Relying directly on the Supreme Court’s new decision on same-sex marriage, but expanding on it significantly, a federal judge in Cincinnati on Monday ordered state officials to recognize the unions of same-sex couples who were married in other states but live in Ohio. The ruling came in the case of a gay couple, with one of the partners gravely ill and likely to die soon, leading to a plea to have their Maryland wedding promptly recognized under Ohio law.

Although conceding that the Supreme Court’s ruling last month in United States v. Windsor did not directly involve state power to ban same-sex marriages, U.S. District Judge Timothy S. Black declared that the Court’s ruling was pointing toward that issue. He also applied some of the equality principles in the Windsor majority opinion to support his order.

Meanwhile, a stack of new legal filings was piling up in the California Supreme Court, all focusing on the question of whether marriage-licensing clerks in all fifty-eight counties are under a duty to permit the marriage of gay and lesbian couples. State officials filed their formal brief on the merits of that issue, although the document closely tracked most of the arguments state officials have made in other preliminary filings. Although one county clerk has asked the state court to block further marriages until their legality is more clearly settled, the state picked up the support of twenty other county clerks for its argument that they now have a legal duty to issue same-sex marriage licenses, despite the ban in the ballot measure “Proposition 8.”

In the Ohio case, Judge Black noted that the Windsor decision was “ostensibly limited to a finding that the federal government cannot refuse to recognize state laws authorizing same sex-marriage,” but then he added that “the issue whether states can refuse to recognize out-of-state same-sex marriages is now surely headed to the fore.”

Along with his reliance upon that decision, the Cincinnati judge also pointed to earlier Supreme Court rulings in favor of equality for gays and lesbians, but not involving marriage, and said those precedents all worked against an Ohio state constitutional provision that recognizes marriage only for legal unions of a man and a woman, even if a couple living in Ohio has been legally married in a state that permits it.

He ruled in the case of a gay Cincinnati couple who have been together for some twenty years, and only recently were married in Maryland — a state where such marriages were first allowed by state voters last November. James Obergefell is now married to John Arthur, who has an advanced form of sclerosis that is expected to take his life shortly. When the couple went to Baltimore to be married, they traveled on a plane especially equipped for Arthur’s illness. They were married on the plane as it sat on the tarmac.

But, since Ohio will not recognize their Maryland marriage, Arthur’s death certificate would list him as unmarried and would not list Obergefell as a surviving spouse. In addition, the couple wishes ultimately to be buried together as married partners, and that would not be allowed.

Judge Black found that their constitutional challenge to the differing treatment under Ohio law was likely to succeed when their case goes through a full trial. In the meantime, because of the likely imminence of Arthur’s death, the judge ordered officials to take action to assure that their marriage is treated as fully legal.

Recommended Citation: Lyle Denniston, A new same-sex marriage ruling in Ohio, SCOTUSblog (Jul. 22, 2013, 10:12 PM), https://www.scotusblog.com/2013/07/a-new-same-sex-marriage-ruling-in-ohio/