The federal court decision last week ordering Ohio to honor a same-sex marriage that had been performed in Maryland was a legal landmark – the first federal decision to hold that, even if a state is hostile toward creating same-sex marriages, it may still be required to recognize such unions from other states. The opinion relied on a reading of the Supreme Court’s Defense of Marriage Act (DOMA) decision that was probably too simplistic, and it failed to provide a robust and persuasive constitutional explanation for the distinction between recognizing existing marriages and actually creating new ones. (Later in this post, I’ll suggest a better analysis.) Still, the decision signals the opening of a new front in marriage equality litigation, a development I have previously suggested is overdue.
The case involved two Cincinnati men, James Obergefell and John Arthur. Arthur is dying of Lou Gehrig’s Disease, and the couple wanted his Ohio death certificate to list his status as “married,” with Obergefell as his surviving spouse. In early July the couple flew to Maryland in a specially equipped medical jet, were married in the plane as it sat on a tarmac, and returned home the same day.