On Gay Marriage, the ‘State Law Shoe’ Drops in Ohio

by William C. Duncan & Michael T. Worley

In the wake of the U.S. Supreme Court decision (Windsor v. United States) striking down part of the Defense of Marriage Act, there have been at least five lawsuits filed citing that decision in support of an argument that a state marriage law is unconstitutional. The Windsor decision includes a prediction from Justice Scalia that although that case involved a challenge to a federal statute the “state law shoe” would be “dropped later.” That prediction was invoked yesterday when a federal judge in Ohio issued a temporary restraining order requiring the state to include the name of a same-sex spouse (the couple had married in Maryland) on the death certificate of one of the plaintiffs who, the court opinion explains, “is certain to die soon.”

The core holding of the court is that Ohio’s failure to recognize a same-sex marriage from out of state “created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.” Who knows when the shoe will drop in other states?

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