Judge Timothy S. Black proclaims at the outset of his order that “This is not a complicated case.” For him, it’s dispositive, under the Supreme Court’s recent ruling against the federal Defense of Marriage Act in United States v. Windsor, that Ohio’s non-recognition of legal marriages of same-sex couples is an exception to its historical practice of providing that the validity of a marriage under Ohio law “is determined by whether it complies with the law of the jurisdiction where it was celebrated.” Judge Black reads Windsor to stand for the broad proposition that “there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal.”
Justice Kennedy’s gaseous and gauzy rhetoric in Windsor is surely sufficiently indeterminate to permit Black’s reading. But I don’t think that the question in the case is nearly as simply as Black maintains. And, unless and until the Supreme Court clearly says otherwise, basic principles of federalism arguably ought to compel the lower federal courts to adopt the reading of Windsor that is most respectful of state authority.
The argument that Black never confronts is that Windsor recognizes (even as it misapplies—see point 4 here) the principle that “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” As the Court has previously put it, in a passage that Windsor quotes with approval, “Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders.”
It ought to follow from that principle that a state, in determining which out-of-state marriages to recognize, has broad authority to regard some components of marriage as essential and others as incidental. There is, therefore, no inconsistency between Ohio’s general practice of regarding age of consent and degrees of consanguinity as (within certain bounds) incidental and its view that the male-female component of marriage is essential.
Under Black’s analysis, it would seem that Ohio is obligated to recognize any marriage that any other state allows—including, for example, polygamous marriages and incestuous adult marriages.