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Posts for April, 2015

Supreme Court Audio from Today’s Oral Arguments Now Available — Updated With Reactions

Jim Burroway

April 28th, 2015

The Supreme Court has posted audio of today’s marriage oral arguments. The first question investigates whether bans against same-sex marriage violate the Constitution of the United States. You can listen below, or click here to download the file as MP3, Windows Media, or RealAudio.

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The second argument pertains to whether states are obligated under the U.S. Constitution to recognize a same-sex marriage that was lawfully obtained in another state. You can listen below, or click here to download the file.

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UPDATES:

Transcripts for both questions have also been posted at the above links.

Buzzfeed’s resident self-described law dork Chris Geidner summarizes it all this way:

A 5-4 vote in favor of same-sex couples’ marriage rights appears to be the most likely outcome, although Chief Justice John Roberts’ vote shouldn’t be counted out.

But SCOTUSblog’s Kevin Russell weighs whether a compromise ruling might be in the works:

There is some reason to wonder whether the Chief might be angling for a compromise in which the states win the first question (i.e., they do not have to permit same-sex marriages to be performed in their states) but lose the second (i.e., they would have to recognize same-sex marriages performed in other states). It’s very hard to read the Chief, but he did ask questions in the second argument expressing some skepticism over the fact that states don’t, in fact, deny recognition to any marriage that does not conform with state law, except same-sex marriages. And, as I mentioned, Justice Scalia asked questions suggesting he might think there was a reason based in the text of Article 4 that would justify ruling for the couples on recognition but not the right to marry. So one could imagine a potential compromise that would effectively allow same sex couples to get married in states that allow it, have their marriages recognized elsewhere, but not have the Court issue a decision that has broad implications for other kinds of sexual orientation discrimination.

On the other hand, Justice Kennedy’s near silence in the second argument suggests that he did not think that the second question was likely all that important. The only significant question he asked was something like “if we assume states have a sufficiently strong interest that they do not have to allow same-sex marriages in their own state, doesn’t that necessarily mean the states have a strong enough interest to permit them to refuse to recognize same-sex marriages from other states?”

Robert Barnes and Fred Barbash at the Washington Post wondered about the split-the-baby scenario as well:

If states are forced to recognize same sex marriages performed elsewhere, Roberts suggested, it would be “only a matter of time” before same sex marriage settled in as the national norm. It would effectively allow “one state” or a minority of states, to “set policy for the nation.”

At the same time, the Roberts’ line of questioning suggested he did not view that possibility with great alarm, at least as an alternative to a court decision holding that all states must permit same sex marriages within their borders.

But back to the possibility of striking the bans outright, we’ve often looked at Justice Kennedy as the critical swing vote. But is Chief Justice John Roberts another possible swinger? Greg Stoher and Mark Drajem at Bloomberg found his questioning worth noting:

Chief Justice John Roberts directed the bulk of his questions at same-sex marriage proponents during the argument. Although Roberts voted against gay rights two years ago, marriage advocates hold out hope of winning his vote this time.

“If you prevail here, there will be no more debate,” Roberts told Mary Bonauto, the lead lawyer arguing in favor of same-sex marriage rights. Shutting off debate “can close minds.”

He added, “people feel very differently about something if they have a chance to vote on it.” Roberts also said the “fundamental core of the institution is the opposite-sex relationship.”

The chief justice shifted course later, suggesting he was open to joining an opinion that didn’t focus on sexual orientation and instead struck gay-marriage bans as unconstitutional gender discrimination.

“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” Roberts said. “Why isn’t that a straightforward question of sexual discrimination?”

Ohio Man Challenging Marriage Equality Ban Has Died

Jim Burroway

October 22nd, 2013

Sad news this morning:

John Arthur, who flew to Maryland in July to marry his longtime partner Jim Obergefell, touching off a legal battle to force the state of Ohio to recognize their marriage and those of other same-sex couples, died Tuesday at the age of 48.

Mr. Arthur was diagnosed with amyotrophic lateral sclerosis in 2011, and his terminal illness played a prominent role in the couple’s decision to marry and in the ensuing legal battle. He and Obergefell had been a couple since 1992 but decided to marry after the U.S. Supreme Court’s June 26 decision striking down portions of the federal Defense of Marriage Act.

…Although he was bedridden in the last months of his life, the publicity from his court case gave him a link to the outside world as hundreds of people sent gifts, letters and cards of support. Known throughout his life for a sense of optimism and an equal sense of the absurd, Mr. Arthur saw both in the attention their story garnered. “It’s been a swell of anonymous support,” he said in August. “It’s truly the supporters who are seeking us out to congratulate us and acknowledge us and give us words of support and thanks.”

Soon after they married in July, the Cincinnati couple filed a lawsuit in Federal District Court challenging Ohio’s refusal to recognize same-sex marriages from other states. Judge Timothy Black issued an injunction requiring the state of Ohio to list the couple as married on Arthur’s death certificate.

Federal Judge Orders Recognition of Second Ohio Same-Sex Marriage

Jim Burroway

September 4th, 2013

A U.S. District Judge has ordered that the state of Ohio and local officials to recognize the marriage of a male couple who had married out of state. The case involves William Herbert Ives and David Michener, residents of the Cincinnati suburb of Wyoming Township, who had been together for eighteen years and were raising three children. They had married in Delaware on July 22. Ives died suddenly on August 27. Judge Timothy Black ordered the state to recognize the couple’s marriage on the state’s death certificate:

Black ruled that Ohio Attorney General Mike DeWine and other state officials are restrained from enforcing Ohio’s voter-approved ban on same-sex marriages. He also ruled that Cincinnati officials cannot accept a death certificate for Ives unless it records his status as married and lists Michener as his surviving spouse.

Judge Black also ruled Michener can join the lawsuit filed by John Arthur and James Obergefell, the Cincinnati couple who had flown to Maryland to marry soon after the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act. Arthur is dying of amyotrophic lateral sclerosis (also known as Lou Gehrig’s Disease). Judge Black issued a temporary restraining order requiring the state to list the couple as spouses in the event of Arthur’s death.

Judge grants injunctive relief to Ohio married couple

Timothy Kincaid

July 22nd, 2013

John Arthur and Jim Obergefell married last week in Maryland. It is a marriage that is doomed to be short, as Arthur has ALS and is not expected to live much longer.

Upon returning, they sued in Federal Court to have Ohio, their home state, recognize their marriage. In 2004, voters amended the Ohio Constitution to limit recognition of marriage to opposite-sex couples.

Today Federal Judge Timothy S. Black ordered that the State of Ohio recognize the marriage and list the couple as married on Arthur’s death certificate.

This Court finds that Plaintiffs have established by clear and convincing evidence their entitlement to injunctive relief. Accordingly, Plaintiffs’ motion for a temporary restraining order (Doc. 3) is GRANTED, and a temporary restraining order shall issue by separate order, directing, inter alia, that the local Ohio Registrar of death certificates is hereby ORDERED not to accept for recording a death certificate for John Arthur whichdoes not record his status as “married” and/or does not record James Obergefell as Mr.Arthur’s “surviving spouse” at the time of Mr. Obergefell’s death, which is imminent.

Ohio recognizes heterosexual marriages in other states that it would not allow to be conducted within its borders (first cousins, for example) provided that the marriage was legal where conducted. While this order is not a ruling on the merits of the case, it seems a foregone conclusion that Judge Black will find for Arthur and Obergefell when this case is determined.

Federal Judge Orders Ohio Officials To Recognize Gay Couple’s Marriage

Jim Burroway

July 22nd, 2013

In as stunningly swift development, a Federal Judge has issued a temporary restraining order requiring Ohio state officials to recongize the marriage of John Arthur and Jim Obergefell, who were married two weeks ago in Maryland. Federal District Judge Timothy Black ordered Ohio officials to recognize the Cincinnati couple’s out-of-state marriage just as they recognizing marriges performed in other states even when those marriages cannot be performed in Ohio:

Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example,under Ohio law, out-of-state marriages between first cousins are recognized by Ohio,even though Ohio law does not authorize marriages between first cousins. Likewise,under Ohio law, out of state marriages of minors are recognized by Ohio, even thoughOhio law does not authorize marriages of minors.

How then can Ohio, especially given the historical status of Ohio law, single outsame sex marriages as ones it will not recognize? The short answer is that Ohio cannot … at least not under the circumstances here.

By treating lawful same sex marriages differently than it treats lawful opposite sexmarriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, likely violates the United States Constitution which guarantees that”No State shall make or enforce any law which shall … deny to any person within its jurisdiction equal protection of the laws.

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 Black noted that when the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act, it left in place Section 2, which allows states to refuse to recognize same-sex marriages performed in other states, but:

…the issue whether States canrefuse 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 presentlawsuit, “the state-law shoe” has now dropped in Ohio.

John Arthur is bedridden with ALS, or Lou Gehrig’s Disease, a progressive neurological disease which robs patients with the ability to walk, move, and eventually breath. When the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act, Arthur and Obergefell, partners of 20 years, used donations from friends and relatives to charter a special medical transport plane and fly to Maryland two weeks ago, accompanied by a nurse, two pilots trained in emergency medicine, and Arthur’s aunt, who had been ordained specifically to perform the wedding. They married on the tarmac at an airport in Baltimore and immediately returned to their home in Cincinnati. Last Friday, the couple filed a lawsuit in Cincinnati Federal District Court demanding that the State of Ohio recognize their marriage.

Judge Black limited the order to Arthur and Obergefell only, citing the plaintiff’s “strong likelihood of success on the merits” and Arthur’s declining health for the urgency of his order:

…In addition to the alleged denial of Plaintiffs’ constitutional rights, the Court must also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a temporary restraining order, the official record of Mr. Arthur’s death, and the last official document recording his existence on earth, will incorrectly classify him as unmarried, despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly fail to record Mr. Obergefell as the “surviving spouse,” which status he lawfully enjoys. Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery. He also wants Mr. Obergefell to be buried next to him someday. The family plot directive limits those who may be interred in the plot to descendants and married spouses. Thus, without a temporary restraining order, Mr. Arthur’s burial may be delayed or his remains may have to be exhumed when this case is finally decided.

…Moreover, there is absolutely no evidence that the State of Ohio or its citizens will be harmed by the issuance of an order temporarily restraining the enforcement of these provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will beaffected by such a limited order at all. Without an injunction, however, the harm toPlaintiffs is severe.

[via BuzzFeed]

Ohio Couple Challenges State’s Marriage Equality Ban in Federal Court

Jim Burroway

July 22nd, 2013

Last week, John Arthur and Jim Obergefell, partners of 20 years, flew from Cincinnati to Maryland to get married. A trip like that to get married is already complicated enough, but Arthur is in a hospice, suffering from ALS, or Lou Gejrig’s, a neurological disease which, over time, robs patients of their ability to walk, move, talk, and eventually breathe. Aurthur needs around-the-clock care, and a commercial flight was out of the question. After the call went out, friends, family, and total strangers donated aver $12,000 to charter a private plane. They flew to Baltimore, the pilots parked off the runway, and the couple was married on the tarmac. A few minutes later, the couple celebrated with champagne, the pilots climbed back in the cockpit, and the wedding party was back in the sky on the return trip to Ohio.

The Cincinnati Enquirer published a well researched, in-depth story on the couple shortly after they married, illustrating the problems they face in a state which relegates them to legal strangers to each other. Last Friday, Arthur and Obergefell filed suit in Federal Court seeking Ohio’s recognition of their legal marriage. Their attorney, civil rights lawyer Alphonse Gerhardstein, noted some of the absurdities of Ohio’s marriage law:

“(T)he marriages of opposite-sex couples that are legal in other states but would not be allowed in Ohio – e.g., marriages of first cousins or a young partner – are routinely accepted in Ohio if those marriages are legal in the state where they are celebrated,” the suit notes.

The suit seeks a temporary restraining order and injunction, hoping to allow Arthur’s death certificate to reflect that his status at death was “married.” That is more important now, the suit notes, because Arthur is gravely ill.

“It is the final record of a citizen’s life. It must be accurate,” Obergefell said of the death certificate.