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Same-Sex Marriage  
 
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Post-Windsor Judicial Rulings

As federal and state judges absorbed the meaning of the Supreme Court's ruling on June 26, 2013 in Windsor, challenges to state bans on the performance and recognition of same-sex marriages proliferated and the bans began to fall like dominoes, at least at the District Court level.

The first domino came in an unlikely and highly dramatic case. 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, long-time partners who were married in Maryland on June 11 in an air ambulance on an airport tarmac because Arthur, who was suffering from ALS, was bed-ridden. The order applied only to the marriage of Arthur and Obergefell, but had wide implications for all legally-married same-sex couples who live in states that refuse to recognize same-sex marriages performed elsewhere.

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The dramatic story of Arthur and Obergefell's marriage vividly illustrated the injustice posed by state bans on same-sex marriage. 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 refused 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 requested 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 granted the request of the couple in regard to the death certificate (which is important because without recognition of their marriage, the couple would not be able to be interred side by side in Arthur's family's cemetery plots), but also suggested 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 cited the landmark Supreme Court rulings in Romer and Windsor. Perhaps most deliciously, Judge Black even cited Justice Antonin Scalia's intemperate dissent in Windsor, in which he exasperatingly predicted that the decision will open the flood-gates to same-sex marriage across the country.

Judge Black pointed 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 said 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 asserted that "It is beyond cavil that it is constitutionally prohibited to single out and disadvantage an unpopular group," and concluded that "Plaintiffs have demonstrated a strong likelihood of success on the merits."

Ohio's attorney general announced that he would appeal the order to the U.S. Court of Appeals for the Sixth Circuit. John Arthur died on October 22, 2013. His death certificate listed Jim Obergefell as his surviving spouse.

On December 23, 2013, Judge Black issued a permanent order requiring the state to permit death certificates to include information about same-sex spouses.

In a lawsuit brought by three married lesbian couples expecting to give birth soon and a gay male couple seeking to adopt, Judge Black in April 2014 again declared Ohio's ban on recognition of same-sex marriages unconstitutional.

The suit, Henry v. Wymyslo, sought a court order to force the state to put the names of both parents on the birth certificates of their children-to-be.

Again, Ohio Attorney General Mike DeWine said that he will appeal the ruling to the Sixth Circuit Court of Appeals.

Other States

A few other states offer a handful of rights to same-sex couples, but fall short of the rights conferred by domestic partnerships, civil unions, or marriage.

In addition, a number of cities and counties offer domestic partner registries through which gay and lesbian couples may qualify for a limited number of benefits.

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