By Amanda Lee Myers
CINCINNATI: A federal judge on Friday ruled that a lawsuit seeking to have gay marriages recognized on Ohio death certificates can proceed despite a statewide ban on the nuptials.
Judge Timothy Black rejected a request from state attorneys asking to have a funeral director removed from the lawsuit, a move that essentially would have squelched it.
By allowing Cincinnati funeral director Robert Grunn to remain a plaintiff, the judge allows for his upcoming final ruling in the lawsuit to apply to potentially every gay Ohio couple who married in another state.
In his ruling, he indirectly addressed critics of the lawsuit who have called for his impeachment for encroaching on state’s rights, among other allegations.
“Despite the fact that voters may support a given law, rights protected by the U.S. Constitution can never be subordinated to the vote of the majority,” the judge wrote.
The lawsuit originally was filed by and would have applied only to two gay Cincinnati couples who married over the summer in other states. One spouse in each couple recently died, and the surviving spouses sought to have them recognized on death certificates as married for practical burial purposes and symbolic ones.
The judge issued temporary orders granting their requests, saying that the couples deserved to be treated with respect and that Ohio law historically has recognized out-of-state marriages as valid as long as they were legal where they took place. He cited marriages between cousins and those involving 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 judge wrote in July. “The short answer is that Ohio cannot.”
When Grunn was added to the lawsuit as a plaintiff in September, his attorneys asked the judge for a broader ruling to require Ohio’s health department director to order all funeral directors and coroners to list gay clients as married if they were legally wed in other states.
The judge is expected to issue that decision in December.
He considered lengthy arguments earlier this week on whether to allow Grunn to remain a plaintiff.
The state’s attorneys argued that Grunn’s constitutional rights aren’t affected by the ban, that he has no standing in the matter because he doesn’t have a close relationship with future clients who could be affected and that he has no reason to believe he would be prosecuted for documenting his gay deceased clients as married.
The judge agreed in his ruling that Grunn’s constitutional rights weren’t affected but found that he could remain on the case for several reasons, including a reasonable possibility that he could face prosecution and that he can establish a close relationship with future clients.