and children are a family,” Gerhardstein said. “Forcing families to accept incorrect birth certificates imposes life-long harms and is a direct attack on family dignity.”

DeWine’s office fought the lawsuit. Previously, DeWine had said he has a duty to defend Ohio's constitution and statutes, including the statewide ban on gay marriage.

Gay marriage supporters say they have collected enough signatures to put the issue back on the Ohio ballot in November.

In the September 2013 death certificate case, Black ruled Ohio's ban on gay marriage demeans "the dignity of same-sex couples in the eyes of the state and the wider community."

"Once you get married lawfully in one state, another state cannot summarily take your marriage away," Black wrote, saying the right to remain married is recognized as a fundamental liberty in the U.S. Constitution.

Black also referenced Ohio's historical practice of recognizing other out-of-state marriages even though they can't

legally be performed in Ohio, such as those involving cousins or minors.

Two federal judges have reached the same conclusions as Black, though they went much further in their rulings. Judges in Oklahoma and Utah both struck down gay marriage bans in the deeply conservative states. Those rulings are being appealed.

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