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Judge rules gay Ohio couple's Maryland marriage should be recognized

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When John Arthur and Jim Obergefell chartered a private medical jet to Maryland last month to get married — the only safe means of transport for Arthur, who is terminally ill with Lou Gehrig’s disease — the gay couple fulfilled a last wish and set out to leave a lasting legacy.

They returned with their Maryland marriage license to Ohio, which doesn’t recognize same-sex nuptials, and sued.

This week U.S. District Judge Timothy S. Black sided with Arthur and Obergefell, granting a temporary restraining order against Ohio’s 2004 law banning the recognition of same-sex marriages. The immediate practical impact, lawyers said, is that death records would reflect the marriage should Arthur die.

But gay rights leaders as well as same-sex marriage opponents say the ruling could have broader implications. The ruling comes as activists stage a national effort to strike down state bans on gay marriages — an effort that opponents contend tramples on states’ rights. Marriage is governed by state law, but states have traditionally recognized marriages performed elsewhere.

“It’s a powerful decision,” said Brian Moulton, legal director of the Human Rights Campaign, the nation’s largest gay advocacy organization, of the Ohio court ruling.

Mathew Staver, chairman and founder of the Liberty Counsel, a conservative legal group that has argued against same-sex marriage laws across the country, said his group will “definitely be involved” in the Ohio case if it moves forward.

“It certainly does interfere with the state’s rights in terms of their marriage policy,” said Staver, who is also dean of the law school at the Rev. Jerry Falwell’s Liberty University. “Not every marriage is required to be recognized by every state.”

Obergefell and Arthur, for their part, say they are happy to be married and proud to be fighting to ensure other couples won’t face similar struggles in the future. They have been buoyed by Judge Black’s decision.

“It was like the universe saying, ‘Yeah, this needs to happen,’” Obergefell said. “It means that we exist.”

They know their struggle has hit home for many people, something gay rights leaders have noticed as well.

As the Ohio case moves forward — the state is expected to appeal Black’s ruling — it could rise to national prominence, just as a New York woman’s lawsuit against the federal government’s taxing her inheritance from her deceased wife rose all the way to the U.S. Supreme Court. That case led to last month’s decision that a key provision of the federal Defense of Marriage Act is unconstitutional, allowing for federal recognition of same-sex marriages for the purpose of providing federal benefits.

“With litigation, you want the most compelling story, and this is a really compelling story,” said Carrie Evans, executive director of Equality Maryland.

Arthur and Obergefell, who have been together for more than 20 years, wed in a special medical jet on a tarmac at BWI Thurgood Marshall Airport on July 11. Arthur suffers from amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and can't travel without such medical support.

Family and friends helped fund the expensive flight, pitching in to provide the bulk of the $13,600 it cost to charter the jet. Local media covered the couple’s journey, and news of their story spread.

Soon after, a friend put them in touch with a civil rights attorney, and they began considering litigation, Obergefell said.

“It was very quick,” he said in an interview Tuesday.

In their lawsuit against Ohio Gov. John R. Kasich, Ohio Attorney General Mike DeWine and Cincinnati Vital Statistics Registrar Camille Jones, the couple acknowledged that Arthur is likely to die soon and claimed that the state's refusal to recognize their marriage in Maryland, including on Arthur's death certificate, would cause them severe harm.

In his decision, Black wrote that his order restraining the state from enforcing its laws applied to Arthur and Obergefell only, through Aug. 5 or as extended by the court, and said in that limited scope it would not have an affect on Ohio or its other citizens.

However, Black also took aim at the state's current law, saying Arthur and Obergefell “are not currently accorded the same dignity and recognition as similarly situated opposite-sex couples” in Ohio.

Black referred to the recent U.S. Supreme Court decision, and challenged the notion that Ohio could pick and choose which out-of-state marriages to recognize — even among those that would be illegal in Ohio.

Black found that Ohio already recognizes opposite-sex marriages between first cousins and minors that are legal in other states but not in Ohio.

“How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize?” Black wrote. “The short answer is that Ohio cannot ... at least not under the circumstances here.”

The argument is one that is likely to appear in more cases across the country in coming months, said Evans of Equality Maryland. With the Supreme Court case erasing the federal government’s refusal to acknowledge same-sex marriages, such couples have a much stronger 14th Amendment case when they return to their home states and challenge bans there, she said.

“The 14th Amendment states that you cannot treat similarly situated individuals differently,” Evans said.

State Sen. Jamie Raskin, a constitutional law professor at American University who helped lead the push for same-sex marriage in Maryland, said cases like the one in Ohio will continue to appear as gay-rights advocates consider the findings in the Supreme Court’s DOMA ruling, which found “no conceivable reason” for the nation’s block on federal marriage benefits to same-sex couples.

“That holding is the wind behind the sails of the Ohio judge, because it tells him that Ohio needs to demonstrate some valid purpose for withholding recognition,” Raskin said.

Evans said she believes Arthur and Obergefell’s case is the first in which a Maryland marriage license has been used to challenge another state’s laws.

In part because of its possible implications on state marriage laws, same-sex marriage opponents like Staver of the Liberty Counsel have reacted to the Supreme Court’s decision with sharp criticism. They’ve reacted the same way to Black’s decision in Ohio.

Still, state officials have not indicated whether they will appeal Black’s order to the U.S. Court of Appeals for the Sixth Circuit.

Robert Nichols, a spokesman for Kasich, said the governor’s office doesn’t “comment on pending litigation except to say that the governor believes that marriage is between a man and a woman.”

DeWine, the state’s attorney general, had argued in his own response in the case that any ruling in favor of the couple would set a bad precedent — threatening the state's constitutional amendment banning recognition of same-sex marriages that was supported by Ohio's voters.

“Just as Maryland is free to choose to recognize same-sex marriage, Ohio is free to follow tradition,” he wrote.

Not everyone named in the lawsuit is on board with that stance, though.

John P. Curp, the city solicitor in Cincinnati, said the city “will not defend Ohio's discriminatory ban on same-sex marriages.”

In fact, Cincinnati officials named July 11, the day Obergefell and Arthur were married in Maryland, as “John Arthur and James Obergefell Day” in the city, which has a record of passing broader legal protections for gay and lesbian citizens than the state.

For Arthur and Obergefell, the widespread attention to their case has come as a bit of a shock, Obergefell said.

But the support they have received from people all across the country — including from a man in Frederick who lost his father to Lou Gehrig’s disease and thanked the couple for sharing their story — has been a source of strength.

“We’re blown away. We’re thrilled,” Obergefell said.

Copyright © 2014, The Baltimore Sun
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