John Arthur is dying. He is in the terminal stages of Lou Gehrig’s disease and has entered hospice care. Arthur is also gay, and in a 20 year relationship with a man named Jim Obergefell. Because the couple’s home state of Ohio will not allow them to marry, Arthur and Obergefell recently flew to Maryland together and were legally married on the tarmac — just weeks after the Supreme Court’s landmark marriage equality decision in United States v. Windsor. Arthur was unable to rise from his hospice bed.
In his final days, Arthur wants to honor his commitment to his husband. He wants his own death certificate to list Obergefell as his “surviving spouse.” And he wants to die knowing that his partner of 20 years can someday be buried next to him in a family plot bound by a directive that only permits his lawfully wedded spouse to be interred alongside him. And, on Monday, a federal judge ruled that Arthur should indeed have the dignity of dying alongside a man that Ohio will recognize as his husband.
And now, Ohio Attorney General Mike DeWine (R) wants to take that dignity away from Mr. Arthur. The day after a judge issued a temporary restraining order requiring Ohio to list Arthur’s husband as his “surviving spouse” on his death certificate, DeWine announced that he would appeal this decision and try to strip a dying man of his final wish.
There are marriage equality cases with sweeping national implications. This is not one of them. The judge’s order is limited exclusively to Arthur and Obergefell. Indeed, as the judge explains, “there is absolutely no evidence that the State of Ohio or its citizens will be harmed by the issuance” of an order requiring Ohio to acknowledge the two men’s marriage. “No one beyond Plaintiffs themselves will be affected by such a limited order at all.”
There are also marriage equality cases where a great deal of money is at stake. But this is not one of those either. In Windsor, plaintiff Edith Windsor sought $363,053 in estate taxes she was forced to pay because the federal government would not acknowledge her marriage to a woman. Arthur, by contrast, hardly has an estate to tax. He and his husband had to raise donations to cover the cost of their flight to Maryland.
Yet, while Ohio has nothing to gain from refusing to comply with the judges’ order, Arthur and Obergefell have a tremendous amount to lose. Thanks to DeWine’s appeal, Arthur will spend his last days unsure whether he and his husband can someday lie together in his family burial plot. The two men’s final moments will be poisoned by uncertainty over their lawsuit. And Obergefell will likely be forced to spend his first weeks as a widower caught up in discussions with his lawyers about the litigation itself. The couple also could lose their case. Most of the judges on the appeals court that will hear their case are Republicans.
There is a common refrain among marriage equality’s opponents that discrimination is necessary to remove some kind of “threat” equality poses to straight couples’ marriages. This case is a put up or shut up moment for these voices. Who, exactly, will divorce because Ohio will acknowledge one gay couple’s marriage? What strife will result when Obergefell someday is laid to rest next to Arthur? Where is the wife that will leave her husband because Arthur died alongside his? Who does DeWine think he is serving by filing this appeal?
Someday very soon, Obergefell will go home, lie in an empty bed, and confront for the first time the prospect of a life without his husband. In that moment of loss, he believes he will find some comfort if the State of Ohio acknowledges that he feels the same pain that he would have felt if he were married to a woman. That’s what DeWine wants to take away. And it will gain the people of Ohio nothing.
A spokesperson for DeWine clarifies that he does not intend to appeal this temporary order because, the spokesperson says, such an order is not generally appealable. Nevertheless, DeWine also plans to “continue to defend Ohio’s constitutional amendment and law banning same-sex couples from marrying and banning the state from recognizing such marriages,” according to BuzzFeed’s Chris Geidner.
In other words, while DeWine does not plan to appeal the judge’s recent temporary order, he still plans to put up a full legal fight against Arthur and Obergefell’s right to be permanently recognized by Ohio as husbands.