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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.

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