Obergefell et al v. Kasich et al
Filing
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COMPLAINT against All Defendants ( Filing fee $ 400 paid - receipt number: 0648-4186919), filed by James Obergefell, John Arthur. (Attachments: # 1 Civil Cover Sheet) (Branch, Jennifer)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES OBERGEFELL and
JOHN ARTHUR
C/O Gerhardstein & Branch, LPA
432 Walnut Street
Suite 400
Cincinnati, Ohio 45202
Plaintiffs,
vs.
JOHN KASICH
77 South High Street 30th Floor
Columbus, OH 43215
and
MIKE DEWINE, Attorney
General of Ohio
30 E. Broad Street, 14th Floor
Columbus, OH 43215
and
CAMILLE JONES, M.D.
Registrar
City of Cincinnati Health
Department, Office of Vital
Records
1525 Elm Street, 4th floor
Cincinnati, OH 45202
Defendants
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Case No. 13-cv-501
Judge
VERIFIED COMPLAINT FOR
TEMPORARY RESTRAINING
ORDER AND DECLARATORY
AND INJUNCTIVE RELIEF
I. PRELIMINARY STATEMENT
1. This civil rights case challenges as unconstitutional the Ohio statute and state
constitution that deny legal recognition in Ohio to the marriages of same-sex couples
who are married in one of the many states and numerous foreign countries where same-
sex marriages are legal. The plaintiffs have been in a committed relationship for over
twenty years. John Arthur suffers from debilitating ALS disease and is currently a
hospice patient. Following the U.S. Supreme Court’s historic decision United States v.
Windsor, the couple traveled to Maryland and was married in accordance with the laws
of that state.
Now back in Ohio, their marriage is not recognized by the state of Ohio
for any purpose. Meanwhile, the marriages of opposite-sex couples that are legal in
other states but would not be allowed in Ohio (e.g., marriages of first cousins or a
young partner) are routinely accepted in Ohio if those marriages are legal in the state
where they are celebrated. This recognition of opposite-sex marriages but rejection of
same-sex marriages that do not meet the Ohio criteria for marriage violates rights
secured to the plaintiffs by the United States Constitution. Plaintiffs seek declaratory
and injunctive relief for themselves and hope to set a precedent that will lead to relief
for other same-sex couples.
II. JURISDICTION AND VENUE
2. Jurisdiction over the federal claims is conferred on this Court by 28 U.S.C.
§1331 and §1343(3) and (4). Venue is proper under 28 U.S.C. §1391.
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III. PARTIES
3. Plaintiff James Obergefell is a resident of Cincinnati, Ohio. He is married to
John Arthur.
4. Plaintiff John Arthur is a resident of Cincinnati, Ohio. He is married to James
Obergefell.
5. Defendant John Kasich is the Governor of the State of Ohio. In that capacity, he
is empowered to ensure that the laws of the State are faithfully executed. See Ohio
Const. Art. III, § 2. Defendant Kasich is sued in his official capacity.
6. Defendant Mike DeWine is the Attorney General of the State of Ohio. In that
capacity he is the chief legal officer of the State of Ohio. Among his duties is the
requirement that he advise state and local officials on questions of Ohio law. See Ohio
Rev. Code §109.14. Defendant DeWine is sued in his official capacity.
7. Defendant Dr. Camille Jones, Local Registrar, Cincinnati Health Dept. Office of
Vital Records, is responsible for filing death certificates and ensuring the personal
information on the death certificate is accurate. Defendant Jones is sued in her official
capacity.
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V. FACTS
A.
James and John Are Married in Maryland
8. James and John have been in a committed relationship and have been Cincinnati
residents for more than twenty years.
9. In 2011, John was diagnosed with amyotrophic lateral sclerosis (ALS). The
disease has caused progressive and severe muscle deterioration. The disease has no
known cure. It is fatal.
10. John is currently a hospice patient.
11. On July 11, 2013, friends and family helped finance a trip by James and John to
Maryland. They traveled in a special jet equipped with the medical equipment and a
medical staff to serve John’s needs.
12. They were married in the jet as it sat on the tarmac at the Baltimore airport in
Anne Arundel County, Maryland.
13. They returned to Cincinnati that same day.
B. The Marriage of James and John is not Recognized in Ohio
14. The marriage of James and John is legally recognized in Maryland.
15. Their marriage is also recognized by the federal government by virtue of the
decision in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013).
16. Their marriage is not recognized in Ohio.
17. Ohio law prohibits legal recognition of the marriage of James and John. Ohio
Rev. Code. § 3101.01(C )(2) states, “Any marriage entered into by persons of the same-
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sex in any other jurisdiction shall be considered and treated in all respects as having no
legal force or effect in this state and shall not be recognized by this state.”
18. The Ohio constitution also prohibits recognition of the marriage of James and
John. OH Const. Art. XV, §11 states, “Only a union between one man and one woman
may be a marriage valid in or recognized by this state and its political subdivisions. This
state and its political subdivisions shall not create or recognize a legal status for
relationships of unmarried individuals that intends to approximate the design, qualities,
significance or effect of marriage.”
C. Marriages of Opposite-Sex Couples are Treated Differently
19. Opposite-sex couples do face restrictions in Ohio on who may marry. ORC
§3101.01(A) states, “Male persons of age eighteen years and female persons of the age of
sixteen years, not nearer of kin than second cousins…may be joined in marriage.”
(emphasis added). But the validity of their marriages is determined by the law of the
state where their marriage was celebrated. Mazzolini v. Mazzolini, 168 Ohio St. 357, 358
(Ohio Sup. Ct. 1958) (Marriage of first cousins was legal in Massachusetts and therefore
is legal in Ohio regardless of Ohio statute to contrary).
20. More than 1,000 federal benefits, privileges and responsibilities are impacted by
marital status. Opposite-sex couples who reside in Ohio and not in the jurisdictions
where they celebrated their legal marriages will be entitled to all of those federal benefits
even if (e.g., due to kinship or age) their marriages would not have been recognized in
Ohio had they attempted to marry in Ohio. Same-sex married couples including James
and John who do not reside in jurisdictions where they celebrated their legal marriages
may be denied most of those federal benefits solely because they live in Ohio. Many
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state and private employer benefits will also be denied to same-sex couples married
legally in other states and now residing and/or working in Ohio.
21. The different treatment of same-sex marriages celebrated in other jurisdictions
from opposite-sex marriages celebrated in other jurisdictions is not supported by a
legitimate state interest and imposes severe harm on same-sex couples including
Plaintiffs James and John.
D. Need for Injunction
22. James and John have been in love for more than twenty years. They very much
want the world to officially remember and record their union as a married couple.
23. One very personal reflection of the harm imposed by defendants is evident from
the death record. Unfortunately John is likely to die soon. If John dies first, the death
record should record his “marital status at time of death” as “married.” Unless this Court
acts, his death record, consistent with Ohio law, will list his status as unmarried. That
form should also record James as the “surviving spouse”. Unless this Court acts, the
death record will be blank for surviving spouse. That is, unless this court acts, the
permanent death records for James and for John will not reflect their marriage at all.
Opposite-sex couples married in other jurisdictions under circumstances otherwise not
permitted in Ohio are treated completely differently. Their marriages will be reflected as
valid and recognized on the death certificates of these opposite-sex couples.
24. Defendant Jones is responsible for keeping all death certificates. She supplies
forms and instructions for filling out forms. Ohio law demands that she require that each
death certificate, when presented for filing, be completed in accordance with Ohio law.
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25. Because of Ohio’s OH Const. Art. XV, §11 and Ohio Rev. Code. § 3101.01(C)
(2) prohibitions on same sex marriage, Defendant Jones requires a person filling out the
death certificate of a decedent who is married to a person of the same sex to indicate the
decedent is not married and to not include the spouse’s name on the certificate.
26. Upon information and belief Defendant Jones will not allow John’s death
certificate to indicate he was married and that his spouse was James.
27. There is no adequate remedy at law. James and John are suffering irreparable
harm. There is no harm to the state or local governments by granting an injunction
prohibiting enforcement of the challenged statute and Ohio constitution. The harm to
plaintiffs is severe. The public interest is clearly served by this court acting to order
recognition in Ohio of same-sex marriages celebrated in other jurisdictions consistent
with the manner in which Ohio treats similarly situated opposite-sex couples. Only
prompt action by this federal court ordering declaratory and injunctive relief will serve
the public interest.
VI. CLAIM FOR RELIEF
First Claim – 42 U.S.C. §1983 - United States Constitution
28. Defendants, acting under color of law, have violated rights secured to the
plaintiffs by the First and Fourteenth Amendments to the United States Constitution
including the right of association, the right to due process of law, and the right to equal
protection under the law.
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VII. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs request that this Court:
A.
Issue a declaratory judgment that the statute and Ohio Constitutional
provision at issue in this case, as applied to the plaintiffs, violate the
constitutional and statutory rights of plaintiffs;
B.
Issue a preliminary and permanent injunction against the Defendants and
all those acting in concert prohibiting enforcement of the laws, as applied,
at issue in this action;
C.
Award to Plaintiffs reasonable costs, expenses and attorney fees;
E.
Award such other and further relief as this Court shall deem just and
reasonable.
Respectfully submitted,
/s/ Alphonse A. Gerhardstein
Alphonse A. Gerhardstein # 0032053
Trial Attorney for Plaintiffs
Jennifer L. Branch #0038893
Jacklyn Gonzales Martin #0090242
GERHARDSTEIN & BRANCH CO. LPA
Attorneys for Plaintiffs
432 Walnut Street, Suite 400
Cincinnati, Ohio 45202
(513) 621-9100
(513) 345-5543 fax
agerhardstein@gbfirm.com
jbranch@gbfirm.com
jgmartin@gbfirm.com
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