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
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

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- - -

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:
CASE NO. 1:13cv501
:
Plaintiffs, :
Cincinnati, Ohio
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- v :
Wednesday, December 18, 2013
:
10:00 a.m.
CAMILLE JONES, et al.,
:
MOTION FOR DECLARATORY
:
JUDGMENT AND PERMANENT
Defendants. :
INJUNCTION
- - TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE
- - -

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APPEARANCES:

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For the Plaintiffs:

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

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JAMES OBERGEFELL, et al.,

For the Defendant Wymyslo:

BRIDGET C. COONTZ, ESQ.
ZACHARY KELLER, ESQ.
RYAN L. RICHARDSON, ESQ.
Ohio Attorney General's Office
Constitutional Offices Section
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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LISA T. MEEKS, ESQ.
Newman & Meeks Co. LPA
617 Vine Street
Suite 1401
Cincinnati, OH 45202

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Courtroom Deputy:

Mary Rogers

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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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MORNING SESSION, Wednesday, December 18, 2013

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(Proceedings commenced at 10:00 a.m.)

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THE COURT:

Good morning ladies, and gentlemen.

I'm

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here in the open courtroom on the record on the civil case of

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James Obergefell, et al., versus Theodore Wymyslo, et al.

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We're set for final hearing on the plaintiffs' motion

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for declaratory judgment and permanent injunction.

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is prepared and ready to proceed in that regard.

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The Court

I'd ask that the attorneys enter their appearances for

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the record and help me as to who is here.

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hear from each attorney what you anticipate presenting and the

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length of time, and we will proceed.

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And then I wish to

So for purposes of the record, who appears on behalf
of the plaintiffs?
MR. GERHARDSTEIN:

Judge, I'm Al Gerhardstein, and

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with me is James Obergefell at the table.

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at the end.

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Robert Grunn.

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We have Robert Grunn

David Michener is a plaintiff, sitting next to

And with me is counsel.

Behind me is Lisa Meeks and

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Jennifer Branch, Jackie Gonzales Martin.

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is here, who is admitted in Minnesota but not yet in Ohio.

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THE COURT:

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MR. GERHARDSTEIN:

And Adam Gerhardstein

Very well.
We've agreed on an hour apiece, but

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I think we're both so impressed with our briefing that we may

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not need all of that time.

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THE COURT:

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And on behalf of the State's defendant?

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MS. COONTZ:

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Bridget Coontz on behalf of Doctor Wymyslo.

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today is Assistant Attorney General Zach Keller, and Assistant

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Attorney General Ryan Richardson.

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Very well.

Thank you.

Good morning, Your Honor.
With me

And plaintiffs' counsel is correct, I do not believe
we're going to need a full hour.

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THE COURT:

The Court may.

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Very well.

Good morning, welcome.

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And on behalf of the City defendant?

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MR. HERZIG:

Good morning, Your Honor.

Eric Herzig

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for Doctor Jones for the City of Cincinnati.

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speak in separate arguments from the City unless we're

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separately implicated during the arguments of the others.

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THE COURT:

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Well, the Court's ready to proceed.

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Very well.

I don't need to

Welcome.
On behalf of the

plaintiffs, Mr. Gerhardstein.
MR. GERHARDSTEIN:

May it please the Court, this case

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is about love surviving death.

Whether the plaintiffs, who

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were married in other states, can require Ohio to recognize

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their valid legal same-sex marriages on their Ohio death

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certificates.

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We need to remind ourselves where we've been.

When

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James Obergefell and John Arthur started this case, they really

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had a simple goal.

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wanted his Ohio death certificate to accurately report that he

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was married and that James Obergefell was his surviving spouse.

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John Arthur was going to die and they

You granted a TRO ordering that result, and John died

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on October 22nd, 2013.

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record at 52-3, records that he was married when he died and

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that James was his surviving spouse.

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His death certificate, which is in the

Another TRO was issued at the request of plaintiff,
David Michener, and now his death certificate -- his spouse's

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death certificate -- William Ives, is also in the record

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recording that he was married and that David Michener was his

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surviving spouse.

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Mr.Obergefell and Mr. Michener are here today seeking

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to make permanent the injunctions that have been issued so far,

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because Ohio retains the power to amend their husbands' death

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certificates unless this Court says no by issuing a permanent

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injunction.

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Mr. Grunn is here as the funeral director who handled

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the cremation of John Arthur and filled out the death

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certificate for John Arthur that's in this record.

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have more same-sex clients who are married in other states but

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who die in Ohio.

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injunction that permits him to fill out those clients' death

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certificates in a way that recognizes the marriage of those

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clients, like he's done for John Arthur.

And he will

And he seeks a declaratory judgment and

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Now Doctor Jones, the City defendant, the local

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registrar for the Ohio Department of Health, has not opposed

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this relief, but she's also indicated to the Court that she

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wants the Court to say it's okay so that when she's

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participating in the submission of these records, she's not

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prosecuted for submitting false records to Doctor Wymyslo.

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It's only the State, Doctor Wymyslo, the Director of

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the Ohio Department of Health, who says that couples like James

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and John, or David and William, should not have their

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out-of-state same-sex marriages recognized by Ohio for any

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purpose, even to grant them the dignity at death by recognizing

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their marriages on their death certificates.

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even this limited relief, Doctor Wymyslo is violating the Equal

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Protection Clause and the Due Process Clause of the United

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States Constitution.

And by refusing

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So, let's review what the classification is that we're

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talking about, because that's central to understanding an equal

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protection argument.

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Seventeen states in the District of Columbia and

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Canada and other countries now permit gay marriage.

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marriage of John and Jim, and of Dave and William, are

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recognized in all of those jurisdictions and now, because of

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Windsor, in the federal government.

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The

The problem is that every day more married same-sex
couples will be moving to Ohio who have been married in those

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states, and a growing number of those individuals are going to

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die in Ohio.

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directors may not list those individuals as married on their

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death certificates.

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Director Wymyslo says the registrars and funeral

So what if -- what if instead of marrying John, James

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had married his female first cousin, out of state, and then

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when they moved back to Ohio she had died.

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would not let that marriage take place between first cousins.

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But if she had come back and died after they were married, Ohio

Under 3101(A), Ohio

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would have recognized the marriage and we wouldn't be here.

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There would be no problem.

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him as the surviving spouse, because Ohio follows the

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place-of-celebration rule.

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Her death certificate would record

Same for underage wives.

Females cannot get married

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on their own in Ohio if they're under 16.

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goes off to a state where that's legal and gets married, then

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comes back, Ohio will recognize the marriage.

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But if a 15-year-old

So now we have these same-sex marriages.

James and

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John were legally married in Maryland, David and William were

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legally married in Delaware, so their marriages are legal in

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the states where they were celebrated, but they're not treated

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the same by Director Wymyslo.

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And we also have a category that we haven't talked

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about much in this case yet, which is common-law marriages.

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Common-law marriages were banned in Ohio in 1991 by statute.

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But to this day, Ohio continues to recognize common-law

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marriages where they are legal in those states if they come

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here to Ohio and then need to rely on their married status.

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And, in fact, that same statute that created the

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problem before this Court amended the common-law marriage

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statute, 3105.12, to say, well, we do recognize common-law

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marriages from other states unless they're same-sex marriages.

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So that is yet another example of the difference in
treatment by Ohio that violates the place-of-celebration rule.

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So, we've made a little progress through the briefing,

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and that is that the State concedes that discrimination based

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on sexual orientation can violate the Equal Protection Clause.
The State cites Scarbrough and Davis versus Prison

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Health Services for the point that rational basis applies, and

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we'll get to that in a minute.

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those cases, dismissals of the claim of sexual orientation

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discrimination were reversed by the Sixth Circuit and said, no,

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go back to the trial court and try this case, because

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purposeful discrimination based on sexual orientation violates

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equal protection.

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But remember that in both of

So we made that much progress.

But the failure -- so

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I'm not going to talk about rational basis yet because I want

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to start with a discussion of whether heightened scrutiny

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applies.

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record supports heightened scrutiny.

And that's why we built the record we did.

The

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And it's really based on two things:

First, under

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equal protection, there's two traditional categories that a

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court looks at in order to see if there is a special reason

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that a classification should be reviewed under a higher level

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than rational basis.

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discrimination; whether the category that's distinctive to the

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group is related to that person's ability to contribute to

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society; lack of political power; and immutability.

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Those four categories are:

History of

The most important of those categories are:

History

of discrimination and ability to contribute to society.

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We've got the leading expert in the world on

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discrimination against gays, Professor Chauncey, his report is

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at 42-1 in the record, and we also have a very thorough review

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of the history of discrimination against gays in Ohio by

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Professor Becker, and her report is at 41-3.

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And both of these reports together thoroughly document

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that gays have been targeted, persecuted and oppressed with

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respect to all areas of discrimination, public accommodations,

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crimes, violence, every area of discrimination, in addition to

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marriage.

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So that category is satisfied.

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With respect to the ability to contribute to society,

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the notion is you shouldn't be creating a government

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classification if the classification is based on something that

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doesn't relate to whether the person can be a productive

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citizen.

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the classification, when gender was the classification, when

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national origin was the classification, because the notion is,

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if you're really creating government classifications based on

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that, that's prejudice.

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they are.

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So that heightened scrutiny was granted when race was

That's just punishing people for who

And if you look at Professor Peplau's report in 46-1,

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she thoroughly documents how people who are gay, lesbian,

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bisexual, or transgender can contribute fully to society just

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as people of various races, people of various genders, and

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there's really no purpose at all to be served by creating a

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classification based on sexual orientation.

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THE COURT:

Is there any dispute in the record that

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sexual orientation has relevance to a person's ability to

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contribute to society?

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MR. GERHARDSTEIN:

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THE COURT:

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MR. GERHARDSTEIN:

I have seen none.

I agree.
Okay.

And so the next category,

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which is not as important but still often discussed, is whether

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the group that is the target of any government classification

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lacks meaningful political power.

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And Professor Segura and, again, Professor Becker --

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Segura is at 47-1 -- have addressed this.

And one might say,

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well, look what's happened here recently.

There's been a

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growing number of states through their legislatures adopting

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the notion that they will recognize gay marriage.

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true.

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And that's

But this notion of political power is something that

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we look at over the long run, and there are 40 states that have

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either constitutional prohibitions or statutes that have been

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passed mainly since 2004 that prohibit gay marriage and that

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demonstrate that gays, unless they are in very, very strong

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coalition, do lack a significant amount of political power.

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And of course in Ohio, we don't even have a civil

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rights act that protects gays from discrimination in public

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accommodations.

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gays from discrimination in employment.

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routinely by people who have been discriminated against because

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they're gay, and we can't help them unless they're a public

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employee.

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We don't have a civil rights act that protects
Our office gets called

So there's plenty of work to do and plenty of muscle
that doesn't exist in the gay community yet.

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THE COURT:

There's no federal relief yet, either.

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MR. GERHARDSTEIN:

That's correct.

And that is up in

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the Congress this year, but it does not look, at this point,

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that the House is willing to even address it.

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an issue.

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THE COURT:

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MR. GERHARDSTEIN:

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THE COURT:

So that's still

The Senate passed it.
Correct.

And the gridlocked Congress is unable to

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act further.

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MR. GERHARDSTEIN:

That's correct.

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And the last category is whether the anchor for the

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classification hits on something that's immutable.

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orientation is that.

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notion is, if you're really classifying things based on a core

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trait, then you're not basing it on anything that's a

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legitimate governmental purpose.

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when it comes to sexual orientation.

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And, again, look at Peplau.

And sexual
And the

And that's certainly true

So the classification here, the denial of recognition

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of same-sex marriages, while recognizing similar opposite-sex

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marriages, is based on a category that targets a group that is

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fully able to contribute to society, that's been the target of

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discrimination, that lacks meaningful political power, and the

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core trait is immutable.

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heightened scrutiny should be addressed, along with the fact

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that we're talking about marriage and marriage is a fundamental

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right.

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recognized for prisoners in Turner, for people who owe child

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support in Zablocki, and for people of various races in Loving.

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So it is a fundamental right to marriage that's burdened here.

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And that, again, supports the notion that there should be

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heightened scrutiny.

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And all of those suggest that

And that is something that the Supreme Court has

And that suggests that in order to defend this
statute, the State has to show that this classification is

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substantially related to an important governmental purpose, and

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they can't do it, because there is no purpose in discriminating

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against gays with respect to recognition of their marriages in

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other states that has been identified that meets this high

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burden.

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THE COURT:

And before you go there and get to that, I

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want to back up on this fundamental right to marriage.

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only way we get to heightened scrutiny is if there's a

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fundamental right at issue; is that right?

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MR. GERHARDSTEIN:

That is one path.

The

That's the due

process path.
THE COURT:

And on the due process path, every court

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that's ruled on the issue has held that, although there's a

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fundamental right to marriage, that's not speaking to a

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fundamental right to have same-sex marriages, because that's

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not deeply rooted in our nation and tradition.

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MR. GERHARDSTEIN:

You know, this is where Lawrence is

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so instructive because Lawrence didn't say this case is about

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the fundamental right to have same-sex sexual acts.

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said this case is about the fundamental right to have physical

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intimacy in your loving relationship.

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So that's how we have to look at this.

Lawrence

Lawrence

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reversed Bowers, and in reversing Bowers, it said, you know, we

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aren't going to define gays by conduct that some people

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associate with gays.

Instead, we're going to look at this,

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this desire to engage in this physical intimacy, and say that

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that is a fundamental right.

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marriage yet and they're recognizing a fundamental right.

And they didn't even get to

And in rejecting Bowers, they said Bowers was not

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correct when it was decided and it is not correct today.

Its

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continuance as precedent demeans the lives of homosexual

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persons and represents an invitation to subject homosexual

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persons to discrimination, both in public and in private

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spheres.
So to take that sort of analysis and -- Lawrence also

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said, yes, we look to the traditions of society, but you have

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to frame that look at our traditions correctly.

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they framed it was not a right to homosexual physical acts but,

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rather, to intimate acts.

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And the way

The way we need to frame it is a right to marriage,

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not same-sex marriages, but a right to marriage.

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right to marriage that's burdened.

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And it's that

Because there was a long tradition in this country of

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banning interracial marriage, and it wasn't framed in Loving as

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a right to interracial marriage -- it was a right to marriage.

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And that's the correct way to look at it, because sometimes the

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tradition is the embodiment of a long-term prejudice.

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Loving, we found that, and it was right for the Court to knock

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it down.

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Here, we have the same thing.

And in

It is the right to

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marriage that's the issue, and not just same-sex marriages.
THE COURT:

Because we have a liberty interest in, as

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consenting adults, to engage in private sexual intimacy and to

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marry who we choose?

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MR. GERHARDSTEIN:

Yes, all of those things.

The

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private sexual intimacy was guaranteed through Lawrence, and

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the right to marry was the start of that, was actually

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recognized here in Windsor.

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THE COURT:

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So, yes in both instances.

So that's the liberty interest you're

talking about --

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MR. GERHARDSTEIN:

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THE COURT:

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MR. GERHARDSTEIN:

Correct.

-- that gets it to heightened scrutiny?
And that gets us to heightened

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scrutiny as a parallel path to the heightened scrutiny that's

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supported by the history of discrimination and the other

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factors that traditionally are looked at and that were set out

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in Cleburne and Frontiero and the alien education cases in

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those regards.

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But, you know, and I want to emphasize that this, at

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this stage, has to be a parallel review of what we should talk

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about next, which will be rational basis.

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Sixth Circuit cases -- there are the Sixth Circuit cases --

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most recently Davis in 2012 -- that says you have to use

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rational basis.

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Because there is the

But I would suggest, as the court said in Bassett,

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that this court say to the Sixth Circuit, respectfully, maybe

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you should look at this again.

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that conclusion, as they do in two-sentence statements, we have

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to use rational basis, there is no heightened scrutiny.

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really review the basis for the Sixth Circuit holding in that

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regard, it all goes back to an Equality Foundation.

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that case because I lost it.

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decided in 1997, and it squarely is grounded on Bowers.

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THE COURT:

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Because when the Court parrots

If you

And I know

And Equality Foundation was

Which was reversed.

MR. GERHARDSTEIN:

Which was reversed, after Equality

Foundation was decided.
So when you -- and if you look at Equality

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Foundation -- and I remember this from the argument -- the

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Sixth Circuit panel, both in argument and then in the decision,

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said:

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the conduct which defined them as homosexuals was

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constitutionally proscribable.

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panel at that time thought that gay people were defined by the

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sex acts they engaged in.

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criminal, there's no way that could ever been heightened

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scrutiny.

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We reject heightened scrutiny -- and I quote -- because

Meaning, the Sixth Circuit

And since Bowers said that can be

And that's all wrong.

Lawrence says it's wrong and,

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hopefully, the Sixth Circuit will revisit it if this Court

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chooses to explore that as at least an alternate basis of

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reasoning in a case like this.

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THE COURT:

Okay.

Before you get to rational basis,

I'm still back on the fundamental right.

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MR. GERHARDSTEIN:

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THE COURT:

Okay.

We talk about the liberty interest in

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private behavior and marriage.

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you get married in one state and come to the next state and the

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next state refuses to recognize it?

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liberty interest in the right to remain married?

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MR. GERHARDSTEIN:

Is there a liberty interest if

Yes.

Isn't that violating your

The fundamental right to

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marriage should be transportable across state lines.

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that's what the celebration rule really gave us.

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the certainty of knowing that, if I'm going to have a good time

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and go to Vegas and get married and celebrate and then come

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back to Ohio and live my more mundane life after my big party,

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yes, I'm still married even though I was married in Vegas.

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And

It gave us

And more concretely for this case, if I am a

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common-law marriage in another state, if I'm a first-cousin

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marriage in another state, if I'm an underage marriage in

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another state, and if all of those are legal in those states

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and I come back to Ohio, even though I couldn't do those

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marriages here, Ohio is going to recognize them because it

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follows the place-of-celebration rule.

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And Professor Grossman is our expert on marriage and

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the history of marriage, and she actually says that Ohio is at

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the far end of this celebration rule, recognizing everything.

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So that's a very important liberty interest.

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been well established in Ohio as a liberty interest, and it is

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critical to the negotiations that we're trying to explore in

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this case.

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It's

And on top of all of that is Professor Becker's review

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of the 2004 campaign for the constitutional amendment and for

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the laws that are passed that are the subject of what we're

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doing in court today.

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much animus was just spread all over the campaign itself.

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And she very carefully documents how

No one of these things standing alone may be enough,

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but I think, as a package, it is fair for this Court to say

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that there really is no legitimate governmental purpose and

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that the classification in this case is based on a hostility

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towards gays and a desire to hurt that identifiable group.

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So, what do we do about rational basis?

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recognition ban flunks even this lowest level of review.

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I'm taking the State up on their invitation here.

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We have to apply rational basis.

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The marriage
And

They say:

So let's do that.

And that takes us to Windsor versus United States.

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And we see in Windsor that the Supreme Court was attempting,

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and did, apply rational basis.

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talking about equal protection at 133 Supreme Court 2692:

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Discriminations of an unusual character especially suggest

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careful consideration to determine whether they are obnoxious

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to the Constitutional provision.

And they said when they were

And they cite Romer.

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So what was the discrimination of an unusual character

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in Windsor?

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in Windsor was the fact that the federal government, Congress,

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had never told us what was a good marriage and that they would

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recognize, and what was a marriage that they would no longer

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recognize.

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in 1996 that says, all right, from here on out, we are only

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going to recognize, for federal law purposes, marriages between

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a man and a woman.

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Well, the discrimination of an unusual character

And here comes DOMA, Section 3, and they pass a law

And the Supreme Court said, well, that's a

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discrimination of an unusual character because you've just done

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something you had never done before solely to target this group

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of folks who get same-sex marriages, even if it's legal in the

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state where they get their same-sex marriages.

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Court gave it careful consideration and struck it down and

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said, no, you need to recognize those marriages from those

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states that say they're legal, because otherwise, under this

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rational basis test, if we give it a careful consideration,

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there's really no legitimate governmental purpose to be served

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by changing the rules just because some states are now

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recognizing same-sex marriages.

So the Supreme

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And what was the unusual discrimination in Romer?

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Romer, we have the Colorado Amendment 2 passed on top of a

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state that had jurisdiction that had already granted

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protections from discrimination to people who were gay, lesbian

In

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transgender and bisexual.

And then they did this sweeping

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Amendment 2, and the Supreme Court said, that's an unusual

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discrimination because you're taking away something that had

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already been standing there and already existed; you're taking

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away rights that local municipalities had granted and now

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you're doing it solely because of sexual orientation.

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purpose, when we give that careful consideration, can only be

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to harm the gay people.

The

So, the way the Supreme Court said it in Windsor was:

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DOMA's unusual deviation -- again, that's their framework,

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"unusual deviation" -- from the usual tradition of recognizing

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and accepting state definitions of marriage here operate to

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deprive same-sex couples of the benefits and responsibilities

14

that come with the federal recognition of their marriages.

15

And I quote:

This is strong evidence of a law having

16

the purpose and effect of disapproval of that class.

17

Windsor 133 at 2693.

18

that there's no legitimate purpose in that situation.

19

That's

And of course, the Court goes on to say

So what is the discrimination of an unusual character

20

here?

21

place-of-celebration rule, marriages contracted in other states

22

that would not have been authorized here -- common-law

23

marriage, first cousins, underage.

24
25

Ohio has a long tradition of recognizing, through its

So according, as I said, to Professor Grossman, Ohio
fell on the extreme pro-recognition end of the spectrum.

And

20

1

now in gay marriages authorized in other states, Ohio changes

2

its rules and refuses recognition to same-sex marriages while

3

leaving everything else the same.

4

That deserves the same recognition and careful

5

consideration that we see the Supreme Court doing in Windsor

6

and in Romer.

7

the law triggered solely by the prospect of some states

8

providing same-sex protection -- same-sex marriages protection,

9

then it is, in the words of Windsor, strong evidence of a law

10

And because it is unusual and it is a change in

having the purpose and effect of disapproval of that class.
So it didn't work in Windsor, it didn't work in Romer,

11
12

and it shouldn't work here.

13

State are the same as those raised and rejected in Windsor and

14

also in Hollingsworth versus Perry.

15

analysis, it's hard for the State to come up with any purpose

16

that meets that test, even though we label it a rational basis

17

test.

18

And the arguments raised by the

But what did the State say?

And in the face of that

In their brief they said,

19

well, this court should stand down because we need to respect

20

the democratic process.

21

for these discriminatory refusals to recognize gay marriage.

22

Therefore, we ought to leave it alone.

23

People voted for these prohibitions,

And of course we know -- just look at Romer -- we know

24

that judicial review applies to regulations as well as to

25

statewide initiatives.

Romer was a statewide initiative but

21

1

the Supreme Court didn't have any trouble declaring it

2

unconstitutional.

3

And it is the duty of the judiciary to enforce the

4

Constitution and to exercise restraint.

5

enforce the Constitution, and you can't just stand down in the

6

face of a constitutional violation.

7

But you can't not

So this case is a perfect example of the proper

8

balance, because what we're asking the Court to do is not

9

create something that would become the Roe v. Wade of gay

10

rights.

11

solves a discrete and concrete problem, a very real problem.

12

I mean, we're talking about a limited injunction that

I mean, we have clients here who have presented to the

13

Court a problem that, until this Court acted, would not have

14

been solved, and won't be solved going forward without the

15

permanent injunction.

16

its exactly the type of judicial restraint that balances the

17

role of the courts and the role of any public vote.

So that's measured judicial action, and

18

So what's --

19

THE COURT:

20

MR. GERHARDSTEIN:

21

THE COURT:

Can we talk about that?
Sure.

I mean, the State makes a big deal about

22

the people of Ohio voted to establish these bans.

23

clear that, you know, voters can't pass a statute to violate

24

the Constitution.

25

Is that where we are?

MR. GERHARDSTEIN:

Right.

Yes.

The law is

22

1

THE COURT:

All right.

Help me on fundamental

2

history.

3

that have been struck down by the Supreme Court as violations

4

of constitutional law.

5

Give me some examples of things voters have approved

MR. GERHARDSTEIN:

Well, I mean, Prop 8 was an

6

example.

Now the Supreme Court didn't rule on the merits of

7

that, but the Ninth Circuit did.
The -- Romer is the best example because there the

8
9

state-wide initiative was passed by 66 percent of the voters of

10

Colorado and the Supreme Court struck it down as a violation of

11

equal protection because its purpose and effect was to harm gay

12

people.

13

that is the absolute best example of a popular initiative that

14

was struck down, and the most relevant to this case.

15

And that was under the Equal Protection Clause.

Lawrence was a statute.

So

Cleburne was a statute.

16

Frontiero and Zablocki were statutes.

17

Zablocki was a local initiative, if I'm not mistaken.

18

Well, actually, I think

So there are other initiatives -- Hunter versus

19

Erickson was a housing initiative passed by the public to

20

prohibit certain types of public housing, and that was struck

21

down as a violation of the Due Process Clause by the U.S.

22

Supreme Court.

23
24
25

So there are examples, and we would be happy to
supplement that if the Court wants some supplemental briefing.
THE COURT:

Well, just big picture, I suppose there

23

1

were statutes passed by voters that refused to permit marriages

2

between people of different races.

3

MR. GERHARDSTEIN:

Yes.

I actually don't know if that

4

was an initiative or not, but Loving struck down the Virginia

5

statute that prohibited what they call miscegenation, but I

6

don't know whether that was passed by popular vote or by the

7

legislature.

8
9

I think it was by the legislature.

THE COURT:

So your position is, with all due respect,

the mere fact that the majority of the voters in 2004 voted for

10

something, if it is unlawful discrimination, the Court is

11

required to act?

12

MR. GERHARDSTEIN:

That's right.

And that's also why

13

we cited the Federalist Papers in our brief, because this is

14

basic.

15

the majority could be tyrannical.

16

would absolutely oppress the minority and there would be no

17

remedy.

18

The founders knew that if you just do democracy, then
They can pass laws that

That's where courts come in.

Courts are here to say,

19

all right, we have these fundamental principles that we're

20

going to honor, equal protection, due process, and if the

21

majority passes a law that violates those fundamental

22

principles, it's the job of the court to strike it down.

23

Strike it down wide?

24

possible so that the democratic process could fix it, and

25

that's all we are doing here.

No.

Strike it down as narrowly as

24

1

THE COURT:

Just fix the death certificate issue?

2

MR. GERHARDSTEIN:

Well, the democratic process may

3

choose to fix more than that, but the only issue before this

4

Court is the failure to recognize marriages when citizens come

5

before a registrar seeking a death certificate that has the

6

marriage on it -- that should have the marriage on it.

7

I mean, yesterday was my anniversary, 41 years

8

married.

9

on my death certificate, and I would too, the fact that the

10
11

If I die tomorrow, I am sure that my wife would want

biggest event in my life is properly noted.
And that's all same-sex marriage, death certificate,

12

remedial relief will say.

13

John and James' life.

14

as a couple.

15

wife and I would have.

16

Yes, that was the biggest event in

That was a defining aspect of themselves

And they deserve to have the same dignity that my

And the fact that it is a same-sex marriage shouldn't

17

be the defining factor here.

18

standard that Ohio has created when it comes to recognizing

19

marriages that are celebrated in violation of Ohio rules but in

20

other jurisdictions.

21

Especially in light of the double

So what's the other criteria that the State has cited

22

as a basis for defending this under a rational basis?

23

said, well, we should preserve the tradition, the traditional

24

definition of marriage.

25

They

Well, that's like saying because we've always done it

25

1

this way.

2

address a big matter of public policy.

3

addressed in Windsor where the court said that wasn't good

4

enough.

5

And that's not a very thorough or responsible way to
And this was directly

In fact, the court has said repeatedly that tradition

6

can actually be a reflection of entrenched prejudice.

I mean,

7

one of the best examples is the case that went to the U.S.

8

Supreme Court about the Virginia Military Institute.

9

that's just an honored and storied institution but they didn't

I mean,

10

have any women.

11

And their main defense was, well, of course we don't have any

12

women, this is the way we've always done it, this is the

13

Virginia Military Institute.

14

good enough.

15

And it was a government-funded institution.

And the Supreme Court said, not

I mean, that is a tradition that has entrenched

16

prejudice.

And they struck it down and said, if you're going

17

to use public money, you better open it up because there's no

18

way to fix this problem other than to recognize it as prejudice

19

against women.

And that is true.

That was true in Loving as well.

20

So the fact that

21

something has been around a long time is not, in and of itself,

22

a support for ongoing prejudice.

23

The other thing the State argued was religious

24

liberty.

And Doctor Wymyslo didn't actually say that that's a

25

support or a defense on a rational basis.

The brief simply

26

1

argued that we need to consider religious objections if we're

2

going to make any change in the recognition ban, and we agree.

3

But that isn't a defense to what we're talking about.

4

Rather, that's just a fix that needs to be adopted by the

5

legislature if they want to explore further striking down the

6

failure to recognize same-sex marriages.

7

brief the Connecticut statute that seems to balance the

8

interests of religion and people who have a problem with

9

recognizing same-sex marriages.

10

And we cite in our

Again, that's where you just shoot back to the

11

legislature and let them solve the problem.

12

That is not the

problem before this Court.

13

One thing the State did not argue was the interest of

14

children, and the amicus argued that CCV-- CCV was, of course,

15

the primary motivator in the state for the anti-gay, you know,

16

marriage amendments that we're challenging.

17

State didn't argue the interests of children because Ohio does

18

permit gay people to adopt.

19

And maybe the

Now we have plenty of problems with the extent to

20

which they permit it.

We think there should be second-parent

21

adoption, there should be stepchildren adoption, there's plenty

22

of work to do on adoption.

23

But at its core, even the Ohio Supreme Court has

24

already ruled that a gay person can be a parent and be an

25

adoptive parent.

And of, course, those adoptions in Ohio

27

1

routinely come with gay partners in the house and a gay

2

household.

3

that children shouldn't be raised in same-sex households while

4

they're at least starting to permit that to happen across the

5

state.

6
7

So it would be sort of disingenuous for Ohio to say

THE COURT:

This isn't really on point, but gay

adoption in Ohio, a gay citizen can adopt a child.

8

MR. GERHARDSTEIN:

9

THE COURT:

But a gay couple cannot, as a couple.

10

MR. GERHARDSTEIN:

11

THE COURT:

12
13
14
15
16

Right.

Very well.

It is not relevant to this,

perhaps.
MR. GERHARDSTEIN:

So it's certainly relevant to Dave

Michener, who has three children.
THE COURT:

And he and his partner adopted three

children?

17

MR. GERHARDSTEIN:

18

THE COURT:

19

plaintiffs.

20

Cincinnatians?

21

three kids.

22

just to get married?

23

Right.

That's right.

I need to know more about those

I understand he's present, but were they
They were a couple for 18 years, they adopted

Were they Cincinnatians?

Did they go to Delaware

Do you know?

MR. GERHARDSTEIN:

They have interests in Delaware,

24

property and so forth.

They did go to Delaware to get married,

25

as many people have been doing since Windsor, in order to get

28

1

advantage of the federal recognition of their marriage, if

2

nothing else.

3

THE COURT:

Does the fact that your couples are not

4

traditional migratory couples have any impact on the analysis

5

here?

6
7

MR. GERHARDSTEIN:

You know, that's called an evasive

marriage.

8

THE COURT:

Right.

9

MR. GERHARDSTEIN:

Which doesn't have any impact,

10

especially after Windsor.

11

sense to say, wow, the federal government is going to recognize

12

valid marriages from any of 17 states -- Illinois just started

13

and their marriages will start in June of 2014 -- why shouldn't

14

I get married, especially if it is pretty easy to do, so that I

15

can at least get somebody in America, the federal government,

16

to recognize my marriage?

17

I mean, you're only using common

So that doesn't matter.

And it doesn't matter even

18

under the place-of-celebration rule in Ohio because some of the

19

cases involved so-called evasive marriages even under

20

place-of-celebration rule, so that's not a serious factor.

21

But Dave Michener has three children that he's now

22

raising alone.

They are in school.

They are -- they were a

23

healthy couple that were raising very healthy children and

24

they're all well balanced and doing well and grieving the loss

25

of their other dad.

29

1

But it is a great example of a couple that is totally

2

disrespected by the rule in this case.

3

with their remaining dad.

4

marriage between their parents wouldn't have been recognized.

5

And that's a total affront to their sense of stability and

6

normalcy and balance that they wouldn't have experienced except

7

for the fact that they had same-sex parents.

8

THE COURT:

They will go forward

And unless this Court had acted, the

And I would say this to anyone in any

9

case, and I said it in this case before, and it is the first

10

opportunity I've had to see Mr. Michener to express on behalf

11

of the community and the court, I regret your loss.

12

MR. MICHENER:

Thank you, Judge.

13

MR. GERHARDSTEIN:

14

The other thing about this whole notion of focusing on

Thank you, Judge.

15

children is there's absolutely no fit between this alleged

16

purpose and its impact.

17

marriages doesn't promote opposite-sex marriages.

18

refusing to recognize gay marriages doesn't make opposite-sex

19

parents any better, or opposite second parents with their

20

children any healthier as families.

21

I mean, refusing to recognize gay
I mean,

Refusing to recognize gay marriages doesn't reduce or

22

increase the number of same-sex couples that have children with

23

them.

24

they're struggling to make sense of a law that doesn't respect

25

them.

They're still there, they're living in our midst and

30

1

But even in spite of the discrimination that has

2

occurred to date, every bit of science -- and this is where

3

Doctor Fulcher's report is very important -- every bit of

4

science that has looked at this conclusively establishes that

5

children of gay and lesbian couples are just as well balanced

6

as opposite-sex couples, and there's certainly no benefit to be

7

gained by refusing to recognize the marriages of their parents.

8
9

So there's a couple other points that I think we
should address:

Number one is Baker versus Nelson.

The State

10

has said there's no case here because in Baker versus Nelson --

11

in 1972, the U.S. Supreme Court dismissed a petition, an

12

appeal, from the Minnesota Supreme Court saying that this

13

couple that wants to have their marriage -- that wants to get

14

married in Minnesota and were denied by the Minnesota Supreme

15

Court, do not state a substantial federal question.

16

And all I can say to that, Judge, is that so much has

17

happened since 1972, that that should not be a barrier to a

18

thorough examination of the law in light of the subsequent

19

precedent, both on the right to marriage, on equal protection,

20

and on gay rights with respect to Romer and Windsor itself.

21

And maybe the most telling thing about the power of

22

the Baker decision today is that I can't find it cited in the

23

Windsor case at all.

24

Nelson.

25

Not even the dissent cited Baker versus

So, I really think it's appropriate, and we cited

31

1

another District Court that has taken a good look at this -- I

2

think in Pennsylvania -- and concluded that Baker versus Nelson

3

should not be a hindrance to a thorough review of these issues.

4
5

THE COURT:

And that spoke to marriage creation as

opposed to recognition?

6

MR. GERHARDSTEIN:

The Baker versus Nelson case did.

7

So in that sense, it doesn't even relate to a recognition

8

argument.

9

And what we bring to this Court is a recognition argument as

10
11
12

And, of course, Windsor was a recognition argument.

well.
THE COURT:

Right.

You're not asking this Court to

order Ohio to perform gay sex marriages, correct?

13

MR. GERHARDSTEIN:

14

THE COURT:

That's correct.

You're asking this Court to require Ohio

15

to recognize on death certificates valid marriages of same-sex

16

couples out of state.

17

MR. GERHARDSTEIN:

That's correct, based on its

18

similar treatment of opposite-sex couples who couldn't

19

accomplish a marriage in Ohio.

20
21

THE COURT:

And the historical tradition of not

striking down evasive marriages.

22

MR. GERHARDSTEIN:

That's right.

That's very true.

23

The other thing the State has cited is Section 2 of

24

DOMA, which was not addressed by the U.S. Supreme Court except

25

to say that this case doesn't involve Section 2.

32

1

And similarly, we would say that our case doesn't

2

involve Section 2.

3

due process.

4

It is not a defense to equal protection and

Section 2, of course, says that no state need give

5

effect to public records act or judicial proceedings that

6

recognize same-sex marriages.

7

under Windsor since in Section 2, again, Congress is doing that

8

unusual discrimination.

9

and some as bad which, in Section 3, the Supreme Court said you

10
11

But it is, first, very suspect

It is labeling some marriages as good

couldn't do.
And secondly, and most importantly, the Full Faith and

12

Credit principle must be addressed in light and consistently

13

with other constitutional provisions.

14

So if this directive by Congress to states that they

15

need not recognize public documents and orders that involve

16

same-sex marriages, violates the Constitution, violates the

17

Equal Protection Clause and the Due Process Clause for the

18

reasons we stated, the fact that it is blatantly laid out in

19

Section 2 doesn't enhance the argument.

20

is a further indication that these types of measures are

21

written to punish, to identify, and to hurt this group of

22

same-sex married people.

23

If anything, it simply

And we don't need to address whether DOMA Section 2 is

24

constitutional or not because we're directly making our

25

arguments under the Equal Protection Clause and under the Due

33

1

Process Clause.

2

rational basis because Congress told us so.

3

circular argument.

4

analysis that this Court must proceed with.

5

It cannot provide a defense, it cannot be the

THE COURT:

That's just a

And in that sense, it doesn't advance the

And you think this Court can grant the

6

relief you seek without striking down as unconstitutional DOMA

7

Section 2?

8
9

MR. GERHARDSTEIN:

Right, because we have not tried to

invoke the Full Faith and Credit Clause.

And we aren't

10

leading -- our doctrinal analysis doesn't go through that

11

passage.

12

place-of-celebration rule isn't based on Full Faith and Credit.

13

I mean, this is just a longstanding practice between states

14

that are trying to live together in a nation.

15

dependent upon Full Faith and Credit, and it need not be

16

addressed.

17

We're just saying -- and by the way, the

And it isn't

Again, we're trying to do and suggest to this Court,

18

limited judicial relief.

19

constitutional problems that are unnecessary to solve, and

20

that's a basic doctrine that all courts try to follow.

21

You don't need to reach out and solve

So, Judge, you know, we do ask that you grant the

22

permanent injunction and the declaratory relief for the married

23

plaintiffs.

24

will protect the death certificate of John Arthur and William

25

Ives from amendment, which could happen.

This will protect their death certificates.

It

34

1

It will also allow the surviving spouses, David and

2

James, if they should die and not be remarried, to be listed as

3

widows, so they still have a viable issue here.

4

And then for Robert Grunn, it will provide the clear

5

direction he needs to be able to record as married decedents

6

who were spouses in same-sex marriages celebrated in

7

jurisdictions where those marriages are authorized so that he

8

doesn't have to run back to court, either a third-party

9

standing or dragging a grieving spouse with him, to get

10

direction on that issue next time around.

11
12

THE COURT:

So what do you want the order to say as to

Grunn?

13

MR. GERHARDSTEIN:

14

THE COURT:

Our proposed order as to Grunn --

I thought this was sort of an as-applied

15

challenge relating to these four plaintiffs, one of whom he

16

serviced as a funeral director.

17

Court do?

18

MR. GERHARDSTEIN:

What are you asking that the

Declare that plaintiff, Robert

19

Grunn, may, consistent with the Constitution, report that a

20

decedent married in a state authorizing same-sex marriage is,

21

quote, married, or widowed, and report the name of the

22

decedent's surviving spouse on an Ohio death certificate he

23

completes in the course of his work as a funeral director in

24

Ohio.

25

That's from our proposed order at 53-2 of the record.

35

1

THE COURT:

Very well.

2

MR. GERHARDSTEIN:

And we've also asked that that

3

declaration be accompanied by an injunction.

4

our last paragraph also asks that Director Wymyslo and Jones be

5

required to issue directives to other funeral directors

6

consistent with this order.

7

And to be fair,

That reaches a little further than just Robert Grunn.

8

This Court need not do that, but it would be unfortunate if, as

9

a result of this case, we had inconsistent rules about

10
11

recognition across the state.
But I don't take that last paragraph to be nearly as

12

important as the directive to Grunn himself, because we can

13

always take up additional funeral directors and additional

14

discussions with the State going forward.

15

THE COURT:

16

MR. GERHARDSTEIN:

17

THE COURT:

18

Very well.
Thank you.

Did you reserve some time for reply?

Or

anticipate that?

19

MR. GERHARDSTEIN:

Yes.

20

THE COURT:

21

Morning, Ms. Coontz.

22

MS. COONTZ:

23

May it please the Court, counsel for plaintiffs have

Very well.

Good morning, Your Honor.

24

made very clear that this case is about recognition of

25

out-of-state same-sex marriages in a very narrow context, death

36

1
2

certificates.

That's it.

And accepting as a given that the plaintiffs are not

3

challenging Ohio's right to define marriage as between a man

4

and a woman, this case is very narrow.

5

So even if the plaintiffs get all of the relief that

6

they seek, same-sex marriages will still not be permitted in

7

Ohio and it won't be recognized in Ohio anywhere other than in

8

the plaintiffs' death certificates and the death certificates

9

that are issued by Mr. Grunn.

10

And even if plaintiffs get everything that they want

11

in this case, Section 2 of DOMA, which gives Ohio the authority

12

to define marriage as being between a man and a woman, will

13

remain presumptively constitutional federal law.

14

So the question before this Court is a purely legal

15

one, and that is whether Ohio can refuse to recognize same-sex

16

marriages on death certificates only.

17
18
19

Windsor, Section 2 of DOMA, and Baker versus Nelson
tell us that it can.
Six months ago, the court decided in Windsor that

20

rational basis -- as plaintiffs concede -- rational basis

21

applies to a classification based on sexual orientation.

22

the Court premised its decision on the same principles of

23

Federalism and the unquestioned authority of states to define

24

marriage that control in this case.

25

And

Because as the Windsor court stated, the whole subject

37

1

of domestic relations belongs to the laws of the state.

And

2

this is not a new concept.

3

Nelson, the Supreme Court said that there's no federal question

4

when it comes to states' marriage laws in general.

5

Windsor did not overrule Baker.

And it is why, in Baker versus

And in Baker --

6

excuse me -- the Florida District Court recognized this and it

7

is why, when faced with a similar recognition situation that we

8

have today, the court refused to recognize -- Florida refused

9

to recognize plaintiffs' Massachusetts marriage.

10

In our case, Ohio doesn't recognize plaintiffs'

11

respective Maryland and Delaware marriages.

12

with Baker, that's okay.

13

And in accordance

Supreme Court precedent.

That is permissible under prevailing

And since Baker, the Supreme Court has never said that

14
15

one state has to recognize same-sex marriages performed by

16

another.

17

It certainly didn't say that in Windsor.
THE COURT:

In Windsor, what it said was that the

18

federal government was required to recognize same-sex marriages

19

that the -- under state law?

20

MS. COONTZ:

21

THE COURT:

22

MS. COONTZ:

23

THE COURT:

Correct.
Yes?
Correct, correct.
And they said that the federal government

24

had to do that based on the Due Process and Equal Protection

25

Clauses of the Federal Constitution, right?

38

1

MS. COONTZ:

2

THE COURT:

Correct.
So if the federal government can't violate

3

the Due Process Clause or Equal Protection Clause, why can a

4

state?

5

MS. COONTZ:

Because the federal government's law did

6

not satisfy a rational basis, which is the applicable standard

7

in this case.
What the Windsor court looked at is the validity of

8
9

the federal government's intervention into the area of marriage

10

laws.

And that's how the Court began its decision, because

11

that's really what Section 3 of DOMA was.

12

federal -- excuse me -- federal government intervening into the

13

state's well-established right to define marriage.

14

THE COURT:

15

MS. COONTZ:

16

character, as the Court said.

17

THE COURT:

It was the

It was an unusual move.
Absolutely.

It was a move of an unusual

And in Ohio, wasn't it a movement of

18

unusual characteristics when Ohio, for the first time ever in

19

its history, picked out a type of marriage that Ohio wasn't

20

going to recognize?

21

MS. COONTZ:

It didn't change Ohio law.

Before Issue

22

1 was passed, same-sex marriage was not legal in Ohio.

So when

23

Issue 1 was passed, when the constitutional amendment was

24

adopted, it was not a move of unusual character.

25

it doesn't create the inference of animus that was present for

It's not --

39

1

the Windsor court.
The Windsor court said, look, federal government,

2
3

you've tread into waters that you have historically not tread.

4

And they went over and above to give a long descriptive history

5

of the principles of Federalism and how much this was

6

exclusively left to the states.

7

government went there, the court inferred animus.

And because the federal

8

Ohio has never allowed same-sex marriages.

So when

9

Issue 1 was passed, it wasn't a change in direction, it was a

10

reaffirmation of the public policy of the State of Ohio.

11

was not an unusual move by any stretch.

12

same law that had always been in place before the

13

constitutional amendment was passed.

14

THE COURT:

It

It was the same --

But wasn't it the first time ever that

15

Ohio picked out a kind of marriage and said, we're not going to

16

recognize that one?

17

MS. COONTZ:

That doesn't change the fact that the law

18

itself did not change.

19

Issue 1, same-sex marriage was prohibited, and after same-sex

20

marriages -- excuse me -- after Issue 1, same-sex marriages.

21

And that is clearly distinguishable from the situation in

22

Windsor.

23
24
25

THE COURT:

It does not change the fact that before

Issue 1 was the amendment of the Ohio

Constitution?
MS. COONTZ:

Yes, Your Honor.

Yes, Your Honor.

That

40

1

was the ballot name for Issue 1.
So what the Windsor court did is also as important as

2
3

what it didn't do, because the Windsor court obviously knew

4

about the Baker decision and clearly the Windsor court

5

didn't -- from what plaintiffs' counsel is saying is correct.

6

The Windsor court didn't address Baker in its decision.

7

didn't need to, because the Windsor decision addressed a

8

federal statute.

It

9

Since Baker, the Supreme Court has never said that one

10

state must recognize the same-sex marriages performed under the

11

laws of another state.

12

even if this Court is not convinced that Baker controls,

13

Section 2 of DOMA does.

14

Windsor did not overrule Baker.

But

Section 2 is the presumptively constitutional federal

15

statute that tells us that a state does not have to recognize

16

the same-sex marriages performed in another state.

17

plaintiffs aren't challenging its constitutionality in this

18

case.

19

have a federal statutory right to refuse to recognize same-sex

20

marriages performed out of state.

21

And

So no matter what happens in this case, Ohio will still

THE COURT:

But does that fact answer the question

22

whether that's a rational basis for the marriage recognition

23

ban?

24
25

MS. COONTZ:

Ohio's reliance on a presumptively

constitutional federal statute could be a rational basis for a

41

1

voter to vote for Issue 1.

It could be a rational basis that

2

supports Ohio's law itself.

But even if Section 2 and DOMA

3

don't -- excuse me Section 2 of DOMA and Baker don't foreclose

4

this action, plaintiffs haven't negated every conceivable

5

rational basis in support of Ohio's marriage laws in this

6

narrow context, as they must.

7

The rational basis review is the most deferential

8

standard of review.

9

appropriate standard of review in this case.

10

And as plaintiffs admit, it is the

The Sixth Circuit has recognized that under the

11

rational basis standard for accepting legislative schemes are

12

far from daunting, and the Court will be satisfied with

13

rational speculation, and it's constitutionally irrelevant what

14

reasons in fact underlay the legislative decision.

15

So the state doesn't have to prove that the reasons

16

that it advances actually support the legislation at issue.

17

Rational speculation is sufficient.

18

And in this case there are a number of conceivable

19

rational bases in support of not recognizing an out-of-state

20

same-sex marriage in the narrow context that plaintiffs are

21

requesting this Court.

22

THE COURT:

23

MS. COONTZ:

24

THE COURT:

25

Okay.

We'll get to those in a moment.

Okay.
So the Court's not to consider what the

primary sponsor of the constitutional amendment was out

42

1

advancing, which, in their description, was to fight the

2

pro-homosexual community.

3

MS. COONTZ:

To be clear, the plaintiffs are not

4

before this Court challenging the entire scheme of Ohio's

5

marriage laws.

6

unconstitutional in a limited context.

7

They're only asking this Court to declare them

But to answer the Court's question, no.

In the Sixth

8

Circuit, we don't look at the motivation behind the electorate

9

in passing certain legislature.

10

How do

we reduce to one sentence the will of three million voters?

11
12

Because how do we?

THE COURT:

You look at what the sponsors were

advertising and saying during the election season.

13

But as the Court cautioned in Arthur, to

MS. COONTZ:

14

take the motivations of the sponsors and infer that that was

15

the motivation of the rest of the voters is improper.

16

simply can't do that.

17

what three million people were thinking.

18

to recognize the difficulty in doing that, which is why we

19

don't look at the motivation when trying to determine what was

20

the purpose behind a particular legislative scheme.

We

I can't stand before this Court and say
And the courts have

21

And again, in this case, there are a number of

22

conceivable rational bases for this, for the legislative scheme

23

that Ohio has enacted.

24
25

THE COURT:
them.

And you're about to tick right through

43

1

But you do acknowledge that voters can't pass

2

unconstitutional stuff, right?

3

MS. COONTZ:

Yes.

4

THE COURT:

Okay.

5

MS. COONTZ:

Yes, I do.

The desire to have consistent legislation

6

of a consistent legislative scheme is, in and of itself,

7

entirely consistent.

8
9

Plaintiffs are before this Court asking it to carve
out one separate sect of recognition about same-sex marriage:

10

death certificates only.

11

have to recognize same-sex marriage in any other context.

12

request, in and of itself, demonstrates that there's a rational

13

basis for Ohio's law because it is entirely rational for Ohio

14

to want to remain consistent in its definition of marriage

15

throughout Ohio law.

16

They're not saying that Ohio will
This

It's even more rational, in this as-applied challenge,

17

as plaintiffs have made clear, when they're only asking for

18

this relief for one particular funeral home director, to say,

19

no, the recognition -- the Ohio's marriage laws with respect to

20

death certificates apply equally among all funeral directors.

21

Ohio needs to be consistent.

And it is entirely

22

rational for Ohio to want to remain consistent in this

23

legislative scheme and that, in and of itself, supports the

24

rational basis for refusing to recognize same-sex marriages in

25

recognition of death certificates alone.

44

1
2
3
4
5

The desire to use caution when making a dramatic
shift in -THE COURT:

Is that a rational interest that arose

simply because of this lawsuit?
MS. COONTZ:

It doesn't matter under rational basis.

6

The question is not whether -- I mean, did anybody -- would

7

anybody who had voted for Issue 1, did anybody think that a

8

plaintiff was going to be here asking for a single carve out in

9

the context of death certificates?

10
11

I don't know, but I highly

doubt it.
But under a rational basis, it doesn't matter, because

12

it's not whether the basis offered actually supports --

13

actually supported the legislation when it was enacted.

14

question is whether it is a rational basis supporting the law

15

as it exists today.

16

THE COURT:

The

But you and I understand that the Court's

17

order is going to relate to these plaintiffs, and then there's

18

going to be a court order out there that people are going to

19

reference, particularly if it is sustained on appeal, right?

20

MS. COONTZ:

21

THE COURT:

Yes.
So, I mean, I know the plaintiffs say it

22

is just as-applied to them, but in the real world out there,

23

the stakes are larger, are they not?

24

MS. COONTZ:

25

THE COURT:

Yes.
Very well.

45

1

MS. COONTZ:

And ultimately, what the Court's question

2

goes to is plaintiffs want to have to defend the rational basis

3

of this very narrowly but really this seeks broader relief.

4

mean, the Court's question goes to, yeah, they're seeking a

5

precedent that they don't have to establish the rational basis

6

for that entire precedent they're trying to say, oh, this is

7

narrowed to one limited context.

8

which -- to which the plaintiffs have confined it, in and of

9

itself, provides a rational basis for the consistency that Ohio

10
11

I

But the limited context in

wants to have with its laws.
Similarly, the desire to use caution when making such

12

a dramatic shift in Ohio's policy is entirely rational.

13

terms "husband," "wife," and "spouse" collectively appear

14

hundreds of times throughout the Ohio's Revised Code, so

15

changing who is and who is not married under Ohio law has

16

sweeping consequences.

17

that change deliberatively, if it's going to happen, is

18

entirely rational.

19

The

The voters' desire to evaluate and make

And the Jackson court recognized this when it said

20

that the State may rationally decide to observe the effects of

21

allowing same-sex marriage in other states before changing its

22

definition of marriage.

23

THE COURT:

24

MS. COONTZ:

25

THE COURT:

Who said that, Jackson?

Jackson, 884 F.Supp.2d at 1118.
What court?

District Court?

46

1

MS. COONTZ:

Yes.

2

THE COURT:

3

MS. COONTZ:

4

And again, Your Honor, it is entirely rational --

5

THE COURT:

After or before Windsor?
Before Windsor, Your Honor.

I mean, the need to act cautiously has

6

never been a valid defense to stopping unconstitutional

7

activity, has it?

8
9

MS. COONTZ:

No, but that presumes that the statute is

unconstitutional, and the State's position is that it's not.

10

THE COURT:

11

Very well.

MS. COONTZ:

Again, Your Honor, that -- the existence

12

of Section 2 to DOMA itself is entirely rational.

13

entirely rational for the State to say:

14

presumptively constitutional federal statute that allows Ohio

15

to set its marriage laws as it has, and it provides a rational

16

basis for Ohio's marriage policy.

17

It is

We have a

Ohio's desire to retain the right to define marriage

18

is rational.

19

who is married under Ohio law.

20

allow one state to set the marriage policy for all others.

21

Ohio doesn't want Delaware or Maryland to define

THE COURT:

To allow that to happen would

This Court is not going to have anything

22

to do with ordering Ohio to perform same-sex marriages.

23

not before the Court.

24

one state gives you something and you come to Ohio, can Ohio

25

take it away without due process.

It is a very limited issue.

That's

It is when

47

1

MS. COONTZ:

2

THE COURT:

3

MS. COONTZ:

It's recognition.
Right.
It is.

But what the plaintiffs are

4

asking is that Ohio treat their marriages as valid in Ohio when

5

Ohio law provides that they're not.

6

that Ohio does not have to.

7

And Section 2 of DOMA says

And Ohio -- no matter what happens in this case,

8

Section 2 of DOMA will remain good law because plaintiffs are

9

not challenging it.

10

It is not before the Court today.

Ohio's desire to retain the right to define marriage

11

within its borders is especially -- especially important in

12

this case when just six months ago the Windsor court

13

re-affirmed that right.

14

the principles of Federalism and the right of a state to define

15

marriage for itself.

16

It, again, went through the history of

Ohio's desire to retain the right to define marriage

17

through the democratic versus the judicial process is entirely

18

rational.

19

As the Mazzoleni court made clear, absent a clear

20

public policy statement, the definition of marriage could be a

21

matter for courts.

22

marriage through the judicial practice -- excuse me -- through

23

the democratic versus the judicial process is entirely

24

rational.

25

And wanting to retain the right to define

And this case illustrates that changing laws through

48

1

the judicial process in the piecemeal fashion that plaintiffs

2

seek can create inconsistencies through Ohio law.

3

rational for Ohioans to say, no, we want to do this through the

4

democratic, not through the judicial process.

5

THE COURT:

And it is

I mean, you can't say that we've got a

6

rational state interest in this because we want to control it

7

and we want to pass stuff that doesn't recognize the role of

8

the United States Constitution in preserving our fundamental

9

rights, like our liberty interests in who we associate with,

10
11
12
13

and our right to have equal protection of the laws.
Just because you want to control it, and you want to
vote on it, doesn't give you that right, does it?
MS. COONTZ:

The Windsor court re-affirmed that right

14

six months ago in the court's decision, when it talked of the

15

states' rights to define marriage.

16
17

THE COURT:
question.

That didn't -- it didn't answer the

It did talk about states' rights.

18

MS. COONTZ:

19

THE COURT:

Correct.
And I've always found the politicians say,

20

I'll leave this to the states.

21

Supreme Court has said the federal government cannot fail to

22

recognize valid same-sex marriages, why can't the states?

23

it is what Justice -- that dissenting guy --

24

MS. COONTZ:

25

THE COURT:

But if the United States

And

Scalia.
Scalia.

That's what he predicted.

And he

49

1

said, you know, they're going to cite this case, and he

2

repeated the case and he struck "federal" government and wrote

3

in "state" government.

4

dropped, and now it's here.

5

of the United States Supreme Court.

6

MS. COONTZ:

And that, you know -- and the shoe
And I'm required to follow the law

And, again, the State's position is that

7

Windsor is distinguishable because of the unusual character of

8

the federal government's act in prohibiting recognition of the

9

State's definition of marriage.

It didn't strike down the

10

State's right to define marriage, and it didn't touch Section

11

2.

12

Neither -THE COURT:

And it didn't deal with due process or

13

equal protection.

It said, you know, you don't need to pay

14

attention to the Full Faith and Credit Clause when you do this,

15

but that's not what is presented here, right?

16

MS. COONTZ:

17

THE COURT:

18
19

I

--

Lost you?

Continue your argument.

You're doing fine.
You were running through these legitimate reasons, and

20

you said tradition, and we want to prevail -- continue the

21

Democratic tradition in voting campaigns.

22
23
24
25

What are the other legitimate reasons that you had not
yet identified, or have you gone through them?
MS. COONTZ:

Your Honor, the plaintiffs recognize and

they agree that religious liberties need to be accommodated for

50

1

and balanced when setting forth a marriage policy in Ohio.

And

2

voters -- Ohioans' desire to assure that those accommodations

3

are in place, before changing Ohio's marriage laws, if they're

4

going to change, is entirely rational.

5

And as the Supreme Court told us in Heller, the fact

6

that any one of these rationales is arguable is sufficient to

7

immunize it from constitutional challenge.

8
9
10
11
12

THE COURT:

Unless they're talking about intermediate

review or Sixth Circuit.
MS. COONTZ:

Which we're not.

And plaintiffs agree

that we're not.
THE COURT:

I don't think plaintiffs agree.

They say

13

that, you know, it doesn't even pass rational basis.

14

first argument is heightened scrutiny, a fundamental right.

15

And you pretty quickly said, pay no attention to all those

16

declarations from all those law professors.

17
18

MS. COONTZ:

But their

Well, plaintiffs want it to be heightened

scrutiny.

19

THE COURT:

20

MS. COONTZ:

Right.
And I realize that.

Plaintiffs agree

21

that it is rational basis and that the Windsor court applied

22

rational basis.

23

They also cite in their brief the controlling Sixth

24

Circuit precedent which they argue that -- should be reexamined

25

after Windsor.

But they identify the controlling Sixth Circuit

51

1

precedent as Davis and Scarbrough, which are both cases that

2

applied rational basis scrutiny to a classification based on

3

sexual orientation.

4

THE COURT:

5

which was overruled.

6

MS. COONTZ:

And they argued and relied on Bowers,

Which was overruled by Lawrence.

7

However, what the Supreme Court said in Lawrence is that that

8

case did not involve whether a government must give formal

9

recognition to any relationship that homosexual persons seek to

10

enter.

11

same-sex marriages.

12

Lawrence did not deal with

marriages.

13

That's 539 U.S. at 579.

Expressly didn't deal with same-sex

Further, it wasn't an equal protection case that in

14

any way changed the standard of review to apply to

15

classification based on sexual orientation.

16

obviously knew that Lawrence existed.

17

Lawrence existed, the Windsor court still applied rational

18

basis.

19

The Windsor court

And knowing that

So heightened scrutiny simply doesn't apply in this
We have Davis from 2001, and we have Windsor from only

20

case.

21

six months ago.

22

to the classification at issue in this case.

23

Both are binding and both apply rational basis

THE COURT:

And Windsor said that there was no

24

rational basis for the federal law barring recognition because

25

it was motivated by animus, hatred, and discrimination, right?

52

1

MS. COONTZ:

Due to the unusual character of the

2

federal government's intrusion into an area that was

3

traditionally and historically left to the states.

4
5

THE COURT:

You're telling me I can't look at what the

purpose of the amendment in 2004 was?

6

MS. COONTZ:

Not under Sixth Circuit precedent.

It is

7

not -- the Court cannot -- the State cannot look at the

8

motivations -- the Court cannot look at the motivations behind

9

Issue 1.

10

Because, again, how do we reduce to one sentence, to

11

one thought, the thoughts of three million voters?

We simply

12

can't do it.

13

potentially improperly infer some sort of animus that voters

14

didn't have.

15

We don't look at the motivations behind a popularly enacted

16

measure, such as Ohio's marriage laws.

And in doing so, would improperly infer -- could

And that's why the court said, we don't go there.

17

So, yes, plaintiffs want heightened scrutiny to apply

18

and plaintiffs say that Lawrence is controlling, but it simply

19

is not.

20

Rational basis applies in this case.

Again, the

21

narrow relief that plaintiffs seek shows that rational basis is

22

appropriate -- that there's a rational basis for applying

23

Ohio's marriage laws consistently.

24

not negated every conceivable basis for Ohio's marriage laws,

25

their motion for permanent injunction should be denied.

And because plaintiffs have

53

1

THE COURT:

What do you make of the notion that if

2

somebody gets married out of state, and now they've got a

3

fundamental liberty interest in their status as married, and

4

they move to Ohio, and Ohio takes that away by its ban, why is

5

that not the deprivation of taking away a liberty interest

6

based on due process of law?

7

MS. COONTZ:

Well, the Court's question to plaintiffs'

8

counsel was appropriate regarding the fact that no court has

9

ever said that there's a fundamental right to same-sex

10

marriage.

11

right?

12

fundamental right, then six months ago they would have applied

13

heightened scrutiny and it would be a different standard of

14

review.

15
16
17

So that's really the issue.

No.

Is there a fundamental

And if the Windsor court felt there was a

THE COURT:

But that's a fundamental right as to

getting married same sex.
I'm asking you about the fundamental right, the

18

liberty interest that I got married here, I've got all of my

19

benefits, and now I come to your state and you strip them from

20

me without any procedural protection.

21

due process liberty interest, not equal protection.

22

that okay?

23

states, decide that a marriage license from Delaware is

24

worthless for this occurrence?

25

MS. COONTZ:

That's a violation of a
Why is

Why can't Ohio, when faced with a bunch of co-equal

Because Ohio has the right to define its

54

1

marriage policy pursuant to the constitutional federal marriage

2

statute.

3

marriage.

4

interest that the Court has posed in its question.

5

given that, that question, it still said states have the right

6

to define marriage.

7

have a historical right to do exactly what Ohio did.

8
9
10
11
12
13
14

The Windsor court recognized Ohio's right to define
The Windsor court was clearly aware of this liberty
And even

Section 2 of DOMA still exists, and states

And the outcome of this case will not change that.

It

will still exist.
THE COURT:

Do citizens have a fundamental right, a

liberty interest, in the right to remain married?
MS. COONTZ:

Under the laws of Ohio or under the laws

of the state in which the marriage was performed?
Ohio -- do citizens with a marriage performed out of

15

state, that was against the public policy of Ohio, have a right

16

to be considered married under the laws of Ohio?

17

still married under the laws of the state in which the marriage

18

was performed?

19

No.

Are they

Yes.

Ohio is not invalidating someone else's marriage.

20

We're simply saying that, for Ohio's purposes, their marriage

21

is not recognized under the laws of the State of Ohio.

22

Congress has said that we're allowed to do that, and that's the

23

posture of this case.

24
25

THE COURT:
the record.

Well, I suppose I better recognize it on

You're a good lawyer.

55

1

MS. COONTZ:

2

THE COURT:

3

MS. COONTZ:

4

Thank you, Judge.
Other issues?
No, Your Honor.

No issues from the

State.

5

THE COURT:

6

MS. COONTZ:

7

THE COURT:

8

compelled to reply?

9

Very well.
Thank you.
We'll ask the other lawyers:

MR. GERHARDSTEIN:

10

THE COURT:

11

MR. GERHARDSTEIN:

Do you feel

Very briefly.

That's what they always say.

Windsor is not distinguishable.

12

really is adequate precedent for this marriage-recognition

13

case.

14

It

the same language.

15

And we're getting closer because we're all focused on

There is an unusual character to what Congress did.

16

It started picking between marriages among the states, and it

17

had never done that before.

18

consideration.

19

That created the careful

Ohio has never picked among the states.

If your

20

marriage is valid where it is celebrated, Ohio will honor that.

21

And now, because of same-sex marriage, they've started doing

22

it.

23

adequate precedent.

24
25

Same issue.

It is a recognition case.

Windsor is

And it is interesting that now we're criticized for
seeking too little.

I guess if we had tried to hit a home run,

56

1

then, you know, somehow that would be a better equal protection

2

argument.

3

We are proposing that this Court solve only the

4

problem in front of it.

5

principles are appropriate, which are equal protection and due

6

process, and if the next case has to address some of the other

7

issues, then it will.

8

It can cite to whatever legal

We're not saying that Ohio law will stay the same

9

after this case because there will probably be further legal

10

actions, further attempts at repeal, further legislation, and

11

that's the way the whole process works -- legislation,

12

initiatives, and judicial review.

13

So the fact that we're seeking relief only for these

14

plaintiffs is a recognition of judicial restraint and nothing

15

that should be held against the plaintiffs.

16

The defense counsel said Ohio should not have dictated

17

to it what marriages should be valid.

18

of that before they started following the place-of-celebration

19

rule.

20

when they suddenly see a type of marriage they don't want to

21

honor, they abandon the rule.

22

unusual discrimination that causes, even under equal

23

protection, the level of scrutiny that would strike it down.

24
25

They should have thought

I mean, they have the place-of-celebration rule, now

And that is just the type of

And this is why it is also interesting to think about
common-law marriage.

Because we don't have a court order, we

57

1

don't have a marriage certificate, we don't have an edict.

2

so that clearly doesn't implicate Section 2 of DOMA.

3

have an Ohio place-of-celebration rule that says, if your

4

common-law marriage is valid in whatever state you entered into

5

it, and you come to Ohio, we'll give you a divorce.

6

recognize it on your death certificate.

7

appeal to the Probate Court as a surviving spouse.

8

doesn't involve DOMA at all because there was no paperwork back

9

there when they got the common-law marriage.

10

And

We simply

Or we'll

Or we'll let you
And that

And yet Ohio went to the pain to amend its common-law

11

marriage statute to say, well, we're not going to recognize

12

this with respect to same-sex marriages, an unusual

13

discrimination that triggers careful consideration.

14

DOMA is irrelevant, to that and to the rest of the

15

argument, because you don't need to go through that passage if

16

you choose not to.

17

somebody is using the Full Faith and Credit Clause, will we

18

attack Section 2?

19

again, that's an appeal to using judicial restraint and solving

20

only the problem in front of you.

21
22

THE COURT:

If we have the appropriate case where

Absolutely.

Do we need to here?

No.

And you'll file that civil action in

Columbus?

23

MR. GERHARDSTEIN:

24

There was a question about religious liberty.

25

And,

Well, we'll see where venue lies.
We

don't need to solve the religious problem before there's any

58

1

change in the law.

2

problems and then the rest of the civic system, with

3

legislatures and so forth, can come afterwards to address any

4

additional problems that might come up.

5

This Court addresses constitutional

Finally, Judge, there was this notion that Ohio law

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prohibited same-sex marriages before and that the law we're

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challenging didn't change anything.

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this up.

I just wanted to clear

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There was no reference in Ohio law to same-sex

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marriages before the statute which we're challenging, 3101, was

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passed and became effective in 2004.

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became effective afterward, in November.

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technically, the amendment didn't change what the statute did,

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but we're here challenging both.

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The amendment, Issue 1,
So I suppose

We're here challenging the marriage recognition ban,

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both in the statute and in the Ohio Constitution.

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fact, there was a major difference in Ohio law as a result of

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the bans recognized by those acts, and that was a huge change

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in how Ohio applied the place-of-celebration rule, which is

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deficient under heightened scrutiny, which we urge the Court to

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apply, and under rational basis as applied using that language

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we've been talking about in Windsor and Romer.

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And, in

And even under other aspects of rational basis, we've

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cited in our brief at document 62, page 16, Craigmiles versus

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Giles.

In that case, the Court, applying rational basis said:

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All right, Tennessee cannot -- can't allow only licensed

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funeral directors to sell caskets because there are other

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stores out there that want to sell caskets.

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that just simply favors one business person over another.

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failed rational basis.

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And this is a law
That

So rational basis is not crystal clear all the time.

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But clearly, when the purpose is to harm one to the benefit of

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another, especially when the target has historically been

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discriminated against, as the Court did in Windsor, we'd ask

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this Court to do here, and strike down the Ohio marriage

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recognition ban as applied in this context.

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Thank you.

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THE COURT:

Very well.

Well, oral argument has been

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helpful to the Court.

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is excellent and the Court's preparing to act.

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It's been helpful all along.

The current order expires December 31st.

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needs to act before then.

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Briefing

The Court

holidays.

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It's been helpful and I'm prepared to adjourn, unless
there's more.

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I would like to act before the

Is there more from the plaintiff's perspective?

MR. GERHARDSTEIN:

Nothing from the plaintiffs, Your

Honor.

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THE COURT:

From the defendants?

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MS. COONTZ:

Nothing, Your Honor.

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MR. HERZIG:

Nothing, Your Honor.

Thank you.

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THE COURT:

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Very well.

Thank you all.

The Court

prepares to recess.

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THE COURTROOM DEPUTY:

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(The proceedings concluded at 11: 24 a.m.)

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All rise.

- - -

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

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certify that the foregoing is a correct transcript from the

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record of proceedings in the above-entitled matter.

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