Same Sex Marriages

As of July 26, 2015, Schoonover, Rosenthal, Thurman & Daray are able to represent same-sex couples in marriage, divorce and custody hearings.

Ohio Const. art. XV,  11, the “Defense of Marriage Act,” was held unconstitutional on June 26, 2015. See.  The United States Supreme Court, in Obergefell v. Hodges, 135 S.Ct. 2584, 192 L.Ed.2d 609, held that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.  Obergefell effectively overruled Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65, and abrogated Citizens for Equal Protection v. Bruning, 455 F.3d 859, Adams v. Howerton, 673 F.2d 1036, in that all States must recognize lawful same-sex marriages performed in other States.

The Court noted that the fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.  State courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.

The United States Supreme Court has long recognized that the right to marry among opposite-sex partners is protected by the Constitution.  For example, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 invalidated bans on interracial unions, and Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64 held that prisoners could not be denied the right to marry.

Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply equally to same-sex couples:

  1. the right to personal choice regarding marriage is inherent in the concept of individual autonomy (Loving invalidated interracial marriage bans under the Due Process Clause. Loving v. Virginia, 388 U.S., at 12, 87 S.Ct. 1817)
  2. the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals (Griswold held that the Constitution protects the right of married couples to use contraception, 381 U.S., at 485, 85 S.Ct. 1678)
  3. it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education (Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070)
  4. marriage is a keystone of the Nation’s social order (Maynard v. Hill, 125 U.S. 190, 211, 8 S.Ct. 723, 31 L.Ed. 654)

Controversies over the Supreme Court ruling

Controversy has ensued as a result of the recent Supreme Court Ruling.  Kim Davis, County Clerk at the Rowan County Clerk’s Office, refused to issue marriage licenses to any couple to avoid issuing them to same-sex couples.  Davis’ refusal to issue marriage licenses to same-sex couples is grounded in her belief that doing so would be an endorsement of same-sex marriage, which runs contrary to her Apostolic Christian Beliefs.

Seven counties neighboring Rowan County were issuing marriage licenses.  While the same-sex couples seeking to marry had the means to travel to any one of the seven neighboring counties, they admittedly chose not to do so because they had significant ties to Rowan County. The couples live, work, socialize, vote, pay taxes, and conduct business in Rowan County. Quite simply, Rowan County is their home.

The American Civil Liberties Union filed a suit against Davis on behalf of two same-sex couples and two opposite-sex couples, and U.S. District Court Judge, David Bunning, ordered her to issue the licenses, not only to those four couples but also to any other qualified to be married. Davis, however, defied the order, lost a string of appeals, and opted to go to jail for five days rather than issue the licenses.

Miller v. Davis (Aug. 12, 2015) 2015 WL 4866729

This matter was brought on appeal and the Plaintiffs moved for preliminary injunction.  Plaintiffs pursued this civil action against Kim Davis, individually and in her official capacity, under 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

Plaintiffs further contended that Davis’ “no marriage licenses” policy significantly interferes with their right to marry because they were unable to obtain a license in their home county. Davis argued that her policy did not significantly discourage the Plaintiffs from marrying because they had other options for obtaining licenses: (1) go to one of the seven neighboring counties that were issuing marriage licenses; (2) obtain licenses from Rowan County Judge Executive Walter Blevins; or (3) avail themselves of other alternatives being considered post-Obergefell.

Davis’s first argument ignored the Plaintiffs’ strong ties to Rowan County, which make it understandable that Plaintiffs preferred marriage licenses in their home county.  Davis’ second argument is only partially correct.  KRS §402.240 provides that, “in the absence of the county clerk, during a vacancy in the office, the county judge/executive may issue the license and, in doing so, he shall perform the duties and incur all the responsibilities of the clerk.”  Not only does the statute fail to define “absence,” but requiring Judge Blevins to issue all marriage licenses would require him to exceed the scope of his office.  Having considered Davis’ arguments in depth, the Court found that Plaintiffs had one feasible avenue for obtaining marriage licenses – they must go to another county.  For this reason, the Court was required to apply heightened scrutiny, and ultimately, the Court granted Plaintiffs’ Motion for Preliminary Injunction against Kim Davis in her official capacity as Rowan County Clerk. Schoonover, Rosenthal, Thurman and Daray have handled many cases dealing with same-sex couples, both in terms of division of financial assets as well as allocation of parental rights and responsibilities.  Thus, SRT&D is well-prepared to handle this new area of domestic relation law.

Questions about same-sex marriages, divorce or custody issues?
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