Created on Tuesday, 03 September 2013 Written by AMANDA LEE MYERS, Associated Press
CINCINNATI (AP) — A man whose husband recently died unexpectedly has joined a legal fight to get gay marriages recognized in Ohio despite a statewide ban.
David Brian Michener, 51, of Cincinnati, asked a federal judge Tuesday to order that his recently deceased husband's death certificate list him as married before his Wednesday cremation and that Michener be listed as his spouse.
Michener and William Herbert Ives, 54, had been together for 18 years and have three adopted children. They married in Delaware on July 22, but Ives died unexpectedly a week ago.
"(Michener) urgently needs to bring closure to the family in a manner that respects their marriage and the wishes of the decedent to be cremated," according to a request filed Tuesday seeking the order.
The judge considering Michener's request is the same one who issued an order last month preventing state officials from enforcing their ban on gay marriage against another Cincinnati couple as one of them nears death.
Judge Timothy Black's order prevents officials from recording John Arthur, who's dying of Lou Gehrig's disease, as "single" on his death certificate and not listing his husband, James Obergefell, as his spouse.
The couple sued to have their out-of-state marriage recognized in Ohio before Arthur's death so they can be listed as spouses on his death certificate and be buried next to each other a cemetery that only allows descendants and spouses in family plots.
In his decision ordering the marriage to be recognized on Arthur's death certificate, Black said that the couple deserves to be treated with dignity and that Ohio law historically has recognized out-of-state marriages as valid as long as they were legal where they took place, citing marriages between cousins and involving minors.
"How then can Ohio, especially given the historical status of Ohio law, single out same-sex marriages as ones it will not recognize?" Black wrote. "The short answer is that Ohio cannot."
Arthur and Obergefell, both 47, say they've been in love for more than 20 years and "very much want the world to officially remember and record their union as a married couple," according to their lawsuit.
Michener is joining that lawsuit, which the three men hope will "set a precedent that will lead to relief for other same-sex couples," the lawsuit says.
Their attorney, Al Gerhardstein, has said that he plans to seek other benefits for his clients and other gay couples in Ohio, such as the ability to file joint tax returns.
Gov. John Kasich's spokesman, Robert Nichols, said the office doesn't comment on pending litigation, "except to say that the governor believes marriage is between a man and a woman."
Attorney General Mike DeWine's spokesman, Dan Tierney, did not immediately return a request for comment Tuesday but said in July that DeWine's office will defend the right of Ohioans to define marriage and that the U.S. Supreme Court has recently emphasized that it is a definition that traditionally lies with states.
"Ohio's voters are entitled to the choice they have made on this fundamental issue," he said.
Ohio banned gay marriage in 2004 with 62 percent of the vote.