More than one month after the story of same-sex couple seeking recognition of their marriage moved the country, the federal judge that ordered Ohio to observe that union has now done the same for a gay man seeking recognition of his union to his departed spouse.
In a three-page restraining order, U.S. District Judge Timothy Black on Tuesday ordered the State of Ohio recognize the marriage of a Cincinnati couple that married in Delaware in July, but where one person in the relationship unexpectedly died of natural causes last month.
Black ruled that David Michener, the surviving spouse in the relationship, is eligible for the restraining order because of immediate need for action as well as the likely success of his claim that the state constitutional amendment in Ohio barring recognition of his marriage violates the First and Fourteenth Amendments under the U.S. Constitution.
“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 David Michener,” Black writes.
Additionally, the judge allows Michener to join with plaintiff James Obergefell as part of the lawsuit seeking marriage equality in Ohio known as Obergefell v. Kasich.
Michener and his partner, William Herbert Ives, had been together 18 years and adopted three children together. After they lawfully married in Delaware last month, Ives unexpected died of natural causes on Aug. 27.
Ives’ remains are at the funeral home, and his cremation was scheduled for Wednesday. For the cremation to proceed, a death certificate must be issued. However, under current law, Ohio won’t recognize the couples as married. Michener sought a death certificate that lists him as a “surviving spouse” and recognizes him as married.
The judge on Tuesday granted that request through another temporary restraining order that enjoins state officials, including Gov. John Kasich and Attorney General Mike DeWine, from enforcing the state’s ban on same-sex marriage with respect to this couple. The order is set to expire on Sept. 17 unless the court decides to extend it.
Alphonse Gerhardstein, the private attorney representing Michener, said his client is unavailable to answer questions from the media.
“He must cremate his spouse and be strong for his three children,” Gerhardstein said. “That is his focus now and he cannot respond to press questions.”
Dan Tierney, a DeWine spokesperson, said the attorney general declines to comment at this time, but added there’s no way to appeal a temporary restraining order.
Michener is granted a restraining order after the same judge granted an earlier restraining order requiring Ohio to recognize the marriage of Obergefell to John Arthur, who’s terminally ill with Lou Gehrig’s disease.
The couple flew to Maryland in the plane specially fitted for Arthur, married on the Baltimore airport tarmac and returned to Ohio the next day. They sued Ohio to ensure Obergefell would be listed as a surviving spouse on Arthur’s death certificate.
Evan Wolfson, president of Freedom to Marry, said the judge was correct in his order and it demonstrates the need to lift the prohibition on same-sex marriage in Ohio.
“Ohio’s marriage discrimination imposes ‘severe and irreparable harm’ on loving and committed same-sex couples who deserve and need the same respect and legal safety-net as other married couples,” Wolfson said. “Ohioans were stampeded into putting marriage discrimination into their state constitution before they had a chance to really think it through. The amendment violates the U.S. Constitution and thus must fall.”
[h/t] Kathleen Perrin