Staying with the story
The Springfield News-Sun has written extensively about same-sex marriage since the U.S. Supreme Court ruled it was legal last month.
The Clark County Probate Court has been issuing same-sex marriage licenses since the U.S. Supreme Court made it legal last month, but Probate Court Judge Richard Carey is having another judge’s name appear on the documents because he objects to those marriages on religious grounds.
The first same-sex marriage license was issued by the probate court earlier this week. In most Ohio counties it is the job of the probate judge to endorse the license. Clark County Common Pleas Court Judge Thomas Capper’s name appeared on the Clark County license, however.
The decision is a clerical matter, Carey said, and won’t prevent the probate court from issuing marriage licenses to same-sex couples.
The Ohio Code of Judicial Conduct provides judges who have conflicts with cases can step aside from continuing with the administration of a particular case, Carey said.
“In this case I found because of my Catholic faith that I had such a conflict,” Carey said.
The U.S. Supreme Court ruled 5-4 last month that the U.S. Constitution requires states to issue marriage licenses for same-sex couples and to recognize same-sex marriages performed in other states.
So far, this issue has not come up in the Miami Valley. Procedures have not changed in Champaign, Montgomery, Miami, Greene or Warren counties, according to Springfield News-Sun research Thursday.
Anna Greene and Harlie Royce, both of Springfield, applied for and received a marriage license at the probate court Monday, the first in Clark County since same-sex marriage was legalized.
As part of the marriage application process, a couple seeking a license must provide the proper paperwork to the clerk. Once the paperwork is received, the clerk prints out the marriage license, which is never signed by the judge. The couple never meets with the judge either, Carey said.
“It’s just printed out with the judge’s name on it,” he said.
Carey wanted to make the personal accommodation without fanfare to ensure residents weren’t uncomfortable about coming in and securing a license, he said. Carey also spoke with his six clerks about making accommodations for them.
Clark County’s probate court has issued two same-sex marriage licenses since the ruling last month without interruption.
“It’s our goal to make sure that does not happen,” Carey said.
The change is not taking away from Capper’s docket or responsibilities and means only that Capper’s name appears on the printed license, Carey said. Capper could not be reached for comment Thursday.
“It’s a small thing,” Carey said. “It’s important to me. It’s important to the practice of my faith. For the average couple that comes through that door, it will mean nothing.”
The ruling has caused individuals like Carey to find a balance between meeting the tenets of their faith and executing the responsibilities of their job — which he believes has been accomplished. If the goal is to obtain a marriage license in Clark County, all residents can do that unimpeded and without discrimination, Carey said.
“If there’s a separate goal for me to accept what they’re doing as something other than legal, that I should set aside publicly my faith and announce that this a good idea, that this is great and there are no problems with this, I can’t do that,” he said.
Equality Springfield president Rick Incorvati said he was not surprised to hear Carey’s name would not appear on same-sex marriage licenses. He doesn’t believe divorces or other domestic relations will have to be handled this way.
“It’s more anti-gay behavior that we’ve become too familiar with in Springfield,” Incorvati said. “It’s on our city commission, it’s been on our human relations board and it’s been in our courts.”
Phil Burress, president of Cincinnati-based Citizens for Community Values, one of the driving forces behind Ohio’s gay marriage ban in 2004, said Carey’s religious beliefs should not be discriminated against.
“He should not be discriminated against or punished because he is carrying out his religious beliefs,” Burress said. “We’re guaranteed that by the Constitution. There is nowhere in the Constitution where you’ll find same-sex unions.”
Probate courts have other functions, including administering adoptions and estates, said American Civil Liberties Union of Ohio staff attorney Drew Dennis, a Springfield native. Carey’s decision could raise questions for same-sex couples in other situations moving forward.
“How are they going to feel about that judge’s impartiality when he refuses to even sign their marriage license?” Dennis asked.
The important thing is that the court accommodates everybody, said Ohio Judicial Conference Executive Director Mark R. Schweikert. He is unsure if the license must be issued by the court or the specific judge. Outside of Toledo, he’s heard of no other similar situations in Ohio.
On Monday, Toledo Municipal Court Judge C. Allen McConnell refused to marry a same-sex couple. He apologized to the couple in a press release Wednesday, claiming he would continue to perform “traditional marriages” during his assignment. McConnell will also be seeking an advisory opinion from the Ohio Supreme Court’s Board of Professional Conduct whether he can opt out of his duties.
Carey does not plan to seek an advisory opinion similar to that of McConnell because he feels the necessary accommodations to satisfy everyone who comes before the court have been made.
A “very powerful argument” can be made that the letter and spirit of the U.S. Supreme Court ruling last month teach that state officials must treat same-sex couples just like their cross-sex counterparts for purposes of state marriage law, said Marc Spindelman, a professor at the Ohio State University Moritz College of Law who teaches constitutional and family law.
But the Supreme Court’s decision didn’t address questions, Spindelman added, including whether state officials like judges have any protected rights in not issuing the licenses due to their religious or moral beliefs.
Agree or disagree, the Supreme Court’s recent marriage opinion seems against it, Spindelman said.
Another argument can be made that as long as same-sex couples are able to receive marriage licenses, their rights are protected.
“We’ll have to see what, if anything, the authorities that have been appealed to for the advisory opinion say about it,” Spindelman said.
Staff writer Allison Wichie contributed to this report.
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