in a New Yorker piece titled Same-Sex Marriage, The Legal Deluge.
He reviews the big decisions from NM and Utah, but things the real story was in Ohio, where Monday a Federal District Court judge issued an important ruling that has tended to get lost in the shuffle. Toobin writes:
James Obergefell and John Arthur, who lived together in Cincinnati, married in Maryland at a time when Arthur was gravely ill. In anticipation of Arthur’s death, the couple petitioned the state of Ohio for Arthur to be listed as “married” on his Ohio death certificate, and to record Obergefell as the “surviving spouse.” Ohio, which does not allow same-sex marriages, refused, but federal judge Timothy S. Black ruled against the state and in favor of the couple. The judge said it was “not a complicated case.” Throughout Ohio’s history, Ohio has treated marriages solemnized out of state as valid in Ohio. “How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriage as ones it will not recognize?” Black asked in his opinion. “The short answer is Ohio cannot.”Here the decision was reached on the basis of Ohio law, and that to discriminate against valid marriages from out of state would clearly be a violation of the Equal Protection Clause of the 14th Amendment.
But there is more.
Please note Toobin's very next paragraph:
The Ohio decision is crucial because people in the United States tend to move from state to state. Like Obergefell and Arthur, people in same-sex marriages may well end up living in states where such marriages are illegal. Once they are in those states, these couples will become enmeshed in the legal system in the way that heterosexual married couples do. They will have children; they may divorce and dispute child custody; they will seek to file joint tax returns; they will visit each other in the hospital; they will want to be with each other when they die. Their lives will intersect with the legal system in scores of ways at those junctures. In light of this, many judges will face dilemmas similar to the one Black just resolved.In a sense we are already seeing this. After all, the Utah decision made note of the number of children living in same-sex families in the state.
while Black's decision as of now carries no weight elsewhere, unless it is overturned it will serve as a valid precedent from a competent court that may considered in other federal districts.
Toobin then goes through an extended discussion of the reasoning and opinion of Judge Shelby in the Utah case, before offering the following concluding paragraph:
What Shelby and all these judges are seeing is that it is impossible to offer gay people some rights and not others. They are either full citizens, or they are not. In case after case, and now state after state, judges are drawing the only principled conclusions they can. So, increasingly, is the broader citizenry. Gay people are winning—as are we all.Even those scared of gays, even the bigots, they may not realize it, but in the long run they will be better off. Some of them will have gay family members, and some of the others might themselves finally be able to come out of the closet, eh?