A federal judge on Dec. 18 questioned the constitutionality of Ohio's ban on gay marriage and whether state officials have the authority to refuse to recognize the marriages of gay couples who wed in other states.
Judge Timothy Black's comments came as he heard arguments in federal court in Cincinnati over whether gay marriage should be recognized on Ohio death certificates despite a statewide constitutional ban.
Although Black's decision, expected within two weeks, only will pertain to the recognition of gay marriage on Ohio death certificates, he noted that "in the real world out there, the stakes are larger," and that his upcoming ruling could serve as starting point for further litigation seeking gay marriage to be recognized in Ohio.
Black cited a prediction by Supreme Court Justice Antonin Scalia, who wrote in a strong dissenting opinion in June that "no one should be fooled" by the court majority's decision to strike down part of an anti-gay marriage law.
"It is just a matter of listening and waiting for the other shoe (to drop)," Scalia wrote. "The majority arms well every challenger to a state law restricting marriage to its traditional definition."
Said Black, "The shoe dropped and now it's here, and I'm required to follow the law of the United States Supreme Court."
"Politicians say, `I'll leave this to the states,'" but if the United States Supreme Court said the federal government cannot fail to recognize valid same-sex marriages, why can the states?" Black asked Bridget Coontz, the state's attorney arguing against allowing gay couples' marriages to be recognized on Ohio death certificates.
Coontz pointed out that in the same Supreme Court decision, the justices found that states have the right to decide for themselves whether to recognize gay marriage and Ohio voters overwhelmingly decided in 2004 to amend the state constitution to ban gay marriage.
"Ohio doesn't want Delaware or Maryland to define who is married under Ohio law," she said. "To allow that to happen would allow one state to set the marriage policy for all others."
Civil rights attorney Al Gerhardstein argued to Black that the case "is about love surviving death" and that his clients, two recently widowed gay men, deserve to have their out-of-state marriages recognized on their deceased spouses' Ohio death certificates, and so does every other gay married couple in the state.
Black has previously sided with Gerhardstein in rulings limited solely to the two men, who both live in Cincinnati.
Black wrote that the surviving spouses deserved to be treated with respect and that Ohio law historically has recognized out-of-state marriages as valid as long as they were legal where they took place, citing marriages between cousins and involving minors.
"How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize?" Black wrote in August. "The short answer is that Ohio cannot."
The case has drawn attention in other states, including helping spark a similar but much broader lawsuit in Pennsylvania, which also does not permit gay marriage. Black's decision also has irritated some conservative groups and lawmakers in Ohio, with one Republican state legislator calling for Congress to impeach him.