Tuesday, July 23, 2013

Updated: On the fall of DOMA, and till death do us part

Two weeks ago, John Arthur and Jim Obergefell flew from their Ohio home to Maryland to marry. They did it in a chartered plane with speciality medical equipment, because John is dying of ALS. Upon return to Ohio, they sued to have their marriage recognized, so that Jim could be listed as "husband" on John's death certificate.  This is important, because John wants to be buried in a family plot, and non-family members must be spouses to be interred there.  If they are not considered married, then Jim will not be eligible to lie by John's side in the future.

And yesterday, a federal judge ruled in their favor.
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 thoughOhio law does not authorize marriages of minors. 
How then can Ohio, especially given the historical status of Ohio law, single outsame 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 sexmarriages (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 hereby 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 his ‘surviving spouse.'
Marriage matters, even unto death.  And the DOMA decision from SCOTUS is already reverberating.  John Aravosis writes,
I really think the court granted us nationwide gay marriage in all but name. Yes, the way they did it requires us to go state-by-state and strike down individual state-DOMA laws, but that was the genius of the court’s decision. They paid homage to the notion that the court shouldn’t upend the “democratic experiment” taking place in the states, while at the same time coming up with a decision that basically leaves the states no wiggle room to say “no” to marriage equality for gays once the state DOMAs are challenged. 
So yes, it will take longer for us to get marriage in 50 states – thus a nod to the notion that the court shouldn’t change everything nationwide immediately – but at the same time, they pretty much guaranteed that we’ll win. And this Ohio ruling is quite possibly the first evidence of that fact.
Meanwhile, those of you so inclined might put John Arthur and Jim Obergefell on your prayer list.

Update:  the Attorney General plans to appeal, even though the Court's ruling is specific to these two individuals and can have no possible bearing on any other Ohioan.  From Think Progress:
The day after a judge issued a temporary restraining order requiring Ohio to list Arthur’s husband as his “surviving spouse” on his death certificate, DeWine announced that he wouldappeal this decision and try to strip a dying man of his final wish.
There are marriage equality cases with sweeping national implications. This is not one of them. The judge’s order is limited exclusively to Arthur and Obergefell..... 
Yet, while Ohio has nothing to gain from simply complying with the judges’ order, Arthur and Obergefell have a tremendous amount to lose. Thanks to DeWine’s appeal, Arthur will spend his last days unsure whether he and his husband can someday lie together in his family burial plot. The two men’s final moments will be poisoned by uncertainty over their lawsuit.... 
There is a common refrain among marriage equality’s opponents that discrimination is necessary to remove some kind of “threat” equality poses to straight couples’ marriages. This case is a put up or shut up moment for these voices. ...Who does DeWine think he is serving by filing this appeal? 
Someday very soon, Obergefell will go home, lie in an empty bed, and confront for the first time the prospect of a life without his husband. In that moment of loss, he believes he will find some comfort if the State of Ohio acknowledges that he feels the same pain that he would have felt if he were married to a woman. That’s what DeWine wants to take away. And it will gain the people of Ohio nothing.


Ann said...

There is a item at SCOTUSblog that the New Mexico attorney general will not support their laws against same sex marriage.

New Mexico Attorney General Gary King told the state's highest court on Monday that a prohibition on same-sex marriage is unconstitutional.

In written arguments filed with the court, King said the justices should invalidate the state's ban on gay marriage if they agree to resolve the issue in a lawsuit filed by two Santa Fe men who were denied a marriage license.

IT said...

Meanwhile, the Republican party chair restated the GOP opposition to marriage equality as "loving" opposition to faithful gay couples.

It ain't over by a long-shot....

JCF said...

I was tremendously moved last week by the video of John&Jim's marriage. Perhaps even moreso for Jim's part---I know what's like when a family member is dying from ALS a day at a time (RIP, Mom). May John's passing be peaceful, and com-fort to Jim as he goes on...

Justice for ALL families!

Mary Clara said...

It is really worth watching the video. What a beautiful ceremony! So glad it was possible for these two remarkable people to be married at last.

dr.primrose said...

According to the L.A. Times, on Friday, California high court again refuses to stop gay marriages.

The California Supreme Court rejected a request by the San Diego County clerk, who contends Proposition 8 remains California law.

"The California Supreme Court refused for the second time to stop gays from marrying Tuesday, rejecting a bid by a San Diego County official who contends Proposition 8 remains state law.

"In a closed session, the state high court turned down a request by San Diego County Clerk Ernest J. Dronenburg Jr. for a temporary hold or "stay" on same-sex marriages. The court rejected a similar request last week by the sponsors of Proposition 8, the 2008 ballot measure that banned gay marriage."

JCF said...

Off-topic: our friend(of Jake) Leonardo Ricardo has been blog-silent for over 2 weeks. Has anyone heard from him?

Ann said...

July 8 he wrote to a group I belong to with him.