All Ohio counties are issuing marriage licenses to same-sex couples after last month’s ruling from the U.S. Supreme Court. But some legal questions and misconceptions remain, and a panel of Ohio judges and legal experts tackled some of those on Tuesday.
Do religious institutions still have the right to deny conducting same-sex marriage? Does the Supreme Court ruling open the door to polygamy? How does the ruling affect custody battles in the case of divorce?
A group of judges and legal experts tackled these lingering questions and more during a panel hosted by the Ohio State Board Association.
Religious freedoms were discussed during oral arguments in the Supreme Court case Obergefell v Hodges. It was argued that religious leaders already have the right to refuse to marry couples. Justice Elena Kagan referenced the fact that rabbis deny marrying a couple if one partner isn’t Jewish.
Jennifer Branch, whose firm that represented Jim Obergefell and the side in favor of same-sex marriage, leaned on Kagan’s comments.
“There’s no law in Ohio that says the officiant must—the rabbi must—perform that wedding so there’s no way to sue that rabbi for saying ‘I’m not gonna marry a Catholic and a Jew.’ So I think that analysis would apply here and I don’t think that’s going to be a real problem in Ohio,” said Branch.
David Hejmanowski, a judge in the Delaware County probate and juvenile court, noted that Justice Anthony Kennedy made sure to include this right in his ruling.
“He says, ‘Finally it must be emphasized that religions and those who adhere to religious doctrines may continue to advocate with utmost sincere conviction that by divine precepts same-sex marriage should not be condoned.’ So that seems pretty clear from the statement from Justice Kennedy as well,” Hejmanowski said.
A group of probate judges in Ohio released a list of how to best handle certain situations that could come out as a result of marriage equality. The group says elected officials must carry out the constitution.
But the group also suggests that other court personnel who might feel torn because of their religious beliefs can find an alternate employee to step-in at certain times.
Kennedy’s ruling also says that marriage is still a union that is only between two people. Branch says that means the U.S. Supreme Court is clear when it comes to polygamy.
“It’s always a two-person union in Obergefell. Because Justice Kennedy was mindful of the fact that the criticism that what about three people getting married or four people getting married and he was always clear that the fundamental right is between two people,” said Branch.
But not everyone agrees that the door is completely shut on polygamy, including Chief Justice John Roberts, who offered his concern over marriages involving more than two people in his dissenting opinion.
Judge Dana Preisse with the Franklin County Domestic Relations Court says a big question coming from attorneys representing married couples with children. The attorneys want to know how they can now establish strong legal custody for both spouses.
Preisse says the first question that came into her office dealt with artificial insemination.
“The current law of course in Ohio is the husband is presumed to be the father of that child what do we do now when we have two women. Does she automatically become the parent and how do we quickly do that? Is it a complaint for acknowledgement of parentage,” Preisse said.
The panel said custody concerns are just some of several issues that state and local leaders will have to address in the future whether through court rulings or legislation.
