"THEN, AS TODAY, THE DEFENDERS OF THE STATUS QUO ALWAYS SEEMED TO HAVE GOD'S LIPS TO THEIR EARS."

A divided three-judge panel of the 11th District Ohio Court of Appeals ruled recently that a heterosexual couple may not marry under state law if one member is transsexual.

Although Jacob Nash was born female, he changed his sex in the late 1990s and obtained a revised birth certificate from his home state in Massachusetts. Nonetheless, the Ohio courts have continued to ignore this legal document in denying him the right to marry his partner, Erin Barr.

In a Dec. 31 decision, which is expected to be appealed, Judge Diane V. Grendell insisted that the U.S. Constitution's Full Faith and Credit Clause might require Ohio to respect Nash's Massachusetts birth certificate, but it does not require Ohio to take the extra step of declaring Nash a male under Ohio law.

Instead, the judge turned to the legal authority of Webster's New College Dictionary, where she found "female" defined as "the sex that produces ova or bears young," and "male" as "the sex that has organs to produce spermatozoa for fertilizing ova." Once she determined that Nash failed to meet the latter specification, she grounded the rest of her opinion in the state law that prohibits same-sex marriage.

Grendell cited a host of conservative precedents in the course of her 17-page opinion, including a dissenting opinion in a state Supreme Court case that was overwhelmingly resolved in favor of two women who sought a name change.

In another example, the judge found a quote from a Texas transgender marriage case with which to dismiss the underlying complexity of the matter before her: "We realize," wrote the Texas 4th District Court of Appeals in Littleton v. Prange, "that there are many fine metaphysical arguments lurking about here involving desire and being, the essence of life and the power of mind over physics. But courts are wise not to wander too far into the misty fields of sociological philosophy."

In contrast, Grendell's dissenting colleague, Judith Christley, wrote that advances in civil rights have "required that we rethink the long established history and origins of our prejudices. Without exception," she went on, "the continuation of those prejudices was defended in the name of natural law, the God-given order of things, and because it had always been that way. Then, as today, the defenders of the status quo always seemed to have God's lips to their ears."

--Reported by Ann Rostow, Gay.com / PlanetOut.com Network