Ohio Attorney General Mike DeWine agrees the Supreme Court should take up a same-sex marriage case. (Photo public domain)

Ohio Attorney General Mike DeWine signaled on Friday he agrees the U.S. Supreme Court should take up litigation seeking recognition of out-of-state same-sex marriages in Ohio, but for the purposes of determining that states have a right to prohibit marriage rights for gay couples under the U.S. Constitution.

In a 34-page filing, DeWine and State Solicitor Eric Murphy make the case for review of the consolidated case of Henry v. Hodges and Obergefell v. Hodges following a decision to uphold Ohio’s ban on same-sex marriage from the U.S. Sixth Circuit Court of Appeals, which is thus far the only federal appeals court that found such laws are constitutional.

Even though the Sixth Circuit ruled in favor of the state, DeWine says the Supreme Court should consider the case to issue a nationwide ruling overruling other courts that have determine the Fourteenth Amendment prohibit states from banning same-sex marriage through the democratic process.

“The country deserves a nationwide answer to the question — one way or the other,” DeWine writes. “For its part, Ohio asks the Court to answer the legal question in favor of a dynamic view that permits the democratic debate over proper policy to continue now and going forward, rather than a wooden view that takes that policy question out of the hands of this generation and all future generations.”

The filing responds to a petition filed by plaintiff same-sex couples in the Ohio litigation asking the Supreme Court to reverse the Sixth Circuit and find a right to state recognition for out-of-state same-sex marriages throughout the country. The petition is one among five before the Supreme Court calling on justices to take up a case seeking a nationwide ruling in favor marriage equality. Petitions have been filed by plaintiff same-sex couples in Michigan, Ohio, Kentucky, Tennessee and Louisiana. But the Ohio and Tennessee cases are unique because they seek recognition of same-sex marriage, not the right for same-sex couples to marry outright.

DeWine presents two major arguments for why the Supreme Court should consider the Ohio marriage case: (1) a square circuit conflict exists over whether the Fourteenth Amendment includes a right to same-sex marriage, and (2) the court should review the Fourteenth Amendment question in the licensing and recognition contexts.

“Given the circuit split, the Court should review whether the Fourteenth Amendment includes a right to same-sex marriage,” DeWine writes. “It should ideally do so in two contexts. The Court should review a case (like the Michigan or Kentucky cases) involving whether the Fourteenth Amendment requires a State to license same-sex marriage within its borders. And it should review a case (like the Ohio cases) involving whether the Fourteenth Amendment requires a State to recognize out-of-state, same-sex marriages.”

Although DeWine says he agrees the Supreme Court should take up the Ohio marriage to resolve the issue of whether the Fourteenth Amendment guarantees the right of same-sex couples to marry, he says he opposes consideration of litigation to determine whether states must recognize out-of-state same-sex marriage on the basis of the Full Faith & Credit Clause.

DeWine offers three reasons why the Supreme Court shouldn’t consider the marriage issue based on the Full Faith & Credit Clause:  (1) it would require the Court to resolve a difficult preliminary issue; (2) it does not involve a deep circuit divide like
the first question; and (3) it was barely addressed by either of the lower courts in the Ohio case.

“The Court should instead allow for additional percolation in the lower appellate courts on this subsidiary question,” DeWine writes. “Review now would, in the end, only divert the Court from the more far-reaching constitutional questions that all of the cases out of the Sixth Circuit present.”

The Ohio filing means that state officials in each of the states with marriage cases before the Supreme Court thus far back review. The only remaining state official not to articulate a position on the issue is Tennessee Attorney General Herbert H. Slatery III. 

Leigh Ann Apple Jones, a spokesperson for his office, said he has yet to file a response as of late Friday. The deadline to file the response is Monday.