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updated: 12/18/2013 10:51 AM

Federal judge to hear Ohio gay marriage fight

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Associated Press

CINCINNATI -- Both sides of a fight over whether gay marriage should be recognized on Ohio death certificates despite a statewide constitutional ban were set to argue their cases in front of a federal judge in Cincinnati.

On one side are the two gay Ohio men who successfully got Judge Timothy Black to order their recently deceased spouses to be listed as married on their death certificates. They want that right afforded to all same-sex couples in Ohio who, like them, married in other states that allow gay marriage.

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"This case is about love surviving death," their attorney, Al Gerhardstein, wrote in court documents. "The last record of a person's life on Earth should accurately state if the decedent is married and accurately name the surviving spouse."

Gerhardstein will ask Black to declare that Ohio's ban on gay marriage is a violation of constitutional rights and order funeral homes and coroners to document the marriages of gay couples on death certificates.

Attorneys for the state argue that recognizing gay marriages on death certificates would violate state law and fly in the face of the millions of voters who decided in 2004 to ban same-sex marriages.

"The basic nature of this fundamental institution (of marriage) should be established by the people of Ohio and not by select federal judges," the state's attorneys wrote in court filings.

Black will hold a hearing on the issue Wednesday but he is not expected to issue a ruling. He said he plans to do so by the end of the year.

Previously, Black has sided with Gerhardstein in matters limited solely to the two recently widowed gay men, who both live in Cincinnati.

Black wrote that the surviving spouses 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 August. "The short answer is that Ohio cannot."

The case has drawn attention in other states, including helping spark a similar but much broader lawsuit in Pennsylvania, which also does not permit gay marriage. Black's decision also has irritated some conservative groups and lawmakers in Ohio, with one Republican state legislator calling for Congress to impeach him.

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