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to Section One | to Arts & Entertainment
posted Friday, December 27 2013 - Volume 41 Issue 52
Court orders Ohio to recognize same-sex out-of-state marriages on death certificates
Section One
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Court orders Ohio to recognize same-sex out-of-state marriages on death certificates

by Mike Andrew - SGN Staff Writer

A federal judge ruled on December 23 that Ohio must recognize legal same-sex marriages from other states, and therefore issue death certificates that list the deceased partner as 'married' to the survivor.

Judge Timothy Black, an Obama appointee, also wrote in his opinion that Ohio's ban on same-sex marriages is unconstitutional, but limited the effect of his ruling only to death certificates.

While the ruling appears to be limited in scope, listing a same-sex spouse on the death certificate may have important implications for pension survivor benefits, whereby a surviving spouse - but often not a domestic partner - continues to receive a portion of their spouse's earned benefits.

In a lengthy decision, the judge said that 'once you get married lawfully in one state, another state cannot summarily take your marriage away.' He added that the U.S. Constitution recognizes the right to remain married as a fundamental liberty.

Black ruled in a case brought by John Arthur and Jim Obergfell. The couple had been together for more than 20 years, before they married in Maryland in July. Arthur, dying of ALS, or Lou Gehrig's disease, applied to Black to be listed as Obergfell's spouse on his death certificate. The couple also filed a lawsuit challenging Ohio's refusal to recognize out-of-state same-sex marriages.

In July, Black issued a case-specific ruling ordering the state to list Arthur and Obergfell as spouses. Arthur died in October.

On the broader issue, Black stated in his December 23 ruling that the case was not about marriage, but about 'the right to remain married.'

Ironically, Black cited U.S. Supreme Court Justice Antonin Scalia's dissent in USA v. Windsor, the case in which the Supreme Court struck down DOMA. The majority's decision, Scalia wrote in June, would lead to a rash of state challenges. Black said the prediction came true and now the lower courts must apply the high court's ruling.

'The question presented is whether a state can do what the federal government cannot - i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004),' Black said in reference to the year Ohio's Gay marriage ban passed.

'Under the Constitution of the United States, the answer is no.'

'The Court's ruling today is a limited one,' Black cautioned, 'and states simply, that under the Constitution of the United States, Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates, just as Ohio recognizes all other out-of-state marriages, if valid in the state performed, and even if not authorized nor validly performed under Ohio law, such as marriages between first cousins, marriages of certain minors, and common law marriages.'

Then, in language reminiscent of Judge Robert Shelby's ruling three days before, striking down Utah's ban on same-sex marriages, Black cited the Fourteenth Amendment to say that states may not refuse to recognize legal Gay and Lesbian marriages.

'That is, once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution. U.S. Const. amend. XIV, ยง 1,' he wrote.

While Ohio voters in 2004 opposed Gay and Lesbian marriage, as Black noted in his opinion, recent polling shows a narrow majority in favor of equality. According to a PPP poll taken in August, 48% of respondents support marriage equality, while 42% remain opposed.

Pollsters also found that 69% of Ohioans support either marriage (44%) or civil unions (25%) for same-sex couples, including a majority (54%) of Republican voters. Twenty-seven percent of respondents said that there should be no legal recognition of same-sex relationships.

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