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Monday Trifecta: Three significant same-sex marriage rulings on December 23, 2013

Posted on: December 23rd, 2013 by Art Leonard No Comments


December 23, 2013, was an incredibly busy day on the same-sex marriage legal front.:  

In Utah, U.S. District Judge Robert Shelby denied a motion by the state to stay his ruling of a few days before holding that same-sex couples have a federal constitutional right to marry, and the state filed an “emergency” appeal to the U.S. Court of Appeals for the 10th Circuit (their third such motion) seeking a stay pending appeal.   Meanwhile, hundreds of same-sex marriages were performed throughout the day in Utah, although a handful of county clerks kept their offices closed to refuse to issue licenses.  The 10th Circuit directed that the plaintiffs in the marriage case file a response to the state’s motion by 5 pm Mountain Time on the 23rd.

In Virginia, U.S. District Judge Michael F. Urbanski rejected a motion by Virginia’s registrar of marriages, Janet M. Rainey, and the Staunton County Clerk, Thomas E. Roberts, to dismiss a marriage equality case that had been filed jointly by Lambda Legal and the ACLU LGBT Rights Project, rejecting their arguments that the plaintiffs lacked standing and the dispute was not “ripe” for adjudication.  At the same time, Judge Urbanski held that Governor Robert F. McDonnell, who was sued in his official capacity, was immune from suit under the 11th Amendment.  Since McDonnell’s term ends shortly, and his elected successor, Democrat Terry McAuliffe, is a marriage-equality supporter, that is just as well.

Finally, in Ohio, U.S. District Judge Timothy S. Black issued an injunction against Ohio officials, mandating that henceforth Ohio death certificates record as married any decedent who had been lawfully married to a same-sex partner in another jurisdiction.  Although Black’s order was narrow, the extensive decision he issued to explain it was worded sufficiently broadly to confirm his view that in light of the Supreme Court’s DOMA decision of June 26, same-sex couples have the right to marry.

But Black based his ruling, however, on a narrower theory: the right to remain married.  “Once you get married lawfully in one state,” he wrote, “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.”  Furthermore, he wrote, “by treating lawful same-sex marriages differently than it treats lawful opposite sex marriages ( e.g., marriages of first cousins, marriages of certain minors, and common law marriages), Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s guarantee of equal protection.”

The original plaintiffs in the case before Black were James Obergefell and John Arthur , a same-sex couple who had recently married out-of-state, hoping to tie the knot legally before Arthur, seriously ill with Lou Gehrig’s disease, died, and David Michener, a surviving spouse who had married his partner, William Herbert Ives, just weeks before, only to lose him suddenly and unexpectedly.  Judge Black allowed Robert Grunn, gay funeral director, who handled Mr. Arthur’s funeral in October, to join as a plaintiff.  Under Ohio law, funeral directors have direct responsibility for accessing the state’s database to submit the facts for death certificates, and must attest to their accuracy, placing Grunn in the position of risking prosecution under state law if he listed as married somebody whose marriage would not be recognized under state law.   Judge Block issued preliminary relief during the summer, directing state officials to designate Arthur and Ives as married on their death certificates.  The December 23 ruling made that relief permanent and prospective, requiring  Ohio officials to list similarly situated decedents on death certificates as married.

In explaining his ruling, Judge Black recounted the many ways that Ohio’s refusal to recognize validly-entered same-sex marriages of its gay citizens imposed substantial injuries and complications.  He found that the right to remain married and have one’s state of domicile honor that marriage was a fundamental right, and that at least heightened scrutiny should apply to require the state to prove an important policy reason for refusing to recognize such a marriage when it recognized many other kinds of different-sex marriages contracted out-of-state that could not be contracted within the state.  He found that Ohio failed to meet that burden.

“Defendants cite “’Ohioans’ desire to retain the right to define marriage through the democratic process,’ ‘avoiding judicial intrusion upon a historically legislative function,’ ‘Ohio’s interest in approaching social change with deliberation and due care,’ ‘the desire not to alter the definition of marriage without evaluating steps to safeguard the religious rights and beliefs of others,’ and ‘[p]reserving the traditional definition of marriage,’ although they raise these interests in the context of a rational basis equal protection analysis.,” he wrote.  “In the intermediate scrutiny context, however, these vague, speculative, and unsubstantiated state interests do not rise anywhere near the level necessary to counterbalance the specific, quantifiable, and particularized injuries evidenced here and suffered by same-sex couples when their existing legal marriages and the attendant protections and benefits are taken from them by the state.”

While he conceded that the Supreme Court in Windsor had acknowledged the traditional interest of states in controlling the institution of marriage, he noted that the Supreme Court had intervened in the past to strike down state marriage provisions that violated federal constitutional rights.  That Ohio voters had adopted an anti-gay marriage amendment did not matter, in his view, because federal constitutional rights cannot be abridged by a popular vote.

“The fact that each state has the exclusive power to create marriages within its territory does not logically lead to the conclusion that states can nullify already-established marriages from other co-equal states absent due process of law. Perhaps the interests raised by Defendants may be more compelling in the context of marriage creation than they are in the context of marriages that have already taken place and same-sex relationships that already exist, i.e., marriage recognition.”  This recognition that the state’s interests might be different in a more wide-ranging case undoubtedly led Judge Black to frame his order narrowly, rather than broadly ordering Ohio to recognize same-sex marriages contracted elsewhere in all circumstances.  But he clearly signaled that the logic of the Windsor ruling led in that direction, quoting (as had Judge Shelby in Utah) Justice Antonin Scalia’s dissenting opinion to that effect.

Having concluded that Ohio’s refusal to recognize these marriages violated the due process clause by abridging a fundamental right without sufficient justification, Black could have ended his decision, but instead, picking up on the themes of his original ruling in July when he granted temporary relief to Obergfell and Arthur, he wrote a lengthy equal protection analysis, reaffirming his earlier conclusion that Ohio’s treatment of same-sex marriages differently from first-cousin marriages, and other marriages that might be contracted in other states violated the equal protection rights of same-sex couples.  “Here, in derogation of law,” he wrote, “the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.”  This language was drawn from Justice Anthony Kennedy’s Windsor opinion, in which he said that the federal government could not create “two tiers” of couples, recognizing the marriages of one and not the other, without some rational justification, and the Supreme Court found that the state failed this test.

In a footnote, Black referenced Section 2 of the Defense of Marriage Act, which he had not mentioned in his July ruling, only to dismiss its relevance and suggest that after Windsor it probably could not withstand judicial review.

Black extensively considered the appropriate level of judicial review for an equal protection challenge to Ohio’s refusal to recognize same-sex marriages, and concluded that such sexual orientation discrimination met all the requirements for a suspect classification meriting heightened or strict scrutiny, but concluded that the Ohio policy would not even survive rational basis review.

“Because there is no rational connection between Ohio’s marriage recognition bans and the asserted state interests, this Court can conclude that the ban violates equal protection even without considering whether it is motivated by an impermissible purpose,” he wrote.   “In this case, however, the lack of any connection between Ohio’s marriage recognition bans and any legitimate state interest also leads to the conclusion that it was passed because of, not in spite of, its burden on same-sex couples.”  Citing the Windsor case as his authority on this point, he wrote further, “Even if it were possible to hypothesize regarding a rational connection between Ohio’s marriage recognition bans and some legitimate governmental interest, no hypothetical justification can overcome the clear primary purpose and practical effect of the marriage bans … to disparage and demean the dignity of same-sex couples in the eyes of the State and the wider community. When the primary purpose and effect of a law is to harm an identifiable group, the fact that the law may also incidentally serve some other neutral governmental interest cannot save it from unconstitutionality.”

Finally, Judge Black concluded that granting the injunction would inflict no harm on the state of Ohio or its citizens, while denying it would cause harm to the plaintiffs.  For one thing, it would require amending the death certificates of Arthur and Ives and depriving their surviving spouses of the protections and benefits of the law that Ohio extends to surviving spouses.  For another, it might require the exhumation of Arthur, since he had expressed the wish to be buried next to his husband, and restrictions on his family’s cemetery plots would exclude Obergfell if the marriage were not legally recognized.  And, of course, with the prospective relief sought by Grunn, the funeral director, similar married couples would suffer the same deprivation of rights in the future. 

For Black, the conclusion was clear, and he granted the injunctive relief.  The Governor and Attorney General of Ohio announced they would appeal the ruling to the U.S. Court of Appeals for the 6th Circuit.

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.