The lawsuit challenging Ohio’s constitutional amendment banning same-sex marriage has taken a new turn, as a widower has joined the case and been afforded the same relief as the couple currently suing. David Michener’s husband, William Herbert, died unexpectedly last week of natural causes, and Federal Judge Timothy Black has already ruled that Ohio must issue a death certificate for Herbert that recognizes Michener as his husband and surviving spouse.
Herbert’s cremation is scheduled for Wednesday and cannot proceed without the death certificate. This means that Ohio will have to accept a legal document recognizing a same-sex marriage this very week.
Black pointed out that the circumstances for Michener are no different than for the original plaintiffs John Arthur and Jim Obergefell. Arthur is dying of ALS, and a restraining order remains in effect such that when he passes, his death certificate must recognize his marriage to Obergefell. Black explained that not recognizing these couples’ out-of-state marriages violates their constitutional rights:
Specifically, the Court finds, on the current record, that Plaintiff Michener has established a substantial likelihood of success on the merits of his claim that Ohio Rev. Code §3101.01(C) (3)&(4) and Art. XV, §11, Ohio Constitution, violate rights secured by the First and Fourteenth Amendments to the United States Constitution in that same sex couples married in jurisdictions where same sex marriage is 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 (e.g., consanguinity or age). 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.
The decision bodes well for all Ohio same-sex couples. If not recognizing an out-of-state marriage is unconstitutional for purposes of death certificate, it would stand that the same is true for all other purposes. Ohio Attorney General Mike DeWine (R) has expressed his intent to fight this lawsuit and defend Ohio’s anti-gay laws, but he will not be able to undo Herbert’s death certificate recognizing his surviving spouse.
(HT: Kathleen Perrin.)