Same-Sex Marriage In Tennessee, Ohio Style

Over the last month a lot of people have asked me if the U.S. Supreme Court’s marriage decisions affect the definition of marriage in Tennessee.  That’s a good question, but we can now give an even better answer.  What happened in an Ohio court this week may determine what happens in Tennessee. 

In June, in United States v. Windsor the Supreme Court struck down as unconstitutional a provision in the federal Defense of Marriage Act that defined marriage for purposes of federal law only as one man and one woman.  That decision did not, in itself, affect Tennessee’s constitutional definition of marriage.  However, the question following that decision was whether the language in the Court’s opinion would be used by other judges as “persuasive” in striking down as unconstitutional state definitions of marriage.

The journey to the answer to that question began in earnest this week when Federal District Judge Timothy Black in Cincinnati, Ohio, issued an opinion in another case brought by a homosexual couple.  It was an interesting situation.  One of the two men was close to death.  So, they loaded a private jet with the necessary medical equipment, flew to Maryland where same-sex marriages are legally recognized, got married while still in the plane on the airport’s tarmac, and then turned right around and flew back home.

They then filed a lawsuit to prohibit the government officials from not listing the two men as “married” on the death certificate and the survivor as a “spouse. “  The reason a lawsuit was necessary was because Ohio’s constitutional amendment does not recognize as valid in Ohio any marriages in other jurisdictions that violate Ohio’s law defining marriage as between a man and a woman.

Tennessee’s Constitution contains a provision that, except for the wording, is similar to Ohio’s.  In other words, if a lawsuit is filed in Tennessee, the plaintiffs will no doubt point to the lawsuit in Ohio and argue that they are the same.

Judge Black, in deciding the lawsuit, noted that the Supreme Court said the federal definition of marriage was unconstitutional because the only reason an overwhelming majority of Congress and the President (Bill Clinton) defined it the way they did was their hatred of homosexuals.  And if that could have been the only motive for Congress, Judge Black reasoned that the majority of the good people of Ohio must have refused to recognize as valid a same-sex marriage performed in another state for the same reason.

In a dismissive fashion, Judge Black said “there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal.”  No consideration was given to whether Ohio had an interest in making sure its definition of marriage was consistently applied throughout the state and throughout the state law.

There are two good things I can say about Judge Black’s ruling.  The first is that he rightly limited it to the two men who had filed the suit.  He didn’t apply it to all death certificates of all Ohioans going forward.  Second, he did not go beyond the issue of death certificates to the broader issue of whether the state has to issue marriage licenses to two people who are of the same sex.

However, if the state of Ohio appeals Judge Black’s ruling to the Sixth Circuit Court of Appeals, located in Cincinnati, Ohio, then whatever that court says will be the law for Tennessee, too, even though Tennesseans will have no one representing them in the case.  That is because Sixth Circuit rulings on the U.S. Constitution are binding on federal courts in all states in that circuit, Tennessee being one of them.

So, Tennesseans, keep your eyes on Ohio.  Let’s hope Ohio’s Attorney General represents Tennessee well.