CINCINNATI (CN) - Refusing to recognize same-sex marriage in Ohio is discriminatory and would keep a gay man dying of ALS "from being buried with dignity," a federal judge ruled.
U.S. District Judge Timothy Black granted James Obergefell and John Arthur a temporary restraining order that prevents Ohio from accepting any death certificate that does not describe Obergefell as the "surviving spouse" of the "married" Arthur upon Arthur's death, which is imminent.
Ohio has long recognized out-of-state marriages that are not otherwise available within its borders, according to the ruling
"Thus, for example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins," Black wrote. "Likewise, under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors.
"How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot ... at least not under the circumstances here." (Ellipsis in original.)
It was in 2004 that Ohio barred the recognition of same-sex marriages that couples entered into legally in other states.
Obergefell and Arthur "are male Cincinnati residents who have been living together in a committed and intimate relationship for more than twenty years, and they were very recently legally married in the state of Maryland pursuant to the laws of Maryland recognizing same sex marriage," according to the ruling.
Arthur is dying in hospice care of amyotrophic lateral sclerosis, known more commonly as Lou Gherig's disease, according to the ruling.
"On July 11, 2013, plaintiffs traveled to Maryland in a special jet equipped with medical equipment and a medical staff necessary to serve Mr. Arthur's needs, whereupon plaintiffs were married in the jet as it sat on the tarmac in Anne Arundel County, Maryland," Black wrote. "They returned to Cincinnati that same day." (p. 3)
They sued the state's governor, attorney general and a the Cincinnati vital statistics registrar Friday to ensure that the Ohio does not list Arthur as "unmarried" on his death certificate.
Judge Black railed against Ohio's double standard in his order Monday
The 15-page opinion cites grounding in various Ohio precedent as well as the U.S. Supreme Court's new decision United States v. Windsor, which struck down against a discriminatory provision of the federal Defense of Marriage Act.
Windsor meanwhile relied on the high court's 1996 finding in Romer v. Evans that a state had violated equal protection rights by prohibiting any special protections for gay people.
"The purpose served by treating same-sex married couples differently than opposite-sex married couples is the same improper purpose that failed in Windsor and in Romer: 'to impose inequality' and to make gay citizens unequal under the law," Blac wrote. "It is beyond cavil that it is unconstitutionally prohibited to single out and disadvantage an unpopular group.
"Even if there were proffered some attendant governmental purpose to discriminate against gay couples, other than to effect pure animus, it is difficult to imagine how it could outweigh the severe burden imposed by the ban imposed on same-sex couples legally married in other states."
In addition to establishing that the plaintiffs would likely succeed on the merits of their case, Judge Black ruled that Arthur's imminent death necessitated the temporary restraining order. Without it, the couple would suffer irreparable harm.
"Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery," the ruling states. "He also wants Mr. Obergefell to be buried next to him someday. The family plot directive limits those who may be interred in the plot to descendents and married spouses. Thus, without a temporary restraining order, Mr. Arthur's burial may be delayed or his remains may have to be exhumed when this case is finally decided.
"Finally, the uncertainty around this issue during Mr. Arthur's final illness is the cause of extreme emotional hardship to the couple. Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable harm."
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