U.S. 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 Ohio Registrar of death certificates in Cincinnati to record them as married when one, fatally ill, passes away. The July 22 ruling followed a dramatic trip on July 11 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. The case is Obergefell v. Kasich, 2013 U.S. Dist. LEXIS 102077 (S.D. Ohio).
Obergefell and Arthur have lived together in “a committed and intimate relationship” for twenty years. Arthur is dying from Lou Gehrig’s disease, and they resolved to be married before he died. With the U.S. Supreme Court’s Windsor ruling on June 26, striking down Section 3 of the Defense of Marriage Act, they took the chance that a marriage quickly 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 Spring Grove Cemetery where Arthur wishes to be buried. It might also, of course, entitle Obergefell to federal recognition as a surviving spouse for tax and benefits purposes, even if Ohio refused to recognize the marriage.
Judge Black concluded, based on the Windsor ruling, that, at least for purposes of issuing the requested 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 Ohio.
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 U.S. Supreme Court found unavailing all purported justifications for the federal government to deny 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.”
He also found easily satisfied the remaining requirements for pre-trial relief: irreparable injury to the plaintiffs if relief is not granted, lack of any harm to the defendants (Governor John Kasich and other state officials) if relief is granted, and the public interest, as to which he quoted a prior case stating, “the public interest is promoted by the robust enforcement of constitutional rights.”
Although the court’s order runs only to 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 Judge Black, however, federal equal protection clearly trumps Ohio’s anti-marriage constitutional amendment and statutes.
Judge Black was appointed to the federal district court in Cincinnati by President Obama in 2009.