Amber Hunt and Chrissie Thompson

The Cincinnati Enquirer

CINCINNATI — A federal judge Monday ordered Ohio authorities to recognize the marriages of same-sex couples performed in other states, the latest court victory for gay-rights supporters.

Judge Timothy Black called Ohio's gay marriage ban both unconstitutional and unenforceable.

In the ruling, Black wrote that the record "is staggeringly devoid of any legitimate justification for the Ohio's ongoing arbitrary discrimination on the basis of sexual orientation, and, therefore, Ohio's marriage recognition bans are facially unconstitutional and unenforceable under any circumstances."

The ruling is fueling advocates' efforts to force the state to allow same-sex couples to marry. Monday's ruling does not force Ohio to allow same-sex marriages to be performed in the state.

Ohio Attorney General Mike DeWine said Monday that he plans to appeal the ruling because 62% of voters in 2004 voted to ban gay marriage.

"We defend a lot of laws and a lot of challenges," said DeWine. "This is a hotly debated issue, and we believe it's better to allow every state to make its decision."

Al Gerhardstein, a civil rights lawyer who has filed three gay marriage lawsuits in Ohio since June, said he expects to file a broader suit within two weeks that would aim to legalize the marriages. On Monday, he applauded the ruling issued by Judge Timothy Black that insists that marriages performed legally elsewhere be treated the same as traditional marriages performed in Ohio.

"This is a great day for many Ohio families," said Gerhardstein. "Yesterday, they lived in a state that discriminated against them; today they live in a state that has declared them equal. Their marriages, the very foundations of their families, are recognized under the law. This ruling is a sweeping declaration in favor of same-sex marriage recognition."

The ruling wasn't a surprise: Black had said recently from the bench how he would rule. The only question still up in the air Monday was whether Black would stay the ruling pending appeal, DeWine said.

His decision on whether to stay the ruling will determine whether the case takes immediate effect and allows same-sex couples to receive state recognition of their out-of-state marriages in arenas ranging from taxes to courts to health care. Black could give word on the stay as soon as Tuesday afternoon.

That uncertainty is preventing dozens of gay couples from rushing out of state to get married, said Ian James, executive director of FreedomOhio, a group pursuing a constitutional amendment that would legalize same-sex marriage in Ohio.

"A lot of folks are watching this and saying, 'Am I going to get married this week? And if so, will that marriage be recognized next week?' " James said.

Despite the uncertainty, Democrats such as Cincinnati Mayor John Cranley heralded the ruling as good for the region and helpful for attracting companies that create jobs.

"Life's too short and cruel to keep people from loving each other," said Cranley.

In the ruling, Black also wrote that it's his responsibility to "give meaning and effect to the guarantees of the federal constitution," and he cited a Supreme Court ruling more than 70 years ago that said that "fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

Since the landmark 2013 ruling in U.S. v. Windsor, the case that extended federal marriage rights to same-sex couples, every related federal ruling has declared gay marriage bans unconstitutional.

"From a policy point of view, this matter is being decided state by state already," DeWine said. "It's not like this is an issue that's being ignored in the political arena."

Gay marriage is legal in 17 states and Washington, D.C. Federal judges recently have struck down gay marriage bans in Michigan, Oklahoma, Texas, Utah and Virginia, though stays have been issued pending appeals. One of those appeals is likely to make it to the Supreme Court, which is expected to rule on whether states can ban same-sex marriages or whether gay marriage must be equal nationwide.

In appealing Monday's ruling, DeWine is representing the Health Department, whose director was named as a defendant in the case. The Health Department is part of Ohio Gov. John Kasich's administration.

"The governor believes that marriage is between a man and a woman, he supports Ohio's constitutional ban on same sex marriage, and we're glad the Attorney General is appealing the ruling," Kasich spokesman Rob Nichols said in a statement.

DeWine's office is asking for a temporary hold on the ruling for the appeal to the Sixth Circuit Court of Appeals. The case would join similar cases in Kentucky and Tennessee, where judges have ordered state officials to recognize out-of-state gay marriages. The Kentucky decision has been put on hold pending appeal, while Tennessee's ruling applies to only three couples.

"Ultimately, the Sixth Circuit is going to decide this case, and maybe even the United States Supreme Court," DeWine said Monday.

The leader of the group that put Ohio's gay marriage ban on the ballot in 2004 said Monday's ruling violated the will of Ohio voters.

"It's another example of homosexual activists using sympathetic judges and the courts as a blunt instrument to force a redefinition of marriage and family on the people of Ohio," said Phil Burress, chairman of Citizens for Community Values Action, in a statement. "It seems clear that when advocates of 'marriage equality' cannot convince the people and win at the ballot box, they resort to the courts and judicial fiat."

If Black's Monday ruling is upheld on appeal, some of the ruling could probably be used as precedent to further the gay marriage cause: Black writes that residents have a fundamental right to marry.

Michael Premo, manager of Equality Ohio's Why Marriage Matters Ohio campaign, hopes the courts will rule on the issue next year. In case that doesn't happen, Premo's group is seeking to create more public support for gay marriage before putting the issue before Ohio voters in 2016.

"We're going to keep working in case the ruling doesn't go in our favor or doesn't grant full equality," said Premo, whose organization is aligned with national groups such as the Human Rights Campaign and Freedom to Marry.

Almost as an aside, Black's ruling Monday also says that same-sex parents should have both of their names listed on birth certificates. That issue was at the heart of the lawsuit that prompted Black's ruling. A separate case also filed last year successfully sought to put the name of a surviving spouse in a same-sex couple on the partner's Ohio death certificate, provided they were legally wed in another state.

The incremental cases have been building off each other since last summer.

Black is expected to decide whether to stay his ruling after attorneys on both sides argue the issue by Tuesday afternoon.