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Officials in Ohio ask federal judge to stay his decision requiring recognition of same-sex marriages performed elsewhere

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ohio state seal

UPDATE: The stay has been granted, but it doesn’t apply to the named plaintiffs. Those plaintiffs will get their relief: “Ohio shall issue birth certificates for Plaintiffs’ children which list both lawfully married same-sex spouses as parents.” Other same-sex couples who were married outside of Ohio will have to wait on the outcome of the appeal before their marriages are recognized.

When a federal judge struck down Ohio’s ban on recognition of same-sex marriages performed outside the state, he noted that a hearing would be held on the state’s verbal request for a stay. His order suggested he was inclined to stay the effects on his decision on all same-sex couples in Ohio except those named plaintiffs in the case.

In a new filing, the state urges the court to adopt that approach as well:

That is Interim Director Himes requests—in keeping with the contours outlined by the Court—that this Court stay pending appeal to the Sixth Circuit Court of Appeals its Order Granting Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction (Docs. No. 28 & 29) except as it relates to the individual Plaintiffs for the issuance of the birth certificates they sought.

The state argues that staying the case would prevent harm to the state, but they also suggest there would be harm to same-sex couples if the order is not stayed:

In addition to the harms that would come with confusion in various governmental settings, a special harm arises if same-sex couples not party to this case prematurely rely on this Court’s decision, and spend time and money based on that reliance. Some might change estate plans or other arrangements. Some might even travel to other States to marry, counting—prematurely— upon Ohio’s recognition of their marriages when they return. Indeed, news reports describe efforts to do just that, based on this case.

The plaintiffs’ earlier opposition to a stay had pointed out that no federal court has ruled against same-sex couples since United States v. Windsor, arguing the plaintiffs are likely to succeed here as well, on appeal. Further, they argued the harm to same-sex couples who are deprived recognition of their marriages outweighs any potential administrative harm to the state.

A decision on the stay request is expected soon. The case is Henry v. Himes.

Thanks to Kathleen Perrin for these filings

55 Comments

  • 1. sfbob  |  April 16, 2014 at 8:39 am

    While indeed some couples might do as Himes suggests they might, get married in a different state, change their estate plans and so on, then regardless of how a higher court may rule in the future, they would in the end still be legally married in the eyes of the federal government no matter what Ohio might say.

    So the worst thing they would suffer is that they might have to change some of their estate planning details a second time, thereby incurring some additional expenses. This falls directly under the heading of a redressable injury. Were I in that position it's a chance I'd gladly take.

  • 2. Michael Grabow  |  April 16, 2014 at 8:48 am

    Boo, hiss.

  • 3. DrHeimlich  |  April 16, 2014 at 8:54 am

    Yeah. Not surprising, really, but still disappointing.

  • 4. grod  |  April 16, 2014 at 3:58 pm

    Dr Heimlich – Judge Black noted that prior to 2011, out of state same sex couple's adoptions were registered in Ohio with both parent listed p 9, Given the change was an 'executive' policy decision, I had expected him to have permitted return to the previous practice based on faith and credit.. G.

  • 5. Rose  |  April 16, 2014 at 4:23 pm

    This is REALLY beginning to tick me off……what is the purpose of having guidelines for issuing a Stay when NO ONE follows them? The State of Ohio HAS no harm if they recognize the legal marriages of Same-Sex couples outside of the plaintiffs…….and yet, court after court CAN'T just stand up to SCOTUS and say look, there is NO reason to stay these rulings because the State's are NOT going to win on appeal……all staying these rulings do is DELAY the Couples from being treated EQUALLY!!!

    I agree with the poster who went boo hiss!!!

  • 6. SeattleRobin  |  April 16, 2014 at 4:27 pm

    I'm really disappointed that the judge issued the stay. Plaintiffs addressed all the factors required in order to issue a stay and their arguments are much more compelling than the State's. The State only has vague maybes, whereas the harms to existing married couples are specific and already recognized. Grrrrarrrrgh!

  • 7. ebohlman  |  April 16, 2014 at 4:38 pm

    Sort of playing devil's advocate here, but: a pretty surefire way for a district judge to piss off an appellate court (especially the SCOTUS) is to hand them a case that comes with a pile of toothpaste and an empty tube and tell them them that if they don't uphold his ruling they'll have to stuff it back in. You don't get high-quality precedent out of doing that sort of thing.

    It's just a fact of American jurisprudence that an issue of this importance really has to be heard by an appellate court before any major changes can be made. Fortunately, there is a trend toward district courts issuing narrowly-targeted relief to specific plaintiffs in emergency situations (terminally ill, expecting a child, etc.) so a little bit of patience is warranted; this issue is moving through the courts at unprecedented speed.

  • 8. SoCal_Dave  |  April 16, 2014 at 5:42 pm

    "In addition to the harms that would come with confusion in various governmental settings….."

    Yeah, God forbid we should allow the confusion of married people being recognized as married.
    The stay now lets us go back to the crystal clarity of the legal status of LGBT relationships that we had before this ruling.
    (/sarcasm)

  • 9. Fr. Bill  |  April 16, 2014 at 6:49 pm

    Rose's point is well taken and I share everyone's frustration. Small as it is, I think Judge Black's ruling is a small breach in the "gay means stay" dam. His candid and emphatic opinion on top of a string of wins by 8 district court judges means that we are getting closer to our goal of full equality under the law. Now if only a couple of Circuit Courts of Appeals would be as strong and forthright in their opinions as Judge Black. It should be obvious to anyone that there is no likelihood of getting this resolved legislatively given how politicized the issue is on both state and national levels.

  • 10. Rose  |  April 16, 2014 at 9:52 pm

    To some degree you have a point…….but you MISSED mine…….if there is a guideline as to how and when a stay is issued…….then it NEEDS to be followed, otherwise get RID of it and just STAY every District Court Ruling!!!

    The State NEEDS to explain and show how they are being HARMED by a Stay NOT being granted and they simply CAN'T even do that, let alone show how they MIGHT be successful on appeal……hell, even Judge Walker KNEW that the proponents of Prop 8 DIDN'T have Article 3 standing……yet ALMOST another 3 years went by BEFORE Prop 8 was gone, why? Because the 9th DIDN'T have the balls enough to rule on that issue and punted back to the CSSC to ask a question….that in the end was a TOTAL was of time because SCOTUS ruled as the 9th should have!!!

  • 11. erasure25  |  April 17, 2014 at 10:16 am

    I agree. Either get rid of the stay guidelines and automatically stay every ruling for every case or follow the guidelines. We are fast approaching the point where half the states have marriage equality so it is no longer a blip or a remote outcome. Over 1/3rd of the US population lives in marriage equality states (38% I believe) – either states with ME or ones that recognize out of state ME. It is no longer ok to treat "gay" cases as if the guidelines don't apply – it is just another form of second class citizenship infecting the judicial branch.

  • 12. Seth from Maryland  |  April 17, 2014 at 11:26 am

    Prop. 8 Defense Attorney Charles Cooper now supports marriage equality:
    Charles Cooper, the lawyer who unsuccessfully argued that California's same-sex marriage ban was constitutional, now supports marriage equality and is helping plan his stepdaughter's wedding to another woman.
    BY SUNNIVIE BRYDUM APRIL 17 2014 2:09 PM ET

    The attorney who defended California's now-defunct Proposition 8 has "evolved" to support marriage equality, according to a new book.

    Charles Cooper, who represented the supporters of the voter-approved constitutional amendment that revoked marriage equality in California, is now helping to plan his lesbian stepdaughter's wedding, reports the Associated Press in its coverage of Pulitzer Prize-winning journalist Jo Becker's rather controversial new book, Forcing the Spring: Inside the Fight for Marriage Equality.

    Cooper, who argued that the federal district judge who initially ruled Prop. 8 unconstitutional should recuse himself because he was in a long-term same-sex relationship, apparently discovered that his own stepdaughter, Ashley, was gay as the landmark case worked its way through the legal system to the U.S. Supreme Court.

    "My views evolve on issues of this kind the same way as other people's do, and how I view this down the road may not be the way I view it now, or how I viewed it ten years ago," Cooper told Becker, according to the AP's report.

    Cooper confirmed his "evolution" to the AP in a statement today, saying that his family is "typical of families all across America."

    "My daughter Ashley's path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey's family are looking forward to celebrating their marriage in just a few weeks," Cooper told the AP.

    When arguing for Prop. 8 in federal court on behalf of the defendant-intervenors who stepped in to defend the law when two sets of state officials declined to do so, Cooper claimed that marriage equality undermined the institution of marriage and would weaken opposite-sex marriages. He spent a substantial portion of his closing arguments in June 2010 at the San Francisco federal courthouse focusing on the idea that limiting marriage to opposite-sex couples was necessary for maintaining "responsible procreation."

    Those arguments were ultimately unsuccessful, as the U.S. Supreme Court determined last June in 5-4 decision that the Prop. 8 proponents did not have "standing" to challenge a federal judge's decision in the case. The Supreme Court declined to rule on the constitutionality of Prop. 8, but did conclude that the ballot measure's proponents should not have been allowed to defend the case in court in the first place. The high court decision essentially affirmed District Judge Vaughn Walker's ruling that Prop. 8 was unconstitutional, and marriage equality was restored in California June 28, 2013. http://www.advocate.com/politics/marriage-equalit

  • 13. Chris M.  |  April 17, 2014 at 11:32 am

    I wish every politician had a gay son or lesbian daughter – then the battle would be over in a flash.

  • 14. DrHeimlich  |  April 17, 2014 at 11:33 am

    A gay son or lesbian daughter…. or, you know, empathy.

  • 15. StraightDave  |  April 17, 2014 at 11:35 am

    Cooper always looked like he had stomach cramps trying to weasel his way out of some of the Prop8 questions he faced, especially at the 9th Cir. It's no wonder he wants to remove himself from the list of available ADF candidates.

  • 16. JayJonson  |  April 17, 2014 at 11:37 am

    The AP story doesn't quite say that Cooper supports marriage equality, only that his views are "evolving."

    Here is an url to a blog from glbtq.com about Cooper's evolving stance: http://www.glbtq.com/blogs/attorney_charles_coope

    Or you can use this link.

    I can't wait to read the book.

  • 17. Ragavendran  |  April 17, 2014 at 11:43 am

    In a bold move, a Milwaukee lesbian couple has bypassed lower courts and filed suit directly with the Wisconsin Supreme Court, calling on its original jurisdictional authority in matters of extraordinary public importance to the State: http://www.jsonline.com/news/wisconsin/milwaukee-

    A same sex adoption case, Appling is awaiting a decision before the same Court, and the Plaintiffs argue that it is appropriate for the Court to take up their case to avoid conflict with its upcoming decision in Appling.

  • 18. Larry  |  April 17, 2014 at 11:49 am

    I don't understand why the couple filed the lawsuit in state court rather than federal court. Wisconsin has a constitutional amendment defining marriage as 1 man and 1 woman. Can the Wisconsin Supreme Court strike down part of the Wisconsin Constitution?

  • 19. Ragavendran  |  April 17, 2014 at 11:54 am

    There is already a federal court case, Wolf, in Wisconsin targeting the ban (not a reason to not file another federal lawsuit, of course). A trial in that case is scheduled for August, but a summary judgment sometime in June might render it unnecessary. And yes, state courts are empowered to strike down state constitutional amendments if they find that they are in violation of the federal constitution. There are several cases in state courts right now, e.g., Florida, Colorado. The surprise is that they filed directly with the State Supreme Court.

  • 20. Serenifly  |  April 17, 2014 at 11:57 am

    Saying "I am evolving" is just a way for them to not avoid admitting that they were ever wrong.

  • 21. Steve  |  April 17, 2014 at 11:58 am

    I'm so sick of these Republican scum backs who clear lack empathy and never care for anything or anyone that doesn't affect themselves.

  • 22. Steve  |  April 17, 2014 at 11:58 am

    *scumbag

    Ooops

  • 23. Zack12  |  April 17, 2014 at 12:06 pm

    Sad to say but that isn't true.
    Several of the people who voted yes on the Federal Marriage Amendment back in 04 and 06 have gay or lesbian relatives.
    In Indiana two of the people who voted for the ban had a gay son and gay brother respectively. In Hawaii one of the no votes had a lesbian sister. Same in CO with the vote against civil unions, NY and elsewhere.
    Sad to say but for many of them, having a gay or lesbian relative won't change a darn thing.

  • 24. Steve  |  April 17, 2014 at 12:24 pm

    In Hawaii, one of the no votes was a lesbian. Somehow she wondered why the gay community disliked her, but the religious extremists suddenly "loved" her.

  • 25. Zack12  |  April 17, 2014 at 12:34 pm

    Jo Jordan. She wasn't the first gay or lesbian to vote against her community, just the first one to be out while doing so.

  • 26. Dr. Z  |  April 17, 2014 at 12:39 pm

    Agreed. This news didn't surprise me a bit. Cooper always seemed personally uncomfortable around Pugno and the other fiery-eyed true believers among the Prop 8 proponents. He let Pugno handle the PR and press conferences for them (disasterously) and he was always out of that courtroom like a shot without talking to the press. When the bitter-enders waged their hopeless fight to contain the post-SCOTUS Perry ruling to the two named county clerks, Cooper disassociated himself with them.

    His heart wasn't in it, and it showed. Like Blankenhorn.

  • 27. Zack12  |  April 17, 2014 at 12:42 pm

    Indeed it wasn't. It didn't stop him from taking the $$$ though.

  • 28. JayJonson  |  April 17, 2014 at 1:06 pm

    And don't forget he has a very long anti-gay history. Not only did he defend Colorado's infamous Amendment 2 (which was overturned by Romer v. Evans), but when he was Assistant Attorney General in the Reagan administration he wrote a really ugly memo claiming that laws that protect the handicapped from employment discrimination did not cover those suffering from AIDS. He also represented Hawaii in the state supreme court in one of the very first marriage equality cases. He clearly took these cases out of commitment to the anti-gay cause. In this sense, he was not like Blankenhorn, who apparently did not have animus against gay people, he just wasn't very smart.

  • 29. JayJonson  |  April 17, 2014 at 1:08 pm

    Isn't there a court hearing in an Arkansas state court today challenging its marriage ban?

  • 30. sfbob  |  April 17, 2014 at 1:17 pm

    It's hard to judge how invested an attorney's going to be in his or her client's case. An acquaintance of mine was a public defender who was taxed with defending two particularly odious individuals in a criminal case. I've no doubt he handled his clients' case to the best of his ability; at the same time I remember him telling me he felt like he needed a shower after every interaction with them.

    Perhaps this is less so so in issue such as marriage equality or LGBT rights in general where there's a whole cottage industry of right-wing conservative law firms set up specifically to oppose us. But even that is no guarantee. If you assume that their attorneys have at least a bit of personal integrity then surely at least some of those attorneys (not all of whom are total ideologues or idiots) must understand that they really are on the losing side of the battle based simply on a plain reading of the constitution and even more so on recent court rulings.

  • 31. sfbob  |  April 17, 2014 at 1:19 pm

    Yes, there is.
    http://www.chron.com/news/article/Hearing-set-in-

  • 32. Ragavendran  |  April 17, 2014 at 1:23 pm

    Yup, the case docket for this case reports that a hearing has been held: https://caseinfo.aoc.arkansas.gov/cconnect/PROD/p

  • 33. Ragavendran  |  April 17, 2014 at 1:52 pm

    An initial report on today's oral argument sounds promising with respect to Holmes: http://thenewcivilrightsmovement.com/hearing-ends
    Another report says a lot of time was spent on jurisdiction and standing: http://www.denverpost.com/news/ci_25585912/tulsa-

  • 34. Dr. Z  |  April 17, 2014 at 1:56 pm

    I don't know how much to read into that. Judge Vaughn Walker also did some nasty things to Tom Waddell, the founder of the Gay Games, when the USOC went after him for copyright infringement after he originally called them the "Gay Olympics." Walker even attached a lien to Waddell's home while he was dying of AIDS.

    And yet: Walker was gay. And he ruled for our side in the Perry decision.

    My impression is that Cooper didn't need the bucks, that he was doing it as a good Republican soldier but that he was starting to question whether doing the Right thing was necessarily the right thing.

  • 35. DrHeimlich  |  April 17, 2014 at 2:14 pm

    Here's the Bishop audio, from the 10th circuit web site:
    http://www.uscourts.gov/courts/ca10/14-5003.mp3

  • 36. Tim  |  April 17, 2014 at 2:26 pm

    Courtroom twitter observations from Nancy Leong who was there: https://twitter.com/nancyleong

    Ragavendran & DrHeimlich thanks for answering above.

  • 37. Tim  |  April 17, 2014 at 2:27 pm

    Bishop/Oklahoma/10th Circuit

  • 38. Ragavendran  |  April 17, 2014 at 2:39 pm

    I loved these Lucero quotes towards the Oklahoma lawyer:
    "I read ALL the words. I just didn't understand them."
    "Why is gay people getting married a poison pill for heterosexual marriage?"

  • 39. DrHeimlich  |  April 17, 2014 at 3:13 pm

    I just finished listening to the audio. My miscellaneous thoughts:

    I felt pretty sure of where Holmes really stood after the Kitchen hearing. I feel even more certain now after this. He again makes multiple references to Loving, and is particularly strenuous at around 9:44 in the audio. He seems to be exasperated at the attempt to ignore or differentiate these cases from Loving.

    Also, near the end of the hearing, there's an exchange about amicus briefs regarding "parenting studies," and the Oklahoma lawyer tries to cite some support of man-woman marriages as superior environments. It's Holmes — not Lucero — who interrupts to point out that the bulk of the studies discredit that opinion.

    So bottom line: we have Holmes. And there can be no doubt we have Lucero. During this hearing, he was frankly a better advocate for our side than the plaintiffs' actual lawyer (who got bogged down and spent all his time discussing standing and recognition). That makes 2 votes, and that makes for a win.

    As for Kelly? It feels possible he might rule against us on standing and not the merits. I don't know where that leaves him in Kitchen, but it does make me wonder if he might try to use standing as a way of passing on having to write an anti-gay ruling that would put him on the "wrong side of history."

  • 40. JayJonson  |  April 17, 2014 at 3:59 pm

    I agree with the take on the arguments as expressed by DrHeimlich above. I came away much more confident that it will be a 2-1 ruling. I was a little concerned by the concentration on standing by Judge Kelly. But it seems to me that it is too late to raise that issue. After all, the couple has been given contradictory information about who they are supposed to sue. Citizens should be able to get clear answers to such a basic question. It shouldn't be a guessing game; one shouldn't have to spend thousands of dollars in attorney fees only to be told, oh the previous court gave you the wrong information.

    I was interested that Judge Lucero (I think) referred to the question of the legitimacy of the children of same-sex couples if Oklahoma refuses to recognize out of state same-sex marriages. Questions regarding "illegitimacy" are accorded heightened scrutiny, or at least "illegitimate children" are considered a protected class, if I remember correctly. Could this be a hint about the level of scrutiny he may be considering?

  • 41. Retired lawyer  |  April 17, 2014 at 4:08 pm

    I was struck by Prof. Leong's willingness to predict a victory 2-1 or even 3-0 for the plaintiffs in both the Oklahoma and the Utah cases, based on her first hand observation of the judges on the panel. The comments of this law prof deserve attention.

  • 42. sam  |  April 17, 2014 at 4:21 pm

    When they were discussing standing, it was regarding the cross-appeal about recognition of out-of-state marriages. It doesn't affect the part of the OK trial striking down the state ban.

    It's hard to say about Kelly, He didn't really go after the plaintiffs on anything related to the successful challenge in Bishop v. Oklahoma. And although forceful on certain issues in the Kitchen hearing, those don't preclude him at least in part joining the others , depending on the opinion.

    It's likely he knows where this is going; if he has reservations about certain issues, it may be more sensible for him to dissent in part.

  • 43. sfbob  |  April 17, 2014 at 4:24 pm

    IIRC, "illegitimate" children are considered a quasi-suspect class; intermediate scrutiny would apply.

  • 44. JayJonson  |  April 17, 2014 at 5:02 pm

    Walker was never antigay to the extent that Cooper was. The memo arguing that AIDS sufferers had no protection from being fired was an especially nasty piece of work, to say nothing of the defense of Amendment 2. He may have become less vicious by the time Prop 8 came around, but his record is very ugly and should not be "pinkwashed" in light of his belated evolution.

  • 45. StraightDave  |  April 17, 2014 at 6:11 pm

    I don't really see a heck of a lot of evolution here, other than knowing how to spell the word. He's still speaking in obtuse phrases.
    "how I view this down the road may not be the way I view it now," sounds like he still has a lot of evolving left to do, since nobody goes backward on this issue.

  • 46. JayJonson  |  April 18, 2014 at 6:39 am

    Apparently, the judge said he would rule within two weeks. Here is a link to an article about the hearing: http://arkansasnews.com/news/arkansas/judge-rule-

  • 47. Ragavendran  |  April 18, 2014 at 9:28 am

    “I’ve already got an idea where I’m going, but I’m still drifting,” Judge Chris Piazza said
    I wonder if that means he is inclined to strike down the ban?

  • 48. SPQRobin  |  April 18, 2014 at 2:10 pm

    For what it's worth, he's a Democrat, and he once overturned a ban on adoption by unmarried couples: http://judgepedia.org/Chris_Piazza

  • 49. Michael Grabow  |  April 21, 2014 at 7:31 am

    From that case:

    "Due process and equal protection are not hollow words without substance. They are rights enumerated in our constitution that must not be construed in such a way as to deny or disparage other rights retained by the people."

  • 50. Michael Grabow  |  April 21, 2014 at 8:13 am

    I had not heard about this until I saw it mentioned in the link Ragavendran posted.

    The state's domestic partnership registry also is under challenge by conservatives who say it is too much like marriage and violates the 2006 amendment to the state constitution. That case is pending before the state Supreme Court.
    http://www.jsonline.com/news/statepolitics/state-

    I honestly do not know how these people can look at themselves in the mirror and think this is the right thing to do.

  • 51. Ragavendran  |  April 21, 2014 at 8:50 am

    Good article summarizing oral argument. This portion was intriguing:

    Justice Patience Roggensack noted it is rare for the court to strike down a statute in its entirety, rather than just the parts that violate the constitution. That prompted a discussion about whether the court could take out the elements of the registry law that require people to be of the same sex and not closely related.

    If the court were to go that route, gays could remain in domestic partnerships, but heterosexual couples would now get the chance to form them. Family members could also enter into them, such as a woman who took care of her sick grandmother.

    Why have domestic partnerships only for same sex couples? Open it up for everyone!

  • 52. sfbob  |  April 21, 2014 at 9:03 am

    Walker wasn't anti-gay; he was doing the bidding of his employer. There's no way of knowing whether the lien against Tom Waddell's home was Walker's idea, whether it was a common tack to take, or whether the IOC, his client, suggested it.

    That action cost him his first crack at a federal judgeship. He was nominated by Ronald Reagan; Dianne Feinstein refused to let the nomination proceed, precisely because of Walker's part in the suit against the Gay Games.

    It would not surprise me to find attorneys doing things in the course of their work that, as individuals, they would view as reprehensible. I hate to say it but I don't understand how a corporate lawyer could fail to do that from time to time.

    I hope Walker publishes his memoirs at some point. It will be interesting to see how views that particular case and his role in it.

  • 53. Fluffyskunk  |  April 22, 2014 at 4:41 pm

    To be fair, it WAS a case of blatant trademark infringement. I guess I don't really understand why representing a client against a defendant who happens to be gay is automatically anti-gay?

  • 54. Eric  |  April 22, 2014 at 4:53 pm

    How does one trademark an even that preceded the founding of the country by a few millennia?

  • 55. Fluffyskunk  |  April 22, 2014 at 5:52 pm

    I don't know, but the fact is it's legally their trademark, which Waddell was using without permission. All I'm saying is it's not anti-gay to enforce a trademark against a gay organization in blatant infringement thereof.

    (The decision to enforce it against the "Gay Olympics" specifically while ignoring other cases of infringement most likely WAS anti-gay, but that wasn't Walker's decision…)

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