CLEVELAND, Ohio — A married same-sex couple has filed a federal civil rights lawsuit asking a judge to overturn Ohio’s statewide gay marriage ban because they say it’s preventing them and their daughter from enrolling as a family under President Barack Obama’s health care law.
Arguments in the lawsuit, filed Tuesday by Al Cowger Jr. and Tony Wesley Jr., mirror recent successful litigation that has led a handful of federal judges to declare statewide gay marriage bans unconstitutional, most recently in Virginia on Feb. 13.
Cowger and Wesley, who’ve been together for 28 years and live in Gates Mills in suburban Cleveland, married in upstate New York in June 2012 and have a 7-year-old adopted daughter.
“This is the last straw,” said Cowger, who also is an attorney and will be arguing the lawsuit before federal Judge Christopher Boyko. “After 28 years, we’re just so sick of having to jump through hoops and get around all these restrictions, all the stuff that comes with these prohibitions, to be treated like a family. We’re just tired of being given not even a second-class status – a no-class status.”
The lawsuit names the state, Republican Gov. John Kasich and Lt. Gov. Mary Taylor, who’s also the director of the Ohio Department of Insurance.
Representatives for each declined to comment Wednesday, citing the pending litigation.
The lawsuit is the latest of three seeking the recognition of gay marriage in Ohio. The others are narrower and apply only to the recognition of gay marriages on death and birth certificates and did not seek an overturning of the statewide ban.
For the last 15 years, Cowger and Wesley say they were insured under the same policy, either under employer-provided group insurance or an individual policy in which they were listed as domestic partners.
At first they were unsuccessful because of glitches on HealthCare.gov. Later, Cowger said, he talked to help-desk personnel who would initially tell him in hourslong phone calls that he and Wesley had been approved for a family plan, then later say they didn’t qualify because of Ohio’s gay marriage ban, passed by voters in 2004.
Joanne Peters, a spokeswoman for the U.S. Department of Health and Human Services, said in a statement that the agency was “aware that same-sex married couples in some states are experiencing issues in obtaining family plans and is looking into ways to address this issue for the 2015 plan year.”
Cowger, 53, said he and Wesley, 57, had no choice but to sign up for individual plans for themselves and their daughter, each subject to individual deductibles and premiums.
The couple wants the federal judge to issue a temporary restraining order and preliminary injunctio n against Ohio authorities to recognize them as a family and take any action needed to allow them to sign up for a family plan under the new health care law.
Eventually, the couple wants the judge to declare the state’s gay marriage ban unconstitutional and therefore void.
The lawsuit says that throughout their 28 years together, Cowger and Wesley “have continually shared assets and financial obligations, as well as the personal and emotional aspects of persons in a committed relationship, ranging from personal and professional triumphs, to happy and sad family events, to the birth of their daughter.”
“Defendants are denying Cowger and Wesley scores of rights afforded to married couples under federal and Ohio law,” the lawsuit says.
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