Judge narrowly rejects Ohio gay marriage ban

Amber Hunt and Jessica Brown | The Cincinnati Enquirer

Show Caption Hide Caption 'I'm overjoyed, in love, and so thankful.' John Arthur, an ALS patient and Jim Obergefell of Cincinnati, partners for more than 20 years, get married on a medical plane in Maryland following the Supreme Court ruling that allows for official recognition of gay marriage.

Couples lawfully married in one state remain married in another%2C Judge Timothy Black ruled

The ruling is expected to open the door to more challenges on to the same-sex marriage ban in Ohio

Ohio officials say they will appeal within the 30 days allowed by law

CINCINNATI — A federal judge here ordered Ohio authorities Monday to recognize gay marriages on death certificates in a move that ultimately could challenge the state's ban on same-sex unions.

Although Judge Timothy Black's ruling applies only to death certificates, his statements about Ohio's gay-marriage ban are sweeping, unequivocal and expected to incite further litigation challenging the law. The judge wrote that banning same-sex marriage is unconstitutional and that states cannot discriminate against gay couples simply because some voters don't like homosexuality.

"We disagree with the court's ruling, and the state will appeal it," said Rob Nichols, spokesman for Ohio Gov. John Kasich. Lisa Hackley, a spokeswoman for the Ohio Attorney General's Office concurred, saying that her office will appeal within the 30 days allowed by law.

"We've consulted with our client, which is the Ohio Department of Health, and we're following our client's wishes," Hackley said, adding that the state will not request a stay.

Black's decision stems from a lawsuit filed in July by Jim Obergefell of Cincinnati and another gay Ohio man whose spouses recently died. Each wanted to be recognized on the spouses' death certificates as married. In Obergefell's case, John Arthur, his partner of more than 20 years, died in October just three months after they were legally wed in Maryland.

"I had to fight to keep from crying because I miss John and I wish he were here to celebrate with me," Obergefell said after learning of Monday's ruling.

"I wouldn't be surprised if the state appeals it," he said. "(Attorney General) Mike DeWine's been pretty clear from the get-go that he will fight it. I'm in (this case) for as long as it needs me."

Al Gerhardstein, Obergefell's lawyer, said he's disappointed though not surprised that the state will appeal.

"It would be good if we could agree on these essential legal principles," he said. "The judge is correct when he says that we have a fundamental right to marry that can't be denied. I look forward to being able to make that argument in the appeal."

Brian Brown, president of the National Organization for Marriage in Washington, said that Black is "another example of a judge gone wild" and accused him of "making the law up out of thin air."

"The voters have already decided in Ohio," Brown said. "I trust that voters understand the profound consequences if you redefine marriage."

Among what he said are the "parade of horribles" that result from allowing same-sex marriage: religious organizations being fined for not performing gay marriages in states that allow it and the ultimate legalization of polygamy.

"It's curtailing the rights of those of us who know that marriage is by definition between a man and a woman," Brown said.

Black, the federal judge here, cited in his decision a prediction from U.S. Supreme Court Justice Antonin Scalia, who wrote in a strong dissenting opinion in June that the court majority's decision to strike down part of an anti-gay marriage law would lead to a rash of state challenges.

The Cincinnati judge wrote that Scalia's prediction came true and now the lower courts must apply the high court's ruling.

"The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples … simply because the majority of the voters don't like homosexuality (or at least didn't in 2004)," Black said in reference to the year Ohio's gay marriage ban passed. "Under the Constitution of the United States, the answer is no."

New Mexico's highest court issued a ruling last week legalizing gay marriage there. A day later, a federal judge struck down a ban on the practice in Utah, bringing to 18 the total number of states that allow same-sex weddings, plus the District of Columbia. That's up from six before the Supreme Court decision.

As was the case in Ohio, the Utah judge also pointed to Scalia's dissent to argue the ban unconstitutional. Federal District Judge Robert Shelby wrote in his opinion that Scalia recognized that legalized gay marriage was the logical outcome of the court's ruling in what's known as the Windsor case, in which the U.S. Supreme Court determined that federal benefits couldn't be denied to same-sex couples married in states that allowed the unions.

Scalia argued in his disagreement with the majority that the case could be used in state courts to deem same-sex marriage bans unconstitutional.

"The court therefore agrees ... that the court's reasoning logically extends to protect an individual's right to marry a person of the same sex," Shelby wrote.

The Ohio case was intentionally narrower than that, Gerhardstein said. Instead of tackling same-sex marriage overall, it instead tackled whether a same-sex couple legally married in another state had the right to be listed on the partners' death certificates if one of them dies.

Black's ruling was just as narrow, but the judge acknowledged last week in court that the stakes were high because his ruling surely would be applied to subsequent cases.

"Once you get married lawfully in one state, another state cannot summarily take your marriage away," Black wrote in his 50-page decision. Black referenced Ohio's historical practice of recognizing other out-of-state marriages even though they legally can't be performed in Ohio, such as those involving cousins or minors.

The ruling generated applause from Chris Redfern, chairman of the Ohio Democratic Party, who described it in a news release as "a defeat of … Rick Santorum politics, and a victory for all Ohioans committed to equality under the law."

Gerhardstein said the Obergefell case was an ideal vehicle to challenge Ohio's same-sex marriage ban, starting with the death-certificate recognition, because the couple knew that one of the partners was terminally ill.

"This particular case found a good balance totally because of the tragedy of John and James and their willingness to let their tragic circumstances be used in this context," the lawyer said. "It's a vehicle for explaining this situation to the people of Ohio, and now it's sort of challenging the rest of us to ask: Do we want to wait for more court rulings, or should we go back to voters and ask them again? Do we want to reconsider?"

Although the ruling was "narrowly tailored, we think the judge made it clear that denying a married couple equal protection whether they're gay or straight is unconstitutional," said campaign manager Michael Premo of Why Marriage Matters Ohio, a statewide marriage equality education campaign run by Equality Ohio. "We firmly believe that. People's rights should not end based on crossing over the state border."

Bridget Coontz, the state's attorney who argued against death-certificate recognition, said that in the Supreme Court's historic June decision, the justices also found that states have the right to decide for themselves whether to recognize gay marriage, and Ohio voters decided not to in 2004.

"Ohio doesn't want Delaware or Maryland to define who is married under Ohio law," she said. "To allow that to happen would allow one state to set the marriage policy for all others."

Contributing: The Associated Press; Julie Zimmerman, The Cincinnati Enquirer