Ohio Constitution News

The U.S. Supreme Court found that nonpartisan citizen commissions may draw lines for Congressional districts, instead of state legislatures.  See Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, No. 13-1314 (U.S. June 29, 2015).  Now Ohio can move forward with H.J.R. 2, a proposal to amend the Ohio Constitution to make the redistricting process more nonpartisan.  HJR 2 was introduced, but has not been yet approved by the Ohio House.  The Ohio Legislature recesses this week for the summer, so will not get to this issue until they return.  As the legislature will not act before the August deadline, the issue will not appear on the ballot this November.  See Cleveland.com, U.S. Supreme Court ruling clears the way for Ohio congressional redistricting reform.

Ohio Constitution Article XI, Section 1 currently states:

“The governor, auditor of state, secretary of state, one person chosen by the speaker of the house of representatives and the leader in the senate of the political party of which the speaker is a member, and one person chosen by the legislative leaders in the two houses of the major political party of which the speaker is not a member shall be the persons responsible for the apportionment of this state for members of the general assembly.

Such persons, or a majority of their number, shall meet and establish in the manner prescribed in this Article the boundaries for each of ninety-nine house of representatives districts and thirty-three senate districts. … ”

Thus, the party in power will have more members on the redistricting panel, and will be able to control redistricting by a majority vote.  According to a Cleveland.com article, this has resulted in the Republicans in power drawing districts favoring Republican congressional candidates.

In  Obergefell v. Hodges, No. 14-556 (U.S. Jun 26, 2015), the United States Supreme Court held in a 5-4 decision that the Fourteenth Amendment’s equal protection clause prohibits states from denying marriage licenses to same sex couples. Obergefell also requires states to recognize the same-sex marriages of other states.  Thus, Ohio Constitution Article XV Section 11, stating that marriage is defined as one man and one woman, is unenforceable.

However, this language may remain in the Ohio Constitution even though the U.S. Supreme Court’s ruling renders it a nullity.  Removal of this language requires an initiative petition by an individual or group, or one by the General Assembly.  Individuals or groups supporting gay rights have little motivation to spend money and effort on a ballot initiative that will have no effect.  The Ohio Constitutional Modernization Commission is charged with, among other things, amending the state constitution to get rid of obsolete language.  The Commission could propose deleting the language, but the amendment may not ever make it to the ballot.

Case in point – Article I, Section 10 of the Ohio Constitution, which says that failure of a criminal defendant to testify may be considered by a court and jury and may be made the subject of comment by counsel.   This provision is void, because commenting on a person’s refusal to testify in a criminal case was found unconstitutional in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), as a violation of the self-incrimination clause of the U.S. Constitution’s Fifth Amendment.  The 1970’s version of the Ohio Constitutional Modernization Commission, called the Ohio Constitutional Revision Commission, recommended to the General Assembly that this language be deleted.  But the proposed deletion never made it to the voters.

In DeBoer v. Snyder, the federal Sixth Circuit Court of Appeals overturned two Ohio District Court decisions finding that Ohio must recognize same sex marriages validly entered into in other states.   The  U.S. District Court decisions are Henry v. Wymyslo, United States District Court for the Southern District of Ohio, 1:14-cv-00129 (see our prior post)  and Obergefell v_Kasich_,  No. 1:13-CV-501 (S.D. Ohio Dec. 23, 2013) (see our prior post).   These decisions held that failure to recognize same sex marriages valid in other states  violates due process and/or equal protection rights afforded by the U.S. Constitution.

The Sixth Circuit majority opinion said it was bound by the U.S. Supreme Court’s decision in Baker v. Nelson, 409 U.S. 810, 810 (1972).  In Baker, the Supreme Court issued a one line summary opinion stating there was no substantial Constitutional question involved in the denial of a marriage license to a gay couple by the State of Minnesota.  United States v. Windsor, 133 S. Ct. 2675 (2013), invalidating the federal Defense of Marriage Act, does not change things, according the Sixth Circuit.  Windsor held that a federal law could not refuse to recognize a same sex marriage sanctioned by a state, and did not address state’s rights to define marriage.  The Supreme Court recently denied petitions for writ of certiorari in numerous cases appealing circuit court decisions which found that there is a constitutional right to same-sex marriage.  But denials to hear these cases do not amount to a decision that there is a constitutional right.

The Sixth Circuit went on to state that it did not find the rationale persuasive in any of the circuit cases holding that there is a constitutional right to same sex marriage.  Rather than constitutionalizing the definition of marriage, the decision as to who can marry should be left with the voters in each state, not to the courts, the Sixth Circuit concludes.

The Sixth Circuit decision also overturned cases from federal district courts in Michigan, Tennessee and Kentucky.  Because the decision conflicts with those in other circuits, the U.S. Supreme Court is likely to hear the issue.

Judge Black, U.S. District Court, Southern District of Ohio, held that, “Ohio’s marriage recognition bans are facially unconstitutional and unenforceable under any circumstances.”  Article 15, Section 11, of the Ohio Constitution, to the extent it prohibits the recognition in Ohio of same-sex marriages valid in other states, is struck down as being in violation of the Fourteenth Amendment of the U.S Constitution.   Read the judge’s order here .

The case is Henry v. Wymyslo, United States District Court for the Southern District of Ohio, 1:14-cv-00129.

Also see Cleveland.com article.

See our prior post. Federal Judge to Strike Down Ohio’s Ban on Recognizing Out of State Same-Sex Marriages

In an order dated 4/4/2014, Federal Judge Timothy Black stated “The Court anticipates striking down as unconstitutional under all circumstances Ohio’s bans on recognizing legal same-sex marriages from other states.”  The case, Henry v. Wymyslo, United States District Court for the Southern District of Ohio, 1:14-cv-00129, was filed by same-sex couples married outside of Ohio seeking to  be recognized as parents on their children’s Ohio birth certificates.  See Cincinnati Enquirer article

Ohio voters approved amending the state constitution to include a ban on same-sex marriages in 2004.

Judge Black previously held that Ohio authorities must recognize a valid same-sex marriage on death certificates.  See our prior post

Southern District of Ohio judge, Timothy S. Black, granted a temporary restraining order prohibiting the Cincinnati Department of Health from accepting a death certificate for Plaintiff John Arthur that does not record his status at the time of death as “married” and his “surviving spouse” as James Obergefell.  The court found that it is likely that the failure to recognize a same sex marriage valid in another state violates the U.S. Constitution’s equal protection provisions.

Order Granting TRO, Obergefell v. Kasich

Temporary Restraining Order, Obergefell v. Kasich

See Plain Dealer article