A federal judge in Ohio who earlier this week struck down the state law prohibiting recognition of out-of-state same-sex marriages on Wednesday placed a stay on that ruling — with the exception of its application to the four plaintiff couples in the lawsuit.
In a four-page order, U.S. District Judge Timothy Black agreed to a stay of his decision pending appeal in the aftermath of Ohio state officials’ request for such action in the case of Henry v. Himes.
“[I]f Defendant Himes’s appeal is ultimately successful, the absence of a stay as to this Court’s ruling of facial unconstitutionality is likely to lead to confusion, potential inequity, and high costs,” Black writes. “These considerations lead the Court to conclude that the public interest would best be served by the granting of a stay.”
In his stay order, Black cited a similar stay by U.S. District Judge John Heyburn, who ruled against Kentucky’s ban on recognizing out-of-state same-sex marriages, but later stayed his decision pending appeal.
Citing civil rights leader Martin Luther King Jr., Black writes, “While ‘[t]he arc of the moral universe is long, … it [does] bend toward justice’ – albeit slowly, and properly so in this case, full review can be achieved by our independent branch of government.”
However, Black writes the stay doesn’t apply to the four same-sex couples with respect to the action they’re seeking. The couples adopted children or are awaiting children and want to have both parents’ names appear on their children’s birth certificates.
“The same considerations and costs do not attach to plaintiffs’ as-applied claims, however, as plaintiffs have demonstrated that a stay will irreparably harm them individually due to the imminent births of their children and other time-sensitive concerns, (as well as due to the continuing constitutional violations),” Black writes.
On Monday, Black handed down his decision striking down the portion of Ohio’s 2004 marriage amendment that bars recognition of out-of-state same-sex marriages on the grounds the law violates protections under the Fourteenth Amendment to the U.S. Constitution. Black didn’t grant as part of his decision the ability for same-sex couples to wed in Ohio.
Black’s decision to stay the order requiring Ohio to recognize out-of-state marriages with the exception of the plaintiff couples was expected because he indicated in a footnote as part of his ruling he would be inclined to take that action upon request from the state.
In a filing prior to the decision, Ohio Attorney General Mike DeWine argued for a stay on the order — except as it relates to the four same-sex couples that participated in the lawsuit.
“Plaintiffs do not and cannot cite a single decision striking down a state’s marriage law that has not ultimately been stayed,” DeWine writes. “To the contrary, stays have become the norm in this area, and courts deviating from it have been reversed. Both the Supreme Court and the Sixth Circuit have stayed recent district court orders enjoining enforcement of state marriage same-sex marriage laws.”
In his filing, Black notes that Lance Hines, interim director of Ohio’s Department of Health, reserves the right to amend the birth certificates for the plaintiffs’ children.
Alphonse Gerhardstein, an attorney for the plaintiff couples, argued against the institution of a stay, among other reasons, because numerous courts have recently ruled in favor of marriage equality.
“In the three months since the Supreme Court has stayed the Kitchen ruling, eight additional federal court cases have ruled unconstitutional state bans on the celebration and/or recognition of same-sex marriage,” Gerhardstein writes. “These decision have emanated from geographically, demographically, and politically diverse regions of the country across five different federal circuits. They have also issued from every state in the Sixth Circuit, making especially unlikely that defendant will prevail upon the merits of appeal.”
Gerhardstein adds that staying the decision with the exception of plaintiff couples seeking to have both parents’ names on their children’s birth certificates “would likely spawn a multiplicity of individual lawsuits” by other same-sex couples in Ohio seeking the same action for their children.
Dan Tierney, a DeWine spokesperson, said the attorney general believes the stay is appropriate, and will proceed with an appeal of this case to the U.S. Sixth Circuit Court of Appeals.