So long, Ohio. According to a federal judge Monday in Henry v. Himes, the U.S. Constitution now requires that the laws of one state automatically supersede those of Ohio, whether or not Ohio approves.
The circumstances surround same-sex marriage, though the precise legal issue is one that has been flying below the radar for some time – the recognition by one state of another state’s same-sex marriage. In the case, several same-sex couples with marriage licenses from California, Massachusetts, and New York sought recognition of their relationships in their home state of Ohio, where marriage is defined as between only one man and one woman. According to Monday’s ruling, Ohio’s marriage laws are “facially unconstitutional and unenforceable under any circumstances.” Thus, same-sex marriage licenses from any jurisdiction are valid in Ohio.
While the court said that Ohio is not required to issue its own marriage licenses to same-sex couples, this reservation amounts to a distinction without a difference. If same-sex couples can cross the state line, get a same-sex marriage, and then demand full recognition of their relationship upon returning home, it makes little difference whether Ohio issues licenses itself.
But is this result really required by the U.S. Constitution?
When the Supreme Court struck down DOMA last summer in the Windsor case, it struck down only the federal definition of marriage, leaving in place the sovereignty of the several states. Federal law still affirms that “[n]o State… shall be required to give effect to any public act, record, or judicial proceeding of any other State… respecting a relationship between persons of the same sex.” In other words, if your state doesn’t have same-sex marriage, your state doesn’t have to recognize same-sex marriages from other states. Yet, in this ruling that Ohio must recognize same-sex marriages from other states, the court determined that this directly-applicable provision of federal law is somehow “not specifically before the Court.”
However, states have the right to be different from each other, and they do so in a whole host of ways, especially when it comes to licenses. Marriage licenses per se have never been required to be recognized in other states. The states have traditionally done so in most cases, but not always. In the Matter of the Estate of Fannie May, New York chose to recognize another state’s marriage between an uncle and niece, but acknowledged that it didn’t have to do so. In Moustafa v. Moustafa, Maryland refused to apply Egyptian law and rule that a man was lawfully married to more than one woman at the same time. Yet, in addition to concluding that same-sex marriage is somehow deeply rooted in the history and traditions of America, the court in Ohio also found a brand new federal right never before seen – an absolute “right of marriage recognition.”
Yet having a license somewhere doesn’t mean you have a license everywhere. Beyond marriage licenses, no lawyer, physician, or other licensed professional has an automatic right to practice his trade everywhere just because one state has licensed him. A Florida lawyer can’t walk into a Texas courtroom and begin practicing law, and Texas isn’t required to allow it. While courts, hospitals, and others typically grant certain privileges to out-of-state professionals, they are not required to do so.
What if we apply this ruling to the licensing of the fundamental right of gun ownership? Prepare yourselves for the Wild West. Arizona grants handgun licenses to almost anyone claiming U.S. citizenship. California has an extremely restrictive licensing law for residents only. If you apply the logic of this decision to the fundamental right to bear arms, California has no control over concealed weapons in its own state. If a citizen gets a license from Arizona, California has no choice but to accept it.
That’s not how our republic is supposed to work. No state is automatically required to submit its laws to the decisions of another or have its legislative bodies rendered politically impotent because another state does things differently. To do so destroys well settled principles of state sovereignty that all of us cherish. Regardless of how you feel about same-sex marriage, the danger associated with this expected ruling goes well beyond that passing topic and presents a clear and present danger to our constitutional republic.