Ohio voters spoke nine years ago. They added to the state constitution a provision banning gay marriage. Need more be said, beyond efforts to place on the ballot next year an issue to overturn the prohibition? Judge Tim Black of the federal district court in Cincinnati thinks so, and his reasoning carries a compelling quality.
On Monday, the judge issued a temporary restraining order stating that the death certificate of John Arthur, expected to die soon from ALS, should list him as “married,” with James Obergefell as the “surviving spouse.” The two were married in Maryland, and Arthur wants Obergefell eventually to be interred in his family’s cemetery, which is restricted to family and spouses.
The Ohio attorney general’s office cited the state constitution and argued that the judge must refuse the request to recognize the marriage. Judge Black found the question isn’t so easy, the will of state voters having to pass the equal protection test of the U.S. Constitution. He argued, reasonably, that the state fell short, in part, because it already accepts as valid out-of-state marriages of minors and first cousins, which are not authorized here.
His thinking flowed logically to the question: On what basis then deny gay couples, legally married elsewhere, the same recognition?
For years, the culture held that marriage is between a man and a woman. Few questioned otherwise. That view now is changing. So much so that legal challenges are surfacing, leaving judges hard pressed to say why a gay couple should be denied the same opportunity to make a lifetime commitment and gain all that goes with it.