A federal judge in Ohio has issued a temporary order requiring the state to recognize the union of a gay couple who legally married in Maryland while one of the spouses in the relationship dies from an incurable disease.
On Monday, U.S. District Judge Timothy Black placed an order temporarily restraining state officials from enforcing the state’s constitutional ban on same-sex marriage for — and only for — a Cincinnati, Ohio, gay couple suing the state to recognize their marriage.
Black issued the two-page decision on the basis that the couple’s case is likely to succeed because Ohio’s same-sex marriage ban — passed by Ohio voters in 2004 — violates the couple’s First and Fourteenth Amendment rights under the U.S. Constitution. The judge also said the couple will suffer “irreparable harm” without an injunction.
“On this record, there is insufficient evidence of a legitimate state interest to justify this singling out of same sex married couples given the severe and irreparable harm it imposes on these Plaintiffs,” Black concludes.
The judge takes special note that Ohio recognizes out-of-state marriages for straight couples that can’t be legally performed within the state — such as opposite-sex marriages entered into by first cousins or minors — yet still won’t recognize out-of-state marriages for gay couples.
The couple in case is James Obergefell and John Arthur, who after being together more than 20 years married in Maryland following the U.S. Supreme Court decision last month striking down the Defense of Marriage Act.
Arthur suffers from amyotrophic lateral sclerosis (ALS,) also known as Lou Gehrig’s disease, which has no known cure and is fatal. He’s currently a hospice patient.
The couple flew to Maryland on July 11 in a special jet equipped with medical equipment and a medical staff to serve Arthur’s needs. They married in the plane as it sat on the tarmac and returned to Cincinnati the next day. They filed their lawsuit — known as Obergefell et al v. Kasich et at — on Friday.
Black’s order bars Gov. John Kasich and other state officials from enforcing Ohio’s ban on same-sex marriage with respect to this couple. Additionally, the order prohibits the local registrar from accepting a death certificate for Arthur if it doesn’t recognize him as married at the time of his death and doesn’t designate Obergefell as his surviving spouse. The order expires on Aug. 5, unless it is extended by the parties and the court.
State officials have the option of appealing the decision to a higher court. Connie Wehrkamp, a Kasich spokesperson, had a little to say about the order after it was issued.
“I can’t comment on the pending litigation except to say that the governor believes marriage is between a man and a woman,” Wehrkamp said.
Nan Hunter, a lesbian law professor at Georgetown University, was optimistic the order would stand on appeal because it’s narrowly crafted.
“I think it is likely to stand,” Hunter said. “The facts are extraordinarily sympathetic, and the judge’s order is quite narrow and limited. This is the kind of case that probably has much greater potential for changing public opinion than for making any rapid changes in Ohio state law.”
Jon Davidson, legal director for Lambda Legal, said he expects proceedings in the case to go forward and state defendants to put up a fight to protect the marriage ban, but predicted the couple would succeed.
“I am optimistic that the judge ultimately will issue a final ruling in the couple’s favor,” Davidson said. “I think he is correct that the state has no adequate justification for refusing to respect marriages same-sex couples have validly entered in other states while it, at the same time, respects other marriages that couples cannot enter in Ohio, such as those entered by first cousins or by minors.”
Davidson said what happens with this case if it reaches the U.S. Sixth Circuit Court of Appeals is less clear because it’s is known as being conservative. However, he said the compelling story of the plaintiff couple may convince judges to issue a favorable ruling toward them.
“While the Sixth Circuit historically has been among the most conservative federal courts of appeal in the country, many conservatives are coming to question arguments that have been used to deny same-sex couples the freedom to marry and the speed at which attitudes are changing is dramatic,” Davidson said. “And, were this to be the next case to reach the Supreme Court, I think some of the crucial justices could well be touched by the devotion and commitment of this brave couple.”