2L Note Blog: If Not Celebration, Recognition: Windsor’s Push toward Universal Interstate Recognition of Same-Sex Marriages

The summer of 2013 was momentous for Ohio residents John Arthur and James Obergefell. In early July, after more than 20 years together, the couple flew to Maryland to be married. Because a neurological condition was rapidly depriving John of his ability to move and speak on his own, the couple exchanged vows from inside the plane’s cabin. After a mere 56 minutes on the ground, the pilots flew the newlyweds back to their home in Cincinnati.[1]

Just two weeks before John and James married, the Supreme Court issued its landmark decision in United States v. Windsor.[2] The decision overturned Section 3 of the federal Defense of Marriage Act and thereby paved the way for federal recognition of lawful same-sex marriages. But the ruling left untouched the legal framework that allows states to deny recognition to otherwise valid same-sex marriages. Therefore, when John and James returned to Ohio, they reclaimed their unwanted status as single under the laws of the state.

The couple also faced the unsettling prospect that John would soon die.[3] Because of Ohio’s ban on recognition of same-sex marriages, the state would list John’s marital status on his death certificate as “unmarried” and would fail to name James as his surviving spouse. Determined to avoid this quiet nullification of their marriage, John and James filed a federal civil rights lawsuit against the state of Ohio.

Jim Obergefell and John Arthur.  Photograph from gaycitynews.com

Jim Obergefell and John Arthur.
Photograph from gaycitynews.com

On July 22, 2013, federal district court Judge Timothy Black issued a temporary restraining order against the state of Ohio.[4] The order required the state to refuse acceptance of any death certificate for John Arthur that did not list his marital status as married and name James Obergefell as his surviving spouse. In an opinion in support of the order, Judge Black noted that Ohio recognized all opposite-sex marriages that were valid where celebrated. By denying this same standard to same-sex couples only, Judge Black reasoned that Ohio undermined John’s and James’s right to equal protection of the laws.

This note examines the issue of interstate recognition of same-sex marriages anew in light of the Supreme Court’s ruling in Windsor and subsequent lower court decisions such as Obergefell. After exploring the current state of same-sex marriage laws in Part I, Part II examines the legal problems presented by the current state of affairs. A patchwork of marriage and interstate recognition laws forces married same-sex couples to live with uncertainty about the legal status of their marriages as they move about the country.

Author: Charles Becker

Author: Charles Becker, Staff Editor

Part III argues for a sensible solution to this problem that should appeal to both sides of the same-sex marriage debate. Drawing from the district court’s decision in Obergefell, Part III argues that equal protection of the laws requires that states recognize valid same-sex marriages, even if they choose not to allow such marriages under their own laws. A conclusion ties Windsor and Obergefell together, suggesting that the end of the “marriage war” is in sight.


Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

[1] http://news.cincinnati.com/article/20130714/NEWS10/307140009/FORUM-get-married-they-left-Ohio

[2] http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

[3] http://www.fox19.com/story/23754794/john-arthur-in-ohio-same-sex-marriage-fight-passes-away

[4] http://www.washingtonpost.com/r/2010-2019/WashingtonPost/2013/07/23/National-Politics/Graphics/tro_obergefell(2).pdf