September 4, 2013
CINCINNATI — A recently deceased gay Ohio man must be listed on his death certificate as married and his husband must be listed as his spouse despite Ohio's gay marriage ban, a federal judge has ordered.
Judge Timothy Black's order Tuesday came just hours after attorneys asked him to rule quickly so that William Herbert Ives, 54, is listed as married on his death certificate before being cremated on Wednesday.
"On this record, there is insufficient evidence of a legitimate state interest to justify this singling out of same-sex married couples given the severe and irreparable harm it imposes on David Michener," Black wrote, pointing out that the request was made "to bring closure to the family in a manner that respects their marriage."
Michener and Ives had been together for 18 years and have three adopted children. They married in Delaware on July 22, but Ives died unexpectedly a week ago.
Black is the same judge who issued an order last month preventing state officials from enforcing their ban on gay marriage against another Cincinnati couple as one of them nears death.
That order prevents officials from recording John Arthur, who's dying of Lou Gehrig's disease, as single on his death certificate and not listing his husband, James Obergefell, as his spouse. The pair married in Maryland in July.
The couple sued to have their out-of-state marriage recognized in Ohio before Arthur's death so they can be listed as spouses on his death certificate and be buried next to each other in a cemetery that only allows descendants and spouses in family plots.
Black ruled that Arthur and Obergefell deserve to be treated with dignity and that 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."
Arthur and Obergefell, both 47, say they've been in love for more than 20 years and "very much want the world to officially remember and record their union as a married couple," according to their lawsuit.
Michener is joining that lawsuit, which the three men hope will "set a precedent that will lead to relief for other same-sex couples," the lawsuit says.
Their attorney, Al Gerhardstein, has said that he plans to seek other benefits for his clients and other gay couples in Ohio, such as the ability to file joint tax returns.
Gov. John Kasich's spokesman, Robert Nichols, said the office doesn't comment on pending litigation, "except to say that the governor believes marriage is between a man and a woman."
Attorney General Mike DeWine's spokesman, Dan Tierney, did not return a request for comment Tuesday but said in July that DeWine's office will defend the right of Ohioans to define marriage and that the U.S. Supreme Court has recently emphasized that it is a definition that traditionally lies with states.
"Ohio's voters are entitled to the choice they have made on this fundamental issue," he said.
Ohio banned gay marriage in 2004 with 62 percent of the vote.
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I want my death certificate to reflect that I am married and to list my husband as my surviving spouse... It's much more than a symbolic wish, it's important to ensure that my husband will receive the benefits that he should be entitled to, everything from my veterans flag on my coffin to my pension benefits and the automatic inheritance of property that we own. That's why this recognition is so important and why this is such a big deal.
The fight for our rights is far from over, but this is one more battle won and it's more important than many understand.
It's cruelly ironic, but finally, in death, this couple has found a measure of equality and justice that sadly most of us today would still be denied.
"Fear Eats the Soul"
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