Obergefell et al v. Kasich et al

Filing 33

AMENDED COMPLAINT (Second) against Camille Jones, Theodore Wymyslo, M.D., filed by James Obergefell, David Brian Michener, John Arthur, Robert Grunn. (Gerhardstein, Alphonse)

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
and
DAVID BRIAN MICHENER
C/O Gerhardstein & Branch, LPA
432 Walnut Street, Suite 400
Cincinnati, Ohio 45202
and
ROBERT GRUNN
C/O Grunn Funeral Home
825 Main Street
Cincinnati, Ohio 45202
Plaintiffs,
vs.
THEODORE E. WYMYSLO,
M.D.
246 N. High Street
Columbus, OH 43215
In his official capacity as the
Director of the Ohio Department of
Health
and
CAMILLE JONES, M.D.
1525 Elm Street, 4th floor
Cincinnati, OH 45202
In her official capacity as Registrar,
City of Cincinnati Health
Department Office of Vital Records
Defendants.

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Case No. 13-cv-501
Judge Timothy S. Black
SECOND AMENDED
COMPLAINT FOR
TEMPORARY RESTRAINING
ORDER AND DECLARATORY
AND INJUNCTIVE RELIEF

I. PRELIMINARY STATEMENT
1. This civil rights case challenges as unconstitutional the application of the Ohio
statute and state constitutional amendment 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 Obergefell-Arthur plaintiffs,
for example, 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 an order requiring defendants to issue a death certificate that
reflects their status as married and their survivor as the surviving spouse. Plaintiff Robert
Grunn is a licensed funeral director and has a statutory duty to serve as an accurate and
truthful reporter of personal facts with respect to applications for death certificates. He
sues on his own behalf and on behalf of his same-sex married clients in order that samesex marriages be properly recognized on Ohio death certificates.

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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.
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. Plaintiff David Michener is a resident of Wyoming, Ohio. He was married to
William Herbert Ives. Mr. Ives died at University Hospital in Cincinnati on August 27,
2013.
6. Plaintiff Robert Grunn is a funeral director and embalmer licensed by the State
of Ohio. He is the managing partner at the Grunn Funeral Home at 825 Main Street in
Cincinnati, Ohio, 45202 and at the Grunn Lusain Memorial Center at 910 Patterson Blvd
in Dayton, OH 45402.
7. Defendant Theodore E. Wymyslo, M.D., is the Director of the Ohio Department
of Health. In that capacity he is responsible for overseeing the administration of all
statutes and regulations that relate to the State of Ohio’s system for recording vital
statistics, including but not limited to the issuance of death certificates. Defendant
Wymsylo is sued in his official capacity for injunctive relief only.
8. Defendant Dr. Camille Jones, Local Registrar, Cincinnati Health Dept. Office of
Vital Records, is responsible for filing death certificates and ensuring the personal

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information on the death certificate is accurate. Defendant Jones is sued in her official
capacity for injunctive relief only.
V. FACTS
A. James and John Are Married in Maryland
9. James and John have been in a committed relationship and have been Cincinnati
residents for more than twenty years.
10. 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.
11. John is currently a hospice patient.
12. 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.
13. They were married in the jet as it sat on the tarmac at the Baltimore airport in
Anne Arundel County, Maryland.
14. They returned to Cincinnati that same day.
B. David and William were Married in Delaware
15. David Michener and William Ives were married in Delaware on July 22, 2013.
Their marriage is legally recognized in Delaware.
16. They had been together for eighteen years and they have three adopted children.
17. William died unexpectedly of natural causes at University Hospital in
Cincinnati, Ohio on August 27, 2013.

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18. Surviving spouse David Michener requested a death certificate that reflected
William’s status as “married” and listed David as the surviving spouse.
19. On September 3, 2013 this Court issued a temporary restraining order (Doc. 23)
restraining defendants from “accepting a death certificate for William Herbert Ives that
does not list his status at the time of death as ‘married’ and his ‘surviving spouse’ as
David Michener.”
20. A death certificate consistent with this Court’s order has since been issued and
the remains of Mr. Ives have since been cremated.
21. Plaintiff Michener opposes any effort that defendants may take in the future to
modify or alter the death certificate of his spouse, Mr. Ives.
22. Further, should Plaintiff Michener die without remarrying he seeks the
opportunity to have his marital status listed on his death certificate as “widowed.”
C. The Marriages of James and John and of David and William are not Recognized
in Ohio
23. The marriage of James and John is legally recognized in Maryland.
24. The marriage of David and William is legally recognized in Delaware.
25. Their marriages are also recognized by the federal government by virtue of the
decision in United States v. Windsor, 133 S.Ct. 2675 (June 26, 2013).
26. Their marriages are not recognized in Ohio.
27. Ohio law prohibits legal recognition of the marriage of James and John. It also
prohibits legal recognition of the marriage of David and William. Ohio Rev. Code. §
3101.01(C )(2) states, “Any marriage entered into by persons of the same-sex in any

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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.”
28. The Ohio constitution also prohibits recognition of the marriages of James and
John and of David and William. 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.”
D. Marriages of Opposite-Sex Couples are Treated Differently
29. 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).
30. 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
Plaintiffs who do not reside in jurisdictions where they celebrated their legal marriages
may be denied many 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 jurisdictions and now residing and/or working in Ohio.
31. 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 and Plaintiff David Michener who was married to William
Ives(now deceased).
E. Need for Injunction
32. 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.
33. 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.
34. These same issues are present for David Michener. At the time he applied for
the TRO, his husband has died and he urgently needed to bring closure to the family in a
manner that respected their marriage and the wishes of the decedent to be cremated. A
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death certificate was needed in order to proceed with a cremation. That death certificate
that was issued consistent with this Court’s order should not later be altered or amended
to delete or eliminate the reference to their marriage or to Mr. Michener’s status as a
surviving spouse.
35. Defendant Jones is responsible for keeping all death certificates in Cincinnati,
Ohio. She supplies forms and instructions for filling out forms. Ohio law requires that
she insist that each death certificate, when presented for filing, be completed in
accordance with Ohio law.
36. Defendant Wymyslo is responsible for overseeing the administration of all
statutes and regulations that relate to the State of Ohio’s system for recording vital
statistics, including but not limited to the issuance of death certificates.
37. 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.
38. Upon information and belief, were it not for this Court’s temporary restraining
order, Defendant Jones would not allow John’s death certificate to indicate he was
married and that his spouse was James because of the state laws.
39. Before this Court issued the Order, Doc. 23, Defendant Jones received a request
to issue a death certificate reflecting the death of William Herbert Ives. She then
requested through her counsel that she be given direction from this court on how to
respond to this request. This Court subsequently issued the temporary restraining order.

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40. There is no adequate remedy at law. James and John are suffering irreparable
harm. David Michener is also 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 constitutional amendment as applied to the plaintiffs with respect to the
issuance of death certificates. 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 as applied to the issuance of death certificates. Only
prompt action by this federal court ordering declaratory and injunctive relief will serve
the public interest.
F. Plaintiff Robert Grunn (Funeral Director) and Need for Declaratory Judgment
41. As a licensed funeral director, pursuant to R.C. §3705.16, Plaintiff Robert Grunn
registers deaths and provides personal information regarding the decedent to the state for
inclusion on the death certificate. Plaintiff Grunn has a duty to provide accurate and
truthful information.
42. Plaintiff Grunn signs death certificates as a funeral director.
43. Plaintiff Grunn serves a wide variety of clients, including same-sex couples.
44. Some of the same-sex couples whom he serves have been married in
jurisdictions that authorize same-sex marriage.
45. In the future he will continue to serve same-sex couples including couples that
have been married in jurisdictions that recognize same-sex marriage.

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46. Based on his experience with married same-sex couples, he knows it is
important that he record their marriage status as “married” or “widowed” and that any
surviving spouse be listed by name as the surviving spouse.
47. Among his duties as an Ohio funeral director, Mr. Grunn collects the personal
and statistical information of decedents and reports them to the local registrar of vital
statistics. Ohio Rev. Code § 3705.16(B). In fulfilling this duty, funeral directors are
prohibited from “purposely mak[ing] any false statement.” Ohio Rev. Code §
3705.29(A)(1). A violation of this prohibition could lead Mr. Grunn to be fined up to ten
thousand dollars or incarcerated for up to five years, or both. Ohio Rev. Code § 3705.99.
48. By serving as a plaintiff in this action, Mr. Grunn is seeking a declaratory
judgment clarifying that it is consistent with the law to list a decedent married to a samesex partner in another jurisdiction that authorizes same-sex marriage as “married” or
“widowed” on an Ohio death certificate and that it is consistent with the law to list on
that death certificate the name of any surviving spouse.
49. By serving as a plaintiff in this action, Mr. Grunn is also representing the
interests of the same-sex couples married in jurisdictions that recognize their marriages
and who will be his clients and customers now and in the future. On their behalf, as their
funeral director, Plaintiff Grunn seeks to secure the right to list the marital status of the
decedent as “married” (or, if appropriate, as “widowed”) and report the name of the
survivor as the “surviving spouse” on the Ohio death certificates for these clients.

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VI. CLAIM FOR RELIEF
42 U.S.C. §1983 - United States Constitution
50. 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. Specifically Defendants have failed, as applied to the plaintiffs
married in jurisdictions that authorize same-sex marriage, to issue death certificates
listing said plaintiffs as “married” (or, if applicable, “widowed”) and listing the survivor
on the death certificate as the “surviving spouse.” Plaintiffs reserve the right to raise
additional issues should that be necessary in subsequent complaints or lawsuits as
circumstances warrant and shall not by virtue of pursuing this as applied challenge be
precluded from doing so.
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, which prohibit recognition of the same-sex marriages of
plaintiffs James Obergefell and John Arthur as well as the same-sex marriage of
David Michener and William Ives as applied to their requests for death
certificates, violate the constitutional rights of these plaintiffs. Specifically, this
court should declare that any of these plaintiffs who die in Ohio shall be entitled
to a death certificate listing his status as “married” or “widowed” as appropriate
and listing the person who survives from that marriage as the surviving spouse on
an Ohio death certificate of the decedent;
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B. Issue a declaratory judgment that the statutory and Ohio Constitutional provisions
at issue in this case, violate the constitutional rights of those same-sex couples
married in jurisdictions that authorize same-sex marriage who become clients of
Plaintiff Robert Grunn and about whom he reports information regarding their
marital status and status as surviving spouses in support of their requests for death
certificates. Specifically, this court should declare that Plaintiff Robert Grunn
may, consistent with the constitution, report that a decedent married in a state
authorizing same-sex marriage is “married” or “widowed” and report the name of
any surviving spouse on an Ohio death certificate he completes in the course of
his work as a funeral director in Ohio.
C. Issue a preliminary and permanent injunction against the Defendants and all those
acting in concert requiring that they issue to each married plaintiff death
certificates that record their marital status as “married” or “widowed” and that list
any survivor as the “surviving spouse.” Said injunction shall include a
requirement that Defendants Wymyslo and Jones issue directives to local
registrars, funeral homes, coroners and others who assist with the completing of
Ohio death certificates explaining their duties under the orders of this Court;
D. Award to Plaintiffs reasonable costs, expenses and attorney fees;
E. Award such other and further relief as this Court shall deem just and reasonable.

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Respectfully submitted,
Lisa T. Meeks (0062074)
Newman & Meeks Co., LPA
215 E. Ninth Street, Suite 650
Cincinnati, OH 45202
phone: [phone]
fax: [phone]
[e-mail]

/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
[phone]
[phone] fax
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs

Attorney for Plaintiffs

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