Taking the Low Road: Ohio's Mike DeWine Fights a Couple's Final Wish

Dr. Martin Luther King, Jr. said famously that the arc of the moral universe is long, but bends toward justice.

An unstated corollary is that those determined to push against that march toward justice do so at their own peril, subjecting themselves to the harsh judgment of history long after their losing battle. Ohio's Attorney General, Mike DeWine, is facing that dilemma right now as he openly fights to keep two married men in Cincinnati from having their marriage recognized in their final weeks together.

In a federal courtroom on Monday, John Arthur and James Obergefell, recently married in Maryland, challenged the application of Ohio's Constitution and statutory ban on same-sex marriage to their union. Citing the Supreme Court's recent decision striking down the Defense of Marriage Act, they argued that the Ohio ban singles them out for discriminatory treatment, denying them many of the benefits, privileges and responsibilities that similarly situated, opposite-sex married couples in Ohio enjoy.

Specifically, John is in hospice, suffering from ALS, and has only a short time left to live. He seeks to have his Ohio death record reflect that his marital status at the time of his death is "married." And he and his partner James ask that James be recorded as his "surviving spouse," pursuant to their valid Maryland marriage. Ohio's application of the marriage ban denies him those rights.

On Monday, U.S. District Court Judge Tim Black issued an order in support of recognizing their marriage, finding that Ohio law, if applied to their circumstances, would directly undermine their federal Constitutional rights. Judge Black concluded that their treatment was especially problematic because Ohio law recognizes opposite-sex couples married in other states even when those marriages would not have been permitted to take place in Ohio (say, marriages of first cousins or of minors).

The case will play out in coming months, but the initial victory marks an historic moment for Ohio.

But sadly, the case also highlights the truly strained and hollow arguments that an Attorney General dedicated to defending discrimination has to muster in court, particularly after the Supreme Court's recent decisions. This will likely play out in courtrooms in other states for some years to come.

First, Attorney General DeWine tried to convince the court that the Plaintiffs' circumstances did not warrant judicial action because the situation is not an "emergency." Mr. Arthur's death certificate could always be modified later, the Attorney General argued.

The Court took that argument to the woodshed: "death is imminent... Dying with an incorrect death certificate that prohibits Arthur from being buried with dignity constitutes irreparable harm." Incredibly, the Court had to explain to the state that if they succeeded in their arguments, "Mr. Arthur's burial may be delayed or his remains may have to be exhumed when this case is finally decided."

Next, the Attorney General has suggested publicly that he must defend states' power to define marriage, as if that power has no federal constitutional limitations. But of course, this was a proposition rejected long ago in the historic case of Loving v. Virginia, where, in circumstances nearly parallel to the Cincinnati case, an interracial Virginia couple, married in another state, was arrested in Virginia for violating its ban on interracial marriage.

Not only did the Supreme Court in Loving conclude that states' decisions regarding marriage must comport with federal equal protection guarantees, even the Commonwealth of Virginia conceded that point in defending the Loving case. Apparently Ohio's Attorney General is now willing to go further than Virginia was decades ago.

Finally, the Attorney General has vowed to fight the case as long as it needs to be fought. He claims that as Attorney General, it is his duty to defend the state's ban, no matter what.

But just one year ago, Attorney General DeWine took the exact opposite stance in a different Cincinnati controversy. In that case, a conservative, anti-tax group whose leaders also have a long history of advocating anti-gay policy, was found to have violated Ohio's "false statements law" during a referendum campaign. The group sued the state, claiming that the law violated their Constitutional rights. (They ultimately lost their case).

But with his own ideological friends and supporters in court, DeWine did not simply choose to defend the law. Instead, he filed a separate brief in the case also questioning the Ohio law. He justified this by pointing out that "[a]n Attorney General has a special duty, as an officer of the Court and representative of the public, to acknowledge when the government's side might be wrong, and especially when a statute might be unconstitutional."

He then explained that "a State's Attorney General may address constitutional problems in several ways. First, he may refuse to defend a statute, and both federal and state attorneys general have taken that path on rare occasion..." He then reiterated that when the Constitution is involved, as Attorney General, it was "his solemn duty... to speak out."

Now, in the very same courthouse, DeWine claims he must defend the law no matter what. The decision to "speak out" for the Constitutional rights of one set of Plaintiffs with whom he shares allegiance, but just one year later, say nothing about John's and James' rights in far more dire circumstances, speaks volumes.

I have called on Attorney General DeWine to follow the leads of California Attorney General Kamala Harris and Pennsylvania Attorney General Kathleen Kane, and cease his quest to deny recognition of John's and James' marriage by enforcing an unconstitutional law. But if he doesn't wish to give them credit, he can simply adhere to the very legal principles he espoused one year ago when his own friends were in trouble.

Happily, doing the right thing legally in this case also leads to the most just result: allowing this loving couple to live their final weeks together with dignity, and under the equal protection of the law.