Obergefell et al v. Kasich et al

Filing 78

NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of filing transcripts (Attachments: # 1 Exhibit A. July 22nd Hearing Transcript, # 2 Exhibit B. October 30th Hearing Transcript, # 3 Exhibit C. December 18th Hearing Transcript) (Gerhardstein, Alphonse)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF OHIO

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WESTERN DIVISION

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- - -

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JAMES OBERGEFELL, et al.,

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Plaintiffs,
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Defendants.

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CASE NO. 1:13cv501
Cincinnati, Ohio
Monday, July 22, 2013
1:33 p.m.
MOTION FOR
TEMPORARY RESTRAINING ORDER

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- - -

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE
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APPEARANCES:

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For the Plaintiffs:

ALPHONSE A. GERHARDSTEIN, ESQ.
JENNIFER L. BRANCH, ESQ.
JACKLYN GONZALES MARTIN, ESQ.
Gerhardstein & ranch Co. LPA
432 Walnut Street, Suite 400
Cincinnati, OH 45202

For the Defendant Kasich:

BRIDGET C. COONTZ, ESQ.
KRISTOPHER ARMSTRONG, ESQ.
Ohio Attorney General's Office
Constitutional Offices
30 East Broad Street, 16th Floor
Columbus, OH 43215

For the Defendant Jones:

AARON M. HERZIG, ESQ.
City of Cincinnati
Law Department
801 Plum Street, Room 214
Cincinnati, OH 45202

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Court Reporter:

Jodie D. Perkins, RMR, CRR

Proceedings reported by stenotype.
Transcript produced by computer-aided transcription.

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AFTERNOON SESSION, Monday, July 22, 2013
(Proceedings commenced at 1:33 p.m.)
THE COURT:

Good afternoon, ladies and gentlemen.

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We're here in the open courtroom on the record in the civil

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case of James Obergefell and John Arthur versus John Kasich in

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his official capacity, et al.

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We're set for hearing on plaintiffs' motion for a

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temporary restraining order.

I would like the attorneys to

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enter their appearances for the record.

I'll then make a short

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statement, inquire as to how the parties intend to proceed, and

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then we will proceed at this hearing on the plaintiffs' motion

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for a temporary restraining order.

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So who appears as counsel for the plaintiffs and who
do you have with you?
MR. GERHARDSTEIN:

Al Gerhardstein for the plaintiff.

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And with me is plaintiff, James Obergefell; and Jennifer

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Branch, as co-counsel; and Jacklyn Gonzales Martin, as

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co-counsel.

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THE COURT:

Very well.

Good afternoon.

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And on behalf of the State defendants, the Ohio

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Attorney General and the Ohio governor, in their official

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capacities, if counsel would enter their appearances.

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MS. COONTZ:

Good afternoon, Your Honor.

Bridget

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Coontz from the Ohio Attorney General's Office on behalf of the

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AG and the governor.

With me is Kristopher Armstrong, also an

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Assistant Attorney General.

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THE COURT:

Very well.

And we have counsel here on

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behalf of the local defendant, Camille Jones, in her capacity

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as registrar of vital statistics.

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willing to enter your appearance for the record.

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MR. HERZIG:

Counsel, if would you be

Good afternoon, Your Honor.

Aaron

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Herzig, City of Cincinnati, on behalf of Doctor Jones in her

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official capacity.

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THE COURT:

Very well.

We have the appearances

entered of record.

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I would like to inquire of each of you as to how you

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would propose to proceed; and after I've heard it, we'll see

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how we're going to proceed.

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How does the plaintiff propose to proceed?

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MR. GERHARDSTEIN:

Your Honor, I have talked to

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defense counsel and propose the following:

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start with a summary of the argument and then supplement the

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facts with short testimony from plaintiff James Obergefell, and

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then defense counsel can -- when they give their argument, they

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can include any response they have to the testimony they've

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just heard.

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us a chance to respond to that.

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fashion.

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That plaintiff

And then if you want to hear any more, maybe give

THE COURT:

We'll be able to go in that

And forgive me for asking.

you anticipate your presentation will consume?

How long do

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MR. GERHARDSTEIN:

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THE COURT:

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Very well.

On behalf of the State

defendants, how do you all propose we proceed?

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Forty minutes.

MS. COONTZ:

Your Honor, we're in agreement with the

manner in which the plaintiff has just explained.

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THE COURT:

So we'll have argument from the plaintiff,

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and then they're going to call a plaintiff to the witness stand

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for testimony, they're then going to argue further, and then

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we'll turn to you all and we'll hear argument?

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MS. COONTZ:

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THE COURT:

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MS. COONTZ:

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THE COURT:

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That is correct, Your Honor.
Do you anticipate presenting testimony?
No, we don't, Your Honor.
Very well.

How does the City propose to

proceed?
MR. HERZIG:

Your Honor, the City is fine with the

manner proposed by the plaintiffs.
THE COURT:

And the City will argue after the State

defendants have argued?
MR. HERZIG:

Yes, Your Honor.

And we have no one to

provide testimony.
THE COURT:

Very well.

And at the conclusion of those

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arguments, the Court would anticipate a reply from the

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plaintiffs.

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I would propose that you proceed accordingly, Counsel.

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MR. GERHARDSTEIN:

Thank you, Your Honor.

May I

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approach?

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THE COURT:

Yes.

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MR. GERHARDSTEIN:

Thank you.
Judge, Jennifer Branch, and Jackie

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Gonzales Martin, and I are here on behalf of James Obergefell

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and John Arthur.

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men are in love, and they've been life partners for more than

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20 years.

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The marriage between same sex couples are legal in Maryland but

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their marriage is not recognized in Ohio.

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The evidence is going to show that these two

James and John were recently married in Maryland.

Why is that?

Because Ohio doesn't recognize any

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marriages between same sex couples under Article 15, Section 11

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of the Ohio Constitution and Ohio Revised Code 3101.01(C).

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Now, had James and John been an opposite sex couple

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and gone to Maryland, Ohio would recognize their Maryland

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marriage.

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to them, and only to them, the Ohio Constitution, Article 15,

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Section 11 and Ohio Revised Code 3101.01 violate the Equal

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Protection Clause of the United States.

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So they filed this lawsuit alleging that as applied

We're going to show that under any level of review

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Ohio has no legitimate state interest that supports the burden

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on these two men that they experience in terms of their First

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Amendment rights, their privacy rights, as they live and

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receive or don't receive benefits that they would have received

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as a married couple recognized by this state.

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As we set out in our hearing memorandum, Judge, the

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facts about gay people were thoroughly explored by Judge

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Spiegel just across the hall, in the Equality Foundation case

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almost 20 years ago.

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THE COURT:

And before we get to that, if this Court

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were to find, as you argue, that the Ohio law as applied to

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these two plaintiffs is violative of the equal protection

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guarantees of the United States' Constitution, would not that

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ruling apply to also similarly-situated people?

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MR. GERHARDSTEIN:

Well, there would be -- first of

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all, we're asking for a TRO, so it is a ruling that there would

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be a substantial likelihood of success.

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have some precedential value that a TRO generally does not.

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And then we'd have time, as the State has asked for, for a full

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presentation and a preliminary injunction hearing, should there

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be any additional facts that are necessary.

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would probably have more precedential value.

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And it would certainly

And that ruling

So, I mean, we aren't trying to rush a really

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important decision.

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these two men, one of which is dying, as I will explain

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shortly.

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THE COURT:

We are trying to protect the interests of

Is a temporary restraining order a final

appealable order?

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MR. GERHARDSTEIN:

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THE COURT:

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No.

And are the parties and the Court in a

position to continue in effect by mutual agreement a temporary

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restraining order, if one were issued, such that we would then

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not be rushed to have the full-blown trial?

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MR. GERHARDSTEIN:

Plaintiffs would be willing to,

Your Honor.

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THE COURT:

Very well.

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MR. GERHARDSTEIN:

So as I was saying, more than 20

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years ago, in Equality Foundation, Judge Spiegel made findings

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that are very relevant to this case; and then again, just a

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couple of years ago, Judge Webster in the Prop 8 trial, made

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similar findings.

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And very briefly, they come down to this.

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in those cases that sexual orientation is established at an

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early age; that is not amenable to change; that gay people make

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stable and loving partners, at least as stable and loving as

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opposite sex people; that gay people are as effective as

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parents as opposite sex people, and we also learned that

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there's been a history of discrimination and even violence

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against gay people.

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against gay people has included passage of laws designed simply

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to hurt them.

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We learned

We've learned that the discrimination

So those laws do not have a legitimate governmental

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purpose.

Most of the facts, for the purposes of this motion

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for a TRO, are stipulated.

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their responses, the City doesn't challenge the plaintiffs'

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central premise at all and doesn't defend what it calls Ohio's

If you look at our pleadings and

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discriminatory ban on same sex marriages.

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And the State cannot overcome plaintiffs' central

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premise, and that's this.

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another state under circumstances that are not allowed under

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Ohio law, like a marriage of first cousins, then Ohio will

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nonetheless recognize that opposite sex couples' marriage when

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that couple returns to Ohio and seeks recognition.

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gay couple gets married where same sex marriage is legal, Ohio

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will not recognize that marriage.

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If an opposite sex couple marries in

But when a

We say that violates the Equal Protection Clause.

The

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State says Ohio has a law prohibiting same sex marriage, so it

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doesn't have to recognize the Maryland law.

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that says if first cousins come before a proper official and

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says, as first cousins we want to marry, they're not going to

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let them marry either.

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But Ohio has a law

So we do have comparables here.

And the State goes on to argue that there's an

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expressed prohibition on same sex marriage, and that

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distinguishes it from, in their eyes, the situation of first

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cousins.

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because in the Windsor case, the U.S. Supreme Court stated that

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if the same sex couple is married in a state where same sex

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marriage is legal, that the federal government then has to

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recognize that same sex marriage on an equal basis with

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opposite sex marriages.

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But that argument is no longer viable after Windsor,

And that was required by the principle of equal

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protection, not full faith and credit.

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of time in their brief saying, well, there's a provision of the

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federal DOMA law that allows states to continue not to

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authorize same sex marriages.

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The State spent a lot

That's right, and not to recognize other states' same

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sex marriages.

That's right, as a provision of full faith and

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credit.

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Windsor, as applied to these two plaintiffs, if Ohio is going

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to go ahead and recognize opposite sex marriages that do not

We're not arguing full faith and credit.

Under

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meet Ohio marriage criteria, then it has to recognize same sex

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marriages that do not meet Ohio marriage criteria.

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THE COURT:

So if the State of Ohio were to pass

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legislation that it's going to recognize only these categories

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of marriage and one of them includes -- they're going to only

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except these categories of marriages and same sex marriage is

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not on that list and they apply that uniformly, can states

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prohibit same sex marriage?

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MR. GERHARDSTEIN:

Well, first of all, let's

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understand that we're not challenging Ohio's right to designate

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what marriages may be celebrated in this state yet.

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this point we're simply talking about recognizing marriages

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from other states where they're legal.

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has made a pretty blanket rule that accepts all of the

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marriages from other states, regardless of whether they would

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meet the technical requirements of a marriage in Ohio.

I mean, at

And at this point, Ohio

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So if Ohio chose to try to conform all of that and

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take away the differences, then we'd probably be back in court

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saying, well, you're only doing that in order to continue to

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discriminate.

But we don't have that case yet either.

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No one in this courtroom yet has challenged the notion

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that there really are differences between same sex marriage and

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opposite sex marriage that can't be explained except by saying

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that they don't want to treat them the same.

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cousins can't be married in Ohio, can be married in other

I mean, first

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states; underage women can't be married in Ohio, can be married

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in other states -- and we could provide a chart about all of

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the differences at some point if the Court wants.

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come back to Ohio and they are -- all of those opposite sex

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marriages are recognized, the same sex marriages are not.

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After Windsor, you can't do that.

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THE COURT:

But they

And that's because the law of the State of

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Ohio, since its formation, or at least 1994, was that the

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validity of a marriage is determined by the laws of the

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jurisdiction in which the marriage was solemnized.

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MR. GERHARDSTEIN:

That's correct.

And actually,

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that's still the law in Ohio, except for this exception they're

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trying to carve out that we say you can't carve out under

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Windsor anymore.

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THE COURT:

And the exception that they're trying to

carve out, you say they can't carve out because there is no

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legitimate state interest in discriminating against same sex

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marriage?

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MR. GERHARDSTEIN:

As compared to opposite sex

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marriage.

And it is really important that we're saying that

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because, again, the Supreme Court has recognized that Ohio can

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continue to not authorize same sex marriages to be celebrated

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in this state.

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The issue is what are they going to do about opposite

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sex marriages celebrated outside of Ohio that don't conform to

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Ohio law and then they get recognized here versus same sex

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marriages that are similarly situated, the Equal Protection

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Clause does not recognize a state interest, and we learned this

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in Windsor, between those two types of marriages.

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state says we're going to recognize the marriage, then the

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Supreme Court says equal protection applies.

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THE COURT:

Once the

So your argument is not that Ohio has to

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authorize same sex marriage in Ohio, but your argument is that

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Ohio has to recognize another state's law that permits same sex

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marriage?

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MR. GERHARDSTEIN:

Yes, because of the unique way that

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Ohio already recognizes another state's marriages, which may

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not conform to Ohio law.

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That's exactly it, Judge.

And we're here on a TRO because one plaintiff, John

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Arthur, is dying.

The evidence is going to show that he has

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days or, at most, weeks left to live.

When he dies, the final

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record of his life in Ohio will be his death certificate.

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Unless this court acts, the death certificate will not reflect

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his marriage at all and will not reflect that his husband,

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James Obergefell, is his surviving spouse.

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Now the State responds saying that the death record is

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no big deal, and they say procedures exist that allow us to fix

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it later.

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case law -- which we've been checking since we got the State's

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brief -- that makes it clear that the intent behind any

But it is not that simple.

There actually is some

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procedural rules to fix a death or a birth certificate is just

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that -- they're fixing errors and not legal issues.

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So if you look at En re Marriage License for Nash at

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2003 Westlaw 23097095, it's an Ohio Court of Appeals 11th

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District decision from 2003, and in that case, the court said

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that the procedures the State cited to can't be used to fix a

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marriage license that -- in such a way that it would permit a

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transsexual to marry, in violation of what that court

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determined to be Ohio law.

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So they're looking at these as ministerial errors that

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can be fixed and not as legal errors, which is what we've got

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before the court.

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And you could also look at State ex rel. Stark versus

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Zipf, Z-I-P-F, 172 Ohio State 462, a 1961 case in which a widow

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sought to have the cause of death on a death certificate

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changed so that suicide would be removed.

And the Court said,

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you know, these procedures are not present to fix something as

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substantial as whether it is a suicide or not, and said that

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they're really only there to deal with situations where you've

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got a mistake of another type of fact.

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If you really look at the value of a death certificate

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under Ohio law, you learn very quickly under 2105.35 that it's

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prima facie evidence of everything related to the death.

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is the official state record of that.

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the country, if you look at 42 ALR 1554.

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So it

And that's true across

And then even after there's any dispute or any inquiry

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into the cause of death and into the facts surrounding the

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death that one might use the death record for in the short

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term, after a number of years, 50 years, the director of the

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public -- of the State Department of Public Health turns all of

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those records over to the Ohio Historical Society, and then the

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death record becomes part of the genealogical history of

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everybody in Ohio.

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right, that's how the dead person is remembered for eternity as

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a citizen of Ohio.

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And the bottom line is, if you don't get it

And this is a very serious matter.

The City, by the

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way, appears to disagree with the State as to how easily this

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matter can be resolved just by having bureaucrats meet, and

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they make it clear that this court must act, at a minimum, to

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relieve the defendant, Doctor Jones, of the time constraints

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that exist in order to allow accurate completion of the record

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through due litigation before this court.
So without action by this court, there will be no

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error on the death certificate for the State to fix because it

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will be completed according to existing law, and that will

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include having a blank next to Marriage and having a blank next

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to Surviving Spouse.

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So an injunction must issue to at least stop the

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deadlines imposed on Defendant Jones from preventing accurate

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relief in this case.

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Properly recording the marriage of these men on this

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final and important document is itself a really important goal

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for our clients; but equally important, as you will hear from

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James Obergefell shortly, is the emotional burden these men

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feel during every moment of John's last days while they are

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rejected as married by their own state.

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At the preliminary phone conversation that this court

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held, you asked for some additional facts and law about

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irreparable harm, and our filing this morning provided

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substantial law, especially about the value of any deprivation

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of a constitutional right.

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helpful to hear from Mr. Obergefell himself as to the harm that

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he and his partner feel and experience as a result of his

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impending death without this being resolved.

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But I think it bears -- it's

So, Judge, what I would ask is that we take some
testimony from Mr. Obergefell, and then I trust that after the

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hearing and after you review all of the evidence and you study

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the growing precedent in favor of equal treatment for gay

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people and same sex couples that you will grant a TRO as

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proposed, enjoining the defendants from enforcing Article 15,

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Section 11 of the Ohio Constitution and Ohio Revised Code

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3101.01(C) as applied to these plaintiffs.

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THE COURT:

Can I ask you a question before we get to

testimony?

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MR. GERHARDSTEIN:

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THE COURT:

Sure.

Who would the court order to prepare the

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death certificate to say, Married Under Maryland Law, Surviving

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Spouse Under Maryland Law?

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MR. GERHARDSTEIN:

You would order Doctor Camille

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Jones to do that, but you also -- the State's a necessary

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party, number one, because as applied to these plaintiffs we're

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saying that contrary law is unconstitutional, and I had to give

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notice to the Ohio Attorney General under state law for that.

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And Doctor Camille Jones needs to have the reassurance that the

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State, which supervises her in this work, has also been ordered

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to comply with this Court's directive.

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these defendants to accomplish that.

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THE COURT:

So you're ordering

But I thought a death certificate was

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prepared by a medical examiner or a doctor or a citizen out

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there.

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MR. GERHARDSTEIN:

There is -- the initial step is

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that certain people, funeral home directors, doctors, coroners,

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prepare, and then they also rely on citizens, like

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Mr. Obergefell, for a lot of the information, but it is Doctor

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Camille Jones that has to receive it and make sure that it is

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accurate.

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put himself down as the surviving spouse and listed John as

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married, she can't accept it.

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the problem we're trying to resolve here.

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So if she knowingly knows that Mr. Obergefell has

THE COURT:

So we have a problem, and that's

And once the Court issues an order

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requiring her to be restrained from accepting a death

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certificate that doesn't list Mr. Arthur as, or whomever it is,

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as Married Under Maryland Law, and Surviving Spouse Under

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Maryland Law?

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MR. GERHARDSTEIN:

That's correct.

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THE COURT:

Thank you.

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If you're ready, I am prepared to hear testimony.

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MR. GERHARDSTEIN:

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Okay.

Plaintiff calls Mr. James

Obergefell.
THE COURT:

If the gentleman would be willing to

approach.

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(Witness complied.)

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THE COURT:

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And as you arrive, if you would pause and

raise your right hand for the oath to tell the truth.

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JAMES OBERGEFELL

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being first duly sworn, was examined and testified as follows:

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THE COURT:

Good afternoon.

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THE WITNESS:

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THE COURT:

Hello.

You may proceed, Counsel.

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DIRECT EXAMINATION

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BY MR. GERHARDSTEIN:

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Q.

State your full name, please.

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A.

James Obergefell.

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Q.

And do you reside in Cincinnati?

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A.

I do.

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Q.

Are you married?

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A.

Yes, I am.

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Q.

To whom are you married?

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A.

John Arthur.

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Q.

Where did you get married?

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A.

Glen Burnie, Maryland.

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Q.

And when did you get married?

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A.

July 11th, 2013.

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Q.

I'm going to show you what's been previously marked as

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Plaintiff's Exhibit 1.

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you there?

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A.

I do.

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Q.

Thank you.

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Do you have an exhibit pile in front of

Can you tell me what that is?

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A.

That is our certified marriage license from the state of

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Maryland, Anne Arundel County.

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Q.

And that reflects that under Maryland law you were duly

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married and your marriage is recognized under Maryland law?

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A.

Yes, it does.

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Q.

So you are married to John Arthur, right?

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A.

Correct.

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Q.

You've read the complaint that was filed in this case,

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right?

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A.

I did.

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Q.

Are the facts in the complaint accurate and true?

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A.

Yes, they are.

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Q.

You and John both filed declarations in support of the

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motion for a temporary restraining order, right?

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A.

Correct, we did.

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Q.

Are the facts stated in your declaration true and accurate?

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A.

Yes.

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Q.

Now, because we've done that work already and we're here on

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a temporary restraining order, I'm not going to ask you to

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repeat everything in the declaration.

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tell the Court, just briefly, how long you and John have been

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together and what the relationship has meant to the two of you.

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A.

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been my world.

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committed relationship since that time.

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are married.

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married.

But I would like you to

We've been together since December 31st, 1992, and it's
It's been my life.

Our families love us.

We've been committed in a
And, in our eyes, we

Our families consider us

Our families and friends treat us as a committed

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married couple.

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Q.

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Why is it so important to be married?

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A.

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get married, no matter how long they've been together.

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our country, our state, to recognize our relationship and to

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say yes, you matter, you were married; you have the rights, the

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benefits and the responsibilities that go with that, just as

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any other couple.

Now you've been a couple and lived together for 20 years.

Well, I think that's the same for any couple who decides to
We want

With John near death, it was very important

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to us to have our relationship formalized and recognized by our

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government.

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Q.

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file a joint tax return, right?

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A.

Correct.

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Q.

But what brings you in to court today is something more

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urgent, right?

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A.

Yes.

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Q.

By the way, has the City of Cincinnati done anything

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symbolic to recognize you as a couple and to recognize your

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marriage?

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A.

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Arthur and Jim Obergefell Day, in honor of our marriage.

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Q.

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present in the record as Plaintiffs' Exhibit 2?

25

A.

Now, some of those benefits are economic, like the right to

They have.

They have proclaimed July 11th, 2013, John

And is a copy of that proclamation signed by Mayor Mallory

It is.

20

1

Q.

John is not with you here today in the courtroom?

2

A.

No, he is not.

3

Q.

Why is that?

4

A.

John was diagnosed with ALS two years ago, and he is now

5

confined to bed unable to go anywhere without proper medical

6

assistance.

7

Q.

You signed his declaration using a Power of Attorney?

8

A.

Yes, I did.

9

Q.

Was he fully engaged in the preparation of that declaration

10

and did he help draft it?

11

A.

12

his approval.

13

Q.

14

the record, we do need to have some sense of how imminent, if

15

you know, John's passing might be.

16

A.

17

the R.N. with our hospice service pulled me aside after their

18

visit with John to tell me I should start preparing because she

19

believes the end is close.

20

Q.

21

Death in Ohio?

22

A.

I have.

23

Q.

And is a copy of that form present in front of you as

24

Plaintiffs' Exhibit 3?

25

A.

Absolutely.

Did he review it?

He helped draft it.

He reviewed it and gave

And I don't want to belabor this, but for the purposes of

I would say days, maybe weeks if we're lucky.

Last week

Have you seen the form that's used for a Certificate of

It is.

21

1

Q.

2

Time of Death.

3

Now there's a box Number 10 where it says Marital Status at

Did I read that correctly?

4

A.

Yes, you did.

5

Q.

And if this court does not act, how will that box be filled

6

in?

7

A.

Unmarried.

8

Q.

And the next box -- and just to finish that thought, how

9

should it be filled in?

10

A.

Married.

11

Q.

And the next box says, Surviving Spouse's Name.

12

court doesn't act, how will that box be filled in?

13

A.

It will remain blank.

14

Q.

How should it be filled in?

15

A.

James Obergefell.

16

Q.

So if you would, just tell the Court how the problem with

17

the death certificate and recognition of your marriage by the

18

state of Ohio harms you and John.

19

A.

20

through it.

21

Q.

That's okay.

22

A.

Your Honor, during our 20 years together, John and I have

23

taken care of each other during good times and bad, for richer

24

and in poorer, and in sickness and in health.

25

If this

My name should be there.

And I have to read this; otherwise, I will probably not get

Go ahead.

For the past two years, I've had the honor of caring for

22

1

him as ALS has stolen every ability from him.

2

goes by that he doesn't apologize for what he feels he's done

3

to me by getting sick.

4

anything to thank me or assuage his feelings of guilt, and we

5

all know that there are times when words aren't enough.

6

need to do something.

7

Rarely a day

He is physically incapable of doing

We

What he wants is to die knowing that I will be legally

8

cared for and recognized as his spouse after he is gone.

9

would give him peace, knowing he was able to care for me as his

10
11

That

last thank you.
When I learned that John would forever be listed as

12

unmarried on his death certificate nor would my name be listed

13

as his spouse, my heart broke.

14

and as a citizen of Ohio should reflect and respect our 20-year

15

relationship and legal marriage.

16

it is hurtful for the rest of time.

17

John's final record as a person

Not to do so is hurtful, and

I would like you to look at this picture.

It's a

18

photograph of our portrait we had painted about five years into

19

our relationship.

20

took in Spring Grove Cemetery.

21

reasons.

22

But it is also where John's mother's family plot is located.

23

John has always planned to be memorialized on that family plot,

24

and his plan changed to include me.

25

that interment rules put in place by his grandfather and his

It's painted from photographs the artist
Why Spring Grove?

A couple of

It's a beautiful, peaceful place that we both love.

However, we later learned

23

1

grandfather's siblings at the time the property was purchased

2

limited burials and memorials to descendants and married

3

spouses only.

4

Spring Grove interprets the interment rules and there is no

5

guarantee that they will recognize our marriage and allow me to

6

be there as well if Ohio does not.

7

John can be memorialized on the family plot, but

We've been beside each other for more than 20 years, and we

8

deserve to be beside each other in perpetuity.

We want the

9

option to do that in the family plot in Spring Grove, but that

10

should not require keeping John's remains in limbo or having

11

his life go unmarked for an indefinite period of time.

12

It is impossible for me to explain how or describe why, but

13

getting married changed everything.

14

feels different.

15

more valued.

16

We feel better.

John's life will end soon.

We feel different.

Life

We feel more connected and

I know that, and he knows that.

17

What a horrible thing to look at your spouse at the end of your

18

life and have your last thoughts be, I love you, Jim, but I

19

still can't legally call you husband in a state where we built

20

our life together, paid taxes, and were productive members of

21

society.

22

for the way that you took care of me.

I'm sorry I couldn't take care of you as a thank you

23

I will have to live with that the rest of my life, knowing

24

that those were his last thoughts and not, I love you, Jim, my

25

husband.

24

1

We very much want a ruling that gets clear direction on the

2

death certificate.

3

the details of death, it will be much more because, Judge, it

4

will state the reasons for your order, and that is even more

5

important.

6

That ruling will not just be an order about

Every day John and I live without equal protection.

Every

7

day we are treated differently than opposite sex couples who go

8

to other states and are married, and that denies us both

9

dignity and justice.

To hear a federal judge in Ohio say to me

10

and say to John before he dies that our marriage is equal and

11

that it will be recognized would mean that we can stop living

12

in uncertainty and inequality, allow us to focus solely on

13

John's quality of life and permit us to fully and truly end

14

John's life together as a married couple.

15

Each day without that right is a day too long.

Everyone

16

deserves to die with dignity.

17

unrecognized by our home state and to allow me, his spouse, to

18

remain in legal limbo is to cause John to die without dignity.

19

There is no reparation for the harm that causes us.

20
21

To allow our marriage to remain

Thank you.
MR. GERHARDSTEIN:

Thank you, Judge.

If you have no

22

further questions, I'll reserve further argument until after we

23

hear from defense.

24

THE COURT:

25

MS. COONTZ:

Adverse parties wish to inquire?
No, Your Honor.

25

1

MR. HERZIG:

No, Your Honor.

2

THE COURT:

3

THE WITNESS:

4

(Mr. Obergefell resumed his seat at counsel table.)

5

MR. GERHARDSTEIN:

You can step down sir.
Thank you.

Judge, for the record, the picture

6

he showed you was Exhibit 4, and I'll move the admission of

7

Exhibits 1 through 4.

8
9

THE COURT:

Any objection to the admission of

exhibits?

10

MS. COONTZ:

No, Your Honor.

11

MR. HERZIG:

Not for purposes of today, Your Honor.

12

THE COURT:

13
14

Those exhibits are admitted into evidence.

(Plaintiffs' Exhibit Numbers 1 through 4 were admitted into
evidence.)

15

THE COURT:

As I understand it, the plaintiff had made

16

its opening portion of argument and has presented testimony and

17

is now prepared to pause and permit the respondents to respond;

18

is that right?

19

pausing?

Is that where we are, the plaintiff is now

20

MR. GERHARDSTEIN:

21

THE COURT:

22

Yes, Your Honor.

Very well.

On behalf of the State

defendant.

23

MS. COONTZ:

24

May it please the Court, counselors, Mr. Obergefell,

25

Thank you, Your Honor.

I'm here today on behalf of the Ohio Attorney General Mike

26

1

DeWine and Governor John Kasich.

2

and it's a hard one, but we have to keep in mind why we're here

3

today -- as plaintiffs' motion for a temporary restraining

4

order only.

5

This is a sympathetic case

Plaintiffs challenge is an applied one; that is, that

6

Article 15, Section 11 of the Ohio Constitution and Ohio

7

Revised Code 3101(C) as applied to them through a death

8

certificate is unconstitutional because they were married in

9

Maryland and a perspective death certificate will not reflect

10

that marriage.

11

This court can only consider a temporary restraining

12

order that will prevent the specific irreparable harm that

13

plaintiffs allege.

14

That's it.

Now plaintiffs are before this court asking it to

15

effectively, but only temporarily, do something that no other

16

federal court has done in an overnight temporary restraining

17

order, and that is strike down a state statute and

18

constitutional provision which defines marriage as a union

19

between a man and a woman.

20

This court cannot go out on a legal limb, and it

21

doesn't need to because, as the Court well knows, there are

22

four factors that the plaintiffs are required to establish for

23

the issuance of a temporary restraining order, and perhaps the

24

most important factor in this case is the lack of irreparable

25

harm.

In fact, it is dispositive to plaintiffs' motion.

27

1

By statute, a death certificate can be changed;

2

therefore, the harm that plaintiffs allege, an omission on the

3

death certificate, an omission related to marital information

4

is, by statute, reparable.

5

an error or an omission on a death certificate can be

6

corrected.

7

the law allows this change.

8

THE COURT:

9

3705.22 specifically provides that

The plaintiffs cannot prove irreparable harm when

What if the plaintiff dies in the

meantime?

10

MS. COONTZ:

11

THE COURT:

I'm sorry?
What if the plaintiff dies in the meantime

12

and then we go back and fix the death certificate, if that's

13

what the law requires?

14

irreparable harm?

15
16

MS. COONTZ:

Has not that dead plaintiff suffered

The harm being that the plaintiff died

with the death certificate that did not reflect their marriage?

17

THE COURT:

18

MS. COONTZ:

Correct.
Your Honor, in that situation it's the

19

knowledge that we're talking about.

20

to -- if he passes away --

21

THE COURT:

22

MS. COONTZ:

The plaintiff is going

He's going to pass away.
When he passes away, he's not going to

23

know what his death certificate says.

24

does.

25

certificate says.

Unfortunately, nobody

Nobody dies with the knowledge of what their death
And if, ultimately, a death certificate is

28

1

incorrect, Ohio law carves out a way to fix it, and that law is

2

being applied equally, as it would be applied to any other

3

decedent in the state of Ohio.

4

Further, the relief sought will not repair or prevent

5

that harm.

6

restraining order which, by its very nature, is temporary.

7

could dissolve.

8

injunction.

9

permanent injunction stage.

10
11
12
13

The remedy that plaintiffs seek is a temporary
It

It could be changed at a preliminary

It could be appealed.

It could change at a

It will be years before this issue

reaches finality.
THE COURT:

I didn't think a TRO was a final

appealable order.
MS. COONTZ:

If the TRO would go to a preliminary

14

injunction stage, then that preliminary injunction would be

15

appealable, Your Honor, is what I'm referring to.

16
17
18

So essentially, understandably, plaintiffs want this
finality, but this order is not going to give it to them.
We need to put the brakes on.

We need a thorough,

19

deliberate briefing and evidentiary schedule for this matter.

20

And an overnight temporary restraining order when there is no

21

evidence of irreparable harm is not appropriate in this

22

circumstance.

23

THE COURT:

And just to divert you, what sort of path

24

forward do you see on getting to a preliminary injunction

25

hearing such that a final order, appealable order, could be

29

1
2

reached?
MS. COONTZ:

Well, Your Honor, the Court -- in

3

answering that question, the Court raised a good question with

4

respect to the injunctive relief that can be ordered in this

5

situation with respect to the State defendant, with respect to

6

the governor and the Ohio Attorney General's Office.

7

Mr. Gerhardstein correctly stated that it is the duty

8

of the Attorney General to defend statutes, to defend

9

constitutional amendments.

An injunction against the governor

10

and the Attorney General's Office won't give the plaintiffs the

11

relief that they seek.

12

briefed, with evidence on the record, with the statute and the

13

constitutional amendment -- or defendant is the way to handle

14

this particular situation.

A declaratory judgment action, fully

15

So as far as preliminary injunctive relief, it is

16

questionable whether this court could order any injunctive

17

relief as against the governor and the Attorney General that

18

would prevent the irreparable harm that the plaintiffs allege

19

absent the injunction.

20

Further, the balance of harm in this situation weighs

21

in favor of, once again, slowing down this case.

While we

22

understand that there's the possibility that the plaintiff

23

could die in the meantime, what we're talking about is the

24

recognition of one marriage, because this isn't a class

25

challenge, versus a constitutional amendment that was passed by

30

1

the Ohio voters.

2

litigate the validity of that particular constitutional

3

amendment is what is appropriate in this case.

4

A careful and deliberate briefing process to

THE COURT:

So you're talking about two months of

5

testimony as to whether there's a legitimate State purpose to

6

discriminate against same sex marriages?

7

MS. COONTZ:

Your Honor, no, I'm not suggesting that

8

this is something that has to be protracted, but the Court

9

raises a good point, as well as the cases cited in

10

Mr. Gerhardstein's brief, that all of the cases cited were not

11

the result of a temporary restraining order.

12

rather, protracted litigation.

13

position is not that this has to be protracted litigation, but

14

it is certainly not something that can be decided overnight.

15

Once again, the irreparable harm -- there's no evidence of

16

irreparable harm that would justify the granting of a temporary

17

restraining order, especially for temporary relief.

18

what is here before the Court today.

19

They were,

I am not, you know, the State's

That is

We understand that the plaintiffs want a ruling.

They

20

want a ruling so that they can remove this legal limbo that

21

Mr. Obergefell referred to.

22

going to end that legal limbo.

23

The Court's ruling today is not

So because the plaintiffs have not established that

24

they will suffer irreparable harm absent this temporary

25

restraining order, which again is the only issue that's before

31

1

the Court today, temporary injunctive relief is not appropriate

2

in this particular situation.

3

Thank you.

4

Does the Court -- I'm sorry.

5

Does the Court have any

further questions?

6

THE COURT:

Not at this time.

7

MS. COONTZ:

Thank you.

8

THE COURT:

Mr. Herzig?

9

MR. HERZIG:

Thank you.

May it please the Court, counsel, Aaron

10

Herzig for Doctor Camille Jones in her official capacity with

11

the City of Cincinnati.

12

Your Honor, I'll be brief.

We are in this case, essentially an instrumentality of

13

a state scheme for vital statistics recording and reporting.

14

Doctor Jones is the local representative of the state registrar

15

who ultimately keeps and holds these records.

16

the middle.

17

sitting in the middle of this dispute and it does leave us

18

asking for guidance as to whether she has to comply with

19

current Ohio law or, if that law is unconstitutional, whether

20

she can comply with plaintiffs request to be listed as married

21

on the death certificate.

It puts us in

If there were three tables, I would be the one

22

But we don't particularly have a dog in the fight with

23

regard to the substantive issue of the constitutional amendment

24

and the statute itself.

25

Cincinnati, over the last decade or so, indicate that the City

I think the actions of the City of

32

1

is very sympathetic to the idea that Ohio should be a place

2

where same sex marriage is permitted.

3

testimony, there was a proclamation given specific to this

4

marriage declaring it their day in the City of Cincinnati on

5

July 11th, specifically referring to the fact that the same sex

6

and other lesbian, gay, bisexual couples should have the same

7

rights in every state as they do in the states where they're

8

allowed to marry.

As plaintiffs adduced in

9

But as it stands right now, Doctor Jones is compelled

10

to comply with Ohio law and risks either being in violation of

11

her duties or potentially criminal sanctions, which we talked

12

about in our brief, if she doesn't comply.

13

to this Court for guidance on those issues.

14

THE COURT:

And so we do look

Why can't you ensure that the death

15

certificate says, under Status, Married according to Maryland

16

law?

17

MR. HERZIG:

Your Honor hits on an interesting

18

solution and one that would, in fact, be accurate and I think

19

keep Doctor Jones out of some of the issues that we talked

20

about.

21

treat that when it arrives with them.

22

ultimately the individual under the director of health who has

23

responsibility for the vital records system.

24

that's an order that our client would comply with.

25

I don't know how the state registrar's system would

THE COURT:

The state registrar is

But certainly,

So what is the process by which a death

33

1

certificate will be prepared for Mr. Arthur?

2

MR. HERZIG:

My understanding, based on the Ohio

3

Revised Code and the Ohio Administrative Code, is a preliminary

4

death certificate is created usually by a funeral director or a

5

physician.

6

hours to have a physician determine the cause of death and put

7

that medical information on there.

8

within five days, file that preliminary death certificate with

9

the medical information with the vital statistics registrar

10

If the funeral director doesn't do it, they have 48

They then are supposed to,

here in Cincinnati.

11

If they don't -- if they don't receive a death

12

certificate within five working days of the death, the

13

registrar, under the Administrative Code, is supposed to go out

14

and investigate that and essentially make the filing occur at

15

that point.

16

There are situations I think where that the time

17

limits can be extended and there are times when errors can be

18

corrected, as both parties have explained, but that's the basic

19

idea.

20

THE COURT:

So the funeral director prepares the

21

preliminary death certificate and fills out the box as to

22

status and surviving spouse, and that funeral director presents

23

it to the local registrar and she records it?

24
25

MR. HERZIG:

Yes, Your Honor.

My understanding is

there's an electronic system that the funeral director can

34

1

access and fill that out electronically in the first instance,

2

although they do bring a paper copy to the vital statistics

3

registrar with the complete medical information.

4

information is based on what they call the informant, the

5

individual who talked to the funeral director and would explain

6

the boxes, how the boxes should be filled out.

7

THE COURT:

The

And if a funeral director filled out the

8

boxes on Mr. Arthur's perspective death certificate Married

9

Under Maryland Law; Surviving Spouse, Mr. James O, Under

10
11

Maryland Law, would she be able to record it?
MR. HERZIG:

I think under the Ohio Constitution and

12

the 3101.01, if she knew that that was being presented to her

13

as trying to give affects to a marriage outside of Ohio that is

14

not legal in Ohio, that is not recognized by Ohio, I'm not sure

15

that she could do that.

16

I will say that my understanding is, of the typical

17

situation, this information isn't checked.

If someone has a

18

name that is not -- where it is not easy to tell if it is a man

19

or a woman -- I'm Aaron and I've spent half of my life telling

20

people at StarBucks that it is two A's, not E-R-I-N.

21

understand the issue.

So I

22

Typically, our registrars don't even look.

They're

23

looking to make sure that the medical information is correct

24

and if it needs to be referred to the coroner for further

25

investigation; otherwise, they send it up to the State and I

35

1

don't think the State gives any particular directive about

2

ensuring the accuracy of that other information.

3

So were it not for the fact that we were being

4

presented with someone saying absolutely, recognize a same sex

5

marriage, we might not know that we had recognized one.

6

THE COURT:

And do you think putting on the death

7

certificate Married Under Maryland Law is an Ohio recognition

8

of same sex marriage?

9

MR. HERZIG:

10

or certainly didn't intend to.

11

statement, an accurate statement, that this marriage was under

12

Maryland law.

13

interpret that document or misunderstand it but, no, I don't

14

think that in itself would be a recognition.

15

No, Your Honor, I don't think I said that
I think that would be a

The concern would be how the next person might

THE COURT:

And what is the timing that compels your

16

client, plaintiff may have referred to, in order to take your

17

time pressure off on recording the death certificate so that

18

there's enough time to make sure that it is correct?

19

MR. HERZIG:

Your Honor, the Administrative Code talks

20

about there being five working days to file the death

21

certificate before the vital records registrar would go out and

22

investigate why it hasn't been filed.

23

how long that process takes thereafter, but the Administrative

24

Code calls for five working days from death to filing.

25

THE COURT:

So I don't know exactly

So a funeral director fills out a death

36

1

certificate, files it with vital statistics within five days.

2

What does the registrar do?

3

MR. HERZIG:

Is there any affirmative act?

My understanding, Your Honor, is the

4

registrar would then check to make sure that the basic

5

information is there and then send -- I believe the original

6

goes to the State and a copy stays here.

7

information into the same electronic database, but paper and

8

electronic go hand in hand.

9

THE COURT:

They also enter

And the City, the City of Cincinnati takes

10

the position in this litigation that it will not defend the

11

propriety of the same sex marriage ban in Ohio?

12

MR. HERZIG:

That's correct, Your Honor.

Not

13

dissimilar from the Obama administration's position with the

14

federal DOMA.

15

defend it.

16
17

They continue to enforce it, but they do not

THE COURT:

Very well.

Have you had a chance to

present your position?

18

MR. HERZIG:

I have.

19

THE COURT:

Thank you.

20

Typically we would now put it back for a reply, if

21

any.

22

Thank you, Your Honor.

Typically, when I ask lawyers, Do you want an opportunity

to reply, they say yes.

23

MR. GERHARDSTEIN:

24

THE COURT:

25

MR. GERHARDSTEIN:

Yes, Your Honor.

Very well.
Thank you for your thoughtful

37

1

questions, Judge, and thanks for making this time available

2

today.

3

There is no way, with all due respect, that Married

4

Under Maryland Law satisfies the plaintiffs in this case,

5

legally or emotionally and in terms of repairing the harm.

6

That is simply a reflection of what truly does exist -- they

7

are married under Maryland law.

8

should be married under Ohio law, given the equal protection

9

violation, and to simply --

10

THE COURT:

But they're here because they

So you're looking to this court to strike

11

down the amendment to the Ohio Constitution which resulted from

12

a statewide vote saying that, in Ohio, we're not going to

13

recognize or celebrate same sex marriages?

14

MR. GERHARDSTEIN:

I am looking to this court to

15

enjoin, as applied to these two, and then to fully explore it

16

so that this isn't done on a wrong basis, the disparate

17

treatment of opposite sex couples married in other states and

18

same sex couples married in other states where those marriages

19

are both legal in those states but not legal in Ohio.

20

Ohio says, I am going to take all of the opposite sex

21

couples and recognize them as valid; I'm not going to do that

22

for same sex couples.

23

That deserves a merits ruling.

Now, I'm all about trying to make sure that the record

24

is complete enough so that it matches the seriousness of what

25

we're talking about.

It's unfortunate, very unfortunate, that

38

1

one of the plaintiffs is near death.

And we have just heard

2

enough of a difference of opinion between the two defendants

3

about what happens with respect to the death certificate that

4

that in itself suggests that the Court has to act to put it all

5

on hold.

6

order, and that can only come with some sort of acknowledgment

7

that there's a likelihood of success on the merits.

And that comes in the form of a temporary restraining

8

So we are looking to take baby steps.

We do want a

9

temporary restraining order to put this situation into

10

perspective.

11

address the harm that these two men have suffered.

12

That order will, in and of itself, begin to

And I heard the State argue very passionately that

13

there's no harm here.

14

we've cited that indicate that a day that you live with a

15

constitutional violation is irreparable.

16

day back.

17

however it comes back, even if it is just saying I think your

18

marriage will be recognized because you've established that

19

there's a likelihood of success.

20

But there are many, many cases that

You can't have that

They can't have their recognition of marriage,

That's as much as we can do for the Court right now

21

for these gentlemen.

And that would be very helpful, and it

22

would begin to remediate this harm that they're suffering.

23

is both.

24

certificate, which don't seem to be able to be solved without

25

some action, and it's the daily action of their lives knowing

It

It is the technical problems of the death

39

1

that they can't expect that this will change.

2

think given the protection violation, they should have the hope

3

of knowing that this can change.

4

And, indeed, I

And if you look at some of the other cases, there was

5

a representation made that these big constitutional issues

6

don't start with temporary restraining orders.

7

the time, Judge.

8

there's a lot of statutes that get enjoined.

9

Foundation itself started with a preliminary injunction, and

10

that was only because we had enough time before the effective

11

daylight of Article 12 to do it.

12

relief to put everything on hold while we explored it

13

thoroughly.

14

We do that all

I mean, especially in reproductive health,

Equality

But it was still temporary

And I think this is a simple enough issue that when

15

you look at the likelihood of success on the merits, the severe

16

harm that the plaintiffs really are suffering, and then you

17

also look at the other factors.

18

of harms, there's not much that the State is going to be harmed

19

by here.

20

that the State created by recognizing opposite sex couples who

21

are married in other states.

22

When you look at the balance

This is simply the thorough explanation of a problem

And the public interest is always served by following

23

the constitution.

I mean, we shouldn't let a day go by where

24

we think there is a serious constitutional violation governing

25

our civil life and we say, well, let's deal with it tomorrow.

40

1

I mean, let's not.

2

way, which is what we propose today.

3

THE COURT:

Let's try to address these in a responsible

In terms of balancing the potential harm

4

to each, your argument is that the State won't be harmed

5

because this is just a baby step and it only applies to these

6

two plaintiffs and it's not going to apply across the board

7

until or unless there's full blown proof that there's no

8

legitimate State reason to ban same sex marriages?

9

MR. GERHARDSTEIN:

That's part of it.

And the rest of

10

it is that it really does violate the Constitution, so the

11

State isn't harmed if you're righting a wrong.

12
13

THE COURT:

But a temporary restraining order

typically is designed to protect the status quo.

14

MR. GERHARDSTEIN:

And that's a good point, but that

15

doesn't trump everything else.

16

status quo is that the State recognizes out-of-state marriages.

17

And now we've identified an out-of-state marriage that it

18

doesn't recognize.

19

And you might say that the

I think that originally there wasn't a lot of thought

20

put into whether there's going to be now 13 places you can go

21

within the continental United States to get married as a same

22

sex couple, and I think facts have superseded where the State

23

was at.

24

recognize out-of-state marriages, and we're just trying to

25

include an out-of-state marriage that's out of step with -- the

And the status quo here is that the State does

41

1

State's response to it is out of step.

2

THE COURT:

The status quo is the law in this state,

3

as written by this state's legislatures over the last 100 or

4

more years, has been that the validity of a marriage is

5

determined by its compliance with the laws of the jurisdiction

6

in which it was solemnized or celebrated.

7

MR. GERHARDSTEIN:

That's correct.

That's the

8

overriding legal principle that has guided the recognition of

9

out-of-state marriages.

10

THE COURT:

And Ohio's effort in 1994 to single out

11

same sex couples as not being worthy of recognition of marriage

12

in this state is unlawful because it denies equal protection of

13

laws to our citizens?

14

MR. GERHARDSTEIN:

Correct.

And I think it was 2004

15

that they passed that.

16

equal protection and imposes on a growing number of Ohio

17

citizens on a daily basis their right to equal justice.

18

THE COURT:

And it is unlawful because it denies

And as the Court is balancing the

19

respective harms to each side, if the Court were to put on a

20

temporary order, is not the State harmed when a single federal

21

judge with the stroke of a pen puts on hold a democratically

22

elected amendment to the Constitution?

23

MR. GERHARDSTEIN:

24

works.

25

them up for a vote.

Judge, this is how our system

And the worst way to protect minority rights is to put
So, in fact, initiatives that have civil

42

1

rights implications that are passed by an initiative as opposed

2

to deliberative bodies often are more suspect because it is the

3

passion of the campaign.

4

And, in fact, if you look at -- and this gets ahead of

5

where we are in the record.

6

we filed this morning, we cite to a Law Review article that

7

reviewed the campaign that led to the passage of this.

8

just as in Prop 8, there were lots of misstatements and lots of

9

attempts to appeal to the passion of the majority who were

10
11

But if you look at the trial brief

And

fearful of gay people.
And that's what happens sometimes when you put civil

12

rights issues up for vote, and it shouldn't be a surprise that

13

we have an insular minority who are basically targeted because

14

of their status and suddenly their rights are defined by a

15

majority that doesn't understand them, isn't open to them, and

16

doesn't think about the Equal Protection Clause as much as we

17

do in a courtroom.

18

THE COURT:

The mere fact that voters establish law

19

doesn't make the law lawful?

20

MR. GERHARDSTEIN:

No.

In fact, you look at Romer.

21

mean, Romer is Colorado Amendment 2.

22

constitution was amended to target gays and say that they

23

couldn't get the protection of civil rights laws.

24

United States Supreme Court, in a brief and very focused

25

decision, said that's an illegitimate purpose.

The whole state

And the

And the fact

I

43

1

the majority of the people of Colorado passed it may have

2

explained how it happened, because they didn't have a

3

legislative service commission with a bunch of lawyers saying,

4

by the way, you're not allowed to do this.

5

And that happens when you put minority rights up for a majority

6

vote.

7

They just voted.

Judge, we do believe that, in light of the evidence

8

that we've been able to present and the legal arguments so far,

9

and if you look at the revised proposed temporary restraining

10

order, that there is enough present in terms of likelihood of

11

success on the merits, irreparable harm, balance of hardships

12

and public interest, that this Court should enjoin the

13

defendants from enforcing the subject Ohio laws so that these

14

two men can be free of the application of those laws as it

15

applies to their marriage; and particularly, that this Court

16

can restrain anybody who is about to fill out a death

17

certificate from filling it out in such a way that their

18

marriage in Maryland would not be recognized, until you've been

19

able to hear the case on the merits.

20

THE COURT:

Very well.

21

MR. GERHARDSTEIN:

22

THE COURT:

23

The Court's going to take the matter under

Thank you.

Thank you.

24

consideration.

I understand the timing and urgency of this.

25

The Court has spent considerable time reviewing the parties'

44

1

pleadings and briefs to date.

2

act expeditiously.

3

I will act today.

I need a little more time.

I'll

And no matter what, it's absolutely

4

clear in the law that it is constitutionally prohibited to

5

single out and disadvantage a group of people simply because

6

their beliefs don't coincide with the popular majority view.

7

The Court expresses its appreciation to counsel for

8

their hard work today.

The Court expresses its appreciation to

9

the attorneys and the plaintiffs, and the defendants, and the

10

citizens in being patient.

11

evidence and the law requires.

12

ruling today.

13

Give me the time to do what the
And I intend to make an initial

Having said all of that, unless there's something

14

further, the Court is prepared to recess.

15

from the plaintiffs?

16

MR. GERHARDSTEIN:

17

THE COURT:

18

MS. COONTZ:

19

THE COURT:

20

MR. HERZIG:

21

THE COURT:

22

THE COURTROOM DEPUTY:

23
24
25

Is there more today,

No, Your Honor.

From the State defendants?
Nothing further, Your Honor.

Thank you.

From the City of Cincinnati?
No, Your Honor.
Very well.

The Court prepares to adjourn.
All rise.

This court is now

adjourned.
(The proceedings concluded at 2:38 p.m.)

45

1

I N D E X

2

PLAINTIFFS' WITNESS:

3

DIRECT

JAMES OBERGEFELL

CROSS

16

--

4
5
6

E X H I B I T S

7

PLAINTIFFS' EXHIBITS:

ADMITTED:

8

Numbers 1, 2, 3 and 4:

25

9
10

- - -

11
12
13
14
15
16

C E R T I F I C A T E
I, Jodie D. Perkins, RMR, CRR, the undersigned,

17

certify that the foregoing is a correct transcript from the

18

record of proceedings in the above-entitled matter.

19
20
21
22
23
24
25

s/Jodie D. Perkins
Jodie D. Perkins, RMR, CRR
Official Court Reporter