Jim Obergefell and John Arthur traveled from Cincinnati to Maryland to get married. | FACEBOOK
Even as drama played out in Utah, with same-sex couples scrambling to marry ahead of the state’s desperate efforts to win a stay of a federal court ruling requiring it to issue them licenses, December 23 proved an active day elsewhere for marriage equality litigation — specifically in Virginia and Ohio.
In Virginia, US District Judge Michael F. Urbanski denied a motion by Virginia’s registrar of marriages and a county clerk to dismiss a marriage equality case filed jointly by Lambda Legal and the LGBT Rights Project of the American Civil Liberties Union. Urbanski rejected arguments that the plaintiffs lacked standing and that the dispute was not “ripe” for adjudication.
Meanwhile, in Ohio, US District Judge Timothy S. Black issued an injunction against Ohio officials, mandating that death certificates there going forward reflect a married status for any deceased individual legally married to a same-sex spouse in another jurisdiction. Black’s order was narrow, but his extensive opinion made clear his view that in light of the Supreme Court’s DOMA ruling in June, same-sex couples have the right to marry.
Black’s ruling, however, was based on a narrower theory — the right to remain married.
With Utah decision a nail-biter, federal judges stepping up elsewhere as well
“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.” And when Ohio does not recognize same-sex marriages the way it does other marriages that could not be undertaken in that state — such as the marriage of first cousins or of people considered minors under Ohio marriage law — that “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 married out of state in advance of Arthur’s impending death from Lou Gehrig’s disease, and David Michener, a surviving spouse who had married his partner, William Herbert Ives, just weeks before, only to lose him unexpectedly.
Black allowed Robert Grunn, a gay funeral director who handled Arthur’s funeral in October, to join as a plaintiff. Ohio law gives funeral directors direct responsibility for submitting the facts for death certificates, so Grunn risked prosecution if he listed as married somebody whose marriage would not be recognized under state law.
This past summer, Block issued preliminary relief to both families, directing state officials to designate Arthur and Ives as married on their death certificates.
The December 23 ruling made that relief permanent and required Ohio officials to act accordingly in future situations involving the death of a same-sex spouse.
Black’s opinion recounted the many ways that Ohio’s refusal to recognize valid same-sex marriages imposes substantial injuries and complications. The right to remain married and have one’s state of residence honor that marriage was a fundamental right, he found, meaning that the state would, at a minimum, have to prove an important policy reason for refusing to recognize such a marriage when it recognizes different-sex marriage from out of state that could not be performed there. Ohio, he concluded, failed to meet that burden.
Among the justifications put forward by the state, according to Black, were “‘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.’”
The judge concluded, “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.”
Black conceded that the DOMA ruling, which struck down the ban on federal recognition of legal same-sex marriages, acknowledged the traditional interest of states in controlling the institution of marriage, but he pointed out that the Supreme Court had intervened in the past to strike down state marriage provisions that violated federal constitutional rights.
“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,” he said, allowing that the arguments made by Ohio officials “may be more compelling in the context of marriage creation than they are in the context of marriages that have already taken place.”
Still, as US District Judge Robert Shelby did last week in his ruling throwing out Utah’s ban on same-sex marriage, Black pointed to Supreme Court Justice Antonin Scalia’s DOMA dissent, in which he warned that the majority’s logic in that case would lead inevitably to state same-sex marriage bans being invalidated.
Black could have stopped there, having found that Ohio’s failure to recognize the out-of-state marriages violated the couples’ due process rights, but he went on to cite the DOMA majority opinion, by Justice Anthony Kennedy, in arguing that in treating same-sex marriages differently than, say, the marriage of first cousins, “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.” Ohio, he concluded, had no rational basis for making such a distinction.
Instead, “the clear primary purpose and practical effect of the marriage bans… [is] to disparage and demean the dignity of same-sex couples in the eyes of the State and the wider community,” Black wrote. “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.”
Governor John Kasich and Attorney General Mike DeWine, both Republicans, announced they would appeal Black’s ruling to the Sixth Circuit Court of Appeals.