US District Judge Timothy S. Black has ordered that a Cincinnati same-sex couple married in Maryland is entitled to a temporary restraining order requiring the local registrar of death certificates to record them as married when one, fatally ill, passes away.
The July 22 ruling followed a dramatic July 11 trip by James Obergefell and John Arthur in a special medically-equipped jet to an airport in Anne Arundel County, Maryland, where they were married in the jet while it sat on the tarmac.
Obergefell and Arthur have lived together in “a committed and intimate relationship” for 20 years. Arthur is dying from Lou Gehrig’s disease, and they resolved to be married before he died. With the US Supreme Court’s ruling in the Edie Windsor case on June 26, striking down Section 3 of the Defense of Marriage Act, they took the chance that a marriage performed in Maryland might be recognized in Ohio. This was crucial to establish Obergefell’s status as a surviving spouse, which, among other things, would qualify him to ultimately be buried next to Arthur in the family plot at Cincinnati’s Spring Grove Cemetery where Arthur wishes to be interred. It would also, of course, entitle Obergefell to federal recognition as a surviving spouse for tax and benefits purposes.
Judge Black concluded, based on the Windsor ruling, that, at least for purposes of issuing temporary injunctive relief, Obergefell and Arthur are entitled to the remedy they are seeking.
“This is not a complicated case,” he wrote. “The issue is whether the State of Ohio can discriminate against same-sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated.”
Most of Black’s opinion is devoted to reviewing the well-established Ohio rule, which has been applied to recognize a variety of marriages that could not have been performed in that state.
For Black, the bottom line of the Windsor decision is that it violates federal equal protection requirements for a state to accord unequal treatment to married same-sex couples. The Supreme Court rejected all the purported justifications for the federal government denying recognition to such marriages.
“Even if the classification of same-sex couples legally married in other states is reviewed under the last demanding rational basis test,” wrote Black, “this Court on this record cannot find a rational basis for the Ohio provisions discriminating against lawful, out-of-state same-sex marriages that is not related to the impermissible expression of disapproval of same-sex married couples. Consequently, Plaintiffs have demonstrated a strong likelihood of success on the merits.”
The judge also easily found that the remaining requirements for pre-trial relief had been satisfied: irreparable injury to the plaintiffs if relief is not granted, lack of any harm to the defendants (Republican Governor John Kasich and other state officials) if relief is granted, and the public interest, which he said “is promoted by the robust enforcement of constitutional rights.”
Although the court’s order only involves the local death registrar, it lays the groundwork for a more permanent order requiring Ohio to recognize out-of-state marriages. The opinion makes no reference to Section 2 of DOMA, which purports to excuse states from affording “full faith and credit” to same-sex marriages contracted in other states, and which was not at issue in the Windsor case. For Black, however, federal equal protection clearly trumps Ohio’s anti-marriage constitutional amendment and statutes.
Black was appointed to the federal district court in Cincinnati by President Barack Obama in 2009.
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