Same-Sex Marriage in Ohio: A Historical Perspective

According to The Williams Institute’s analysis of the 2010 U.S. Census, 19,684 same-sex couples (4.3 %)  were living in Ohio in 2010.  Cuyahoga County, the location of Cleveland, had the seventh largest population of same-sex couples in Ohio. Franklin County, location of  Columbus,  lead the state with same-sex couples, followed by Hamilton (Cincinnati) , Montgomery,  Lucas, Athens, and Summit counties.Preview

Like the rest of the nation, in the last ten years, Ohioans’ sentiments on same-sex marriage are shifting dramatically:

• 2004 – CNN reported that nearly two-thirds of Ohio voters – 62 % – supported Ohio Issue 1 a state constitutional amendment defining marriage as “only a union between one man and one woman.”
• 2012 – Washington Post poll showed Ohio opinions had changed.  Last year,   52 % of Ohio voters approved of marriage equality, while only  37 % said it should remain illegal.  There was a 25 point shift to marriage equality.
• 2013 – Saperstein poll released last month, indicates a stead pace of more  Ohio voters joining the marriage equality camp.  In one year, between 2012 and 2013,  there was two point increase.  Now, 54 %  of Ohioan’s support a new state constitutional amendment  that would “allow two consenting adults to marry, regardless of their gender.

C|M|Law Professor Steven H. Steinglass, a nationally known expert on Section 1983 Civil Rights Litigation and the author of The Ohio Constitution: A Reference Guide (with Gino J. Scarselli), notes that Ohio has a firewall against same-sex marriage created by the 2004 enactment of Ohio Issue 1, now found at Ohio Constitution, Article XV, Section 11. This constitutional amendment article states:

“Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”

This constitutional article is fourth most recent amendment to the Ohio Constitution and  1 of 11 anti-gay marriage amendments adopted throughout the United States in the General Election of November 2004.  It should also be noted that this Ohio constitutional provision was considered superfluous by Judge Lauren Cecile Moore in Cleveland v. Voies, Case No. 2005-CRB-002653 (Cleveland Muni. Ct., 2005). Judge Moore noted that the Ohio General Assembly had already enacted Ohio Revised Code § 3101.01 (Ohio’s Defense of Marriage Act)  on February 6, 2004.  This statute nullified the concept of gay marriage in Ohio.   Judge Moore noted that many top elected officials, including the Ohio governor and attorney general, were against Ohio Issue 1. Despite their support for an Ohio constitutional amendment banning same-sex marriage,  these elected officials  objected to the second sentence in Ohio Issue 1’s. This language has been subject to intense litigation, but the firewall banning same-sex marriage remains.  This is the current status of Ohio law, to make Ohio open to gay marriage requires both a legislative and constitutional changes.

In addition to the recent 2012  Washington Post poll and the 2013 – Saperstein poll, there are some other important factors that make revising the Ohio Constitution promising.  First, consider Professor Barbara Terzian’s article Ohio’s Constitutions: An Historical Perspective, 51 Clev. St. L. Rev. 357 (2004).

She notes that a moderate amendment rate for state constitutions (the total number of amendments divided by the constitution’s age in years) is between .75 and 1.00.

• Initially, in Ohio, from  1851 to the 1912 Ohio Constitutional Convention, there are too few constitutional amendments. Ohio’s amendment rate was only .15.  According to Terzian, this low level of constitutional amendment rate made the Ohio Constitution was likely to be replaced.  In fact, in 1912, there was a widespread demand for Ohio constitutional reform that led to the adoption of 34 new amendments.

• More recently, from 1913 to 2003, Ohio’s amendment rate averaged 1.2.  This trend continued from 2004 to 2013, as there have been 4 additional amendments. According to Terzian, this exceeds the moderate rate of amendments.   Terzian notes that a high rate of constitutional amendments also makes a state constitutionlikely to be replaced.

In fact, the State of Ohio enacted legislation to start a process of reviewing  and possibly revising its state constitution. The  Ohio Constitutional Modernization Commission was established in 2011 by O. R.C. 103.61 with the passage of the House Bill 188.  According to their Mission Statement, “this commission is Ohio’s opportunity to think differently, progressively, [and] aggressively, about the state.” Here is some additional information about this commission:

• Purpose: The Commission is modeled after the 1970’s Ohio Constitutional Revision Commission.  It is studying the Constitution of Ohio; promoting an exchange of experiences and suggestions respecting desired changes in the Constitution; considering the problems pertaining to the amendment of the Constitution; and making recommendations from time to time to the general assembly for the amendment of the Constitution.
• Membership: It is composed of 32 members – twelve legislative members and 20 public members.  There appointments end of the first day of January of every even-numbered year.  The  Commission makes  reports to the Ohio General Assembly.
• Terms & Meetings: The Ohio Constitutional Modernization Commission must  complete its work on or before July 1, 2021, and shall cease to exist at that time.  The Ohio Constitutional Modernization Commission meets on the second Thursday of every month.

If you would like to receive notices of future meetings of the Ohio Constitutional Revision Commission, please join the their mailing list here.