Court battle didn’t end fight over gay marriage

Updated Jan 01, 2016

Same-sex marriage — outlawed outright just a dozen years ago — is now legal in all 50 states following last June’s landmark Supreme Court ruling in a case that originated in Ohio.

But while gays, lesbians and their allies across America rejoiced — and tens of thousands of couples took advantage of the historic opening and got married — the issue may not have been completely put to rest.

The controversial and narrow 5-4 ruling that granted gay couples the right to marry has already infused the 2016 presidential debate and nearly guarantees an intractable Roe v. Wade-like political skirmish for years to come.

“Of course it’s not settled and it’s not ever going to be settled if the Supreme Court can redefine the institution of marriage,” said Brian Brown, president of the conservative National Organization for Marriage. “It’s false. It’s a lie. The Court issued an illegitimate decision. Anyone that wants to read the dissents can see that.”

The ruling’s impact was felt immediately in places like Dayton, where one of Ohio’s first — if not the first — same-sex marriage took place at City Hall just 90 minutes after the ruling was announced. Kery Gray and his longtime partner, Tim Walsh, were married by Mayor Nan Whaley.

Erin Ritter and her partner of nine years, Alisha Hackenburg, weren’t far behind. As Ritter watched a live blog streaming on her computer at her social services job in Dayton, she said she cried “tears of joy” and then immediately called Hackenburg, who was at their home in New Lebanon.

They hadn’t planned on getting married right away, “but then we were just overcome with emotion from the day,” said Hackenburg, an emergency department nurse.

“We went over just simply to buy our marriage license so we had it,” Hackenburg said. “So they couldn’t take it back.”

March to equality

Massachusetts stood first alone, allowing same-sex marriage beginning in 2004. In 2008 the march of marriage equality for same-sex couples spread slowly to Connecticut, then in 2009 to Iowa and Vermont. By the end of last spring, 33 more states in short succession legalized same-sex unions while 13 others — including Ohio, with a state constitutional amendment prohibiting gay marriage passed in 2004 — dug in and held fast.

It was an Ohio couple, Cincinnatians James Obergefell and partner John Arthur, who provided the test case that would lead the Supreme Court to remove that last legal roadblock.

Obergefell and Arthur, who was terminally ill, got married in Maryland on July 11, 2013, and filed a lawsuit challenging the state of Ohio to recognize same-sex marriage on death certificates.

Ohio Attorney General Mike DeWine fought back, arguing that the state had voted in 2004 to define marriage as being between a man and a woman. That case, bundled with others, went before the Supreme Court and served as the definitive statement about whether marriage could only take place among people of the opposite sex.

The ruling came long after Arthur died on Oct. 22, 2013.

Obergefell held Arthur’s photograph to his chest as he spoke outside the Supreme Court building.

“I’d like to thank John for loving me, for making me a better man and for giving me something worth fighting for,” he said. “I love you. This is for you John.”

More battles expected

Fissures would soon erupt.

In Kentucky, Kim Davis, a Rowan County clerk, refused to grant marriage licenses to same-sex couples, citing her Christian faith. She was later jailed for failing to do her job but also drew heaps of praise from conservative groups and Republican presidential aspirants Ted Cruz and Mike Huckabee. Two other clerks in Kentucky initially refused to grant licenses.

County employees in other states including Indiana and Nebraska challenged the ruling. Last month, new Republican Kentucky Gov. Matt Bevin signed an executive order that removed county clerks’ names from marriage licenses.

“Some county clerks and their employees sincerely believe that the presence of their name on the form implies their personal endorsement of, and participation in, same-sex marriage, which conflicts with their sincerely held religious beliefs,” Bevin wrote in the order.

Closer to home, Clark County Probate Court Judge Richard Carey, citing his Roman Catholic faith, had his name removed from licenses because of religious objections to same-sex marriage. Licenses were still granted under another judge’s name.

“If there’s a separate goal for me to accept what they’re doing as something other than legal, that I should set aside publicly my faith and announce that this a good idea, that this is great and there are no problems with this, I can’t do that,” Carey said in July after the first same-sex couple in Clark County applied for a license.

Conservative groups fear others, such as florists and caterers, will face fines and jail time if they refuse services to same-sex couples for the same reasons.

Brown said people shouldn’t be punished for their religious beliefs.

“This is tyranny to say you must leave your conscience and your religious convictions at the door when you have a job,” he said. “That you have to use your artistic skills in order to support same-sex marriage. That is not what our country’s all about.”

More legislative fights — and legal battles — are expected.

A long list of U.S. House Democrats have co-sponsored the Equality Act that would amend the Civil Rights Act of 1964 and include sex, sexual orientation and gender identity to prohibited categories of discrimination or segregation.

Among other provisions, the act would bar employers with 15 or more employees from workplace discrimination based on sexual orientation or gender identity — long a concern of LGBT rights advocates.

“The reality today is LGBT people can get married anywhere in the country, but in a majority of the states, including Ohio, a same-sex couple can get married over the weekend but go into work and be at risk for being fired because there’s no explicit federal non-discrimination laws for LGBT people,” said Brandon Lorenz, a Human Rights Campaign spokesman.

“So looking forward, one of the big tasks ahead is ensuring the nation’s non-discrimination laws cover LGBT people. That principle is very simple: everyone should have a right to earn a living, live free from pure discrimination.”

Marriages climb

Data on how many same-sex couples have entered into marriages in Ohio since the Obergefell decision is hard to find, and may not even exist.

Whaley said she’s not keeping track of the number for a reason.

“A marriage is a marriage to us,” Whaley said. “We made a choice not to count it… Since they are the same in the eyes of the law, they are the same to us.”

Whaley offered free marriages the week following the ruling and married 34 couples. Some were straight, but the vast majority were same-sex couples taking advantage of the new right, she said.

“To be in the seat at this time I just feel incredibly lucky that I got to participate in it,” Whaley said. “To be a part of where we were able to take a step toward equality in such a large way was a great honor.”

Beth Ferrari, a deputy clerk in the Marriage License Bureau at Montgomery County Probate Court, said records don’t distinguish between opposite-sex and same-sex couples. As of last Monday, 3,302 couples applied for marriage licenses in 2015, an increase of 140 over 2014.

The state’s Office of Vital Statistics receives only the names and dates of license applicants, but no gender markers on marriage data from probate courts, said Cassie Balasubramanian, a spokeswoman for the Ohio Department of Health, which oversees the office.

According to at least one national estimate, 96,000 same-sex couples were married in the United States in the four months following Supreme Court’s legalization of marriage equality, representing 11.2 percent of all marriages.

The sudden increase boosted the number of same-sex marriages in the country to more than 486,000 couples by the end of October — more than double the 230,000 estimated married couples as of June 2013, according to the study by the Williams Institute at the UCLA School of Law. The researchers used data from the Census Bureau’s 2013 and 2014 American Community Survey and the 2015 Gallup Daily Tracking Survey.

Presidential importance

Brown of the National Organization for Marriage said the clearest path for conservatives to potentially reverse the Obergefell decision is to elect a president who shares those values. The next president, he said, will likely get the opportunity to nominate two new Supreme Court justices.

“There will be replacements at the court and there will likely be future marriage cases,” Brown said. “Given the logic of the court’s decision I don’t see why there won’t be a polygamy decision before the court at some point. And at that point the court can reassess its decision and if there are judges on the court that understand that their role is to interpret and not make up the law, the decision will be reversed.”

Brown’s organization put a “Presidential Marriage Pledge” calling for overturning the decision in front of each presidential candidate. Four Republicans signed: Ben Carson, Sen. Ted Cruz of Texas, Gov. Bobby Jindal of Louisiana (who has since suspended his campaign), and former Sen. Rick Santorum of Pennsylvania. Last month NOM threw its endorsement to Cruz, calling him a forceful advocate of “true marriage.”

Ohio Gov. John Kasich refused to sign the pledge, according to Brown, who said Kasich has made clear that “protecting marriage” is not a priority.

“His quote that ‘it’s time to move on’ shows that he is exactly the type of milquetoast candidate that would be a disaster for the Republican party,” Brown said.

Reached for a response, Rob Nichols, Kasich’s campaign spokesman, said the governor’s position hasn’t wavered since the first Republican presidential debate in Cleveland.

“Our answer hasn’t changed,” he said. “When the court issued its ruling in the matter, we said we were going to respect the court’s decision and move on.”

Lorenz, the Human Rights Campaign spokesman, said the Supreme Court ruling underscores the importance of supporting a presidential candidate who “supports marriage equality.”

“There’ve been a number of candidates who have in various ways said they would undermine the court ruling or attempt to reverse it,” he said. “So there’s an enormous amount at stake heading into the next election.”

Starting a family

Hackenburg, 33, and Ritter, 31, know they owe a tremendous debt to couples like James Obergefell and John Arthur.

“To be able to have your relationship recognized is a big deal in terms of feeling like you are equal to every other couple in the country,” Ritter said.

The marriage hasn’t changed their relationship, Ritter said, but she’s noticed changes in other people. No longer do they seem shocked or uncomfortable when she introduces Hackenburg as her wife. There is more acceptance.

“I hope that one day when we tell our children that at one point we were not allowed to be married that they will think we are making it up and it will be unimaginable to them that our country denied equal rights to same sex couples,” she said.

After much discussion they’ve settled on having two children.

“We don’t want one kid having to care for their old, crotchety moms,” Ritter said. “We thought maybe give them a sibling so it will be a little easier.”