by Max Brantley
Jim Obergefell made the case Monday in federal court as to why he believed the state law that does not recognize his marriage should be struck down. With his lawyer at his side, Obergefell told Judge Timothy Black his husband and the man he has been with for more than 20 years is dying.
"He could die any day now. ALS has robbed him of every physical capability. He will die soon...He deserves to die knowing I'm being treated, he's being treated the same as every other couple in the state," said Obergefell in court.
The couple was married after a medical flight to Baltimore for a brief ceremony.
Here's the judge's ruling in issuing a temporary restraining order so that John Arthur's death certificate will say he was married. You may substitute the word Arkansas in the first paragraph without doing harm to the facts.
This is not a complicated case. The issue is whether the State of Ohio can discriminate against same sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated.
The judge cites the recent ruling, the Windsor case from New York, that struck down a major portion of the federal Defense of Marriage Act. That ruling is one of the key elements in a pending federal case with married plaintiffs in Arkansas.
While the holding in Windsor 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. Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the present lawsuit, “the state-law shoe” has now dropped in Ohio.
Judge Black is an Obama appointee, but was recommended for nomination by a bipartisan commission after service as a magistrate judge.