Late last month, a federal judge for the Southern District of Ohio issued an injunction requiring the Ohio Registrar of death certificates to not accept for recording any death certificate showing an Ohio man as "unmarried," and his same-sex spouse as his "surviving spouse," because the men had entered into a valid same-sex marriage in Maryland. While the details provide compelling emotional support for the decision - John Arthur, the man who brought the lawsuit, is in hospice care with ALS and is not expected to live much longer - the judge's decision relied heavily on Ohio's history of recognizing opposite-sex marriages legally performed in other states even though the marriage could not have been legally performed in Ohio. For example, Ohio recognizes marriages of first cousins legally performed in other states, even though first cousins cannot legally marry under Ohio law. Similarly, Ohio recognizes legal marriages of minors from other states, even though Ohio does not permit minors to marry. The judge found this to be a fatal violation of the Fifth Amendment's Equal Protection requirement, because Ohio did not consistently recognize - or refuse to recognize - all marriages legally performed in other states where the same marriage could not be legally performed in Ohio.
Arguably, this decision does not apply outside the jurisdiction of this federal court; as noted in an earlier post, we're still waiting for guidance from the IRS on whether it will recognize a legal same-sex marriage for federal tax purposes even if the couple no longer lives in a state that recognizes that same-sex marriage. So there's still significant uncertainty for employers in states that do not currently recognize same-sex marriages and what they must do with respect to employees who legally entered into a same-sex marriage in another state.