Same-sex marriage: Ohio judge opens new frontier for gay activists

A decision by a federal judge in Ohio Monday to grant marriage rights to a same-sex couple residing in a state that does not recognize such unions highlights a new front for gay rights activists seeking to expand rights for couples living in states that are unfriendly to same-sex marriage.

On Monday, US District Judge Timothy Black ruled in favor of John Arthur and James Obergefell, a Cincinnati couple who married in Maryland on July 11 and want the rights they earned in that state transferred to Ohio so that both men can be buried next to each other in the Arthur family plot, which is restricted to direct descendants and spouses. Mr. Arthur is suffering from a disease doctors have diagnosed as terminal.

Maryland is one of 13 states, along with the District of Columbia, that recognizes gay marriage, while Ohio is one of 37 in which it is banned or not recognized. With many of the states that now ban gay marriage not likely to change in the near future, the next wave of challenges could come from legally married same-sex couples seeking to have their marriage rights recognized on their home turf.

"It's the next front for the gay rights movement," says Ben Bishin, a political scientist at the University of California in Riverside who studies the politics of the gay rights movement.

"There aren’t any more states to flip to allow gay marriage on their own, so it’s just a matter of time before we see precisely these sorts of issues play out," he says.

Judge Black’s ruling, a restraining order of the same-sex marriage ban, is temporary and is allowed only to provide the couple with the death certificate required for the burial. It will also provide Obergefell access to federal and state benefits as a surviving spouse.

In his ruling, Black wrote that Ohio's same-sex marriage ban denies the couple equal protection, and that the state already recognizes other out-of-state marriages not authorized to be performed within the state, such as those between first cousins. "How then, can Ohio … single out same-sex marriages as ones it will not recognize?" he asked in his ruling.

President Obama presented a similar argument in late June, after the US Supreme Court issued two landmark rulings on same-sex marriage, allowing couples automatic eligibility for more than 1,100 federal benefits previously denied them. The rulings did not require states with laws against gay marriage to accept unions performed in the 13 states that do, therefore excluding certain benefits from transferring to their new location.

Mr. Obama said that it was his "personal belief" that same-sex marriage rights should be recognized in all 50 states and that "under federal law, [same-sex couples] should be able to obtain the benefits of any lawfully married couple."

Federal benefits vary depending on where couples live, or where they were married. For example, benefits provided by the Departments of Defense and Veterans Affairs both say their rulings are based on where couples are married, while the Internal Revenue Service and Social Security Administration say benefits are based on where the couples reside.

The majority of same-sex couples – 60 percent of an estimated 650,000 – live in states that do not allow same-sex marriage, according to the Williams Institute, a think tank at the University of California in Los Angeles.

The patchwork of state laws also creates complications between states for other legal matters, such as establishing divorce agreements or legal ties to children. It is also unclear if same-sex couples married in states where gay marriage is legal can file joint federal tax returns if they move to states that do not recognize their union.

While this week's Ohio ruling is strictly mandated for the two men in question, it may "open the door to create a large number of same-sex couples married in other states" who want to make their rights transferable to states where the marriages are not recognized, said Al Gerhardstein, the couple's attorney. 

Professor Bishin says that the legal challenge in Ohio "is exactly consistent with the type of arguments people expected to come along for some time" following June’s high court ruling, which was written in a way that left many expecting that finer details involving the issue will be worked out in subsequent court battles.