Obergefell et al v. Kasich et al

Filing 56

RESPONSE in Opposition re 53 MOTION for Permanent Injunction and Declaratory Judgment filed by Defendant Theodore Wymyslo, M.D.. (Coontz, Bridget)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES OBERGEFELL, et al.,
Plaintiffs,
v.
THEODORE E. WYMYSLO, M.D.,
Defendant.

:
: Case No. 1:13-cv-00501
:
: District Judge Timothy S. Black
:
:
:
:
:

MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR DECLARATORY
AND PERMANENT INJUNCTION

Respectfully submitted,
MIKE DEWINE
Ohio Attorney General
/s/ Bridget E. Coontz
BRIDGET E. COONTZ (0072919)*
*Lead and Trial Counsel
ZACHERY P. KELLER (0086930)
Assistant Attorneys General
Constitutional Offices Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Tel: [phone]; Fax: [phone]
[e-mail]
[e-mail]
Counsel for State Defendants

i

TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
“By history and tradition the definition and regulation of marriage . . . has been treated as being
within the authority and realm of the separate States.” United States v. Windsor, 133 S. Ct. 2675,
2689-90 (2013). The democratic process, not select federal courts, is best equipped to evaluate
the definition of marriage. In 2004, three million Ohio voters amended Ohio’s Constitution to
define “marriage” in Ohio as uniquely between a man and a woman. Under these circumstances,
the Court should decline Plaintiffs’ invitation to require that certain Ohio death certificates
reference same-sex marriages established in other states.
BACKGROUND .............................................................................................................................2
LAW AND ARGUMENT ...............................................................................................................5
I.

Binding Supreme Court precedent and federal law dispositively
forecloses Plaintiffs’ claims. ....................................................................................5
A.

The United States Supreme Court has determined that the
issue of same-sex marriage does not raise a substantial
federal question under constitutional analysis. ............................................5

Binding Supreme Court precedent precludes Plaintiffs’ due process and equal protection claims.
Baker v. Nelson, 409 U.S. 810 (1972). In Baker, the United States Supreme Court summarily
dismissed for lack of a federal question a constitutional challenge to Minnesota’s statutory
definition of marriage as a union between a man and a woman. In determining that a substantial
federal question was not raised, the Court necessarily rejected the contention that Minnesota’s
ban on same-sex marriage violated the Equal Protection and Due Process Clauses. Baker remains
binding and precludes equal protection and due process challenges to state laws prohibiting
recognition of same-sex marriage. See, e.g., Wilson v. Ake, 354 F. Supp. 2d 1298, 1303 (M.D.
Fla. 2005); Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1084 (D. Haw. 2012).
B.

The Supreme Court’s decision in Windsor re-affirmed each
State’s responsibility to define marriage in this fundamental
regard and did not affect Baker. ...................................................................8

The Supreme Court’s decision in Windsor does not change the precedent of Baker, but instead
reaffirms that defining marriage falls squarely within the province of the states. The Windsor
Court struck down Section 3 of DOMA, which precluded federal recognition of same sex
marriage, even where a State has elected to do so. The Court stressed that domestic relations has
long been the almost exclusive responsibility of the states and the “recognition of civil marriages
is central to state domestic relations law.” Windsor, 133 S. Ct.. 2691.
C.

Congress, too, has expressly recognized the States’
authority to define marriage in this regard, including the
right to refuse to recognize out-of-state marriages. .....................................9

The states’ right to define their different policies with respect to same-sex marriage includes the
right to determine whether or not to recognize same-sex marriages of other states. Federal law,
unchallenged here, makes this clear. 28 U.S.C.A. § 1738C. This Court cannot accord Plaintiffs
i

the relief they seek unless the Court invalidates this controlling federal statute, which Windsor
expressly left untouched. See generally Windsor, 133 S. Ct. 2675. Plaintiffs’ decision not to
challenge the federal law endorsing Ohio’s right to determine its own definition of marriage
requires dismissal here.
II.

Even if binding Supreme Court precedent and federal statute did
not compel dismissal of Plaintiffs’ claims, this Court should
decline to rewrite the state policy in dispute. .........................................................11

Deeply rooted principles of federalism compel the conclusion that federal courts should not
intrude upon Ohio citizens’ choice regarding same-sex marriage policy. Courts have long
recognized the states’ general supremacy in determining matters of domestic law, including
marriage, and federal courts have been reluctant to tread on this territory. See Windsor, 133 S.
Ct. at 2691. Although the federal government has never taken the position that Ohio or any other
state must perform same-sex marriages or recognize same-sex marriages celebrated out of state,
Plaintiffs ask this Court to do just that. Such a ruling would immunize Plaintiffs’ position on one
side of the same-sex marriage debate from the democratic process, significantly affect Ohio law,
and force Ohio to act contrary to its express public policy and the will of its citizens. Federal
courts are not well-suited to delve into these fields of Ohio law and policy, particularly where
Ohio’s marriage laws are “the product of direct legislation by the people.” Equality Foundation
of Greater Cincinnati, v. Cincinnati, 128 F.3d 289, 298 (6th Cir. 1997).
III.

Plaintiffs’ claims rely on a fundamental misunderstanding of Ohio
law. .........................................................................................................................14

Plaintiffs’ claims hinge on the erroneous premise that Ohio automatically recognizes all out-ofstate opposite-sex marriages. To the contrary, Ohio has always refused to recognize any
marriage celebrated out of state that is “unalterably opposed to a well-defined public policy, or
prohibited.” Mazzolini v. Mazzolini, 168 Ohio St. 357, 358, 155 N.E.2d 206, 208 (Ohio 1958);
Peefer v. State, 42 Ohio App. 276, 286, 182 N.E. 117, 121 (Ohio App. Ct. 1931).
IV.

Because Ohio’s marriage laws survive rational basis scrutiny,
Plaintiffs’ Equal Protection and Due Process Claims fail on the
merits......................................................................................................................15

Under any form of equal protection or substantive due process analysis, Plaintiffs’ claims fail
because Ohio’s marriage laws survive rational basis review. Where no suspect class or
fundamental right is implicated, rational basis review requires a court to sustain the challenged
government action where the varying treatment of different groups or persons is rationally
related to a legitimate state interest. See Sadie v. City of Cleveland, 718 F.3d 596, 601-02 (6th
Cir. 2013).
A.

Rational basis is the proper level of scrutiny to apply here. ......................16
1.

Sixth Circuit precedent requires application of rational basis
scrutiny.

The Sixth Circuit has repeatedly and unambiguously ruled that classifications based on sexual
orientation are subject to rational basis scrutiny. See, e.g., Equality Foundation, 128 F.3d 289;
Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough v. Morgan Cnty.
Bd. Of Educ., 470 F.3d 250, 261 (6th Cir. 2006). The clear majority of circuits have reached the
same conclusion.
ii

2.

Plaintiffs’ arguments regarding heightened scrutiny ignore
binding precedent and lack support.

The Sixth Circuit has rejected any contention that sexual orientation is subject to heightened
scrutiny and binding precedent requires rational basis review.
a. Plaintiffs cannot prove that sexual orientation is a suspect
classification.
Sexual orientation is not a suspect class in the Sixth Circuit. See generally Equality Foundation,
128 F.3d 289. Thus, a point-by-point review of the suspect class factors is unwarranted. In any
case, Plaintiffs’ submissions, which this Court need not consider, fail to substantiate a history of
public discrimination by the State of Ohio. Moreover, in light of recent victories, “homosexuals
have meaningful political power to protect their interests…through democratic processes” and do
not “require extraordinary protection from majoritarian processes via heightened scrutiny.”
Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1013 (D. Nev. 2012).
b. A prohibition against recognition of same-sex marriage is
not a classification based on gender.
Plaintiffs’ contention that Ohio’s marriage laws are gender-based classifications, triggering
intermediate scrutiny, also fails. It is well-established that equal protection jurisprudence treats
gender and sexual orientation as distinct categories. Compare United States v. Virginia, 518
U.S. 515, 531 (1996) with Romer v. Evans, 517 U.S. 620, 632 (1996). Moreover, the laws at
issue here do not favor of disfavor one sex over another. Courts have overwhelmingly rejected
attempts to frame challenges to same-sex marriage restrictions as creating a gender–based
classification. See, e.g., Sandoval, 911 F. Supp. 2d at 1005; Jackson, 884 F. Supp. 2d at 1098.
c. Same-sex marriage is not a fundamental right under Court
precedent.
Plaintiffs cannot invoke heightened scrutiny by arguing that the right to same-sex marriage is
embedded within the fundamental right to marry. The vast majority of courts to consider the
issue have found that same-sex marriage is not a fundamental right and is not included within the
fundamental right to marry. See, e.g., Jackson, 884 F. Supp. 2d at 1094-98; Wilson, 354 F. Supp.
2d at 1306-07. This Court should not expand—and redefine—the traditional right to marry to
include same-sex marriage. A fundamental right “must be ‘objectively, deeply rooted in
Nation’s history and tradition, and implicit in the concept of ordered liberty.’” U.S. Citizens
Ass’n v. Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (quoting Washington v. Glucksberg, 521
U.S. 702, 720–21 (1997)). The possibility of same-sex marriage is a recent development in our
nation’s history and is not deeply rooted in history and tradition.
d. Ohio’s marriage laws do not exclude same-sex couples from
the political process.
Plaintiffs’ assertion that Ohio’s marriage laws exclude same-sex couples from the political
process is unpersuasive. The political process doctrine impacts situations “when the majority has
not only won, but has rigged the game to reproduce its success indefinitely.” Coal. to Defend
iii

Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466, 475 (6th Cir. 2012). Through
Ohio’s initiative process, proponents of traditional marriage passed a constitutional amendment.
Advocates of same-sex marriage may use the same process in the same way.
B.

Applying rational basis review, the Court must exercise
judicial restraint in considering Ohio’s marriage laws
and may not guess at some collective motivation of Ohio
voters. ........................................................................................................28
1.
The Court cannot speculate as to the differing motivations of
Ohio voters or legislators in supporting Ohio’s same-sex marriage
laws.

Where, as here, the law in question is a direct result of an electoral vote, a reviewing court
cannot even inquire into the actual motivations of the electorate in adopting a measure via
initiative or referendum. Equality Foundation, 128 F.3d at 294 n.4. Similarly, the Court cannot
inquire into the motivations of lawmakers. FCC v. Beach Comm’s, Inc., 508 U.S. 307, 315
(1993). Rather, rational basis review requires the Court to consider all potential justifications.
2.

Rational basis review requires the Court to defer greatly to
Ohio’s marriage laws.

Rational basis review is “a paradigm of judicial restraint.” Beach, 508 U.S. at 314. A “strong
presumption of validity” attaches to the law being challenged. Bailey v. Callaghan, 715 F.3d
956, 960 (6th Cir. 2013). Rational basis review does not permit a court “to judge the wisdom,
fairness, or logic of legislative choices.” Doe v. Michigan Dept. of State Police, 490 F.3d 491,
505-06 (6th Cir. 2007). Judicial restraint ensures that the democratic process will find the
correct result, not the court, as contemplated by the Constitution. Spurlock v. Fox, 716 F.3d 383,
402 (6th Cir. 2013).
3.

Under rational basis review, Plaintiffs bear the burden of
negating every conceivable basis that might support Ohio’s
marriage laws.

Under rational basis review, a law “will be sustained if the classification drawn by the statute is
rationally related to a legitimate state interest.” Spurlock, 716 F.3d at 402. If Ohio’s marriage
laws can “be upheld under any plausible justification offered by the state, or even hypothesized
by the court, it survives rational-basis scrutiny.” Am. Exp. Travel, 641 F.3d 685, 690 (2011).
Plaintiffs bear the burden “to negative every conceivable basis which might support it.” Heller
v. Doe, 509 U.S. 312, 320 (1993). It is not enough for Plaintiffs to simply submit evidence
detracting from potential justifications for Ohio’s marriage laws. Instead, the Court must accept
any “rational speculation” and even imperfect “generalizations.” Id. at 320-21.
C.

Plaintiffs have failed in their legal burden of negating “every
conceivable basis” for Ohio’s preservation of traditional
marriage, and Ohio’s marriage laws therefore satisfy rational
basis review. ..............................................................................................33
1.

Ohio’s marriage laws are rationally related to several
conceivable, and legitimate, justifications.
iv

There are a number of conceivable legitimate reasons why lawmakers and voters passed Ohio’s
marriage laws. The broad majority of federal courts to address the issue have concluded that
States’ decisions regarding treatment of same-sex marriage survive rational basis review. See,
e.g., Sandoval, 911 F. Supp. 2d 996; Jackson, 884 F. Supp. 2d 1065. Finally, Plaintiffs requested
determination that a state cannot adopt the traditional definition of marriage for the purposes of
its own law lacks support. “[I]n the nearly one hundred and fifty years since the Fourteenth
Amendment was adopted, . . . no Justice of the Supreme Court has suggested that a state statute
or constitutional provision codifying the traditional definition of marriage violates the Equal
Protection Clause or any other provision of the United States Constitution.” Bruning, 455 F.3d
at 870. This Court should similarly refrain from reaching this unjustified conclusion.
2.
Plaintiffs’ sweeping and unjustified allegations of improper purpose and effect
do not negate the rational bases for Ohio’s marriage laws.
Plaintiffs’ unsubstantiated and erroneous allegation that Ohio’s decision not to recognize out-ofstate same-sex marriages has “the primary purpose and effect” of harming same-sex couples
cannot negate the numerous rational bases that support that decision. Ohio’s marriage laws do
not fit the mold of the “unusual character” analysis the Court focused on in Windsor because
Ohio’s marriage laws reflect no departure from Ohio’s traditional practices. Rather, Ohio’s
legislators and citizens exercised the States’ traditional authority—codified in Section 2 of
DOMA—to define marriage for the purposes of State law and to refuse to recognize marriages
expressly prohibited by Ohio law and public policy. Nor do Ohio’s marriage laws withdraw any
rights Ohio has previously granted.
IV.

The Court should respect the will of Ohio voters and exercise judicial
restraint. .................................................................................................................42

Ultimately, the issue before the court, and in this Nation, involves two debates. The first is an
ongoing debate about the proper definition of marriage. The second debate involves whether to
cut short the first and relates to who gets to decide. The answer to both is that in the main,
determinations regarding “the definition and regulation of marriage” are within the “authority
and realm of the separate states.” Windsor, 133 S.Ct. at 2689-90. Given the importance of
respecting the right of the Ohio people to define marriage and the complex and delicate nature of
this inquiry into the definition of marriage, judicial restraint is vital to the Court’s decision. The
Court should not “short-circuit” ongoing Ohio debate over the proper definition of marriage.
Jackson v. Abercrombie, 884 F. Supp.2d 1065, 1118 (D. Haw. 2012).
V.

CONCLUSION ......................................................................................................46

v

TABLE OF AUTHORITIES
Cases
Am. Exp. Travel,
641 F.3d 685 (6th Cir. 2011) ............................................................................................ 41, 43
Ambris v. City of Cleveland,
No. 1:12CV774, 2012 WL 5874367 (N.D. Ohio Nov. 19, 2012) .......................................... 34
Andersen v. King Cnty.,
158 Wash. 2d 1 (Wash. 2006)................................................................................................. 52
Arthur v. City of Toledo,
782 F.2d 565 (6th Cir.1986) ................................................................................................... 40
Bailey v. Callaghan,
715 F.3d 956 (6th Cir. 2013) ............................................................................................ 41, 42
Baker v. Nelson,
409 U.S. 810 (1972) ......................................................................................................... passim
Bassett v. Snyder,
No. 12–10038, 2013 WL 3285111 (E.D. Mich., June 28, 2013)............................................ 31
Califano v. Westcott,
443 U.S. 76 (1979) .................................................................................................................. 35
Citizens for Equal Protection v. Bruning,
455 F.3d 859(8th Cir. 2006) ................................................................................. 24, 29, 39, 52
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) .......................................................................................................... 42, 55
Conaway v. Deane,
932 A.2d 571(Md. App. 2007)................................................................................................ 36
Defend Affirmative Action v. Regents of the Univ. of Mich.,
701 F.3d 466 (6th Cir. 2012) .................................................................................................. 39
Dixon v. Univ. of Toledo,
702 F.3d 269 (6th Cir. 2012) .................................................................................................. 27
Doe v. Michigan Dept. of State Police,
490 F.3d 491(6th Cir. 2007) ................................................................................................... 42
Equality Foundation of Greater Cincinnati, et al. v. City of Cincinnati,
128 F.3d 289(6th Cir. 1997) ............................................................................................ passim
vi

ESJ Properties, LLC v. City of Toledo,
698 F.3d 845 (6th Cir. 2012) ............................................................................................ 36, 37
F.C.C. v. Beach Comm’n, Inc.,
508 U.S. 307 (1993) ................................................................................................................ 41
Grinter v. Knight,
532 F.3d 567 (6th Cir. 2008) .................................................................................................. 38
Hernandez v. Robles,
7 N.Y.3d 338(N.Y. 2006) ................................................................................................ passim
Hicks v. Miranda,
422 U.S. 332 (1975) ................................................................................................................ 18
In re Kandu,
315 B.R. 123 (Bkrtcy. W.D. Wash 2004) ......................................................................... 39, 52
In re Stiles Estate,
59 Ohio St.2d 73, 391 N.E.2d 1026 (Ohio 1979) ................................................................... 26
Jackson v. Abercrombie,
884 F. Supp. 2d 1065, 10845 (D. Haw. 2012) ................................................................. passim
James v. Valtierra,
402 U.S. 137 (1971) ................................................................................................................ 41
Johnson v. Johnson,
385 F.3d 503 (5th Cir. 2004) .................................................................................................. 29
Lee v. Pauldine,
No. 1:12–cv–077, 2013 WL 65111, (S.D. Ohio Jan. 4, 2013) ............................................... 29
Loesel v. City of Frankenmuth,
692 F.3d 452 (6th Cir. 2012) .................................................................................................. 43
Lofton v. Sec’y of Dept. of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) ................................................................................................ 29
Loving v. Virginia,
388 U.S. 1 (1967) ........................................................................................................ 35, 36, 38
Massachusetts v. United States Dep’t of Health & Human Servs.,
682 F.3d 1 (5th Cir. 2012) ...................................................................................................... 18
Mazzolini v. Mazzolini,
168 Ohio St. 357, 155 N.E.2d 206 (Ohio 1958) ......................................................... 26, 27, 46

vii

Midkiff v. Adams Cnty. Reg’l Water Dist.,
409 F.3d 758 (6th Cir. 2005) .................................................................................................. 37
Miss. Univ. for Women v. Hogan,
458 U.S. 718 (1982) ................................................................................................................ 35
Morrison v. Sadle,
821 N.E.2d 15 (Ind. App. 2005) ............................................................................................. 52
Nabozny v. Podlesny,
92 F.3d 446 (7th Cir. 1996) .................................................................................................... 30
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) ................................................................................................................ 47
Ohio ex rel. Eaton v Price,
360 U.S. 246 (1959) ................................................................................................................ 18
Padula v. Webster,
822 F.2d 97 (D.C. Cir. 1987) .................................................................................................. 30
Peefer v. State,
42 Ohio App. 276, 182 N.E. 117 (Ohio App. Ct. 1931) ................................................... 26, 27
Price-Cornelison v. Brooks,
524 F.3d 1103 (10th Cir. 2008) .............................................................................................. 29
Romer v. Evans,
517 U.S. 620 (1996) .............................................................................................. 34, 40, 53, 54
Sadie v. City of Cleveland,
718 F.3d 596 (6th Cir. 2013) .................................................................................................. 28
Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250 (6th Cir. 2006) ............................................................................................ 28, 30
Seger v. Kentucky High School Athletic Ass’n,
453 F. App’x 630 (6th Cir. 2011) ........................................................................................... 43
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ....................................................................................... 33
Spurlock v. Fox,
716 F.3d 383 (6th Cir. 2013) ............................................................................................ 42, 43
Standhardt v. Superior Court ex rel. Cnty. of Maricopa,
206 Ariz. 276(Ariz. App. 2003) .............................................................................................. 52

viii

Stanton v. Stanton,
421 U.S. 7 (1975) .................................................................................................................... 35
TriHealth, Inc. v. Board of Comm’rs, Hamilton Cnty., Ohio,
430 F.3d 783 (6th Cir. 2005) .................................................................................................. 44
U.S. Citizens Ass’n v. Sebelius,
705 F.3d 588 (6th Cir. 2013) .................................................................................................. 37
United States v. Virginia,
518 U.S. 515(1996) ................................................................................................................. 34
United States v. Windsor,
133 S. Ct. 2675(2013) ...................................................................................................... passim
Vance v. Bradley,
440 U.S. 93 (1979) .................................................................................................................. 42
Veney v. Wyche,
293 F.3d 726 (4th Cir. 2002) .................................................................................................. 29
Washington v. Glucksberg,
521 U.S. 702 (1997) ................................................................................................................ 37
Washington v. Seattle School District No. 1,
458 U.S. 457 (1982) ................................................................................................................ 41
Williams v. North Carolina,
317 U.S. 287(1942) ................................................................................................................. 25
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) ........................................................................... passim
Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989)............................................................................................... 30
Statutes
28 U.S.C. § 1738C ...................................................................................................... 13, 22, 24, 47
O.R.C. § 3101.01(C) ......................................................................................................... 14, 15, 54
O.R.C. § 3101.01(C)(3) ................................................................................................................ 15
Other Authorities
Ohio Const., Article XV § 11 ......................................................................................13, 15, 25, 54

ix

INTRODUCTION
“By history and tradition the definition and regulation of marriage . . . has been treated as
being within the authority and realm of the separate States.” United States v. Windsor, 133 S. Ct.
2675, 2689-90 (2013). In 2004, three million Ohio voters exercised this authority and amended
Ohio’s Constitution to adopt Article XV § 11, which defines “marriage” in Ohio as uniquely
between a man and a woman. In preserving the traditional definition of marriage, Ohio’s law is
consistent not only with the history of the institution nationally and across the world, but with the
law of most States today.
The definition of marriage recently has been and is today the subject of vigorous debate
and exchange that our democratic system is fully equipped to handle. The basic nature of this
fundamental institution should be established by the people of Ohio and not by select federal
Judges: Our federal Constitution leaves this sort of evaluation with the people, and the
determination of Ohio’s voters should not be ignored.
The fact that the definition of “marriage” in Ohio and in most other states differs from the
definition adopted by Maryland and Delaware does not raise an issue of constitutional import.
Rather, this variation is the natural by-product of a well-established principle of federalism
explicitly protected by federal statute, see 28 U.S.C. § 1738C, and recently acknowledged again
by the United States Supreme Court in observing that the “recognition of civil marriage is central
to state domestic relations law applicable to its residents and citizens.” Windsor, 133 S. Ct. at
2691. “In order to respect this principle, the federal courts, as a general rule, do not adjudicate
issues of marital status even where there might otherwise be a basis for federal jurisdiction.” Id.
Indeed, the very premise of Windsor in mandating federal recognition of State marriage
law is that the fundamental concept of what constitutes marriage is a matter quintessentially
appropriate for determination by the States. The request that this Court ignore the will of the
1

Ohio voters, and short-circuiti the democratic discussion and determination at issue here, flies in
the face of firmly entrenched principles of federalism and legal precedent. In fact, Plaintiffs’
brief appears to recognize that the relief sought here, which would require by judicial fiat that
certain Ohio death certificates reference same-sex marriages from other jurisdictions, cannot be
squared with the binding law of this Circuit. Plaintiffs disregard controlling Supreme Court and
Sixth Circuit precedent and hold the marriage definition as ratified by Ohio voters to
impermissibly strict scrutiny. The Court should decline such invitation as contrary both to
precedent and to the will of the people as expressed through the democratic process.
BACKGROUND
This case challenges Ohio’s authority, with regard to death certificates issued by the
State, to define the fundamental concept of marriage within its borders.

In 2004, Ohio’s

lawmakers and citizens took steps to preserve Ohio’s definition of marriage. This included the
passage of Ohio’s Defense of Marriage Act (“the Act”), codified at Ohio Rev. Code
§ 3101.01(C). The Act provides in part:
(C)(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 sex or
different sexes is against the strong public policy of this state. Any public act,
record, or judicial proceeding of this state . . . 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. . . .

2

Ohio Rev. Code § 3101.01(C). The Act disavows any intent to prohibit extension of non-marital
benefits to same-sex relationships or to affect private agreements.

Ohio Rev. Code

§ 3101.01(C)(3).
On February 6, 2004, after the Act passed both the Ohio House of Representatives and
Senate, Governor Robert Taft signed it into law. In doing so, Governor Taft emphasized that the
purpose of the law was not to discriminate against any Ohio citizens, but “to reaffirm existing
Ohio law with respect to our most basic, rooted, and time-honored institution: marriage between
a man and a woman.” (See Becker Ex. G, Doc. No. 41-8.)
Following passage of the Act, Ohio’s citizens opted to amend the Ohio Constitution to
include a definition of marriage as being exclusively between a man and a woman. Put to the
voters on November 4, 2004, Article XV § 11 of the Ohio Constitution passed with over three
million votes, by a margin of sixty-one percent in favor of the amendment and only thirty-eight
percent against. “State Issue 1: November 2, 2004,” Ohio Secretary of State, available at
http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2004ElectionsResults/041102Issue1.aspx (last visited Nov. 18, 2013).
Article XV § 11 of the Ohio Constitution now reflects the will of these three million
votes. It 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. It is that sovereign will of the voters, as applied to Ohio death
certificates, which Plaintiffs seek to overturn in this case.

3

Plaintiffs James Obergefell and John Arthur, a same-sex couple married under the laws of
Maryland, sued challenging Ohio’s failure to “recognize” their marriage on Mr. Arthur’s death
certificate. (See generally Compl., Doc. No. 1.) When they filed this lawsuit, Mr. Arthur
suffered from amyotrophic lateral sclerosis (“ALS”) and was in hospice care. (Id. at ¶¶ 9-10.)
Contemplating the need for a death certificate, Plaintiffs Arthur and Obergefell sought temporary
relief, which this Court granted. (Order, Doc. No. 13.) Sadly, Mr. Arthur has since passed away.
Pursuant to this Court’s order, his death certificate was issued to reflect his Maryland marriage to
Obergefell. (Doc. No. 52-3.)
Plaintiff David Brian Michener joined this action in September 2013, after the
unexpected death of William Ives, the man to whom Mr. Michener was married under the laws
of Delaware.

(Am. Compl., Doc. No. 24.)

Relying on arguments previously made, Mr.

Michener’s request for a temporary order that Mr. Ives’ death certificate reflect their Delaware
marriage was granted. (Order, Doc. No. 23.) Mr. Ives’ death certificate has since been issued
pursuant to this Court’s order. (Doc. No. 52-4.)
Plaintiff Robert Grunn, an Ohio funeral director, entered this case seeking a declaration
that he may report the same-sex marriages of any future un-identified client on Ohio death
certificates.1 (Second Am. Compl. ¶ VII.B, Doc. No. 33.) Although not requested in the Second
Amended Complaint (see id.), he also now seeks an injunction prohibiting enforcement of

1

For the reasons detailed in Defendant’s Motion to Dismiss (Doc. No. 38), Dr. Wymyslo
reiterates that Mr. Grunn should be dismissed from this lawsuit entirely. This Court agreed that
Mr. Grunn failed to state a claim on his own behalf, but it permitted him to pursue the rights of
future same-sex clients married in jurisdictions recognizing same-sex marriage. Dr. Wymyslo
respectfully disagrees with and preserves his objections to this Court’s decision to permit Mr.
Grunn to remain in this lawsuit in any capacity. Because the Court has ruled on this issue,
however, Dr. Wymyslo does not repeat those arguments in this brief other than through this
restatement by reference.
4

Ohio’s marriage laws as they may be applied to him during the course of his service to unidentified future clients. (See Pls.’ Proposed Order 2-3, Doc. No. 53-2.)
Finally, although this entire case is an as applied challenge (Pls.’ Mem. Supp. 1, Doc.
No. 53-1) premised upon facts surrounding the issuance of death certificates, Plaintiffs
collectively seek something broader. As phrased, the relief they seek — albeit cabined to death
certificates in the context of people whose same-sex marriages are authorized by other
jurisdictions — does not apply against only those issuing death certificates, rather it merely
“includes such officials”. (Id. at 50.) Their request should be denied. Ohio’s popularly enacted
marriage laws are constitutional, and the Court should deny the declaratory judgment and any
form of injunctive relief.
LAW AND ARGUMENT
I.

Binding Supreme Court precedent and federal law dispositively forecloses
Plaintiffs’ claims.
A.

The United States Supreme Court has determined that the issue of same-sex
marriage does not raise a substantial federal question under constitutional
analysis.

As a threshold matter, binding Supreme Court precedent precludes Plaintiffs’ due process
and equal protection claims here. In Baker v. Nelson, 409 U.S. 810 (1972), the United States
Supreme Court summarily dismissed for lack of a federal question an appeal of the Minnesota
Supreme Court’s decision upholding Minnesota’s statutory definition of “marriage” as being a
union between a man and a woman. Id. The appeal expressly placed before the Court the issues
of whether (1) Minnesota’s “refusal to sanctify appellants’ [same-sex] marriage deprives
appellants of their liberty to marry and of their property without due process of law under the
Fourteenth Amendment”; and (2) Minnesota’s “refusal, pursuant to Minnesota marriage statutes,

5

to sanctify appellants’ marriage because both are of the male sex violates their rights under the
equal protection clause of the Fourteenth Amendment.” Jackson v. Abercrombie, 884 F. Supp.
2d 1065, 10845 (D. Haw. 2012) (quoting Baker v. Nelson, Jurisdictional Stmt., No. 71-1027, at 3
(Feb. 11, 1971)). The Supreme Court dismissed the case “for want of a substantial federal
question.” Baker, 409 U.S. at 810.
Baker’s dismissal governs today. “A dismissal for lack of a substantial federal question
constitutes an adjudication on the merits that is binding on lower federal courts.” Wilson v. Ake,
354 F. Supp. 2d 1298, 1303 (M.D. Fla. 2005) (citing Hicks v. Miranda, 422 U.S. 332, 344
(1975)); see also Ohio ex rel. Eaton v Price, 360 U.S. 246, 247 (1959) (“Votes to affirm
summarily, and to dismiss for want of a substantial federal question, it hardly needs comment,
are votes on the merits of a case . . . .”). “The precedential value of a dismissal for want of a
substantial federal question extends beyond the facts of the particular case to all similar cases.”
Jackson, 884 F. Supp. 2d at 1087 (emphasis in original) (citations and internal quotations
omitted).

Thus, Baker is binding precedent unless the Supreme Court overturns it.

Massachusetts v. United States Dep’t of Health & Human Servs., 682 F.3d 1, 8 (5th Cir. 2012)
(citing Hicks, 422 U.S. at 334).
Baker means that Plaintiffs’ claims here fail.

Like the appellants in Baker, Plaintiffs

challenge marriage laws prohibiting same-sex marriage as violating the Equal Protection and
Due Process Clauses of the Fourteenth Amendment to the United States Constitution. See Baker
v. Nelson, 291 Minn. 310 (1971); (Second Am. Compl. ¶ 50).
In determining that these issues did not raise a substantial federal question, the Court
necessarily rejected the plaintiffs’ contention that Minnesota’s ban on same-sex marriage
violated the Equal Protection and Due Process Clauses of the Constitution. This Court is thus

6

bound by Baker to find that no substantial federal question exists to be answered here: this case
should be dismissed on that basis. Ohio’s marriage provisions are constitutional and can be
applied in the context of couples married under the laws of other jurisdictions that have made
different policy determinations.
Other courts have similarly concluded that Baker precludes equal protection and due
process challenges to state laws prohibiting recognition of same-sex marriage. In Wilson, for
example, the federal District Court for the Middle District of Florida concluded that Baker
disposed of plaintiffs’ claims that Florida’s refusal to recognize their out-of-state same-sex
marriage violated their equal protection and due process rights. 354 F. Supp. 2d at 1301-02.
According to the court, Baker “addressed the same issues presented in this action and this Court
is bound to follow the Supreme Court’s decision.” Id. at 1304-05. The court rejected the
plaintiffs’ argument that subsequent Supreme Court decisions had altered the “dispositive effect
of Baker.” Id. at 1305. After examining and rejecting the plaintiffs’ reliance on the Supreme
Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003) as purportedly contrary authority,
the court concluded “[t]he Supreme Court has not explicitly or implicitly overturned its holding
in Baker or provided the lower courts, including this Court, with any reason to believe that the
holding is invalid today.” Id. The court thus dismissed the plaintiffs’ challenge to Florida’s
marriage laws.
Similarly, in Jackson, the court thoroughly examined Baker, as well as the Supreme
Court’s more recent precedent, to determine that Baker foreclosed the plaintiffs’ challenge to
Hawaii’s marriage laws limiting marriage to unions between a man and a woman. 884 F. Supp.
2d at 1084-1088.

After concluding that Baker remained valid precedent in the wake of

subsequent Supreme Court decisions, including Lawrence and Romer, the court ruled that Baker

7

“necessarily decided that a state law defining marriage as a union between a man and a woman
does not violate the Equal Protection Clause.” Id. at 1088. Because “Baker is the last word from
the Supreme Court regarding the constitutionality of a state law limiting marriages to oppositesex couples” it “remains binding . . . .” Id. Baker foreclosed the plaintiffs’ challenge, as it does
in this case.
B.

The Supreme Court’s decision in Windsor re-affirmed each State’s
responsibility to define marriage in this fundamental regard and did not
affect Baker.

The Supreme Court’s decision in Windsor does not undermine the precedential effect of
Baker. To the contrary, Windsor only reaffirms that the task of defining marriage falls squarely
within the province of the States.
Windsor considered the constitutionality of Section 3 of DOMA, which imposed federal
definitions of “marriage” and “spouse” that precluded the federal government from recognizing
same-sex marriage, even where a State has elected to do so. The Court struck down this
provision because it represented an “unusual deviation from the usual tradition of recognizing
and accepting state definitions of marriage.” Windsor, 133 S. Ct. at 2692. The Court stressed
that, subject to constitutional guarantees, “regulation of domestic relations is an area that has
long been regarded as a virtually exclusive province of the States.”

Id. at 2691 (citation

omitted). This “allocation of authority” stems from the fact that “recognition of civil marriages
is central to state domestic relations law applicable to its residents and citizens.” Id. Indeed, as
the Court emphasized, “[t]he definition of marriage is the foundation of the State’s broader
authority…with respect to the protection of offspring, property interests, and the enforcement of
marital responsibilities.” Id. (citations and internal quotation marks omitted).
Windsor is thus deeply rooted in federalism: the “unquestioned authority of the [s]tates”
to regulate in the area of marriage that led the Windsor Court to rule as it did. Id. at 2693.
8

Simply put, the Court concluded that in passing Section 3 of DOMA the federal government
unnecessarily waded into waters that it would historically not tread. That is, until DOMA was
passed, “the Federal Government, through our history, [would] defer[] to state-law policy
decisions with respect to domestic relations.” Id. at 2691; see also Bond v. United States, 131 S.
Ct. 2355, 2366 (2011) (“Impermissible interference with state sovereignty is not within the
enumerated powers of the National Government, and action that exceeds the National
Government’s enumerated powers undermines the sovereign interests of States.”) (internal
citation omitted).

Because Section 3 of DOMA represented a deviation from that firmly

entrenched precedent and an abrogation of the “unquestioned authority of the States,” Windsor S.
Ct. at 2693, the Court deemed the provision unconstitutional.
But what Windsor did – re-affirm the States’ right to define the basic nature of marriage –
is just as important as what it did not do – and that is take that right away. See Pedersen v Office
of Personnel Mgmt., 881 F. Supp. 2d 294, 307 (D.C. Conn. 2012) (that “DOMA impacts federal
benefits and obligations, but does not prohibit a state from authorizing or forbidding same-sex
marriages, as was the case in Baker”).

After Windsor, each State retains the sovereign

responsibility to define marriage. Windsor in no way disturbs Baker’s conclusion that adopting
the traditional definition of marriage presents a matter solely of state law.
C.

Congress, too, has expressly recognized the States’ authority to define
marriage in this regard, including the right to refuse to recognize out-of-state
marriages.

The States’ role to define their different policies with respect to same-sex marriage
includes the authority to determine whether or not to recognize same-sex marriages that take
place in other states. Federal law, unchallenged here, makes this point clear. Section 2 of the
federal DOMA provides:

9

No State, territory, or possession of the United States, or Indian tribe, shall be
required to give effect to any public act, record, or judicial proceeding of any
other State, territory, possession, or tribe respecting a relationship between
persons of the same sex that is treated as a marriage under the laws of such other
State, territory, possession, or tribe, or a right or claim arising from such
relationship.
28 U.S.C. § 1738C (emphasis added). That is the law of the land, and Plaintiffs here have not
sought to challenge it. But this Court cannot accord Plaintiffs the relief they seek unless the
Court somehow invalidates this controlling federal statute – something the Court should not do
sua sponte, and with the federal government unrepresented. Plaintiffs’ brief fails to address this
insurmountable hurdle in any way.
Windsor left this provision of DOMA untouched. See Windsor, 133 S. Ct. at 2682-83.
Indeed, Windsor acknowledged that States’ separate authority to define marriage means that
“[m]arriage laws vary in some respects from State to State.” Id. at 2691. To hold otherwise
would improperly allow one state to impose its definition of “marriage” upon another, in direct
contravention of the individual States’ deeply rooted authority to define and regulate marriage.
Id. (“The significance of state responsibilities for the definition and regulation of marriage dates
to the Nation’s beginning . . . .”); see also id. at 2697 (Roberts, C.J., dissenting) (“There is no
departure [from the allocation of responsibilities between the State and Federal Governments]
when one State adopts or keeps a definition of marriage that differs from that of its neighbor, for
it is entirely expected that state definitions would ‘vary, subject to constitutional guarantees,
from one State to the next’.”); Wilson, 354 F. Supp. 2d at 1304 (rejecting the plaintiffs’ attempt
to apply Full Faith and Credit Clause to require Florida to recognize their Massachusetts
marriage in violation of Florida’s statute banning same-sex marriage as an improper “license for
a single State to create national policy”).

10

Indeed, Plaintiffs’ own purported expert acknowledges the historical precedent for such
variation when discussing the failure of efforts to create uniform marriage laws across the
country. (See Grossman Decl. ¶¶ 21-25, Doc. No. 44-1.) Implicit in this recognition is that each
State has, and has always had, the right to define marriage within its borders.
In short, Baker’s holding that a State’s decision regarding whether to recognize same-sex
marriage presents no substantial federal question — and thus necessarily no constitutional
violations — remains in full force today. This Court must therefore dismiss Plaintiffs’ claims
for lack of a substantial federal question pursuant to that Supreme Court adjudication on the
merits. Moreover, Plaintiffs’ decision not to challenge the federal law endorsing Ohio’s right to
determine its own definition of marriage itself requires dismissal here. Plaintiffs do not contest
the constitutionality of Section 2 of DOMA, and because this Court cannot grant the relief they
seek without invalidating the federal law that explicitly preserves Ohio’s policy not to recognize
same-sex out-of-state marriages, the relief Plaintiffs seek is not available to them.
II.

Even if binding Supreme Court precedent and federal statute did not compel
dismissal of Plaintiffs’ claims, this Court should decline to rewrite the state
policy in dispute.
Even absent Baker’s binding dictate, deeply rooted principles of federalism compel the

conclusion that federal courts have no basis for forcing Ohio to immediately and fundamentally
re-shape its laws in an area that “has long been regarded as a virtually exclusive province of the
States.” Windsor, 133 S. Ct. at 2691 (citation omitted).
As explained above, the Supreme Court’s recent decision in Windsor reaffirmed and
relied on these tenets to reject the federal government’s intrusion into the area of defining
marriage. But Windsor’s focus on the States’ role in matters related to marriage is far from
novel. Rather, courts have long recognized the States’ general supremacy in determining matters
of domestic law, including marriage. Not surprisingly, federal courts have been reluctant to
11

tread on this territory. As Justice Alito observed in his dissent in Windsor, “the Constitution
simply does not speak to the issue of same-sex marriage.” Id. at 2715. “The silence of the
Constitution on this question should be enough to end the matter as far as the judiciary is
concerned.” Id. at 2718.
Perhaps recognizing this point, the federal government has—tellingly—never taken the
position that Ohio, or any other state, must permit same-sex marriages. Nor has it argued that
States must recognize same-sex marriages celebrated out of state, as Plaintiffs urge this Court to
immediately do in the death certificate context presented here. To the contrary, as just discussed,
Congress has expressly acknowledged and codified the States’ discretion to refuse to recognize
same-sex marriages performed in other states. 28 U.S.C. § 1738C. Thus there is no authority or
justification supporting the federal government’s right to intervene in the States’ decisionmaking process with respect to same-sex marriage.
Yet that is precisely what Plaintiffs ask this Court to do. They invite the Court to force
Ohio to act — immediately — contrary to the express public policy of the state, state law, the
state Constitution, and the expressed will of the people. They seek to force the will of one side
of the debate over same-sex marriage upon the other rather than allow it to be determined
through the democratic process. Simply put, Plaintiffs ask to immunize their position from the
democratic process rather than allow Ohio to shape a marriage policy with which they may not
agree.
But doing so has significant implications in Ohio law, and the State, not the court system,
is in the best position to consider and decide those issues. “The package of government benefits
and restrictions that accompany the institution of formal marriage serve a variety of other
purposes.” Citizens for Equal Protection v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006). Indeed,

12

in Ohio the definition of marriage implicates hundreds of different laws across a broad spectrum
of issues, including but not limited to matters related to insurance, mortgages, guardianship of
children, and real property. As the Windsor Court recognized, “[t]he definition of marriage is the
foundation of the State’s broader authority to regulate the subject of domestic relations with
respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital
responsibilities.’” 133 S. Ct. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298
(1942)).
The federal courts are not well suited to delve into these fields of Ohio law and policy.
This is particularly true where federal intervention would contravene the will of more than three
million voters. Ohio’s marriage laws are “the product of direct legislation by the people . . . that
occupies a special posture in this nation’s constitutional tradition and jurisprudence.” Equality
Foundation of Greater Cincinnati, et al. v. City of Cincinnati, 128 F.3d 289, 297 (6th Cir. 1997).
Such an “expression of the popular will expressed by majority plebiscite . . . must not be
cavalierly disregarded.” Id. (quoting City of Eastlake v. Forest City Enterprises, Inc., 426 U.S.
668, 679 (1976)). It is a “proper exercise of [Ohio’s] sovereign authority within our federal
system, all in the way that the Framers of the Constitution intended.”

Windsor, 133 S. Ct. at

2692. “The dynamics of state government in the federal system are to allow the formation of
consensus respecting the way the members of a discrete community treat each other in their daily
contact and constant interaction with each other.” Id.
Ohio formed that consensus in 2004 with the passage of Ohio’s marriage amendment.
That it is the opposite of the consensus reached by the state of New York and discussed in
Windsor is of no consequence here. Like New York’s law, Article XV § 11 is “the initiative of
those who [sought] a voice in shaping the destiny of their own times.” Id. (quoting Bond, 131 S.

13

Ct. at 2359). And it is “without doubt a proper exercise of [Ohio’s] sovereign authority within
our federal system.” Id.

The federal courts should not intrude upon and cast aside Ohio

citizens’ choice regarding the State’s policies with respect to same-sex marriage.
III.

Plaintiffs’ claims rely on a fundamental misunderstanding of Ohio law.
Plaintiffs’ claims in this case hinge on the erroneous premise that Ohio automatically

recognizes all out-of-state opposite-sex marriages. (See, e.g., Pls.’ Mem. Supp. 1) (“[M]arriages
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 . . . .”). To the
contrary, as even the cases Plaintiffs cite make clear, Ohio has always refused to recognize any
marriage celebrated out of state that is “unalterably opposed to a well-defined public policy, or
prohibited.” Mazzolini v. Mazzolini, 168 Ohio St. 357, 358, 155 N.E.2d 206, 208 (Ohio 1958)
(finding no cause for annulment existed because marriages between cousins were not not void ab
initio under Ohio law); Peefer v. State, 42 Ohio App. 276, 286-287, 182 N.E. 117, 121 (Ohio
App. Ct. 1931) (stressing that “[i]t is well established in this state that a marriage valid where
made is valid here unless expressly prohibited by law,” and rejecting challenge to a marriage
involving minor “over the common law age” beneath which a marriage — including an out-ofstate marriage — would be void ab initio under Ohio law) (emphasis added)).
The blanket rule that Plaintiffs posit that any “marriage solemnized outside of Ohio is
valid in Ohio”, (Pls.’ Mem. Supp. 13), is not the law and ignores the difference between a
marriage “void ab initio” (not recognized in Ohio) and one that is merely voidable at the instance
of one of the parties. Plaintiffs’ brief errs in suggesting that Ohio law would never treat out-ofstate marriage as void “due to consanguinity or age.” (Id. at 1.) Regarding “consanguinity,” for
example, in In re Stiles Estate, 59 Ohio St.2d 73, 74-75, 391 N.E.2d 1026, 1027 (Ohio 1979), the
court refused to recognize a marriage between an uncle and a niece because the court concluded
14

that Ohio law prohibited such marriages. The court expressly “decline[d] to adopt [Mazzolini’s]
reasoning” and “confine[d] Mazzolini’s] holding to the peculiar fact situation that confronted this
court at that time.” Id.

Moreover, the court found Mazzolini distinguishable because the

marriage between first cousins upheld by the Mazzolini court was merely “not approved by law,”
rather than “expressly prohibited” by it:
Although a marriage in Ohio between first cousins is not approved by law, it is
not expressly prohibited and made void by any statutory enactment, and, where
first cousins by blood, one a resident of Massachusetts and the other a resident of
Ohio, are lawfully married in Massachusetts and remove to Ohio to live, such
marriage is not void in Ohio, and an action by the Ohio resident instituted in Ohio
to annul the marriage on the ground that it is void ab initio cannot be maintained.
Id.; see also Peefer, supra (relating to Plaintiffs’ age contention).
Contrary to Plaintiffs’ erroneous characterization, Ohio’s refusal to recognize out-of-state
same-sex marriages, which are expressly prohibited under Ohio law and contrary to the express
public policy of the State, is a straightforward application of the longstanding rule governing
recognition of out-of-state marriages. Ohio’s laws treat same-sex marriages as part of a larger
category of marriages entered into out of state that would not be recognized in Ohio.
IV.

Because Ohio’s marriage laws survive rational basis scrutiny, Plaintiffs’
Equal Protection and Due Process Claims fail on the merits.
If the Court reaches any form of equal protection or substantive due process analysis,

Plaintiffs claims fail because Ohio’s marriage laws survive rational basis review. At its heart,
the Equal Protection Clause of the Fourteenth Amendment “protects against invidious
discrimination among similarly-situated individuals or implicating fundamental rights.” Dixon v.
Univ. of Toledo, 702 F.3d 269, 278 (6th Cir. 2012) (internal quotations omitted). At the same
time, “where no suspect class or fundamental right is implicated, [the court] appl[ies] the
rational-basis test and sustain[s] the government action in question unless the varying treatment

15

of different groups or persons is so unrelated to the achievement of any combination of
legitimate purposes that [the Court] can only conclude that the [government’s] actions were
irrational.” Sadie v. City of Cleveland, 718 F.3d 596, 601-02 (6th Cir. 2013) (internal quotations
omitted).
A.

Rational basis is the proper level of scrutiny to apply here.
1.

Sixth Circuit precedent requires application of rational basis scrutiny.

The Sixth Circuit has repeatedly ruled that classifications based on sexual orientation are
subject to rational basis scrutiny. See, e.g., Equality Foundation, 128 F.3d 289; Davis v. Prison
Health Servs., 679 F.3d 433, 438 (6th Cir. 2012). In Equality Foundation, the Sixth Circuit
expressly rejected the plaintiffs’ argument and district court’s holding that a city ordinance said
to impact gay, lesbian, and bisexual citizens on the basis of their sexual orientation warranted
heightened scrutiny.

According to the Court, “because the Cincinnati Charter Amendment

targeted no suspect class or quasi-suspect class, and divested no one of any fundamental right, it
was not subject to either form of heightened constitutional scrutiny.” Equality Foundation, 128
F.3d at 293. Rather, the charter “should have been assessed under the most common and least
rigorous equal protection norm (the ‘rational relationship’ test), which directed that challenged
legislation must stand if it rationally furthers any conceivable legitimate governmental interest.”
Id.; see also Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006)
(applying rational basis review to challenged conduct because “[i]nasmuch as homosexuality is
not a suspect class in this circuit, we cannot hold that persons who associate with homosexuals
constitute a suspect class”).
The Sixth Circuit reaffirmed this position in 2012, concluding that because “this court has
not recognized sexual orientation as a suspect classification, [the plaintiff’s claim that he was

16

discriminated against on the basis of his sexual orientation] is governed by rational basis
review.” Davis, 679 F.3d at 438.
Consistent with this binding authority, this Court too has recently acknowledged that
under the prevailing law of this Circuit, “[a]n equal protection claim brought on this basis is
governed by rational basis review.” Lee v. Pauldine, No. 1:12–cv–077, 2013 WL 65111, at *6
(S.D. Ohio Jan. 4, 2013) (Report and Recommendation adopted in full on February 21, 2013).
The Sixth Circuit, of course, is not alone in applying rational basis review to claims
premised on sexual orientation. To the contrary, most circuits have similarly rejected invitations
to subject classifications based on sexual orientation to heightened scrutiny. See, e.g., PriceCornelison v. Brooks, 524 F.3d 1103, 1114 n.9 (10th Cir. 2008) (“[T]his court, like many others,
has previously rejected the notion that homosexuality is a suspect classification.”); Bruning, 455
F.3d at 866-67 (concluding that Nebraska’s constitutional amendment prohibiting same-sex
marriages “should receive rational-basis review under the Equal Protection Clause, rather than a
heightened level of judicial scrutiny” and noting that “the Supreme Court has never ruled that
sexual orientation is a suspect classification for equal protection purposes”); Johnson v. Johnson,
385 F.3d 503, 532 (5th Cir. 2004) (applying rational basis review to plaintiff’s discrimination
claim premised on sexual orientation, observing that “[n]either the Supreme Court nor this court
has recognized sexual orientation as a suspect classification or protected group”); Lofton v. Sec’y
of Dept. of Children & Family Servs., 358 F.3d 804, 818 (11th Cir. 2004) (“Because the present
case involves neither a fundamental right nor a suspect class, we review the Florida statute
[prohibiting adoption by same-sex couples] under the rational-basis standard.”); Veney v. Wyche,
293 F.3d 726, 731-32 (4th Cir. 2002) (plaintiff’s claim that he had been “discriminated against
on the basis of sexual preference” was “subject to rational basis review”); Nabozny v. Podlesny,

17

92 F.3d 446, 458 (7th Cir. 1996) (“Our court has already ruled that, in the context of the military,
discrimination on the basis of sexual orientation is subject to rational basis review.”); Woodward
v. United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989) (“[W]e conclude that Woodward is not a
member of a class to which heightened scrutiny must be afforded nor that the Navy must have a
compelling interest to justify discrimination against Woodward because of his admitted
homosexuality.”); Padula v. Webster, 822 F.2d 97, 102 (D.C. Cir. 1987) (FBI’s policy against
hiring homosexuals subject to rational basis review because “practicing homosexuals” did not
constitute a “suspect class”).
Notwithstanding the litany of binding authority, Plaintiffs spend nearly half of their
merits brief arguing that heightened scrutiny applies. But Plaintiffs do not and cannot supply any
argument that would permit this Court to disregard Sixth Circuit authority on this point. They
instead cite to the binding Sixth Circuit precedent establishing that rational basis applies. (See
Pls.’ Mem. Supp. 16.) Thus, Plaintiffs’ proffered justifications in support of heightened scrutiny
only confirm that rational basis is the appropriate standard here. And although they appear to
concede that their quarrel on this score is with the Sixth Circuit, (see Pls.’ Mem. Supp. 15) (“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”) (emphasis added),
they nonetheless urge this Court to take a path that the rule of law clearly precludes and to ignore
that “controlling” authority.
Plaintiffs argue, for instance, that the Supreme Court’s decision in Lawrence somehow
altered the scrutiny landscape for classifications based on sexual orientation. But, as discussed
above, the Sixth Circuit has repeatedly affirmed that, post-Lawrence, rational basis applies. For
example, the Sixth Circuit decided Scarborough in 2006, and Davis just last year.

18

Thus,

Plaintiffs’ theory that “lower courts without controlling post-Lawrence precedent on the issue”,
(Pls.’ Mem. Supp. 17), should revisit the question of whether heightened scrutiny applies to
sexual orientation classifications is irrelevant here in the Sixth Circuit, where “post-Lawrence”
precedent dictates that rational basis applies.
Plaintiffs also argue unconvincingly that Equality Foundation is now “questionable
authority.” (Pls.’ Mem. Supp. 16.) In support of this untenable position, they cite Bassett v.
Snyder, No. 12–10038, 2013 WL 3285111 (E.D. Mich., June 28, 2013). But Bassett expressly
reaffirmed that “[a]t present . . . [heightened scrutiny] is not the law of the [Sixth] Circuit, and it
cannot govern the decision here.” 2013 WL 328511, at *16. The court thus concluded that
“Sixth Circuit precedents require that the standard against which [the challenged law prohibiting
public employers from providing benefits to same-sex partners of their employees] must be
measured in the plaintiffs’ equal protection challenge is rational basis.” Id. at *17 (emphases
added).
Furthermore, the Supreme Court’s recent decision in Windsor did not overturn Sixth
Circuit precedent. Instead, Windsor supports the continued application of rational basis review
to sexual orientation. Because the Second Circuit had applied intermediate scrutiny to the
classification based on sexual orientation, see Windsor v. United States, 699 F.3d 169, 181-85
(2nd Cir. 2012), the issue of the appropriate level of scrutiny was directly before the Supreme
Court. Despite the opportunity, the Court declined to reclassify sexual orientation as a suspect
class and thus did not affirm the lower court’s determination that intermediate scrutiny applied.
Rather, the Court rested its decision on the conclusion that there was “no legitimate purpose” for
federal intrusion on a matter so uniquely reserved to the states in finding an improper motive.

19

Windsor, 133 S. Ct. at 2696. That is a rational basis standard. Windsor thus does not disturb the
binding precedent requiring rational basis review.
2.

Plaintiffs’ arguments regarding heightened scrutiny ignore binding
precedent and lack support.

Ignoring overwhelming authority to the contrary, Plaintiffs spend a substantial portion of
their briefing arguing for heightened scrutiny. The Sixth Circuit has rejected, expressly and
implicitly, any contention that sexual orientation is subject to heightened scrutiny. Thus,
Plaintiffs’ various arguments for heightened scrutiny all fail.
a.

Plaintiffs cannot prove that sexual orientation is a suspect
classification.
Given the existence of binding precedent, sexual orientation is not a suspect class in the
Sixth Circuit. Thus, a point-by-point review of the suspect-class factors—as Plaintiffs encourage
— is unwarranted. Relatedly, the Court need not consider Plaintiffs’ declarations relating to
whether sexual orientation is a suspect class. This type of submission is not new to the suspect
class debate, and the Sixth Circuit has already resolved the issue. See generally Equality
Foundation, 128 F.3d 289 (rejecting trial court’s consideration of social science evidence to
apply heightened scrutiny).
Moreover, Plaintiffs’ submissions fail to substantiate a history of public discrimination by
the state of Ohio that they suggest authorizes overturning the marriage provision of Ohio’s
Constitution. They instead rely primarily on certain federal actions as well as some matters
relating to other state and local governments. (See Pls.’ Mem. Supp. at 18-20.) For example,
Plaintiffs quote signs displayed “[i]n the mid-twentieth century [in] bars in New York and Los
Angeles” and cite to “[r]aids on gay bars in Chicago” from the same era to support their
historical-discrimination argument. (Id. at 19.) Indeed, the only Ohio-specific example to which
Plaintiffs point is a single Cincinnati ordinance passed in 1993 that prohibited the city from
20

making sexual orientation the basis for a protected class. But not only did the Sixth Circuit
uphold the ordinance as constitutionally permissible, see Equality Foundation, 54 F.3d 261,
(reaffirmed in Equality Foundation, 128 F.3d 289), Cincinnati voters repealed that ordinance in
2004, as Plaintiffs themselves are forced to concede. This isolated enactment and repeal would
hardly seem to argue for Plaintiffs’ theories on political power.
Plaintiffs provide no basis for setting aside by judicial fiat the will of Ohio voters
defining marriage as between a man and a woman. Certainly the repeal nine years ago of the
referenced Cincinnati ordinance cuts against Plaintiffs’ position.

Plaintiffs’ own proffered

historian espouses that the concept of homosexuality as a distinct category is a historically recent
concept, emerging only in the late nineteenth century, and that it was not until the 1970s and
1980s that gay people became an increasingly visible group in society. (Chauncey Decl. ¶¶ 1114). Given the relative youth of sexual orientation as a distinct classification, and the current
state of attitudes toward homosexuality, it is reasonable to conclude that gays and lesbians have
been increasingly successful in advocating and protecting their rights.
The United States District Court for the District of Nevada pointed to public
developments in observing just last year:
The States are currently in the midst of an intense democratic debate about the
novel concept of same-sex marriage, and homosexuals have meaningful political
power to protect their interests. At the state level, homosexuals recently prevailed
during the 2012 general elections on same-sex marriage ballot measures in the
States of Maine, Maryland, and Washington, and they prevailed against a fourth
ballot measure that would have prohibited same sex marriage under the
Minnesota Constitution. It simply cannot be seriously maintained, in light of
these and other recent democratic victories, that homosexuals do not have the
ability to protect themselves from discrimination through democratic processes
such that extraordinary protection from majoritarian processes is appropriate.
Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1013 (D. Nev. 2012) (adding: “The fact that national
attitudes are shifting in favor of acceptance of same-sex marriage and homosexual rights in
21

general only tends to weaken the argument that homosexuals require extraordinary protection
from majoritarian processes via heightened scrutiny under the Equal Protection Clause. . . . Only
where a discrete minority group’s political power is so weak and ineffective as to make attempts
to succeed democratically utterly futile is it even arguably appropriate for a court to remove
relevant issues from the democratic process, except where a constitutional prohibition clearly
removes the issue from legislative control. . . .”). Plaintiffs here have not argued that any attempt
to work within the democratic process to affect the debate on marriage within this State is
“utterly futile” or “virtually hopeless” for those who subscribe to their policy position, see id. at
1009, and they do not justify nullifying Ohio’s constitutional provision here.
b.

A prohibition against recognizing same-sex marriage is not a
classification based on gender.

Plaintiffs’ contention that Ohio’s marriage laws are gender-based classifications also
fails. Plaintiffs maintain that limiting marriage to a man and a woman discriminates on the basis
of gender and thus triggers gender-based intermediate scrutiny. This argument is unpersuasive
for multiple reasons, and flies in the face of precedent from across the country.
On a fundamental level, it is well-established that equal protection jurisprudence treats
gender classification and sexual orientation classification as distinct categories. Compare United
States v. Virginia, 518 U.S. 515, 531 (1996) (applying intermediate scrutiny to gender-based
classification); with Romer v. Evans, 517 U.S. 620, 632 (1996) (applying rational basis standards
to a sexual orientation classification); see also Ambris v. City of Cleveland, No. 1:12CV774,
2012 WL 5874367, at *5 (N.D. Ohio Nov. 19, 2012) (“Gender classifications invoke the
intermediate level of scrutiny. . . . Sexual orientation classifications . . . receive the lowest level
of scrutiny.”); Jackson, 884 F. Supp. 2d at 1099 (“[D]iscrimination on the basis of sex, and
discrimination on the basis of sexual orientation . . . traditionally have been viewed as distinct
22

phenomena.”) (Internal quotations omitted). Applying gender-based scrutiny to Ohio’s marriage
laws would render this distinction meaningless.
Moreover, the laws at issue here simply do not favor or disfavor one sex over another so
as to trigger intermediate scrutiny. This is not like the cases cited by Plaintiffs (see Pls’ Mem.
Supp. 31) where fathers were favored over mothers for purposes of unemployment benefits, see
Califano v. Westcott, 443 U.S. 76 (1979), or where a statute provided one age of majority for
girls and another for boys, see Stanton v. Stanton, 421 U.S. 7 (1975). Nor is it like the case of
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982), where the rule in question excluded
males from a state-supported program open to women. Ohio’s marriage laws do not elevate one
gender over another.
Courts have overwhelmingly rejected attempts to frame challenges to same-sex marriage
restrictions as creating a gender-based class requiring heightened scrutiny. See, e.g., Sandoval,
911 F. Supp. 2d at 1005 (“The laws at issue here are not directed toward persons of any
particular gender, nor do they affect people of any particular gender disproportionately such that
a gender-based animus can reasonably be perceived.”); Jackson, 884 F. Supp. 2d at 1098 (“The
Court [] agrees with the vast majority of courts considering the issue that an opposite-sex
definition of marriage does not constitute gender discrimination.”) (collecting cases); Hernandez
v. Robles, 7 N.Y.3d 338, 364 (N.Y. 2006) (“By limiting marriage to opposite-sex couples, New
York is not engaging in sex discrimination. The limitation does not put men and women in
different classes, and give one class a benefit not given to the other.”). Here, Ohio’s marriage
laws do not constitute gender discrimination.
Courts have repeatedly rejected comparison to the circumstances of Loving v. Virginia,
388 U.S. 1 (1967). In Loving the Court held that “equal application” of an anti-miscegenation

23

statute could not save that law from heightened scrutiny. 388 U.S. at 8. The Supreme Court
recognized that the statute “rest[ed] solely upon distinctions drawn according to race” and was
“designed to maintain White Supremacy.” Id. at 11. In this case, however, nothing indicates
that the laws are designed to negatively affect a specific gender, and Plaintiffs do not argue that
they are. See Sandoval, 911 F. Supp. 2d at 1005 (rejecting gender classification comparison
between Loving statute and same-sex marriage law); Robles, 7 N.Y.3d at 364 (“This is not the
kind of sham equality that the Supreme Court confronted in Loving . . . Plaintiffs do not argue
here that the legislation they challenge is designed to subordinate either men to women or
women to men as a class.”); cf. Conaway v. Deane, 932 A.2d 571, 598 (Md. App. 2007)
(marriage statute “does not discriminate on the basis of sex …. [It does] not separate men and
women into discrete classes for the purpose of granting to one class of persons benefits at the
expense of the other class. Nor does the statute, facially or in its application, place men and
women on an uneven playing field.”). Instead, in this as applied Equal Protection challenge,
Plaintiffs claim that Ohio law treats them differently from others based upon their sexual
orientation (Second Am. Compl. ¶ 31), not their gender. Their attempt to force their claims into
a gender classification framework cannot avoid the binding Sixth Circuit precedent establishing
that rational basis applies.
c.

Same-sex marriage is not a fundamental right under Court
precedent.

Plaintiffs cannot invoke heightened scrutiny by arguing that the right to same-sex
marriage is embedded within the fundamental right to marry. (See Pls.’ Mem. Supp. 32-36.)
The lack of a fundamental right also forecloses any substantive due process analysis. See ESJ
Properties, LLC v. City of Toledo, 698 F.3d 845, 862 (6th Cir. 2012) (“Substantive due process
affords only those protections so rooted in the traditions and conscience of our people as to be
24

ranked as fundamental.”) (internal quotation omitted). The vast majority of courts to consider
the issue have found that same-sex marriage is not a fundamental right and is not included within
the fundamental right to marry. See, e.g., Jackson, 884 F. Supp. 2d at 1094-98 (“Other courts
considering claims that same-sex couples have a fundamental right to marry, have concluded that
the right at issue is not the existing fundamental ‘right to marry.’”) (collecting cases); Wilson,
354 F. Supp. 2d at 1306-07 (“No federal court has recognized that [due process]…includes the
right to marry a person of the same sex.”) (internal citation omitted); Conaway, 401 Md. at 313
(“[V]irtually every court to have considered the issue has held that same-sex marriage is not
constitutionally protected as fundamental in either their state or the Nation as a whole.”);
Hernandez, 7 N.Y.3d at 362 (“The right to marry is unquestionably a fundamental right . . . .
The right to marry someone of the same sex, however, is not “deeply rooted,” it has not even
been asserted until relatively recent times.”).
And this Court should not expand—and redefine—the traditional right to marry to
include a concept that the Supreme Court’s jurisprudence never considered in that context. For
the purposes of substantive due process, a fundamental right “must be ‘objectively, deeply rooted
in Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.’” U.S. Citizens Ass’n v. Sebelius, 705 F.3d
588, 601 (6th Cir. 2013) (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). If
government action implicates a fundamental right, heightened scrutiny applies. Midkiff v. Adams
Cnty. Reg’l Water Dist., 409 F.3d 758, 770 (6th Cir. 2005). “[T]he list of liberty interests and
fundamental rights is short, and the Supreme Court has expressed very little interest in expanding
it.” EJS Properties, 698 F.3d at 860 (internal quotations omitted). Consequently, “identifying a
new fundamental right subject to the protections of substantive due process is often an uphill

25

battle . . . .” Grinter v. Knight, 532 F.3d 567, 573 (6th Cir. 2008). The Supreme Court also
“require[s] in substantive-due-process cases a ‘careful description’ of the asserted fundamental
liberty interest.” Glucksberg, 521 U.S. at 721. Furthermore, “[o]ur Nation’s history, legal
traditions, and practices [] provide the crucial guideposts for responsible decision making, . . .
that direct and restrain [] exposition of the Due Process Clause.” Id. (emphasis added) (internal
quotations and citations omitted).
Same-sex marriage was not expressly legalized in any state in this country until 2004
when Massachusetts began issuing same-sex marriage licenses. (Grossman Decl. ¶ 46.)

The

concept of same-sex marriage is undoubtedly not rooted in our nation’s history and is still not the
law in some thirty-five states. See, e.g., Jackson, 884 F. Supp. 2d at 1096 (“It is beyond dispute
that the right to same-sex marriage is not objectively, deeply rooted in this Nation’s history and
tradition.”). Rather, the possibility of same-sex marriage is a recent development, and “[i]t
seems fair to conclude that, until recent years, 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. And Plaintiffs do
not attempt to argue that the concept of ordered liberty depends on the recognition of same-sex
marriage.
Plaintiffs’ reliance on Lawrence and Loving does not compel a different conclusion. See,
e.g., Jackson, 884 F. Supp. 2d at 1096-97 (rejecting reliance on Lawrence and Loving to
establish a fundamental right to same-sex marriage); Wilson, 354 F. Supp. 2d at 1306
(distinguishing Lawrence); Hernandez, 7 N.Y.3d at 363 (same). Indeed, the Supreme Court
went out of its way in Lawrence expressly to recite that its holding did not reach the right of
“formal recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at 578.

26

Likewise, Loving did nothing to expand the right to marriage beyond the traditional context of an
opposite-sex relationship. See Jackson, 884 F. Supp. 2d at 1095 (“[T]he Supreme Court, in
discussing the fundamental right to marry, has had no reason to consider anything other than the
traditional and ordinary understanding of marriage as a union between a man and a woman.”); In
re Kandu, 315 B.R. 123, 140 (Bkrtcy. W.D. Wash 2004) (“[I]t would be incorrect to suggest that
the Supreme Court, in its long line of cases on the subject, conferred the fundamental right to
marry on anything other than a traditional, opposite-sex relationship.”).
d.

Ohio’s marriage laws do not exclude same-sex couples from
the political process.

Finally, Plaintiffs’ assertion that Ohio’s marriage laws, and specifically the constitutional
amendment, lock same-sex couples out of the political process, is equally unpersuasive. (Pls.’
Mem. Supp. 36-37.) The political process doctrine, on which Plaintiffs presumably rely, “hews
to the unremarkable notion that when two competitors are running a race, one may not require
the other to run twice as far or to scale obstacles not present in the first runner’s course.” Coal.
to Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466, 474 (6th Cir. 2012),
cert. granted 133 S. Ct. 1633 (2013). Importantly, “the Constitution does not protect minorities
from political defeat: Politics necessarily produces winners and losers.” Id. at 474-75; cf. also
Bruning, 455 F.3d at 870 (“The First Amendment guarantees the right to advocate; it does not
guarantee political success.”). Accordingly, the political process doctrine governs situations
“when the majority has not only won, but has rigged the game to reproduce its success
indefinitely.” Coal. to Defend Affirmative Action, 701 F.3d at 475.
The political process doctrine does not apply to this case. Plaintiffs’ complaint is with a
result, not an unequal process. Through Ohio’s initiative process, proponents of traditional
marriage passed a constitutional amendment on a specific issue: the definition of marriage (or
27

marriage equivalents) under Ohio law. But they did not change the rules of the game to ensure
the indefinite success and continuation of the constitutional amendment. Advocates of same-sex
marriage are free to use the same process that proponents of traditional marriage used to
advocate their beliefs and change the Ohio Constitution on the exact same issue. Under these
circumstances, supporters of same-sex marriage have not been fenced off from the political
process.
Plaintiffs’ comparison to the facts of Romer is misplaced. Romer involved a very broad
constitutional amendment completely banning gays and lesbians from obtaining any form of
protected status and from seeking relief from any branch of government. 517 U.S. at 624. The
constitutional amendment here, on the other hand, simply reflects Ohio’s policy on a discrete
issue, the definition of marriage. Regardless, and ironically in light of Plaintiffs’ argument, the
Romer Court still applied rational basis review. 517 U.S. at 632.
In sum, the binding post-Romer precedent leads inescapably to the conclusion that
rational basis applies. This Court cannot override Sixth Circuit decisions that are directly on
point.
B.

Applying rational basis review, the Court must exercise judicial restraint in
considering Ohio’s marriage laws and may not guess at some collective
motivation of Ohio voters.
1.

The Court cannot speculate as to the differing motivations of Ohio
voters or legislators in supporting Ohio’s same-sex marriage laws.

Rational basis review is at its pinnacle where, as here, the law in question is a direct
result of an electoral vote. A “reviewing court in this circuit may not even inquire into the
electorate’s possible actual motivations for adopting a measure via initiative or referendum.”
Equality Foundation, 128 F.3d at 293 n.4; see also Arthur v. City of Toledo, 782 F.2d 565, 573
(6th Cir.1986) (“Several important policy considerations limit a court's examination of the

28

factors motivating the electorate in a referendum election,” including: the need to protect the
“secret ballot,” the “value of referendum elections,” and the impermissibility of inferring
“comments of a few citizens, even those with power” to the “total electorate”) (citations
omitted); Washington v. Seattle School District No. 1, 458 U.S. 457, 465 n. 9 (1982) (quoting
district court’s observation that “the secret ballot raises an impenetrable barrier” to examining
“subjective intent” behind an initiative); James v. Valtierra, 402 U.S. 137, 141 (1971)
(“Provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or
prejudice.”).
Moreover, “[a]s the product of direct legislation by the people, a popularly enacted
initiative or referendum occupies a special posture in this nation's constitutional tradition and
jurisprudence. An expression of the popular will expressed by majority plebiscite, especially at
the lowest level of government (which is the level of government closest to the people), must not
be cavalierly disregarded.” Equality Foundation, 128 F.3d at 297-98. Thus the Court must
instead “consider all hypothetical justifications which potentially support the enactment.” Id. at
293 n. 4.
Similarly, the Court cannot inquire into the motivations of lawmakers. As the Supreme
Court emphasized in F.C.C. v. Beach Comm’n, Inc., 508 U.S. 307 (1993), “because we never
require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for
constitutional purposes whether the conceived reason for the challenged distinction actually
motivated the legislature.” Id. at 315; see also Am. Exp. Travel, 641 F.3d 685, 690 (6th Cir.
2011); Bailey v. Callaghan, 715 F.3d 956, 960 (6th Cir. 2013) (“[A]ny conceivable legitimate
governmental interest will do; and even then it is constitutionally irrelevant whether the

29

conceivable interest actually underlay the enactment of the challenged provision.”) (emphasis in
original, internal quotations omitted).
Because binding precedent precludes the Court from inquiring into motivations,
Plaintiffs’ submissions regarding the asserted potential motivations of Ohio voters and particular
lawmakers should not be considered. (See e.g., Becker Decl., Doc. No. 41-1.) The Court cannot
attempt to determine the motivations of each individual lawmaker and all three million Ohio
voters who chose to preserve Ohio’s definition of marriage.

Rather than permitting this

impossible task, rational basis review requires this Court to consider all potential justifications.
2.

Rational basis review requires the Court to defer greatly to Ohio’s
marriage laws.

It is difficult to overstate the deference the Court must afford Ohio’s marriage laws, and
particularly Ohio’s constitutional amendment, under rational basis review. Rational basis review
is “a paradigm of judicial restraint.” Beach, 508 U.S. at 314 (internal quotations omitted). The
Court must apply “a strong presumption of validity” to the law. Bailey, 715 F.3d at 960 (quoting
Heller v. Doe, 509 U.S. 312, 319 (1993)). “Indeed, ‘rational-basis review in equal protection
analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’”
Doe v. Michigan Dept. of State Police, 490 F.3d 491, 505-06 (6th Cir. 2007) (quoting Heller,
509 U.S. at 319). The standard reflects the belief that “[‘]judicial intervention is generally
unwarranted no matter how unwisely [a court] may think a political branch has acted.’” Beach,
508 U.S. at 314 (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)). Consequently, “‘[w]hen
social or economic legislation is at issue, the Equal Protection Clause allows the States wide
latitude, and the Constitution presumes that even improvident decisions will eventually be
rectified by the democratic processes.’” Spurlock v. Fox, 716 F.3d 383, 402 (6th Cir. 2013)
(quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).
30

3.

Under rational basis review, Plaintiffs bear the burden of negating
every conceivable basis that might support Ohio’s marriage laws.

Under rational basis review, a law “will be sustained if the classification drawn by the
statute is rationally related to a legitimate state interest.” Spurlock, 716 F.3d at 402. “[A]
classification under rational basis review must be upheld ‘if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.’” Seger v. Kentucky High
School Athletic Ass’n, 453 F. App’x 630, 635 (6th Cir. 2011) (quoting Beach, 508 U.S. at 313).
Thus, “the burden is on the one attacking the legislative arrangement to negative every
conceivable basis which might support it . . . .” Heller, 509 U.S. at 320 (internal quotations
omitted) (emphasis added).
As the Supreme Court has stressed, “[a] legislative choice is not subject to courtroom
fact-finding and may be based on rational speculation unsupported by evidence or empirical
data.” Beach, 508 U.S. at 315 (emphasis added). This rule recognizes and preserves the careful
balance of powers between the judicial and legislative branches: “Only by faithful adherence to
this guiding principle of judicial review of legislation is it possible to preserve to the legislative
branch its rightful independence and its ability to function.” Id. (internal quotations omitted).
These restraints have “added force” where, as here (because the concept of civil marriage
requires some definition as to what falls within its purview), “the legislature must necessarily
engage in a process of line drawing.” Id. (internal quotations omitted). In short, if Ohio’s
marriage laws can “be upheld under any plausible justification offered by the state, or even
hypothesized by the court, it survives rational-basis scrutiny.” Am. Exp. Travel, 641 F.3d at 690.
Defendant has “no obligation to produce evidence to sustain the rationality of [the
State’s] actions . . . .” Loesel v. City of Frankenmuth, 692 F.3d 452, 465 (6th Cir. 2012) (internal
quotations omitted). Moreover, “[C]ourts are compelled under rational-basis review to accept a
31

legislature’s generalizations even when there is an imperfect fit between means and ends.”
Heller, 509 U.S. at 321. In other words, “[a] classification does not fail rational-basis review
because it is not made with mathematical nicety or because in practice it results in some
inequality.” Id. (internal quotations omitted).

Nor are courts licensed to “judge the wisdom,

fairness, or logic of legislative choices.” TriHealth, Inc. v. Board of Comm’rs, Hamilton Cnty.,
Ohio, 430 F.3d 783, 791 (6th Cir. 2005).
These rational basis principles recognize that “[t]he problems of government are practical
ones and may justify, if they do not require, rough accommodations—illogical, it may be, and
unscientific.” Heller, 509 U.S. at 321 (internal quotations omitted). Thus, even where “‘[t]he
assumptions underlying [the government’s] rationales [are] erroneous, [] the very fact that they
are ‘arguable’ is sufficient, on rational-basis review, to ‘immunize’ the [legislative] choice from
constitutional challenge.’” Id. at 333 (quoting Beach, 508 U.S. at 320).
Following the rational basis standard, therefore, it is not enough for Plaintiffs to simply
submit materials disputing the validity potential reasons for Ohio marriage laws. The proper
definition of marriage just is not something that is susceptible of judicial divination based on the
particular opinions or legal conclusions of hand-picked social scientists. Instead, the Court must
accept any “rational speculation”—and even imperfect “generalizations”—that could have
conceivably motivated Ohio lawmakers and voters in passing Ohio’s marriage laws. See Heller,
509 U.S. at 320-21.

32

C.

Plaintiffs have failed in their legal burden of negating “every conceivable
basis” for Ohio’s preservation of traditional marriage, and Ohio’s marriage
laws therefore satisfy rational basis review.
1.

Ohio’s marriage laws are rationally related to several conceivable,
and legitimate, justifications.

Rational basis review is satisfied here, because there are several conceivable legitimate
reasons why lawmakers and voters passed Ohio’s marriage laws including the decision to
preserve uniformly the traditional definition of marriage without regard to contrary
determinations by some other jurisdictions.

Ohioans’ desire to retain the right to define

marriage through the democratic process is legitimate. It is rational for Ohioans to want to set
this State’s same-sex marriage policy rather than to allow Maryland or Delaware do it for them.
This is especially true where, as here, a State’s definition directly contradicts the one historically
and uniformly applied in Ohio.
Plaintiffs ask that Ohio’s democratic process, which chose Ohio’s marriage definition, be
made subservient to that of Delaware and Maryland. It is precisely this “license for a single
State to create national policy” that the court rejected in Wilson, and it is completely rational for
Ohio to want to avoid this result. 354 F. Supp. 2d at 1304 (rejecting the plaintiffs’ attempt to
apply Full Faith and Credit Clause to require Florida to recognize their Massachusetts marriage
in violation of Florida’s statute banning same-sex marriage.); see also Sandoval, 911 F. Supp. 2d
996, 1021 (D.Nev. 2012) (“As to those Plaintiffs validly married in other jurisdictions whose
marriages the State of Nevada refuses to recognize, the protection of Nevada’s public policy is a
valid reason for the State’s refusal to credit the judgment of another state, lest other states be able
to dictate the public policy of Nevada.”)
Relatedly, avoiding judicial intrusion upon a historically legislative function (defining
“marriage”) is a legitimate basis for the passage of Ohio’s marriage laws. Ohioans could have

33

feared that, absent the strong public policy statement set forth in both the constitutional
amendment and the statute, they would be abdicating that function to the courts, including outof-state courts. (See Becker Decl. Ex. E, Doc. No. 41-6) (statement of Rep. Seitz, p. 5, lns. 1-3,
““I’m not willing to leave it to courts to define what Ohio’s public policy might be.”); (statement
of Rep. Grendell, p. 46, lns. 9-11, “There’s no judge in Massachusetts who is accountable to one
person who lives in this state, but we all are. And that’s why it is important that we retain the
policy, power in Ohio to decide on what is marriage.”); (statement of Rep. Grendell, p. 47, lns.
18-20, “I’m going to vote that the people of Ohio deserve to have their representatives decide the
public policy of this state.”).

That courts could intrude upon this area, absent an express

statement of public policy, is hardly unrealistic.

See Mazzolini, 168 Ohio St. at 358-59.

Ohioans’ desire to retain this democratic voice is certainly rational. See Sandoval, 911 F. Supp.
2d at 1021 (“[T]he protection of Nevada’s public policy is a valid reason for the State's refusal to
credit the judgment of another state, lest other states be able to dictate the public policy of
Nevada.”)
This desire to retain a democratic voice in setting marriage policy directly relates to yet
another rational state interest, and that is Ohio’s interest in approaching social change with
deliberation and due care. Before this last decade, no State permitted same-sex marriage. Now,
some States have chosen to expand marriage to include same-sex couples, while most others,
including Ohio, have not. It is undisputed that allowing same-sex marriage would fundamentally
alter Ohio’s definition of marriage. Faced with these circumstances, Ohio lawmakers and voters
could rationally choose to examine the impact that changing marriage laws has had or will have
in other States and wait before allowing any such change to occur in Ohio. As the Jackson court
found: “[T]he state may rationally decide to observe the effect of allowing same-sex marriage in

34

other states before changing its definition of marriage.” 884 F. Supp. 2d at 1118. Ohio’s
marriage laws are rationally connected to this purpose, as they leave to the democratic process
any change that may occur. Specifically too, by reaffirming Ohio’s definition of marriage in the
2004 constitutional amendment, voters assured that it is the will of the people of Ohio, not that of
a court or another state, that controls. “[T]he state could rationally conclude that it is addressing
a divisive social issue with caution.” Id. at 1072.
Justice Brandeis’s metaphor of the States as the laboratories of democracy remains
powerful — and rational — today. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311
(1932) (Brandeis, J., dissenting). Wanting to see how revision efforts in other States progress,
and to assess the results of such changes, and take them into account in setting future policy, is a
conceivable rational basis that could have informed votes. See Jackson, 884 F. Supp. 2d at 1118
(noting the legitimate interest in addressing “a highly-debated social issue cautiously”).
Ohio’s desire to protect its right to define marriage from another state or a court is not
only rational, it is authorized by federal statute. Under a rational basis review, Section 2 of
DOMA itself provides sufficient justification for Ohio’s action. In passing Ohio’s marriage
laws, lawmakers and voters were exercising the authority that the federal government has
preserved for the States. Congress, through Section 2 of DOMA, has confirmed each individual
State’s right to decide for itself whether to recognize the same-sex marriages of the other States.
28 U.S.C. § 1738C. Windsor left this provision of DOMA untouched, and Plaintiffs do not
challenge it here. Under these circumstances, Ohio’s reaffirmation of the traditional definition of
marriage and refusal to recognize out-of-state same-sex marriages is a rational, discretionary
policy decision based on State authority that federal law protects.

35

Yet another interest that may have motivated certain Ohio voters and lawmakers is the
desire not to alter the definition of marriage without evaluating steps to safeguard the religious
rights and beliefs of others. Such concerns have been the subject of significant ongoing debate
and attention by people on all sides of the marriage policy issue. As recently as this year, for
example, a diverse group of noted law professors has emphasized that, “[w]hile we have a range
of views on the underlying issue of same-sex marriage, we wholeheartedly share the belief that
when same-sex marriage is recognized it should be accompanied by corresponding protections
for religious liberty.” “Religious Liberty Implications of Legalizing Same-Sex Marriage” p. 1 fn.
1, available at http://www.nysun/files/lawprofessorletter.pdf (last visited Nov. 18, 2013). The
group recites that “the conflicts between same-sex marriage and religious conscience will be
both certain and considerable if adequate protections are not provided.” Id. at 1. They continue,
“[w]ithout adequate safeguards, many religious individuals will be forced to engage in conduct
that violates their deepest religious beliefs, and religious organizations will be constrained in
crucial aspects of their religious exercise.” Id. Other scholars will disagree. But a desire to
ensure that any such issues are fully analyzed and appropriately accommodated is a conceivable
legitimate basis for legislators and voters not to want to authorize a move away from the
traditional definition of marriage absent reflection and agreement on any considered course of
action. That is especially true in the context in which the challenged statute and amendment
were adopted, as courts in other jurisdictions contemplated rulings that otherwise might have
been claimed to have extraterritorial effect.
Most federal courts to address the issue have concluded that States’ decisions regarding
treatment of same-sex marriage survive rational basis review.

36

In Sandoval, for example, the United States District Court for the District of Nevada
conducted a thorough analysis of Nevada’s prohibition on same-sex marriage and concluded that
the law satisfied rational basis scrutiny. 911 F. Supp. 2d at 1016-1017. Stressing that rational
basis scrutiny does not permit a court to “judge the perceived wisdom or fairness of a law” or to
“examine the actual rationale for the law when adopted,” the court considered whether the
plaintiffs had satisfied their burden of “negat[ing] every conceivable basis which might support”
Nevada’s marriage law. Id. at 1014 In concluding the plaintiffs failed to do so, the court cited
numerous potential legitimate bases that could conceivably support the law, among them “[t]he
protection of the traditional institution of marriage, which is a conceivable basis for the
distinction drawn in this case.” Id. The court reasoned that “[t]he Lawrence Court appears to
have strongly implied that in an appropriate case, such as the present one, the preservation of the
traditional institution of marriage should be considered a legitimate state interest rationally
related to prohibiting same-sex marriage.” Id. at 1015.
Consistent with this position, the court concluded that Nevada had not “crossed the
constitutional line” by maintaining a distinction between same-sex marriage and traditional
marriage. Sandoval, 911 F. Supp. at 1015. Significantly, the court reached this conclusion
despite opining that the plaintiffs’ arguments in support of same-sex marriage had a rational
basis, too. Id. at 1016-1017. Because they could not negate the states’ conceivable legitimate
bases in support of the law, however, Plaintiffs’ arguments failed:
The legal question is not whether Plaintiffs have any conceivable rational
philosophical argument concerning the nature of marriage. They do. The legal
question is whether the State of Nevada has any conceivable rational basis for the
distinction it has drawn. It does, and the laws at issue in this case therefore
survive rational basis review under the Equal Protection clause.
Id.

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The district court of Hawaii reached the same conclusion in Jackson. Like the Sandoval
court, Jackson emphasized the deference the State’s decision regarding marriage deserved. It too
observed that several potential legitimate bases supported Hawaii’s then-current decision to
prohibit same-sex marriage. Consistent with this deferential standard, the State did not need to
prove that any potential justification was empirically accurate. Jackson, 884 F. Supp. 2d at
1115-11166. Rather, if the question was “at least debatable” or “not irrational,” the state’s
rationale withstood scrutiny. Id. Among the potential justifications cited in Jackson was the
State’s legitimate interest in “proceeding with caution” in fundamentally altering its definition of
marriage. Id. at 1116-1118. The court upheld this legitimate interest, deeming it “at least
debatable that altering [the meaning of marriage] would render a profound change in the public
consciousness of a social institution of ancient origin.” Id. at 1117-1118 (internal quotation
omitted).2
Preserving the traditional definition of marriage thus represents another legitimate reason
for Ohio’s marriage laws. By limiting marriage to opposite-sex relationships, Ohio voters made
the policy decision to honor the traditional form of marriage for the purposes of Ohio law. In
Lawrence, Justice O’Connor—who has herself recently presided over a same-sex marriage—
recognized “preserving the traditional institution of marriage” as itself a “a legitimate state
interest.” 539 U.S. at 585 (O’Connor, J., concurring and adding that “other reasons exist to
promote the institution of marriage beyond mere moral disapproval of an excluded group”).

2

Leaving the decision to the people does not itself determine what that position will be over
time. In Hawaii, for example, the federal courts appropriately left the issue to the people of that
State through its political processes. The Hawaii legislature has since changed the law through
those democratic processes to permit same-sex marriage.

38

Justice O’Connor’s position makes sense. The on-going social debate is between two
competing views of marriage. See Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). One side
of this debate views marriage “as an intrinsically opposite-sex institution” based on human
history and experience. Id. As Justice Alito observed in Windsor, this traditional view takes the
position that “throughout human history and across many cultures, marriage has been viewed as
an exclusively opposite-sex institution and as one inextricably linked to procreation and
biological kinship.” Id. While others may disagree with this view, to cut off any further debate
on the issue would go against the rational basis approach.
Moreover, the idea of preserving traditional marriage should not be cast off as implicit
animus.

Obviously, government cannot use history or tradition to cloak invidious

discrimination. See Lawrence, 539 U.S. at 577-78 (“[N]either history nor tradition could save a
law prohibiting miscegenation from constitutional attack.”) (internal quotation omitted). At the
same time, however, history and tradition are still important parts of the rational basis analysis
and the Supreme Court has acknowledged the importance of history in considering the scope of
marriage: Windsor specifically recognized that in defining marriage, States were free to consider
“the historical roots of the institution . . .” 133 S. Ct. at 2692-93.
Central to these “historical roots” is a traditional definition of marriage as being between
a man and a woman. Under such conditions, it would be inappropriate to reject the voters’
adoption of traditional view of marriage as wholly unsupported. As the highest court of New
York observed:
[T]he traditional definition of marriage is not merely a by-product of historical
injustice. Its history is of a different kind. The idea that same-sex marriage is
even possible is a relatively new one. Until a few decades ago, it was an accepted
truth for almost everyone who ever lived, in any society in which marriage
existed, that there could be marriages only between participants of different sex.

39

A court should not lightly conclude that everyone who held this belief was
irrational, ignorant or bigoted.
Hernandez, 7 N.Y.3d at 361. “The protection of the traditional institution of marriage, which is
a conceivable basis for the distinction drawn in this case, is a legitimate state interest.”
Sandoval, 911 F. Supp. 2d at 1014.
Tellingly, many courts, judges, and justices have accepted these rationales that the State
outlines above, along with other reasons such courts have found to be legitimate justifications for
state laws precluding same-sex marriage. See, e.g., Lawrence, 539 U.S. at 585 (O’Connor, J.,
concurring); Bruning, 455 F.3d at 867-88; Jackson, 884 F. Supp. 2d at 1114-19; Sandoval, 911
F. Supp. 2d at 1015; Wilson, 354 F. Supp. 2d at 1308; In re Kandu, 315 B.R. at 146; Conaway,
401 Md. at 317-19 (Md. 2007); Hernandez, 7 N.Y.3d at 359-60; Andersen v. King Cnty., 158
Wash. 2d 1, 37-39 (Wash. 2006); In re Marriage of J.B. & H.B., 326 S.W.3d 654, 677 (Tex.
App. 2010); Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. App. 2005); Standhardt v. Superior
Court ex rel. Cnty. of Maricopa, 206 Ariz. 276, 286-89 (Ariz. App. 2003).
Finally, in applying rational basis review, the Court should not lose sight of the broad
nature of Plaintiffs’ request. By asking this Court to invalidate in the death certificate context
Ohio’s marriage laws with regard to out-of-state marriages, Plaintiffs seek a determination that a
state cannot adopt the traditional definition of marriage for the purposes of its own law. Any
such determination would lack support. The Bruning court recognized as much, stating: “[i]n the
nearly one hundred and fifty years since the Fourteenth Amendment was adopted, . . . no Justice
of the Supreme Court has suggested that a state statute or constitutional provision codifying the
traditional definition of marriage violates the Equal Protection Clause or any other provision of
the United States Constitution.” 455 F.3d at 870. This Court should similarly refrain from
reaching this unjustified conclusion.

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2.

Plaintiffs’ sweeping and un-justified allegations of improper purpose
and effect do not negate the rational bases for Ohio’s marriage laws.

Plaintiffs’ unsubstantiated and erroneous allegation that Ohio’s decision not to recognize
out-of-state same-sex marriages has “the primary purpose and effect” of harming same-sex
couples cannot negate the numerous rational bases that support that decision. Clinging to a
strained reading of the Supreme Court’s decision in Windsor, Plaintiffs suggest that this Court
should declare unconstitutional Ohio’s statute and constitutional amendment prohibiting
recognition of out-of-state same-sex marriages, notwithstanding that the policy is rationally
related to legitimate state interests. But Windsor supports no such result.
As explained above, the Windsor Court found the federal government’s intrusion on the
“tradition[al] [] reliance on state law to define marriage” of such an “unusual character” that it
allowed for an inference of improper (discriminatory) motive. 133 S. Ct. at 2692-93; see also id.
at 2697 (Roberts, C.J., dissenting) (“The dominant theme of the majority opinion is that the
Federal Government’s intrusion into an area ‘central to state domestic relations law applicable to
its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells. . . [I]t is undeniable that
its judgment is based on federalism.”). Given the “unusual character” of the situation the Court
decided that the legislation was motivated by animus, and did not reach the reasonableness of the
many potential explanations proffered in support of Section 3 of DOMA. See id. at 2693-95;
see also Romer, 517 U.S. at 633, 635 (striking down Colorado amendment, which denied
homosexuals “protection across the board” and was “divorced from any factual context” because
the law was “discrimination[] of an unusual character”).
Ohio’s marriage laws do not fit the mold of an “unusual character” analysis the Court
focused on in Windsor and Romer.

Ohio’s legislators and citizens exercised the States’

traditional authority—codified in Section 2 of DOMA—to define marriage for the purposes of
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State law and to refuse to recognize marriages expressly prohibited by Ohio law and public
policy.

Moreover, as discussed above, Ohio’s refusal to recognize out-of-state same-sex

marriages represents a straightforward application of its longstanding practice with respect to
out-of-state marriages. Contrary to Plaintiffs’ repeated assertions, Ohio does not recognize all
out-of-state opposite-sex marriages, but instead refuses to recognize any out-of-state that is
expressly prohibited under Ohio law or contrary to the express public policy of the state. See
supra at § III. Because Ohio’s marriage laws reflect no departure from Ohio’s traditional
practices, Windsor provides no authority for overlooking the rational bases that support Ohio’s
marriage laws.
Nor do Ohio’s marriage laws withdraw any rights Ohio has previously granted. Thus
Plaintiffs cannot rely on Romer and its progeny to overcome the rational bases for the laws. The
theme common to Romer and its progeny is that once a state grants a right to same-sex couples
any later decision to withdraw that right triggers careful examination. Importantly, neither
Article XV § 11 nor Ohio Rev. Code Section 3101.01(C) constituted a policy change in Ohio
law. And Plaintiffs do not urge, and cannot support, that a State is required to grant the right in
the first place.
IV.

The Court should respect the will of Ohio voters and exercise judicial
restraint.
Ultimately, the issue before the Court, and in this Nation, involves two debates. The first

is an ongoing debate about the proper definition of marriage. The second debate involves
whether to cut short the first, and relates to who gets to decide. Do the States, and the people
through their democratic decision-making processes, define marriage? Or should federal Judges
make that determination and remove this fundamental question from the civic arena? The
answer to both is that in the main, determinations regarding “the definition and regulation of
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marriage” are “within the authority and realm of the separate States.” Windsor, 133 S. Ct. at
2689-90. Moreover, “[a]n expression of the popular will expressed by majority plebiscite,
especially at the lowest level of government (which is the level of government closest to the
people), must not be cavalierly disregarded.” Equality Foundation, 128 F.3d at 297.
It is the right of the Ohio people to define marriage, and the will of over three million
Ohio voters cannot be cavalierly disregarded. Rather, “[a]s the product of direct legislation by
the people, a popularly enacted initiative or referendum occupies a special posture in this
nation’s constitutional tradition and jurisprudence.” Id.; see also, e.g., City of Cleburne, 473
U.S. at 440 (“When social or economic legislation is at issue, the Equal Protection Clause allows
the States wide latitude, and the Constitution presumes that even improvident decisions will
eventually be rectified by the democratic processes.”) (internal citations omitted).
Moreover, the definition of marriage is not a simple factual issue that any Court is best
positioned to decide. It is beyond dispute that the debate remains relatively new and that “until
recent years” same-sex marriage was nonexistent. Windsor, 133 S. Ct. at 2689. Research in the
area is also relatively young and “[a]t present no one — including social scientists, philosophers,
and historians—can predict with any certainty what the long-term ramifications of widespread
acceptance of same-sex marriage will be.” Id. at 2716 (Alito, J. dissenting).
Given the complex and delicate nature of any inquiry into the definition of marriage,
judicial modesty is vital to the Court’s decision. It is not a coincidence that this case implicates a
rational basis review standard that is “a paradigm of judicial restraint.” Beach, 508 U.S. at 314
(emphasis added). Indeed, the convergence of rational basis review and federalist principles in
the area of marriage reflect that there are some debates a federal court should not enter.
Consistent with these principles, the Court should not “short-circuit” ongoing Ohio debate over

43

the proper definition of marriage. See Jackson, 884 F. Supp. 2d at 1118 (“[T]o suddenly
constitutionalize the issue of same-sex marriage would short-circuit the legislative actions that
have been taking place in Hawaii.”) (internal quotations omitted); id. at 1070 (“The Court is
mindful of the Supreme Court’s cautionary note that ‘[b]y extending constitutional protection to
an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of
public debate and legislative action.’ Thus, ‘[t]he doctrine of judicial self-restraint requires us to
exercise the utmost care whenever we are asked to break new ground in this field.’”) (citations
omitted).

As the Jackson Court aptly explained, judicial restraint is “especially important” in

cases like this one “where moral and personal passions run high and where there is great risk that
the liberty protected by the Due Process Clause [will] be subtly transformed into the policy
preferences’ of unelected judges.” Id. at 1094 (internal quotations omitted). On these important
issues of “social needs and policy,” “it is the paramount role of the legislature as a coordinate
branch of our government to meet the needs and demands of changing times and legislative
accordingly.” Id. at 1118 (emphasis added). Moreover, as Jackson recognized, “[d]eliberate
consideration of, and incremental responses to rapidly evolving scientific and social
understanding is the norm of the political process—that it may seem painfully slow to those who
are already persuaded by the arguments in favor of change is not a sufficient basis to conclude
that the processes are constitutionally infirm.” Id. at 1118-19.
The State’s position regarding judicial restraint is hardly novel. Justice Ginsburg recently
offered insightful commentary on the importance of judicial restraint when considering divisive
social issues. In a May 2013 speech, given at the University of Chicago, Justice Ginsburg
referred to Roe v. Wade in acknowledging the perils of resolving fundamental social questions in
sweeping manner divorced from the democratic process. Jason Keyser, “Ginsburg Says Roe

44

gave Abortion Opponents Target,” Associated Press (May 11, 2013) available at
http://bigstory.ap.org/article/ginsburg-says-roe-gave-abortion-opponents-target (last visited Nov.
18, 2013). Justice Ginsburg stressed the virtues of “judicial restraint,” and allowing “change [to]
develop in the political process.” Id.
Finally, Plaintiffs ask the Court to overreach, even under the terms of their own
Complaint. Although Plaintiffs frame their request as an “as-applied” challenge (Second Am.
Compl. ¶ 50), they ultimately seek a directive that would have the effect of enjoining anyone
who assists in completing Ohio death certificates from observing Ohio’s marriage laws.
(Proposed Order, Doc. No. 53-2.)

Based on the applicable standards, the Court cannot

invalidate Ohio’s marriage laws without concluding that Ohio voters had no conceivable rational
basis for affirming the traditional definition of marriage. Nevertheless, “to say that in preserving
the traditional definition of marriage [Ohio]—along with [the majority of] other states…has
acted . . . absurdly, ignorantly, or with bigotry, such that the federal judiciary must take the
extraordinary step of intervening and overthrowing the democratic process, is simply untenable.”
Jackson, 884 F. Supp. 2d at 1093 (internal quotations omitted).
judgment for the Defendant.

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The Court should enter

V.

CONCLUSION
For the above reasons this Court should deny Plaintiffs’ request for declaratory and

injunctive relief and dismiss this action.
Respectfully submitted,
MIKE DEWINE
Ohio Attorney General
/s/ Bridget E. Coontz
BRIDGET E. COONTZ (0072919)*
*Lead and Trial Counsel
ZACHERY P. KELLER (0086930)
Assistant Attorneys General
Constitutional Offices Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Tel: [phone]; Fax: [phone]
[e-mail]
[e-mail]
Counsel for State Defendants

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed electronically on November 18,
2013. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing
system.

/s/ Bridget E. Coontz
Bridget E. Coontz (0072919)*
Assistant Attorney General

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