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Why is a ban on same-sex marriage still part of the Ohio Revised Code?

In this April 28, 2015, file photo, demonstrators stand in front of a rainbow flag of the Supreme Court in Washington, as the court was set to hear historic arguments in cases that could make same-sex marriage the law of the land.
Jose Luis Magana
In this April 28, 2015, file photo, demonstrators stand in front of a rainbow flag of the Supreme Court in Washington, as the court was set to hear historic arguments in cases that could make same-sex marriage the law of the land.

In 2015, the U.S. Supreme Court decision of Obergefell v. Hodges cleared the way for legal same-sex marriage across the county. After nearly seven years and tens of thousands of same-sex marriages in Ohio, the letter of the law still states that marriage can only be between one man and one woman.

This was a surprise to Cory Slack, a disability rights advocate who often spends time reading the Ohio Revised Code as part of his job. One day he was looking at the marriage section and was shocked to see the language was not changed.

When Slack shared his discovery with friends, he learned that many didn’t know the code still said marriage was only for one man and one woman. In fact, they didn’t believe him.

“They were like, ‘No, Cory, you must have been mistaken… they can't have that language if the court ruling says otherwise,’” Slack said.

But Slack knew he was right and wrote into WOSU’s Curious Cbus to ask why same-sex couples are specifically listed in the Ohio Revised Code as people who cannot get married?

State lawmakers changed the code in 2004, adding language that banned same-sex marriage. Section 3101.01 states “A marriage may only be entered into by one man and one woman.” Further, it says, “Any marriage between persons of the same sex is against the strong public policy of this state” and “Any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”

Later that same year, Ohio voters passed an amendment to the state constitution. That addition reads “Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions.”

Over a decade later, a case filed by OhioanJim Obergefell was heard by the Supreme Court and their 5-to-4 decision effectively legalized same-sex marriage in all 50 states.

But a court decision can not actually change a law. It can only rule it unconstitutional and therefore unenforceable. Only lawmakers and change laws.

The Ohio General Assembly did in fact make changes to this section in 2018 – three years after the Supreme Court case – to strengthen protections for minors getting married, but left the language against same-sex couples intact.

Andrew Harnik
Associated Press

Why hasn’t the code been changed to reflect the Supreme Court decision?

It likely comes down to a matter of political will.

Alena Joakim is executive director of Equality Ohio, a group that advocates for LGBTQ rights. She said the change is long overdue.

“The fact that that law hasn't been changed yet, it shows that our legislature is out of tune with the will of the people today,” Joakim said, citing a 2021 Gallup poll that showed 70% support for legal same-sex marriage.

While Joakim would like to see the code change, she said the most important thing is that same-sex marriages are taking place in Ohio without any issues.

“We're not aware of anybody being denied marriages in Ohio. Right after the decision was issued, our Ohio Supreme Court actually came out and directed courts,“ Joakim said. “Unlike some other states like Kentucky, we did not experience any denials and haven't since.”

That said, there is an impact. Equality Ohio's legal clinic has seen difficulties when same-sex married couples try to adopt, for example.

“We experience challenges in adoptions depending on what court we're practicing in because if a judge confronts the statute that says husband and wife instead of spouse,” Joakim said, “it can be complicated for folks.” Currently, Equality Oho’s top legislative priority is passing the “Ohio Fairness Act,” a bill designed to ban housing, employment, and education discrimination based on someone’s sexuality or gender identity.

WOSU reached out to several lawmakers for comment on this story but did not receive a response.

Could the Supreme Court reverse its decision on same-sex marriage in the future?

As stated above, a Supreme Court ruling saying a statute is unconstitutional does not delete the statute from the books. The code cannot be enforced, but it could come back to life if a future decision changes the constitutional interpretation by the Supreme Court.

While this is hypothetically possible, Joakim said it is improbable. That’s because of the legal principle known as stare decisis, which favors legal precedent and a stable, consistent system of laws. Basically, it urges caution for judges before making decisions that could make dramatic changes.

“If the practical impact is to reverse or annul or put into question the validity of millions of people who have married since 2015, that's a really drastic outcome,” Joakim said. “So I think that even a somewhat conservative reading of stare decisis and how this court might apply it suggests that an outright overturning is somewhat unlikely.“

However unlikely a reversal might be, Cory Slack is determined to change Ohio’s code. He has created a petition calling for lawmakers to remove the unconstitutional language from the Ohio Revised Code.

Joakim said she believes such an effort could gain momentum and benefit from bipartisan support, citing the fact that the Ohio Fairness Act has both Democratic and Republican sponsors.
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Michael De Bonis