Repeal Ohio's ban on same-sex marriage

Times have thankfully changed since 2004, when Ohioans voted in favor of banning same-sex marriage through an amendment to the state Constitution. We therefore were glad to see that Democratic state lawmakers, including state Rep. Joe Miller, D-Amherst, have introduced a resolution to put a constitutional amendment before Ohio voters that would repeal the ban. (The proposed amendment also would guard against laws that would outlaw interracial marriage.) Miller said Tuesday that he doubted that the resolution would get much traction in the Republican-dominated General Assembly. "They're doing everything they can to suppress voter turnout, especially those who would vote for Democrats," he told us via text message. Given that the resolution calls for the proposed amendment to appear on the ballot in November 2026, when one of Ohio's U.S. Senate seats will be contested, along with congressional, state legislative and state executive races, Miller's doubts about the resolution's prospects for passage in the legislature appear justified. Ohio is a red state, but voters have defied Republicans before, including in 2023 when they enshrined abortion rights into the state Constitution and legalized recreational marijuana. They could do so again with same-sex marriage, which is far more accepted than it was 21 years ago when the constitutional ban passed with 61.7 percent of voters in favor and 38.3 percent against. For example, then-U.S. Sen. Rob Portman, R-Cincinnati, made big news in 2013 when he dropped his opposition to same-sex marriage after his son came out as gay. "I have come to believe that if two people are prepared to make a lifetime commitment to love and care for each other in good times and in bad, the government shouldn't deny them the opportunity to get married," he wrote at the time. Portman was right, and the majority of Americans have come around to his point of view. A nationwide Gallup poll released in May 2024 showed that 69 percent of those polled supported same-sex marriage. "Marriage equality is something that roughly 70 percent of Ohio voters support," state Rep. Anita Somani, D-Dublin, said last week. "It is long overdue that we reaffirm this broad support through a constitutional amendment." The question certain to be asked is: Why should Ohioans go through the trouble of repealing something that hasn't been enforced since 2015? That's when the U.S. Supreme Court ruled 5-4 in Obergefell v. Hodges, a case that originated in Ohio, that the 14th Amendment's Due Process and Equal Protection Clauses protected same-sex marriage across the nation. The answer is that the U.S. Supreme Court, now dominated by conservatives, appears to lack the same deference to precedent that it used to have. For example, in 2022, the Supreme Court struck down Roe v. Wade, a long-standing decision that had protected abortion access nationwide since 1973. While we doubt that the Supreme Court would strike down interracial marriage protections, it might try to revisit its groundbreaking decision legalizing same-sex marriage. Our concern is rooted in something hard-right Justice Clarence Thomas wrote in a concurring opinion to the decision striking down Roe. "In future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell," Thomas wrote. As we noted at the time, all those cases established important rights allowing Americans to make some of the most intimate decisions in their lives without government intrusion. The 1965 Griswold v. Connecticut decision granted married couples the right to use contraception, while the 2003 Lawrence v. Texas decision determined that states couldn't criminalize consensual same-sex intimate relations. Thomas' opinion was essentially an invitation for red states to challenge those decisions. Unfortunately, some seem intent on accepting the invitation. As NBC News reported in February, lawmakers in at least nine states had introduced legislation that in one way or another would challenge the rights of same-sex couples to marry. We aren't aware of any such bill in Ohio, but, as NBC reported, a Republican lawmaker in Michigan introduced a resolution calling for the Supreme Court to overturn Obergefell. (It's not just politicians. On Tuesday, the Southern Baptist Convention passed a resolution calling for Obergefell to be reversed.) It's therefore reasonable to fear that sooner or later, some red-state legislature is going to figure out a way to get the legality of same-sex marriage back before the Supreme Court. If that happens and Thomas can persuade four of his fellow justices to side with him, he could strike down same-sex marriage protections, which would be devastating to same-sex couples and their families across the nation, including in Ohio. Were Obergefell to fall, Ohio's constitutional amendment — along with a separate state law that also defines marriage as being between one man and one woman — would kick back in. The nation has seen so-called "zombie laws" revived before. For example, when Roe was overturned, some states still had laws outlawing abortion on the books, many dating to the 19th century, and began enforcing them. Does anyone truly believe that the culture warriors who dominate Republican politics in Ohio would allow same-sex marriage to continue in the Buckeye State if Obergefell were overturned? Ohio's ban on same-sex marriage is a discriminatory relic that has no place in the state Constitution. It's past time for it to go.