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Ohio Marriage Challenge Continues Despite Death of Plaintiff

Posted on: November 4th, 2013 by Art Leonard No Comments

A federal judge in Cincinnati has ruled that a lawsuit seeking to compel the state of Ohio to recognize same-sex marriages of its residents that were performed in other jurisdictions will live on, despite the death of a plaintiff that might otherwise moot the case, and that a gay Cincinnati funeral director may carry on the challenge as a “third-party plaintiff” representing the interests of his future clients.  The judge also suggested that his ruling on the merits would likely come before the end of 2013.

James Obergefell and John Arthur, Cincinnati, Ohio, residents who were married in Maryland in mid-July, filed a federal lawsuit in Ohio on July 19, seeking an order that Ohio officials be compelled to record them as married when Arthur, who was dying from amyotrophic lateral sclerosis, passed on.  U.S. District Judge Timothy Black ordered temporary relief to that effect a few days later, and Ohio officials did not appeal the award of temporary relief, although officials indicated that they would continue to defend the state’s refusal to recognize same-sex marriages.

The case grew from there after Williams Ives died late in August, and his surviving spouse, David Michener, asked to be covered by Judge Black’s Order so that Ives’ death certification would accurately reflect their marital status.  An amended complaint was file to that effect was filed on  September , and Judge Black agreed to extend his preliminary injunction to cover Mr. Ives.

Another amended complaint was filed on September 26, adding as plaintiff Robert Grunn, a gay funeral director in Cincinnati who would subsequently handle Mr. Arthur’s funeral when he died on October 22.  At the same time, the lead defendant, Ohio Governor John Kasich was dropped from the case and in the course of amended complaints the lead defendant became Dr. Theodore E. Wymyslo, the Director of Health for the state of Ohio, whose office is responsible for receiving and processing death information for state records and supervising the death certificate process.

The state opposed adding Mr. Grunn as a co-plaintiff, asserting lack of standing, and also sought to have the case dismissed as moot after Mr. Arthur died, arguing that as the two other live plaintiffs in the case, Obergefell and Michener, had obtained the relief they sought with the issuance of death certificates, there was nothing more to decide.  On November 1, Judge Black issued an order denying the state’s motion to dismiss the case, and ruled that Mr. Grunn could continue as a plaintiff, asserting a claim on behalf of his future clients, married same-sex couples in Ohio, for recognition of their marriages by the state.

Judge Black’s November 1 ruling in Obergefell v. Wymyslo, 2013 U.S. Dist. LEXIS 156934 (S.D. Ohio), considers, in his words, “hard questions regarding sophisticated legal concepts like standing and ripeness.  In simplified sum, Defendant argues that now that Messers. Arthur and Ives have died, there exists no live controversy for the Court to adjudicate and that Mr. Grunn’s attempt to take up the challenge is without legal basis.  Upon close review and careful analysis, the Court disagrees.”

Judge Black found that Grunn could not assert a first-party claim, since he was not asserting a violation of his own right to equal protection of the law, but that he could file a third-party claim on behalf of married same-sex couples who would come to him for his services in the future.  In Ohio the funeral director is charged with submitting information about the deceased and survivors to the state’s Electronic Death Registration System, which information provides the basis of the death certificates he then issues to the survivors. Grunn as the funeral director is required to sign the death certificate, and would be subjected to penalties under state law for issuing an inaccurate certificate.  Mr. Grunn would be at risk of prosecution if he records a marriage that is not recognized as such by Ohio, which has a constitutional amendment providing that only different sex marriages are valid or recognized.  Mr. Grunn is gay and operates his funeral home out of a building that was previously a well known gay bar, and he is active in the community.  The court noted that he had already handled two funerals of married same-sex couples, including the Arthur funeral, and anticipated more of this type of business in the future.

Judge Black reviewed the factors in determining whether a person in the position of Grunn could assert a third-party claim on behalf of his anticipated future clients.  The court found that he had a legitimate fear of criminal prosecution in the future.  “Mr. Grunn fears prosecution under a statute that the State of Ohio has declined to disavow the intention to enforce against him,” wrote the judge.  He also found that the fear of prosecution was “fairly traceable to Dr. Wymyslo,” since his Department was authorized by statute to initiate such prosecutions.  This potential injury could be redressed by an order of the court.  “If this Court were to make its temporary injunction permanent, and issue a declaratory judgment setting out Mr. Grunn’s rights with regard to filling out death certificate for decedents who were in out-of-state same-sex marriages, his fear of prosecution would disappear (if sustained on appeal).”   Thus, Judge Black concluded that Grunn had standing under Article III of the Constitution.

Judge Black pointed out that this, in itself, would not be enough to meet standingrequirements for a third-party case without evidence that Grunn has a close relationship with “the person who possesses the right” that is being violated and that “there is a hindrance to the possessor’s ability to protect his own interest.”  Judge Black’s response to these issues was pragmatic, pointing out that “the parties whose rights Mr. Grunn is attempting to vindicate are not ‘hypothetical future clients,'” as the state argued, “but rather are members of a specific population from a community of which Mr. Grunn himself is a part, and other members of which have retained his services in the past, and additional members of which will without question continue to retain his services in the future.”   Further rejecting the state’s argument that it was speculative that Grunn would be faced with this issue in the future, Black pointed out that the funeral director is allocated the function of reporting information to the state, and his “clients are completely reliant on him to fulfill this function.  The services of a funeral director, unlike those of an attorney, are services every one of us will inescapably require one day.”  Black noted Grunn’s role in the Cincinnati LGBT community, concluding that his “relationship to this constituency is neither prospective nor hypothetical but rather current and certain to continue.”

Judge Black also accepted Grunn’s argument that resolving the case with a final decision on the merits would be in the interests of the same-sex married couples whom he sought to represent in this suit.  “The need to file a lawsuit to ensure that a loved one’s death certificate accurately reflects their marriage is an incredible burden to place on grieving spouses,” he wrote, finding that “Mr. Grunn is uniquely situated to be responsive to the very concerns that third-party standing is designed to address.”  The court also found that the dispute was “ripe,” noting that the issue had already arisen for two same-sex married couples in Cincinnati in just a matter of weeks, and that Grunn’s role as an active community member providing this service makes it likely that the issue will recur.  “Finally, if judicial review is denied, the parties will need to scramble to litigate in a rushed manner when the next same-sex married couple has a spouse die and must seek a death certificate through a funeral director,” he pointed out.  “There would be a significant hardship for Mr. Grunn to litigate this issue when the next grieving surviving spouse retains his services, as that client will be in distress and facing an urgent need to secure a death certificate and dispose of his or her loved one’s remains.  Moreover, in the absence of a live case with a temporary restraining order already in place, obtaining the necessary relief within the short period of time in which a death certificate must issue may well be logistically impossible.”  It was a fortuitous coincidence, from the point of view of David Michener, that when his spouse suddenly died, this case was pending before Judge Black, so a temporary order could quickly be extended to cover his situation.

Judge Black concluded that it was appropriate to exercise jurisdiction in this case, and stated his anticipation that the case will be “ripe for full and final resolution in late December 2013.”  Lead attorney for the plaintiffs is Alphonse Adam Gerhardstein, who has been prominently involved in gay rights litigation in Ohio for many years.