A federal judge is considering whether to allow a funeral director to remain on a lawsuit that seeks to have gay marriages recognized on Ohio death certificates despite a statewide ban, saying after a lively court hearing in Cincinnati on Wednesday that he would act quickly in the matter.
Judge Timothy Black heard arguments from the state attorney general's office and the civil rights attorney who filed the lawsuit in July, originally on behalf of one gay couple in Cincinnati who worried that they couldn't be buried next to each other if their out-of-state marriage wasn't recognized on their death certificates.
The addition of Cincinnati funeral director Robert Grunn to the lawsuit expanded the litigation to all gay couples in Ohio who have married in other states.
If Black removes Grunn from the case, his final ruling in the matter— expected in December — would only apply to couples named in the litigation, currently only two.
Grunn has told The Associated Press that he wants to do what's right and recognize gay married couples as such on death certificates without fear of prosecution in light of the state's ban on gay marriage.
The state's attorneys argue that Grunn's constitutional rights aren't affected by the ban, that he has no standing in the matter because he doesn't have a close relationship with future clients who could be affected and that he has no reason to believe he would be prosecuted for documenting his gay deceased clients as married.
"There's no credible threat of prosecution in this case," Bridget Coontz argued for the attorney general's office. "This is a section of Ohio law that has not been enforced against anyone to the state's knowledge."
Black then implied that it would not be difficult to find a county prosecutor in the state willing to initiate such a prosecution and asked Coontz if Attorney General Mike DeWine would be willing to disavow such a possibility.
She said that was not possible.
At one point, Black questioned Coontz's argument that every gay couple in Ohio with a valid, out-of-state marriage should have to get court approval if they want to be listed as married on their death certificates.
"You do it one by one as people die?" Black said. "Who better to raise this issue as to the death certificate of the same-sex couple than a funeral director who services, in large part, the gay community?"
Al Gerhardstein, the attorney who filed the lawsuit, told Black that Grunn has every reason to fear prosecution for documenting gay clients as married and needs a court order for protection.
Black has previously ruled in the favor of the two gay married couples named in the lawsuit, who each experienced a recent death. Black issued temporary orders for both of them to be listed as married on their death certificates.
In his ruling, Black said the couples deserved to be treated with respect 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 in July. "The short answer is that Ohio cannot."