CINCINNATI – Two gay men who successfully sued to get their out-of-state marriage recognized in Ohio despite a state ban are at the forefront of what supporters and experts believe will be a rush of similar lawsuits aiming to take advantage of an apparent legal loophole.
John Arthur of Cincinnati, who is dying of Lou Gehrig’s disease, won the right to be listed as married on his death certificate and to have his partner of more than 20 years listed as his surviving spouse.
The federal judge’s order Monday came after Arthur and his partner, Jim Obergefell, sued state and local officials to ensure that they can be buried next to each other in Arthur’s family plot, which is in a cemetery that only allows descendants and spouses.
At least four similar lawsuits are pending in New Jersey, Pennsylvania, Illinois and Nevada. Friday, a Louisville couple filed a federal challenge to Kentucky’s ban on same-sex marriage, contending the state doesn’t treat them and similar couples equally with other married couples.
Ohio banned gay marriage in 2004 with 62 percent of the vote; Arthur and Obergefell, both 47, got married in Maryland July 11 and wanted it recognized in their home state before Arthur’s death.
The couple’s attorney, Al Gerhardstein, plans to request that the pair be able to file a joint tax return and get other benefits that other married couples enjoy. “And I cannot see how they will not be granted,” Gerhardstein said.
In his decision ordering the marriage to be recognized on Arthur’s death certificate, federal Judge Timothy Black said Ohio law historically has recognized out-of-state marriages as valid as long as they were legal where they took place, citing marriages between cousins and 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?” Black wrote.
“The short answer is that Ohio cannot.”
While Arthur and Obergefell have unusual circumstances because of Arthur’s poor health, Black predicted that similar cases soon will emerge as a result of the U.S. Supreme Court’s decision last month to strike down part of an anti-gay marriage law.
While that decision “is ostensibly limited to a finding that the federal government cannot refuse to recognize state laws authorizing same-sex marriage, the issue whether states can refuse to recognize out-of-state same-sex marriages is now surely headed to the fore,” Black said.
In his strong dissenting opinion, Supreme Court Justice Antonin Scalia predicted just that.
“As far as this court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe (to drop),” he wrote. “The majority arms well every challenger to a state law restricting marriage to its traditional definition.”
Harvard Law School professor Mark Tushnet said that hundreds of gay married couples living in states with gay marriage could file lawsuits similar to Arthur and Obergefell’s.
“There’s a social movement here at work,” said Tushnet, who has written about the legal strategy of civil rights lawyers. “And these cases, they’re already beginning to bubble up and almost certainly a fair number of them are going to be decided in favor of the married couples.”
Most of the 35 states that ban or limit gay marriage, if not all of them, recognize lawful marriages performed in other states and that will lend success to other lawsuits, said Camilla Taylor, an attorney who specializes in marriage cases at New York-based Lamda Legal, a national gay rights group.
Phil Burress, president of the Ohio-based anti-gay marriage group Citizens for Community Values, said the decision allowing the gay couple’s marriage to be recognized in Ohio is an isolated one that amounts to “judicial activism” that likely later will be struck down by an appeals court.
“This one man, unelected, appointed by Obama, who wants same-sex marriage, is forcing this upon the rest of the people of Ohio, and he’s violating our state constitution and it’s wrong,” Burress said.
“If they want same-sex marriage in Ohio, then do it the way we did it and go to the polls, and we’ll decide,” he said.
Gay marriage supporters are seeking to get the issue put on Ohio’s ballot next year or in 2016.
Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine – who is named in Arthur and Obergefell’s lawsuit – said this week that DeWine’s office will defend the right of Ohioans to define marriage and that the U.S. Supreme Court emphasized that it’s a definition that traditionally lies with states.
A Pennsylvania couple, Ed Hill, 67, and David Palmer, 65, of Bangor, worry that when one of them dies, the other will have to pay high estate taxes.
The retired couple have been together for more than 25 years and got married in Maine in May because “as seniors, they worried that they might not live to see the day when they could marry at home,” according to their lawsuit, filed July 9.
“Ed and David have talked about moving to another state where their marriage would be recognized and they would have more financial security,” the lawsuit says. “But they do not want to leave their home and community. They want to grow old together in the place where they met 25 years ago.”
Obergefell said that he and Arthur “would be thrilled if this turns into something bigger.”
“I’m honored that we could be at the start of this, and I’m sad that it took John’s health, his impending death, to generate this,” he said. “But simply put, it was the right thing to do.”