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On July 22, 2013, federal district judge Timothy S. Black issued a temporary restraining order requiring Ohio to recognize the marriage of John Arthur and Jim Obergefell, the long-time partners who were married in Maryland on June 11 in an air ambulance on an airport tarmac because Arthur, who is suffering from ALS, is bed-ridden. The order applies only to the marriage of Arthur and Obergefell, but has wide implications for all legally-married same-sex couples who live in states that refuse to recognize same-sex marriages performed elsewhere.
The dramatic story of Arthur and Obergefell's marriage, which was first reported in the Cincinnati Enquirer and was the subject of a blog here is a tale of love and devotion, but it also illustrates the injustice posed by bans on same-sex marriage in 37 states.Obergefell and his terminally ill partner Arthur traveled at great expense and inconvenience via air ambulance to be married in Maryland, but returned to their home state, Ohio, which refuses to recognize their legal marriage. Thus, on July 19, the couple filed suit in federal court asking that the state of Ohio be compelled to acknowledge their marriage. In particular, the lawsuit requests that the Ohio Registrar of death certificates be required to record Arthur's status at death as "married" and Obergefell be listed as his "surviving spouse."
Judge Black's restraining order against the state of Ohio not only grants the request of the couple in regard to the death certificate (which is important because without recognition of their marriage, the couple will not be able to be interred side by side in Arthur's family's cemetery plots), but also suggests strongly that Ohio's state constitutional ban on recognition of same-sex marriage violates the United States Constitution and its guarantee of equal protection of the laws.
In his order, Judge Black cites the landmark Supreme Court rulings in Romer v. Evans, which invalidated a Colorado referendum that prohibited anti-discrimination protection on the basis of sexual orientation, and Windsor v. United States, which invalidated the Defense of Marriage Act. Perhaps most deliciously, Judge Black even cites Justice Antonin Scalia's intemperate dissent in Windsor, in which he exasperatingly predicts that the decision will open the flood-gates to same-sex marriage across the country.
Judge Black points out that Ohio law from its inception recognized as valid marriages that were legal where they were performed even if they could not have been performed in Ohio. For example, Ohio does not perform marriages between first cousins, but if first cousins are married in a state that does perform such marriages, they are recognized as married in Ohio. In other words, "a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized."
Citing the reasoning in Windsor, Judge Black says that the only purpose of the Ohio ban on recognizing same-sex marriage is "to impose a disadvantage, a separate status, and so a stigma" on married same-sex couples. He asserts that "It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group," and concludes that "Plaintiffs have demonstrated a strong likelihood of success on the merits."
Dr. Camille Jones, the vital statistics registrar for the City of Cincinnati, has declined to defend the law, telling the court that "The City will not defend Ohio's discriminatory ban on same-sex marriages, but the City's vital statistics registrar is bound to follow Ohio law until that law is changed or overturned." However, Ohio Attorney General Mike DeWine's office argued against the temporary restraining order and has pledged to defend the law on its merits.
Below is Judge Black's temporary restraining order.
Other court filings in the case may be found in Chris Geidner's report at Buzzfeed.