Obergefell et al v. Kasich et al

Filing 13

ORDER GRANTING PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER (Doc. 3 ). Signed by Judge Timothy S. Black on 7/22/2013. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JAMES OBERGEFELL, et al.
Plaintiffs,
vs.
JOHN KASICH, et al.
Defendants.

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Case No. 1:13-cv-501

Judge Timothy S. Black

ORDER GRANTING PLAINTIFFS’ MOTION FOR
A TEMPORARY RESTRAINING ORDER
This is not a complicated case. The issue is whether the State of Ohio can
discriminate against same sex marriages lawfully solemnized out of state, when Ohio law
has historically and unambiguously provided that the validity of a marriage is determined
by whether it complies with the law of the jurisdiction where it was celebrated.
Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized
outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, for example,
under Ohio law, out-of-state marriages between first cousins are recognized by Ohio,
even though Ohio law does not authorize marriages between first cousins. Likewise,
under Ohio law, out of state marriages of minors are recognized by Ohio, even though
Ohio law does not authorize marriages of minors.
How then can Ohio, especially given the historical status of Ohio law, single out
same sex marriages as ones it will not recognize? The short answer is that Ohio cannot ...

at least not under the circumstances here.
By treating lawful same sex marriages differently than it treats lawful opposite sex
marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied
to these Plaintiffs, likely violates the United States Constitution which guarantees that
"No State shall make or enforce any law which shall ... deny to any person within its
jurisdiction equal protection of the laws."
The end result here and now is that the local Ohio Registrar of death certificates is
hereby ORDERED not to accept for recording a death certificate for John Arthur that
does not record Mr. Arthur’s status at death as "married" and James Obergefell as his
"surviving spouse."
I. AGREED FACTS AND CIRCUMSTANCES
Less than a month ago, on June 26, 2013, the United States Supreme Court issued
its historic decision in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013). The
Supreme Court held that the federal Defense of Marriage Act (“DOMA”), which denied
recognition to same-sex marriages for purposes of federal law, was unconstitutional, as it
denied fundamental fairness and equal protection of the law to gay citizens. While the
holding in Windsor is ostensibly limited to a finding that the federal government cannot
refuse to recognize state laws authorizing same sex marriage, the issue whether States can
refuse to recognize out-of-state same sex marriages is now surely headed to the fore.
Indeed, just as Justice Scalia predicted in his animated dissent, by virtue of the present
lawsuit, “the state-law shoe” has now dropped in Ohio. Windsor, 133 S.Ct. at 77-78.
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Plaintiffs James Obergefell and John Arthur are male Cincinnati residents who
have been living together in a committed and intimate relationship for more than twenty
years, and they were very recently legally married in the state of Maryland pursuant to
the laws of Maryland recognizing same sex marriage.
Mr. Arthur is currently a hospice patient. He is dying of amyotrophic lateral
sclerosis (“ALS”). ALS is a progressive disease that has caused Mr. Arthur severe and
worsening muscle deterioration, has no known cure, and is fatal.
On July 11, 2013, Plaintiffs traveled to Maryland in a special jet equipped with
medical equipment and a medical staff necessary to serve Mr. Arthur’s needs, whereupon
Plaintiffs were married in the jet as it sat on the tarmac in Anne Arundel County,
Maryland. They returned to Cincinnati that same day.
Plaintiffs’ marriage is legally recognized in Maryland and by the federal
government by virtue of the very recent and historic decision of the United States
Supreme Court in United States v. Windsor, __ U.S. __, 133 S.Ct. 2675 (2013).
Plaintiffs’ marriage is not recognized in Ohio, as legal recognition of same-sex marriages
is prohibited by Ohio law enacted in 2004. See Ohio Rev. Code. § 3101.01(C )(2)&(3)
and Ohio Constitution Art. XV, §11.
Mr. Arthur is certain to die soon. Consistent with Ohio law, his death record will
list his “marital status at time of death” as “unmarried” and will not record Mr.
Obergefell as the “surviving spouse.”

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II. PLAINTIFFS’ MOTION
Plaintiffs seek an order of this Court declaring unconstitutional the Ohio laws
forbidding recognition of legal same sex marriages from other states and requiring the
Registrar of Ohio death certificates to record John Arthur as "married" and to record
James Obergefell as his "surviving spouse" at the time of Mr. Arthur’s death, which is
imminent.
III. STANDARD OF REVIEW
In determining whether to grant injunctive relief, this Court must weigh four
factors: (1) whether the moving party has shown a strong likelihood of success on the
merits; (2) whether the moving party will suffer irreparable harm if the injunction is not
issued; (3) whether the issuance of the injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuing the injunction. Overstreet
v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). These four
considerations are factors to be balanced, not prerequisites that must be met. McPherson
v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997), and there is
no “rigid and comprehensive test for determining the appropriateness of preliminary
injunctive relief.” Tate v. Frey, 735 F.2d 986, 990 (6th Cir. 1984).
Plaintiffs bear the burden of demonstrating their entitlement to a preliminary
injunction, and an “injunction is an extraordinary remedy which should be granted only if
the movant carries his or her burden of proving that the circumstances clearly demand it.”
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Overstreet, 305 F.3d at 513. In the Sixth Circuit, “[t]he standard for issuing a temporary
restraining order is logically the same as for a preliminary injunction with emphasis,
however, on irreparable harm[.]” Reid v. Hood, No. 1:10 CV 2842, 2011 U.S. Dist.
LEXIS 7631, at *2 (N.D. Ohio Jan 26, 2011) (citing Motor Vehicle Bd. of Calif. v. Fox,
434 U.S. 1345, 1347 n.2 (1977)). Moreover, “[a]lthough no one factor is controlling, a
finding that there is simply no likelihood of success on the merits is usually fatal.”
Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).
Even if the court is not certain that a plaintiff is likely to succeed on the merits, a
preliminary injunction is still appropriate where the plaintiff shows “‘serious questions
going to the merits and irreparable harm which decidedly outweighs any potential harm
to the defendant’” or if “the merits present a sufficiently serious question to justify further
investigation.” In re DeLorean Motor Co., 755 F.2d 1223, 1229-30 (6th Cir. 1985)
(quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir.
1982)).
IV. ANALYSIS
The Fourteenth Amendment to the Constitution of the United States provides that
“No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. Amend. XIV.

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Plaintiffs, a same-sex couple, are legally married in Maryland. They reside in
Ohio where their marriage is not recognized as valid. They are treated differently than
they would be if they were in a comparable opposite-sex marriage. By treating lawful
same sex marriages differently than it treats lawful opposite sex marriages (e.g.,
marriages of first cousins and marriages of minors), Plaintiffs assert that the Ohio laws
barring recognition of out-of-state same sex marriages, enacted in 2004, violate equal
protection.
Although the law has long recognized that marriage and domestic relations are
matters generally left to the states, see Ex parte Burrus, 136 U.S. 586, 593-94 (1890), the
restrictions imposed on marriage by states, however, must nonetheless comply with the
Constitution. Loving v. Virginia, 388 U.S. 1, 12 (1967) (statute limiting marriage to
same-race couples violated equal protection and due process); Zablocki v. Redhail, 434
U.S. 374, 383 (1978) (statute restricting from marriage persons owing child support
violated equal protection).
In Windsor, the Supreme Court again applied the principle of equal protection to a
statute restricting marriage when it reviewed the constitutionality of the federal Defense
of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for
purposes of federal law. This included marriages from the twelve states and District of
Columbia in which same-sex couples could legally marry. The Supreme Court held that
the federal law was unconstitutional because it violated equal protection and due process
principles guaranteed by the Fifth Amendment. Windsor, 133 S. Ct. at 2675.
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In reality, the decision of the United States Supreme Court in Windsor was not
unprecedented as the Supreme Court relied upon its equal protection analysis from an
earlier case, where, in 1996, the Court held that an amendment to a state constitution,
ostensibly just prohibiting any special protections for gay people, in truth violated the
Equal Protection Clause, under even a rational basis analysis. Romer v. Evans, 517 U.S.
620 (1996).
In Romer, the Supreme Court struck down Colorado’s Amendment 2 because, the
Court held, “[w]e cannot say that Amendment 2 is directed to any identifiable legitimate
purpose or discrete objective. It is a status-based enactment divorced from any factual
context from which we could discern a relationship to legitimate state interests; it is a
classification of persons undertaken for its own sake, something the Equal Protection
Clause does not permit.” Id. at 635. The Supreme Court deemed this “class legislation ...
obnoxious to the prohibitions of the Fourteenth Amendment.” Id. (quoting Civil Rights
Cases, 109 U.S. 3, 24 (1883)).
As the Supreme Court in Romer held so succinctly: [Colorado law] “classifies
homosexuals not to further a proper legislative end but to make them unequal to everyone
else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to
its laws. Amendment 2 violates the Equal Protection Clause[.]” 517 U.S. at 635-36.
As the Supreme Court explained in striking down DOMA, “[t]he avowed purpose
and practical effect of the law here in question are to impose a disadvantage, a separate
status, and so a stigma upon all who enter into same-sex marriages made lawful by the
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unquestioned authority of the States.” Windsor, 133 S. Ct. at 2693.
Similarly, in Windsor, the Supreme Court cited U. S. Dept. of Agriculture v.
Moreno, 413 U.S. 528 (1973), for the proposition that a legislative desire to harm a
politically unpopular group of people cannot justify disparate treatment of that group.
Windsor, 133 S. Ct. at 2693. In Moreno, a federal statute prohibiting households
containing “unrelated persons” from qualifying for food stamps was held to be in
violation of the Equal Protection Clause under a rational basis analysis. The legislative
purpose of the statute was to prohibit “hippies” from taking advantage of food stamps.
The Supreme Court held that “the classification here … is wholly without any rational
basis.” Moreno, 413 U.S. at 538. Likewise, in Windsor, the Supreme Court held that the
purpose of the federal DOMA was “to impose inequality, not for other reasons like
governmental efficiency.” 133 S. Ct. at 2694.
Under Supreme Court jurisprudence, states are free to determine conditions for
valid marriages, but these restrictions must be supported by legitimate state purposes
because they infringe on important liberty interests around marriage and intimate
relations.
In derogation of law, the Ohio scheme has unjustifiably created two tiers of
couples: (1) opposite-sex married couples legally married in other states; and
(2) same-sex married couples legally married in other states. This lack of equal
protection of law is fatal.

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As a threshold matter, it is absolutely clear that under Ohio law, from the founding
of the State through at least 2004, the validity of an opposite-sex marriage is to be
determined by whether it complies with the law of the jurisdiction where it was
celebrated. That is, a marriage solemnized outside of Ohio is valid in Ohio if it is valid
where solemnized. Thus the leading compendium of Ohio law states:
“Generally, a marriage solemnized outside of Ohio is valid in Ohio if it is valid
where solemnized. Thus, the validity of a common-law marriage is determined by the
law of the state where it was consummated, and that of a solemnized marriage by the law
of the state where it was contracted. Likewise, a marriage created in a foreign nation is
valid according to that nation's laws. […] The fact that the parties to a marriage left the
state to marry in order to evade Ohio's marriage laws is immaterial to the marriage’s
validity in Ohio.” See 45 Ohio Jur. 3d Family Law § 11.
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is
valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the
longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the
contracting controls. Ohio has adopted this legal approach from its inception as a State.
Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in
1958, out-of-state marriages between first cousins are recognized by Ohio, even though
Ohio law does not authorize marriages between first cousins. Mazzolini v. Mazzolini, 155
N.E.2d 206, 208 (Ohio Sup. Ct. 1958) (marriage of first cousins was legal in Massachusetts and therefore is legal in Ohio regardless of the Ohio statute to the contrary).
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Likewise, under Ohio law, out-of-state marriages of minors are recognized by
Ohio, even though Ohio law does not authorize marriages of minors. See Hardin v.
Davis, 16 Ohio Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (“But, although
first cousins cannot marry in Ohio, it has been held that if they go to another state where
such marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio”);
see also Slovenian Mut. Ben. Ass’n v. Knafelj, 173 N.E. 630, 631 (Ohio App. 1930) (“It is
true that, under the laws of Ohio, if she were his first cousin he could not marry her; but
they could go to the state of Michigan, or the state of Georgia, and perhaps many other
states in the United States, and intermarry, and then come right back into Ohio and the
marriage would be legal”); see also Peefer v. State, 182 N.E. 117, 121 (Ohio App. 1931)
(where underage couples leave the state to marry in a state in which their marriage is
valid and return to Ohio, the marriage cannot be set aside based on Ohio’s law against
marriage of underage people); see also Courtright v. Courtright, 1891 Ohio Misc. LEXIS
161, at *7, aff’d without opinion, 53 Ohio 685 (Ohio 1895) (marriage between persons
considered underage in Ohio married in a state where their marriage is legal “cannot be
set aside, either because it was not contracted in accordance with the law of this state, or
because the parties went out of the state for the purpose of evading the laws of this
state”).
Quintessentially, Plaintiffs have established a substantial likelihood that they will
prevail at trial on their claim that by treating lawful same sex marriages differently than it
treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of
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minors), Ohio law, as applied here, violates the United States Constitution which
guarantees that "No State shall make or enforce any law which shall ... deny to any
person within its jurisdiction equal protection of the laws."
Moreover, as the United States Supreme Court found in Windsor, there is no
legitimate state purpose served by refusing to recognize same-sex marriages celebrated in
states where they are legal. Instead, as in Windsor, and at least on this early record here,
the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a
separate status, and so a stigma upon all who enter into same-sex marriages made lawful
by the unquestioned authority of the States.” Windsor, 133 S.Ct. at 2639. The purpose
served by treating same-sex married couples differently than opposite-sex married
couples is the same improper purpose that failed in Windsor and in Romer: “to impose
inequality” and to make gay citizens unequal under the law. See Windsor, 133 S.Ct. at
2694; see Romer, 517 U.S. at 635-36. It is beyond cavil that it is constitutionally
prohibited to single out and disadvantage an unpopular group.
Even if there were proffered some attendant governmental purpose to discriminate
against gay couples, other than to effect pure animus, it is difficult to imagine how it
could outweigh the severe burden imposed by the ban imposed on same-sex couples
legally married in other states. Families deserve the highest level of protection under the
First Amendment right of association:

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“Marriage is a coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths;
a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.”
Zablocki v. Redhail, 434 U.S. 374, 384, (1978) (citing Griswold v. Connecticut, 381 U.S.
479, 486 (1965)). Even if the classification of same-sex couples legally married in other
states is reviewed under the least demanding rational basis test, this Court on this record
cannot find a rational basis for the Ohio provisions discriminating against lawful, out-ofstate same sex marriages that is not related to the impermissible expression of
disapproval of same-sex married couples.
Consequently, Plaintiffs have demonstrated a strong likelihood of success on the
merits.
Moreover, denying Plaintiffs their associational rights under the circumstances
presented here imposes irreparable harm. Constitutional violations are routinely
recognized as triggering irreparable harm unless they are promptly remedied. See, e.g.,
Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional “freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury”). As stated, rights
associated with marriage are fundamental. Zablocki, 434 U.S. at 374. Thus, this Court
has routinely concluded that “Plaintiffs will suffer irreparable harm if the Court does not
issue the injunction because of the threatened infringement of the Plaintiffs' fundamental
rights.” See, e.g., Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 838 F.
Supp. 1235, 1242-43 (S.D. Ohio 1993) rev’d and vacated, 54 F.3d 261 (6th Cir. 1995)
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cert. granted, judgment vacated, 518 U.S. 1001 (1996). In fact, “when an alleged
deprivation of a constitutional right is involved, most courts hold that no further showing
of irreparable injury is necessary.” § 11A Fed. Prac. & Proc. Civ. § 2948.1 (2d ed.). 1
In addition to the alleged denial of Plaintiffs’ constitutional rights, the Court must
also consider the fact that Mr. Arthur is in hospice care and death is imminent. Without a
temporary restraining order, the official record of Mr. Arthur’s death, and the last official
document recording his existence on earth, will incorrectly classify him as unmarried,
despite his legal marriage to Mr. Obergefell. The death certificate will also incorrectly
fail to record Mr. Obergefell as the “surviving spouse,” which status he lawfully enjoys.
Furthermore, Mr. Arthur wants to be buried in his family plot at Spring Grove Cemetery.
He also wants Mr. Obergefell to be buried next to him someday. 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
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See, e.g., Overstreet, 305 F.3d at 578 (6th Cir. 2002) (a plaintiff can demonstrate that a denial
of an injunction will cause irreparable harm if the claim is based upon a violation of plaintiff’s
constitutional rights); ACLU of KY v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir.
2003) (if it is found that a constitutional right is being threatened or impaired, a finding of
irreparable injury is mandated); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.
1998) (recognizing that the loss of First Amendment rights, for even a minimal period of time,
constitutes irreparable harm) (citations omitted); Council of Alternative Political Parties v.
Hooks, 121 F.3d 876 (3rd Cir. 1997) (denial of preliminary injunctive relief was irreparable harm
to plaintiffs’ voting and associational rights); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992)
(holding that plaintiffs may establish irreparable harm based on an alleged violation of their
Fourth Amendment rights); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) (finding that
a violation of privacy constitutes an irreparable harm); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d
Cir. 1984) (holding allegation of violation of Eighth Amendment rights sufficient showing of
irreparable harm); Doe v. Mundy, 514 F.2d 1179 (7th Cir 1975) (denial of constitutional privacy
right was irreparable harm); Beerheide v. Zavaras, 997 F.Supp. 1405 (D.C. Colo. 1998)
(irreparable harm satisfied by allegation of deprivation of free exercise of religion).
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remains may have to be exhumed when this case is finally decided. See Yankton Sioux
Tribe v. U.S. Army Corps of Engineers, 209 F. Supp. 2d 1008, 1022 (D.S.D. 2002)
(disruption of human remains can be irreparable harm).
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. Furthermore, Mr. Arthur’s harm is irreparable because his injury is present now,
while he is alive. A later decision allowing an amendment to the death certificate cannot
remediate the harm to Mr. Arthur, as he will have passed away.
Moreover, there is absolutely no evidence that the State of Ohio or its citizens will
be harmed by the issuance of an order temporarily restraining the enforcement of these
provisions against the Plaintiffs in this case. No one beyond Plaintiffs themselves will be
affected by such a limited order at all. Without an injunction, however, the harm to
Plaintiffs is severe. Plaintiffs are not currently accorded the same dignity and recognition
as similarly situated opposite-sex couples. Moreover, upon Mr. Arthur’s death,
Plaintiffs’ legally valid marriage will be incorrectly recorded in Ohio as not existing.
Balanced against this severe and irreparable harm to Plaintiffs is the truth that there is no
evidence in the record that the issuance of a preliminary injunction would cause
substantial harm to the public.
And, as a final consideration, “the public interest is promoted by the robust
enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban 15
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Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012).
Weighing all factors applicable to analyzing whether injunctive relief should issue,
the Court finds that each factor supports the granting of a temporary restraining order.
V.

CONCLUSION

This Court finds that Plaintiffs have established by clear and convincing evidence
their entitlement to injunctive relief. Accordingly, Plaintiffs’ motion for a temporary
restraining order (Doc. 3) is GRANTED, and a temporary restraining order shall issue by
separate order, directing, inter alia, that the local Ohio Registrar of death certificates is
hereby ORDERED not to accept for recording a death certificate for John Arthur which
does not record his status as "married" and/or does not record James Obergefell as Mr.
Arthur’s "surviving spouse” at the time of Mr. Obergefell’s death, which is imminent.
IT IS SO ORDERED.
Date: July 22, 2013

/s/ Timothy S. Black
Timothy S. Black
United States District Judge

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