Ohio Defense of Marriage Act Unconstitutional

To the Editors:

I write with regard to Ohio House Bill 234, which will go to the floor for a vote soon. This Bill purports to proscribe “same-sex marriages” by declaring that they are “against the strong public policy of the state.” This Bill evinces a strong animus towards gays, lesbians and same-gender couples. It is precisely this sort of animus which the Supreme Court condemned in Romer v. Evans (1996). The court there considered Colorado’s “Amendment 2,” an initiative which sought to prohibit local governments from granting “protected status” to “homosexual or bisexual” persons. The Supreme Court held that Amendment 2’s status-based classification “is unprecedented in our jurisprudence” and violative of equal protection. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. ‘The guarantee of equal protection of the laws is a pledge of the protection of equal laws.’”
“‘[I]f the constitutional conception of equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’” House Bill 234 is unconstitutional as it is not rationally related to any legitimate governmental interest and simply reflects an intense form of anti-gay animus. First, the Bill would deny gay and lesbian relationships First Amendment protection. The legislature has no power to regulate interpersonal associations — such as same-gender unions — which fall within the “right to privacy.” The right to privacy and to individual autonomy are the basis on which our constitutional order is built. These rights were hard-won in our struggle against England and indubitably apply to all citizens. (U.S. Const., Amends. I and XIV.) Even if same-sex marriages are without legal effect, same-gender relationships are entitled to legal protection as private associations. (Eisentadt v. Baird). The state cannot blithely invade or infringe upon these critical avenues of individual self-expression and realization. Otherwise, the state could dictate how we the people live our lives and prescribe certain “appropriate” religious, political and social beliefs. We value individual autonomy too much to grant that kind of power to imperfect political insitutions.
Additionally, the Bill violates contemporary moral intuitions by singling out gay/lesbian relationships. We have learned the hard way that intolerance and bigotry lead to hate crimes, lynchings and mass murder. The death of Matthew Shepard is only one in a long line of politically motivated anti-gay crimes. Yet the Bill would grant credence to and revive outdated social prejudices. These prejudices were used by the Nazis during the Holocaust and continue to find a home in far-right circles. Our society has come too far for us to go back in the fight against fascist and anti-egalitarian ideologies.
Further, the Bill violates the Full Faith and Credit Clause by refusing to recognize the laws of our sister states. (H.B. 234) (C)(4). Although Ohio’s legislature may disagree with Vermont’s law recognizing civil unions, Ohio courts are required to grant “full faith and credit” to Vermont law in instances where Vermont law supplies the law of decision. Ohio courts cannot arbitrarily negate Vermont law or pick and choose where it applies. That result would certainly be inconsistent with our federal system and its inter-state compact.
Finally, there is no need for the Ohio legislature to declare that same-sex marriages are invalid; they already are. Therefore, H.B. 234 is simply declarative and has no positive legal force. Accordingly, H.B. 234 is not just unconstitutional but unnecessary. The legislature should withdraw H.B. 234 and focus its efforts on more pressing national problems such as terrorism.

–Mark Gromala
University of Michigan

November 9
November 16

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