Federal Judge Timothy Black has ruled that Ohio must list David Michener as the husband of William Herbert on the latter’s death certificate. Herbert died suddenly last week. His cremation is scheduled for Wednesday, but cannot go forward without the death certificate, which means that Ohio will have to accept the document with Michener listed as the surviving spouse.
In his ruling, Black noted that the circumstances of Michener and Herbert’s case were not much different from those of John Arthur and Jim Obergefell. Black already ruled that the state has to recognize their marriage.
Specifically, the Court finds, on the current record, that Plaintiff Michener has established a substantial likelihood of success on the merits of his claim that Ohio Rev. Code §3101.01(C) (3)&(4) and Art. XV, §11, Ohio Constitution, violate rights secured by the First and Fourteenth Amendments to the United States Constitution in that same sex couples married in jurisdictions where same sex marriage is valid who seek to have their out-of-state marriage accepted as legal in Ohio are treated differently than opposite sex couples who have been married in states where their circumstances allow marriage in that state but not in Ohio (e.g., consanguinity or age). 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.
Ohio Attorney General Mike DeWine, a Republican, has stated that he will fight the lawsuit and defend Ohio’s anti-gay laws, but even if he does, he will not be able to reverse Herbert’s death certificate.
DeWine may also run into a major problem with this entire thing. Black noted that the Constitution is rather explicit in that the marriages both men entered into in other states must be recognized by Ohio even if the state bans same-sex marriage itself. This is part of the Full Faith and Credit Clause. Additionally, the case Loving v. Virginia ruled that someone does not stop being married when they cross state lines.