“A federal judge in Ohio ordered state officials Monday to recognize the marriage of two men that was performed in Maryland on the death certificate of an Ohio resident in hospice care who the judge says ‘is certain to die soon.’
“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,’” Judge Timothy Black wrote in granting the couple a temporary restraining order Monday. The order is in effect until 5 p.m. Aug. 5, unless the court extends the order at a later date.”
From the moment the DOMA decision was announced, it was widely expected that it would lead to further challenges against states that ban same-sex marriages. This particular case hinges on what is commonly called the Full Faith and Credit Clause of the US Constitution.
The full text of the clause is as follows:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
What marriage equality proponents argue is that a same-sex marriage legally performed in one state must be recognized in all the others, regardless of whether the other states allow same-sex marriage. This is a strong argument from a legal standpoint and though the Supreme Court hasn’t ruled on this either way, the recent decision on DOMA bodes well for marriage equality supporters.
After reading the entire order, I think that the plaintiffs stand on especially strong ground when it comes to Ohio law. The judge points out that even though Ohio bans marriages involving minors and first cousins, it will recognize both type of marriages if they are legally performed in an other state.
So then the question becomes whether Ohio is justified in singling out same-sex marriages when comes to official state recognition. To this the judge says that the Equal Protection Clause prevents the state from picking and choosing what out of state marriages that conflict with Ohio law they can recognize.
It’s important to note that this is just an order, and is not a ruling in itself. There will likely be a trial, and a decision that will probably be appealed all the way to the Supreme Court. But given that one of the plaintiffs is dying and the legal strength of their case, the judge saw it best to issue the order as soon as possible. So while the plaintiffs will have their marriage recognized, it may take years for this case to be definitively resolved.