In a case with heartbreaking facts, U.S. District Judge Timothy Black, sitting in Cincinnati, has ordered the registrar of vital statistics to classify a man as married who was flown to Maryland in a medically equipped jet so that he and his partner could marry before his death. Judge Black noted that John Arthur, who suffers from ALS or Lou Gehrig’s disease, is expected to die soon. Mr. Arthur ‘s spouse – James Obergefell – obtained a temporary restraining order (TRO) on Monday ordering the Ohio Registrar of death certificates not to accept one for Mr. Arthur unless it lists him as married and Obergefell as his surviving spouse.
The marriage earlier this month after a 20-year partnership and the litigation were apparently triggered by Arthur’s wish to be buried in his family plot and for Obergefell to later be buried next to him. The family document governing the burial plot, however, limits who may be buried there to spouses and descendants. Unless the death certificate lists Obergefell as the surviving spouse, the couple’s wish to be buried in the same plot could be impossible to achieve.
In ruling, Judge Black found that Obergefell was likely to succeed on the merits of his claim that Ohio’s refusal to recognize out-of-state same-sex marriages – when it recognizes all other out-of-state marriages that were lawful where performed- violates the Equal Protection Clause, citing United States v. Windsor. Judge Black also noted that the threat of irreparable harm was an even stronger factor than likelihood of success in considering whether to issue a TRO, and described the harm to the plaintiff couple as extreme, while the harm to the state or any other citizen was non-existent.
The complaint named state and local officials as defendants. Lawyers for the state opposed the motion for a TRO, but the City of Cincinnati declined to defend the constitutionality of the state law banning recognition of same-sex marriage.