Obergefell et al v. Kasich et al

Filing 53

MOTION for Permanent Injunction and Declaratory Judgment by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell. Responses due by 11/18/2013 (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order) (Gerhardstein, Alphonse)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES OBERGEFELL, et al.

:
:
Plaintiffs,
:
:
v.
:
:
THEODORE E. WYMYSLO, M.D., et. :
al.,
:
:
Defendants.
:

Civil Action No. 1:13-cv-501
Judge Timothy S. Black

PLAINTIFFS’ MEMORANDUM IN
SUPPORT OF MOTION FOR
DECLARATORY JUDGMENT AND
PERMANENT INJUNCTION

______________________________________________________________________________
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR DECLARATORY
JUDGMENT AND PERMANENT INJUNCTION
______________________________________________________________________________

TABLE OF CONTENTS

Table of Contents ......................................................................................................................... i
Table of Authorities ................................................................................................................... iii
I.
II.

INTRODUCTION ............................................................................................................... 1
STATEMENT OF FACTS .............................................................................................. 2
A.Statutory and Constitutional Provisions That Prohibit Recognition of Same-Sex
Marriages .......................................................................................................................... 2
B.Plaintiffs James Obergefell and John Arthur (now deceased) ......................................... 3
C.Plaintiff David Michener .................................................................................................. 4
D.Plaintiff Robert Grunn ..................................................................................................... 5
E. History of Marriage Recognition in Ohio ........................................................................ 6
F. Legislative History for Revised Code Section 3101.01(C) .............................................. 6
G.Legislative History for Article 15, Section 11 of the Ohio Constitution ......................... 7
H. Failure to Recognize the Marriages of Same-Sex Couples Imposes Harm Beyond Death
Certificates ........................................................................................................................... 9

III.

SUMMARY OF ARGUMENT PURSUANT TO LOCAL RULE 7.2 ......................... 11

IV.

ARGUMENT ................................................................................................................. 12
A. Standard of Review for As-Applied Challenges Seeking Injunctive and Declaratory
Relief. ................................................................................................................................. 12
B. Ohio Denies to Same-Sex Married Couples Recognition that it Extends to Opposite-Sex
Married Couples. ............................................................................................................... 13
C.Ohio’s Ban on Recognizing Valid Out-of-State Marriages Between Same-Sex Couples
Violates the Due Process and Equal Protection Clauses of the United States Constitution.
........................................................................................................................................... 15
1. Ohio’s Marriage Recognition Ban is Subject to Heightened Scrutiny Because It
Discriminates Based on Sexual Orientation. .................................................................. 15
a. Lesbians and Gay Men Have Historically Suffered from Severe Discrimination.18
b. A Person’s Sexual Orientation Does Not Inhibit His/Her Ability to Contribute to
Society ..................................................................................................................... 20

i

c. Due to this History of Prejudice, Gay Men and Lesbians Lack Political Power .. 22
d.Sexual Orientation is An Immutable or a “Defining” Characteristic .................... 25
2. Ohio’s Ban on Recognition of Valid Marriages of Same-Sex Couples Performed in
Other Jurisdictions is also Subject to Heightened Scrutiny Because it Contains Explicit
Sex-Based Classifications and Because It Perpetuates Improper Stereotyped Notions of
the Spousal and Parental Roles of Men and Women. .................................................... 28
3. Ohio’s Marriage Ban is Also Subject to Heightened Scrutiny Because it Infringes
Plaintiffs’ Fundamental Rights and Liberty Interests. .................................................... 31
a. The Right to Marry Is a Fundamental Right that Belongs to the Individual. ....... 31
b.The Scope of a Fundamental Right or Liberty Interest Under the Due Process
Clause Does Not Depend on Who Is Exercising that Right. ................................... 32
c. Ohio’s Marriage Ban Discriminates Against Same-Sex Couples With Regard to
the Exercise of Fundamental Rights and Liberty Interests...................................... 35
4. Ohio’s Constitutional Amendment Barring Recognition of Marriages of Same-Sex
Couples is Also Subject to Heightened Scrutiny Because it Locks Same-Sex Couples
Out of the Normal Political Process and Makes it Uniquely More Difficult to Secure
Legislation on Their Behalf. ........................................................................................... 36
5. Ohio’s Ban on Marriage Recognition Fails Under Any Standard of Review............ 37
a. Ohio’s Recognition Ban Cannot Be Justified by an Asserted Interest in
Maintaining a Traditional Definition of Marriage. ................................................. 41
b. Ohio’s Marriage Recognition Ban Cannot Be Justified by an Asserted Interest
Related to Children.................................................................................................. 42
c. No Legitimate Interest Overcomes the Primary Purpose and Practical Effect of
Ohio’s Marriage Bans to Disparage and Demean Same-Sex Couples and Their
Families. .................................................................................................................. 46
6. Same-Sex Married Couples are Entitled to Accurate Death Certificates that Reflect
the Existence of the Marriage Just as are Opposite-Sex Married Couples..................... 49
V.

CONCLUSION .............................................................................................................. 50

ii

TABLE OF AUTHORITIES

Federal Cases
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) .......................................... 54
Bassett v. Snyder, --- F. Supp. 2d ----, 2013 WL 3285111 (E.D. Mich. June 28, 2013) ........ 23, 47
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) ......................................... 45
Boddie v. Connecticut, 401 U.S. 371 (1971) ................................................................................ 41
Bowen v. Gilliard, 483 U.S. 587 (1987) ................................................................................. 24, 32
Bowers, 478 U.S. at 190................................................................................................................ 40
Caban v. Mohammed, 441 U.S. 380 (1979) ................................................................................. 37
Califano v. Webster, 430 U.S. 313 (1977) .................................................................................... 37
Califano v. Westcott, 443 U.S. 76 (1979) ..................................................................................... 38
Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002).............................................................. 36
Christian Legal Soc'y v. Martinez, 130 S. Ct. 2971 (2010) .......................................................... 35
Citizens United v. Federal Elections Commission 558 U.S. 310 (2010) ...................................... 19
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...... 24, 29, 32, 45, 46, 48, 49
Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ....................................................... 23
Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466 (6th Cir. 2012) ......... 44
Eisenstadt v. Baird, 405 U.S. 438 (1972) ............................................................................... 46, 51
Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir.
1997) ......................................................................................................................................... 23
Frontiero v. Richardson, 411 U.S. 677 (1973) ........................................................... 28, 31, 33, 36
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012) .. 24, 25, 28, 31, 34,
35, 39, 49, 52
Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984) .............................. 20
Griswold v. Connecticut, 381 U.S. 479 (1965) ....................................................................... 39, 41
Heckler v. Mathews, 465 U.S. 728 (1984) .................................................................................... 55
Heller v. Doe by Doe, 509 U.S. 312 (1993).................................................................................. 48
Hernandez-Montiel v. I.N.S., 225 F.3d 1084(9th Cir. 2000) ........................................................ 33
High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563 (9th Cir. 1990) .................. 35
Hodgson v. Minnesota., 497 U.S. 417 (1990)............................................................................... 39
Hunter v. Erickson, 393 U.S. 385 (1969) ............................................................................... 43, 44
In re Balas, 449 B.R. 567 (Bankr. C.D. Cal. 2011) ...................................................................... 25
J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994) ............................................................................ 36
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir.1998)..................................................... 20
Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001) ................................................................. 38
Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) ... 23, 24, 34, 40, 41,
42, 48, 49, 54, 55
Loving v. Virginia, 388 U.S. 1 (1967)..................................................................................... 38, 39
Marsh v. Chambers, 463 U.S. 783 (1983) .................................................................................... 48
iii

McLaughlin v. Florida, 379 U.S. 184 (1964) ............................................................................... 36
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) ............................................................... 37
Moore v. East Cleveland, 431 U.S. 494 (1977) ............................................................................ 39
Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) ...................................................... 36, 37
Nyquist v. Mauclet, 432 U.S. 1 (1977).......................................................................................... 33
Orr v. Orr, 440 U.S. 268 (1979) ................................................................................................... 38
Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012).... 24, 25, 27, 28, 31, 34,
35, 50, 51, 52
Perry v. Schwarzenegger, 704 F. Supp. 2d 921(N.D. Cal. 2010) ......................... 25, 29, 34, 36, 51
Planned Parenthood v. Casey, 505 U.S. 833 (1992) .............................................................. 41, 51
Plyler v. Doe, 457 U.S. 202 (1982)......................................................................................... 33, 50
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2008) .................................................... 36
Roberts v. United States Jaycees, 468 U.S. 609 (1984)................................................................ 39
Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996) ......... 44, 45, 46, 47, 49
Rowland v. Mad River Local Sch. Dist., 470 U.S. 1009 (1985) ................................................... 27
Savoie v. Martin, 673 F.3d 488 (6th Cir. 2012) ............................................................................ 20
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006).................................... 23
Skinner v. Oklahoma, 316 U.S. 535 (1942) .................................................................................. 42
Stanley v. Illinois, 405 U.S. 645 (1972) ........................................................................................ 37
Stanton v. Stanton, 421 U.S. 7 (1975)........................................................................................... 38
Stemler v. City of Florence, 126 F.3d 856 .................................................................................... 46
Turner v. Safley, 482 U.S. 78 (1987) ............................................................................................ 39
United States v. Virginia, 518 U.S. 515 (1996) ............................................................................ 36
United States v. Windsor, 133 S. Ct. 2675 (2013) . 9, 11, 18, 19, 22, 29, 43, 45, 46, 47, 49, 50, 54,
55, 56
United States v. Windsor, 2013 WL 267026 (2013) ..................................................................... 54
Vance v. Bradley, 440 U.S. 93 (1979) .......................................................................................... 54
Washington v. Glucksberg, 521 U.S. 702 (1997) ......................................................................... 39
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) ................................................. 43, 44
Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) .................................................................... 33
Wayne v. Vill. of Sebring, 36 F.3d 517 (6th Cir. 1994) ................................................................ 20
Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164 (1972)........................................................... 50, 51
Willowbrook v. Olech, 528 U.S. 562 (2000) ................................................................................. 53
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) ... 24, 25, 27, 28, 29, 30, 31, 32, 33, 50, 52,
53
Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595 (6th Cir. 2006) ............................................. 20
Youngberg v. Romeo, 457 U.S. 307 (1982) .................................................................................. 41
Zablocki v. Redhail, 434 U.S. 374 (1978)................................................................... 39, 40, 41, 42

iv

State Cases
Courtright v. Courtright, 1891 WL 1022 (Ohio Com. Pl. 1891) ................................................. 21
Dep't of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006)..................................................... 52
Evans v. Romer, 882 P.2d 1335 (Colo. 1994),.............................................................................. 44
Fla. Dep't of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010)
................................................................................................................................................... 52
Goodridge v. Dep't of Pub. Health, 440 Mass. 309, 798 N.E.2d 941 (2003) ................... 48, 49, 50
Hardin, 16 Ohio Supp. 19 ............................................................................................................. 21
Hernandez, 855 N.E.2d at 23 ........................................................................................................ 40
In re Adoption of Doe, 2008 WL 5006172 (Fla. Cir. Ct. Nov. 25, 2008)..................................... 51
In re Marriage Cases, 183 P.3d 384 (Cal. 2008)........................................................ 25, 34, 40, 55
Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008).............................. 25, 30, 34, 49
Marriage Cases, 183 P.3d at 853.................................................................................................. 48
Mazzolini v. Mazzolini, 168 Ohio St. 357, 155 N.E.2d 206 (1958) .............................................. 21
Peefer v. State, 42 Ohio App. 276, 182 N.E. 117 (1931) ............................................................. 21
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ................................................... 25, 37, 49, 50, 52
Federal Statutes
U.S. Const. amend. XIV, § 1 ........................................................................................................ 22
United States Constitution. 17 ...................................................................................................... 2
State Statutes
Article 15, Section 11 of the Ohio Constitution ....................................................... 2, 8, 10, 14, 57
Ohio Rev. Code Ann. § 3101.01 ................................................................................................... 10
Ohio Rev. Code Ann. § 3101.01(A) ............................................................................................. 43
Ohio Rev. Code Ann. § 3705.22 (West) ....................................................................................... 11
Ohio Revised Code Section 3101 ................................................................................................... 9
Ohio Revised Code Section 3101.01(C) ............................................................................. 8, 13, 57
Revised Code Section 3101.01(C) 8 ............................................................................................... 2
section 9.82 of the Revised Code.................................................................................................. 10
Federal Rules
Fed. R. Civ. P. 57 .......................................................................................................................... 20
Other Authorities
Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60
N.Y.U. L. Rev. 275 (1985) ....................................................................................................... 41

v

I.

INTRODUCTION

This case is about love surviving death. The last record of a person’s life on earth should
accurately state if the decedent is married and accurately name the surviving spouse. Ohio
refuses that simple dignity to the married plaintiffs in this case. This Court has issued two
temporary restraining orders protecting plaintiffs through December, 2013 (Docs. 13, 14, and
23). The State and local defendants have agreed to this lengthy extension of the temporary orders
and can show no harm to the public if death certificates established under the order are left
undisturbed. Plaintiffs have now moved for a permanent injunction and declaratory relief.
Plaintiffs seek a declaratory judgment that, as applied to them, Ohio Revised Code
Section 3101.01(C) and Article 15, Section 11 of the Ohio Constitution violate rights secured by
the Fourteenth Amendment to the United States Constitution. Plaintiffs include same-sex
couples married in jurisdictions where same-sex couples are permitted to marry and who have
been denied recognition of their out-of-state marriages in Ohio. The marriages of opposite-sex
couples who have been married in other jurisdictions are recognized in Ohio whether or not their
marriage would have been permitted in Ohio in the first place (e.g., due to consanguinity or age).
Plaintiffs have also moved for a permanent injunction prohibiting the defendants and
their officers from enforcing those laws with respect to these plaintiffs. That is, Plaintiffs seek to
have Defendants Dr. Camille Jones and Dr. Theodore E. Wymyslo and their agents permanently
enjoined from accepting a death certificate for James Obergefell, David Michener or their
deceased husbands, which does not record his status at the time of death as “married” or
“widowed” and does not record the name of his “surviving spouse,” if applicable. Plaintiff
Grunn, a funeral director, requests that the injunction prohibit any prosecution of him for filling
out death certificates for married same-sex couples that identify the surviving spouse and list the

1

decedent as married, and that the injunction direct Defendants Wymyslo and Jones to issue
instructions 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 to
treat married same-sex couples the same as married opposite-sex couples with respect to death
certificates.
The marriages of couples like James Obergefell and John Arthur and of David Michener
and William Herbert Ives deserve recognition equal to the marriages of opposite-sex couples,
which are recognized in Ohio whether or not they could have been legally solemnized in Ohio.
In United States v. Windsor, 133 S. Ct. 2675 (2013), the Supreme Court mandated that the
federal government recognize same-sex marriages from states where it is legal. Now, these
Plaintiff same-sex couples simply seek recognition of their marriages by the State of Ohio with
respect to death certificates.
II.

STATEMENT OF FACTS

A. Statutory and Constitutional Provisions That Prohibit Recognition of Same-Sex
Marriages
Ohio Revised Code Section 3101 was amended in 2004 to prohibit same-sex marriages in the
state and to prohibit recognition of same-sex marriages from other states. Sub-section
(C) provides the following:
(1) Any marriage between persons of the same sex is against the strong public
policy of this state. Any marriage between persons of the same sex shall have
no legal force or effect in this state and, if attempted to be entered into in this
state, is void ab initio and shall not be recognized by this state.
(2) Any marriage entered into by persons of the same 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.
(3) The recognition or extension by the state of the specific statutory benefits
of a legal marriage to nonmarital relationships between persons of the same
2

sex or different sexes is against the strong public policy of this state. Any
public act, record, or judicial proceeding of this state, as defined in section 9.82
of the Revised Code, that extends the specific statutory benefits of legal
marriage to nonmarital relationships between persons of the same sex or
different sexes is void ab initio...
(4) Any public act, record, or judicial proceeding of any other state, country, or
other jurisdiction outside this state that extends the specific benefits of legal
marriage to nonmarital relationships between persons of the same sex or
different sexes 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.
Ohio Rev. Code Ann. § 3101.01.
Also adopted in 2004 was an amendment to the Ohio Constitution, which 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.
Ohio Const. art. XV, § 11.
Plaintiffs claim that these provisions (collectively referred to herein as “Ohio’s marriage
recognition ban” or “Ohio’s ban”) are unconstitutional as applied to the recognition of out of
state same-sex marriages on death certificates in Ohio.
B. Plaintiffs James Obergefell and John Arthur (now deceased)
James Obergefell, a 47-year old man from Sandusky, Ohio, met the love of his life, John
Arthur, in 1992. 1 They lived in a loving committed relationship until John’s death on October 22,
2013. 2 Both James and John attended the University of Cincinnati, and they have many close
friends and family here in Cincinnati. 3 In 2011, John was diagnosed with amyotrophic lateral
sclerosis (ALS), a condition for which there is no cure. 4 After the decision in United States v.

1

Declaration of James Obergefell, Doc. 3-1, ¶ 2-3.
Id.
3
Declaration of James Obergefell, Doc. 3-1, ¶ 2, 5; Declaration of John Arthur, Doc. 3-2, ¶ 2.
4
Declaration of James Obergefell, Doc. 3-1, ¶ 8.
2

3

Windsor, James and John decided to marry. 5 On July 11, 2013, the couple boarded a medically
equipped plane to travel to Maryland, a state that authorizes marriage for same-sex couples. 6
Because of John’s condition, they were married inside the plane on the tarmac. 7 They are legally
married in Maryland, but under Ohio law, their marriage was not recognized for any purpose
until the temporary relief was entered in this case requiring that upon John’s death, his death
certificate reflect that he was married and that James is his surviving spouse. 8 John died on
October 22, 2013. Doc. 51. His death certificate was issued in compliance with this court’s
order. Doc. 52. Without a permanent injunction, that death certificate will be amended to remove
from the death certificate the reference to their marriage and the name of James as the surviving
spouse. Ohio Rev. Code Ann. § 3705.22 (West). James seeks to make permanent this recognition
of their marriage on John’s death certificate as well as his own because this is the last official
record of their lives, and they want this document to reflect James and John’s legacy as a married
couple for the public and for their descendants who generations from now who may research
their history. 9
C. Plaintiff David Michener
Mr. Michener and his late spouse, William Herbert Ives, had been together as a loving
couple for eighteen years and adopted three children together. 10 On July 22, 2013, Mr. Michener
and Mr. Ives were married in Delaware, where marriages by same-sex couples are permitted. 11

5

Declaration of James Obergefell, Doc. 3-1, ¶ 11.
Declaration of James Obergefell, Doc. 3-1, ¶ 12.
7
Id.
8
Declaration of James Obergefell, Doc. 3-1, ¶ 13, Temporary Restraining Order, Doc. 14.
9
Declaration of James Obergefell, Doc. 3-1, ¶ 15-17.
10
Doc. 21 at 1.
11
Id.
6

4

On August 27, 2013, Mr. Ives died unexpectedly of natural causes at University Hospital in
Cincinnati, Ohio. 12
In order for the cremation of Mr. Ives to proceed, a death certificate was required to be
issued. 13 Plaintiff Michener sought a death certificate that accurately reflected Mr. Ives’s status
as married and lists Mr. Michener as the surviving spouse in order to bring closure to the family
in a manner that respects their marriage and Mr. Ives’s wish to be cremated. 14 This Court entered
a temporary restraining order granting such relief on September 3, 2013. 15
D. Plaintiff Robert Grunn
Plaintiff Robert Grunn is a licensed funeral director operating his business in Cincinnati,
Ohio. 16 Mr. Grunn is a gay man and he is known within the gay community as a funeral director
who is gay friendly. 17 One of his responsibilities as a funeral director is to fill out death
certificates, including the portion of the certificate indicating the deceased’s marital status and
the name of the surviving spouse. 18 He uses Ohio Department of Health software to do this, and
for deaths that occur in Cincinnati, he delivers the death certificates to the office of Defendant
Camille Jones. 19 In his experience, his clients often do not realize the importance of death
certificates until he returns certified copies to them. 20 His clients use the death certificates for
varied purposes. 21 Mr. Grunn has many married gay or lesbian clients, including Mr. Obergefell
who utilized his services when John died. As he did upon John’s death, Mr. Grunn is certain he
will face the issue of how to fill out a death certificate for married same-sex couples repeatedly
12

Id.
Id.
14
Id.
15
Temporary Restraining Order, Doc. 23.
16
Robert Grunn Declaration, Doc. 34-1, ¶ 2, 12.
17
Robert Grunn Declaration, Doc. 34-1, ¶ 11.
18
Robert Grunn Declaration, Doc. 34-1, ¶ 3.
19
Robert Grunn Declaration, Doc. 34-1, ¶ 3, 5.
20
Robert Grunn Declaration, Doc. 34-1, ¶ 7.
21
Robert Grunn Declaration, Doc. 34-1, ¶ 6.
13

5

in the future. 22 Mr. Grunn intends to record the marital status as “married” and list the surviving
spouse of the next married decedent with a same-sex spouse that he serves. He fears that by
doing so he may be prosecuted for purposely making a false statement on a death certificate. 23
He seeks protection from that prosecution and a declaration of his rights and duties when serving
clients with same-sex spouses.
E. History of Marriage Recognition in Ohio
The general rule in the United States for interstate marriage recognition is the “place of
celebration rule,” or lex loci contractus, which provides that marriages valid where celebrated
are valid everywhere. 24 Historically, Ohio has recognized marriages that would be invalid if
performed in Ohio but are valid in the jurisdiction where celebrated. This is true even when such
marriages clearly violate Ohio law and are entered into outside of Ohio with the purpose of
evading Ohio law with respect to marriage. 25 Ohio departed from this tradition in 2004 to adopt
its statutory and constitutional prohibition on the recognition of marriages between two
individuals of the same sex. 26 Prior to 2004, the Ohio legislature had never passed a law denying
recognition to a specific type of marriage solemnized outside of the state. 27 The campaign to
secure passage of both the statute and the constitutional prohibition on same-sex marriage
recognition demonstrate a clear desire to harm same-sex couples.
F. Legislative History for Revised Code Section 3101.01(C)
When the 2004 legislation prohibiting same-sex marriage was passed, then-Governor
Taft stated that its purpose was “to reaffirm existing Ohio law with respect to our most basic,

22

Robert Grunn Declaration, Doc. 34-1, ¶ 13-15.
Robert Grunn Declaration, Doc. 34-1, ¶ 17.
24
Grossman Declaration, Doc. 44-1, ¶ 7(k).
25
Grossman Declaration, Doc. 44-1, ¶ 7(n).
26
Grossman Declaration, Doc. 44-1, ¶ 7(q), 32, 60.
27
Grossman Declaration, Doc. 44-1, ¶¶ 32(d), 51.
23

6

rooted, and time-honored institution: marriage between a man and a woman. Marriage is an
essential building block of our society, an institution we must reaffirm. At a time when parents
and families are under constant attack within our social culture, it is important to confirm and
protect those environments that offer our children, and ultimately our society, the best
opportunity to thrive.” 28 His appeal to tradition and to claims that heterosexual marriage best
serves children mirrored statements by Senator Jacobson, who stated during the 2004 floor
debates over the law that “children deserve that best opportunity and we are going to help
children in whatever situation they are raised in,” but “that does not mean to say that because two
people would like to order their lives in a certain way we have to change the institution of
marriage just to make them feel better about their choices.” 29 In fact, the scientific evidence
shows that children will have the “best opportunity” at a secure and happy life if their parents’
marriages are recognized by the state. 30
Senator Jacobson also stated that the legislation would not interfere with “the way adults
choose to order their lives” because “[a]dults can form household relationships” after the passage
of the legislation even though those relationships “don’t have all the bells and whistles,”
“[p]erhaps don’t have all the opportunities,” and do not appear “equal to everyone else’s.” 31
G. Legislative History for Article 15, Section 11 of the Ohio Constitution
The primary sponsor for the 2004 Ohio constitutional amendment at issue in this case,
Citizens for Community Values (“CCV”) had as its core principle its goal to protect Ohio from
the “‘inherent dangers of the homosexual activists’ agenda” [including]:

28

Becker Declaration, Doc. 41-1, ¶ 72.
Id., Senate TR p. 139.
30
See generally Fulcher Declaration, Doc. 43-1.
31
Becker Declaration, Doc. 41-1, ¶ 59.Senate TR p. 137.
29

7

a. Violating the Judeo-Christian teaching that the marriage defined as “one woman
and one man living together in a lifelong, monogamous, covenantal relationship,”
a “teaching [that] is grounded in Scripture, and the truths of Scripture are absolute
and are not subject to change;”
b. Departing from “God’s intention for human sexuality, including not only
homosexual behavior, but also rape, incest, pedophilia, premarital sex, adultery,
bestiality, pornography and any other sexual expression outside this Scriptural
norm;”
c. Ignoring nature’s confirming of “the Scriptural sexual ethic,” i.e. that only “[o]ne
man and one woman have the ability to express their love in a true, complete
physical union,” resulting “in life-giving procreation;”
d. Recruiting “men, women and children into this destructive lifestyle;”
e. Causing “destructive outcomes associated with homosexual behavior” including
“AIDS, a much higher incidence and risk of sexually transmitted diseases,
approximately three times the risk of alcoholism and drug abuse, a significantly
higher rate of domestic violence and promiscuity, and a shortened life span;”
f. Rejecting conversion therapy as a viable alternative when “thousands of people
have overcome this desire, have withdrawn from homosexual behavior and have
gone on to enjoy fulfilling heterosexual relationships;”
g. Establishing “gay and lesbian organizations in our schools,” with the purpose
being “to train gay and lesbian students for activism and to encourage ‘straight’
students to experiment with homosexual behavior as defined above,” and often
resulting in “homosexual role playing;” and

8

h. Seeking “special rights for homosexuals” in an effort “to attain complete social
acceptance of homosexual behavior.” 32
CCV sent letters to school boards and superintendents in Ohio warning them,
erroneously, that they would face criminal and “daunting” civil liability if they took measures to
protect lesbian and gay students from violence and harassment. 33
In one of CCV’s campaign publications, they misled Ohio voters about the need for the
amendment, stating that marriage equality advocates sought to eliminate age requirements for
marriage, advocated polygamy, and sought elimination of kinship limitations so that incestuous
marriages could occur. 34 Print advertisements and materials for the campaign included threats
about the inevitability of legalizing polygamous marriage if same-sex marriages were
recognized. 35
CCV warned Ohio employers that “[s]exual relationships between members of the same
sex expose gays, lesbians and bisexuals to extreme risks of sexually transmitted diseases,
physical injuries, mental disorders and even a shortened life span.” 36
The television and media campaign in support of the amendment contained misleading
statements, such as “[w]e won't have a future unless [heterosexual] moms and dads have
children,” and that [e]very major social science study tells us time and again: families are
stronger with a wife and a husband; children do better with a mother and a father.” 37
H. Failure to Recognize the Marriages of Same-Sex Couples Imposes Harm Beyond
Death Certificates

32

Becker Declaration, Doc. 41-1, ¶ 82.
Becker Declaration, Doc. 41-1, ¶ 84.
34
Becker Declaration, Doc. 41-1, ¶ 85.
35
Becker Declaration, Doc. 41-1, ¶ 90-91.
36
Becker Declaration, Doc. 41-1, ¶ 86.
37
Becker Declaration, Doc. 41-1, ¶ 88.
33

9

Ohio death certificates (which, outside of this litigation, do not reflect marriages of
same-sex couples) are important not only for the dignity of the surviving spouse and his or her
family, but also have evidentiary value for things such as title transfers after a person’s death. 38
Ohio’s refusal to recognize the marriages of same-sex couples also harms those couples in
numerous other ways. When a married person domiciled in Ohio who had a valid same-sex
marriage from another jurisdiction dies, if the marriage is between two men or two women, the
estate administration unfolds as if the person had died unmarried. Many rights are afforded to
surviving spouses under Ohio probate law that are denied to same-sex spouses. After Windsor,
many federal tax laws that used to disfavor same-sex spouses over opposite-sex spouses no
longer do so; however, Ohio’s tax commission has refused to offer same-sex spouses equal rights
under its regulations. 39 Married same-sex couples must consider many additional burdens in
their estate planning that opposite-sex couples do not in order to try to protect their surviving
spouse from financial vulnerability. 40
Same-sex married couples are also disadvantaged in the context of family law. For
instance, unlike opposite-sex married couples who can invoke step-parent adoption procedures or
adopt children together, same-sex married couples cannot. Ohio courts allow an individual gay
or lesbian person to adopt a child, but not a same-sex couple because they are considered
unmarried even if they are married. 41
Additional indignities that same-sex married couples face in Ohio include that they are:
Denied local and state tax benefits available to heterosexual married couples; Denied access to
entitlement programs (welfare benefits, food stamps, Medicaid, etc.) available to heterosexual
38

McKay Declaration, Doc. 45-1,¶ 17.
McKay Declaration, Doc. 45-1, ¶ 40-43; Memo from Ohio Department of Taxation Issued Oct. 11, 2013,
http://www.tax.ohio.gov/Portals/0/ohio_individual/individual/information_releases/DOMAInformationRelease.pdf.
40
McKay Declaration, Doc. 45-1, ¶ 50-65.
41
Becker Declaration, Doc. 41-1, ¶ 17.
39

10

married couples and their families; Barred by hospital staff and/or relatives from their long-time
partners’ bedsides during serious and final illnesses due to lack of legally-recognized relationship
status; Denied the remedy of loss of consortium when a spouse is seriously injured through the
acts of another; Denied the remedy of a wrongful death claim when a spouse is fatally injured
through the wrongful acts of another; and Evicted from their homes following a spouse’s death
because same-sex spouses are in Ohio considered complete strangers to each other in the eyes of
the law. 42 The injuries raised by the plaintiffs in this case therefore are simply a few of the many
injuries suffered by married same-sex couples in Ohio. But the need for relief from
discrimination regarding death certificates is present now in the lives of these plaintiffs and must
be addressed to ensure that at least in death their marriages will finally be recognized by the
State.
III.

SUMMARY OF ARGUMENT PURSUANT TO LOCAL RULE 7.2

A same-sex marriage performed in a state where same-sex couples are permitted to marry
deserves recognition equal to the marriage of an opposite-sex couple, which is recognized in
Ohio whether or not that particular marriage could have been legally solemnized in Ohio. The
facts in this case demonstrate that the purpose of the Ohio marriage recognition ban was to harm
lesbians and gay men. When Congress declined to recognize valid same-sex marriages in the
1996 Defense of Marriage Act (DOMA), the Supreme Court struck it down as a violation of
equal protection. Windsor, 133 S. Ct. 2675. The same result should follow here. Government
classifications based on sexual orientation are appropriate for review under heightened
scrutiny. There is no compelling governmental interest that supports recognition of opposite sex
marriages but not same-sex marriages. Nor can Ohio identify a sufficiently important state
interest that is closely tailored to this classification. In fact, given the history of Ohio’s marriage
42

Becker Declaration, Doc. 41-1, ¶ 23.

11

recognition ban and of similar measures across the country, and given the equal protection
precedent in this circuit and elsewhere, the ban fails under any standard of review. Like the
federal marriage recognition ban struck down on equal protection principles in Windsor, Ohio’s
marriage recognition ban is a, “[d]iscrimination[] of an unusual character” Id. at 2692 (citations
omitted). Once subjected to “careful consideration,” the Court found that DOMA’s
“demonstrated purpose [was] to . . . demean [same-sex] couple[s], whose moral and sexual
choices the Constitution protects. . . . [T]he principal purpose and the necessary effect of this law
are to demean those persons who are in a lawful same-sex marriage . . . [,] to disparage and to
injure those whom the State, by its marriage laws, sought to protect in personhood and
dignity.” Id. at 2693, 2694, 2695-96 (internal citations omitted). As set out in detail below,
Ohio’s marriage recognition ban must similarly fail under these same equal protection principles
and also as a denial of due process which protects the fundamental right to marry.
IV.

ARGUMENT

A. Standard of Review for As-Applied Challenges Seeking Injunctive and Declaratory
Relief.
Plaintiffs in this case challenge the Ohio marriage restrictions as applied to them with
respect to the issue of death certificates. An as-applied challenge to a law limits the relief to the
particular circumstances of the plaintiff. A facial challenge generally seeks to declare or enjoin a
law as unconstitutional in all respects. “[T]he distinction between facial and as-applied
challenges is not so well defined that it has some automatic effect or that it must always control
the pleadings and disposition in every case involving a constitutional challenge. The distinction
is both instructive and necessary, for it goes to the breadth of the remedy employed by the Court,
not what must be pleaded in a complaint.” Citizens United v. Federal Elections Commission 558

12

U.S. 310, 331 (2010). Plaintiffs have requested injunctive and declaratory relief in this case
limited to the issue of marriage recognition on death certificates.
A permanent injunction is appropriate if a party “can establish that it suffered a
constitutional violation and will suffer ‘continuing irreparable injury’ for which there is no
adequate remedy at law.” Women's Med. Prof'l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006)
(citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir.1998)). It is within the
sound discretion of the district court to grant or deny a motion for permanent injunction. See
Kallstrom, 136 F.3d at 1067 (injunction appropriate to protect private information of police
officers); Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994)(district court erred in
failing to rule on permanent injunction request).
The existence of another adequate remedy does not preclude a declaratory judgment that
is otherwise appropriate. Fed. R. Civ. P. 57. In the Sixth Circuit, “[t]he two principal criteria
guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will
serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will
terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the
proceeding.” Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W. R.
Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984). The plaintiffs in this case are
entitled to both permanent injunctive and declaratory relief.
B. Ohio Denies to Same-Sex Married Couples Recognition that it Extends to OppositeSex Married Couples.
As this Court correctly held, “[l]ongstanding 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

13

place of contracting controls. Ohio has adopted this legal approach from its inception as a State.”
(Order Granting Plaintiffs’ Motion for a Temporary Restraining Order, Doc. 13, p. 9.)
In Mazzolini v. Mazzolini, 168 Ohio St. 357, 358, 155 N.E.2d 206 (1958), the Ohio
Supreme Court refused to annul a marriage between first cousins because it was legal for first
cousins to marry in Massachusetts where their marriage was celebrated. See also Hardin v.
Davis, (Ohio Ct. C.P. Hamilton Cnty. 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”); Slovenian Mut. Ben. Ass’n v. Knafelj (Ohio Ct.
App. 1930) (same). Likewise, Ohio recognizes out-of-state marriages of minors even though
Ohio does not authorize such marriages. In Peefer v. State, 42 Ohio App. 276, 182 N.E. 117
(1931), an Ohio appellate court held that where a fourteen-year-old girl married in a state in
which her marriage was authorized, the marriage cannot be set aside based on Ohio’s law against
marriage of under-aged people.
Ohio even recognizes valid out-of-state marriages that would have otherwise been illegal
in Ohio, even if those marriages were entered into specifically in an effort to evade Ohio law.
(Grossman Report, Doc. 44-1, ¶ 7(n).) See Courtright v. Courtright, 1891 WL 1022 (Ohio Com.
Pl. 1891) 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 “can not 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”); Peefer, 182 N.E. 117 (same);
Hardin, 16 Ohio Supp. 19 (same)); Slovenian Mut. Ben. Ass’n (Ohio Ct. App. 1930) (same).
Ohio’s statute and amendment prohibiting recognition of same-sex marriages are a
departure from this long tradition of marriage recognition. As explained below, the record is

14

clear that Ohio’s failure to recognize same-sex marriage is subject to the same defect as the
failure of the federal government to recognize same-sex marriage. That is, the failure of Ohio to
recognize same-sex marriages is a “discrimination of an unusual character” which “especially
suggest[s] careful consideration to determine whether [it is] obnoxious to the
[C]onstitution[] . . . .” Windsor, 133 S. Ct. at 2692; and such “careful consideration” will show
that the Ohio laws’ “demonstrated purpose is to . . . demean those persons who are in a lawful
same-sex marriage. . . . to disparage and to injure those whom [other states], by [their] marriage
laws, sought to protect in personhood and dignity.” Id. at 2695-2696. As this Court correctly
found, “[i]n 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.” (Order
Granting Plaintiffs’ Motion for a Temporary Restraining Order, Doc. 13, p. 8.)
C. Ohio’s Ban on Recognizing Valid Out-of-State Marriages Between Same-Sex
Couples Violates the Due Process and Equal Protection Clauses of the United States
Constitution.
Section one of the Fourteenth Amendment to the United States Constitution provides in
part that no state shall “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, § 1. As set out below, under any standard of review, the government interests that
may be cited to support Ohio’s ban on recognition of marriages between same-sex couples are
not sufficient to survive constitutional scrutiny.
1. Ohio’s Marriage Recognition Ban is Subject to Heightened Scrutiny Because It
Discriminates Based on Sexual Orientation.
Since Windsor, the Sixth Circuit has not conducted a thorough review of its controlling
law regarding the appropriate level of scrutiny for classifications based on sexual orientation.
15

The most recent Sixth Circuit case to consider the issue is Davis v. Prison Health Servs., 679
F.3d 433, 438 (6th Cir. 2012) (inmate had viable equal protection claim under rational basis
analysis where he alleged prison officials purposefully discriminated against him based on his
sexual orientation when he was removed from prison job). In two sentences, the court rejected
heightened scrutiny by relying on Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261
(6th Cir. 2006) for the proposition that sexual orientation has never been recognized as a suspect
class in this circuit. Scarbrough, in turn, relied on Equality Foundation of Greater Cincinnati,
Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997).
However, Equality Foundation is now questionable authority for the proposition that
restrictions on gay and lesbian individuals are subject to rational basis analysis. As the Eastern
District of Michigan recently pointed out, there are “ample reasons to revisit the question of
whether sexual orientation is a suspect classification,” including the fact that Sixth Circuit
precedent on this issue, including Equality Foundation is based on Bowers v. Hardwick, 478,
U.S. 186 (1986), which was overruled by Lawrence v. Texas in 2003. Bassett v. Snyder, --- F.
Supp. 2d ----, 2013 WL 3285111 (E.D. Mich. June 28, 2013) (same-sex couples demonstrated a
likelihood of success on the merits of their equal protection claim regarding a Michigan law
prohibiting same-sex partners from receiving public employer benefits). The Supreme Court, in
overruling Bowers, emphatically declared that it “was not correct when it was decided and is not
correct today.” Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 156 L. Ed. 2d 508
(2003). In repudiating the Bowers decision, the Court stated that “[i]ts continuance as precedent
demeans the lives of homosexual persons” and represents “an invitation to subject homosexual
persons to discrimination both in the public and in the private spheres.” Id.

16

By overruling Bowers, the Supreme Court in Lawrence necessarily abrogated
Scarbrough, Equality Foundation, and other decisions that relied on Bowers to foreclose the
possibility of heightened scrutiny for sexual orientation classifications. See Pedersen v. Office of
Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) (“The Supreme Court’s holding in
Lawrence ‘remov[ed] the precedential underpinnings of the federal case law supporting the
defendants’ claim that gay persons are not a [suspect or] quasi-suspect class.”’) (citations
omitted); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D. Cal. 2012).
(“[T]he reasoning in [prior circuit court decisions], that laws discriminating against gay men and
lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately
criminalized, cannot stand post-Lawrence.”)
Now that Lawrence has overruled Bowers, lower courts without controlling postLawrence precedent on the issue must apply the criteria mandated by the Supreme Court to
determine whether sexual orientation classifications should receive heightened scrutiny.
The Supreme Court uses certain factors to decide whether a new classification qualifies as a
[suspect or] quasi-suspect class. They include: A) whether the class has been historically
“subjected to discrimination,”; B) whether the class has a defining characteristic that “frequently
bears [a] relation to ability to perform or contribute to society,”; C) whether the class exhibits
“obvious, immutable, or distinguishing characteristics that define them as a discrete group;” and
D) whether the class is “a minority or politically powerless.” Windsor v. United States, 699 F.3d
169, 181 (2d Cir. 2012) (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987), and City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41 (1985)) (citations omitted). Of
these considerations, the first two are the most important. See id. (“Immutability and lack of

17

political power are not strictly necessary factors to identify a suspect class.”); accord Golinski,
824 F. Supp. 2d at 987.
As several federal and state courts have recently recognized, any faithful application of
those factors leads to the inescapable conclusion that sexual orientation classifications must be
recognized as suspect or quasi-suspect and subjected to heightened scrutiny. See, e.g., Windsor,
699 F.3d at 181-85; Golinski, 824 F. Supp. 2d at 985-90; Pedersen v. Office of Personnel
Management, 881 F. Supp. 2d 294, 310-33 (D. Conn. 2012); Perry v. Schwarzenegger, 704 F.
Supp. 2d 921, 997 (N.D. Cal. 2010) aff'd sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir.
2012) vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d
768 (U.S. 2013); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011) (decision of 20
bankruptcy judges); Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); In re Marriage
Cases, 183 P.3d 384, 441-44 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407,
425-31 (Conn. 2008).
a. Lesbians and Gay Men Have Historically Suffered from Severe Discrimination.
The history of discrimination against gay and lesbian individuals has been both severe
and pervasive. 43 In 1952, Congress prohibited gay men and women from entering the country. 44
In 1953, President Eisenhower issued an executive order requiring the discharge of homosexuals
from all federal employment and mandating that all defense contractors and other private
corporations with federal contracts ferret out and fire all homosexual employees, a policy which
remained in place until 1975. 45 Even then, federal agencies were free to discriminate based on
sexual orientation until President Clinton issued the first executive order forbidding such hiring

43

See generally Chauncey Declaration, Doc. 42-1.
Chauncey Declaration, Doc. 42-1, ¶ 48.
45
Chauncey Declaration, Doc. 42-1, ¶ 46-47, 78.
44

18

discrimination in 1998. 46 The U.S. State Department discharged more homosexuals than
communists at the height of the McCarthy era. 47
Until the Supreme Court’s Lawrence decision in 2003, discussed in Part III(D), supra,
consensual homosexual conduct was criminalized in many states. In the mid-twentieth century,
bars in New York and Los Angeles posted signs telling potential gay customers: “If You Are
Gay, Please Stay Away” or, more directly, “We Do Not Serve Homosexuals.” 48 Raids on gay
bars in Chicago in this period were “a fact of life, a danger every patron risked by walking
through the door.” 49
Until 2011, homosexuals could not openly serve in the military, 50 and the military still
criminalizes sodomy today. 51 After World War II, known homosexual service members were
denied GI Bill benefits, and later, when other people with undesirable discharges had their
benefits restored, the Veterans Administration refused to restore them to homosexuals. 52
In 1993, Cincinnati voters passed Issue 3, which amended the city charter to prohibit the
city from extending civil rights protections based on sexual orientation. 53 After five years of
litigation, the courts let the amendment stand, and it was not until 2004 that the Cincinnati voters
repealed the amendment. 54 The pervasive negative attitudes and stereotypes toward gay and
lesbian individuals are reflected in our nation’s politicians as well. The governor of Pennsylvania
recently compared same-sex marriage to incest. 55 The Republican Party in its 2012 Platform

46

Chauncey Declaration, Doc. 42-1, ¶ 78.
Chauncey Declaration, Doc. 42-1, ¶ 46.
48
Chauncey Declaration, Doc. 42-1, ¶ 56.
49
Id.
50
Chauncey Declaration, Doc. 42-1, ¶ 80.
51
Chauncey Declaration, Doc. 42-1, ¶ 40.
52
Chauncey Declaration, Doc. 42-1, ¶ 42.
53
Chauncey Declaration, Doc. 42-1, ¶ 74.
54
Id.
55
Catalina Camia, Pa. Governor Compares Gay Marriage to Incest, USATODAY.COM (Oct. 4, 2013, 2:01 PM),
http://www.usatoday.com/story/onpolitics/2013/10/04/corbett-gay-marriage-incest-pennsylvania/2921793/.
47

19

reaffirmed its support for a Constitutional amendment prohibiting same-sex marriage, and
baselessly alleged that supporters of same-sex marriage rights were engaged in “hate campaigns,
threats of violence, and vandalism . . . against advocates of traditional marriage.” 56 These are but
a few of the most egregious examples of discrimination at the hands of both federal and state
governments, their officials, and one of the two primary political parties in our country.
There can be no doubt therefore that lesbians and gay men historically have been, and
continue to be, the target of purposeful and often grievously harmful discrimination because of
their sexual orientation. For many years the prevailing attitude toward gay persons has been
“one of strong disapproval, frequent ostracism, social and legal discrimination, and at times
ferocious punishment.” Richard A. Posner, Sex and Reason 291 (1992); see also Rowland v.
Mad River Local Sch. Dist., 470 U.S. 1009, 1015 (1985) (Brennan, J., dissenting from denial of
cert.) (gay people “have historically been the object of pernicious and sustained hostility.”). As
the Second Circuit concluded, “It is easy to conclude that homosexuals have suffered a history of
discrimination. Windsor and several amici labor to establish and document this history, but we
think it is not much in debate.” Windsor, 699 F.3d at 182; see Pedersen, 881 F. Supp. 2d at 318
(“The long history of anti-gay discrimination which evolved from conduct-based proscriptions to
status or identity-based proscriptions perpetrated by federal, state and local governments as well
as private parties amply demonstrates that homosexuals have suffered a long history of invidious
discrimination.”).
b. A Person’s Sexual Orientation Does Not Inhibit His/Her Ability to Contribute to
Society
The other essential factor in the Court’s heightened scrutiny analysis is whether the group
in question is distinctively different from other groups in a way that “frequently bears [a] relation
56

GOP, 2012 REPUBLICAN PLATFORM: WE BELIEVE IN AMERICA 10, 12, available at http://www.gop.com/wpcontent/uploads/2012/08/2012GOPPlatform.pdf.

20

to ability to perform or contribute to society.” City of Cleburne, Tex., 473 U.S., 440-41 (citation
omitted); see also Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality) (“[W]hat
differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns
it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to
ability to perform or contribute to society.”).
Expert opinions submitted as part of this record confirm this point. “It is well-established
that homosexuality is a normal expression of human sexuality. It is not a mental illness, and
being gay or lesbian has no inherent association with a person’s ability to lead a happy, healthy,
and productive life or to contribute to society.” 57 Courts discussing this prong have agreed with
near unanimity that homosexuality is irrelevant to one’s ability to perform or contribute to
society. “There are some distinguishing characteristics, such as age or mental handicap, that
may arguably inhibit an individual’s ability to contribute to society, at least in some respect. But
homosexuality is not one of them.” Windsor, 699 F.3d at 682; accord Golinski, 824 F. Supp. 2d
at 986 (“[T]here is no dispute in the record or the law that sexual orientation has no relevance to
a person’s ability to contribute to society.”); Pedersen, 881 F. Supp. 2d at 320 (“Sexual
orientation is not a distinguishing characteristic like mental retardation or age which undeniably
impacts an individual’s capacity and ability to contribute to society. Instead like sex, race, or
illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped
characteristics not truly indicative of their abilities.”). See also Am. Psychiatric Ass’n, Position
Statement On Homosexuality and Civil Rights, 131 Am. J. Psychiatry 436, 497 (1974). In this
respect, sexual orientation is akin to race, gender, alienage, and national origin, all of which “are
so seldom relevant to the achievement of any legitimate state interest that laws grounded in such

57

Peplau Declaration, Doc. 46-1, ¶ 11.

21

considerations are deemed to reflect prejudice and antipathy.” City of Cleburne, Tex., 473 U.S.
at 440.
More generally, a group of constitutional law scholars writing as amici curiae in Windsor
recently noted:
[N]umerous courts, scholars, the American Psychiatric Association—and even the
Proponents of Proposition 8—have recognized [that] homosexual orientation “‘implies
no impairment in judgment, stability, reliability or general social or vocational
capabilities.’” . . . Indeed, gay men and lesbians can and do perform perfectly well as
contributing members of society as lawyers, doctors, plumbers, soldiers, athletes,
professors, judges, and parents—when they are permitted to do so. Thus, [the Supreme]
Court’s observation that race, gender, alienage, and national origin “are so seldom
relevant to the achievement of any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy,” is equally applicable to gay
men and women. City of Cleburne, Tex., 473 U.S. at 440.
Brief of Constitutional Law Scholars Bruce Ackerman, et al., as Amici Curiae, 14-15, Windsor,
133 S. Ct. 2675. See Perry, 704 F. Supp. 2d at 967(“Attorney General admits that sexual
orientation bears no relation to a person's ability to perform in or contribute to society,” etc.).
c. Due to this History of Prejudice, Gay Men and Lesbians Lack Political Power
Lack of political power is not essential for recognition as a suspect or quasi-suspect class,
see Windsor, 699 F.3d at 181, but the limited ability of gay people as a group to protect
themselves in the political process also weighs in favor of heightened scrutiny of laws that
discriminate based on sexual orientation. In analyzing this factor, “[t]he question is not whether
homosexuals have achieved political successes over the years; they clearly have. The question is
whether they have the strength to politically protect themselves from wrongful discrimination.”
Id. at 184.
Due to the history of prejudice that gay men and lesbians have faced, they lack the
political power to expand their civil rights. See Dec. of Dr. Gary Segura, Doc. 47-1, ¶ 27 (“[i]n
light of the political disadvantages still faced by a small, targeted, and disliked group . . . gay
22

men and lesbians are powerless to secure basic rights within the normal political processes”). Dr.
Segura identified traditional indicia of political powerlessness, and found that gays and lesbians
fit within the description of traditionally powerless groups. 58 One measure of gay and lesbian
political powerlessness is the absence of statutory protections for them or de jure statutory
inequality. 59 For example, Congress has failed to pass any federal legislation prohibiting
discrimination against gay men and lesbians in employment, education, access to public
accommodations, or housing. 60 Although a number of states now have extended basic antidiscrimination protections to gay men and lesbians, the majority of states, including Ohio, have
no statutory prohibition on firing, refusing to hire, or demoting a person in private sector
employment solely on the basis of their identity as a gay man or lesbian. 61 Similarly, the majority
of states, including Ohio, do not provide statutory protections for discrimination in housing or
public accommodations for gay and lesbian people. 62
A second measure of gay and lesbian political powerlessness is the repeal or pre-emption
of legislative protections through ballot initiatives including anti-discrimination policies, antimarriage initiatives, and adoption bans. 63 A third measure is their underrepresentation in
political office. 64 In Ohio, for instance, only two of 132 members, or 1.5%, of the state
legislature identify as gay or lesbian. 65

58

Segura Declaration, Doc. 47-1, ¶ 28 et seq.
Segura Declaration, Doc. 47-1, p. 11-15.
60
Segura Declaration, Doc. 47-1, ¶ 30.
61
Chauncey Declaration, Doc. 42-1, ¶ 77.
62
Id.
63
Segura Declaration, Doc. 47-1, p. 15-20.
64
Segura Declaration, Doc. 47-1, p. 20-22.
65
Segura Declaration, Doc. 47-1, ¶ 51; Similarly, while there has been some improvement in recent years, lesbians
and gay men remain “vastly under-represented in this Nation’s decisionmaking councils.” No openly gay person
has ever served in the United States Cabinet. In 2008, of the more than half a million people who then held political
office at the local, state, and national levels in this country, only about 400 were openly gay. See Kerrigan, 957 A.2d
at 446; see also Windsor, 699 F.3d at 184-85 (underrepresentation of lesbians and gay men in positions of power “is
attributable either to a hostility that excludes them or to a hostility that keeps their sexual preference private – which,
for our purposes [assessing their political power], amounts to much the same thing”).
59

23

These indicia of political powerlessness are caused by a number of factors including
small population size and dispersion, the effect of HIV/AIDS on the community, violence
against gay and lesbian people, relative invisibility because many gay and lesbian people are not
open about their sexual orientation, censorship, public hostility and prejudice, political and social
hostility, unreliable allies in the political process, moral and political condemnation, and a
powerful, numerous, well-funded opposition. 66 For example, violence against gay and lesbian
people engenders intimidation which can “undermine the mobilization of gays and lesbians and
their allies to limit their free exercise of economic and social liberties.” 67 In Ohio, the number of
hate crimes against gay and lesbian people increased from 15.8% of total hate crimes reported in
2009 to 25% in 2012. 68 The total number of reported hate incidents decreased, but the number of
incidents motivated by sexual orientation increased. 69 The recent successes for equal rights in
some jurisdictions do not change the fact that, in the majority of the United States, gay and
lesbian individuals are treated as second-class citizens.
The political influence of lesbians and gay men today stands in sharp contrast to the
political power of women in 1973, when a plurality of the Court concluded in Frontiero, 411
U.S. at 688, that sex-based classifications required heightened scrutiny. After all, Congress had
already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, both of
which protect women from discrimination in the workplace. See id. at 687-88. In contrast, there
are still no such bans in the federal government or the majority of the states. See Golinski, 824 F.
Supp. 2d at 988-989; Pedersen, 881 F. Supp. 2d at 326-27. As political power has been defined
by the Court for purposes of heightened scrutiny analysis, lesbians and gay men do not have it.

66

Segura Declaration, Doc. 47-1, p. 22-35.
Segura Declaration, Doc. 47-1, ¶ 58.
68
Segura Declaration, Doc. 47-1, ¶ 60.
69
Id.
67

24

Moreover, while there have been recent successes in securing antidiscrimination
legislation (and even marriage equality) in some parts of the nation, those limited successes do
not alter the conclusion that lesbians and gay men “are not in a position to adequately protect
themselves from the discriminatory wishes of the majoritarian public.” Windsor, 699 F.3d at
185. Thus, in the last two decades, more than two-thirds of ballot initiatives that proposed to
enact (or prevent the repeal of) basic antidiscrimination protections for gay and lesbian
individuals have failed. 70 Gay people “have seen their civil rights put to a popular vote more
often than any other group.” Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 Am.
J. Pol. Sci. 245, 257 (1997).; see also Donald P. Haider-Markel et al., Lose, Win, or Draw?: A
Reexamination of Direct Democracy and Minority Rights, 60 Pol. Res. Q. 304 (2007).
Indeed, the notion that gay people are too politically powerful to warrant applying
heightened scrutiny is particularly misplaced because, by enshrining Ohio’s marriage recognition
ban in the state constitution, Ohio has effectively locked gay people out of the normal political
process. See infra Argument, Part IV.C.4 (discussing why this “fencing out” violates equal
protection). Having disabled gay people from remedying discrimination through the normal
legislative process, Ohio can hardly argue that this discrimination is likely “to be soon rectified
by legislative means.” City of Cleburne, Tex., 473 U.S. at 440.
d. Sexual Orientation is An Immutable or a “Defining” Characteristic
The heightened scrutiny inquiry sometimes also considers whether laws discriminate on
the basis of “‘immutable . . . or distinguishing characteristics that define [persons] as a discrete
group.’” Bowen, 483 U.S., 602 (citation omitted). This consideration derives from the “basic
concept of our system that legal burdens should bear some relationship to individual

70

Segura Declaration, Doc. 47-1, ¶40.

25

responsibility.” Frontiero, 411 U.S. at 686; see also Plyler v. Doe, 457 U.S. 202, 220 (1982)
(noting that illegal alien children “have little control” over that status). But there is no
requirement that a characteristic be immutable in order to trigger heightened scrutiny.
Heightened scrutiny applies to classifications based on alienage and legitimacy, even though
“[a]lienage and illegitimacy are actually subject to change.” Windsor, 699 F.3d at 183 n.4; see
Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the argument that alienage did not
deserve strict scrutiny because it was mutable).
To the extent that “immutability” is relevant to the inquiry of whether to apply
heightened scrutiny, the question is not whether a characteristic is strictly unchangeable—it is
whether the characteristic is a core trait or condition that one cannot or should not be required to
abandon. See Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000) overruled on
other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (“[S]exual orientation and
sexual identity are immutable; they are so fundamental to one’s identity that a person should not
be required to abandon them.”)Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) Watkins
v. United States Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in judgment) (“It
is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the
sense that members of the class must be physically unable to change or mask the trait defining
their class. . . . the Supreme Court is willing to treat a trait as effectively immutable if changing
it would involve great difficulty, such as requiring a major physical change or a traumatic change
of identity.”).
Under any definition of immutability, sexual orientation clearly qualifies. There is now
broad medical and scientific consensus that sexual orientation is immutable. As Plaintiffs’ expert
Dr. Letitia Anne Peplau explains, “Sexual orientation refers to an enduring pattern of emotional,

26

romantic, and/or sexual attractions to men, women, or both sexes. Most adults are attracted to
and form relationships with members of only one sex. Efforts to change a person’s sexual
orientation through religious or psychotherapy interventions have not been shown to be
effective.” 71 Indeed, there is significant evidence to show that interventions to change sexual
orientation can be harmful to patients, and no major mental health professional organization has
approved their use. 72 Further, when asked whether they have any choice in their sexual
orientation, the vast majority of gay men and lesbians state that they have very little or no choice
in the matter. 73 See also Perry, 704 F. Supp. 2d at 966 (“No credible evidence supports a finding
that an individual may, through conscious decision, therapeutic intervention or any other method,
change his or her sexual orientation.”); accord Golinski, 824 F. Supp. 2d at 986; Pedersen, 881
F. Supp. 2d at 320-24.
Even more importantly, as the Supreme Court has acknowledged, sexual orientation is so
fundamental to a person’s identity that one ought not be forced to choose between one’s sexual
orientation and one’s rights as an individual—even if such a choice could be made. See
Lawrence, 539 U.S. at 576-77 (recognizing that individual decisions by consenting adults
concerning the intimacies of their physical relationships are “an integral part of human
freedom”); see also In re Marriage Cases, 183 P.3d, 442 (“Because a person’s sexual orientation
is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or
change his or her sexual orientation in order to avoid discriminatory treatment.”); Kerrigan, 957
A.2d at 438 (“In view of the central role that sexual orientation plays in a person’s fundamental
right to self-determination, we fully agree with the plaintiffs that their sexual orientation
represents the kind of distinguishing characteristic that defines them as a discrete group for
71

Peplau Declaration, Doc. 46-1, ¶ 10.
Peplau Declaration, Doc. 46-1, ¶ 26-27.
73
Peplau Declaration, Doc. 46-1, ¶ 25.
72

27

purposes of determining whether that group should be afforded heightened protection under the
equal protection provisions of the state constitution.”); accord Golinski, 824 F. Supp. 2d at 987;
Pedersen, 881 F. Supp. 2d at 325. 74
Sexual orientation discrimination accordingly meets not only the two essential criteria for
receipt of heightened scrutiny, but all considerations the Supreme Court has identified, and thus
defendants must sustain their burden to justify Ohio’s failure to recognize same-sex marriages in
accordance with heightened scrutiny analysis.
2. Ohio’s Ban on Recognition of Valid Marriages of Same-Sex Couples Performed in
Other Jurisdictions is also Subject to Heightened Scrutiny Because it Contains
Explicit Sex-Based Classifications and Because It Perpetuates Improper
Stereotyped Notions of the Spousal and Parental Roles of Men and Women.
Ohio’s ban on marriage recognition must be subjected to heightened scrutiny for two
additional reasons: it classifies explicitly based on gender, and it reflects stereotyped notions of
the proper role of men and women in the marital and family contexts. There is nothing
inconsistent about subjecting the Ohio marriage restrictions both to the scrutiny due
classifications based on sex and to the scrutiny due classifications based on sexual orientation.
The confluence of discrimination based on both sex and sexual orientation here is not mere
happenstance; sexual orientation is defined by one’s sex relative to the sex of those to whom one

74

In the past, some courts have asserted that sexual orientation is not immutable by arguing that sexual orientation
refers merely to the conduct of engaging in sexual activity. See, e.g., High Tech Gays v. Def. Indus. Sec. Clearance
Office, 895 F.2d 563, 573-74 (9th Cir. 1990) (arguing that homosexuality “is behavioral and hence is fundamentally
different from traits such as race, gender, or alienage, which define already existing suspect and quasi-suspect
classes.”). But the Supreme Court has now rejected that artificial distinction between the conduct of engaging in
same-sex activity and the status of being gay, explaining that “[o]ur decisions have declined to distinguish between
status and conduct in this context.” Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2990 (2010); see Pedersen,
881 F. Supp. 2d at 325 (“Supreme Court precedent has since rejected the artificial distinction between status and
conduct in the context of sexual orientation. Consequently, the precedential underpinnings of those cases declining
to recognize homosexuality as an immutable characteristic have been significantly eroded.” (citations omitted)).

28

is attracted and the opprobrium visited on lesbians and gay men by society is in large part
because of their contravention of gender norms and stereotypes. 75
There can be no doubt that Ohio’s marriage recognition ban contains explicit gender
classifications. It only recognizes a person as married if the person’s sex is different from that of
the person’s spouse. Such a distinction requires heightened scrutiny. United States v. Virginia,
518 U.S. 515, 555 (1996) (‘all gender-based classifications today’ warrant ‘heightened
scrutiny.’”) (quoting J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 136 (1994)); Nev. Dep’t of Human
Res. v. Hibbs, 538 U.S. 721, 728 (2003) (‘Statutory classifications that distinguish between
males and females are subject to heightened scrutiny.”). “‘[O]ur Nation has had a long and
unfortunate history of sex discrimination,’ . . . a history which warrants the heightened scrutiny
we afford all gender-based classifications today.” J.E.B., 511 U.S. at 136 (quoting Frontiero,
411 U.S. at 684). 76
Ohio’s marriage recognition ban should be subject to heightened scrutiny for the
additional reason that it reflects and seeks to enforce the perpetuation of sex stereotypes in life
roles, which the Supreme Court has held to be constitutionally impermissible. See, e.g., United
75

See Perry, 704 F. Supp. 2d at 996; see also Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 291 (3d Cir. 2008)
(reversing summary judgment for the employer on the gay male employee’s claim of discrimination based on failure
to conform to gender stereotypes; “the line between sexual orientation discrimination and discrimination ‘because of
sex’ can be difficult to draw.”); Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002) (“Sexual orientation
harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact,
stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.”);
Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69. N.Y.U. L. Rev.
197, 202-03 (1994) (“In the same way that the prohibition of miscegenation preserved the polarities of race on
which white supremacy rested, the prohibition of homosexuality preserves the polarities of gender on which rests the
subordination of women. . . . [S]tigmatization of gays in contemporary American society functions as part of a larger
system of social control based on gender.”).
76
Ohio’s restriction on marriage is no less invidious because it equally denies recognition to men and women of
marriages performed in jurisdictions that recognize marriage between same-sex couples. Loving discarded “the
notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the
classifications from the Fourteenth Amendment’s proscription of all invidious racial discriminations.” 388 U.S. at
8; see also McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (holding that equal protection analysis “does not end
with a showing of equal application among the members of the class defined by the legislation”) . Nor was the
context of race central to Loving’s holding, which expressly found that, even if race discrimination had not been at
play and the Court presumed “an even-handed state purpose to protect the integrity of all races,” Virginia’s antimiscegenation statute still was “repugnant to the Fourteenth Amendment.” Id. at 12 n.11.

29

States v. Virginia, 518 U.S. at 533 (justifications for gender classifications “must not rely on
overbroad generalizations about the different talents, capacities, or preferences of males and
females”); Califano v. Webster, 430 U.S. 313, 317 (1977) (under heightened scrutiny, a court
looks at whether a gender classification is the “result of ‘archaic and overbroad generalizations’
about women or of ‘the role-typing society has long imposed’ upon women”).
Indeed, one of justifications offered for Ohio’s non-recognition of same-sex marriages in
Ohio was the well-being of children 77 As discussed, that premise flies in the face of the
overwhelming scientific consensus that has developed through decades of rigorous studies. See
infra, Argument, Part IV.C.5.b. As the Supreme Court of Iowa explained: “The research
appears to strongly support the conclusion that same-sex couples foster the same wholesome
environment as opposite-sex couples and suggests that the traditional notion that children need a
mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype
than anything else.” Varnum, 763 N.W.2d at 899 n.26. A law enforcing that stereotype must be
subjected to heightened scrutiny.
The Supreme Court has made emphatically clear that gender classifications cannot be
based on or validated by “fixed notions concerning the roles and abilities of males and females.”
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982). And in the context of parenting
responsibilities, the Supreme Court has rejected the notion of “any universal difference between
maternal and paternal relations at every phase of a child’s development.” Caban v. Mohammed,
441 U.S. 380, 388-89 (1979); see also Stanley v. Illinois, 405 U.S. 645 (1972) (finding that a
state law presumption that unmarried fathers were unfit violated Due Process and Equal
Protection Clauses). The Court also has recognized that stereotypes about distinct parenting
roles for men and women foster discrimination in the workplace and elsewhere. Hibbs, 538 U.S.
77

See Becker Declaration, e.g., ¶¶ 41, 58, 59, 71, 88.

30

at 736 (“Stereotypes about women’s domestic roles are reinforced by parallel stereotypes
presuming a lack of domestic responsibilities for men. . . . These mutually reinforcing
stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to
assume the role of primary family caregiver, and fostered employers’ stereotypical views about
women’s commitment to work and their value as employees.”). Thus, “generalizations about
typical gender roles in the raising and nurturing of children” are constitutionally insufficient
bases for differential treatment of the sexes. Knussman v. Maryland, 272 F.3d 625, 636 (4th Cir.
2001) (upholding liability of state agency under the Equal Protection Clause for refusing to grant
father paid leave as primary caregiver for newborn). 78
As a result of these decisions and attendant legislative reforms, laws relating to marriage
have become wholly gender-neutral, apart from their frequent exclusion of same-sex couples.
Men and women entering into marriage today have the liberty to determine for themselves the
responsibilities each will shoulder as parents, wage earners, and family decision-makers,
regardless of whether these responsibilities conform to or depart from traditional arrangements.
Laws based on the assumption that, for every family, the spousal and parental roles have to be
performed by a man and a woman must be tested under heightened scrutiny.
3. Ohio’s Marriage Ban is Also Subject to Heightened Scrutiny Because it Infringes
Plaintiffs’ Fundamental Rights and Liberty Interests.
a. Loving v. Virginia, 388 U.S. 1, 12 (1967) the Right to Marry Is a
Fundamental Right that Belongs to the Individual.

78

See also Califano v. Westcott, 443 U.S. 76, 89 (1979) (finding unconstitutional a federal statute providing for
support in event of father’s unemployment, but not mother’s unemployment; describing measure as based on
stereotypes that father is principal provider “while the mother is the ‘center of home and family life”‘); Orr v. Orr,
440 U.S. 268, 283 (1979) (invalidating a measure imposing alimony obligations on husbands, but not on wives,
because it “carries with it the baggage of sexual stereotypes”); Stanton v. Stanton, 421 U.S. 7, 14-15 (1975) (finding
unconstitutional a statute assigning different age of majority to girls than to boys and stating, “[n]o longer is the
female destined solely for the home and the rearing of the family, and only the male for the marketplace and the
world of ideas”).

31

“The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men.” Loving, 388 U.S. at 12 (citation
omitted); accord Zablocki v. Redhail, 434 U.S. 374, 383 (1978). 79 Although states have a
legitimate interest in regulating and promoting marriage, the fundamental right to marry belongs
to the individual. “[T]he regulation of constitutionally protected decisions, such as where a
person shall reside or whom he or she shall marry, must be predicated on legitimate state
concerns other than disagreement with the choice the individual has made.” Hodgson v.
Minnesota., 497 U.S. 417, 435 (1990); see also Loving, 388 U.S. at 12 (“Under our Constitution,
the freedom to marry, or not marry, a person of another race resides with the individual and
cannot be infringed by the State.”); Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984)
(““[T]he Constitution undoubtedly imposes constraints on the State’s power to control the
selection of one’s spouse . . . .”).
b. The Scope of a Fundamental Right or Liberty Interest Under the Due
Process Clause Does Not Depend on Who Is Exercising that Right.
The Supreme Court has consistently refused to narrow the scope of the fundamental right
to marry by reframing a plaintiff’s asserted right to marry as a more limited right that is about the
characteristics of the couple seeking marriage. Supreme Court cases addressing “the
fundamental right to marry” do not recast it as merely “the right to interracial marriage,” “the
right to inmate marriage,” or “the right of people owing child support to marry.” See Golinski,
824 F. Supp. 2d at 982 n.5 (citing Loving, 388 U.S. at 12; Turner v. Safley, 482 U.S. 78, 94-96
79

Many other cases describe the right to marry as fundamental. Turner v. Safley, 482 U.S. 78, 95 (1987) (“The
decision to marry is a fundamental right”); Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (“[T]he Constitution
protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s
history and tradition”); Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965) (intrusions into the “sacred precincts
of marital bedrooms” offend rights “older than the Bill of Rights”); id., at 495-496 (Goldberg, J., concurring) (the
law in question “disrupt[ed] the traditional relation of the family--a relation as old and as fundamental as our entire
civilization”); see generally Washington v. Glucksberg, 521 U.S. 702, 727 n.19 (1997) (citing cases).

32

(1987); Zablocki, 434 U.S. at 383-86; accord In re Marriage Cases, 183 P.3d at 421 n.33
(Turner “did not characterize the constitutional right at issue as ‘the right to inmate marriage.’”).
Lawrence explained that the Bowers decision was flawed from the very outset in trying to
distinguish the Court’s liberty interest jurisprudence by characterizing the inquiry as “whether
the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy.”
Lawrence, 539 U.S. at 566-67 (quoting Bowers, 478 U.S. at 190). In doing so, Bowers “fail[ed]
to appreciate the extent of the liberty at stake,” Lawrence, 539 U.S. at 567.
Lawrence held that the right of consenting adults (including same-sex couples) to engage
in private, sexual intimacy is protected by the Fourteenth Amendment’s protection of liberty,
notwithstanding the historical existence of sodomy laws and their use against gay people. For
the same reasons, the fundamental right to marry is “deeply rooted in this Nation's history and
tradition” for purposes of constitutional protection even though same-sex couples have not
historically been allowed to exercise that right.
“[H]istory and tradition are the starting point but not in all cases the ending point of the
substantive due process inquiry.” Lawrence, 539 U.S. at 572 (citation omitted). While courts
use history and tradition to identify the interests that due process protects, they do not carry
forward historical limitations, either traditional or arising by operation of prior law, on which
Americans may exercise a right once that right is recognized as one that due process protects.
This critical distinction—that history guides the what of due process rights, but not the who of
which individuals have them—is central to due process jurisprudence. “‘Fundamental rights,
once recognized, cannot be denied to particular groups on the ground that these groups have
historically been denied those rights.’” In re Marriage Cases, 183 P.3d at 430 (quoting
Hernandez, 855 N.E.2d at 23 (Kaye, C.J., dissenting) (brackets omitted)).

33

For example, when the Court held that anti-miscegenation laws violated the fundamental
right to marry in Loving, it did so despite a long tradition of excluding interracial couples from
marriage. Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992) (“[I]nterracial marriage
was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to
be an aspect of liberty protected against state interference by the substantive component of the
Due Process Clause in Loving . . . .”); Lawrence, 539 U.S. at 577-78 (“[N]either history nor
tradition could save a law prohibiting miscegenation from constitutional attack.”) (citation
omitted).
Cases subsequent to Loving have similarly confirmed that the fundamental right to marry
is available to even those who have not traditionally been eligible to exercise that right. See
Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (states may not require indigent individuals to
pay court fees in order to obtain a divorce, since doing so unduly burdened their fundamental
right to marry again); see also Zablocki, 434 U.S. at 388-90 (state may not condition ability to
marry on fulfillment of existing child support obligations). Similarly, the right to marry as
traditionally understood in this country did not extend to people in prison. See Virginia L.
Hardwick, Virgiria L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on
Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275, 277-79 (1985). Nevertheless, in Turner,
482 U.S., 95-97, the Supreme Court held that a state cannot restrict a prisoner’s ability to marry
without sufficient justification. 80

80

When analyzing other fundamental rights and liberty interests in other contexts, the Supreme Court has
consistently adhered to the principle that a fundamental right, once recognized, properly belongs to everyone. For
example, in Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982), the Supreme Court held that an individual
involuntarily committed to a custodial facility because of a disability retained liberty interests including a right to
freedom from bodily restraint, thus departing from a longstanding historical tradition in which people with serious
disabilities were not viewed as enjoying such substantive due process rights and were routinely subjected to bodily
restraints in institutions. Similarly, in Eisenstadt, 405 U.S. at 438, the Supreme Court struck down a ban on
distributing contraceptives to unmarried persons, building on its prior holding in Griswold, 381 U.S. at 486, that

34

In sum, because the fundamental right to marry is firmly rooted in our nation’s history,
that right cannot be denied to interracial couples, divorced peoplecouples, prisoners, or same-sex
couples simply because they have historically been prevented from exercising that right.
c. Ohio’s Marriage Ban Discriminates Against Same-Sex Couples With
Regard to the Exercise of Fundamental Rights and Liberty Interests.
Ohio’s marriage ban discriminates against Plaintiffs in their exercise of their fundamental
rights and liberty interests, and therefore implicates both the Due Process Clause and the Equal
Protection Clause. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (it is “essential” that
courts employ strict scrutiny when a state law denies “groups or types of individuals” rights such
as “[m]arriage and procreation [that] are fundamental”). Specifically with respect to
classifications restricting who can enter into marriage, the Court has held that “the right to marry
is of fundamental importance, and since the classification at issue here significantly interferes
with the exercise of that right, we believe that ‘critical examination’ of the state interests
advanced in support of the classification is required.” Zablocki, 434 U.S. at 383 (citation
omitted).
Even though the married Plaintiffs have validly married one another in jurisdictions that
do not exclude same-sex couples from the freedom to marry, the married Plaintiffs continue to
suffer the practical and dignitary harms of being denied recognition of their marriage by their
home state of Ohio. In striking down the statutory provision that had denied gay and lesbian
couples recognition of their otherwise valid marriages in Windsor, the Court observed:
states could not prohibit the use of contraceptives by married persons. Importantly, the Eisenstadt Court did not
suggest that this country had a specific history of protecting the sexual privacy of unmarried people. Rather, the
Court held that, “[i]f the right to privacy means anything, it is the right of the individual, married or single, to be free
from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether
to bear or beget a child.” Eisenstadt, 405 U.S. at 453. And in Lawrence, the Court followed Eisenstadt and other
due process cases in holding that lesbian and gay Americans could not be excluded from the existing fundamental
right to sexual intimacy, even though historically they had often been prohibited from full enjoyment of that right.
Lawrence, 539 U.S. at 566-67.

35

[The discriminatory statute] tells those couples, and all the world, that their otherwise
valid marriages are unworthy of . . . recognition. This places same-sex couples in an
unstable position of being in a second-tier marriage. The differentiation demeans the
couple, whose moral and sexual choices the Constitution protects . . . . And it humiliates
tens of thousands of children now being raised by same-sex couples. The law in question
makes it even more difficult for the children to understand the integrity and closeness of
their own family and its concord with other families in their community and in their daily
lives.
133 S. Ct. at 2694. Ohio’s refusal to honor the marriages of Plaintiffs who have married in other
jurisdictions similarly demeans them, humiliates their children, and complicates the children’s
understanding of their own families’ integrity, and in all of these ways infringes Plaintiffs’
liberty and equality interests as protected by the Due Process and Equal Protection Clauses.
4. Ohio’s Constitutional Amendment Barring Recognition of Marriages of Same-Sex
Couples is Also Subject to Heightened Scrutiny Because it Locks Same-Sex Couples
Out of the Normal Political Process and Makes it Uniquely More Difficult to Secure
Legislation on Their Behalf.
The Ohio same-sex marriage recognition ban warrants heightened scrutiny for an
additional reason: it discriminatorily fences out of the normal political process any citizen of the
State seeking to change the law to recognize marriages of same-sex couples performed in other
jurisdictions by enshrining Ohio’s exclusion of same-sex couples from marriage—and none of
Ohio’s other marriage regulations—in the Ohio Constitution. Unlike a citizen seeking to effect a
different change in the State’s marriage eligibility rules, such as someone wishing to change the
age at which persons may marry without parental consent (currently age 18 for males and age 16
for females under Ohio Rev. Code Ann. § 3101.01(A)), Plaintiffs cannot simply lobby the
General Assembly to change the Ohio Revised Code. Instead, they are uniquely burdened with
having to amend the Ohio Constitution.
It is well established that such a selective disparity in the ability to advocate for a change
in the law, disadvantaging a single class of people, is constitutionally suspect. See Washington v.
Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Hunter v. Erickson, 393 U.S. 385 (1969); Coal. to
36

Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466, 477 (6th Cir. 2012) (en
banc), cert. granted sub nom. Schuette v. Coal. to Defend Affirmative Action (No. 12-682); Evans
v. Romer, 882 P.2d 1335 (Colo. 1994), aff’d on other grounds 517 U.S. 620, 633 (1996). Thus,
as Justice Harlan put it in Hunter, there is a clear distinction between general rules of
governance, such as the procedure for passing a law or amending a state constitution, that are
presumptively valid even if they sometimes make it more difficult for a particular group to
further its aims, and a law structured to prevent one single group from achieving its goals. 393
U.S. at 393 (Harlan, J., concurring). The latter type of provision has “the clear purpose of
making it more difficult for . . . minorities to further their political aims” and thus is
discriminatory on its face. Id.; see also Seattle Sch. Dist. No. 1, 458 U.S. at 470 (adopting
Justice Harlan’s concurrence); Evans v. Romer, 882 P.2d 1335, 1339 (Colo. 1994) aff'd on other
grounds, 517 U.S. 620 (1996) (“[T]he Equal Protection Clause of the United States Constitution
protects the fundamental right to participate equally in the political process, and . . . any
legislation or state constitutional amendment which infringes on this right by ‘fencing out’ an
independently identifiable class of persons must be subject to strict judicial scrutiny.” (internal
quotation marks and citation omitted)).
5. Ohio’s Ban on Marriage Recognition Fails Under Any Standard of Review
Although heightened scrutiny is warranted for the reasons discussed above, the marriage
bans cannot satisfy even rational basis review. “Even in the ordinary equal protection case
calling for the most deferential of standards, [the Court] insist[s] on knowing the relation
between the classification adopted and the object to be attained.” Romer v. Evans, 517 U.S. 620,
632, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). “[S]ome objectives . . . are not legitimate state
interests” and, even when a law is justified by an ostensibly legitimate purpose, “[t]he State may

37

not rely on a classification whose relationship to an asserted goal is so attenuated as to render the
distinction arbitrary or irrational.” City of Cleburne, Tex., 473 U.S. at 446-47.
At the most basic level, by requiring that classifications be justified by an independent
and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn
for “the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633; see
also Windsor, 133 S. Ct. at 2693; City of Cleburne, Tex., 473 U.S. at 450; U.S. Dep’t of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973). The Supreme Court invoked this principle
most recently in Windsor when it held that the principal provision of the federal Defense of
Marriage Act (“DOMA”) violated equal protection principles because the “purpose and practical
effect of the law . . . [was] to impose a disadvantage, a separate status, and so a stigma upon all
who enter into same-sex marriages.” Windsor, 133 S. Ct. at 2693. The Court explained that the
statute was not sufficiently connected to a legitimate governmental purpose because its
“interference with the equal dignity of same-sex marriages . . . was more than an incidental effect
of the federal statute. It was its essence.” Id. The Supreme Court has sometimes described this
impermissible purpose as “animus” or a “bare … desire to harm a politically unpopular group.”
Windsor, 133 S. Ct. at 2693; Romer, 517 U.S. at 633; City of Cleburne, Tex., 473 U.S. at 447;
Moreno, 413 U.S. at 534. But an impermissible motive does not always reflect “malicious ill
will.” Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,
concurring). It can also take the form of “negative attitudes,” City of Cleburne, Tex., 473 U.S. at
448, “fear,” Id. “irrational prejudice,” Id. at 450, or “some instinctive mechanism to guard
against people who appear to be different in some respects from ourselves,” Garrett, 531 U.S. at
374 (Kennedy, J., concurring). 81 The Sixth Circuit has held that, “the desire to effectuate one’s

81

In determining whether a law is based on such an impermissible purpose, the Court has looked to a variety of
direct and circumstantial evidence, including the text of a statute and its obvious practical effects, see, e.g., Windsor,

38

animus against homosexuals can never be a legitimate governmental purpose, [and] a state action
based on that animus alone violates the Equal Protection Clause.” Davis v. Prison Health
Services, 679 F.433 438, (quoting Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th
Cir.1997) (inmate had viable equal protection claim where he alleged prison officials
purposefully discriminated against him based on his sexual orientation when he was removed
from prison job).
In addition, even when the government offers an ostensibly legitimate purpose, the court
must also examine the statute’s connection to that purpose to assess whether it is too
“attenuated” to rationally advance the asserted governmental interest. City of Cleburne, Tex.,
473 U.S. at 446; see, e.g., Moreno, 413 U.S. at 535-36 (invalidating law on rational-basis review
because “even if we were to accept as rational the Government’s wholly unsubstantiated
assumptions concerning [hippies] . . . we still could not agree with the Government’s conclusion
that the denial of essential federal food assistance . . . constitutes a rational effort to deal with
these concerns”); Eisenstadt v. Baird, 405 U.S. 438, 448-49 (1972) (invalidating law on rationalbasis review because, even if deterring premarital sex is a legitimate governmental interest, “the
effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal
relation to the proffered objective”).

133 S. Ct. at 2693; Romer, 517 U.S at 633; Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S.
252, 266-68 (1977), statements by legislators during floor debates or committee reports, see, e.g., Windsor, 133 S.
Ct. at 2693; Moreno, 413 U.S. at 534-35, the historical background of the challenged statute, see, e.g., Windsor, 133
S. Ct. at 2693; Arlington Heights, 429 U.S. at 266-68, and a history of discrimination by the relevant governmental
entity, see, e.g. Arlington Heights, 429 U.S. at 266-68. Finally, even without direct evidence of discriminatory
intent, the absence of any logical connection to a legitimate purpose can lead to an inference of an impermissible
intent to discriminate. See Romer, 517 U.S. at 632 (reasoning that the law’s “sheer breadth is so discontinuous with
the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it
affects”); City of Cleburne, Tex., 473 U.S. at 448-50 (reasoning that because a home for developmentally disabled
adults did posed no threat to city’s interests other than those also posed by permitted uses, requiring a special zoning
permit in this case “appears to us to rest on an irrational prejudice”).

39

This search for a meaningful connection between a classification and the asserted
governmental interest also provides a safeguard against intentional discrimination. As the
Supreme Court has explained, “[b]y requiring that the classification bear a rational relationship
to an independent and legitimate legislative end, we ensure that classifications are not drawn for
the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633. 82
In Bassett v. Snyder, --- F. Supp. 2d ----, 2013 WL 3285111 (E.D. Mich. June 28, 2013),
the court held that same-sex couples demonstrated a likelihood of success on the merits of their
equal protection claim regarding a Michigan law prohibiting same-sex partners from receiving
public employee benefits where “[t]he historical background and legislative history of the Act
demonstrate that it was motivated by animus against gay men and lesbians.” *24-26. A review of
the historical background and legislative history of the laws at issue here lead to a similar
conclusion, and when the evidentiary record is examined, it is undeniable that the requested
relief should be granted to the Plaintiffs. The evidence shows that there is no legitimate, let alone
compelling, state interest that justifies denying same-sex married couples recognition of their
marriages. Ohio’s ban on recognition of valid same-sex marriages shares all the hallmarks of
irrational discrimination that have been present in prior Supreme Court cases that struck down
laws violating even the lowest level of equal protection scrutiny. Even if the Court does not

82

The Supreme Court has been particularly likely to find a classification too attenuated to serve an asserted
government interest when the law imposes a sweeping disadvantage on a group that is grossly out of proportion to
accomplishing that purpose. For example, in Romer, the Court invalidated a Colorado constitutional amendment
excluding gay people from eligibility for nondiscrimination protections because, the law “identifie[d] persons by a
single trait and then denie[d] them protection across the board.” 517 U.S. at 633. Similarly, in Windsor the
Supreme Court invalidated the challenged section of DOMA as not sufficiently related to any legitimate
governmental purpose in part because it was “a system-wide enactment with no identified connection” to any
particular government program. Windsor, 133 S. Ct. at 2694. In such situations, the law’s breadth may “outrun and
belie any legitimate justifications that may be claimed for it.” Romer, 517 U.S. at 635; see also id. (“The breadth of
the amendment is so far removed from these particular justifications that we find it impossible to credit them.”).
Ohio’s sweeping marriage bans likewise exclude same-sex couples and their children system-wide from the
protections and benefits afforded married couples and their families under Ohio and federal law.

40

apply heightened scrutiny (although it should), none of the rationales likely to be proffered for
Ohio’s recognition ban can withstand constitutional review.
a. Ohio’s Recognition Ban Cannot Be Justified by an Asserted Interest in Maintaining
a Traditional Definition of Marriage.
In order to survive constitutional scrutiny, Ohio’s recognition ban must be justified by
some legitimate state interest other than simply maintaining a “traditional” definition of
marriage. “Ancient lineage of a legal concept does not give it immunity from attack for lacking
a rational basis.” Heller v. Doe by Doe, 509 U.S. 312, 326-27 (1993). Indeed, the fact that a
form of discrimination has been “traditional” is a reason to be more skeptical of its rationality.
“The Court must be especially vigilant in evaluating the rationality of any classification
involving a group that has been subjected to a tradition of disfavor for a traditional classification
is more likely to be used without pausing to consider its justification than is a newly created
classification.” City of Cleburne, Tex., 473 U.S. at 454 n.6 (Stevens, J., concurring) (alterations
incorporated; internal quotation marks omitted); see also Marsh v. Chambers, 463 U.S. 783, 79192 (1983) (even longstanding practice should not be “taken thoughtlessly, by force of long
tradition and without regard to the problems posed by a pluralistic society”); In re Marriage
Cases, 183 P.3d at 853-54 (“[E]ven the most familiar and generally accepted of social practices
and traditions often mask an unfairness and inequality that frequently is not recognized or
appreciated by those not directly harmed by those practices or traditions.”). As the Supreme
Court has explained, “times can blind us to certain truths and later generations can see that laws
once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579.
Regarding laws that exclude same-sex couples from marriage, “the justification of
‘tradition’ does not explain the classification; it merely repeats it. Simply put, a history or
tradition of discrimination — no matter how entrenched — does not make the discrimination
41

constitutional. . . .” Kerrigan, 957 A.2d at 478 (citation omitted); accord Goodridge v. Dep’t of
Pub. Health, 798 N.E.2d 941, 961 n.23 (Mass. 2003) (“[I]t is circular reasoning, not analysis, to
maintain that marriage must remain a heterosexual institution because that is what it historically
has been.”); Varnum, 763 N.W.2d at 898 (asking “whether restricting marriage to opposite-sex
couples accomplishes the governmental objective of maintaining opposite-sex marriage” results
in “empty analysis”); see also Golinski, 824 F. Supp. 2d at 993 (“Tradition alone . . . cannot form
an adequate justification for a law. . . . Instead, the government must have an interest separate
and apart from the fact of tradition itself.”) (citations omitted).
Ultimately, “‘preserving the traditional institution of marriage’ is just a kinder way of
describing the [s]tate’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601
(Scalia, J., dissenting) (emphasis in original). That intent to discriminate is not a rational basis
for perpetuating discrimination. See Windsor, 133 S. Ct. at 2692; Romer, 517 U.S. at 633; City
of Cleburne, Tex., 473 U.S. at 450; Moreno, 413 U.S. at 534.
b. Ohio’s Marriage Recognition Ban Cannot Be Justified by an Asserted Interest
Related to Children.
Supporters of the Ohio DOMA statute and the Constitutional Amendment have asserted
that children are best off when raised by a mother and father. 83 But even if it were rational for
legislators to speculate that children raised by heterosexual couples are better adjusted than
children raised by gay ones—and it is not, see infra, Fulcher discussion—there is simply no
rational connection between the Ohio marriage recognition ban and the asserted goal.
Ohio’s marriage recognition ban does not prevent gay couples from having children. See
Golinski, 824 F. Supp. 2d at 997 (“Even if the Court were to accept as true, which it does not,
that opposite-sex parenting is somehow superior to same-sex parenting, DOMA is not rationally
83

Becker Declaration, Doc. 41-1, ¶ 41, House TR, p. 29; Becker Declaration, Doc. 41-1, ¶ 88.

42

related to this alleged governmental interest.”); accord Windsor, 699 F.3d at 188; Pedersen, 881
F. Supp. 2d at 340-41; Varnum, 763 N.W.2d at 901.
The only effect that Ohio’s marriage recognition ban has on children’s well-being is that
it harms the children of same-sex couples who are denied the protection and stability of having
parents who are married. The Windsor Court aptly described how families with same-sex
parents are treated by laws such as Ohio’s marriage recognition ban:
The differentiation demeans the couple, whose moral and sexual choices the
Constitution protects . . . . And it humiliates . . . children now being raised by
same-sex couples. The law in question makes it even more difficult for the
children to understand the integrity and closeness of their own family and its
concord with other families in their community and in their daily lives.
Windsor, 133 S. Ct. at 2694 (internal citations omitted).
Like the DOMA statute invalidated in Windsor, Ohio’s marriage recognition ban serves
only to “humiliate” the “children now being raised by same-sex couples” and “make[] it even
more difficult for the children to understand the integrity and closeness of their own family and
its concord with other families in their community and in their daily lives.” Windsor, 133 S. Ct.
at 2694. “Excluding same-sex couples from civil marriage will not make children of oppositesex marriages more secure, but it does prevent children of same-sex couples from enjoying the
immeasurable advantages that flow from the assurance of a stable family structure in which
children will be reared, educated, and socialized.” Goodridge, 798 N.E.2d at 964 (internal
quotation marks and citation omitted)). To the extent that Ohio’s marriage recognition ban
visits these harms on children as a way to attempt (albeit irrationally) to deter other same-sex
couples from having children, the Supreme Court has invalidated similar attempts to incentivize
parents by punishing children as “‘illogical and unjust.’” Plyler, 457 U.S. at 220 (quoting Weber
v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)). “‘Obviously, no child is responsible for his

43

birth and penalizing the . . . child is an ineffectual—as well as unjust—way of deterring the
parent.’” Id. (quoting Weber, 406 U.S. at 175).84
The lack of rational connection between the marriage ban and the asserted goals of
encouraging children to be raised by heterosexual couples is sufficient to render the marriage ban
unconstitutional, even without considering whether the government has a legitimate basis for
preferring different-sex over same-sex parents. But the overwhelming scientific consensus,
based on decades of peer-reviewed scientific research, shows unequivocally that children raised
by same-sex couples are just as well adjusted as those raised by heterosexual couples. See
Fulcher Declaration, Doc. 43-1, ¶¶ 18-19 (“[i]n . . . widely variable studies, the same findings
continue to emerge: children reared by lesbian and gay parents are doing as well as children
raised by heterosexual parents.”). The American Psychological Association, the American
Academy of Pediatrics, the American Medical Association, the American Academy of Child and
Adolescent Psychiatry, and the American Academy of Family Physicians (among others) each
have released statements in support of gay and lesbian parents and their ability and rights to rear
children. Id. at ¶ 16.
This consensus has also been recognized by numerous courts. See Perry, 704 F. Supp. 2d
at 980 (finding that the research supporting the conclusion that “[c]hildren raised by gay or
lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful
and well-adjusted” is “accepted beyond serious debate in the field of developmental
psychology”); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct. Nov. 25, 2008)
(“[B]ased on the robust nature of the evidence available in the field, this Court is satisfied that
84

Moreover, any law adopted with the purpose of burdening gay people’s ability to procreate would also demand
strict scrutiny for implicating the fundamental right to decide “‘whether to bear or beget a child.’” Planned
Parenthood of SE Penn. v. Casey, 505 U.S. 833, 851 (1992) (quoting Eisenstadt, 405 U.S. at 453); see Pedersen,
881 F. Supp. 2d at 341.

44

the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests
of children are not preserved by prohibiting homosexual adoption.”), aff’d sub nom. Fla. Dep’t of
Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v.
Child Welfare Agency Rev. Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL
3200916, at *3-4 (Ark. Cir. Ct. Dec. 29, 2004) (holding based on factual findings regarding the
well-being of children of gay parents that “there was no rational relationship between the
[exclusion of gay people as foster parents] and the health, safety, and welfare of the foster
children.”), aff’d sub nom. Dep’t of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006);
Varnum, 763 N.W.2d at 899 and n.26 (concluding, after reviewing “an abundance of evidence
and research,” that “opinions that dual-gender parenting is the optimal environment for children .
. . is based more on stereotype than anything else”); Golinski, 824 F. Supp. 2d at 991 (“More
than thirty years of scholarship resulting in over fifty peer-reviewed empirical reports have
overwhelmingly demonstrated that children raised by same-sex parents are as likely to be
emotionally healthy, and educationally and socially successful as those raised by opposite-sex
parents.”).
In any event, as discussed above, even without considering the scientific consensus
regarding parenting by same-sex couples, the marriage recognition ban still fails constitutional
review as a matter of law because there is no rational connection between the state’s refusal to
recognize the marriages of same-sex couples performed in jurisdictions where they are lawful
and optimal parenting. Finally, children being raised by different-sex couples are simply
unaffected by whether same-sex couples can marry. See Windsor, 699 F.3d at 188; Golinski, 824
F. Supp. 2d at 998; Pedersen, 881 F. Supp. 2d at 340-41; Varnum, 763 N.W.2d at 901.

45

c. No Legitimate Interest Overcomes the Primary Purpose and Practical Effect of
Ohio’s Marriage Bans to Disparage and Demean Same-Sex Couples and Their
Families.
Because there is no rational connection between Ohio’s marriage recognition ban and any
of the asserted state interests, this Court can conclude that the marriage ban violates equal
protection even without considering whether it is motivated by an impermissible purpose. See
Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (allegations of irrational discrimination
“quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief
under traditional equal protection analysis”). In this case, however, the lack of any connection
between Ohio’s marriage recognition ban and any legitimate state interest also confirms the
inescapable conclusion that it was passed because of, not in spite of, the harm it would inflict on
same-sex couples. And, even if it were possible to hypothesize a rational connection between
Ohio’s marriage recognition ban and some legitimate governmental interest—and there is
none—Ohio’s marriage recognition ban would still violate equal protection because no
hypothetical justification can overcome the unmistakable primary purpose and practical effect of
the marriage ban to disparage and demean the dignity of same-sex couples in the eyes of the
State and the wider community.
The Supreme Court in Windsor recently reaffirmed that when the primary purpose and
effect of a law is to harm an identifiable group, the fact that the law may also incidentally serve
some other neutral governmental interest cannot save it from unconstitutionality. In defending
the constitutionality of DOMA, the Bipartisan Legal Advisory Group (“BLAG”) argued that the
statute helped serve a variety of federal interests in promoting efficiency and uniformity, as well
as the same purported state interests that the State Defendant has asserted and is likely to assert
in support of the marriage recognition ban. See Merits Brief of Bipartisan Legal Advisory Group

46

in United States v. Windsor, 2013 WL 267026, at *21 (2013). But the Supreme Court held that
none of BLAG’s rationalizations could save the law. The Court explained that “[t]he principal
purpose [of DOMA] [was] to impose inequality, not for other reasons like governmental
efficiency,” and “no legitimate purpose overcomes the purpose and effect to disparage and
injure” same-sex couples and their families. Windsor, 133 S. Ct at 2694, 2696; see also Vance v.
Bradley, 440 U.S. 93, 97 (1979) (rational-basis review is deferential “absent some reason to infer
antipathy”); Lawrence, 539 U.S. at 580 (O’Connor, J., concurring) (“When a law exhibits such a
desire to harm a politically unpopular group, we have applied a more searching form of rational
basis review to strike down such laws under the Equal Protection Clause.”).
It is indisputable that Ohio’s marriage recognition ban was enacted because of, not in
spite of, its adverse effect on same-sex couples. The historical background of the marriage
recognition ban reflects a targeted attempt to exclude same-sex couples, not a mere side-effect of
some broader public policy. Cf. Windsor, 133 S. Ct. at 2693 (examining historical context of
DOMA); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-67 (1977)
(explaining “historical background of the decision” is relevant when determining legislative
intent). The marriage recognition ban was not enacted long ago at a time when “many citizens
had not even considered the possibility that two persons of the same sex might aspire to occupy
the same status and dignity as that of a man and woman in lawful marriage.” Windsor, 133 S.
Ct. at 2689. The statutory and constitutional provisions were enacted as specific responses to
developments in other jurisdictions where same-sex couples sought the freedom to marry. The
marriage recognition ban did not simply represent a failure to include same-sex couples within
the broader public policies advanced by marriage; it was a specific, targeted effort to exclude
same-sex couples.

47

The legislative debates similarly reflect an intent to disparage same-sex relationships. 85
In addition to all the other contemporaneous evidence of an impermissible purpose, the
inescapable “practical effect” of Ohio’s marriage recognition ban is “to impose a disadvantage, a
separate status, and so a stigma upon” same-sex couples in the eyes of the state and the broader
community. Windsor, 133 S. Ct. at 2693; see also Heckler v. Mathews, 465 U.S. 728, 739-40
(1984) (“[A]s we have repeatedly emphasized, discrimination itself, by perpetuating ‘archaic and
stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’
and therefore as less worthy participants in the political community . . . can cause serious
noneconomic injuries to those persons who are personally denied equal treatment solely because
of their membership in a disfavored group.”) (footnote and citations omitted). The marriage
recognition ban serves to “diminish[] the stability and predictability of basic personal relations”
of gay people and “demeans the couple, whose moral and sexual choices the Constitution
protects.” Windsor, 133 S. Ct. at 2694 (citing Lawrence, 539 U.S. 558 (2003)). The marriage
recognition ban thus constitutes an “official statement that the family relationship of same-sex
couples is not of comparable stature or equal dignity to the family relationship of opposite-sex
couples” and that “that it is permissible, under the law, for society to treat gay individuals and
same-sex couples differently from, and less favorably than, heterosexual individuals and
opposite-sex couples.” In re Marriage Cases, 183 P.3d 384 at 452. That official statement of
inequality is “in and of itself is an invitation to subject homosexual persons to discrimination
both in the public and in the private spheres.” Lawrence, 539 U.S. at 575.
The unmistakable intent of the marriage recognition ban is to impose inequality on gay
people and their intimate relationships. As noted above, Ohio’s marriage recognition ban is not
rationally related to any legitimate purpose. But even if there were a rational connection between
85

See Becker Declaration, pp. 10-32.

48

the marriage recognition ban and some legitimate purpose, that incidental connection could not
“overcome[] the purpose and effect to disparage and to injure” same-sex couples and their
families. Windsor, 133 S. Ct. at 2696. Ohio’s ban on recognition of valid marriages between
same-sex couples performed in other jurisdictions cannot survive any level of scrutiny, and
therefore violates the Due Process and Equal Protection guarantees of the U.S. Constitution.
6. Same-Sex Married Couples are Entitled to Accurate Death Certificates that Reflect
the Existence of the Marriage Just as are Opposite-Sex Married Couples
This Court should enjoin the Defendants from discriminating against same-sex married
couples when it comes to filing death certificates that accurately reflect the existence of their
marriages. This is a logical, small extension of the holdings in Windsor and the protections
afforded to lesbians and gay men in recent years through the development of equal protection
and due process precedent. The widowed Plaintiffs seek to make permanent the recognition of
their marriages on their deceased husbands’ death certificates because this is the last official
record of their spouses’ lives, and they want this document to reflect their legacy as married for
the public and for their descendants generations from now who may research their history. 86
Death certificates are important not just for the emotional weight this official document carries
for surviving family, but also for more concrete reasons such as their “evidentiary value in both
the private and public sector. Financial institutions universally advise surviving spouses to obtain
multiple certified copies of death certificates upon the death of their loved ones . . . In the public
sector, a death certificate is required for a surviving spouse to claim an interest worth up to
$40,000 in one or two of the decedent's separately titled vehicles.” 87
Plaintiff Robert Grunn who, as a funeral director tasked with filling out death certificates,
faces the risk of prosecution for purposely making a false statement on a death certificate, is
86
87

Declaration of James Obergefell, Doc. 3-1, ¶ 15-17.
McKay Declaration, Doc. 45-1, ¶ 17.

49

entitled to protection from prosecution and a declaration of his rights and duties when serving
same-sex married clients. 88
V.

CONCLUSION

This Court should issue a declaratory judgment that Ohio Revised Code Section
3101.01(C) and Article 15, Section 11 of the Ohio Constitution violate rights secured by the
Fourteenth Amendment to the United States Constitution in that same-sex couples married in
jurisdictions where same-sex marriage is valid who seek to have their out-of-state marriage
accepted as legal in Ohio are treated differently than opposite-sex couples who have been
married in states where their circumstances allow marriage in that state but not in Ohio. Further,
Plaintiffs move for a permanent injunction prohibiting the defendants and their officers from
enforcing those laws upon the Plaintiffs. This includes such officials completing death
certificates as the need arises for the plaintiffs in a manner consistent with its order.

Respectfully submitted,
/s/ Alphonse A. Gerhardstein
Alphonse A. Gerhardstein (0032053)
Trial Attorney for Plaintiff
Jennifer L. Branch (0038893)
Jacklyn Gonzales Martin #0090242
Gerhardstein & Branch, Co., L.P.A.
432 Walnut Street, Suite 400
Cincinnati, Ohio 45202
Tel. [phone]
Fax [phone]
[e-mail]
[e-mail]
[e-mail]
88

Robert Grunn Declaration, Doc. 34-1, ¶ 17.

50

Lisa T. Meeks (0062074)
Newman & Meeks Co., LPA
215 E. Ninth Street, Suite 650
Cincinnati, OH 45202
phone: [phone]
fax: [phone]
[e-mail]
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2013, a copy of the foregoing pleading was filed
electronically. Notice of this filing will be sent to all parties for whom counsel has entered an
appearance by operation of the Court’s electronic filing system. Parties may access this filing
through the Court’s system. I further certify that a copy of the foregoing pleading and the Notice
of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has
not yet entered an appearance electronically.
/s/Alphonse A Gerhardstein

51