Preparing for a Trump America in Ohio
Why Dead Laws on the Books are a Threat to Progress
Ohio is one of few states that has been center stage for the evolution of politics and civil life in the United States. Many of the textbook Supreme Court cases you learn about in elementary, middle, and high school took place in this state—a testament to the partisan divide among Ohioans.
When a law is determined to be unconstitutional, either at the state or national level, it’s easy to see that law as dead and no longer a problem for those it attacked. But this isn’t really what happens, and understanding the situation as it exists has never been more important than for the soon-to-come Second Trump Administration, where old—and sometimes dead—laws will be resurrected to torment the most vulnerable among us. Let’s talk about it.
What Happens to Unconstitutional Laws?
In short, when a court has determined that a law is unconsitutional, it enjoins the government from enforcing that law. This just means that, even though the law may be on the books, it’s dead and can’t be used, since the court determined it to be unconstitutional. Importantly though, a dead law doesn’t automatically get removed from the books, and it’s up to the legislature to do so if they see fit.
Why might they not see fit to do so? Sometimes, it’s incompetence. Other times, and what happens in Republican-controlled states like Ohio, the law is left on the books with the vision that the ruling will be overturned in the future and the law will be resurrected. This is unspeakably dangerous because everyday Ohioans might not understand that, even though an unconstitutional law isn’t being enforced, it’s still on the books as if it could be. And if things change, it may become the law once again.
Civil Unions aka Gay Marriage
Many people will only live through one or two landmark Supreme Court cases in their lifetime, and Obergefell v. Hodges is one that many of us remember as a turning point towards progressive change in America in this millennium.
Ohio’s Marriage Laws
ORC § 3101.01 codifies the legal participants in a marriage in the State of Ohio. In what shouldn’t surprise anyone familiar with Ohio’s public policy, marriage is defined as between one adult man and one adult woman. It then goes on to state,
(B)(1) any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state.
As if this weren’t enough of a condemnation and prohibition of gay marriage, the ORC continues by condemning and prohibiting civil unions in any jurisdiction.
(B)(3) The recognition or extension by the state of the specific statutory benefits of a legal marriage to nonmarital relationships between persons of the same sex or different sexes is against the strong public policy of this state.
. . .
(4) Any public act, record, or judicial proceeding of any other state, country, or other jurisdiction outside this state that extends the specific benefits of legal marriage to nonmarital relationships between persons of the same sex or different sexes 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.
Notably, the ORC doesn’t just condemn and prohibit “nonmarital relationships” for gay people, but it also condemns and prohibits civil unions for straight people, which only serves to reinforce the strong, protestant christian history of this state.
Obergefell v. Hodges (2015)
This law was challenged and the constitutional protections for gay people were argued before the Supreme Court, among a litany of other state’s condemnations and prohibitions of gay marriage. Ultimately, the Court decided that the right to marry is a fundamental right protected by the 14th Amendment, which offers all people equal protection under the law, regardless of jurisdiction, and codified birthright citizenship.
The lived reality of this decision was monumental, and for the first time in American history, any person was guaranteed the right to marry whomever they wanted—with obvious age and familial restrictions. This decision also ensured that anyone in a gay marriage is offered the fullest and equal rights and protections under the law.
But what about ORC § 3101.01?
The answer is that it remains on the books to this day. In fact, that law has only ever been amended twice—both times to revise the age and familial restrictions. These restrictions allow for second cousins and 17 year olds to get married, but that’s a different issue for a different time and a different place.
What remains an issue is ORC § 3101.01, especially when the incoming president, his proposed administration, and his ideological proponents, are dead set on undoing the New Deal, eradicating the 14th Amendment, and eliminating federal LGBTQ rights. Today, only the Respect for Marriage Act (2022) and Obergefell uphold the legality of gay marriage across this country. If Congress or the Supreme Court undoes the gains made by both, which is a stated goal of the incoming administration, gay marriage will once again be illegal in the State of Ohio, regardless of where it was solemnized.
Sanctuary Cities
A different but related issue exists with the incoming administration’s immediate goal of enacting a regime of militarized mass deportations of documented and undocumented immigrants that they have deemed to be undesirables.
A common work-around for the more progressive jurisdictions in this country has been sanctuary status, whereby government employees are prohibited from cooperating with the federal government in matters of immigration compliance and deportation. Sanctuary status may also prevent the government from frivolously inquiring about citizenship status or considering a person’s citizenship status as a term for their access to oftentimes necessary public support, including basic needs.
Ohio’s Anti-Sanctuary City Law
ORC § 9.63 makes it illegal for a city to enact policy in any way that hinders or prevents its employees from complying with the USA Patriot Act or any executive order relating to homeland security or from cooperating with the state or federal government to investigate immigration and terrorism concerns.
Therefore, it is illegal for an Ohio city to become a sanctuary city, and this issue formally falls outside of homerule rights as ORC § 9.63 establishes a general law, making any challenge against it effectively dead on complaint.
However, there is one exception to this law—collective bargaining agreements.
(A) Notwithstanding any law, ordinance, or collective bargaining contract to the contrary, no state or local employee shall unreasonably fail to comply with any lawful request for assistance made by any federal authorities carrying out the provisions of the USA Patriot Act, any federal immigration or terrorism investigation, or any executive order of the president of the United States pertaining to homeland security, to the extent that the request is consistent with the doctrine of federalism.
Now, the penalty for not complying with this law is rather trivial for the offending city as it simply makes them ineligible from receiving state funding for homeland security. Nevertheless, the law also eliminates the defense of public employees from non-compliance based on the existence of a non-compliant local policy. This means that, effectively, sanctuary cities are outlawed and unenforceable, even if policy is passed.
Ohio’s Industrial Legacy
Alongside Illinois and New York, Ohio is a birthplace of the modern labor movement and a foundational component of American socialism—whether Democrats and Republicans alike wish to recognize that or not.
It was in Columbus that the American Federation of Labor was founded, to later merge into the AFL-CIO and lead the labor movement. It was in Canton that Eugene V. Debs gave the speech that led to his arrest under the Sedition Act of 1918. It was in Cleveland that the May Day Riots were staged in protest of Eugene Debs’ illegal incarceration. And it was in Youngstown that the 1952 Steel Strike threatened to annihilate American imperialism on the Korean Peninsula.
While much of the industry that propelled Ohio into the fore of the labor movement has come and gone, some remnants remain. Of note are Cleveland-Cliffs, Inc. in Cleveland, which leads American steel production, and the Goodyear Tire and Rubber Company in Akron, which is one of the big four producers of automotive tires.
There are also countless local contributions to Ohio’s labor movement, many of which are by people and organizations who have been relegated to the annuls of history.
Change through Collective Action
Ohio is and will always be the American mitochondria—the powerhouse of this country. With this privilege comes power held by Ohio workers and exercised through the unions. When the unions speak, our politicians are forced to listen.
If any opposition to Ohio’s regressive public policy is to be made—and be politically viable at all levels—it must come first and foremost from our unions and fully serve the interests of Ohio’s workers who have been left out to dry time and again.
Change begins through unionization and effective collective bargaining that expands labor rights for the interests of the many. This calls upon activists across this state to coalition around our unions, craft policy alternatives that bolster the working class, and champion Ohioans who have the vision of a labor future front of mind.
This isn’t revolutionary. This is just common sense.
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