CINCINNATI -- A federal judge on Monday ordered Ohio to recognize same-sex marriages lawfully performed in states that authorize them in the latest court victory for gay rights supporters.
Judge Timothy Black temporarily stayed his decision until both sides present arguments on the stay Tuesday. Black will then rule quickly on whether to delay the full effects of his ruling pending the state's appeal in the Sixth Circuit Court of Appeals.
Black ruled that refusing to recognize gay marriage is a violation of constitutional rights and "unenforceable in all circumstances."
"The record before this court ... is staggeringly devoid of any legitimate justification for the state's ongoing arbitrary discrimination on the basis of sexual orientation," Black wrote.
The order does not force Ohio to allow gay marriages to be performed in the state.
“This is a great day for many Ohio families,” said Cincinnati civil rights attorney Al Gerhardstein, the lead counsel for the plaintiffs. “Yesterday, they lived in a state that discriminated against them; today they live in a state that has declared them equal. Their marriages, the very foundations of their families, are recognized under the law.”
Gerhardstein, who has filed three gay marriage lawsuits in Ohio since June, said several gay couples who want to win the right to marry in Ohio have contacted him. He is considering filing a new lawsuit on their behalf aimed at striking down Ohio's gay marriage ban entirely.
"The ultimate goal is full marriage equality," Gerhardstein said.
Phil Burress of Citizens for Community Values, which opposes gay marriage, said about Black's ruling: “We believe that Judge Black made up his mind the minute he got the case. We firmly believe it will be overturned before the U.S. Sixth Circuit Court of Appeals."
Both Burress and Chris Seelbach, a leader of the group "Why Marriage Matters" and Cincinnati's first openly gay council member, claimed that public opinion is on their side.
Burress cited the 2004 vote that banned gay marriage in Ohio by a 62-38 majority.
“3.3 million people voted in 2004 to change the state constitution to define marriage as between one man and one woman. One person in a black robe is not going to overrule the will of over three million people,” Burress said.
But there has been "a shift in values" since that vote 10 years ago, Seelbach said.
"I think in the last 10 years the hearts and minds of people in Ohio have really changed and they believe gay and lesbian families deserve to be treated fairly and equally under the law – no special treatment but just the same," Seelbach said.
Burress said a new poll shows 56 percent of Ohioans back traditional marriage and 33 percent support same-sex relationships.
"That's important because they got 38 percent of the vote in 2004," Burress said. "So, they're not going to win by going to the people.
"This is a Hail Mary pass for them. They're the ones on the defense because the only way they can force it upon Americans -- same sex marriage -- is through the United States Supreme Court."
Seelbach said groups like CCV aren't mainstream.
"I think more and more groups like CCV are becoming the fringe of this movement. Most people -- most Ohioans -- believe that gays and lesbians should be treated equally under the law," Seelbach said.
Not so, Burress countered.
"The average person knows that marriage is between one man and woman and he can say all he wants to about fringe, but why are they going to the courts? Why are they going to the courts to win their case if he didn't know the people was against him?"
Ohio Attorney General Mike DeWine plans to appeal, spokesperson Dan Tierney confirmed Monday. The state will argue that Ohio has a sovereign right to ban gay marriage.
“The attorney general has previously indicated his intent to appeal the decision. The judge stayed the order and asked both sides to prepare briefs by 3 p.m. That’s what we will be doing,” Tierney said.
Black said he is inclined to stay his ruling pending appeal, except for a portion that applies to the four gay couples who filed the February lawsuit that led to the court case. That would mean the state would immediately have to recognize their marriages and list both spouses as parents on their children's birth certificates.
If Black declines to stay his broader ruling, that would allow gay couples in Ohio to obtain the same benefits as any other married couple in the state, including property rights and the right to make some medical decisions for their partner.
DeWine told The Associated Press last week that he believes marriage is between a man and woman. He declined to speculate on the outcome of the state's appeal or the future of gay marriage rights as a whole.
"Every state is having a lively debate over this and I think that's a proper thing to do," he said. "I think it's pretty obvious that all these
issues are going to be resolved by the 6th Circuit and some cases are going to get to the Supreme Court. They're going to have a decision in the United States Supreme Court and we're all going to have to accept that."
Attorneys representing the four same-sex couples who filed the lawsuit that triggered Black's ruling argued that it amounts to state-approved discrimination and likened it to when interracial marriage was illegal in the United States.
Gay marriage is legal in 17 states and Washington, D.C. Federal judges recently have struck down gay marriage bans in Michigan, Utah, Texas, Oklahoma and Virginia, though stays have been issued pending appeals.
Judges in Kentucky and Tennessee have ordered state officials to recognize out-of-state gay marriages. The Kentucky decision has been stayed pending appeal, while Tennessee's ruling applies to only three couples.