Gay Marriage

Judge Rules Ohio Must Recognize Gay Couple’s Marriage for Burial Purposes

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Some families are just the worst.

John Arthur, of Ohio, is dying of ALS, a degenerative nerve disorder. Before he passes away, he and his partner of 20 years, James Obergefell, managed to make it to Maryland to get married to have it legally recognized by the state.

Then they returned home to sue Ohio for recognition. They're not looking for a lot, just for Obergefell to be buried next to Arthur someday once he dies as well. The state and relatives are resistant. So they turned to the courts, and a federal judge agreed. Via the Cincinnati Enquirer:

James Obergefell has lived with the love of his life for 20 years before they married two weeks ago.

They also hoped to be buried next to each other, to spend eternity together, but the state of Ohio and his spouse's relatives won't let him – because he married another man, John Arthur.

Last week, the two men sued Ohio Gov. John Kasich, Ohio Attorney General Mike DeWine and the Cincinnati doctor responsible for approving death certificates. Obergefell and Arthur asked a judge to overturn existing Ohio law – which doesn't recognize same-sex marriage – to allow Obergefell to be listed as surviving spouse on Arthur's death certificate and for it to show that Arthur's marital status at death as married.

A U.S. district magistrate judge agreed, but it's a very limited ruling that only applies to this couple:

Without that official designation as Arthur's spouse, Obergefell told Black, he won't be able to be buried with him in Spring Grove Cemetery. Arthur's family plots are in that cemetery and his grandfather previously stipulated in documents that only the family's direct descendents and their spouses can be buried in the family plot. With Black's ruling, Obergefell can be buried next to Arthur.

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195 responses to “Judge Rules Ohio Must Recognize Gay Couple’s Marriage for Burial Purposes

  1. And speaking of burying, it looks like Anthony Weiner…I mean Carlos Danger was trying to bury his little namesake in a 22-year old coed.

    1. I don’t like how they are calling him a predator for engaging in consensual sexual activity with a 22 year old woman.

      The whole “But I thought we were IN LOVE” canard has to be bullshit. No one could be that stupid, right?

      1. No one could be that stupid, right?

        Only Governors of South Carolina are that fucking dumb.

        1. 22 years old and you think a guy who uses an obvious pseudonym and promises you the moon so you’ll boink him is really going to marry you some day?

          I hope for her sake she’s just playing victim because she wants to get paid.

      2. And his wife doesn’t seem to mind, either.

        1. Of course she doesn’t… she’s used to sleeping on silk sheets.

          1. One imagines that, absent a pre-nup, she could take him to the proverbial cleaners if she wished. “In the style to which she has become accustomed,” and all that.

    2. “If true, the sex chats could potentially damage Weiner’s ambitions of becoming the next New York City mayor.”

      Excellent, this will give New Yorkers a chance to vote for someone scandal-free, like Eliot Spitzer.

      1. A friend of mine thinks Spitzer is a-ok because he was the only one willing to go after Wall Street. I guess Client 9 is to blame for this opinion.

        1. Why, exactly, are you friends with this person?

          /misanthropic Sumerian god

          1. He lives in California. If he didn’t make friends with idiotic, brainless liberals, I’m pretty sure he would have no friends.

            1. Yep.

          2. Eh, he’s a smart guy and is willing to think through and re-evaluate his opinions on things, and he’s forced me to rethink some of mine. It’s nice talking politics with someone I disagree with who doesn’t dissolve into a frothy rage when we disagree.

            1. I don’t want to hear about you and your friends dissolving into a frothy anything, jesse.

            2. It shouldn’t have taken him this long to size up Spitzer, then…

              1. GtG: He has a huge blind spot whenever FIRE sector issues come up. We just got into it about “predatory lending” last night and I think I have him convinced that kids learning what interest is would do more to end vehicle title loans than anything that the consumer credit bureau could do. I consider it a win and keep chipping away.

                sloop: ewww /Teenage Girl

                1. Fight that good fight! You’re a better man than I am.

                  I have to ask: Were mortgages part of the discussion?

                  1. Not this time. The conversation mostly focused on payday loans and vehicle title loans. Mortgages have come up in the past. I’m generally annoyed that people bought homes when it “seemed too good to be true” and he tends to be forgiving that people would’ve gotten suckered into them, but then he’s a (solvent) homeowner and I’m a renter, so we are coming from different places on the topic.

      2. Excellent, this will give New Yorkers a chance to vote for someone scandal-free, like Eliot Spitzer.

        Nah, he’s running for comptroller – which means we’ll get both! I can’t wait to be steamrollered by that pair.

        1. I don’t think he’ll win. But then, I’m usually wrong.

    3. The NYC mayoral election is a good argument for a “None of the Above” option on the ballot. If it wins, they have a new election with different candidates.

      1. Fuck that. I’m voting for Monty Brewster.

  2. Question for you lawyer types: how can this ruling be so narrow as to only apply to this couple? Why doesn’t this set a precedent of some sort?

    1. Sure. But that would seem to be difficult in this case. One way you could do it would be to look at the intensions of the grandfather. Suppose the grandfather knew of this relationship and approved and treated the guy’s partner as a spouse. In that case, the court could just interpret the covenant and rule that when “grandpa said ‘spouse’, he meant to include this guy”. In that case the precedent would be that terms in a burial plot covenant can be interpreted using parole evidence to derive the donor’s intent. That way the case wouldn’t say anything about the State’s legal recognition of marriages.

    2. I think it does offer some precedential support – the point is that Judge Black only ordered that Arthur’s death certificate show him as married, not that Ohio stop all discrimination against gay couples married in valid out of state marriages.

      Generally, courts limit themselves to the facts in front of them, and this is a very preliminary ruling (a temporary restraining order) that was decided without full argument based on the emergency situation of Arthur’s impending death, and was decided by a magistrate judge instead of a sitting district judge. However, Judge Black’s reasoning would apply to all Ohio gay couples with out of state marriages valid in the state where performed, so I would expect to see it cited a lot.

      http://sblog.s3.amazonaws.com/…..e-7-22.pdf

      1. IANAL, but I believe that Judge Black’s decision is only binding in the federal Southern District of Ohio.

        1. Well, it’s binding on those parties and that subject matter anywhere, since they were before the court and subject to its jurisdiction. (So the State of Ohio has to either appeal the ruling or put Arthur’s spouse on the death certificate or it will be in contempt of court, even if he dies in the Northern District).

          As to any other court, my guess is that it’s only “persuasive authority”, not “mandatory authority,” which means that any other judge, including another judge in the S.D.OH., is free to say that she disagrees. Also, some courts won’t even look at unpublished opinions, so there’s that.

  3. Isn’t it a “family plot” and not his plot? What right does the Court have to tell the family who can be buried on their plot? The simple solution here is to buy your own plot and then no one in the family can tell you who can be buried there.

    Arthur’s family plots are in that cemetery and his grandfather previously stipulated in documents that only the family’s direct descendents and their spouses can be buried in the family plot.

    It seems to me the issue here is whether his grandfather recognized his marriage, not the state of Ohio. If he did, then more power to this guy. If he didn’t, and if the rest of the family is objecting it is a good bet he didn’t, then who is the Court to tell this family who can and cannot be buried in their own plot?

    1. agree entirely. Most gay rights arguments are about special rights for gays and infringe on the rights of others. The court has no jurisdiction here, but that never stopped them before.

      1. The court has no jurisdiction here

        Sure it does. It’s a civil suit between family members over a private contract. And if the contract doesn’t define spouse as “according to the definition found in Ohio statute blah blah” and is instead relying on a common definition…well, here we are.

        1. The Court has jurisdiction to settle the dispute, it just made the wrong decision. Covenants ought to be interpreted to what best furthers the donor’s intent. They are just fucking this guy and his family because they have the nerve to object to gay marriage. And we all know anyone who does that forfeits any entitlement to relief.

          1. Because all those old covenants and deed restrictions that disallowed negros and darkies from owning property were all legit, because a private contract trumps everything else in the universe. Or so my totally non-racist AnCap friends tell me.

            1. Because all those old covenants and deed restrictions that disallowed negros and darkies from owning property were all legit

              Which part of the Constitution empowers agents of the government to interfere with the rights of the owners of private property to do with it as they see fit?

            2. Sure. And absent the CRA, they would be and should be. If you object to the CRA, which a whole lot of people who are not ANCAP do, then you should totally object to the courts killing those covenants.

              If there is some cemetery plot in Richmond that some old racist bastard in the 1950s left to only spouses, I am fine with a court reading it to exclude a black spouse today. It was that guy’s plot and he clearly wanted no negros allowed. That sucks, but I don’t want Courts taking away people’s property rights for the common good.

            3. I am neither racist nor AnCap, and I believe that yes, those contracts trump your “public policy”.

            4. And those people may not be racists, or anti-gay, Brandybuck. It is possible to actually believe that private contracts, etc, trump everything else. But it’s not a comfortable position to be in when you are consistently defending reasons to discriminate against blacks, gays or whoever.

              My rule of thumb is if the person has a consistent track record of arguing on principal, then he’s probably just a purist.

              OTOH if the person’s arguments are also laced with sneering contempt for blacks or gays then you may safely assume that the person is just a bigoted piece of shit.

          2. They are just fucking this guy and his family because they have the nerve to object to gay marriage.

            Yeah, it’s never about what gays SAY they want, it’s about sticking it to the enemy.

            1. You’re right, how dare those filthy sodomites expect to be treated like real people with rights and stuff.

      2. The state has a monopoly on defining marriage (for purposes of civil law).

        Grandpa could have, for instance, defined spouses as “married in the eyes of the Church of Mormon,” in which case the state definition would not be relevant. But grandpa didn’t do that, he simply specified “spouses” so that defaulted to the civilly-defined unions.

        And how is it a special right to be buried next to one’s spouse? That’s some real humanitarianism on display there, Mr. Soul.

        1. Again, he was supposed to anticipate the development of gay marriage? And sure the state has a monopoly of the definition of marriage, for the purpose of state recognition, not for private contracts.

          Take your Mormon example. First, since gay marriage was unknown at the time of the drafting, you can’t expect him to put such a clause in. Second, even if your example, if the family brought in evidence that said “where the document says marriage it meant Mormon marriage”, a court is probably going to grant that. It depends on the common law of the state and how liberal they are about parole evidence. But no court is going to say that the new state definition trumps the known and common definition at the time. They are only doing so now because the rule of law doesn’t matter anymore if you are talking about a protected group. Gays are a fashionable protected group, so the family is not entitled to the rule of law they normally would be. Boot meet face.

        2. its a special right because (admittedly I assume) that the only payer in this scenario did not want this outcome. There is another choice, they could buy their own plots. Forcing your desires on someone else’s dime is asserting a right beyond the normal.

          Humanitarian? Im not sure how the quality person I am matters.

          1. It doesn’t. You could be the worst person ever, and still be right on principal.

            I was merely expressing my opinion of you.

            1. “principle” dammit

        3. The state has a monopoly on defining marriage (for purposes of civil law).

          And Ohio has not defined marriage to include gay marriage. So I still don’t see how this ruling obtains.

    2. What right does the Court have to tell the family who can be buried on their plot?

      They have a right to define what a “spouse” is in the eyes of the court. And since the grandfather’s will specified “only spouses can be buried there”, the court was bound to determine if this man’s partner currently fit the definition of “spouse”.

      Looks like a good ruling to me, seeing as statuses can’t be grandfathered.

      1. But he doesn’t fit the definition of “spouse” as per the state of Ohio, where Grandpa’s family plot is located. As John said, if Grandpa knew about this relationship and it is proven that this gay couple was to be included in the fullest, then so be it. My first reading of the story implied that Grandpa was long dead and this gay guy just now wants to get approval for his partner to be buried because of recent court cases.

        But the state of Ohio still does not recognize gay marriage, so it is probable that Grandpa didn’t, either.

        1. “But the state of Ohio still does not recognize gay marriage, so it is probable that Grandpa didn’t, either.”

          A better way to express my objections. Why assume that Grandpa defined marriage differently than his state did?

        2. They are required to recognize marriages from other states. And by definition (and the wording of the will), they have to recognize this man as meeting the requirements to be buried there.

          1. They are required to recognize marriages from other states.

            Actually, they aren’t. The SCOTUS case did not address this issue, which is in a separate section of DOMA than the one the Court overturned.

            1. Well it seems that for right now they are obligated to recognize this marriage for the limited purposes of this burial. This decision may be challenged and overturned, of course.

        3. As John said, if Grandpa knew about this relationship and it is proven that this gay couple was to be included in the fullest, then so be it.

          But grandpa did lay out the terms for inclusion. Spouse=inclusion. The definition for spouse changed after grandpa dies, expanding who met the standard. It would have been up to grandpa to exclude anyone by saying “Only heterosexual spouses are to be buried in the family plot.” I’m curious how the judge would have ruled on that, seeing is it’s a private property rights case, but it wasn’t worded that way.

          1. The idea that one can’t use words as they are commonly used seems like a bit of a stretch. And not very practical. Would he also need to define “family” and all the other terms in case they changed at some point?

          2. Several decades ago, if Grandpa had wanted that stipulation, at the very least his relatives would have shaken their heads at this paranoid crazy old guy who thought people would be marrying partners of the same sex. They might even have challenged Grandpa’s will because his crazy delusions made him unfit to transmit property.

            1. Does he have to specify that “descendants” doesn’t include robot replicants, just to anticipate a time when such replicants are invented? I think not – why not apply terms as they were intended at the time?

              1. Oh, and Grandpa’s lawyer would probably have told him that such a stipulation was frivolous and unnecessary.

            2. What about blacks, Eddie? Interacial marriage was not universally recognized in the US until 1967.

          3. The definition for spouse changed after grandpa dies, expanding who met the standard.

            Because the state not the property owner gets final say on what the property owner meant. Yeah, you would totally say that in any other context. Don’t you realize how badly you are selling out your principles here?

            1. Yeah, I’ve gone as far down this road of idiocy I can go.

            2. It is the court’s job to interpret the language contained in documents having legal effect.

              1. Yes, and the court seems to have abandoned any grounding in the law of the state of Ohio to interpret the languagecin this manner.

          4. Suppose the guy was in a polygamous relationship that was recognized as marriage by another state. He has four spouses. Do you think the court would be required to find some kind of penumbral plural in the contract’s singular term?

          5. The definition for spouse changed after grandpa dies, expanding who met the standard.

            Not under Ohio law. Not yet, anyway.

      2. They have a right to define what a “spouse” is in the eyes of the court.

        Sure they do. But to do so in a way that completely contradicts the donor’s intent is wrong and not something that would be done in any other case. What possible reason would there be to interpret it this way when you know it wasn’t intended that way? Is it really your opinion that the state has the right to unilaterally change the meaning of private agreements like this? The term “spouse” ought to be interpreted to mean “spouse” at the time of the grant, not some later definition the state made up.

        1. A court will normally try to determine donor’s intent when interpreting a document like a will. Without knowing too much about this case, I am guessing that the judge found no evidence that Grandpa would have prohibited this. Even if gay marriage did not exist that at the time of grant, what evidence is there that Grandpa did not think that gay couples could never get married?

          1. Even if gay marriage did not exist that at the time of grant, what evidence is there that Grandpa did not think that gay couples could never get married?

            That is why you have a trial. My guess is that the family will come up with some and that is why they are objecting to it so much. But, what evidence is there he intended it to cover gay marriages? Why should he be forced to opt out of future changes in the definition he had no way of knowing? Interpret the word as it was meant at the time, unless there is some evidence it meant something different.

          2. never ^ever get married

      3. They have a right to define what a “spouse” is in the eyes of the court.

        I’m pretty sure “spouse” has a well-known and common meaning at the time the document was written.

    3. As I understand it, the suit is against state authorities for failing to register the two guys as married. This is a temporary restraining order saying the two guys have a likelihood of success on the merits.

      There’s a wrinkle, however, which involves the point you’re making. The plaintiffs need to show “irreparable harm” is they don’t an injunction right away. The irreparable harm, says the court, is the risk the sick guy won’t get buried in the family plot:

      1. “The family plot directive limits those who may be interred in the plot to descendants and married spouses. Thus, without a temporary restraining order, Mr. Arthur’s burial may be delayed or his remains may have to be exhumed when this case is finally decided….

        “Finally, the uncertainty around
        this issue during Mr. Arthur’s final illness is the cause of extreme emotional hardship to the couple. Dying with an incorrect death certificate that prohibits Mr. Arthur from being buried with dignity constitutes irreparable harm.” etc.

        http://www.wlwt.com/blob/view/…..ruling.pdf

        So the judge is assuming that having a state-issued SSM license is going to comply with the grandfather’s stipulations that you need to be a relative or spouse to get buried in the family plot. Is this really the grandfather’s intention? Was Grandpa actually required, when he drew up these requirements, to anticipate that same-sex partners would use a state-issued document to get access to a private cemetary?

        1. But Grandpa chose to rely on the state definition of marriage by not specifying another definition. He could have said “married in the eyes of the Catholic church” if he had a thing against divorce and remarriage.

          He didn’t have to anticipate SSM, he just had to specify a moral proxy; by failing to choose a specific moral proxy he defaulted to the state’s definition.

          1. And the State of Ohio’s definition is “one man, one woman”. So what are the grounds here?

          2. Ah, but the state of Ohio *does* define marriage as 1 man + 1 woman. What evidence is there that Grandpa wanted to use Maryland’s definition, not that of his own state?

            1. By “the state” I meant the government at all levels. Had I meant the state of Ohio, I would have written “Ohio.”

              Yep, (the sovereign) State of Ohio may define marriage as one man and one woman. But sometimes federal law trumps state law, as in Loving v. Virginia.

              1. Last I checked, that piece of DOMA was still law, so your criticism here is legally unfounded.

                1. Take that up with the judge, NLK.

              2. “But sometimes federal law trumps state law,…”

                Federal law, as it stands right now, says that marriage as defined by the state of Ohio is supreme in Ohio. This court seems to be anticipating a change in federal law that does not exist at the moment.

    4. It’s a question of legal definitions. Is his gay husband his spouse or not? Grandpa is not around to change the documents, so it’s up to the court and family to hash it out as to what “spouse” means.

      1. And in the State of Ohio, we have a definition. This case actually is not about legal definitions, because if it were, Grandfather’s Estate would have won in a slam-dunk. This is about bootstrapping a bogus Equal Protection Argument.

        1. So the equal protection argument is bogus, why?

          1. Because there is nothing in the equal protection clause that requires States to recognize out-of-state actions.

            FF&C, yes, but even so, DOMA dispatches with FF&C on this issue.

            1. The constitution grants to the legislature the power to determine the manner in which FF&C is given, but it does not grant the power to abrogate it entirely.

      2. The legal definition in Ohio is only heterosexual relationships can be marriages, the family apparently agrees with that definition. The court does not seem to have much basis to rule in the way it has.

    5. Well, he is part of the family. And the other guy is his spouse, even if Ohio law doesn’t recognize that. And Grandpa seems to be dead, so it’s pretty hard to ask him for his interpretation.

      But, if the guy’s family doesn’t want it, why would he want his dead husband to be there?

  4. Looks to me like the judge got it right. The grandfather stipulated that only spouses could be buried there. Well, if he wanted only heterosexual spouses, then he should have said so. As his will is written, this marriage meets the requirements.

    As asked before, I’d like to know why this ruling does not apply to all spousal benefits across the board.

    1. I think especially for things like death and medical decisions they should be recognized. I know you can contract that stuff as extra protection but some podunk judge can always find a way to let the family intercede.

    2. Well, if he wanted only heterosexual spouses, then he should have said so.

      So grandpa was supposed to be able to see into the future and know that gay marriage would some day be recognized even though he probably had no idea that such a thing even existed?

      If you had evidence that he intended to cover this guy, sure. But there is no evidence of this. This is instead, just the court shoving a boot on the family’s face.

      1. The court isn’t there to interpret “intentions”. The will said it was for “spouses”. They determined what a spouse currently is as defined by the law.

        1. The court isn’t there to interpret “intentions”.

          Yes it is. What do you think happens in probate court you half wit? Where there is a disputed term in a will or a covenant or a contract, you look at the outside evidence or the parole evidence to see what the parties meant.

          In any other context Libertarians would be having a fit about infringing on property rights like this. But sadly, it is always okay for the state to fuck someone as long as it is for the Gayz.

          1. Where is the evidence grandpa wanted the gays out? Perhaps I missed it, but I didn’t see anything about other family members fighting this.

            There’s no evidence this could be a property taking.

            1. Where is the evidence grandpa wanted the gays out?

              Maybe he didn’t. But the fact that the family is pitching a fit is a good sign he did. The point here is what was the grounds for the decision. If the grounds are, grandpa meant to include this guy, then I am fine with the decision. But if that is what is happening here, the case isn’t saying anything about gay marriage in general.

          2. Right now it is the gays that are held responsible. In an earlier era it was the blacks. Tomorrow it will be someone else.

        2. They determined what a spouse currently is as defined by the law.

          Not a fan of Justice Thomas and originalism, I take it? Good thing “militia” still has the same meaning now as it did then, right?

          1. SQUIIIIIIRRRRRRREEELLLLLLZZZZ!!!!!!

          2. I was playing devil’s advocate here, and had a comment eaten by the squirrelz about original intent being a joke in American jurisprudence for nearly 200 years.

        3. They determined what a spouse currently is as defined by the law.

          Not a fan of Justice Thomas and originalism, I take it? Good thing “militia” still has the same meaning now as it did then, right?

    3. Well, if he wanted only heterosexual spouses, then he should have said so.

      He did. That’s what a “spouse” was when he wrote it.

      1. You could also use the same line of argument for excluding blacks as they weren’t “persons” for much of US history.

        1. And if you were interpreting a will from the early 1800s, that may well have been the right thing to do if the purpose of the court is to carry out the wishes of the person who wrote the will rather than impose the wishes of those now living.

        2. And even after black people became “persons”, interacial marriages weren’t recognized nationwide until 1967.

          So I’m sure there were lots of grandfathers who never envisioned that one of his descendants would (or legally could) marry a black person.

          Please explain how this case is different than that.

          1. It isn’t. And if the goal is to carry out the wishes of the deceased, no matter how much you don’t like them, the answer would be the same: no go. That’s not to validate such grandfathers’ views, but it’s their land, not your, not the court’s, and not the government’s.

          2. Didn’t see your 3:26 when I composed this.

  5. 20 years is a long time, certainly long enough to be considered a common-law marriage and have standard community property apply if they were hetero.

  6. Why did the gay guys break into the funeral parlor?

    They wanted to crack open a couple of cold ones.

    1. Die in a fire. No, better: suffer massive full-thickness burns and lung damage and linger in incredible pain for a week before dying.

      1. I don’t get it. Which one’s the punchline and which one’s just the set-up?

      2. C’mon, it’s the only gay joke I know. I never promised good jokes.

        Geeze, everyone’s a critic.

        1. Go with necrophiliacs next time. They’re a lot less likely to complain.

          1. How about polacks?

            Have they figured out how to use computers yet?

            1. Yes, but it takes a lot of them…

              Don’t ask me how many, though.

          2. Go with necrophiliacs next time. They’re a lot less likely to complain.

            And if they do, fuck ’em.

      3. Why so serious?

  7. Instead of hiring an expensive lawyer, buy your own plot and make sure your will is changed to cut out all your homophobic relatives.

  8. I can’t think of anything more selfish than claiming a piece of property for eternity. Fuck. I plan to be cremated. Fucking cemeteries. What a waste of land.

    1. Cemeteries and golf courses, waste of prime real estate.

      1. Professional ball parks are the real waste of land.

        1. No they are not. As long as the taxpayers don’t pay to build them.

          1. So, they all are?

            1. There are some that are not.

      2. That’s what Wang said.

    2. You don’t want to go out Viking style? Over a waterfall in a canoe that’s ablaze?

      1. Viking and canoe do not go together, bro.

        1. Thank you.

        2. Viking and canoe do not go together, bro.

          Looks like bro GB just inherited a plot in the Outlaw cemetery.

          1. +1 longboat

    3. Cremate me and sprinkle my ashes in people’s drinks when they’re not looking.

    4. Have your ashes placed in a glass urn and request that members of the Cleveland Browns smash it on the field so they can crush you one last time.

      1. When I die, I want to be buried upside down so the whole world can kiss my ass.

        /old bumper sticker

      1. Buzzards flying around, puking random bits of Warty as his purulent flesh makes them ill.

        If that’s not a sign of the apocalypse, it should be.

        1. +1 for “puking random bits of…purulent flesh”

    5. I’m holding out for resomation.

      Unless I end up dying in a relatively rural area with a slightly creepy, 100+ year old graveyard. Then I’d want to be buried there.

      1. I just went to my cousin’s burial in one of those. I particularly liked the old gunfighter’s headstone and the old lady who was born in “about 1947”.

    6. If Viking style was legal I totally would. I’ve always said cremation but at this point I’m thinking just donate it for science or whatever. I’ll be dead. No funeral or visitation either. Have a wake.

      1. I thought a wake involved a dead body on display. Wikipedia seems to agree with me.

        I think what you are thinking of is more properly called a memorial service or celebration depending on your religious inclination.

  9. This is legislating from the bench or in Obama style ‘from the rectum’.

    It’s like describing what OJ did to Nicole as a domestic disturbance.

    It’s like calling an act of terrorism at Fort Hood ‘workplace violence’.

  10. Seriously, hard cases make bad law.

    Suppose an unmarried guy has a friend who served with him in Iraq, and who saved his life numerous times. The friend is now sick and wants to be buried in the family plot, but that plot is reserved for descendants and relatives only. The two guys never got SSM-married, because it’s not that kind of relationship. So they don’t qualify as spouses and the sick guy doesn’t get the burial spot he and his friend want. Will the federal courts intervene in this case, which IMHO is just as sympathetic as the SSM situation?

    1. “Well they should’ve taken the time to drive to Maryland!”

      /it’s different when we do it

    2. “He’s a brother to me, so that’s family.” If Grandpa didn’t mean figurative brothers, he should have defined what “family” meant. Or something.

      1. NEM, care to weigh in on the adoption scenario I outline below?

        I believe adult adoption has long been allowed under common law.

      2. “He’s a brother to me, so that’s family.” If Grandpa didn’t mean figurative brothers, he should have defined what “family” meant. Or something.

        Clearly, this includes all black acquaintances as well.

    3. In the scenario you outline Eddie, no. But let’s say that the one with the plot adopts the other one for the specific purposes of inheritance and burial rights. What then?

      1. I know of a case where a man adopted his wife, so that she could inherit under a relative’s will as a child. I forget who won that one.

        1. But if the wife won, that was retarded, IMHO YMMV.

        2. Adopting an adult is what you do when you’re childless and want someone not your natural child to inherit your stuff, or to have the same legal rights as your child. AFAIK, this institution is well-established in common law.

      2. I’m surprised nobody tried to bring back lateral adoption* before now. It looks like a PA couple decided to give it a try.

        *Lateral adoption: John Boswell‘s term for a person adopting his same sex partner for the purposes of legally making them kin. The practice has shown up intermittently since at least the Roman era.

        1. Lateral adoption has long been used by gay couples, though not exclusively by them.

      3. The adoptee wouldn’t be a direct descendant or a spouse. No go.

        1. Would you apply the same to more conventionally adopted children?

          1. “Direct descendant” means “direct descendant.” Adopted children, adults, or whatever else aren’t “direct descendants” no matter the circumstances.

            1. Well, that is certainly true in a literal, genetic sense. But I’d bet that wasn’t part of grandpa’s intent in this case any more than including gay spouses was.

              So if you go by original intent, then gay spouses should probably be excluded, but adopted children of descendants probably should be. But if you go by the plain meaning of the words, then it is the other way around.

              1. If it wasn’t part of grandpa’s intent, why did he specifically say “direct descendants” and not just “descendants” or “children”? Most likely, because he was aware of adoption and wanted to rule it out.

          2. Are you absolutely sure about that, NEM?

            Citation?

            1. A lineal descendant is a direct descendant of a person. A person in direct line of blood relationship following downwards from an individual concerned, starting from his children, grand children and great grand children, are called lineal descendants of an individual.

              Just a quick Google search but, yeah, I’m as sure as I can be about something I learned back in Wills And Estates

        2. Why wouldn’t he be a direct descendant? As the non-biological child of my parents I’m generally treated as a direct descendant of them even though I’m not knit from their DNA.

          1. Being treated as a direct descendant isn’t the same as being a direct descendant. I’m not sure of any laws which would make that distinction, but that doesn’t mean private distinctions couldn’t be made.

            1. Uh, dude, that’s what adoption does is give the adoptee the legal status of a natural child.

              1. Uh, dude, not if the language in question specifies direct descent.

                As I said, I don’t know of any laws that make the distinction, but that doesn’t mean the distinction can’t be made.

            2. It occurred to me to look up the law in Ohio (sorry, I realize this is way after the fact):

              (2) To create the relationship of parent and child between petitioner and the adopted person, as if the adopted person were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, and whether executed or created before or after May 30, 1996, which do not expressly exclude an adopted person from their operation or effect

              So it seems that unless he explicitly excluded adopted descendants then they were included under Ohio law and the adopted partner would be considered a legitimate blood heir.

  11. I tried to play Devil’s Advocate here and was put down by sound legal arguments. Well done, all.*

    *Even John, although he called me a half-wit.

    1. You owned up to it, but not until you’d let it go for a while. I appreciate the latter in a Devil’s Advocate, as opposed to the prick who starts his statement with “Allow me to play Devil’s Advocate…”

      Fuck you, it doesn’t work when you say what you’re doing!!!

    2. My apologies. That was uncalled for on my part.

        1. Get over it. You are the one who made a half witted argument not me.

          1. Lighten up, Francis. It was a fucking joke.

            1. I know. My response was one too, but apparently a bad one.

            2. Fuck you both #notkidding

          2. I think sloopy was being sarcastic in his comment above.

      1. Yeah, sloop’s more a quarter-wit at best.

        1. So he’s 3/4 Buckeye?

    3. The real question is whether you would have agreed with the judge if this case had been in Michigan.

  12. this is clearly a fucked up family. What is wrong with these people?

    Let your dying family member reserve a space in the family plot for the love of his life. THe issue is the same even if he had a wife and you hated her. Just let him do it for gods sake, have some decency.

    And PUHLEEZE, gay man! If your family is that fucked up and antagonistic to you, buy your own plot. What a tool.

    The whole family is fucked

    1. I agree with you 100% on all points.

      But I’m not religious, and maybe the place of burial has significance for these folks.

      1. Dispute resolution is, first and foremost, for assholes.

        Hey, I’m just sayin’ that, by the numbers…

    2. Agreed.

      I’m kinda confused by the obsession with family plots to begin with, but they’re clearly important to this family or grandad wouldn’t have sprung for one.

      As far as I can tell everyone in my family gets cremated and dumped in the ocean.

      1. I want to be eaten by wild animals.

  13. I notice that the court relied on the recent Supreme Court decision to overturn Ohio’s law as far as out-of-state marriages were concerned.

    Rand Paul was naive to think the Supreme Court’s decision was just about the federal government respecting the laws of the states. It also seems to mean forcing State A to enforce, within its borders, the laws of State B.

    1. The states have the choice to give full faith and credit, to give specific enumerated faith and credit, or no recognition at all.

      1. Where does this “specific enumerated faith and credit” thing come from? That’s a new one on me.

      2. They do sometimes. States are free not to recognize contracts and marriages from other states that are against public policy. For example, a court would not have to recognize a polygamous marriage from say Saudi Arabia. But it would recognize an ordinary marriage from there.

        States are not obligated under the Full Faith and Credit Clause to recognize every arrangement from other states. They are free to not recognize things that are found to be against its public policy. The issue is does such discretion extend to gay marriage. In short, the gay marriage issue doesn’t really implicate the full faith and credit clause. It implicates the states’ powers to define marriage.

      3. Here’s the punch line on “mandatory” FF&C for marriage licenses.

        It opens the door for mandatory FF&C for concealed carry licenses. Which have one thing going for them that gay marriage doesn’t: they are an expression of an actual enumerated BOR right.

        1. But that is only if you think the Constitution means something RC. Sadly, most people view the Constitution as a meaningless document to be tortured to get your pony.

        2. If only there were a law (as in rule, ie Murphy’s law) dealing with foreseeable consequences.

    2. to be the fair the ruling was on the DOMA which *prohibited* states from recognizing gay marriage. A very different issue than the what you’re trying to say it was.

  14. Will the guy have his anti-gay relatives be his pallbearers, so that…

    OK, OK, I’ll stop!

    1. Eddie, the first step is to admit that a higher power is in control of your life.

  15. I think that people are too deferential to the wishes of dead people.

    1. Or they use the wishes of dead people as an excuse for being assholes. Nobody ever wants to admit they’re an asshole, it’s always their very powerful invisible friend, or their dead grandpa, or something.

      1. If Grandpa said he would buy a house for all his relatives who met certain conditions, would the relatives who didn’t meet the conditions have a claim that he should buy them a house? Should they have such a claim after he was dead?

        It’s always nice to see the libertarians in support of government allocation of private resources, even if it takes the guy being dead.

        1. This comment applies broadly, but this looks like a good place to stick it. “Grandpa” is dead, he doesn’t own jack anymore. Who owns the plot? The terms of the will dictated who got it, but once that’s settled it’s someone else’s property.

    2. So, 100% estate tax, or is there some middle ground where you think deference is OK?

      1. Obviously, you can neither control your body nor your property once you are dead. The will is meant to specify the final disposition of those things. But once the property is assigned to someone else, it becomes theirs to do with as they please. Legal constructs like trusts can be erected, but you can’t bind someone to a term of obligation indefinitely. Trusts can be dissolved, and trustees can divest themselves. At some point, you have to accept that once you are dead, you no longer have control over yourself or your assets; this in no way grants to some unrelated third party the right to steal some or all of what was once yours.

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