How Ohio could reverse same-sex marriage ban still on the books

COLUMBUS, Ohio (WCMH) -- Ohio lawmakers are reviving a long-shot effort to pass a bill repealing the state's dormant same-sex marriage ban, while an existing constitutional provision could still be a burden for some couples.

House Bill 636, the "Marriage Equality Act," was re-introduced in the Ohio House last month to remove revised code language adopted in 2004 that states "a marriage may only be entered into by one man and one woman." Advocates argue the act is needed given the Supreme Court has hinted at reconsidering Obergefell v. Hodges, the 2015 case legalizing same-sex marriage, after the overturn of Roe v. Wade.

"It has been nine years since the Obergefell decision gave federal protections to same-sex marriage. The Marriage Equality Act updates the Ohio Revised Code to be in line with those protections," said Rep. Jody Whitted (D-Madeira). "It was important to me that during my time as a representative, and during Pride Month, I introduced legislation that was about love and acceptance."

The act, which would also protect interracial marriage by adding language that says the state "shall not prohibit marriage between individuals of different races," would be the first of two major steps in aligning Ohio law with the protections for couples set by Obergefell.

While a federal law signed in 2022, the Respect for Marriage Act, requires a state to recognize same-sex marriages from elsewhere, it does not offer all the same protections in place by Obergefell, especially in Ohio. Should the Supreme Court deem same-sex marriage unconstitutional, the act allows states to determine whether to issue marriage licenses to same-sex couples.

Along with language in the state's revised code, Ohio is one of 25 states home to a constitutional amendment that prohibits same-sex marriage and would be reenacted if Obergefell were overturned. Ohio passed the amendment to the state's constitution in 2004 that reads, "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions."

If the Supreme Court overturns Obergefell, the Respect for Marriage Act only requires Ohio to recognize same-sex marriages from states where it is legal. In addition, if by then Whitted's Marriage Equality Act is signed into law, Ohioans would still need to propose and pass another constitutional amendment to override the 2004 amendment.

"It is time for Ohio to choose love instead of hate. Ohioans deserve the right to publicly and legally commit to the person they love," said Jim Obergefell, an activist and plaintiff of the Supreme Court case, when a previous version of the Marriage Equality Act was introduced. "We deserve to live in a state where we can form, build, and sustain our families on an equal basis."

However, the act's previous versions did not advance in the Statehouse and this newest attempt is likely to suffer the same fate. Rather than pass protections for same-sex couples, the Ohio legislature has prioritized an influx of bills that advocates deem anti-LGBTQ+.

Lawmakers approved a measure last month to ban transgender students from using restrooms aligned with their gender identity. The legislation was folded into an unrelated bill on a college credit program for high school students during a 12-hour House session, a late-night move that Whitted said was "calculated."

"One in three trans youth attempt suicide. While Republicans say they care about children, it is obvious that they do not care about all children," Whitted said. "We need to care about our children’s mental health, we need to care about kids who are struggling and starving, we need to care about giving students the best education possible."

Rep. Beth Lear (R-Galena), the bill's primary sponsor, said during the measure's first hearing that modern education teaches children's feelings should be "constantly affirmed," including feelings of identity regardless of whether they are "rooted in reality."

"Boys cannot become girls, and girls cannot become boys," Lear said. "The modern issue of gender is not a social construct, but the idea you can change your gender is."

Earlier this year, the Statehouse overrode Gov. Mike DeWine's veto of a bill that would ban gender-affirming care for minors and trans athletes' participation in women’s sports. The legislation, which was supposed to take effect in April, is now on pause and is under litigation after the ACLU sued Ohio, arguing the measure is unconstitutional.

Other legislation deemed anti-LGBTQ+ is the "Parents' Bill of Rights," passed by the House last year, to require teachers to notify parents before teaching "sexuality content" and of any change in a student’s mental, emotional or physical health. Lawmakers have also proposed a bill to prohibit drag queen performances in public or where children are present.