Obergefell et al v. Kasich et al

Filing 65

FINAL ORDER GRANTING PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION. Signed by Judge Timothy S. Black on 12/23/2013. (mr1)

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

:
:
:
vs.
:
:
THEODORE E. WYMYSLO, M.D., et al., :
Defendants.
:

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

FINAL ORDER
GRANTING PLAINTIFFS’ MOTION FOR DECLARATORY JUDGMENT
AND PERMANENT INJUNCTION
This civil case is before the Court for final decision on Plaintiffs’ Motion for
Declaratory Judgment and Permanent Injunction (Doc. 53), the record evidence (Docs.
34, 42-47, 61; see Appendix at pp. 49-50 i), Defendants’ memorandum in opposition
(Doc. 56), Plaintiffs’ reply (Doc. 62), and oral argument held on December 18, 2013.
Plaintiffs include two individuals who entered into legal same-sex marriages in states that
provide for such marriages and have been denied recognition of those legal marriages on
their spouses’ death certificates by the State of Ohio. Plaintiffs seek a declaratory
judgment that, as applied to them, Ohio’s ban on the recognition of legal same-sex
marriages granted in other states is unconstitutional; and, therefore, that a permanent
injunction compelling Defendants and their officers to recognize Plaintiffs’ marriages on
Ohio death certificates is required under the law and the evidence. Also present as a
Plaintiff is Robert Grunn, an Ohio funeral director, who seeks a declaration of his rights
and duties when preparing death certificates for individuals in same-sex marriages.
Defendants are the local and state officers responsible for death certificates.
1

OVERVIEW
The Court’s ruling today is a limited one, and states simply, that under the
Constitution of the United States, Ohio must recognize valid out-of-state marriages
between same-sex couples on Ohio death certificates, just as Ohio recognizes all other
out-of-state marriages, if valid in the state performed, and even if not authorized nor
validly performed under Ohio law, such as marriages between first cousins, marriages of
certain minors, and common law marriages.
That is, once you get married lawfully in one state, another state cannot summarily
take your marriage away, because the right to remain married is properly recognized as a
fundamental liberty interest protected by the Due Process Clause of the United States
Constitution. U.S. Const. amend. XIV, § 1.
Moreover, as this Court held in its initial Orders this summer and reaffirms today,
by treating lawful same-sex marriages differently than it treats lawful opposite sex
marriages (e.g., marriages of first cousins, marriages of certain minors, and common law
marriages), Ohio law, as applied to these Plaintiffs, violates the United States
Constitution’s guarantee of equal protection: that “No State shall make or enforce any
law which shall . . . deny to any person within its jurisdiction equal protection of the
laws.” U.S. Const. amend. XIV, § 1.
Therefore, under the Constitution of the United States, Ohio must recognize on
Ohio death certificates valid same-sex marriages from other states.

2

This conclusion flows from the Windsor decision of the United States Supreme
Court this past summer, which held that the federal government cannot refuse to
recognize a valid same-sex marriage. United States v. Windsor, ___ U.S. ___,
133 S. Ct. 2675 (2013). And now it is just as Justice Scalia predicted 1 – the lower courts
are applying the Supreme Court’s decision, 2 as they must, and the question is presented
whether a state can do what the federal government cannot – i.e., discriminate against
same-sex couples … simply because the majority of the voters don’t like homosexuality
(or at least didn’t in 2004). Under the Constitution of the United States, the answer is no,
as follows. 3
1

In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether
states could refuse to recognize other states’ same-sex marriages would come quickly, and that
the majority’s opinion spelled defeat for any state’s refusal to recognize same-sex marriages
authorized by a co-equal state. As Justice Scalia predicted: “no one should be fooled [by this
decision] … the majority arms well any challenger to a state law restricting marriage to its
traditional definition … it’s just a matter of listening and waiting for the other shoe [to drop].”
Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting).
2

See Griego v. Oliver, No. 34,306, 2013 WL 6670704, at *22 (N.M. Dec. 19, 2013) ("Denying
same-gender couples the right to marry and thus depriving them and their families of the rights,
protections, and responsibilities of civil marriage violates the equality demanded by the Equal
Protection Clause of the New Mexico Constitution."); see also Kitchen v. Herbert, 2:13-CV00217 (D. Utah Dec. 20, 2013) (“Utah’s prohibition on same-sex marriage conflicts with the
United States Constitution’s guarantees of equal protection and due process under the law.”).
3

As the Supreme Court has explained:

The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts.
One’s right to life, liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to
vote; they depend on the outcome of no elections.
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis supplied).
3

I.
A.

ESTABLISHED FACTS

Marriage Law in Ohio
The general rule in the United States for interstate marriage recognition is the

“place of celebration” rule, or lex loci contractus, which provides that marriages valid
where celebrated are valid everywhere. (Doc. 44-1 at ¶ 7). Historically, Ohio has
recognized marriages that would be invalid if performed in Ohio, but are valid in the
jurisdiction where celebrated. This is true even when such marriages clearly violate Ohio
law and are entered into outside of Ohio with the purpose of evading Ohio’s
unwillingness to grant them. (Id.). Ohio departed from this tradition in 2004 to adopt its
statutory and constitutional prohibitions on the recognition of marriages between two
individuals of the same sex (“marriage recognition bans”). (Id. at ¶¶ 7, 32, 60). Prior to
2004, the Ohio legislature had never passed a law denying recognition to a specific type
of marriage solemnized outside of the state. (Id. at ¶¶ 32, 51).
Ohio Revised Code Section 3101 was amended in 2004 to prohibit same-sex
marriages in the state and to prohibit recognition of same-sex marriages from other states.
Sub-section (C) provides the following:
(1) Any marriage between persons of the same sex is against the strong
public policy of this state. Any marriage between persons of the same sex
shall have no legal force or effect in this state and, if attempted to be
entered into in this state, is void ab initio and shall not be recognized by this
state.
(2) Any marriage entered into by persons of the same sex in any other
jurisdiction shall be considered and treated in all respects as having no legal
force or effect in this state and shall not be recognized by this state.

4

(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, as defined
in section 9.82 of the Revised Code, that extends the specific statutory
benefits of legal marriage to nonmarital relationships between persons of
the same sex or different sexes is void ab initio . . .
(4) Any public act, record, or judicial proceeding of any other state,
country, or other jurisdiction outside this state that extends the specific
benefits of legal marriage to nonmarital relationships between persons of
the same sex or different sexes shall be considered and treated in all
respects as having no legal force or effect in this state and shall not be
recognized by this state.
Ohio Rev. Code Ann. § 3101.01.
Also adopted in 2004 was an amendment to the Ohio Constitution, which states:
Only a union between one man and one woman may be a marriage valid in
or recognized by this state and its political subdivisions. This state and its
political subdivisions shall not create or recognize a legal status for
relationships of unmarried individuals that intends to approximate the
design, qualities, significance or effect of marriage.
Ohio Const. art. XV, § 11.
At the time of the passage of these provisions, Governor Robert Taft stated that
their purpose was “to reaffirm existing Ohio law with respect to our most basic, rooted,
and time-honored institution: marriage between a man and a woman.” He went on:
Marriage is an essential building block of our society, an institution we
must reaffirm. At a time when parents and families are under constant
attack within our social culture, it is important to confirm and protect those
environments that offer our children, and ultimately our society, the best
opportunity to thrive.
(Doc. 41-1 at ¶ 72).

5

During the 2004 floor debates over the legislation, Senator Jeff Jacobson stated
that the legislation would not interfere with “the way adults choose to order their lives”
because “[a]dults can form household relationships” after the passage of the legislation
even though those relationships “don’t have all the bells and whistles,” “[p]erhaps don’t
have all the opportunities,” and do not appear “equal to everyone else’s.” (Id. at ¶ 59).
The primary sponsor for the 2004 Ohio constitutional amendment, Citizens for
Community Values (“CCV”), described as its core principle its goal to protect Ohio from
the “inherent dangers of the homosexual activists’ agenda.” (Id. at ¶ 82).
CCV sent letters to school boards and superintendents in Ohio warning them,
erroneously, that they would face criminal and “daunting” civil liability if they took
measures to protect lesbian and gay students from violence and harassment. (Id. at ¶ 84).
In one of CCV’s campaign publications, the organization misled Ohio voters about the
need for the amendment, stating that marriage equality advocates sought to eliminate age
requirements for marriage, advocated polygamy, and sought elimination of kinship
limitations so that incestuous marriages could occur. (Id. at ¶ 85). CCV warned Ohio
employers that “[s]exual relationships between members of the same sex expose gays,
lesbians and bisexuals to extreme risks of sexually transmitted diseases, physical injuries,
mental disorders and even a shortened life span.” (Id. at ¶ 86). The television and media
campaign in support of the amendment contained misleading statements, such as “[w]e
won't have a future unless [heterosexual] moms and dads have children,” and that

6

“[e]very major social science study tells us time and again: families are stronger with a
wife and a husband; children do better with a mother and a father.” (Id. at ¶ 88). 4
B.

Plaintiffs James Obergefell, John Arthur (now deceased), David Michener,
and Robert Grunn
Longtime Cincinnati residents James Obergefell and John Arthur met in 1992 and

lived together in a loving, committed relationship for more than 20 years. (Doc. 3-1 at
¶¶ 2-3). In 2011, Mr. Arthur was diagnosed with amyotrophic lateral sclerosis (“ALS”),
a terminal illness. (Id. at ¶ 8). After the Supreme Court’s decision in Windsor requiring
the federal government to recognize valid same-sex marriages, Mr. Obergefell and Mr.
Arthur decided to get married. (Id. at ¶ 11). On July 11, 2013, the couple boarded a
medically equipped plane to travel to Maryland, a state that provides for same-sex
marriages, and were married in the plane as it sat on the tarmac. (Id. at ¶ 12). Under
Ohio law, their marriage was not recognized for any purpose until this Court granted
them a temporary restraining order requiring that upon Mr. Arthur’s death, his death
certificate reflect that he was married and that Mr. Obergefell is his surviving spouse.
(Id. at ¶ 13; Doc. 14). Mr. Arthur died on October 22, 2013, and his death certificate was
issued in compliance with this Court’s Order. (Docs. 51, 52). Without this Court
ordering a permanent injunction, Mr. Arthur’s death certificate would need to be
amended to remove any mention of his husband, Mr. Obergefell, or their marriage.
Ohio Rev. Code Ann. § 3705.22.

4

With this Court’s leave, CCV also filed an amicus brief in this case. (Doc. 61). Among its many
remarkable and fundamentally baseless arguments, one of the most offensive is that adopted children
are less emotionally healthy than children raised by birth parents.

7

Plaintiff David Michener and his late spouse, William Herbert Ives, were together
as a loving couple for 18 years and adopted three children together. (Doc. 21 at 1). On
July 22, 2013, Mr. Michener and Mr. Ives were married in Delaware, a state that provides
for same-sex marriages. (Id.) On August 27, 2013, Mr. Ives died unexpectedly of natural
causes. (Id.) In order for the cremation of Mr. Ives’ remains to proceed, a death
certificate had to be issued, and Plaintiff Michener sought a death certificate that
accurately reflected their marriage. (Id.) This Court entered a temporary restraining
order granting such relief on September 3, 2013. (Doc. 23). Without a permanent
injunction, the Court-ordered death certificate of William Herbert Ives would need to be
amended to remove any mention of Mr. Michener or their marriage. Ohio Rev. Code
Ann. § 3705.22.
Robert Grunn is a licensed funeral director operating his business in Cincinnati,
Ohio. (Doc. 34-1 at ¶¶ 2, 12). Mr. Grunn is a gay man and is known within the gay
community as a gay-friendly funeral director. (Id. at ¶ 11). One of his responsibilities as
a funeral director is to fill out death certificates, including the portion of the certificate
indicating the deceased’s marital status and the name of the surviving spouse. (Id. at ¶ 3).
He uses Ohio Department of Health software to do this, and for deaths that occur in
Cincinnati, he delivers the death certificates to the office of Defendant Camille Jones.
(Id. at ¶¶ 3, 5). In his experience, his clients often do not realize the importance of death
certificates until he returns certified copies to them. (Id. at ¶ 7). Mr. Grunn has multiple
married gay or lesbian clients, including Mr. Obergefell, who utilized his services when
Mr. Arthur died. (Id. at ¶¶ 13-15). In the future, Mr. Grunn is certain to face the question
8

of how to fill out death certificates for married same-sex couples. (Id.) Mr. Grunn
intends to record the marital status as “married” and list the surviving spouse of the next
married decedent with a same-sex spouse that he serves, but fears that by doing so he
may be prosecuted for purposely making a false statement on a death certificate. (Id. at
¶ 17). He seeks a declaration of his rights and duties when serving clients with same-sex
spouses. (Doc. 53-1 at 12).
II.

STANDARD OF REVIEW

An “as-applied challenge” to a law, as here, limits the relief to the particular
circumstances of the plaintiff. A “facial challenge,” not presented here, generally seeks
to declare or enjoin a law as unconstitutional in all respects. In this case, Plaintiffs have
requested injunctive and declaratory relief limited to the issue of marriage recognition on
death certificates. The narrow breadth of the remedy employed by this Court reflects this
distinction. See Citizens United v. Fed. Elections Comm., 558 U.S. 310, 331 (2010).
A permanent injunction is appropriate if a party “can establish that it suffered a
constitutional violation and will suffer ‘continuing irreparable injury’ for which there is
no adequate remedy at law.” Women's Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602
(6th Cir. 2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir.
1998)). It is within the sound discretion of the district court to grant or deny a motion for
permanent injunction. See Kallstrom, 136 F.3d at 1067; Wayne v. Vill. of Sebring,
36 F.3d 517, 531 (6th Cir. 1994) (district court erred in failing to rule on permanent
injunction request).

9

In the Sixth Circuit, “[t]he two principal criteria guiding the policy in favor of
rendering declaratory judgments are (1) when the judgment will serve a useful purpose in
clarifying and settling the legal relations in issue, and (2) when it will terminate and
afford relief from the uncertainty, insecurity, and controversy giving rise to the
proceeding.” Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting
Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984)).
Both criteria for rendering a declaratory judgment are established here.
III.
A.

ANALYSIS

Due Process Clause
The Due Process Clause of the Fourteenth Amendment to the United States

Constitution establishes that no state may “deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. And “[t]he freedom to marry
has long been recognized as one of the vital personal rights essential to the orderly
pursuit of happiness by free men” that is protected by the Due Process Clause. Loving v.
Virginia, 388 U.S. 1, 12 (1967). 5
However, although neither the United States Court of Appeals for the Sixth Circuit
nor the Supreme Court of the United States has spoken on the issue, most courts have not
found that a right to same-sex marriage is implicated in the fundamental right to marry.
5

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

10

See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1094-98 (D. Haw. 2012)
(“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). 6
In situations like those of Plaintiffs, however, where same-sex couples legally
marry outside of Ohio and then reside in Ohio, a different right than the fundamental
right to marry is also implicated: here, the constitutional due process right at issue is not
the right to marry, but, instead, the right not to be deprived of one’s already-existing legal
marriage and its attendant benefits and protections. 7
1.

Right of Marriage Recognition

As the Supreme Court has observed, the idea of being married in one state and
unmarried in another is one of “the most perplexing and distressing complication[s] in the
domestic relations of . . . citizens.” Williams v. North Carolina, 317 U.S. 287, 299
(1942). In identifying the right to remain married as fundamental, Professor Sanders
points out that the “[l]aw favors stability in legal relationships, vindication of justified
expectations, and preventing casual evasion of legal duties and responsibilities.”
6

See also Wilson v. Ake, 354 F. Supp. 2d 1298, 1306-07 (M.D. Fla. 2005) (“No federal court has
recognized that [due process] . . . includes the right to marry a person of the same sex”) (internal citation
omitted); Conaway v. Deane, 932 A.2d 571, 628 (Md. App. 2007) (“[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 v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006) (“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”). But see
Kitchen v. Herbert, 2:13-CV-00217 (D. Utah Dec. 20, 2013).
7

The concept of the right to remain married as a liberty interest protected by the Due Process Clause is
eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your)
Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon
Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married.

11

Sanders, 110 MICH. L. REV. at 1425. Moreover, the Supreme Court has established that
existing marital, family, and intimate relationships are areas into which the government
should generally not intrude without substantial justification. See Roberts v. U.S.
Jaycees, 468 U.S. 609, 618 (1984); see also Lawrence v. Texas, 549 U.S. 558, 578
(2003). Based on these principles, the concept that a marriage that has legal force where
it was celebrated also has legal force throughout the country has been a longstanding
general rule in every state. 8
The right to remain married is therefore properly recognized as one that is a
fundamental liberty interest appropriately protected by the Due Process Clause of the
United States Constitution. Here, Ohio’s marriage recognition bans violate this
fundamental right without rational justification.
a.

Level of Scrutiny

As a general matter, the Supreme Court applies strict scrutiny when a state law
encroaches on a fundamental right. Roe v. Wade, 410 U.S. 113, 155 (1973). While the
right to marriage recognition has not historically been labeled “fundamental,” in the
Supreme Court cases establishing the highly-protected status of existing marriage, family,
and intimate relationships, the Court has applied an intermediate standard of review
falling between rational basis and strict scrutiny. See, e.g., Moore, 431 U.S. at 113
(1977) (balancing the state interests advanced and the extent to which they are served by
the challenged law against the burden on plaintiff’s rights); Zablocki v. Redhail, 434 U.S.
8

Joanna L. Grossman, Resurrecting Comity: Revisiting the Problem of Non-Uniform Marriage Laws, 84
OR. L. REV. 433, 461 (2005) (historically, “[a]ll jurisdictions followed some version of lex loci contractus
in evaluating the validity of a marriage”).

12

374 (1978) (same). As the Ninth Circuit has observed, in Lawrence, the “[Supreme]
Court’s rationale for its holding – the inquiry analysis that it was applying – is
inconsistent with rational basis review.” Witt v. Dep’t of the Air Force, 527 F.3d 806,
817 (9th Cir. 2008). The Ninth Circuit also took note of a post-Lawrence substantive due
process case, Sell v. United States, 39 U.S. 166 (2003), in which the Supreme Court
recognized a “significant constitutionally protected liberty interest” (but not a
fundamental right) in “avoiding the unwanted administration of antipsychotic drugs.” Id.
at 178 (quoting Washington v. Harper, 494 U.S. 210, 221 (1990)). The Supreme Court
held that such intrusion on personal interests by the government was permissible only
where it was “necessary significantly to further important governmental trial-related
interests.” Id. at 179. In other words, a mere legitimate interest would not suffice. The
court’s conclusion in Witt that, based on Lawrence and Sell, intermediate scrutiny was
appropriate is also applicable to the case at hand: for when “the government attempts to
intrude upon the private lives of homosexuals,” then “the government must advance an
important governmental interest, the intrusion must significantly further that interest, and
the intrusion must be necessary to further that interest.” Witt, 527 F.3d at 817.
Based on the foregoing, the balancing approach of intermediate scrutiny is
appropriate in this similar instance where Ohio is intruding into – and in fact erasing –
Plaintiffs’ already-established marital and family relations.
b.

Burden on Plaintiffs

When couples – including same-sex couples – enter into marriage, it generally
involves long-term plans for how they will organize their finances, property, and family
13

lives. “In an age of widespread travel and ease of mobility, it would create inordinate
confusion and defy the reasonable expectations of citizens whose marriage is valid in one
state to hold that marriage invalid elsewhere.” In re Estate of Lenherr, 314 A.2d 255,
258 (Pa. 1974).
Couples moving from state to state have an expectation that their marriage and,
more concretely, the property interests involved with it – including bank accounts,
inheritance rights, property, and other rights and benefits associated with marriage – will
follow them. When a state effectively terminates the marriage of a same-sex couple
married in another jurisdiction, it intrudes into the realm of private marital, family, and
intimate relations specifically protected by the Supreme Court. After Lawrence, samesex relationships fall squarely within this sphere, and when it comes to same-sex couples,
a state may not “seek to control a personal relationship,” “define the meaning of the
relationship,” or “set its boundaries absent injury to a person or abuse of an institution the
law protects.” Lawrence, 539 U.S at 578.
For example, when a parent’s legal relationship to her child is terminated by the
state, it must present clear and convincing evidence supporting its action to overcome the
burden of its loss. Santosky v. Kramer, 455 U.S. 745, 753, 769 (1982). Here, in this
case, a similar legal familial relationship is unilaterally terminated by Ohio’s marriage
recognition bans, without any due process.
Moreover, Ohio’s official statutory and constitutional establishment of same-sex
couples married in other jurisdictions as a disfavored and disadvantaged subset of people
has a destabilizing and stigmatizing impact on them.
14

In striking down the statutory provision that had denied gay and lesbian couples
federal recognition of their otherwise valid marriages, the Supreme Court in Windsor
observed:
[The relevant statute] tells those couples, and all the world, that their
otherwise valid marriages are unworthy of . . . recognition. This places
same-sex couples in an unstable position of being in a second-tier marriage.
The differentiation demeans the couple, whose moral and sexual choices
the Constitution protects . . . And it humiliates tens of thousands of children
now being raised by same-sex couples. The law in question makes it even
more difficult for the children to understand the integrity and closeness of
their own family and its concord with other families in their community and
in their daily lives.
Windsor, 133 S. Ct. at 2694.
Ohio death certificates, which currently do not reflect legal marriages of same-sex
couples outside of this litigation, are important not only for the dignity of the surviving
spouse and his or her family, but also have evidentiary value for rights such as receiving
life insurance payouts, claiming social security survivors benefits, administering wills,
and title transfers for automobiles, real estate, and other property. (Doc. 34-1 at ¶ 6; Doc.
45-1 at ¶ 17). However, in Ohio, when a married person domiciled in Ohio who has a
valid same-sex marriage from another jurisdiction dies, the estate administration unfolds
as if the person had died unmarried, and the many rights afforded to surviving spouses
under Ohio probate law are denied to same-sex surviving spouses. While, after Windsor,
many federal tax laws that used to disfavor same-sex spouses over opposite-sex spouses
no longer do so, Ohio’s tax commission has refused to offer same-sex spouses equal
rights under its regulations. (Doc. 45-1 at ¶¶ 40-43). Married same-sex couples must

15

consider many additional burdens in their estate planning in order to try to protect their
surviving spouse from financial vulnerability. (Id. at ¶¶ 50-65).
In the family law context, while opposite-sex married couples can invoke
step-parent adoption procedures or adopt children together, same-sex married couples
cannot. While Ohio courts allow an individual gay or lesbian person to adopt a child,
a same-sex couple cannot. (Doc. 41-1 at ¶ 17). Same-sex couples are denied local and
state tax benefits available to heterosexual married couples, denied access to entitlement
programs (e.g., Medicaid, food stamps, welfare benefits, etc.) available to heterosexual
married couples and their families, barred by hospital staff and/or relatives from their
long-time partners’ bedsides during serious and final illnesses due to lack of legallyrecognized relationship status, denied the remedy of loss of consortium when a spouse is
seriously injured through the acts of another, denied the remedy of a wrongful death
claim when a spouse is fatally injured through the wrongful acts of another, and evicted
from their homes following a spouse’s death because same-sex spouses are considered
complete strangers to each other in the eyes of the law. (Id. at ¶ 23).
The benefits of state-sanctioned marriage are extensive, and the injuries raised and
evidenced by Plaintiffs represent just a portion of the harm suffered by same-sex married
couples due to Ohio’s refusal to recognize and give the effect of law to their legal unions.
c.

Potential State Interests

Defendants advance a number of interests in support of Ohio’s marriage
recognition bans. (Doc. 56 at 33-40). Defendants cite “Ohioans’ desire to retain the right
to define marriage through the democratic process,” “avoiding judicial intrusion upon a
16

historically legislative function,” “Ohio’s interest in approaching social change with
deliberation and due care,” “the desire not to alter the definition of marriage without
evaluating steps to safeguard the religious rights and beliefs of others,” and “[p]reserving
the traditional definition of marriage,” although they raise these interests in the context of
a rational basis equal protection analysis. (Id.)
In the intermediate scrutiny context, however, these vague, speculative, and
unsubstantiated state interests do not rise anywhere near the level necessary to
counterbalance the specific, quantifiable, and particularized injuries evidenced here and
suffered by same-sex couples when their existing legal marriages and the attendant
protections and benefits are taken from them by the state.
Defendants argue that Windsor stressed that “regulation of domestic relations is an
area that has long been regarded as a virtually exclusive province of the States.”
Windsor, 133 S. Ct. at 2692. However, as Defendants acknowledge, this regulation is
“subject to constitutional guarantees.” (Doc. 56 at 18). As the Supreme Court has
explained:
The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be
applied by the courts. One’s right to life, liberty, and property, to free
speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis supplied).
Regardless of the justifications provided by an enactment’s proponents, the
Supreme Court has clearly stated that if such an enactment violates the U.S. Constitution
17

– whether passed by the people or their representatives – 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”). The electorate cannot
order a violation of the Due Process or Equal Protection Clauses by referendum or
otherwise, just as the state may not avoid their application by deferring to the wishes or
objections of its citizens. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
448 (1985).
The fact that each state has the exclusive power to create marriages within its
territory does not logically lead to the conclusion that states can nullify alreadyestablished marriages from other co-equal states absent due process of law. Perhaps
the interests raised by Defendants may be more compelling in the context of marriage
creation than they are in the context of marriages that have already taken place and
same-sex relationships that already exist, i.e., marriage recognition. 9
Defendants have not provided evidence of any state interest compelling enough to
counteract the harm Plaintiffs suffer when they lose, simply because they are in Ohio, the
immensely important dignity, status, recognition, and protection of lawful marriage. As
9

The Court acknowledges the continuing pendency of Section 2 of the discredited federal Defense of
Marriage Act (“DOMA”), which Section 2 was not before the Supreme Court in Windsor, and wherein
Congress has sought to invoke its power under the Constitution’s full faith and credit clause to state that
“[n]o State . . . shall be required to give effect to any public act, record, or judicial proceeding of any
other State . . . respecting a relationship between persons of the same sex that is treated as a marriage
under the laws of such other State,” 28 U.S.C. § 1738C, but this Court states affirmatively that Section 2
of DOMA does not provide a legitimate basis for otherwise constitutionally invalid state laws, like Ohio’s
marriage recognition bans, no matter what the level of scrutiny. Although Section 2 of DOMA is not
specifically before this Court, the implications of today’s ruling speak for themselves. See also Kitchen
v. Herbert, 2:13-CV-00217 (D. Utah Dec. 20, 2013).

18

the Supreme Court held in Windsor, marriage confers “a dignity and status of immense
import.” Windsor, 133 U.S. at 2692.
Accordingly, Ohio’s refusal to recognize same-sex marriages performed in other
states violates the substantive due process rights of the parties to those marriages because
it deprives them of their significant liberty interest in remaining married absent a
sufficient articulated state interest for doing so or any due process procedural protection
whatsoever.
2.

Right to Marry

Although it is unnecessary to reach the issue of whether the fundamental right to
marry itself also endows Ohio same-sex couples married in other jurisdictions with a
significant liberty interest in their marriages for substantive due process purposes, the
Court notes that a substantial logical and jurisprudential basis exists for such a conclusion
as well. 10

10

While states do have a legitimate interest in regulating and promoting marriage, the
fundamental right to marry belongs to the individual. Thus, “the regulation of constitutionally protected
decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on
legitimate state concerns other than disagreement with the choice the individual has made.” Hodgson v.
Minnesota, 497 U.S. 417, 435 (1990); see also Loving, 388 U.S. at 12 (“Under our Constitution, the
freedom to marry, or not marry, a person of another race resides with the individual and cannot be
infringed by the State”); Roberts, 468 U.S. at 620 (“[T]he Constitution undoubtedly imposes constraints
on the State’s power to control the selection of one’s spouse . . .”).
In individual cases regarding parties to potential marriages with a wide variety of characteristics,
the Supreme Court consistently describes a general “fundamental right to marry” rather than “the right to
interracial marriage,” “the right to inmate marriage,” or “the right of people owing child support to
marry.” See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012) (citing
Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; Zablocki, 434 U.S. at 383-86; accord In re Marriage
Cases, 183 P.3d 384, 421 n.33 (Cal. 2008) (Turner “did not characterize the constitutional right at issue
as ‘the right to inmate marriage’”). And the Supreme Court held in Lawrence that the right of consenting
adults (including same-sex couples) to engage in private, sexual intimacy is protected by the Fourteenth
Amendment’s protection of liberty, notwithstanding the historical existence of sodomy laws and their use
against gay people.

19

B.

Equal Protection Clause
In addition to concluding that Ohio’s marriage recognition bans are an

impermissible and unconstitutional burden on Plaintiffs’ significant liberty interest in
the continued existence and recognition of their marriages under the Due Process Clause,
this Court further finds and declares that Plaintiffs have also demonstrated that Ohio’s
same-sex marriage recognition bans further violate Plaintiffs’ constitutional rights by
denying them equal protection of the laws.

For the same reasons, the fundamental right to marry is “deeply rooted in this Nation's history and
tradition” for purposes of constitutional protection even though same-sex couples have not historically
been allowed to exercise that right. “[H]istory and tradition are the starting point but not in all cases the
ending point of the substantive due process inquiry.” Lawrence, 539 U.S. at 572 (citation omitted).
While courts use history and tradition to identify the interests that due process protects, they do
not carry forward historical limitations, either traditional or arising by operation of prior law, on which
Americans may exercise a right once that right is recognized as one that due process protects.
“Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these
groups have historically been denied those rights.” In re Marriage Cases, 183 P.3d at 430 (quotation
omitted).
For example, when the Supreme Court held that anti-interracial marriage laws violated the
fundamental right to marry in Loving, it did so despite a long tradition of excluding interracial couples
from marriage. Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992) (“[I]nterracial marriage was
illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect
of liberty protected against state interference by the substantive component of the Due Process Clause in
Loving . . . ”); Lawrence, 539 U.S. at 577-78 (“[N]either history nor tradition could save a law prohibiting
miscegenation from constitutional attack”) (citation omitted).
Cases subsequent to Loving have similarly confirmed that the fundamental right to marry is
available even to those who have not traditionally been eligible to exercise that right. See Boddie v.
Connecticut, 401 U.S. 371, 376 (1971) (states may not require indigent individuals to pay court fees in
order to obtain a divorce, since doing so unduly burdened their fundamental right to marry again); see
also Zablocki, 434 U.S. at 388-90 (state may not condition ability to marry on fulfillment of existing child
support obligations). Similarly, the right to marry as traditionally understood in this country did not
extend to people in prison. See Virginia L. Hardwick, Punishing the Innocent: Unconstitutional
Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275, 277-79 (1985). Nevertheless, in
Turner, 482 U.S. at 95-97, the Supreme Court held that a state cannot restrict a prisoner’s ability to marry
without sufficient justification. Thus, when analyzing other fundamental rights and liberty interests in
other contexts, the Supreme Court has consistently adhered to the principle that a fundamental right, once
recognized, properly belongs to everyone.

20

As the Court previously held:
“The issue is whether the State of Ohio can discriminate against
same-sex marriages lawfully solemnized out of state, when Ohio law has
historically and unambiguously provided that the validity of a marriage is
determined by whether it complies with the law of the jurisdiction where it
was celebrated.
Throughout Ohio’s history, Ohio law has been clear: a marriage
solemnized outside of Ohio is valid in Ohio if it is valid where solemnized.
Thus, for example, under Ohio law, out-of-state marriages between first
cousins are recognized by Ohio, even though Ohio law does not authorize
marriages between first cousins. Likewise, under Ohio law, out of state
marriages of minors are recognized by Ohio, even though Ohio law does
not authorize marriages of minors.
How then can Ohio, especially given the historical status of Ohio
law, single out same-sex marriages as ones it will not recognize? The short
answer is that Ohio cannot . . . at least not under the circumstances here.
By treating lawful same-sex marriages differently than it treats
lawful opposite sex marriages (e.g., marriages of first cousins and
marriages of minors), Ohio law, as applied to these Plaintiffs, violates the
United States Constitution which guarantees that “No State shall make or
enforce any law which shall . . . deny to any person within its jurisdiction
equal protection of the laws.”
(Doc. 13 at 1-2, Order Granting Plaintiffs’ Motion for a Temporary Restraining Order,
7/22/13).
As to equal protection, to repeat the analysis previously stated by this Court and
re-affirmed today:
The Fourteenth Amendment to the United States Constitution provides that “No
State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1 (emphasis supplied).
21

Plaintiffs, two same-sex couples, were legally married in Maryland and Delaware.
They reside in Ohio where their marriage is not recognized as valid. They are treated
differently than they would be if they were in a comparable opposite-sex marriage. By
treating lawful same-sex marriages differently than it treats lawful opposite sex marriages
(e.g., marriages of first cousins and marriages of minors), the Ohio laws barring
recognition of out-of-state same-sex marriages, enacted in 2004, violate equal protection
principles.
Although the law has long recognized that marriage and domestic relations are
matters generally left to the states, see Ex parte Burrus, 136 U.S. 586, 593-94 (1890), the
restrictions imposed on marriage must nonetheless comply with the United States
Constitution. Loving, 388 U.S. at 12 (statute limiting marriage to same-race couples
violated equal protection and due process); Zablocki, 434 U.S. at 383 (statute restricting
from marriage persons owing child support violated equal protection).
In Windsor, the Supreme Court again applied the principle of equal protection to a
statute restricting marriage when it reviewed the constitutionality of the federal Defense
of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for
purposes of federal law. This included marriages from the twelve states and District of
Columbia in which same-sex couples could legally marry. The Supreme Court held that
the federal law was unconstitutional because it violated equal protection and due process
principles guaranteed by the Fifth Amendment. Windsor, 133 S. Ct. at 2675.
In reality, the decision of the United States Supreme Court in Windsor was not
unprecedented. The Court relied upon its equal protection analysis from a 1996 case
22

holding that an amendment to a state constitution, ostensibly merely prohibiting any
special protections for gay people, in truth violated the Equal Protection Clause under
even a rational basis analysis. Romer v. Evans, 517 U.S. 620 (1996).
In Romer, the Supreme Court struck down Colorado’s Amendment 2 because, the
Court held, “[w]e cannot say that Amendment 2 is directed to any identifiable legitimate
purpose or discrete objective. It is a status-based enactment divorced from any factual
context from which we could discern a relationship to legitimate state interests; it is a
classification of persons undertaken for its own sake, something the Equal Protection
Clause does not permit.” Id. at 635. The Supreme Court deemed this “class legislation
. . . obnoxious to the prohibitions of the Fourteenth Amendment.” Id. (quoting Civil
Rights Cases, 109 U.S. 3, 24 (1883)).
As the Supreme Court held so succinctly in Romer: “[Colorado law] classifies
homosexuals not to further a proper legislative end but to make them unequal to everyone
else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to
its laws. Amendment 2 violates the Equal Protection Clause[.]” 517 U.S. at 635-36.
As the Supreme Court explained in striking down Section 3 of DOMA, “[t]he
avowed purpose and practical effect of the law here in question are to impose a
disadvantage, a separate status, and so a stigma upon all who enter into same-sex
marriages made lawful by the unquestioned authority of the States.” Windsor, 133 S. Ct.
at 2693.
Similarly, in Windsor, the Supreme Court cited U. S. Dept. of Agriculture v.
Moreno, 413 U.S. 528 (1973), for the proposition that a legislative desire to harm a
23

politically unpopular group of people cannot justify disparate treatment of that group.
Windsor, 133 S. Ct. at 2693. In Moreno, a federal statute prohibiting households
containing “unrelated persons” from qualifying for food stamps was held to be in
violation of the Equal Protection Clause under a rational basis analysis. The legislative
purpose of the statute was to prohibit “hippies” from taking advantage of food stamps.
The Supreme Court held that “the classification here . . . is wholly without any rational
basis.” Moreno, 413 U.S. at 538. Likewise, in Windsor, the Supreme Court held that the
purpose of the federal DOMA was “to impose inequality, not for other reasons like
governmental efficiency.” 133 S. Ct. at 2694.
Under Supreme Court jurisprudence, states are free to determine conditions for
valid marriages, but these restrictions must be supported by legitimate state purposes
because they infringe on important liberty interests around marriage and intimate
relations.
Here, in derogation of law, the Ohio scheme has unjustifiably created two tiers of
couples: (1) opposite-sex married couples legally married in other states; and
(2) same-sex married couples legally married in other states. This lack of equal
protection of law is fatal.
As a threshold matter, it is absolutely clear that under Ohio law, from the founding
of the state through at least 2004, the validity of a heterosexual marriage is to be
determined by whether it complies with the law of the jurisdiction where it was
celebrated. This legal approach is firmly rooted in the longstanding legal principle of
lex loci contractus – i.e., the law of the place of contracting controls. That is, a marriage
24

solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. As the
leading compendium of Ohio law states:
Generally, a marriage solemnized outside of Ohio is valid in Ohio if it is
valid where solemnized. Thus, the validity of a common-law marriage is
determined by the law of the state where it was consummated, and that of a
solemnized marriage by the law of the state where it was contracted.
Likewise, a marriage created in a foreign nation is valid according to that
nation's laws. [. . .] The fact that the parties to a marriage left the state to
marry in order to evade Ohio's marriage laws is immaterial to the
marriage’s validity in Ohio.
See 45 Ohio Jur. 3d Family Law § 11 (emphasis supplied). 11
Thus, for example, as declared by the Supreme Court of Ohio in 1958, out-of-state
marriages between first cousins are recognized by Ohio, even though Ohio law does not
authorize marriages between first cousins. Mazzolini v. Mazzolini, 155 N.E.2d 206, 208
(Ohio Sup. Ct. 1958) (marriage of first cousins was legal in Massachusetts and therefore
is legal in Ohio regardless of Ohio statute to the contrary); Hardin v. Davis, 16 Ohio
Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (“But, although first cousins
cannot marry in Ohio, it has been held that if they go to another state where such
marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio”);
Slovenian Mut. Ben. Ass’n v. Knafelj, 173 N.E. 630, 631 (Ohio App. 1930) (“It is true
that, under the laws of Ohio, if she were his first cousin he could not marry her; but they
could go to the state of Michigan, or the state of Georgia, and perhaps many other states
in the United States, and intermarry, and then come right back into Ohio and the marriage
would be legal”).
11

Defendants did not argue that the Plaintiffs’ marriages were obtained by fraud, nor that Plaintiffs were
not genuinely migratory couples.

25

Likewise, under Ohio law, out-of-state marriages of minors are recognized by
Ohio, even though Ohio law does not authorize marriages of minors. See Peefer v. State,
182 N.E. 117, 121 (Ohio App. 1931) (where underage couples leave the state to marry in
a state in which their marriage is valid and return to Ohio, the marriage cannot be set
aside based on Ohio’s law against marriage of underage people); see also Courtright v.
Courtright, 1891 Ohio Misc. LEXIS 161, at *7, aff’d without opinion, 53 Ohio 685 (Ohio
1895) (marriage between persons considered underage in Ohio married in a state where
their marriage is legal “cannot be set aside, either because it was not contracted in
accordance with the law of this state, or because the parties went out of the state for the
purpose of evading the laws of this state”).
Upon the record before this Court, Plaintiffs prevail on their claim that by treating
lawful same-sex marriages differently than it treats lawful heterosexual marriages (e.g.,
marriages of first cousins and marriages of minors), Ohio law, as applied here, violates
the United States Constitution’s guarantee that “[n]o State shall make or enforce any law
which shall . . . deny to any person within its jurisdiction equal protection of the laws.”
1.

Heightened Scrutiny

Since Windsor, the Sixth Circuit has not reviewed controlling law regarding the
appropriate level of scrutiny for evaluating classifications based on sexual orientation,
such as Ohio’s marriage recognition bans. In the most recent Sixth Circuit case to
consider the issue, Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012), the
court rejected heightened scrutiny by relying on Scarbrough v. Morgan Cnty. Bd. of

26

Educ., 470 F.3d 250, 261 (6th Cir. 2006), for the proposition that sexual orientation has
never been recognized as a suspect class in this circuit. Scarbrough, in turn, relied on
Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293
(6th Cir. 1997).
However, Equality Foundation no longer stands as sound precedential authority
for the proposition that restrictions on gay and lesbian individuals are subject to rational
basis analysis. As the Court for the Eastern District of Michigan recently pointed out,
there are “ample reasons to revisit the question of whether sexual orientation is a suspect
classification,” including the fact that Sixth Circuit precedent on this issue – including
Equality Foundation – is based on Bowers v. Hardwick, 478 U.S. 186 (1986), which was
overruled by Lawrence in 2003. Bassett v. Snyder, No. 12-10038, 2013 WL 3285111, at
*1 (E.D. Mich. June 28, 2013) (same-sex couples demonstrated a likelihood of success
on the merits of their equal protection claim regarding a Michigan law prohibiting samesex partners from receiving public employer benefits). The Supreme Court, in overruling
Bowers, emphatically declared that it “was not correct when it was decided and is not
correct today.” Lawrence, 539 U.S. at 578. In repudiating the Bowers decision, the
Supreme Court stated that “[i]ts continuance as precedent demeans the lives of
homosexual persons” and represents “an invitation to subject homosexual persons to
discrimination both in the public and in the private spheres.” Id.

27

In overruling Bowers, the Supreme Court eliminated a major jurisprudential
foundation of Scarbrough, Equality Foundation, and other decisions relied on to
foreclose the possibility of heightened scrutiny for sexual orientation classifications. 12
As a result, lower courts, without controlling post-Lawrence precedent on the
issue, should now apply the criteria mandated by the Supreme Court to determine
whether sexual orientation classifications should receive heightened scrutiny.
In deciding whether a new classification qualifies as a suspect or quasi-suspect
class, the Supreme Court considers:
A) whether the class has been historically “subjected to discrimination”;
B) whether the class has a defining characteristic that “frequently bears [a]
relation to ability to perform or contribute to society”; C) whether the class
exhibits “obvious, immutable, or distinguishing characteristics that define
them as a discrete group”; and D) whether the class is “a minority or
politically powerless.”
Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (quoting Bowen v. Gilliard,
483 U.S. 587, 602 (1987) and City of Cleburne, Tex., 473 U.S. at 440-41 (citations
omitted). Of these considerations, the first two are the most important. See id.
(“Immutability and lack of political power are not strictly necessary factors to identify a
suspect class”); accord Golinski, 824 F. Supp. 2d at 987. As several federal and state
12

See Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) (“The Supreme
Court’s holding in Lawrence ‘remov[ed] the precedential underpinnings of the federal case law
supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class”’) (citations
omitted); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D. Cal. 2012) (“[T]he
reasoning in [prior circuit court decisions], that laws discriminating against gay men and lesbians are not
entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot
stand post-Lawrence”). Lawrence “does not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter.” 539 U.S. at 578. It does,
however, erase the jurisprudential basis to conclude that sexual orientation is defined by constitutionally
proscribable sexual acts and thus that classifications based on it are only appropriately evaluated under
the rational basis test.

28

courts have recently recognized, a reasonable application of these factors leads to the
conclusion that sexual orientation classifications should be subject to some form of
heightened scrutiny. 13
a.

Historical Discrimination

The history of discrimination against gay and lesbian individuals has been both
severe and pervasive. In 1952, Congress prohibited gay men and women from entering
the country. (Doc. 42-1 at ¶ 48). In 1953, President Eisenhower issued an executive
order requiring the discharge of gay people from all federal employment and mandating
that all defense contractors and other private corporations with federal contracts ferret out
and fire all homosexual employees, a policy which remained in place until 1975. (Id. at
¶¶ 46-47, 78). Even then, federal agencies were free to discriminate based on sexual
orientation until President Clinton issued the first executive order forbidding such hiring
discrimination in 1998. After World War II, known homosexual service members were
denied GI Bill benefits, and later, when other people with undesirable discharges had
their benefits restored, the Veterans Administration refused to restore them to gay people.
(Id. at ¶ 42).
Until the Supreme Court’s Lawrence decision in 2003, consensual homosexual
conduct was criminalized in many states. In the mid-twentieth century, bars in major
American cities posted signs telling potential gay customers they were not welcome, and
13

See, e.g., Windsor, 699 F.3d at 181-85; Golinski, 824 F. Supp. 2d at 985-90; Pedersen, 881 F. Supp. 2d
at 310-33; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010) aff'd sub nom Perry v.
Brown, 671 F.3d 1052 (9th Cir. 2012) vacated and remanded sub nom Hollingsworth v. Perry, 133 S. Ct.
2652 (2013); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011) (decision of 20 bankruptcy
judges); Varnum v. Brien, 763 N.W.2d 862, 885-96 (Iowa 2009); In re Marriage Cases, 183 P.3d at 44144; Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008).

29

raids on gay bars in this period were “a fact of life, a danger every patron risked by
walking through the door.” (Id. at ¶ 56). Until 2011, homosexuals could not openly
serve in the military, and the military still criminalizes sodomy today. (Id. at ¶ 40).
In 1993, Cincinnati voters passed Issue 3, which amended the city charter to
prohibit the city from extending civil rights protections based on sexual orientation,
which was not repealed until 2004. (Id. at ¶ 74).
The Republican Party in its 2012 Platform reaffirmed its support for a
Constitutional amendment prohibiting same-sex marriage, and baselessly alleged that
supporters of same-sex marriage rights were engaged in “hate campaigns, threats of
violence, and vandalism . . . against advocates of traditional marriage.” (Doc. 53-1 at
26).
The governor of Pennsylvania recently compared same-sex marriage to incest.
(Id. at 25).
These are just some of the most egregious examples of discrimination against gays
and lesbians at the hands of both federal and state governments, their officials, and one of
the two primary political parties in our country, and based on these examples alone, “[i]t
is easy to conclude that homosexuals have suffered a history of discrimination.”
Windsor, 699 F.3d at 182; see Pedersen, 881 F. Supp. 2d at 318 (“The long history of
anti-gay discrimination which evolved from conduct-based proscriptions to status or
identity-based proscriptions perpetrated by federal, state and local governments as well as
private parties amply demonstrates that homosexuals have suffered a long history of
invidious discrimination”).
30

b.

Ability to Contribute to Society

The other essential factor in the Supreme Court’s heightened scrutiny analysis is
whether the group in question is distinctively different from other groups in a way that
“frequently bears [a] relation to ability to perform or contribute to society.” City of
Cleburne, Tex., 473 U.S. at 440-41 (citation omitted); see also Frontiero v. Richardson,
411 U.S. 677, 686 (1973) (“[W]hat differentiates sex from such nonsuspect statuses as
intelligence or physical disability, and aligns it with the recognized suspect criteria, is
that the sex characteristic frequently bears no relation to ability to perform or contribute
to society”).
“It is well-established that homosexuality is a normal expression of human
sexuality. It is not a mental illness, and being gay or lesbian has no inherent association
with a person’s ability to lead a happy, healthy, and productive life or to contribute to
society.” (Doc. 46-1 at ¶ 11). As the Windsor appellate court provides: “There are some
distinguishing characteristics, such as age or mental handicap, that may arguably inhibit
an individual’s ability to contribute to society, at least in some respect. But
homosexuality is not one of them.” Windsor, 699 F.3d at 682. 14 (emphasis supplied).
In this respect, sexual orientation is akin to race, gender, alienage, and national
origin, all of which “are so seldom relevant to the achievement of any legitimate state

14

See also Golinski, 824 F. Supp. 2d at 986 (“[T]here is no dispute in the record or the law that sexual
orientation has no relevance to a person’s ability to contribute to society”) (emphasis supplied); Pedersen,
881 F. Supp. 2d at 320 (“Sexual orientation is not a distinguishing characteristic like mental retardation or
age which undeniably impacts an individual’s capacity and ability to contribute to society. Instead like
sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of
stereotyped characteristics not truly indicative of their abilities”); see also Am. Psychiatric Ass’n,
Position Statement On Homosexuality and Civil Rights, 131 AM. J. PSYCHIATRY 436, 497 (1974).

31

interest that laws grounded in such considerations are deemed to reflect prejudice and
antipathy.” City of Cleburne, Tex., 473 U.S. at 440 (emphasis supplied).
c.

Lack of Political Power

Lack of political power is not essential for recognition as a suspect or quasisuspect class, see Windsor, 699 F.3d at 181, but the limited ability of gay people as a
group to protect themselves in the political process also weighs in favor of heightened
scrutiny of laws that discriminate based on sexual orientation.
In analyzing this factor, “[t]he question is not whether homosexuals have achieved
political successes over the years; they clearly have. The question is whether they have
the strength to politically protect themselves from wrongful discrimination.” Id. at 184.
Due to the history of prejudice that gay men, lesbians, and bisexuals have faced, they are
lacking in the political power to expand their civil rights. (Doc. 47-1 at ¶ 27) (“In light of
the political disadvantages still faced by a small, targeted, and disliked group . . . gay men
and lesbians are powerless to secure basic rights within the normal political processes”).
One way gay men, lesbians, and bisexuals’ lack of power is demonstrated is by the
absence of statutory protections for them. For example, the gridlocked U.S. Congress has
failed to pass any federal legislation prohibiting discrimination on the basis of sexual
orientation in employment, education, access to public accommodations, or housing. (Id.
at ¶ 30). Although a number of states have now extended basic anti-discrimination
protections to gay men, lesbians, and bisexuals, the majority of states, including Ohio,
have no statutory prohibition on firing, refusing to hire, or demoting a person in private
sector employment solely on the basis of their sexual orientation. (Doc. 42-1 at ¶ 77).
32

Similarly, the majority of states, including Ohio, do not provide statutory protections
against discrimination in housing or public accommodations on the basis of sexual
orientation. (Id.) In the last two decades, more than two-thirds of ballot initiatives that
proposed to enact (or prevent the repeal of) basic anti-discrimination protections for gay,
lesbian, and bisexual individuals have failed. (Doc. 47-1 at ¶ 40). Other measures of this
group’s lack of political power are the repeal or pre-emption of various legislative
protections through ballot initiatives including anti-discrimination policies, anti-marriage
initiatives, and adoption bans, and the underrepresentation of gays and lesbians in
political office. (Id. at 15-22). In Ohio, for instance, only two of 132 members – or 1.5%
– of the state legislature identify as gay. (Id. at ¶ 51).
This lack of political power is caused by a number of factors, including small
population size and dispersion, the effect of HIV/AIDS on the community, violence
against gay and lesbian people, relative invisibility because many gay, lesbian, and
bisexual people are not open about their sexual orientation, censorship, public hostility
and prejudice, political and social hostility, unreliable allies in the political process, moral
and political condemnation, and a powerful, numerous, and well-funded opposition. (Id.
at 22-35). For example, violence against gay and lesbian people engenders intimidation,
which can “undermine the mobilization of gays and lesbians and their allies to limit their
free exercise of economic and social liberties.” (Id. at ¶ 58). In Ohio, the number of hate
crimes committed on the basis of sexual orientation increased from 15.8% of total hate
crimes reported in 2009 to 25% in 2012. (Id. at ¶ 60). The total number of reported

33

incidents decreased, but the number of incidents motivated by sexual orientation
increased. (Id.)
The relative lack of political influence of gay people today stands in contrast to the
political power of women in 1973, when a plurality of the Court concluded in Frontiero,
411 U.S. at 688, that sex-based classifications required heightened scrutiny. Congress
had already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of
1963, both of which protect women from discrimination in the workplace. See id. at 68788. As stated, there are still no such bans on discrimination based on sexual orientation
in the federal government or the majority of states. See Golinski, 824 F. Supp. 2d at 988989; Pedersen, 881 F. Supp. 2d at 326-27.
As political power has been defined by the Supreme Court for purposes of
heightened scrutiny analysis, gay people do not have it.
d.

Immutability

The heightened scrutiny inquiry sometimes also considers whether laws
discriminate on the basis of “‘immutable . . . or distinguishing characteristics that define
[persons] as a discrete group.’” Bowen, 483 U.S. at 602 (citation omitted). This
consideration derives from the “basic concept of our system that legal burdens should
bear some relationship to individual responsibility.” Frontiero, 411 U.S. at 686; see also
Plyler v. Doe, 457 U.S. 202, 220 (1982) (noting that illegal alien children “have little
control” over that status). There is no requirement, however, that a characteristic be
immutable in order to trigger heightened scrutiny. For example, heightened scrutiny
applies to classifications based on alienage and legitimacy, even though “[a]lienage and
34

illegitimacy are actually subject to change.” Windsor, 699 F.3d at 183 n.4; see Nyquist v.
Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the argument that alienage did not deserve
strict scrutiny because it was mutable).
To the extent that “immutability” is relevant to the inquiry of whether to apply
heightened scrutiny, the question is not whether a characteristic is strictly unchangeable,
but whether the characteristic is a core trait or condition that one cannot or should not be
required to abandon. See Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir.
2000) overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005)
(“[S]exual orientation and sexual identity are immutable; they are so fundamental to
one’s identity that a person should not be required to abandon them”); Watkins v. U.S.
Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in judgment) (“It is clear
that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the
sense that members of the class must be physically unable to change or mask the trait
defining their class. . . . the Supreme Court is willing to treat a trait as effectively
immutable if changing it would involve great difficulty, such as requiring a major
physical change or a traumatic change of identity”).
Under any definition of immutability, sexual orientation clearly qualifies. There is
now broad medical and scientific consensus that sexual orientation is immutable.
“Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual
attractions to men, women, or both sexes. Most adults are attracted to and form
relationships with members of only one sex. Efforts to change a person’s sexual
orientation through religious or psychotherapy interventions have not been shown to be
35

effective.” (Doc. 46-1 at ¶ 10). Indeed, there is significant evidence to show that
interventions to change sexual orientation can be harmful to patients, and no major
mental health professional organization has approved their use. (Id. at ¶¶ 26-27).
Further, when asked whether they have any choice in their sexual orientation, the vast
majority of gay men and lesbians state that they have very little or no choice in the
matter. (Id. at ¶ 25). 15 Even more importantly, sexual orientation is so fundamental to a
person’s identity that one ought not be forced to choose between one’s sexual orientation
and one’s rights as an individual – even if such a choice could be made. See Lawrence,
539 U.S. at 576-77 (recognizing that individual decisions by consenting adults
concerning the intimacies of their physical relationships are “an integral part of human
freedom”). 16
Sexual orientation discrimination accordingly fulfills all the criteria the Supreme
Court has identified, and thus Defendants must justify Ohio’s failure to recognize samesex marriages in accordance with a heightened scrutiny analysis. Defendants have utterly
failed to do so.

15

See also Perry, 704 F. Supp. 2d at 966 (“No credible evidence supports a finding that an individual
may, through conscious decision, therapeutic intervention or any other method, change his or her sexual
orientation”); accord Golinski, 824 F. Supp. 2d at 986; Pedersen, 881 F. Supp. 2d at 320-24.
16

See also In re Marriage Cases, 183 P.3d. at 442 (“Because a person’s sexual orientation is so integral
an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual
orientation in order to avoid discriminatory treatment”); Kerrigan, 957 A.2d at 438 (“In view of the
central role that sexual orientation plays in a person’s fundamental right to self-determination, we fully
agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic
that defines them as a discrete group for purposes of determining whether that group should be afforded
heightened protection under the equal protection provisions of the state constitution”); accord Golinski,
824 F. Supp. 2d at 987; Pedersen, 881 F. Supp. 2d at 325.

36

2.

Rational Basis

Moreover, even if no heightened level of scrutiny is applied to Ohio’s marriage
recognition bans, they still fail to pass constitutional muster.
“Even in the ordinary equal protection case calling for the most deferential of
standards, [the Court] insist[s] on knowing the relation between the classification adopted
and the object to be attained.” Romer, 517 U.S. at 632. “[S]ome objectives . . . are not
legitimate state interests” and, even when a law is justified by an ostensibly legitimate
purpose, “[t]he State may not rely on a classification whose relationship to an asserted
goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne,
Tex., 473 U.S. at 446-47. “Rational basis review, while deferential, is not ‘toothless.’”
Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998) (citing
Mathews v. Lucas, 427 U.S. 495, 510 (1976)).
At the most basic level, by requiring that classifications be justified by an
independent and legitimate purpose, the Equal Protection Clause prohibits classifications
from being drawn for “the purpose of disadvantaging the group burdened by the law.”
Romer, 517 U.S. at 633; see also Windsor, 133 S. Ct. at 2693; City of Cleburne, Tex., 473
U.S. at 450; Moreno, 413 U.S. at 534.
The Supreme Court invoked this principle most recently in Windsor when it held
that the principal provision of the federal DOMA violated equal protection guarantees
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.
37

The Supreme Court has described this impermissible purpose as “animus” or a
“bare . . . desire to harm a politically unpopular group.” Id. at 2693; Romer, 517 U.S. at
633; City of Cleburne, Tex., 473 U.S. at 447; Moreno, 413 U.S. at 534.
However, an impermissible motive does not always reflect “malicious ill will.”
Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,
concurring). It can also take the form of “negative attitudes,” “fear,” “irrational
prejudice,” “some instinctive mechanism to guard against people who appear to be
different in some respects from ourselves.” City of Cleburne, Tex., 473 U.S. at 448, 450;
Garrett, 531 U.S. at 374 (Kennedy, J., concurring).
The Sixth Circuit has held 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, 679 F.3d at 438
(emphasis supplied) (quoting Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir.
1997) (inmate had viable equal protection claim where he alleged prison officials
purposefully discriminated against him based on his sexual orientation when he was
removed from prison job)).
In addition, even when the government offers an ostensibly legitimate purpose, the
court must also examine the statute’s connection to that purpose to assess whether it is
too “attenuated” to rationally advance the asserted governmental interest. City of
Cleburne, Tex., 473 U.S. at 446; see, e.g., Eisenstadt, 405 U.S. at 448-49 (invalidating
law on rational basis review because, even if deterring premarital sex is a legitimate
governmental interest, “the effect of the ban on distribution of contraceptives to
38

unmarried persons has at best a marginal relation to the proffered objective”); Moreno,
413 U.S. at 535-36 (invalidating law on rational basis review because “even if we were to
accept as rational the Government’s wholly unsubstantiated assumptions concerning
[hippies] . . . we still could not agree with the Government’s conclusion that the denial of
essential federal food assistance . . . constitutes a rational effort to deal with these
concerns”).
This search for a meaningful connection between a classification and the asserted
governmental interest also provides a safeguard against intentional discrimination. As
the Supreme Court has explained, “[b]y requiring that the classification bear a rational
relationship to an independent and legitimate legislative end, we ensure that
classifications are not drawn for the purpose of disadvantaging the group burdened by the
law.” Romer, 517 U.S. at 633. 17
In Bassett, the court held that same-sex couples demonstrated a likelihood of
success on the merits of their equal protection claim regarding a Michigan law
prohibiting same-sex partners from receiving public employee benefits where “[t]he
historical background and legislative history of the Act demonstrate that it was motivated
17

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

39

by animus against gay men and lesbians.” 2013 WL 3285111 at *24-26. The Sixth
Circuit has stated that where a provision has “no rational relationship to any of the
articulated purposes of the state,” a court is left with the necessary conclusion that the
cited interests are pretextual. Craigmiles v. Giles, 312 F.3d 220, 228 (6th Cir. 2002). In
Windsor, the Supreme Court bolstered this truth, finding that:
DOMA’s unusual deviation from the usual tradition of recognizing and
accepting state definitions of marriage here operates to deprive same-sex
couples of the benefits and responsibilities that come with the federal
recognition of their marriages. This is strong evidence of a law having the
purpose and effect of disapproval of that class.
Windsor, 133 S. Ct. at 2693. A review of the historical background and legislative
history of the Ohio laws at issue leads to the same conclusion in the case at hand, that in
refusing to recognize a particular type of legal out-of-state marriages for the first time in
its history, Ohio is engaging in “discrimination[] of an unusual character” without a
rational basis for doing so. Id. at 2692 (citing Romer, 517 U.S. at 633).
Consequently, the evidentiary record establishes that the requested relief is also to
be granted to Plaintiffs on the basis of the Equal Protection Clause.
3.

Potential State Interests

To survive rational basis scrutiny, the marriage recognition bans must be justified
by some legitimate state interest other than simply maintaining a “traditional” definition
of marriage. 18 “Ancient lineage of a legal concept does not give it immunity from attack
for lacking a rational basis.” Heller v. Doe by Doe, 509 U.S. 312, 326-27 (1993).
18

As stated, at the time of the passage of Ohio’s same-sex marriage bans, Governor Robert Taft stated
that their purpose was “to reaffirm existing Ohio law with respect to our most basic, rooted, and timehonored institution: marriage between a man and a woman.” (Doc. 41-1 at ¶ 72).

40

Indeed, the fact that a form of discrimination has been “traditional” is a reason to be more
skeptical of its rationality. “The Court must be especially vigilant in evaluating the
rationality of any classification involving a group that has been subjected to a tradition of
disfavor for a traditional classification is more likely to be used without pausing to
consider its justification than is a newly created classification.” City of Cleburne, Tex.,
473 U.S. at 454 n.6 (Stevens, J., concurring). 19 Indeed, just as the tradition of banning
interracial marriage represented the embodiment of deeply-held prejudice and long-term
racial discrimination in Loving, 388 U.S. at 1, the same is true here with regard to Ohio’s
marriage recognition bans and discrimination based on sexual orientation.
Supporters of Ohio’s marriage recognition bans have also asserted that children
are best off when raised by a mother and father. (Doc. 41-1 at ¶¶ 41, 88). Even if it were
rational for legislators to speculate that children raised by heterosexual couples are better
off than children raised by gay or lesbian couples, which it is not, 20 there is simply no
rational connection between the Ohio marriage recognition bans and the asserted goal, as
19

See also Marsh v. Chambers, 463 U.S. 783, 791-92 (1983) (even longstanding practice should not be
“taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic
society”); In re Marriage Cases, 183 P.3d at 853-54 (“[E]ven the most familiar and generally accepted of
social practices and traditions often mask an unfairness and inequality that frequently is not recognized or
appreciated by those not directly harmed by those practices or traditions”).

20

The overwhelming scientific consensus, based on decades of peer-reviewed scientific research, shows
unequivocally that children raised by same-sex couples are just as well adjusted as those raised by
heterosexual couples. (Doc. 43-1 at ¶¶ 18-19) (“[i]n . . . widely variable studies, the same findings
continue to emerge: children reared by lesbian and gay parents are doing as well as children raised by
heterosexual parents”). The American Psychological Association, the American Academy of Pediatrics,
the American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the
American Academy of Family Physicians (among others) have all released statements in support of gay
and lesbian parents and their ability and rights to rear children. (Id. at ¶ 16). This consensus has also
been recognized by numerous courts. See Perry, 704 F. Supp. 2d at 980 (finding that the research
supporting the conclusion that “[c]hildren raised by gay or lesbian parents are as likely as children raised
by heterosexual parents to be healthy, successful and well-adjusted” is “accepted beyond serious debate in

41

Ohio’s marriage recognition bans do not prevent gay couples from having children. 21
The only effect the bans have on children’s well-being is harming the children of samesex couples who are denied the protection and stability of having parents who are legally
married. The Supreme Court aptly described how laws such as Ohio’s marriage
recognition bans affect families with same-sex parents:
The differentiation demeans the couple, whose moral and sexual choices
the Constitution protects . . . And it humiliates . . . children now being
raised by same-sex couples. The law in question makes it even more
difficult for the children to understand the integrity and closeness of their
own family and its concord with other families in their community and in
their daily lives.
Windsor, 133 S. Ct. at 2694 (internal citations omitted).
Because there is no rational connection between Ohio’s marriage recognition bans
and the asserted state interests, this Court can conclude that the ban violates equal
protection even without considering whether it is motivated by an impermissible purpose.

the field of developmental psychology”); In re Adoption of Doe, 2008 WL 5006172, at *20 (Fla. Cir. Ct.
Nov. 25, 2008) (“[B]ased on the robust nature of the evidence available in the field, this Court is satisfied
that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of
children are not preserved by prohibiting homosexual adoption”), aff’d sub nom. Fla. Dep’t of Children
& Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Howard v. Child Welfare
Agency Rev. Bd., Nos. 1999-9881, 2004 WL 3154530, at *9 and 2004 WL 3200916, at *3-4 (Ark. Cir. Ct.
Dec. 29, 2004) (holding based on factual findings regarding the wellbeing of children of gay parents that
“there was no rational relationship between the [exclusion of gay people as foster parents] and the health,
safety, and welfare of the foster children”), aff’d sub nom. Dep’t of Human Servs. v. Howard, 238 S.W.3d
1 (Ark. 2006); Varnum, 763 N.W.2d at 899, n.26 (concluding, after reviewing “an abundance of evidence
and research,” that “opinions that dual-gender parenting is the optimal environment for children . . . is
based more on stereotype than anything else”); Golinski, 824 F. Supp. 2d at 991 (“More than thirty years
of scholarship resulting in over fifty peer-reviewed empirical reports have overwhelmingly demonstrated
that children raised by same-sex parents are as likely to be emotionally healthy, and educationally and
socially successful as those raised by opposite-sex parents”).
21

See Golinski, 824 F. Supp. 2d at 997 (“Even if the Court were to accept as true, which it does not, that
opposite-sex parenting is somehow superior to same-sex parenting, DOMA is not rationally related to this
alleged governmental interest”); accord Windsor, 699 F.3d at 188; Pedersen, 881 F. Supp. 2d at 340-41;
Varnum, 763 N.W.2d at 901.

42

See Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (allegations of irrational
discrimination “quite apart from the Village’s subjective motivation, are sufficient to
state a claim for relief under traditional equal protection analysis”). In this case,
however, the lack of any connection between Ohio’s marriage recognition bans and any
legitimate state interest also leads to the conclusion that it was passed because of,
not in spite of, its burden on same-sex couples.
Even if it were possible to hypothesize regarding a rational connection between
Ohio’s marriage recognition bans and some legitimate governmental interest,
no hypothetical justification can overcome the clear primary purpose and practical effect
of the marriage bans . . . to disparage and demean the dignity of same-sex couples in the
eyes of the State and the wider community. When the primary purpose and effect of a
law is to harm an identifiable group, the fact that the law may also incidentally serve
some other neutral governmental interest cannot save it from unconstitutionality.
Windsor, 133 S. Ct at 2696.
Consequently, no rational state basis to justify the marriage recognition bans has
been advanced or evidenced in this case. 22

22

As a final note, although the question of whether Ohio’s refusal to grant same-sex marriages also
violates Ohio same-sex couples’ right to due process and equal protection is not before the Court in
this case, the logical conclusion to be drawn from the evidence, arguments, and law presented here is that
Ohio’s violation of the constitutional rights of its gay citizens extends beyond the bounds of this lawsuit.
See also Kitchen v. Herbert, 2:13-CV-00217 (D. Utah Dec. 20, 2013).

43

IV.

A PERMANENT INJUNCTION BARRING ENFORCEMENT
IN THIS CASE OF OHIO’S BANS ON RECOGNITION OF
OTHER STATES’ LAWFUL SAME-SEX MARRIAGES
IS NECESSARY

As the United States Supreme Court found in Windsor, there is no legitimate state
purpose served by Ohio’s refusal to recognize same-sex marriages celebrated in states
where they are legal. Instead, as in Windsor, the very purpose of the Ohio provisions,
enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all
who enter into same-sex marriages made lawful by the unquestioned authority of the
States.” Windsor, 133 S.Ct. at 2639. That is, the purpose served by treating same-sex
married couples differently than heterosexual married couples is the same improper
purpose that failed in Windsor and in Romer: “to impose inequality” and to make gay
citizens unequal under the law. See Windsor, 133 S.Ct. at 2694; Romer, 517 U.S. at 63536. It is beyond debate that it is constitutionally prohibited to single out and disadvantage
an unpopular group.
Even if there were proffered some attendant governmental purpose to discriminate
against gay couples other than to effect pure animus, it is difficult to imagine how it
could outweigh the severe burden imposed by the bans on same-sex couples legally
married in other states. Families deserve the highest level of protection under the First
Amendment right of association:
Marriage is a coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths;
a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
44

Zablocki, 434 U.S. at 384 (citing Griswold, 381 U.S. at 486).
Even if the classification of same-sex couples legally married in other states is
reviewed under the least demanding rational basis test, this Court on this record cannot
find a rational basis for the Ohio provisions discriminating against lawful, out-of-state
same-sex marriages that is not related to the impermissible expression of disapproval of
same-sex married couples.
Moreover, denying Plaintiffs their associational rights under the circumstances
presented here imposes irreparable harm. Constitutional violations are routinely
recognized as triggering irreparable harm unless they are promptly remedied. See, e.g.,
Elrod v. Burns, 427 U.S. 347, 373 (1976) (loss of constitutional “freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury”). In fact, “when
an alleged deprivation of a constitutional right is involved, most courts hold that no
further showing of irreparable injury is necessary.” Moore, 11A Federal Practice and
Procedure at § 2948.1 (2d ed.). 23

23

See, e.g., Overstreet v. Lexington-Fayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (6th
Cir. 2002) (a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the
claim is based upon a violation of plaintiff’s constitutional rights); ACLU of Kentucky v. McCreary
County, Kentucky, 354 F.3d 438, 445 (6th Cir. 2003) (if it is found that a constitutional right is being
threatened or impaired, a finding of irreparable injury is mandated); Connection Distrib. Co. v. Reno, 154
F.3d 281, 288 (6th Cir. 1998) (recognizing that the loss of First Amendment rights, for even a minimal
period of time, constitutes irreparable harm) (citations omitted); Council of Alternative Political Parties v.
Hooks, 121 F.3d 876 (3rd Cir. 1997) (denial of preliminary injunctive relief was irreparable harm to
plaintiffs’ voting and associational rights); Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding
that plaintiffs may establish irreparable harm based on an alleged violation of their Fourth Amendment
rights); McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir. 1984) (finding that a violation of privacy
constitutes an irreparable harm); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (holding allegation
of violation of Eighth Amendment rights sufficient showing of irreparable harm); Doe v. Mundy, 514
F.2d 1179 (7th Cir 1975) (denial of constitutional privacy right was irreparable harm); Beerheide v.
Zavaras, 997 F.Supp. 1405 (D.C. Colo. 1998) (irreparable harm satisfied by allegation of deprivation of
free exercise of religion).

45

Without a permanent injunction, the official records of Plaintiffs’ spouses’ deaths,
and the last official document recording their existence on earth, if amended to reflect
Ohio law (and not this Court’s Orders), would incorrectly classify them as unmarried,
despite their legal marriages. The death certificates, if amended, would also incorrectly
fail to record Plaintiffs as their surviving spouses, a status they lawfully enjoy.
Furthermore, Mr. Arthur is now buried in his family plot at Spring Grove Cemetery. He
also wanted Mr. Obergefell to be buried next to him someday, but the family plot
directive limits those who may be interred in the plot to descendants and married spouses.
Thus, without a permanent injunction, Mr. Arthur’s burial could conceivably be upset
and his remains might need to be exhumed. See Yankton Sioux Tribe v. U.S. Army Corps
of Engineers, 209 F. Supp. 2d 1008, 1022 (D.S.D. 2002) (disruption of human remains
can be irreparable harm). Dying with an incorrect death certificate that prohibits the
deceased Plaintiffs from being buried with dignity constitutes irreparable harm.
Moreover, there is absolutely no evidence that the State of Ohio or its citizens will
be harmed by the issuance of a permanent injunction restraining the enforcement of the
marriage recognition ban provisions against the Plaintiffs in this case. Without an
injunction, however, the harm to Plaintiffs is severe. Plaintiffs are not currently accorded
the same dignity and recognition as similarly situated opposite-sex couples. Moreover,
without a permanent injunction, Plaintiffs’ legally valid marriages would be susceptible
to amended incorrect recording in Ohio as not existing. Balanced against this severe and
irreparable harm to Plaintiffs is the truth that there is no evidence in the record that the
issuance of a permanent injunction will cause substantial harm to the public. And, as a
46

final consideration, “the public interest is promoted by the robust enforcement of
constitutional rights.” Am. Freedom Def. Initiative v. Suburban 15 Mobility for Reg.
Transp., 698 F.3d 885, 896 (6th Cir. 2012).
Plaintiffs bear the burden of demonstrating their entitlement to an injunction, and
an “injunction is an extraordinary remedy which should be granted only if the movant
carries his or her burden of proving that the circumstances clearly demand it.”
Overstreet, 305 F.3d at 573. Here, nevertheless, weighing all factors applicable to
analyzing whether injunctive relief should issue, the Court finds that each factor supports
the granting of a permanent injunction.

47

V.

CONCLUSION

Accordingly, Plaintiffs’ Motion for Declaratory Judgment and Permanent
Injunction (Doc. 53) is hereby GRANTED as applied to these Plaintiffs. Specifically:
1.

The Court finds and declares that Article 15, Section 11, of the Ohio
Constitution, and Ohio Revised Code Section 3101.01(C), violate rights
secured by the Fourteenth Amendment to the United States Constitution
in that same-sex couples married in jurisdictions where same-sex marriage
is lawful, who seek to have their out-of-state marriage recognized and
accepted as legal in Ohio, are denied their fundamental right to marriage
recognition without due process of law; and are denied their fundamental
right to equal protection of the laws when Ohio does recognize comparable
heterosexual marriages from other jurisdictions, even if obtained to
circumvent Ohio law.

2.

Defendants and their officers are permanently enjoined from enforcing
Ohio’s marriage recognition bans on Plaintiffs. This includes such officials
completing death certificates as the need arises for Plaintiffs in a manner
consistent with this Order.

3.

The Court finds and declares that Plaintiff Robert Grunn may, consistent
with and in reliance upon the United States Constitution and this Court’s
Final Order, report on Ohio death certificates he completes as an Ohio
funeral director that a decedent married in a state authorizing same-sex
marriage is “married” or “widowed” and report the name of the decedent’s
surviving same-sex spouse as the “surviving spouse”.

4.

Defendant Dr. Theodore E. Wymyslo shall make a best faith effort to
communicate Notice of this Final Order to all persons within Ohio who
assist with completing Ohio death certificates, and Dr. Wymyslo shall
evidence such compliance by filing with this Court an Affidavit by 3/31/14.

5.

The Court will separately issue an Order of Permanent Injunction to these
effects, whereupon the Clerk shall enter judgment accordingly and
TERMINATE this case (in this Court).

IT IS SO ORDERED.
Date: December 23, 2013

/s/ Timothy S. Black
Timothy S. Black
United States District Judge
48

APPENDIX OF PLAINTIFFS’ EXPERTS
i

Susan J. Becker has been a professor at Cleveland State University’s Cleveland-

Marshall School of Law since 1990, before which she was a litigator for the law firm
then known as Jones, Day, Reavis and Pogue. She teaches a course entitled “Sexual
Orientation and the Law” and the majority of her scholarship addresses the animus
historically directed at the LGBT population as well as the historic and continuing
rationales for that discrimination. She also maintains a pro bono practice, the
majority of which involves providing legal advice to same-sex couples about their
rights under Ohio law. (See Doc. 41).
George Chauncy is the Samuel Knight Professor of History and American Studies and
past Chair of the Department of History at Yale University, where he has taught since
2006. From 1991 to 2006, he was a Professor of History at the University of Chicago.
He teaches, researches, and writes extensively on gay rights generally and same-sex
marriage in particular, and has provided testimony for numerous cases involving
similar issues. (See Doc. 42).
Megan Fulcher, Ph.D., is an Associate Professor in the Department of Psychology at
Washington and Lee University. She received her Ph.D. in psychology from the
University of Virginia in 2004, where she was mentored by Dr. Charlotte J. Patterson,
a preeminent scholar in research on lesbian and gay parents. Dr. Fulcher teaches,
researches, and writes extensively on the topics of child development, sexuality,
gender-role development and parent-child relationships. (See Doc. 43).
Joanna L. Grossman is the Sidney and Walter Siben Distinguished Professor of
Family Law at the Maurice A. Deane School of Law at Hofstra University, teaching
family law with special emphasis on the history of marriage regulation and the legal
responses to modern family forms. She has also taught at American University
School of Law, Cardozo Law School, Tulane Law School, University of North
Carolina School of Law, and Vanderbilt Law School. She teaches, researches, and
writes extensively on the sociolegal history of marriage, divorce and the family, state
regulation of marriage, the law and controversy regarding same-sex marriage, and the
rules of interstate marriage recognition. (See Doc. 44).

49

Bernard L. McKay is a licensed and practicing attorney with Frost Brown Todd LLC
in Cincinnati who practices mainly in the areas of estate planning, probate, and trust
administration and is certified by the Ohio State Bar Association as a specialist in
estate planning, trust, and probate law. Mr. McKay is a Fellow in the American
College of Trust and Estate Counsel and a member of the Cincinnati Estate Planning
Council and the Cincinnati Bar Association, where he has served as Chair of the
Estate Planning and Probate and Advanced Estate Planning and Probate Institute
Committees. (See Doc. 45).
Letitia Anne Peplau, Ph.D., is a Distinguished Research Professor and the Psychology
Department Vice Chair for Graduate Studies at the University of California, Los
Angeles. She was a Professor of Psychology at UCLA from 1973 until 2010. From
2005-2011, she served as Director of the UCLA Interdisciplinary Relationship
Science Program, which trains doctoral students in the study of families and other
personal relationships. She teaches, researches, and writes extensively on personal
relationships, gender, and sexual orientation, and has provided testimony for
numerous cases involving similar issues. In the 1970s, she was one of the first
researchers to conduct empirical investigations of the intimate relationships of
lesbians and gay men, and has continued this program of research for the past 35
years. (See Doc. 46).
Gary M. Segura, Ph.D., is a Professor of American Politics in the Department of
Political Science at Stanford University. He is the founding Director of the Institute
on the Politics of Inequality, Race and Ethnicity at Stanford, and the founding coDirector of the Stanford Center for American Democracy. He is one of the Principal
Investigators of the American National Election Studies for 2009-2013, the premier
data-gathering project for scholars of American elections. He teaches, researches, and
writes extensively on public attitudes, opinion, and behavior with respect to politics
and minority group politics in particular. He is a member of the Sexuality and Politics
organized section of the American Political Science Association, has served on the
Southern Political Science Association’s Committee on the Status of Gays and
Lesbians, and was part of the Executive Committee of the Sexuality Studies Program
at the University of Iowa. (See Doc. 47).

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