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Gay marriage: 'Til death do us part

A federal judge in Ohio declared it unconstitutional to leave off the names of same-sex spouses on death certificates when the couples were legally married.
Jim Obergefell, John Arthur, Paulette Roberts
In this July 11, 2013 file photo, Jim Obergefell, left and John Arthur, right, are married by officiant Paulette Roberts, rear center, in a plane on the tarmac at Baltimore/Washington International Airport in Glen Burnie, Md.

Ohio may not yet allow same-sex couples to exchange marriage vows; but the Buckeye State will honor the well-known final phrase.

On Monday, federal Judge Timothy Black declared it unconstitutional to leave out the names of same-sex spouses on death certificates when the couples were legally married outside of Ohio. Although the ruling was narrow, the language of the opinion was sweeping, and could lead to overturning the state’s nearly 10-year-old ban on same-sex marriage.

The ruling contradicts in part a 2004 voter-approved amendment that bans same-sex marriage in the state of Ohio and prevents the state government from recognizing such unions performed elsewhere.

"The question presented is whether a state can do what the federal government cannot - i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004)," said Black, as quoted by the Associated Press. "Under the Constitution of the United States, the answer is no."

Black referred to Justice Antonin Scalia’s strong dissent in the June Defense of Marriage Act (DOMA) ruling, when the conservative justice warned that the decision to strike down the federal anti-gay-marriage law would create an untenable situation whereby state bans on same-sex marriage could not hold up. The Supreme Court left it to the states to decide for themselves whether to recognize marriage equality. In his conclusion for the court, Justice Anthony Kennedy presented a rationale rooted not only in federalism, but also in the tenets of human rights and basic dignity, a word repeated numerous times in his opinion.

“No one should be fooled,” wrote Scalia. “It is just a matter of listening and waiting for the other shoe.”

Since then, couples have filed dozens of constitutional challenges to bans across the country, and gay couples began marrying in six states, including (as of Friday) the very conservative Utah. Scalia had predicted the DOMA ruling would open the floodgates for a number of legal challenges to state bans against same-sex marriage. And Monday’s ruling, said Judge Black, was part of that prediction’s realization.

“Once you get married lawfully in one state, another state cannot summarily take your marriage away,” wrote Black.

The Ohio decision comes on the same day a federal judge in Utah upheld the effect of his ruling, which allowed gay couples to begin marrying in that state last Friday. Utah attorneys have requested an appellate court to issue a temporary halt on same-sex marriages while the appeals process plays out.

Last week, New Mexico’s state Supreme Court declared marriage equality the law of the land in that state, bringing to nine the total number of states that have welcomed same-sex nuptials in 2013.

Perhaps Black was right; Scalia’s other “shoe” has dropped.