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SUPCO Justice Talks Same-Sex Marriage, JobsOhio

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Ohio Supreme Court Justice Paul Pfeifer says language on same-sex marriage, pro or con, does not belong in the state Constitution. A moderate Republican, Pfeifer suggests Ohioans should repeal the voter-approved 2004 constitutional amendment banning same-sex marriage and leave the issue to state lawmakers to decide. Pfeifer, who has a lesbian daughter, made his comments Thursday before a panel studying constitutional updates. The 6th U.S. Circuit Court of Appeals in Cincinnati upheld bans in Ohio and three other states last week, with judge Jeffrey Sutton arguing the matter is for the legislature. Pfeifer says he agrees. He says other issues, such as language on livestock-care standards and the location of casinos, also do not belong in the Constitution. Pfeifer was one of two justices who disagreed with the court’'s ruling in June that a progressive group and two Democratic state lawmakers lacked the legal authority to sue the state over the constitutionality of JobsOhio, the semi-private agency created by Governor John Kasich. Pfeifer tells Ohio Public Radio'’s Jo Ingles the court should have ruled on the merits of the case rather than saying it lacked jurisdiction.

Pfiefer – It was an extremely important piece of legislation – Governor Kasich ‘s flagship legislation. He knew and the legislature knew that perhaps it was on constitutional quick sand due to the old provisions in the constitution prohibiting the transfer of state funds to private corporations that were put in when they were building the canal lakes. The Governor wanted a determination from the supreme court right away. So they set up – David Goodman, Director of Commerce, refused to sign certain documents and they sent up a lawsuit. And our court kicked it out. Two of us, Justice Cupp and I said we should answer that but we didn’t. They wanted an answer because the constitutional question could undermine the bond sales. And they did very successfully. So then two years later, when two former legislators brought an action in the common pleas court, the Governor no longer wanted a test because it would wreck the program that was up and running and our court said “well these people don’t have standing” and the bottom line is that an important constitutional issue that the Supreme Court should have found a way to answer never got answered and never will be answered. So what I am saying is the revision commission change the original jurisdiction of the court to expand it so there can’t be any argument among justices about “can we or should we answer this question.”  
 
Ingles – And if they change it, would they be able to go back and answer the question about JobsOhio?
 
Pfiefer – Well I suppose technically you could but it would be a tough sale. Once a program is up and running, convincing justices to knock it out five or ten years down the road would be a very tough sale. The Governor did the right thing by saying “lets find out right now” and the court did the wrong thing and said “go away.”
 
Ingles – Now Justice Judi French, when she was running for re-election made the statement that is now kind of famous, saying you have got to re-elect me to the court because we need a back stop – remember JobsOhio. Do you think it has turned into something political and is the court a backstop for it?
 
Pfiefer – Well I think that was unfortunate on her part and she probably wishes she never said that. But no, I don’t think the court is a back stop for anything. WE are there to make calls on constitutionality and disputes between litigants as to what the right outcome is, whether it’s the common law, the statutory law or the constitution. It’s what we do. It’s what we are paid to do. And my only argument is when we seem to run away from that time to time on technical basis. My view is it’s here, they’ve teed it up. Let’s answer the question, yes or no.They may not like the answer but we should answer it.

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