11/17/2014

Sixth Circuit Court of Appeals has issued an opinion upholding same sex marriage bans

In nearly every federal court decision that has examined whether state laws and constitutional amendments banning same sex marriage violate the right of individuals, the courts have invalidated the bans. Last week, the Sixth Circuit Court of Appeals, which sits in Cincinnati and hears appeals from the four states of Ohio, Kentucky, Michigan and Tennessee, bucked the trend and issued an opinion upholding the same sex marriage bans adopted in those four states.

Although the Sixth Circuit decision goes against the wave of federal appellate court decisions overturning same sex marriage bans, it was not unexpected. Many observers of the oral argument that the Sixth Circuit conducted on August 6, 2014 before the 3-judge panel felt that Judge Jeffrey Sutton and Judge Deborah Cook were leaning toward supporting the bans. It was also apparent that the third judge on the panel, Martha Craig Daughtrey, was against the ban. Not surprisingly, that was exactly how the decision came down with the two George W. Bush-appointees voting to reverse lower court holdings that overturned the state bans while the Obama-appointed Daughtrey filed a strong dissent.

Exactly a month before the Sixth Circuit decision was issued, the U.S. Supreme Court had announced that it had chosen not to accept appeals of other circuit court decisions that had struck down same sex marriage bans. Had the Sixth Circuit fallen in line with the other circuits, it is probable that the issue would have never been reviewed by the U.S. Supreme Court. Now, however, with the Sixth Circuit’s decision in direct conflict with the holdings from the other circuits, it is highly likely that the U.S. Supreme Court will review the decision. In fact, some observers believe that the Supreme Court may hear the case this term and issue a decision as early as June, 2015.

What does this mean for funeral directors in Ohio? Nothing has changed. Ohio does not recognize same sex marriage even if the marriage was conducted in a state where same sex marriage is legally recognized. Therefore, when providing funeral services for a deceased same sex partner, the surviving partner does not hold the right of disposition even if he or she were legally married in one of the 35 states which allows same sex marriage. Ohio does not honor that marriage and the Sixth Circuit has upheld the state’s authority not to recognize same sex marriage from other states.

If a same sex couple does ask how they might control each other’s funerals, the answer is with the Appointment of Representative form that Ohio law recognizes. If a same sex partner uses that form to appoint his or her partner to carry out future funeral and disposition arrangements, the partner is then granted the right of disposition. As long as the form is signed and properly witnessed or notarized, it has the legal effect of giving the right of disposition to the representative appointed in the form. This will allow a same sex partner to bestow the right of disposition on the other partner even though Ohio does not recognize their marriage. The Appointment of Representative form is available on OFDA’s website. If any OFDA member has a question regarding this article, please contact Scott Gilligan at 513-871-6332.