Judge rules for Ohio same-sex couple

Kimball Perry | 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.

Judge emphasized that his ruling was specific to this couple

But same-sex marriage advocates in Ohio say it opens the door to other challenges

John Arthur has amyotrophic lateral sclerosis%2C receives hospice care and is close to death

CINCINNATI — A federal judge ruled that two men's out-of-state marriage is legal in Ohio, allowing a Cincinnati man to be buried next to his dying spouse.

The ruling could set the stage for a challenge to Ohio's ban on gay marriage.

James Obergefell lived with the love of his life, John Arthur, for 20 years before they married two weeks ago. He and his spouse also hoped to spend eternity together by being buried next to each other. But the state of Ohio and a cemetery wouldn't let him.

Obergefell and Arthur, both 47, filed suit last week seeking to allow Obergefell to be listed as the surviving spouse on Arthur's death certificate and for Arthur's marital status to be noted on the document. Arthur has amyotrophic lateral sclerosis, often called Lou Gehrig's disease, and is days or weeks from death, Obergefell said.

A federal court judge ruled Monday that Arthur's death certificate could be filed as Arthur and Obergefell wished, a ruling that gay marriage supporters say energizes their pledge to overturn Ohio's ban on gay marriage despite U.S. District Court Judge Tim Black stressing that his ruling was specific only to Arthur and Obergefell.

The judge found that the Ohio Constitution "violates rights secured by the ... United States Constitution in that same-sex couples married in jurisdictions where same-sex marriages are valid, who seek to have their out-of-state marriage accepted as legal in Ohio, are treated differently than opposite-sex couples who have been married in states where their circumstances allow marriage in that state but not in Ohio."

Al Gerhardstein, the civil-rights lawyer who represented the couple, successfully argued that Ohio should recognize same-sex marriages from other states because it recognizes opposite-sex marriages from other states, including some banned in Ohio such as marriages between first cousins or involving people too young to marry in Ohio.

"I think this is going to open the door to create a large number of same-sex couples married in other states" to try to change the law, he said.

The issue may have to go back before voters, or lawmakers may have to change it, Gerhardstein said.

Ian James, co-founder of FreedomOhio, hopes to have an issue that would overturn Ohio's gay marriage ban on the November 2014 ballot.

"Ohio is ready to reverse course," James said.

Polls show 10 years after Ohio voters adopted a ban on gay marriage that the majority now would vote to allow it, he said.

"It's about dignity. It's about treating others the way we want to be treated," James said.

But that's not what the law is, and until that is changed — if it is changed — gay marriage is banned in Ohio, Phil Burress said after Black's ruling.

Burress heads Citizens for Community Values, a conservative advocacy group based in Sharonville, Ohio, and he led the campaign for the 2004 Ohio constitutional amendment banning gay marriage.

"Any talk about the momentum (to overturn the gay marriage ban) is absolutely absurd," Burress said. "They will not win."

Without the official designation as Arthur's spouse, Obergefell told the judge he couldn't be buried with Arthur in Cincinnati's Spring Grove Cemetery, a burial ground that dates to 1845. Arthur's family plots are in that cemetery, and his grandfather stipulated that only direct descendants and their spouses can be buried in the family plot. With Black's ruling, Obergefell can be buried next to Arthur.

"We've been beside each other for 20 years. We deserve to be beside each other in perpetuity," Obergefell testified Monday. Arthur's ALS, a progressive and fatal neurodegenerative disease, has no known cure.

The couple flew July 11 to Maryland, where gay marriage is legal, were married on an airport tarmac and returned to Cincinnati.

"It validates our marriage," Obergefell said of Black's ruling.