As you know if you’ve gone online, turned on your television or radio, or
even picked up a newspaper recently, the issue of same sex marriage is a
particularly hot topic right now. But it’s not a new issue, to be certain. And,
in a relatively short period of time – from the Clinton administration to the
Obama administration – the stance of the federal government has vastly changed
as the public opinion is changing.

Gay rights advocacy reached a fevered pitch in 1993 when the Supreme Court
of Hawaii determined that the state’s ban on same sex marriage required a
strict scrutiny review. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). While
the ban was ultimately upheld, the threat of a state allowing same sex marriage
caught the nation off guard. After all, not only is there a question of one’s
particular moral compass, but married couples are entitled to a multitude of
financial benefits that cohabiting couples aren’t. Not to mention the question
of whether a state would have to recognize – even if it didn’t want to – a same
sex marriage solemnized in another state.

In the aftermath of Baehr, the federal government was pressed to take
action. Marriage is a state issue, which means that the United States
Constitution probably restricted a nationwide ban of same sex marriages. To get
around this, in 1996 the federal government sought to defend the sanctity of
traditional marriages by enacting the Federal Defense of Marriage Act
(“DOMA”). With this controversial law the federal government was able
to accomplish two things. First, DOMA defined marriage as a union only between
a man and a woman. Thus, it eliminated any spousal benefits same sex couples
might be entitled to under federal law. Second, DOMA permitted states to refuse
to recognize same sex marriages performed in another state.

While various laws both for and against same sex marriage have made the
rounds through various courts over the years, the United States Supreme Court
had yet to offer its opinion, until very recently. On June 26, 2013, the US
Supreme Court declared DOMA unconstitutional. In United States v. Windsor, the
Court found that DOMA deprived individuals of the equal liberty entitled to
them under the 5th Amendment. President Obama declared the Supreme Court’s
decision “a victory for couples who have long fought for equal treatment
under the law”. Certainly this decision has been viewed as a victory by
gay rights advocates, even as retractors are regrouping from this blow. But the
decision does very little to advance same sex marriages in states that do not
allow them. Windsor merely established that if a state recognizes same sex
marriage, the federal government will also recognize these marriages. Windsor
has no bearing on states, like Ohio, that ban same sex marriage.

However, Windsor does create an inherent conflict between states that do not
recognize same sex marriage and those that do. For example, a same sex couple
that is married in New York, but wanting to divorce in Ohio, may find that they
can’t get divorced at all. The laws are unclear as to whether divorce laws can
be applied when the state says the marriage is a nullity. Thus, the New York
couple could find that upon their split there are no rights to spousal support,
no rights to children, and on and on. Ultimately, this conflict may push same
sex couples legally married in other states to challenge Ohio’s ban. In any
event, it is clear that while Windsor will have no immediate impact on same sex
marriage in Ohio, this debate is far from over.