Ohio argues Supreme Court should not hear the “full faith and credit” same-sex marriage case

According to the Columbus Dispatch, Ohio Attorney General Mike DeWine is urging the U.S. Supreme Court to take somewhat unusual action in the same-sex marriage cases out of Ohio that have petitions pending with the Court. As we discussed previously, the 6th Circuit upheld bans on same-sex marriage in all states in its jurisdiction in November, creating a split among federal circuits, and generating quick petitions to the Supreme Court to resolve this issue. In a brief in response to the petition for a writ of certiorari, filed in December 2014, DeWine argues that while the Court should address the issue of whether the 14th Amendment guarantees a right to same-sex marriage (and find that it does not), it should not hear the issue of whether the petitioners can bring claims to enforce the laws of other states under the Full Faith and Credit Clause.

DeWine argues that the Court should hear the case of Obergefell v. Hodges, which involves Cincinnati resident James Obergefell, who wants to be designated as legally married to his late partner, John Arthur, and decline to hear Henry v. Hodges, which involves four same-sex couples who are parents of adopted children who want to be legally designated as parent to those children. The Obergefell case raises 14th Amendment concerns about same-sex marriage bans, but the Henry case also involves the full faith and credit issue. DeWine, writing on behalf of the state of Ohio reasons that the Court should must hear the Obergefell case because the split among circuits makes "the present status quo... unsustainable,"  but argues that the Court should not hear the Henry case because, "(1) it would require the Court to resolve a difficult preliminary issue; (2) it does not involve a deep circuit divide like the first question; and (3) it was barely addressed by either of the lower courts (whether in agreeing with Petitioners or with Ohio)."

The petitioners dispute DeWine's arguments in their reply brief, asserting that the 6th Circuit did, in fact, address the issue and that a split among circuits does exist with respect to the full faith and credit question. The Dispatch quotes Alphonse Gerhardstein, a Cincinnati civil rights attorney who represents the Obergefell petitioners as saying that splitting the cases would be irrational and that "We need a full exploration of the impact on families of same-sex marriage. New York has recognized the right of this couple (in the adoption case), married or not, to adopt this child. That is part and parcel of our issue.”

The justices will discuss whether to hear these cases out of the 6th Circuit at a meeting on Friday. If they were to decide to hear the cases they would be set on the oral argument calendar for 2015.