Same-sex couples can’t get hitched in Ohio, but in some counties they can get divorced.
Lucas County has been quietly ending same-sex marriages since at least 2012, even as Ohio’s decade-old constitutional amendment bans their marriage, and the state awaits a federal appeals court decision on recognizing out-of-state marriages.
Gregory Stone of Sylvania and Stewart Swanson of Springfield Township were granted a divorce last month in Lucas County Common Pleas Court’s domestic relations division, the most recent of several same-sex couples to be divorced locally in the last couple of years.
The men were married in Massachusetts in 2004, and filed for divorce in July after a seven-year separation.
Judge Judith Nicely, a visiting judge, ruled the court has jurisdiction because “Ohio gives full faith and credit to all marriages that were legally entered into and recognized in another state,” according to court documents.
Her decision, and other cases before it, add Lucas County to the list of counties, including Franklin, Cuyahoga, and Summit, where same-sex divorces are known to have been granted.
Not all of Ohio’s judges have granted such divorces. At least one couple was denied a divorce in 2012 when the women’s case in Franklin County was dismissed by a judge who ruled the court could not end a marriage that Ohio law doesn’t recognize.
The differing decisions across the state create a patchwork-approach to interpreting the law that varies county-by-county, judge-by-judge.
Some judges and attorneys point to the U.S. Constitution, which says states shall give “full faith and credit” to other states’ public acts, records, and judicial proceedings — which they think permits same-sex couples married elsewhere to be divorced in Ohio.
Toledo attorney Scott Ciolek, who represented Mr. Stone in his divorce, contends granting a divorce to same-sex couples wed in another state is similar to dissolving other kinds of marriages not performed in Ohio — such as common-law marriages or a marriage involving minors.
But opponents of same-sex marriage denounce the divorce decisions and the judges who have granted them.
“They’re rogue judges,” said Phil Burress, president of the Cincinnati-based Citizens for Community Values. “Any judge that grants a divorce to a same-sex couple is violating the state constitution [and] is not living up to his oath.”
He contends Ohio’s “strong public policy” against same-sex marriage is a counter to the full faith and credit argument, and points to the nearly 62 percent of voters who approved the 2004 state amendment banning gay marriage.
The exact number of same-sex divorces granted locally is unknown because the county doesn’t track filings by sex, but court officials believe the first one took place in September, 2012.
It was followed by at least two others, including the recent case handled by Mr. Ciolek. His client, Mr. Stone, declined to comment through his attorney; Mr. Swanson did not return a call for comment.
Their case proceeded smoothly, albeit with some minor modifications that illustrate the still-new territory of same-sex divorce. On one court form, the titles “wife” and “husband” were scratched out and replaced with the gender-neutral descriptions “plaintiff” and “defendant.”
The uncontested divorce was granted by Judge Nicely, a retired Summit County judge sitting in Lucas County by assignment of the Supreme Court of Ohio to handle overflow cases. She could not be reached for comment.
The 2012 Lucas County divorce of Melissa Goetting and Danielle Olivani also was granted by an assigned judge, Donald Ramsey, a retired Erie County judge. He cited full faith and credit and the guarantee of equal protection rights in his order granting the divorce of the two women married in Connecticut the year before.
Divorce cases are randomly assigned, said the court’s administrative Judge David Lewandowski, who has not handled a divorce filing involving two people who were the same sex when they married.
He declined to say how he would rule in a same-sex divorce request because he wants to avoid prejudging a case.
“It’s a hard area of the law to navigate, but I think most judges, or all the judges I’ve talked to, that the full faith and credit clause would take care of a divorce filed here in Ohio,” he said.
Judge Norman Zemmelman, the court’s other judge, has not had a same-sex divorce case and would not comment on the legality of granting one.
Attorneys who have handled same-sex divorces in Lucas County believe their clients had the right to be divorced and would have faced practical hardships if their cases had been denied.
Rob Salem, a clinical professor of law at the University of Toledo, has represented clients in a couple of same-sex divorces and has several more cases pending or soon to be filed. The inconsistent approach to granting divorces across the state means that some couples, based on where they live, may not be able to get divorced because there is no judge who will grant one, he said.
Ohio has a six-month residency requirement for divorce, and a 90-day venue, or county, residency requirement, which may be waived.
“Equity demands that we allow people to move on with their lives, otherwise we are really placing people in a really bad predicament where they can’t move on with their lives,” Mr. Salem said.
Attorney Stephen Priestap brought what is believed to be the first same-sex divorce case before the local court, when he represented Ms. Goetting. He said he had no idea what would happen when he filed it, but he was prepared to appeal if the divorce had not been granted.
Several surrounding counties — Wood, Ottawa, and Fulton — have not received same-sex divorce filings and their courts haven’t had to decide the issue.
But in other urban counties, same-sex divorces have been approved.
In Cuyahoga County Domestic Relations Court, between 10 and 20 uncontested same-sex divorces have been granted, said administrative Judge Diane Palos, who has had a few of the cases herself.
She thinks there’s valid legal philosophy on both sides but is swayed by the full faith and credit argument. She compared the divorces to those she grants for heterosexual couples who were married in another country.
“I think that we have the authority to do that under federal law …, but we have not had a contested one yet,” she said. “To me it’s a huge denial of somebody’s rights because you have no other forum to get divorced.”
Likewise, Summit County has processed a “handful” of same-sex divorce cases, none of which have been contested, said Sue Tucker, community outreach director for the domestic relations court.
Franklin County’s approach has been varied.
Now-retired Judge Jim Mason made headlines in 2012 when he dismissed a divorce petition involving two women.
In his decision, he cited the Ohio Revised Code, which states that “any marriage entered into by persons of the same sex in any other jurisdiction shall be considered and treated in all respects as having no legal force or effect in this state and shall not be recognized by this state.”
He concluded that, because of the state’s definition of marriage, his court had no authority to end a same-sex marriage.
But other judges have been willing to grant divorces in Franklin County, including private judges, which can be used if both parties agree, said Gina Palmer, administrative magistrate for the county’s domestic relations division.
Columbus attorney Thomas Addesa estimates he’s helped about two dozen same-sex couples obtain a divorce, and often his clients use a private judge. Ohio law allows for retired judges to register with a clerk of any court to handle civil matters — a process Mr. Addesa said is convenient for clients and can expedite the legal process.
The Supreme Court of Ohio has not provided an opinion on same-sex divorce, and the Ohio attorney general’s office has not been asked to offer one.
Absent that, judges interpret the laws and issue rulings.
“Ohio, being a home-rule state, gives broad latitude to our counties and their cities … to do as they see fit with some guidance and some place to go through the General Assembly,” said Dan Tierney, a spokesman for the attorney general’s office.
Some clarity could come from the outcome of cases before the 6th U.S. Circuit Court of Appeals, which could rule at any time. The federal appeals court is hearing cases from four states, including two from Ohio. Both of those cases relate to Ohio’s recognition of same-sex marriages that occurred in another state.
The court’s decision could begin to clear up how judges have handled divorce cases across the state, said those on both sides of the issue.
“Now that the 6th Circuit Court of Appeals has this case, it depends on what they have to say whether these divorces are actually legal or not,” Mr. Burress said.
Contact Vanessa McCray at: vmccray@theblade.com or 419-724-6065, or on Twitter @vanmccray.
First Published October 14, 2014, 4:00 a.m.
