Obergefell et al v. Kasich et al

Filing 62

REPLY to Response to Motion re 53 MOTION for Permanent Injunction and Declaratory Judgment filed by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell. (Attachments: # 1 Exhibit A-Whitewood Order, # 2 Exhibit B-Excerpt of Perry Trial Transcript) (Gerhardstein, Alphonse)

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

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

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

PLAINTIFFS’ REPLY IN RESPONSE
TO DEFENDANT WYMYSLO’S
MEMORANDUM IN OPPOSITION TO
PLAINTIFFS' MOTION FOR
DECLARATORY JUDGMENT AND
PERMANENT INJUNCTION

______________________________________________________________________________
PLAINTIFFS’ REPLY IN RESPONSE TO DEFENDANT WYMYSLO’S
MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR DECLARATORY
JUDGMENT AND PERMANENT INJUNCTION
______________________________________________________________________________

Contents
TABLE OF AUTHORITIES ..................................................................................................................... ii
I.

INTRODUCTION............................................................................................................................... 1

II. ARGUMENT ....................................................................................................................................... 2
A.

Baker v. Nelson, 409 U.S. 810 (1972) Does not Control this Case. .............................................. 2

B. The Reach of Windsor is Not Limited by Its Discussion of the Traditional Role of States in
Marriage Regulation............................................................................................................................... 4
C. Section 2 Of DOMA Does not Trump the Constitution or Prevent any Holding That Ohio’s
Application of its Marriage Laws Violates the Constitution. .............................................................. 6
D. Ohio Denies Marriage Recognition to Married Same-Sex Couples But Extends Marriage
Recognition to Similarly Situated Married Opposite-Sex Couples. ................................................... 7
E. Heightened Scrutiny Should be Applied Because this Case Involves Both a Suspect Class and
a Fundamental Right. Ohio’s Marriage Recognition Ban Fails Under Heightened Scrutiny ......... 8
1. Equality Foundation must be reexamined in light of subsequent Supreme Court precedent,
and is not controlling here. ................................................................................................................. 8
2. Facts matter. This Court should consider the overwhelming facts that support plaintiffs’
claim of heightened scrutiny and discriminatory purpose ............................................................ 10
3.

Sexual orientation is a suspect classification entitled to heightened scrutiny. ..................... 11

4. Heightened scrutiny is appropriate because the marriage recognition ban violates a
fundamental right ............................................................................................................................. 13
F. The Marriage Recognition Ban As Applied to Death Certificates Fails Under Rational Basis
Review .................................................................................................................................................... 15
1.

Respect for democratic process ............................................................................................... 17

2.

Preserving traditional definition of marriage......................................................................... 18

3.

Religious liberty ........................................................................................................................ 20

4.

State Interest Related to Children ........................................................................................... 21

G. This Court is Presented With a Narrow Question and Only Limited Relief is Requested .... 25
III. CONCLUSION ................................................................................................................................. 26
CERTIFICATE OF SERVICE................................................................................................................ 27

i

TABLE OF AUTHORITIES
Cases
Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006) .......................................... 25
Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013) .............................................................................. 12
Bassett v. Snyder, --- F. Supp. 2d ----, 2013 WL 3285111 (June 28, 2013) ............................................... 17
Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111 (1911) ........................................ 6
Botz v. Helvering, 134 F.2d 538 (8th Cir. 1943) ........................................................................................... 6
Bowers v. Hardwick, 478 U.S. 186 (1986) ................................................................................... 8, 9, 11, 19
Clark v. Jeter, 486 U.S. 456 (1988) ............................................................................................................ 13
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 454, n.6 (1985) ............................. 19, 25, 26
Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) ................................................................................................ 14
Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)...................................................................................... 16
Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012) ............................................................. 8, 9, 17
Eisenstadt v. Baird, 405 U.S. 438 (1972) ..................................................................................................... 3
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997).......... 8, 10
Equality Foundation of Greater Cincinnati v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995)................. 10
Equal. Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 860 F. Supp. 417, 426-427 (S.D. Ohio
1994) ................................................................................................................................................. 11, 13
Ex parte Commonwealth of Virginia, 100 U.S. 339 (1879) .......................................................................... 5
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .................................................................................................... 5
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 993 (N.D. Cal. 2012) ............................ 12, 20
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) ............................................................ 20
Heller v. Doe by Doe, 509 U.S. 312 (1993) ................................................................................................ 19
Hicks v. Miranda, 422 U.S. 332 (1975) ........................................................................................................ 2
Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (U.S. 2013) ...................................... 18, 23, 24
Hood v. Tennessee Student Assistance Corp., 319 F.3d 755 (6th Cir.2003)............................................... 11
In re Schafer, 689 F.3d 601 (6th Cir. 2012) ................................................................................................ 11
In re Stiles Estate, 59 Ohio St.2d 73, 391 N.E.2d 1026 (1979) .................................................................... 7
Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 957 A.2d 407 (2008) ................................... 11, 12, 20
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111(2d Cir.2010), ........................................................... 11
Lawrence v. Texas, 539 U.S. 558 (2003) ................................................................ 3, 8, 9, 11, 12, 14, 19, 20
Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32 (1928).................................................................... 4, 5
Loving v. Virginia, 388 U.S. 1, 7 (1967)................................................................................................. 5, 13
Lyng v. Castillo, 477 U.S. 635, 638 (1986) ................................................................................................ 12
Mandel v. Bradley, 432 U.S. 173 (1977) ...................................................................................................... 3
In re Marriage Cases, 183 P.3d 384, 853-54 (Cal. 2008) .......................................................................... 20
Marsh v. Chambers, 463 U.S. 783, 791-92 (1983) ..................................................................................... 19
Maxwell's Pic-Pac v. Dehner, 887 F. Supp. 2d 733 (W.D. Ky. 2012) ....................................................... 16
Moore v. City of E. Cleveland, 431 U.S. 494 (1977) .................................................................................. 14
Ohio Citizen Action v. City of Englewood, 671 F.3d 564 (6th Cir. 2012) .................................................. 26
People's Rights Organization, Inc. v. City of Columbus, 152 F.3d 522 (6th Cir. 1996) ............................. 16
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) .................................................................................... 18, 24
Perry v. Schwarzenegger, 704 F. Supp. 2d 921(N.D. Cal. 2010) ............................................. 11, 12, 19, 23

ii

Perry v. Sindermann, 408 U.S. 593 (1972) ................................................................................................. 14
Romer v. Evans, 517 U.S. 620 (1996)..................................................................................................... 4, 15
Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) .......................................... 8, 9, 11
Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997) ......................................................................... 17
Turner v. Safley, 482 U.S. 78 (1987) ............................................................................................................ 3
United States v. Virginia, 518 U.S. 515 (1996) .................................................................................... 13, 19
United States v. Windsor, 133 S. Ct. 2675 (2013) .............................. 1, 2, 3, 4, 5, 11, 12, 17, 19, 21, 23, 24
Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ................................................................................... 11, 20
Watson v. City of Memphis, 373 U.S. 526 (1963) ....................................................................................... 18
Wetmore v. Karrick, 205 U.S. 141 (1907) .................................................................................................... 6
Williams v. Illinois, 399 U.S. 235 (1970).................................................................................................... 19
Windsor v. United States, 699 F.3d 169 (2d Cir. 2012), ......................................................................... 3, 11
Witt v. Dep 't of Air Force, 527 F.3d 806 (9th Cir. 2008) ........................................................................... 14
Zablocki v. Redhail, 434 U.S. 374 (1978)..................................................................................................... 3

Statutes
28 U.S.C. § 1738C .......................................................................................................................... 6
Conn. Gen. Stat. Ann. § 46b-22b, § 46b-35a, and § 46b-35b....................................................... 21

iii

I.

INTRODUCTION

Defendant Wymyslo sees only two issues – the “ongoing debate about the proper
definition of marriage” and whether “the people through their democratic decision-making
processes, define marriage.” (Doc. 56, p. 42). Defendant is wrong. This case is about the
recognition of out of state same-sex marriages in a very narrow context – issuance of death
certificates.
Defendant would have this Court stand down and abandon its duty to address the
constitutional issue presented when Ohio refuses to issue death certificates that reflect the valid
out of state marriages of the married Plaintiffs in this case. The Supreme Court did not stand
down when in United States v. Windsor, 133 S. Ct. 2675 (2013), it held unconstitutional a federal
law that denied recognition to marriages between same-sex couples while extending recognition
to marriages between opposite-sex couples. Relying on Justice Ginsburg’s recent remarks about
the Court’s decision in Roe v. Wade at the University of Chicago, Defendant Wymyslo appeals
to “judicial restraint.” Justice Ginsburg did not say that the Supreme Court should have refused
to enforce the constitution when it was faced with the Roe case. Rather, she said it should have
“struck down only the Texas law that brought the matter before the Court. That law allowed
abortions only to save a mother’s life.” 1 Plaintiffs are not asking for a sweeping decision
invalidating the Ohio ban on same-sex marriage celebration and recognition in all respects.
Rather, this case seeks measured, limited relief.
John Arthur is dead. He was married to James Obergefell. Defendant Wymyslo cannot
identify any interest that supports Ohio’s refusal to recognize his marriage and record John’s
marriage on his death certificate. The same argument applies to William Ives. That is the real
1

http://bigstory.ap.org/article/ginsburg-says-roe-gave-abortion-opponents-target (last visited November 30, 2013)
(cited by Defendant at Doc. 56, p.45).

1

issue facing the Court. A ruling for the Plaintiffs in this case properly applies the principle of
equal protection to the plight of plaintiffs who have been denied recognition of their marriages
under the legislative and popularly enacted measures in Ohio. After granting limited relief
regarding death certificates there remains every opportunity as Justice Ginsburg recommended
(and the Defendant has requested), to allow “change to develop in the political process.” Id.
II.

ARGUMENT

A. Baker v. Nelson, 409 U.S. 810 (1972) Does not Control this Case.
Defendant wrongly suggests that Baker v. Nelson, 409 U.S. 810 (1972) requires this
Court to reject the claims of Plaintiffs. This one line decision rendered forty-one years ago no
longer has any significant weight in light of the intervening case law. The United States District
Court for the Middle District of Pennsylvania recently held that Baker is not controlling in a
Pennsylvania marriage equality case because the Supreme Court’s doctrine has substantially
changed since 1972. Whitewood v. Wolf, 1:13-cv-1861, “Memorandum and Order,” Nov. 15,
2013 (Exhibit A, attached). That court correctly held that “significant doctrinal developments in
the areas of due process and equal protection . . . eviscerate any utility or controlling effect that
Defendants posit Baker v. Nelson may have . . . .” Id. at 6, citing Hicks v. Miranda, 422 U.S. 332,
344 (1975) (“[I]f the Court has branded a question as unsubstantial, it remains so except when
doctrinal developments indicate otherwise [.]”).
In Baker, the plaintiffs appealed a decision of the Minnesota Supreme Court declining to
recognize marriage between same-sex couples. There have been significant developments
affecting marriage equality since 1972 when Baker’s one-line decision was issued finding “[t]he
appeal is dismissed for want of a substantial federal question.” 409 U.S. 810. For example, in
Windsor, the Second Circuit held that one of the reasons Baker did not control was that “[i]n the

2

forty years after Baker, there have been manifold changes to the Supreme Court’s equal
protection jurisprudence.” Windsor v. United States, 699 F.3d 169, 178-79 (2d Cir. 2012), aff’d,
133 S. Ct. 2675 (2013); id. at 179 (“These doctrinal changes constitute another reason why Baker
does not foreclose our disposition of this case.”). As the Second Circuit explained:
When Baker was decided in 1971, “intermediate scrutiny” was not yet in the
Court’s vernacular. Classifications based on illegitimacy and sex were not yet
deemed quasi-suspect. The Court had not yet ruled that “a classification of
[homosexuals] undertaken for its own sake” actually lacked a rational basis. And,
in 1971, the government could lawfully “demean [homosexuals’] existence or
control their destiny by making their private sexual conduct a crime.”
Id. (citations omitted).
Similarly, Baker could not and did not address how Plaintiffs’ substantive due
process claims should be evaluated in light of the Court’s intervening decisions in
Eisenstadt v. Baird, 405 U.S. 438 (1972); Zablocki v. Redhail, 434 U.S. 374 (1978);
Turner v. Safley, 482 U.S. 78 (1987); Lawrence v. Texas, 539 U.S. 558 (2003); and
Windsor, 133 S. Ct. 2675 (2013).
Baker also is not controlling here because it involved different issues than those
presented in this case. Summary dispositions “prevent lower courts from coming to opposite
conclusions on the precise issues presented and necessarily decided by those actions.” Mandel v.
Bradley, 432 U.S. 173, 176 (1977) (emphasis added). Baker addressed the constitutionality of a
Minnesota marriage law passed at a time before there was any public discussion about marriage
for same-sex couples. It did not consider the constitutionality of a law that specifically was
enacted by a state in order to preclude marriage for same-sex couples and whether such an
enactment had the “purpose and effect to disparage and to injure” same-sex couples. Windsor,
133 S. Ct. at 2696. Of central importance for this case is the fact that Baker did not consider the
constitutionality of a law barring recognition of valid marriages of same-sex couples entered into
3

in other jurisdictions. By contrast, in United States v. Windsor, decided just last term, the
Supreme Court struck down a law prohibiting the federal government from recognizing valid
marriages of same-sex couples, marking a critically significant doctrinal development in the
context of marriage recognition bans. Thus, Baker poses no bar to the relief requested by
Plaintiffs in this case.
B. The Reach of Windsor is Not Limited by Its Discussion of the Traditional Role of
States in Marriage Regulation
The Court’s opinion in Windsor discussed issues of federalism only to establish that
DOMA “reject[ed] the long established precept” that “the Federal Government [defers] to statelaw policy decisions with respect to domestic relations” and “departs from th[e] history and
tradition of reliance on state law to define marriage.” Windsor, 133 S. Ct. at 2692. This
departure, coupled with the obvious anti-gay animus expressed by Congress in passing DOMA,
Id. at 2693, helped make DOMA a “[d]iscrimination[] of an unusual character” which merited
“careful consideration to determine whether [it was] obnoxious to the [C]onstitution[] . . . .” Id.
at 2692 (citing Romer v. Evans, 517 U.S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v.
Coleman, 277 U.S. 32, 37-38 (1928))). Once subjected to such “careful consideration,” the Court
found that DOMA’s
demonstrated purpose [was] to . . . demean [same-sex] couple[s], whose moral and sexual
choices the Constitution protects. . . . [T]he principal purpose and the necessary effect of
this law are to demean those persons who are in a lawful same-sex marriage . . . [,] to
disparage and to injure those whom the State, by its marriage laws, sought to protect in
personhood and dignity.
Id. at 2693, 2694, 2695-96 (internal citations omitted). In short, the purpose of DOMA was “to
impose inequality, not [to further] other reasons like governmental efficiency.” Id. at 2694
(2013). The Court held that “no legitimate purpose overc[ame]” this illegitimate purpose, Id. at
2696, and thus DOMA was “unconstitutional as a deprivation of the liberty of the person
4

protected by the Fifth Amendment of the Constitution.” Id. at 2695. The Court further noted that
“[t]he liberty protected by the Fifth Amendment’s Due Process Clause contains within it the
prohibition against denying to any person the equal protection of the laws.” Id.
Justice Scalia in his dissent expressly stated that notions of federalism would not set any
boundary on the impact of the majority opinion. Windsor, 133 S. Ct. at 2705. Any exercise of
governmental power, federal or state, must comport with the protections of the Fourteenth
Amendment, including the Equal Protection Clause. Windsor made this point explicit:
[t]he States’ interest in defining and regulating the marital relation, subject to
constitutional guarantees, stems from the understanding that marriage is more
than a routine classification for purposes of certain statutory benefits. Private,
consensual sexual intimacy between two adult persons of the same sex may not be
punished by the State, and it can form ‘but one element in a personal bond that is
more enduring. . . . The power the Constitution grants it also restrains.
Id. at 2692, 2695 (emphasis added). See also Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Eleventh
Amendment sovereign immunity limited by the Fourteenth Amendment); Ex parte
Commonwealth of Virginia, 100 U.S. 339, 346 (1879) (“The prohibitions of the Fourteenth
Amendment are directed to the States, and they are to a degree restrictions of State
power. . . . [I]n exercising her rights, a State cannot disregard the limitations which the Federal
Constitution has applied to her power. Her rights do not reach to that extent.”); Loving v.
Virginia, 388 U.S. 1, 7 (1967) (while marriage is a social relation subject to the state’s police
power, its power to regulate marriage is not unlimited under the Fourteenth Amendment).
Like the federal government’s departure from the longstanding principle of letting states
decide the definition of marriage, Ohio has departed from its long history of recognizing
marriages from out-of-state that it would not allow in its borders. This makes the discrimination
at issue here one of “unusual character” just like in Windsor. Thus, that decision provides an

5

important platform upon which this Court may act to protect the Plaintiffs rather than a barrier to
such action.
C. Section 2 Of DOMA Does not Trump the Constitution or Prevent any Holding
That Ohio’s Application of its Marriage Laws Violates the Constitution.
Plaintiffs are not challenging Section 2 of DOMA in this lawsuit even though it is
questionable whether it is a valid exercise of Congress’s power. There is simply no need to reach
that issue. Section 3 of DOMA, which defined marriage for all federal purposes as “only a legal
union between one man and one woman” and spouse as “only . . . a person of the opposite sex
who is a husband or a wife,” was declared unconstitutional in Windsor.
Section 2 of DOMA, however, was not at issue in Windsor. It reads as follows:
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.
The Defendant wrongly suggests that Section 2 provides protection from the
constitutional challenge in this case. Doc. 56, p. 9. The Supreme Court has stated that the
“requirement of full faith and credit is to be read and interpreted in the light of well-established
principles of justice, protected by other constitutional provisions which it was never intended to
modify or override.” Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111,
134 (1911). See also Botz v. Helvering, 134 F.2d 538, 545 (8th Cir. 1943) (same); Wetmore v.
Karrick, 205 U.S. 141 (1907) (full faith and credit clause necessarily to be interpreted in
connection with other provisions of the Constitution). Further, the Plaintiffs have based their
claims on equal protection and due process and not the Full Faith and Credit Clause.

6

DOMA Section 2 therefore does not give Ohio license to violate portions of the
Constitution, including the Fourteenth Amendment’s guarantees of equal protection and due
process.
D. Ohio Denies Marriage Recognition to Married Same-Sex Couples But Extends
Marriage Recognition to Similarly Situated Married Opposite-Sex Couples.
Whether this Court applies heightened scrutiny or rational basis as it decides the issue of
equal protection, as a threshold matter it must determine if Ohio treats opposite-sex couples
married in other jurisdictions differently than same-sex couples married in other jurisdictions.
The one case cited by Defendants to challenge this premise is not about marriage recognition at
all. In re Stiles Estate, 59 Ohio St.2d 73, 391 N.E.2d 1026 (1979) (Doc. 56 at 14). In Stiles, the
Supreme Court of Ohio, in a case involving a probate estate, declined to recognize a common
law marriage between an uncle and niece allegedly entered into in Ohio. Id. There is no valid
comparison between Stiles and the instant case. The married Plaintiffs in this case did not
attempt to marry in Ohio. Furthermore, there was no argument that the incestuous marriage
between uncle and niece in Stiles was valid in any state outside Ohio, unlike the two states where
Plaintiffs were married and sixteen others plus the District of Columbia which allow marriage
between same-sex couples.
Plaintiffs’ prior arguments and this Court’s analysis in its temporary restraining order
decision (Doc. 13) remain unchallenged. Where opposite-sex couples marry outside Ohio and
seek to have their marriages recognized in Ohio, even if such marriage could not legally be
solemnized in Ohio, those marriages are granted recognition. However, same-sex couples who
are married in other jurisdictions are treated differently under Ohio law—their marriages are
denied recognition. Defendant Wymyslo seeks to justify this different treatment by noting that
there is an express law prohibiting same-sex marriage recognition. Of course, this reasoning is
7

circular because laws challenged on the basis that they are unconstitutional cannot be found
constitutional because the challenged measure is expressly written into state law. Further, the
possibility that there may be some marriages between opposite-sex couples performed in other
jurisdictions that Ohio might not recognize does not change the fact that the marriage ban creates
a classification based on sexual orientation that causes same-sex married couples to be treated
differently than similarly situated opposite-sex married couples.
E. Heightened Scrutiny Should be Applied Because this Case Involves Both a
Suspect Class and a Fundamental Right. Ohio’s Marriage Recognition Ban Fails
Under Heightened Scrutiny
1. Equality Foundation must be reexamined in light of subsequent Supreme
Court precedent, and is not controlling here.
Defendant Wymyslo argues that the 1997 Equality Foundation case and its progeny
prevent this Court from using anything but rational basis scrutiny. Equality Found. of Greater
Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 301 (6th Cir. 1997); 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). However, in Equality Foundation the court rejected heightened
scrutiny based on the decision Bowers v. Hardwick, 478 U.S. 186 (1986)(rejecting challenge to
criminal sodomy statute). The Sixth Circuit explained that, “homosexuals did not constitute
either a ‘suspect class’ or a ‘quasi-suspect class’ because the conduct which defined them as
homosexuals was constitutionally proscribable.” Equality Foundation, 128 F.3d at 293
(emphasis added). Of course since that 1997 decision the courts and the public have all learned
that gay people are not “defined” by conduct. Moreover, the Supreme Court reversed Bowers
and eliminated any precedential value the case may have retained when in Lawrence v. Texas,
539 U.S. 588 (2003), the Court struck down a Texas sodomy statue as unconstitutional. The
Court stated that the statute
8

seek[s] to control a personal relationship that . . . is within the liberty of persons to
choose without being punished as criminals. This, as a general rule, should
counsel against attempts by the State, or a court, to define the meaning of the
relationship or to set its boundaries absent injury to a person or abuse of an
institution the law protects. It suffices for us to acknowledge that adults may
choose to enter upon this relationship in the confines of their homes and their own
private lives and still retain their dignity as free persons. When sexuality finds
overt expression in intimate conduct with another person, the conduct can be but
one element in a personal bond that is more enduring. The liberty protected by the
Constitution allows homosexual persons the right to make this choice.
Id. at 567. In Scarbrough, the Sixth Circuit relied on Equality Foundation without conducting
an independent analysis. Scarbrough, 470 F.3d at 261. Then in Davis, the court cites to
Scarbrough for the proposition that sexual orientation is not a suspect classification in the Sixth
Circuit further entrenching the reliance on pre-Lawrence case law. Davis, 679 F.3d at 438.
The Supreme Court expressed disfavor with the rationale used in Bowers to uphold
Georgia’s sodomy law—that the majority of the electorate found homosexual sodomy immoral:
First, the fact that a State's governing majority has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a law
prohibiting the practice. Second, individual decisions concerning the
intimacies of their physical relationship, even when not intended to produce
offspring, are a form of “liberty” protected by the Due Process Clause of the
Fourteenth Amendment.
Lawrence v. Texas, 539 U.S. 558, 578 (2003) (quoting Justice Steven’s dissent in Bowers). The
Supreme Court went on to explain that this analysis “should have been controlling in Bowers and
should control here. Bowers was not correct when it was decided, and it is not correct today.” Id.
Thus, to the extent the Defendant suggests that targeting same sex relationships for harm
is itself an appropriate state purpose, the Defendant is wrong and after Lawrence, Equality
Foundation cannot be used to support that notion in any respect. Defendant further notes
Equality Foundation’s mention of the importance of respecting measures that are passed by the
electorate. Nothing in that decision, however, suggests that popularly enacted measures need not
comply with the constitution.
9

Defendant Wymyslo fails to offer any justifications for how the state’s refusal to
recognize Plaintiffs’ marriages and record those marriages on the state issued death certificates
advances any legitimate purpose. As explained in detail in the opening brief and below, the Ohio
marriage ban as applied to death certificates fails to comply with the constitution whether
heightened scrutiny or rational basis is applied.
2. Facts matter. This Court should consider the overwhelming facts that
support Plaintiffs’ claim of heightened scrutiny and discriminatory
purpose
Defendant Wymyslo dismisses the entire factual presentation of the plaintiffs in one
sentence, “Relatedly, the Court need not consider Plaintiff’s declarations relating to whether
sexual orientation is a suspect class.” Doc. 56, p. 20. Defendant then cites to the Equality
Foundation decision after remand from the Supreme Court as authority for that proposition. Id.
(citing 128 F.3d 289). That decision does not support such a sweeping dismissal of the factual
record. Moreover, that decision did not discuss at all the weight to be given the facts. An earlier
decision vacated by the Supreme Court discussed the factual record. Equality Foundation of
Greater Cincinnati v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995) cert granted, judgment
vacated, 518 U.S. 1001 (1996). Even that decision fails to support the notion that a court “need
not consider” the facts. Rather, it simply said that certain facts which have particular
constitutional significance can be reviewed de novo by the Court of Appeals. In short, nothing in
any of the Equality Foundation opinions suggests that facts do not matter.
Indeed, since the trial court decision in Equality Foundation twenty years ago, other
courts have reviewed the important issues of the nature of sexual orientation, the history of
discrimination, the political power of gays and other issues that bear on heightened scrutiny and
have agreed with the findings made by Judge Spiegel. See Equal. Found. of Greater Cincinnati,

10

Inc. v. City of Cincinnati, 860 F. Supp. 417, 426-427 (S.D. Ohio 1994); Perry v.
Schwarzenegger, 704 F. Supp. 2d 921, 998-1003(N.D. Cal. 2010) aff'd sub nom. Perry v. Brown,
671 F.3d 1052 (9th Cir. 2012) vacated and remanded sub nom. Hollingsworth v. Perry, 133 S.
Ct. 2652 (U.S. 2013); Windsor v. United States, 699 F.3d 169, 181-85 (2d Cir. 2012) cert.
granted, 133 S. Ct. 786 (2012) and aff'd, 133 S. Ct. 2675 (2013); Varnum v. Brien, 763 N.W.2d
862, 889-96 (Iowa 2009); Kerrigan v. Comm'r of Pub. Health, 289 Conn. 135, 174-226, 957
A.2d 407, 431-61 (2008).
3. Sexual orientation is a suspect classification entitled to heightened
scrutiny.
This Court is not limited by the Sixth Circuit’s previous statements that gays and lesbians
are not a suspect class, see e.g., Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F .3d 250, 261
(6th Cir. 2006), because those decisions rely on case law following Bowers v. Hardwick, 478
U.S. 186 (1986) before it was overruled by Lawrence v. Texas, 539 U.S. 558 (2003). 2 See
Section II. E. 1, supra. In the wake of Lawrence, other courts have recognized that gays and
lesbians are entitled to heightened scrutiny as a class. See, e.g., Kerrigan v. Comm 'r of Pub.
Health, 957 A.2d 407, 432-62 (Conn. 2008); Varnum v. Brien, 763 N. W.2d 862, 889-97 (Iowa
2009); Windsor v. United States, 699 F.3d 169, 181- 185 (2d Cir. 2012) (applying intermediate
scrutiny) aff'd on other grounds, 133 S. Ct. 2675 (2013). 3. The U.S. Department of Justice, after
carefully examining the factors discussed below, concluded that heightened scrutiny should
2

Plaintiffs contend that Equality Federation and its progeny do not resolve the question of whether sexual
orientation constitutes a suspect classification. Should the Court find those cases controlling, Plaintiffs ask the Court
to analyze the heightened scrutiny factors so that the Court of Appeals may properly revisit the question and
conclude that sexual orientation classifications are entitled to heightened scrutiny.
3
The Supreme Court’s affirmance on other grounds of the Second Circuit decision in Windsor does not undercut its
precedential value. See e.g., In re Schafer, 689 F.3d 601, 604, 606 (6th Cir. 2012) (describing as one of its
“precedents” “Hood v. Tennessee Student Assistance Corp., 319 F.3d 755 (6th Cir.2003), aff’d on other grounds,
541 U.S. 440 (2004); Balintulo v. Daimler AG, 727 F.3d 174, 191 (2d Cir. 2013) (“The law of this Circuit already
provides answers to some of those questions, including the principle that corporations are not proper defendants
under the ATS in light of prevailing customary international law, see Kiobel v. Royal Dutch Petroleum Co., 621
F.3d 111, 149 (2d Cir.2010), aff’d on other grounds, 133 S.Ct. at 1669″).

11

apply to sexual orientation classifications. Brief for the Petitioner United States (Merits),
Department of Justice, U.S. v. Windsor, 133 S.Ct. 2675 (2013) (No. 12-307), 16-36.
As fully explained in the opening brief, there are several factors that clearly support a
finding that heightened scrutiny should apply. First, there can be no dispute that gays and
lesbians have historically experienced discrimination, both nationwide and in Ohio. Defendant
incorrectly argues that because gays and lesbians have secured some rights in some states that
they are therefore not subjects of historical discrimination. No struggle for equal rights is
completely linear. And no current gain eliminates a history of discrimination. Second, gays and
lesbians lack “sufficient political strength to bring a prompt end to the prejudice and
discrimination [that they suffer] through traditional political means,” Kerrigan, 957 A.2d at 444.
See Lyng v. Castillo, 477 U.S. 635, 638 (1986). As traced in the opening brief, this is true both at
a national level and within Ohio.
Third, gays and lesbians have "obvious, immutable, or distinguishing characteristics that
define them as a discrete group." Lyng, 477 U.S. at 638. Sexual orientation is a distinguishing
characteristic that defines gays and lesbians as a discrete, socially visible group. See Lawrence,
539 U.S. at 568 (tracing emergence of sexual orientation as a discrete identity category in the late
19th century). Evidence also shows that sexual orientation is an immutable characteristic. See
Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 986 (N.D. Cal. 2012) ("[T]he
consensus in the scientific community is that sexual orientation is an immutable characteristic").
Fourth, sexual orientation “bears no relation to [anyone's] ability to perform or contribute to
society.” Frontiero, 411 U.S. at 686. “[S]exual orientation bears no relation to a person's ability
to participate in or contribute to society, a fact that many courts have acknowledged.” Kerrigan,
957 A.2d at 434; Golinski, 824 F. Supp. 2d at 983; Perry, 704 F. Supp. 2d at 1002; Equality

12

Foundation of Greater Cincinnati, Inc. v. Cincinnati, 860 F.Supp. 417, 437 (S.D.Ohio 1994)
(“[S]exual orientation ... bears no relation whatsoever to an individual's ability to perform, or to
participate in, or contribute to, society.... If homosexuals were afflicted with some sort of
impediment to their ability to perform and to contribute to society, the entire phenomenon of
‘staying in the [c]loset’ and of ‘coming out’ would not exist; their impediment would betray their
status.”), rev'd on other grounds, 54 F.3d 261 (6th Cir.1995), vacated and remanded, 518 U.S.
1001, 116 S.Ct. 2519, 135 L.Ed.2d 1044 (1996). See generally Doc 53-1, pp. 18–28.
When heightened scrutiny is applied, the Defendant must establish that the Ohio marriage
recognition ban as applied to Plaintiffs’ request for and provision of death certificates to samesex couples married in jurisdictions permitting such marriages is “substantially related to an
important governmental objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988) (six year statute of
limitations for paternity action failed heightened scrutiny). Moreover, under heightened scrutiny
a statute must be defended based upon the “actual [governmental] purposes” supporting the
measure and not simply based on post-hoc “rationalizations.” United States v. Virginia, 518 U.S.
515, 535-536 (1996) (Virginia violated equal protection when it maintained military school for
men and not for women.) Defendant Wymyslo simply argues that heightened scrutiny does not
apply and has failed to identify any actual governmental purpose that is substantially related to
the marriage recognition ban. There simply is none and the measure must fail under this test.
4. Heightened scrutiny is appropriate because the marriage recognition ban
violates a fundamental right
Marriage is a fundamental right under Supreme Court precedent. “Marriage is one of the
‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving, 388 U.S. at
12 (1967). Defendant Wymyslo’s attempt to recast the right as one of “same-sex marriage” is
disingenuous. Just as the freedom of religion applies to people of all religions or non-religions,
13

so too does the marriage right apply to all people. Christians do not have to secure a separate
“freedom of Christian religion.” They are entitled simply to the free exercise of religion.
Likewise, marriage applies to all people regardless of their race, creed, or sexual orientation.
There is nothing about gay and lesbian people that makes them less entitled to this fundamental
right.
The Supreme Court has also recognized that the Due Process Clause provides a
substantive right of intimate association, which means that “personal decisions relating to . . .
family relationships” are constitutionally protected from state interference. Lawrence, 539 U.S.
at 573; Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (“[W]hen the government
intrudes on choices concerning family living arrangements, [courts] must examine carefully the
importance of the governmental interests advanced and the extent to which they are served by
the challenged resolution.”). To survive the heightened scrutiny applicable to such
impingements, a court must find that important governmental interests are at stake, the law will
significantly further those interests, and the law is necessary to further those interests. Witt v.
Dep 't of Air Force, 527 F.3d 806, 817 (9th Cir. 2008) (applying the heightened scrutiny required
by Lawrence); Cook v. Gates, 528 F.3d 42,61 (1st Cir. 2008) (same).
The marriage laws at issue here directly and substantially interfere with the married
Plaintiffs’ family relationships by preventing them from receiving the myriad benefits provided
by the state to married couples, including the benefit of being recognized on one’s spouse’s death
certificate. Perry v. Sindermann, 408 U.S. 593, 597 (1972) (“[E]ven though a person has no
'right' to a valuable government benefit . . . [the government] may not deny a benefit to a person
on a basis that infringes his constitutionally protected interests.”). Moreover, the Marriage
recognition ban enshrined in the state constitution fences out the plaintiffs. Gay men and

14

lesbians cannot simply lobby their legislature to secure the right to marry. They must mount a
campaign to amend the entire constitution in order to secure their rights. As it violates a
fundamental right the marriage recognition ban is a denial of substantive due process and must
be held unconstitutional as applied in this case to the issue of death certificates.
F. The Marriage Recognition Ban As Applied to Death Certificates Fails Under
Rational Basis Review
As thoroughly discussed above, and in Plaintiffs’ Memorandum in Support of its Motion
for Declaratory Judgment and Permanent Injunction, the reasons for applying heightened
scrutiny to this case are well established and convincing. Doc. 53-1 at 15-37. But even if the
Court applies rational basis review to this case, the Ohio marriage recognition ban fails judicial
review under that standard as well.
Defendant argues that rational basis review should be more deferential when the
challenged enactment is established by referendum. But of course Colorado Amendment 2 was
just such an enactment. The Supreme Court stated in that case that, “even in the ordinary equal
protection case calling for the most deferential of standards, we insist on knowing the relation
between the classification adopted and the object to be attained.” Romer v. Evans, 517 U.S. 620,
632 ( 1996). In Romer, the Court invalidated a Colorado constitutional amendment that
prohibited all legislative, executive, or judicial action designed to protect gay and lesbian persons
from discrimination. Id. at 635-36. The Court held that
[T]he amendment has the peculiar property of imposing a broad and undifferentiated
disability on a single named group, an exceptional and, as we shall explain, invalid form
of legislation[, and that] its sheer breadth is so discontinuous with the reasons offered for
it that the amendment seems inexplicable by anything but animus toward the class it
affects; it lacks a rational relationship to legitimate state interests.
Id. at 632. Applying rational basis review, the Sixth Circuit has examined the “relation between
the classification adopted and the object to be obtained” and invalidated several laws under this
15

deferential standard. For example, in in People’s Rights Organization, Inc. v. City of Columbus,
152 F.3d 522 (6th Cir. 1996), the court stated that “[r]ational basis review, while deferential, is
not toothless,” and proceeded to invalidate a “grandfather” clause exception from an ordinance
banning the sale, transfer, acquisition, or possession of assault weapons. Id. at 532. The court
found no valid nexus between the City’s proposed justification for the exception and the means
through which it was carried out. Id. at 531-32. In Craigmiles v. Giles, 312 F.3d 220 (6th Cir.
2002), the Sixth Circuit invalidated a Tennessee statute that allowed only licensed funeral
directors to sell caskets, urns, and other funeral merchandise. Id. at 222-23. While noting that
only a handful of statutes have been invalidated using rational basis review, the Sixth Circuit
nevertheless found that the law did not promote public health or safety, and that the law’s only
purpose was to “privilege certain businessmen over others at the expense of consumers.” Id. at
229. The court held the law lacked a legitimate purpose and therefore failed rational basis
review. Id.
Similarly, in Maxwell’s Pic-Pac v. Dehner, 887 F. Supp. 2d 733 (W.D. Ky. 2012), the
Western District of Kentucky held that a Kentucky law which prohibited grocery stores and gas
stations from selling wine and liquor, but potentially allowed all other retailers to do so, created a
classification that lacked a rational relationship to a legitimate state interest. In doing so, it found
in the record no actual correlation between the state’s proffered purposes for the law and the
classification the law created. Id. at 748-51. The court also twice noted that “deference is not an
abdication of judicial review.” Id. at 744, 751.
Of course in Windsor the federal statute prohibiting the federal recognition of marriages
between same-sex couples also failed under a rational basis test. In that case, the Court found
the federal DOMA unconstitutional because the classification failed to serve any legitimate

16

governmental purpose. Ohio’s marriage recognition ban, like the measure in Windsor, fails
rational basis because the “purpose and practical effect of the law . . . [was] to impose a
disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”
Windsor, 133 S. Ct. at 2693.
Further, even in the case cited by Defendant supporting rational basis review for
classifications based upon sexual orientation, the Sixth Circuit identified gay and lesbian
individuals as an “identifiable group for equal protection purposes,” stating that “the desire to
effectuate one’s animus against homosexuals can never be a legitimate governmental purpose,
[and] a state action based on that animus alone violates the Equal Protection Clause.” Davis v.
Prison Health Servs., 679 F.3d 433, 438, 441. See also, Stemler v. City of Florence, 126 F.3d
856, 873 (6th Cir. 1997) (recognizing equal protection claim stated by lesbian mistreated by
police); Bassett v. Snyder, --- F. Supp. 2d ----, 2013 WL 3285111 (June 28, 2013) at *24-26
(holding that “[t]he historical background and legislative history of the Act [prohibiting samesex partners from receiving public employee benefits] demonstrate that it was motivated by
animus against gay men and lesbians,” and the plaintiffs thus demonstrated a likelihood of
success on the merits of their equal protection claim) (emphasis added). Thus, the Supreme Court
and Sixth Circuit have both recognized that the lowest level of review for an equal protection
challenge, rational basis, nonetheless has teeth. Defendant has identified no rational relationship
between the stated goals and the marriage recognition ban. Indeed the Ohio law, like the federal
law in Windsor is based on a bare desire to harm gay and lesbian people.
1. Respect for democratic process
The Defendant asserts an interest in defining marriage through the democratic process
and avoiding what it sees as judicial intrusion upon a historically legislative function. The

17

Defendant claims that this avoidance of judicial intrusion allows the state to approach “social
change with deliberation and care.” Doc. 56, p. 33-35. The majoritarian process is not always
the best means for establishing the rights of minority groups. This balancing among the three
branches of government was anticipated and viewed as critical by the founders. The Federalist
No. 78. Sometimes judicial intervention is necessary to preserve the rule of law. See, e.g.,
Watson v. City of Memphis, 373 U.S. 526, 528 (1963) (rejecting appeal by city to permit delay in
desegregation based on alleged “need and wisdom of proceeding slowly and gradually.”)
Moreover there is no sunset provision or study period set out in the Ohio marriage recognition
ban so there is no deliberation promoted simply by deferring to the constitutional amendment as
it presently stands. As the Ninth Circuit correctly found, acting with “deliberation and care” is
not a reason that supports a purpose of harming gay people. Perry v. Brown, 671 F.3d 1052,
1090 (9th Cir. 2012) cert. granted, 133 S. Ct. 786, 184 L. Ed. 2d 526 (U.S. 2012) and vacated
and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (U.S. 2013)
(vacated on other grounds).
2. Preserving traditional definition of marriage
Defendant Wymyslo also asserts a policy interest in preserving the “traditional definition
of marriage.” Doc. 56, 36. Defendant Wymyslo claims a “desire to ensure that any such issues
are fully analyzed and appropriately accommodated on any considered course of action.” Id.
However, much like the previous argument, the marriage recognition ban does not set aside a
time period or mechanism for discussing the potential implications of recognizing the marriages
of couples performed in other jurisdictions. Instead, it permanently deprives married same-sex
couples like the married Plaintiffs the right to ever have their marriages recognized in this state.

18

The appeal to tradition standing alone is also problematic. The Supreme Court has firmly
held that “tradition” alone cannot justify the government’s discrimination against a class of
individuals. Williams v. Illinois, 399 U.S. 235, 239 (1970) (noting in an equal protection
challenge that “neither the antiquity of a practice nor the fact of steadfast legislative and judicial
adherence to it through the centuries insulates it from constitutional attack”); Heller v. Doe by
Doe, 509 U.S. 312, 326-27 (1993) (“Ancient lineage of a legal concept does not give it immunity
from attack for lacking a rational basis.”); See VMI, 518 U.S. at 535-536 (invalidating
longstanding tradition of single-sex education at Virginia Military Institute); see also Lawrence,
539 U.S. at 577-578 (“[N]either history nor tradition could save a law prohibiting miscegenation
from constitutional attack.”) (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)).
Indeed, similar statements about the need to preserve the “institution” of heterosexual marriage
were the very justifications found insufficient by the Supreme Court in Windsor. 133 S. Ct. at
2693. 4
The fact that a form of discrimination has been “traditional” is a reason to be more
skeptical of its rationality. “The Court must be especially vigilant in evaluating the rationality of
any classification involving a group that has been subjected to a tradition of disfavor for a
traditional classification is more likely to be used without pausing to consider its justification
than is a newly created classification.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S.
432, 454, n.6 (1985) (Stevens, J., concurring) (alterations incorporated; internal quotation marks
omitted); see also Marsh v. Chambers, 463 U.S. 783, 791-92 (1983) (even longstanding practice

4

In Perry v. Schwarzenegger, 704 F. Supp. 2d at 998, the trial court found none of the following purported state
interests viable to maintain a prohibition on same-sex marriage: (1) reserving marriage as a union between a man
and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing
social changes; (3) promoting opposite-sex parenting over same-sex parenting; (4) protecting the freedom of those
who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples;
and (6) any other conceivable interest.

19

should not be “taken thoughtlessly, by force of long tradition and without regard to the problems
posed by a pluralistic society”); In re Marriage Cases, 183 P.3d 384, 853-54 (Cal. 2008)
(“[E]ven the most familiar and generally accepted of social practices and traditions often mask
an unfairness and inequality that frequently is not recognized or appreciated by those not directly
harmed by those practices or traditions.”). As the Supreme Court has explained, “times can blind
us to certain truths and later generations can see that laws once thought necessary and proper in
fact serve only to oppress.” Lawrence, 539 U.S. at 579.
Regarding laws that exclude same-sex couples from marriage, “the justification of
‘tradition’ does not explain the classification; it merely repeats it. Simply put, a history or
tradition of discrimination — no matter how entrenched — does not make the discrimination
constitutional. . . .” Kerrigan, 957 A.2d at 478 (citation omitted); accord Goodridge v. Dep’t of
Pub. Health, 798 N.E.2d 941, 961 n.23 (Mass. 2003) (“[I]t is circular reasoning, not analysis, to
maintain that marriage must remain a heterosexual institution because that is what it historically
has been.”); Varnum, 763 N.W.2d at 898 (asking “whether restricting marriage to opposite-sex
couples accomplishes the governmental objective of maintaining opposite-sex marriage” results
in “empty analysis”); see also Golinski, 824 F. Supp. 2d at 993, hearing in banc denied, 680 F.3d
1104 (9th Cir. 2012) and appeal dismissed, 724 F.3d 1048 (9th Cir. 2013) (“Tradition alone . . .
cannot form an adequate justification for a law. . . . Instead, the government must have an
interest separate and apart from the fact of tradition itself.”) (citations omitted).
3. Religious liberty
Defendant Wymyslo argues that the traditional definition of marriage should not be
altered “without evaluating steps to safeguard the religious rights and beliefs of others.” Doc.
56, 36. He cites to a 2011 letter to the New York Legislature from several law professors. Id.

20

Defendant does not claim a governmental purpose, grounded in religion, as support for the
marriage recognition ban. Defendant’s argument regarding religion addresses future issues with
respect to how one would accommodate persons religiously opposed to the marriages between
same-sex couples in a state where such marriages are legal. Plaintiffs of course are not asking
this Court to edit or otherwise draft any new legislation for Ohio regarding same-sex marriage.
If and when Ohio legislators address that issue they will have ample time to consider all sides of
the debate. Other states have navigated these waters before. See, e.g., Conn. Gen. Stat. Ann. §
46b-22b, § 46b-35a, and § 46b-35b. There are no religious concerns relevant to the death
certificates at issue in this case.
4. State Interest Related to Children
As fully explained in Plaintiffs’ opening brief, (Doc. 53-1, pp. 42-45), there is no rational
connection between the Ohio marriage recognition ban and the asserted goal of providing family
settings where children are well-adjusted. The Ohio marriage recognition ban does not prevent
same-sex couples from having children. In fact, the ban harms the children of same-sex couples
who are denied the protection and stability of having parents who are married. Windsor, 133
U.S. at 2694. Moreover, the very notion that the state can deter same-sex parents from having
children by punishing their children is itself “illogical and unjust.” See Doc. 53-1, 44-45 and
cases cited. Children raised by opposite-sex couples are simply unaffected by whether same-sex
couples can marry further exposing the lack of any rational connection between the goal and the
marriage recognition ban. Id.
The Defendant – appropriately – has not sought to defend the marriage recognition ban
based on any claim that married opposite-sex couples make better parents than married same-sex
couples. Nor has the Defendant challenged the expert testimony offered by Plaintiffs that

21

children raised by same-sex couples fare just as well as children raised by married heterosexual
couples. Only an amicus brief filed by Citizens for Community Values (CCV) argues to the
contrary. (Doc. 61).
CCV incorrectly claims that children need to be raised in families with opposite-sex
parents in order to develop healthily. Psychologists have identified factors that predict healthy
development and adjustment, among which are the quality of a child’s relationship with their
parent or parent figure, the quality of the relationship between the parents and other significant
adults, and the availability of adequate economic and social resources. Fulcher Expert Report,
Doc. 43-1, ¶ 10. These factors are determinative regardless of whether children are raised by two
parents of the same sex or two parents of opposite sexes. Id. Whether a child is raised by samesex or opposite-sex parents has no bearing whatsoever on the child’s psychological adjustment.
Id. at ¶ 9.
CCV’s amicus brief asserts that children of heterosexual two-parent families fare better
than those of gay and lesbian couples because men and women offer unique contributions to the
care and development of children. CCV Amicus Brief, Doc. 61, p. 3. In support of this assertion,
CCV cites a number of social science studies discussing differences in parenting style that are
common among heterosexual couples raising children. CCV Amicus Brief, pp. 4-8. The studies
cited do not support the conclusion that the presence of both a male and a female parent in the
home enhances the adjustment of children and adolescents. Fulcher Expert Report, Doc. 43-1, ¶
13(c). Rather, the observed differences in parenting style are largely attributable to the type of
responsibility that the parent has within the home. Id. Both men and women are equally capable
of being good parents, Id, and research shows that there is a range of suitable parenting styles
and parents need not adopt a particular parenting style for their children to be well-adjusted. See

22

Paul R. Amato & Frieda Fowler, Parenting Practices, Child Adjustment, and Family Diversity,
64 Journal of Marriage & Family 703, 714 (2002). As the district court in Perry correctly
concluded, “[c]hildren do not need to be raised by a male parent and a female parent to be well
adjusted, and having both a male and a female parent does not increase the likelihood that a child
will be well-adjusted.” 704 F. Supp. 2d 921, 981 (N.D. Cal. 2010). See also Brief of Amici
Curiae American Sociological Association, 2013 WL 840004 at *28, filed in Hollingsworth v.
Perry, 133 S.Ct. 2652 (2013); U.S. v. Windsor, 133 S.Ct. 2675 (2013) (Nos. 12-144, 12-307). 5
CCV also cites several studies 6 regarding the impact of divorce and one parent family life
for the proposition that the optimal situation for development is for the child to grow up with two
biological parents in the household. CCV amicus, Doc. 61, p. 3. But these studies offered no
conclusions about the significance of biological parenthood. Moreover, they do not purport to
examine same-sex parents or their children, and thus do not shed light on the wellbeing of
children raised by same-sex parents. Brief of Amici Curiae American Sociological Association,
2013 WL 840004 at **26-27. The authors of one of the principal studies relied on by CCV, the
Child Trends study, have publicly disavowed attempts to distort the meaning of their research.
See Moore, Marriage from a Child’s Perspective, introductory note advising that “no
conclusions can be drawn from the research about the well-being of children raised by same-sex
parents or adoptive parents.”); see also Brief of Amici Curiae American Sociological

5

CCV incorrectly asserts that Dr. Michael Lamb, a leading expert in developmental psychology and an expert
witness in Perry, has supported its view. CCV amicus brief, Doc. 61, pp. 3-4. But CCV flagrantly mischaracterizes
Dr. Lamb’s testimony in that case. See relevant excerpts of trial transcript from Perry, Exhibit B, attached (p. 10641070).
6
Sara McLanahan & Gary Sandefur, Growing Up With a Single Parent: What Hurts, What Helps 1 (1994); Wendy
D. Manning & Kathleen A. Lamb, Adolescent Well-Being in Cohabiting, Married, & Single-Parent Families, 65 J.
Marriage & Fam. 876, 890 (2003); Kristen Anderson Moore, et al., Marriage from a Child’s Perspective, Child
Trends Research Brief at 1-2 (2002).

23

Association, 2013 WL 840004 at **26-27 (debunking similar attempts to mischaracterize this
body of research).

7

Finally, CCV claims that a study by Mark Regnerus supports its position that
heterosexual couples make optimal parents. Mark D. Regnerus, How Different Are the Adult
Children of Parents Who Have Same-Sex Relationships? Findings from the New Family
Structures Study, 41 Social Science Research 752 (2012). But this study allows for no such
conclusion because it did not actually examine outcomes for children raised by same-sex parents.
Rather, Regnerus examined children who had a parent who had at any time had a same-sex
romantic relationship, the majority of whom were the offspring of failed opposite sex unions
whose parent subsequently had a same-sex relationship. His heterosexual comparison group was
restricted to only those families that remained intact throughout the child’s childhood. This
study merely reflects the well-documented fact that children tend to do better in stable, intact
families than they do after experiencing their parents’ divorce. Regnerus himself recognized that
“[c]hild outcomes in stable, ‘planned’ [gay, lesbian or bisexual] families and those that are the
product of previous heterosexual unions are quite likely distinctive, as previous studies’
conclusions would suggest.” Id., at 765. See also Brief of Amici Curiae American Sociological
Association, 2013 WL 840004 at *16-22, filed in Hollingsworth v. Perry, 133 S.Ct. 2652 (2013);
U.S. v. Windsor, 133 S.Ct. 2675 (2013) (Nos. 12-144, 12-307) 8

7

CCV also attempts to discredit respected studies that have concluded that children of same-sex couples fare just as
well as children of opposite-sex couples by suggesting that these studies cannot be trusted because of
methodological flaws. CCV Amicus Brief, Doc. 61, pp. 8-9. But there is no basis for this characterization of the
research, which was published in respected, rigorously peer-reviewed journals and meet the standards for research in
the field. Fulcher Expert Report, Doc. 43-1, ¶ 17.
8
Moreover, Regnerus’ study has been discredited by an internal audit conducted by the journal that
published it. See Darren E. Sherkat, The Editorial Process and Politicized Scholarship: Monday Morning Editorial
Quarterbacking and a Call for Scientific Vigilance, Social Science Research 41 (2012) 1346–1349. The auditor
concluded that the paper has “serious flaws and distortions” and should not have been published. Id. at 1347, 1349.

24

In sum, the CCV amicus brief provides no support for the proposition that children are
better off with opposite-sex parents than same-sex parents. The Defendant was wise to abandon
this argument. The unsupported and misleading arguments of CCV do not provide any basis for
this Court to find that the refusal to recognize same-sex marriages on death certificates rationally
relates to any state interest in the wellbeing of children.
G. This Court is Presented With a Narrow Question and Only Limited Relief is
Requested
In the end, Defendant Wymyslo asks this Court to ignore the equal protection and due
process violations that are injuring the plaintiffs because to act would allegedly thwart the will of
the voters in a manner inconsistent with an alleged duty to act with restraint. Defendant is
wrong. The electorate cannot order a violation of the Equal Protection Clause by referendum or
otherwise, just as the state may not avoid its application by deferring to the wishes or objections
of a body politic. City of Cleburne, Tex., 473 U.S. at 448.
Should the Court have concerns about the potential implications of its ruling, it may limit
its decision to the question squarely before it. See, e.g., Cleburne, 473 U.S. at 477; Cf., Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006). (“[W]hen confronting a
constitutional flaw in a statute, we try to limit the solution to the problem.”) It is not unusual for
a case to be decided on narrow grounds rather than striking a statute down on its face. See City
of Cleburne, 473 U.S. at 447; Ayotte, 546 U.S. at 329.
In City of Cleburne, the Supreme Court considered whether an ordinance requiring a
permit for “[h]ospitals for the insane or feeble-minded, or alcoholic [sic] or drug addicts, or
penal or correctional institutions” violated equal protection as applied to a group home for
mentally challenged persons. 473 U.S. at 447. The Court concluded that the law violated Equal
Protection as applied to the plaintiff because the group home in question posed no different or
25

special hazard to the community that justified the requirement for a permit. Id. at 448. The Court
purposefully refrained from determining whether the law could be applied constitutionally in
other circumstances beyond those raised by the plaintiff. Id. at 447. This allowed the Court to
avoid making an unnecessarily broad constitutional judgment. Id. See also Ohio Citizen Action
v. City of Englewood, 671 F.3d 564, 570-71(6th Cir. 2012) (Addressing an as applied challenge
first without reaching plaintiffs’ facial challenge to avoid making an unnecessary constitutional
ruling).
In this case, the only matter before the Court is the application of the marriage
recognition ban in the context of death certificates. The case at bar is not a facial attack on the
Ohio constitutional amendment or the Ohio statute banning celebration and recognition of
marriages of same-sex couples in Ohio. This case does not include any request to recognize all
marriages between same-sex couples from other jurisdictions for all purposes. Nor do Plaintiffs
request permission for same-sex couples to marry in Ohio. Plaintiffs seeking that relief in future
cases may well state valid claims and courts facing those issues may well need to issue new
injunctions. But those issues are not presently before the Court. Those issues can be separately
aired perhaps after additional developments that may occur through the political process.
Plaintiffs in this case seek only the limited relief they need – recognition of valid marriages
performed in jurisdictions where such marriages are legal on Ohio death certificates. The
Defendant has identified no state interest that overcomes the equal protection and due process
violations caused by Defendant.
III.

CONCLUSION

Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction should be granted.

26

Respectfully submitted,
/s/ Alphonse A. Gerhardstein
Alphonse A. Gerhardstein (0032053)
Trial Attorney for Plaintiff
Jennifer L. Branch (0038893)
Jacklyn Gonzales Martin #0090242
Gerhardstein & Branch, Co., L.P.A.
432 Walnut Street, Suite 400
Cincinnati, Ohio 45202
Tel. [phone]
Fax [phone]
[e-mail]
[e-mail]
[e-mail]
Lisa T. Meeks (0062074)
Newman & Meeks Co., LPA
215 E. Ninth Street, Suite 650
Cincinnati, OH 45202
phone: [phone]
fax: [phone]
[e-mail]
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on December 9, 2013, a copy of the foregoing pleading was filed
electronically. Notice of this filing will be sent to all parties for whom counsel has entered an
appearance by operation of the Court’s electronic filing system. Parties may access this filing
through the Court’s system. I further certify that a copy of the foregoing pleading and the Notice
of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has
not yet entered an appearance electronically.
/s/Alphonse A Gerhardstein

27