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Cincinnati Gay Couple Brings Lawsuit Against Ohio Over Gay Marriage Ban – Judge Issues TRO

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Cincinnati, Ohio couple, John Arthur and Jim Obergefell have gone through so much to prove their love for each other in the past 29 years.  And now they are going to go even further prove it again.

Following the Supreme Court’s historic overturning of section 3 of DOMA,  John and Jim made a difficult journey to Maryland to be married.  John suffers from ALS, also known as Lou Gehrig’s disease a terminal illness and is in constant pain. He has been unable to leave the couple’s home since March.  Jim is his primary caregiver.  But despite the fact that John was unable to travel easily the couple persevered with the help of  donations from family members and others, the couple was able to charter a plane that cost $12,700 to fly to Maryland where they wed on the Tarmac before immediately turning around to go home..

The couple is now going even further to prove their love and has filed a federal suit against the state of Ohio challenging that state’s ban on same-sex marriage,

ABC 5 reports:

“The suit, filed by the couple, states the way the law treats marriages between opposite-sex couples is unfairly different from the way it treats marriages between same-sex couples.

‘It’s blatant discrimination,’ said the couple’s attorney Al Gerhardstein. ‘It’s a denial of equal protection.’ The suit points to an example of a marriage between first cousins. In Ohio, it is illegal. But if first cousins go to another state and marry where it is legal, Ohio will recognize their out of state marriage as valid. ‘Equal protection demands that opposite-sex couples and same-sex couples should be treated the same,’ Gerhardstein said in a release. ‘John and James were validly married in Maryland. If they were an opposite sex couple, Ohio would recognize their marriage. Being a same-sex couple is no longer a good enough reason to deny them equal rights.'”

Jim stressed the role that John’s disease played in deciding to file the suit:

“We want nothing more than for our marriage to count in the place we call home,” Obergefell said in a release. “When (John Arthur) dies, his death certificate should reflect our marriage just like the records of all the other married couples in Ohio.

The case, once heard, will come before United States District Court Judge Timothy Black in Cincinnati, the couple’s hometown

 

UPDATE – Judge Timothy S. Black has issues a temporary restraining order against the State of Ohio in the matter in the case of the untimely passing of John Arthur before the case is heard and decided finding for John Arthur and Jim Obergefell.

ORDER GRANTING PLAINTIFFS’ MOTION FORA TEMPORARY RESTRAINING ORDER

This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated.Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example,under Ohio law, out-of-state marriages between first cousins are recognized by Ohio,even though Ohio law does not authorize marriages between first cousins. Likewise,under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors.How then can Ohio, especially given the historical status of Ohio law, single out same sex marriages as ones it will not recognize? The short answer is that Ohio cannot at least not under the circumstances here. By treating lawful same sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that “No State shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.”The end result here and now is that the local Ohio Registrar of death certificates is here by ORDERED not to accept for recording a death certificate for John Arthur that does not record Mr. Arthur’s status at death as “married” and James Obergefell as hi s”surviving spouse.”

In addition to the alleged denial of Plaintiffs’ constitutional rights, the Court must also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a temporary restraining order, the official record of Mr. Arthur’s death, and the last official document recording his existence on earth, will incorrectly classify him as unmarried,despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly fail to record Mr. Obergefell as the “surviving spouse,” which status he lawfully enjoys.Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery.He also wants Mr. Obergefell to be buried next to him someday. The family plot directive limits those who may be interred in the plot to descendants and married spouses.Thus, without a temporary restraining order, Mr. Arthur’s burial may be delayed or his remains may have to be exhumed when this case is finally decided.

See Yankton SiouxTribe v. U.S. Army Corps of Engineers

, 209 F. Supp. 2d 1008, 1022 (D.S.D. 2002)(disruption of human remains can be irreparable harm).Finally, the uncertainty around this issue during Mr. Arthur’s final illness is the cause of extreme emotional hardship to the couple. Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable harm. Furthermore, Mr. Arthur’s harm is irreparable because his injury is present now,while he is alive. A later decision allowing an amendment to the death certificate cannot intermediate the harm to Mr. Arthur, as he will have passed away. Moreover, there is absolutely no evidence that the State of Ohio or its citizens will be harmed by the issuance of an order temporarily restraining the enforcement of these provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will be affected by such a limited order at all. Without an injunction, however, the harm to Plaintiffs is severe. Plaintiffs are not currently accorded the same dignity and recognition as similarly situated opposite-sex couples. Moreover, upon Mr. Arthur’s death,Plaintiffs’ legally valid marriage will be incorrectly recorded in Ohio as not existing.Balanced against this severe and irreparable harm to Plaintiffs is the truth that there is no evidence in the record that the issuance of a preliminary injunction would cause substantial harm to the public.

You can read the court document here in its entirety.

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Will Kohler

Will Kohler is a noted LGBT historian, journalist and owner of Back2Stonewall.com. A longtime gay activist, Will fought on the front lines of the AIDS epidemic with ACT-UP and continues fighting today for LGBT acceptance and full equality. Will’s work has been referenced in notable media venues as MSNBC and BBC News, The Washington Post, The Daily Beast, Hollywood Reporter, and Raw Story,

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