Court narrowly rules in same-sex marriage case

Decision applies to death certificates in Ohio

12/23/2013

COLUMBUS — In a narrowly crafted decision, a federal judge Monday ruled that Ohio must recognize same-sex marriages sanctioned in other states when it comes to issuing death certificates despite a state constitutional ban on such marriages.

The 50-page decision issued by U.S. District Court Judge Timothy Black in Cincinnati applies only to death certificates and the two couples and funeral director who were plaintiffs in the case. But it marks the first federal ruling to strike a blow against Ohio’s gay marriage ban.

Attorney General Mike DeWine, the state’s lawyer, said he will appeal the ruling to the U.S. 6th Circuit Court of Appeals.

Although his ruling was extremely narrow, Judge Black used more general language about discrimination against gay marriage.

“Once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution,” he wrote.

The U.S. Supreme Court decision earlier this year struck down the Defense Against Marriage Act, holding that the federal government could not refuse to recognize same-sex marriages. But it did not address state bans like Ohio’s.

Judge Black’s decision makes permanent a preliminary injunction he issued several months ago in favor of James Obergefell and John Arthur, a 20-year couple from Cincinnati who flew to Maryland to legally cement their relationship after that state legalized same-sex marriages.

They wanted their marriage reflected on the death certificate to be issued for Mr. Arthur, who was terminally ill with amyotrophic lateral sclerosis. Mr. Arthur died on Oct. 22.

Another couple in a similar situation and a gay funeral director who fills out death certificates later joined the lawsuit.

“Couples moving from state to state have an expectation that their marriage and, more concretely, the property interests involved with it — including bank accounts, inheritance rights, property, and other rights and benefits associated with marriage — will follow them,” Judge Black wrote. “When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court.”

The decision was applauded by the group laying the groundwork for a ballot issue to overturn Ohio’s 2004 ban.

“It is narrowly defined; therefore, our work on FreedomOhio for the Freedom to Marry and Religious Freedom Amendment continues,” said the organization’s Ian James. “We will redouble our efforts. This will almost certainly be appealed to the U.S. Supreme Court, and we don’t want another couple to go through what James and John had to go through to find justice and equality.”

Supporters of Ohio’s ban, however, derided the decision as judicial infringement on a voter-approved provision of the Ohio Constitution.

“This needs to be appealed,” said Phil Burress, president of Citizens for Community Values in Cincinnati, the group that spearheaded the 2004 constitutional amendment.

“This is an extremely liberal judge,” he said. “The facts don’t mean anything. It’s a judge trying to be a legislator. It must be appealed.”

Lee Strang, professor of law at the University of Toledo, noted the limited scope of the judge’s order. But he added that he was surprised by the strong language Judge Black used in his opinion.

“If I were the attorney general, I would feel the judge made my job easier with the vociferous, political advocacy the judge engaged in,” he said. He pointed to portions of the opinion in which Judge Black was critical of claims made in 2004 by supporters of the gay marriage ban as well as language in the national Republican Party’s 2012 platform.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.