Lambda Legal, ACLU and Gerhardstein & Branch File Ohio Marriage Case Brief at U.S. Supreme Court

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February 27, 2015

Lambda Legal, the American Civil Liberties Union (ACLU) and Ohio-based Gerhardstein & Branch today filed their brief with the U.S. Supreme Court in Henry v. Hodges and Obergefell v. Hodges arguing that Ohio’s ban on recognizing the legal marriages of same-sex couples violates the Due Process and Equal Protection Clauses of the U.S. Constitution.

The brief argues that it is unreasonable for states to adopt a “wait and see” attitude towards the potential long-range consequences of allowing same-sex couples to marry or of recognizing those marriages: “While the State awaits…. [m]ore children in Ohio will be denied protections for their families, more beloved spouses will die denied the final solace and dignity of recognition of their marriages, and more families will suffer countless daily harms from relegation to second tier status…they should not be required to wait any longer.”

Susan Sommer, Director of Constitutional Litigation at Lambda Legal:

Babies won’t wait to be born and illness and death aren’t choices. As long as marriage bans exist anywhere in this country, they will reach into the lives of families headed by same-sex couples and wreak havoc no matter where they live. This simply cannot continue.

Excerpt from the brief:

Being married would mean little if the government were free to refuse all recognition to a couple’s marriage once the vows are made and the license is signed. When a couple knits their lives together through marriage, making promises of enduring support and care, they vow to be wed until death – not state lines – ‘do us part.’

James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender & HIV Project, said:

Crossing state lines is a momentous event for married same-sex couples, because states like Ohio erase our marriages when we do, turning us into legal strangers in contexts from birth to death. That’s cruel – when you’re married, you’re married. Over 50 courts have ruled in favor of marriage equality since DOMA was struck down in 2013.  We look to the Supreme Court to side with fairness once more.

Al Gerhardstein, counsel of record from Gerhardstein & Branch, said:

Ohio has become an island of intolerance for same-sex couples. Crossing into Ohio annuls the marriages of same-sex couples from thirty-seven states where they are permitted. This is outrageous and must stop. We argue in the brief that the 2013 Supreme Court ruling in US v. Windsor requires Ohio to recognize marriages from other states. It is exciting that the case will be heard this term. Love can’t wait.

Henry v. Hodges, filed in February 2014, and Obergefell v. Hodges, filed in July 2013, demonstrate the importance of marriage to families through the life span, from the birth of their children through the death of a spouse and beyond.

The Henry plaintiffs seek respect for their out-of-state marriages, including recognition for both spouses as parents of the couples’ children, on birth certificates and through life. The Obergefell plaintiffs are widowers fighting to be listed on the death certificates of their deceased husbands, who they married out of state. 

The Sixth Circuit Court of Appeals ruling upholding discriminatory marriage bans in Ohio, as well  as Michigan, Kentucky and Tennessee, was the first federal circuit court ruling after the Supreme Court’s watershed 2013 Windsor decision to uphold such bans, departing from decisions from the Fourth, Seventh, Ninth and Tenth Circuits. The U.S. Supreme Court granted review of the Sixth Circuit ruling in January. Oral argument will likely be at the end of April 2015.

Read the press release.