Federal judge: Ohio officials must OK 2nd gay marriage

Julie Zimmerman | The Cincinnati Enquirer

CINCINNATI — For the second time this summer, a federal judge has ordered the state of Ohio and local officials to recognize the marriage of two men who went out of state to wed.

The order issued Tuesday involves a man from the Cincinnati suburb of Wyoming, Ohio, who died last month. The ruling allows his husband to be listed as his surviving spouse on his death certificate even though Ohio does not recognize same-sex marriages.

U.S. District Judge Timothy Black issued the temporary restraining order the day before William Herbert Ives is to be cremated. Ives and David Michener, who had been a couple for 18 years and were raising three children together, married July 22 in Delaware.

Ives died unexpectedly Aug. 27 of natural causes.

Black ruled that Ohio Attorney General Mike DeWine and other state officials cannot enforce Ohio's voter-approved constitutional ban on same-sex marriages. He also ruled that Cincinnati officials cannot accept a death certificate for Ives unless it records his status as married and lists Michener as his surviving spouse.

Michener's "husband has died and he urgently needs to bring closure to the family in a manner that respects their marriage and the wishes of the decedent to be cremated," the lawsuit said.

The court also will allow Michener to join a lawsuit filed in federal court in July by another couple, John Arthur and James Obergefell of Cincinnati, who married July 11 in Maryland. The June U.S. Supreme Court decision granting federal recognition to same-sex marriages prompted them to marry.

Arthur is dying of amyotrophic lateral sclerosis and their lawsuit asks that they be listed as spouses on Arthur's death certificate, as Arthur's condition continues to deteriorate.

Black issued a temporary restraining order in July requiring the state to list them as spouses in the event of Arthur's death. The order has been extended through the end of 2013.

Michener's lawsuit was filed by Alphonse Gerhardstein, the same lawyer representing Arthur and Obergefell.

The lawsuit argues that although same-sex marriages are not legal in Ohio, the state recognizes other marriages that it does not allow to take place in the state, such as marriages between first cousins or minors.