Henry et al v. Wymyslo et al
Filing
28
ORDER GRANTING PLAINTIFFS' MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION. Signed by Judge Timothy S. Black on 4/14/2014. (mr1)
UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF OHIO (W.D.)
BRITTANI HENRY, et al.,
Plaintiffs,
vs.
LANCE HIMES, et al.,
Defendants.
:
:
:
:
:
Case No. 1:14-cv-129
Judge Timothy S. Black
ORDER GRANTING PLAINTIFFS’ MOTION FOR
DECLARATORY JUDGMENT AND PERMANENT INJUNCTION
On December 23, 2013, this Court ruled in no uncertain terms that:
“Article 15, Section 11, of the Ohio Constitution, and Ohio Revised
Code Section 3101.01(C) [Ohio’s “marriage recognition bans”], violate
rights secured by the Fourteenth Amendment to the United States Constitution
in that same-sex couples married in jurisdictions where same-sex marriage is
lawful, who seek to have their out-of-state marriage recognized and accepted
as legal in Ohio, are denied their fundamental right to marriage recognition
without due process of law; and are denied their fundamental right to equal
protection of the laws when Ohio does recognize comparable heterosexual
marriages from other jurisdictions, even if obtained to circumvent Ohio law.”
Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 997 (S.D. Ohio 2013).
The Obergefell ruling was constrained by the limited relief requested by the
Plaintiffs in that case, but the analysis was nevertheless universal and unmitigated, and
it directly compels the Court’s conclusion today. The record before the Court, which
includes the judicially-noticed record in Obergefell, is staggeringly devoid of any
legitimate justification for the State’s ongoing arbitrary discrimination on the basis of
sexual orientation, and, therefore, Ohio’s marriage recognition bans are facially
unconstitutional and unenforceable under any circumstances. 1
1
The Court’s Order today does NOT require Ohio to authorize the performance of same-sex
marriage in Ohio. Today’s ruling merely requires Ohio to recognize valid same-sex marriages
lawfully performed in states which do authorize such marriages.
1
It is this Court’s responsibility to give meaning and effect to the guarantees of the
federal constitution for all American citizens, and that responsibility is never more
pressing than when the fundamental rights of some minority of citizens are impacted by
the legislative power of the majority. As the Supreme Court explained over 70 years ago:
The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be
applied by the courts. One’s right to life, liberty, and property, to free
speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they depend on the
outcome of no elections.
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis supplied).
This principle is embodied by the Court’s decision today and by the ten out of ten
federal rulings since the Supreme Court’s holding in United States v. Windsor — all
declaring unconstitutional and enjoining similar bans in states across the country. 2
2
See, e.g., Kitchen v. Herbert, 2013 WL 6697874, at *30 (D. Utah Dec. 20, 2013) (permanently
enjoining Utah anti-celebration provisions on due process and equal protection grounds);
Obergefell, 962 F. Supp.2d at 997-98 (permanently enjoining as to plaintiffs enforcement of
Ohio anti-recognition provisions on due process and equal protection grounds); Bishop v. United
States ex rel. Holder, 2014 WL 116013, at *33-34 (N.D. Okla. Jan. 14, 2014) (permanently
enjoining Oklahoma’s anti-celebration provisions on equal protection grounds); Bourke v.
Beshear, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014) (declaring Kentucky’s antirecognition provisions unconstitutional on equal protection grounds); Bostic v. Rainey, 2014 WL
561978, at *23 (E.D. Va. Feb. 13, 2014) (finding Virginia’s anti-celebration and anti-recognition
laws unconstitutional on due process and equal protection grounds, and preliminarily enjoining
enforcement); Lee v. Orr, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (declaring Illinois
celebration ban unconstitutional on equal protection grounds); De Leon v. Perry, 2014 WL
715741, at *1, 24 (W.D. Tex. Feb. 26, 2014) (preliminarily enjoining Texas anti-celebration and
anti-recognition provisions on equal protection and due process grounds); Tanco v. Haslam,
2014 WL 997525, at *6, 9 (M.D. Tenn. Mar. 14, 2014) (enjoining enforcement of Tennessee
anti-recognition provisions on equal protection grounds); DeBoer v. Snyder, 2014 WL 1100794,
at *17 (E.D. Mich. Mar. 21, 2014) (permanently enjoining Michigan anti-celebration provisions
on equal protection grounds); Baskin v. Bogan (S.D. Ind. April 10, 2014 (J. Young) (temporarily
enjoining Indiana’s marriage recognition ban).
2
The pressing and clear nature of the ongoing constitutional violations embodied by these
kinds of state laws is evidenced by the fact the Attorney General of the United States and
eight state attorneys general have refused to defend provisions similar to Ohio’s marriage
recognition bans. (Doc. 25 at 2).
This civil action is now before the Court on Plaintiffs’ Motion for Declaratory
Judgment and Permanent Injunction (Doc. 18) and the parties’ responsive memoranda.
(Docs. 20 and 25). Plaintiffs include four same-sex couples married in jurisdictions that
provide for such marriages, including three female couples who are expecting children
conceived via anonymous donors within the next few months and one male couple with
an Ohio-born adopted son. All four couples are seeking to have the names of both
parents recorded on their children’s Ohio birth certificates. More specifically, Plaintiffs
seek a declaration that Ohio’s refusal to recognize valid same-sex marriages is
unconstitutional, a permanent injunction prohibiting Defendants and their officers and
agents from enforcing those bans or denying full faith and credit to decrees of adoption
duly obtained by same-sex couples in other jurisdictions, and the issuance of birth
certificates for the Plaintiffs’ children listing both same-sex parents. (Doc. 18 at 1-2).
3
I.
A.
ESTABLISHED FACTS
Marriage Law in Ohio 3
The general rule in the United States for interstate marriage recognition is the
“place of celebration rule,” or lex loci contractus, which provides that marriages valid
where celebrated are valid everywhere. Historically, Ohio has recognized marriages that
would be invalid if performed in Ohio, but are valid in the jurisdiction where celebrated.
This is true even when such marriages clearly violate Ohio law and are entered into
outside of Ohio with the purpose of evading Ohio law with respect to marriage. Ohio
departed from this tradition in 2004 to adopt its marriage recognition ban. Prior to 2004,
the Ohio legislature had never passed a law denying recognition to a specific type of
marriage solemnized outside of the state.
Ohio Revised Code Section 3101 was amended in 2004 to prohibit same-sex
marriages in the state and to prohibit recognition of same-sex marriages from other states.
Sub-section (C) provides the following:
(1) Any marriage between persons of the same sex is against the strong
public policy of this state. Any marriage between persons of the same sex
shall have no legal force or effect in this state and, if attempted to be
entered into in this state, is void ab initio and shall not be recognized by this
state.
(2) Any marriage entered into by persons of the same sex in any other
jurisdiction shall be considered and treated in all respects as having no legal
force or effect in this state and shall not be recognized by this state.
3
See Obergefell, 962 F. Supp. 2d at 974-75.
4
(3) The recognition or extension by the state of the specific statutory
benefits of a legal marriage to nonmarital relationships between persons of
the same sex or different sexes is against the strong public policy of this
state. Any public act, record, or judicial proceeding of this state, as defined
in section 9.82 of the Revised Code, that extends the specific statutory
benefits of legal marriage to nonmarital relationships between persons of
the same sex or different sexes is void ab initio . . .
(4) Any public act, record, or judicial proceeding of any other state,
country, or other jurisdiction outside this state that extends the specific
benefits of legal marriage to nonmarital relationships between persons of
the same sex or different sexes shall be considered and treated in all
respects as having no legal force or effect in this state and shall not be
recognized by this state.
Ohio Rev. Code Ann. § 3101.01.
Also adopted in 2004 was an amendment to the Ohio Constitution, which states:
Only a union between one man and one woman may be a marriage valid in
or recognized by this state and its political subdivisions. This state and its
political subdivisions shall not create or recognize a legal status for
relationships of unmarried individuals that intends to approximate the
design, qualities, significance or effect of marriage.
Ohio Const. art. XV, § 11.
5
B.
Plaintiffs
1.
Henry/Rogers Family 4
Plaintiffs Brittani Henry and Brittni Rogers met in 2008. They have been in a
loving, committed same-sex relationship since that time. On January 17, 2014, they were
validly married in the state of New York, which state legally recognizes their marriage.
Having established a home together and enjoying the support of their families, the couple
decided they wanted to have children. Henry became pregnant through artificial
insemination (“AI”), and she is due to deliver a baby boy in June 2014. The sperm donor
is anonymous. Without action by this Court, Defendants Jones and Himes will list only
one of these Plaintiffs as their son’s parent on his birth certificate.
2.
Yorksmith Family 5
Nicole and Pam Yorksmith met and fell in love in 2006. They were married on
October 14, 2008 in California, which state legally recognizes their marriage. The
Yorksmith family already includes a three-year-old son born in Cincinnati in 2010. He
was conceived through AI using an anonymous sperm donor. Nicole is their son’s birth
mother, but Pam was fully engaged in the AI process, pregnancy, and birth. They share
the ongoing role as parents. However, only Nicole is listed on their son’s birth certificate
because Defendants will not list the names of both same-sex married parents on the birth
certificates of their children conceived through AI.
4
5
See Doc. 4-2.
See Doc. 4-3.
6
Failing to have both parents listed on their son’s birth certificate has caused the
Yorksmith Family great concern. They have created documents attempting to ensure that
Pam will be recognized with authority to approve medical care, deal with childcare
workers and teachers, travel alone with their son, and otherwise address all the issues
parents must resolve. Nicole and Pam allege that Defendants’ denial of recognition of
Pam’s role as parent to their child is degrading and humiliating for the family.
Now Nicole is pregnant with their second child. She expects to give birth in June
in Cincinnati. Nicole and Pam are married and will continue to be a married couple when
their second child is born, but Defendants have taken the position that they are prohibited
under Ohio law from recognizing the California marriage and both married spouses on
the birth certificate of the Yorksmiths’ baby boy. Without action by this Court,
Defendants Jones and Himes will list only one of these Plaintiffs as their son’s parent on
his birth certificate.
3.
Noe/McCracken Family 6
Plaintiffs Kelly Noe and Kelly McCracken have been in a loving, committed
same-sex relationship since 2009. From the beginning of their time together, they agreed
that they would have children. They were married in 2011 in the state of Massachusetts,
which legally recognizes their marriage. Noe became pregnant through AI using an
anonymous sperm donor. She expects to deliver a baby in a Cincinnati hospital in June
2014. McCracken consented to and was a full participant in the decision to build their
family using AI. Noe and McCracken are married now and will continue to be a married
6
See Doc. 4-4.
7
couple when their child is born, but Defendants have taken the position that they are
prohibited under Ohio law from recognizing the Massachusetts marriage and the marital
presumption of parentage that should apply to this family for purposes of naming both
parents on the baby’s birth certificate. Without action by this Court, Defendants Jones
and Himes will list only one of these Plaintiffs as a parent on the baby’s birth certificate
when the child is born.
4.
Vitale/Talmas Family 7
Plaintiffs Joseph J. Vitale and Robert Talmas met in 1997. They live in New York
City, where they work as corporate executives. Vitale and Talmas married on September
20, 2011 in New York, which state legally recognizes their marriage. The couple
commenced work with Plaintiff Adoption S.T.A.R. to start a family through adoption.
Adopted Child Doe was born in Ohio in 2013 and custody was transferred to Plaintiff
Adoption S.T.A.R. shortly after birth. Vitale and Talmas immediately assumed physical
custody and welcomed their son into their home. On January 17, 2014, an Order of
Adoption of Adopted Child Doe was duly issued by the Surrogate’s Court of the State of
New York, County of New York, naming both Vitale and Talmas as full legal parents of
Adopted Child Doe.
Plaintiffs are applying to the Ohio Department of Health, Office of Vital Statistics,
for an amended birth certificate listing Adopted Child Doe’s adoptive name and naming
Vitale and Talmas as his adoptive parents. Based on the experience of Plaintiff Adoption
S.T.A.R. with other clients and their direct communications with Defendant Himes’s staff
7
See Doc. 4-5.
8
at the Ohio Department of Health, Adopted Child Doe will be denied a birth certificate
that lists both men as parents. On the other hand, heterosexual couples married in New
York who secure an order of adoption from a New York court regarding a child born in
Ohio have the child’s adoptive name placed on his or her birth certificate along with the
names of both spouses as the parents of the adoptive child as a matter of course.
Without action by this Court, Defendant Himes will allow only one of these
Plaintiffs to be listed as the parent on the birth certificate of Adopted Child Doe. Vitale
and Talmas object to being forced to choose which one of them to be recognized as their
son’s parent and to allowing this vitally important document to misrepresent the status of
their family. They do not wish to expose their son to the life-long risks and harms they
allege are attendant to having only one of his parents listed on his birth certificate.
5.
Adoption S.T.A.R. 8
Plaintiffs allege that prior to Governor Kasich, Attorney General DeWine, and
prior-Defendant Wymyslo taking office in January, 2011, the Ohio Department of Health
provided same-sex married couples such as Plaintiffs Vitale and Talmas with birth
certificates for their adopted children, consistent with those requested in the Complaint.
(Doc. 1). Defendant Himes has changed that practice, and now denies married same-sex
couples with out-of-state adoption decrees amended birth certificates for their Ohio-born
children naming both adoptive parents. (See Docs. 4-6, 4-7, and 4-8).
As a result of Ohio’s practice of not amending birth certificates for the adopted
children of married same-sex parents, Plaintiff Adoption S.T.A.R. alleges it has been
8
See Doc. 4-6.
9
forced to change its placement agreements to inform potential same-sex adoptive parents
that they will not be able to receive an accurate amended birth certificate for adopted
children born in Ohio. Adoption S.T.A.R. alleges it has expended unbudgeted time and
money to change its agreements and advise same-sex adoptive parents of Ohio’s
discriminatory practice. It alleges it has devoted extra time and money to cases like that
of Plaintiffs Vitale and Talmas involving same-sex married couples who adopt children
born in Ohio through court actions in other states. Adoption S.T.A.R. alleges that the
process to seek an accurate birth certificate for Adopted Child Doe – including
participation in this lawsuit – is expected to be a protracted effort that will cause the
expenditure of extra time and money.
Adoption S.T.A.R. has served same-sex married couples in previous adoption
cases and is currently serving other same-sex married couples in various stages of the
adoption process in other states for children born in Ohio. Adoption S.T.A.R. alleges it
will serve additional same-sex married couples in this capacity in the future. Adoption
S.T.A.R. alleges that its clients’ inability to secure amended birth certificates from
Defendant Himes accurately listing both same-sex married persons as the legal parents of
their adopted children imposes a significant burden on the agency’s ability to provide
adequate and equitable adoption services to its clients, results in incomplete adoptions
and loss of revenue, and frustrates the very purpose of providing adoption services to its
clients in the first place.
10
II.
STANDARD OF REVIEW
Plaintiffs go beyond the as-applied challenge pursued in Obergefell and now seek
a declaration that Ohio’s marriage recognition ban is facially unconstitutional, invalid,
and unenforceable. (Doc. 18 at 15). In other words, Plaintiffs allege that “no set of
circumstances exists under which the [challenged marriage recognition ban] would be
valid,” and the ban should therefore be struck down in its entirety. United States v.
Salerno, 481 U.S. 739, 745 (1987); see also De Leon v. Perry, SA-13-CA-00982-OLG,
2014 WL 715741 (W.D. Tex. Feb. 26, 2014) (declaring that Texas’s ban on same-sex
marriages and marriage recognition “fails the constitutional facial challenge because…
Defendants have failed to provide any – and the Court finds no – rational basis that
banning same-sex marriage furthers a legitimate governmental interest”).
“A party is entitled to a permanent injunction if it can establish that it suffered a
constitutional violation and will suffer continuing irreparable injury for which there is no
adequate remedy at law.” Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583
(6th Cir. 2012); Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006)
(citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)); Obergefell,
962 F. Supp. 2d at 977. It lies within the sound discretion of the district court to grant or
deny a motion for permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006); Obergefell, 962 F. Supp. 2d at 977 (citing Kallstrom, 136 F.3d at 1067);
Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994).
The existence of another adequate remedy does not preclude a declaratory
judgment that is otherwise appropriate. Fed. R. Civ. P. 57. In the Sixth Circuit, “[t]he
11
two principal criteria guiding the policy in favor of rendering declaratory judgments are
(1) when the judgment will serve a useful purpose in clarifying and settling the legal
relations in issue, and (2) when it will terminate and afford relief from the uncertainty,
insecurity, and controversy giving rise to the proceeding.” Savoie v. Martin, 673 F.3d
488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746
F.2d 323, 326 (6th Cir. 1984)); see also Obergefell, 962 F. Supp. 2d at 977. Both
circumstances arise here.
III.
ANALYSIS
This Court has already held in Obergefell that Ohio’s refusal to recognize the outof-state marriages of same-sex couples violates the Fourteenth Amendment due process
“right not to be deprived of one’s already-existing legal marriage and its attendant
benefits and protections.” 962 F. Supp. 2d at 978. In the birth certificate context, much
like in the death certificate context, the marriage recognition ban denies same-sex
married couples the “attendant benefits and protections” associated with state marriage
recognition and documentation. This Court further held in Obergefell that the marriage
recognition ban “violate[s] Plaintiffs’ constitutional rights by denying them equal
protection of the laws.” Id. at 983. Finally, this Court declared the marriage recognition
ban unconstitutional and unenforceable in the death certificate context.
The Court’s analysis in Obergefell controls here, and compels not only the
conclusion that the marriage recognition ban is unenforceable in the birth certificate
context, but that it is facially unconstitutional and unenforceable in any context
whatsoever.
12
A.
Facial Challenge
Despite the limited relief pursued by the Plaintiffs in that case, this Court’s
conclusion in Obergefell clearly and intentionally expressed the facial invalidity of
Ohio’s marriage recognition ban, not only as applied to the Plaintiffs and the issue of
death certificates, but in any application to any married same-sex couple. 962 F. Supp.
2d at 997. Ohio’s marriage recognition ban embodies an unequivocal, purposeful, and
explicitly discriminatory classification, singling out same-sex couples alone,
for disrespect of their out-of-state marriages and denial of their fundamental liberties.
This classification, relegating lesbian and gay married couples to a second-class status in
which only their marriages are deemed void in Ohio, is the core constitutional violation
all of the Plaintiffs challenge.
The United States Constitution “neither knows nor tolerates classes among
citizens.” Romer v. Evans, 517 U.S. 620, 623 (1996) (emphasis supplied). There can be
no circumstance under which this discriminatory classification is constitutional, as it was
intended to, and on its face does, stigmatize and disadvantage same-sex couples and their
families, denying only to them protected rights to recognition of their marriages and
violating the guarantee of equal protection. Indeed, this Court already held as much in
Obergefell, finding that Ohio enacted the marriage recognition bans with discriminatory
animus and without a single legitimate justification. 962 F. Supp. 2d at 995.
13
As noted, following the Supreme Court’s ruling in Windsor v. United States, 133
S. Ct. 2675 (2013), a spate of federal courts from across the nation has issued rulings
similar to Obergefell, holding that a state’s ban on the right of same-sex couples to marry
or to have their out-of-state marriages recognized violates the constitutional due process
and equal protection rights of these families. There is a growing national judicial
consensus that state marriage laws treating heterosexual and same-sex couples differently
violate the Fourteenth Amendment, and it is this Court’s responsibility to act decisively
to protect rights secured by the United States Constitution.
The Supreme Court explained in Citizens United v. Federal Election Commission
that “the distinction between facial and as-applied challenges is not so well defined that it
has some automatic effect or that it must always control the pleadings and disposition in
every case involving a constitutional challenge.” 558 U.S. 310, 331 (2010). The
distinction between the two “goes to the breadth of the remedy employed by the Court,
not what must be pleaded in a complaint.” Id. Even in a case explicitly framed only as
an as-applied challenge (which this case is not), the Court has authority to facially
invalidate a challenged law. “‘[O]nce a case is brought, no general categorical line bars a
court from making broader pronouncements of invalidity in properly ‘as-applied’ cases.’”
Id. at 331 (quoting Richard H. Fallon, Jr., As-Applied and Facial Challenges and ThirdParty Standing, 113 HARV. L. REV. 1321, 1339 (2000)).
It is therefore well within the Court’s discretion to find the marriage ban facially
unconstitutional and unenforceable in all circumstances on the record before it, and given
the Court’s extensive and comprehensive analysis in Obergefell pointing to the
14
appropriateness of just such a conclusion, Defendants have been on notice of the likely
facial unconstitutionality of the marriage ban since before this case was ever filed.
B.
Due Process Clause
The Due Process Clause of the Fourteenth Amendment establishes that no state
may “deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The Due Process Clause protects “vital personal rights essential
to the orderly pursuit of happiness by free men,” more commonly referred to as
“fundamental rights.” Loving v. Virginia, 388 U.S. 1, 12 (1967). There are a number of
fundamental rights and/or liberty interests protected by the Due Process clause that are
implicated by the marriage recognition ban, including the right to marry, the right to
remain married, 9 and the right to parental autonomy.
1.
Right to Marry
“The freedom to marry has long been recognized” as a fundamental right protected
by the Due Process Clause. Loving, 388 U.S. at 12 (1967). 10 Some courts have not
found that a right to same-sex marriage is implicated in the fundamental right to marry.
9
The concept of the right to remain married as a liberty interest protected by the Due Process
Clause is advanced by Professor Steve Sanders in his article The Constitutional Right to (Keep
Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011).
10
See also Turner v. Safley, 482 U.S. 78, 95 (1987) (“The decision to marry is a fundamental
right”); Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (“[T]he Constitution protects the
sanctity of the family precisely because the institution of the family is deeply rooted in this
Nation’s history and tradition”); Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965)
(intrusions into the “sacred precincts of marital bedrooms” offend rights “older than the Bill of
Rights”); id. at 495-496 (Goldberg, J., concurring) (the law in question “disrupt[ed] the
traditional relation of the family – a relation as old and as fundamental as our entire
civilization”); see generally Washington v. Glucksberg, 521 U.S. 702, 727 n.19 (1997) (citing
cases).
15
See, e.g., Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1094-98 (D. Haw. 2012). 11
However, neither the Sixth Circuit nor the Supreme Court have spoken on the issue, and
this Court finds no reasonable basis on which to exclude gay men, lesbians, and others
who wish to enter into same-sex marriages from this culturally foundational institution.
First, while states have a legitimate interest in regulating and promoting marriage,
the fundamental right to marry belongs to the individual. Accordingly, “the regulation
of constitutionally protected decisions, such as where a person shall reside or whom
he or she shall marry, must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made.” Hodgson v. Minnesota, 497
U.S. 417, 435 (1990) (emphasis supplied); see also Loving, 388 U.S. at 12 (“Under our
Constitution, the freedom to marry, or not marry, a person of another race resides with
the individual and cannot be infringed by the State”); Roberts v. U.S. Jaycees, 468 U.S.
609, 620 (1984) (“[T]he Constitution undoubtedly imposes constraints on the State’s
power to control the selection of one’s spouse …”).
The Supreme Court has consistently refused to narrow the scope of the
fundamental right to marry by reframing a plaintiff’s asserted right to marry as a more
limited right that is about the characteristics of the couple seeking marriage. In
individual cases regarding parties to potential marriages with a wide variety of
11
See also Wilson v. Ake, 354 F. Supp. 2d 1298, 1306-07 (M.D. Fla. 2005) (“No federal court
has recognized that [due process] . . . includes the right to marry a person of the same sex”)
(internal citation omitted); Conaway v. Deane, 932 A.2d 571, 628 (Md. App. 2007) (“[V]irtually
every court to have considered the issue has held that same-sex marriage is not constitutionally
protected as fundamental in either their state or the Nation as a whole”); Hernandez v. Robles,
885 N.E.2d 1, 9 (N.Y. 2006) (“The right to marry is unquestionably a fundamental right . . . The
right to marry someone of the same sex, however, is not “deeply rooted,” it has not even been
asserted until relatively recent times”).
16
characteristics, the Court consistently describes a general “fundamental right to marry”
rather than “the right to interracial marriage,” “the right to inmate marriage,” or “the right
of people owing child support to marry.” See Golinski v. U.S. Office of Pers. Mgmt., 824
F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012) (citing Loving, 388 U.S. at 12; Turner, 482
U.S. at 94-96; Zablocki v. Redhail, 434 U.S. 374, 383-86 (1978); accord In re Marriage
Cases, 183 P.3d 384, 421 n.33 (Cal. 2008) (Turner “did not characterize the
constitutional right at issue as ‘the right to inmate marriage’”).
In Lawrence v. Texas, 549 U.S. 558 (2003), the Supreme Court held that the right
of consenting adults (including same-sex couples) to engage in private, sexual intimacy is
protected by the Fourteenth Amendment’s protection of liberty, notwithstanding the
historical existence of sodomy laws and their use against gay people. For the same
reasons, the fundamental right to marry is “deeply rooted in this Nation’s history and
tradition” for purposes of constitutional protection even though same-sex couples have
not historically been allowed to exercise that right. “[H]istory and tradition are the
starting point but not in all cases the ending point of the substantive due process inquiry.”
Id. at 572 (citation omitted). While courts use history and tradition to identify the
interests that due process protects, they do not carry forward historical limitations, either
traditional or arising by operation of prior law, on which Americans may exercise a right,
once that right is recognized as one that due process protects.
“Fundamental rights, once recognized, cannot be denied to particular groups on
the ground that these groups have historically been denied those rights.” In re Marriage
Cases, 183 P.3d at 430 (quotation omitted). For example, when the Supreme Court held
17
that anti-miscegenation laws violated the fundamental right to marry in Loving, it did so
despite a long tradition of excluding interracial couples from marriage. Planned
Parenthood v. Casey, 505 U.S. 833, 847-48 (1992) (“[I]nterracial marriage was illegal in
most States in the 19th century, but the Court was no doubt correct in finding it to be an
aspect of liberty protected against state interference by the substantive component of the
Due Process Clause in Loving …”); Lawrence, 539 U.S. at 577-78 (“[N]either history nor
tradition could save a law prohibiting miscegenation from constitutional attack”) (citation
omitted). Indeed, the fact that a form of discrimination has been “traditional” is a reason
to be more skeptical of its rationality and cause for courts to be especially vigilant.
Cases subsequent to Loving have similarly confirmed that the fundamental right
to marry is available even to those who have not traditionally been eligible to
exercise that right. See Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (states may not
require indigent individuals to pay court fees in order to obtain a divorce, since doing so
unduly burdened their fundamental right to marry again); see also Zablocki, 434 U.S. at
388-90 (state may not condition ability to marry on fulfillment of existing child support
obligations). Similarly, the right to marry as traditionally understood in this country did
not extend to people in prison. See Virginia L. Hardwick, Punishing the Innocent:
Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275,
277-79 (1985). Nevertheless, in Turner, 482 U.S. at 95-97, the Supreme Court held that
a state cannot restrict a prisoner’s ability to marry without sufficient justification. When
analyzing other fundamental rights and liberty interests in other contexts, the
18
Supreme Court has consistently adhered to the principle that a fundamental right, once
recognized, properly belongs to everyone. 12
Consequently, based on the foregoing, the right to marriage is a fundamental right
that is denied to same-sex couples in Ohio by the marriage recognition bans.
2.
Right of Marriage Recognition
Defendants also violate the married Plaintiffs’ right to remain married by
enforcing the marriage bans, which right this Court has already identified as “a
fundamental liberty interest appropriately protected by the Due Process Clause of the
United States Constitution.” Obergefell, 962 F. Supp. 2d at 978. “When a state
effectively terminates the marriage of a same-sex couple married in another jurisdiction,
it intrudes into the realm of private marital, family, and intimate relations specifically
protected by the Supreme Court.” Id. at 979; see also Windsor, 133 S. Ct. at 2694
(When one jurisdiction refuses recognition of family relationships legally established in
another, “the differentiation demeans the couple, whose moral and sexual choices the
Constitution protects … and whose relationship the State has sought to dignify”).
12
See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982) (an individual involuntarily
committed to a custodial facility because of a disability retained liberty interests including a right
to freedom from bodily restraint, thus departing from a longstanding historical tradition in which
people with serious disabilities were not viewed as enjoying such substantive due process rights
and were routinely subjected to bodily restraints in institutions); Eisenstadt v. Baird, 405 U.S.
438 (1972) (striking down a ban on distributing contraceptives to unmarried persons, building on
a holding in Griswold, 381 U.S. at 486, that states could not prohibit the use of contraceptives by
married persons); Lawrence, 539 U.S. at 566-67 (lesbian and gay Americans could not be
excluded from the existing fundamental right to sexual intimacy, even though historically they
had often been prohibited from full enjoyment of that right).
19
As the Supreme Court has held: this differential treatment “humiliates tens of
thousands of children now being raised by same-sex couples,” which group includes
Adopted Child Doe and the children who will be born to the Henry/Rogers, Yorksmith,
and Noe/McCracken families. Windsor, 133 S. Ct. at 2694.
3.
Right to Parental Authority
Finally, the marriage recognition bans also implicate the parenting rights of samesex married couples with children. The Constitution accords parents significant rights in
the care and control of their children. See Parham v. J.R., 442 U.S. 584, 602 (1979).
Parents enjoy unique rights to make crucial decisions for their children, including
decisions about schooling, religion, medical care, and with whom the child may have
contact. See, e.g., id. (medical decisions); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)
(education and religion); Meyer v. Nebraska, 262 U.S. 390 (1923) (education); Troxel
v.Granville, 530 U.S. 57 (2000) (visitation with relatives). U.S. Supreme Court rulings,
reflected in state laws, make clear that these parental rights are fundamental and may be
curtailed only under exceptional circumstances. See Troxel, 530 U.S. at 66; Stanley v.
Illinois, 405 U.S. 645, 651-52 (1972); see also, e.g., In re D.A., 862 N.E.2d 829, 832
(Ohio 2007) (citing Ohio cases on parents’ “paramount” right to custody of their
children).
4.
Level of Scrutiny
As a general matter, the Supreme Court applies strict scrutiny when a state law
encroaches on a fundamental right, and thus such scrutiny is appropriate in the context of
20
the right to marry and the right to parental authority. See, e.g., Roe v. Wade, 410 U.S.
113, 155 (1973).
The right to marriage recognition has not been expressly recognized as
“fundamental,” however, and in the previously referenced set of cases establishing the
highly-protected status of existing marriage, family, and intimate relationships, the
Supreme Court has often applied an intermediate standard of review falling in between
rational basis and strict scrutiny. See, e.g., Moore, 431 U.S. at 113 (1977) (balancing the
state interests advanced and the extent to which they are served by the challenged law
against the burden on plaintiff’s rights); Zablocki, 434 U.S. at 374 (same). As this Court
held in Obergefell, “the balancing approach of intermediate scrutiny is appropriate in this
similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ alreadyestablished marital and family relations.” 962 F. Supp. 2d at 979.
5.
Burden on Plaintiffs
When couples – including same-sex couples – enter into marriage, it generally
involves long-term plans for how they will organize their finances, property, and family
lives. “In an age of widespread travel and ease of mobility, it would create inordinate
confusion and defy the reasonable expectations of citizens whose marriage is valid in one
state to hold that marriage invalid elsewhere.” In re Estate of Lenherr, 314 A.2d 255,
258 (Pa. 1974). Married couples moving from state to state have an expectation that their
marriage and, more concretely, the property interests involved with it – including bank
accounts, inheritance rights, property, and other rights and benefits associated with
marriage – will follow them.
21
When a state effectively terminates the marriage of a same-sex couple
married in another jurisdiction by refusing to recognize the marriage, that state
unlawfully intrudes into the realm of private marital, family, and intimate relations
specifically protected by the Supreme Court. After Lawrence, same-sex relationships
fall squarely within this sphere, and when it comes to same-sex couples, a state may not
“seek to control a personal relationship,” “define the meaning of the relationship,” or “set
its boundaries absent injury to a person or abuse of an institution the law protects.”
Lawrence, 539 U.S at 578.
For example, when a parent’s legal relationship to his or her child is terminated by
the state, it must present clear and convincing evidence supporting its action to overcome
the burden of its loss, Santosky v. Kramer, 455 U.S. 745, 753, 769 (1982); and, here, a
similar legal familial relationship is terminated by Ohio’s marriage recognition ban.
Moreover, the official statutory and constitutional establishment of same-sex couples
married in other jurisdictions as a disfavored and disadvantaged subset of relationships
has a destabilizing and stigmatizing impact on those relationships. In striking down the
statutory provision that had denied gay and lesbian couples federal recognition of their
otherwise valid marriages in Windsor, the Supreme Court observed:
22
[The relevant statute] tells those couples, and all the world, that their
otherwise valid marriages are unworthy of . . . recognition. This places
same-sex couples in an unstable position of being in a second-tier marriage.
The differentiation demeans the couple, whose moral and sexual
choices the Constitution protects . . . And it humiliates tens of
thousands of children now being raised by same-sex couples. The law in
question makes it even more difficult for the children to understand the
integrity and closeness of their own family and its concord with other
families in their community and in their daily lives.
133 S. Ct. at 2694 (emphasis supplied).
In the family law context, while opposite-sex married couples can invoke stepparent adoption procedures or adopt children together, same-sex married couples cannot.
Ohio courts allow an individual gay or lesbian person to adopt a child, but not a same-sex
couple. Obergefell, 962 F. Supp. 2d at 980. Same-sex couples are denied local and state
tax benefits available to heterosexual married couples, denied access to entitlement
programs (Medicaid, food stamps, welfare benefits, etc.) available to heterosexual
married couples and their families, barred by hospital staff and/or relatives from their
long-time partners’ bedsides during serious and final illnesses due to lack of legallyrecognized relationship status, denied the remedy of loss of consortium when a spouse is
seriously injured through the acts of another, denied the remedy of a wrongful death
claim when a spouse is fatally injured through the wrongful acts of another, and evicted
from their homes following a spouse’s death because same-sex spouses are considered
complete strangers to each other in the eyes of the law. Id.
Identification on the child’s birth certificate is the basic currency by which
parents can freely exercise these protected parental rights and responsibilities. It is
also the only common governmentally-conferred, uniformly-recognized, readily-accepted
23
record that establishes identity, parentage, and citizenship, and it is required in an array of
legal contexts. Obtaining a birth certificate that accurately identifies both parents of
a child born using anonymous donor insemination or adopted by those parents is
vitally important for multiple purposes. The birth certificate can be critical to
registering the child in school; 13 determining the parents’ (and child’s) right to make
medical decisions at critical moments; obtaining a social security card for the child; 14
obtaining social security survivor benefits for the child in the event of a parent’s death;
establishing a legal parent-child relationship for inheritance purposes in the event of a
parent’s death; 15 claiming the child as a dependent on the parent’s insurance plan;
claiming the child as a dependent for purposes of federal income taxes; and obtaining a
passport for the child and traveling internationally. 16 The inability to obtain an
accurate birth certificate saddles the child with the life-long disability of a
government identity document that does not reflect the child’s parentage and
burdens the ability of the child’s parents to exercise their parental rights and
responsibilities.
13
See Ohio Rev. Code Ann. § 3313.672(A)(1) (birth certificate generally must be presented at
time of initial entry into public or nonpublic school
14
See Social Security Administration, Social Security Numbers for Children, http://
www.ssa.gov/pubs/EN-05- 10023.pdf#nameddest=adoptiveparents (last visited Feb. 26, 2014).
15
See Sefcik v. Mouyos, 869 N.E.2d 105, 108 (Ohio App. 2007) (noting that a child’s birth
certificate is prima facie evidence of parentage for inheritance purposes).
16
See Minors under Age 16, U.S. Dept. of State, U.S. Passports & Int’l Travel, http://travel.state.
gov/passport/get/minors/minors_834.html (last visited Feb. 26 2014); New U.S. Birth Certificate
Requirement, U.S. Dept of State, U.S. Passports & Int’l Travel, http://travel.state.gov/ passport/
passport_5401.html (last visited Feb. 26, 2014) (certified birth certificates listing full names of
applicant’s parents must be submitted with passport application as evidence of citizenship).
24
The benefits of state-sanctioned marriage are extensive, and the injuries raised by
Plaintiffs represent just a portion of the harm suffered by same-sex married couples due
to Ohio’s refusal to recognize and give legal effect to their lawful unions.
6.
Potential State Interests
Defendants advance a number of interests in support of Ohio’s marriage
recognition ban. (Doc. 20 at 32-36). Defendants cite “the decision to preserve uniformly
the traditional definition of marriage without regard to contrary determinations by some
other jurisdictions,” “avoiding judicial intrusion upon a historically legislative function,”
“assur[ing] that it is the will of the people of Ohio … that controls,” “approaching social
change with deliberation and due care,” and “[p]reserving the traditional definition of
marriage,” although they raise these interests in the context of a rational basis equal
protection analysis. (Id.) Although strict scrutiny is implicated by more than one
fundamental right threatened by the marriage recognition ban, even in the intermediate
scrutiny context, these vague, speculative, and/or unsubstantiated state interests rise
nowhere near the level necessary to counterbalance the specific, quantifiable,
particularized injuries detailed above suffered by same-sex couples when their existing
legal marriages and the attendant protections and benefits are denied to them by the state.
In particular, the Court notes that given that all practicing attorneys, as well as the
vast majority of all citizens in this country, are fully aware that unconstitutional
laws cannot stand, even when passed by popular vote, Defendants’ repeated appeal
to the purportedly sacred nature of the will of Ohio voters is particularly specious.
25
The stated interest in “preserving the traditional definition of marriage” is not a
legitimate justification for Ohio’s arbitrary discrimination against gays based solely on
their sexual orientation. As federal judge John G. Heyburn II eloquently explained in
invalidating Kentucky’s similar marriage recognition ban:
Many Kentuckians believe in “traditional marriage.” Many believe what
their ministers and scriptures tell them: that a marriage is a sacrament
instituted between God and a man and a woman for society’s benefit.
They may be confused – even angry – when a decision such as this one
seems to call into question that view. These concerns are understandable
and deserve an answer.
Our religious beliefs and societal traditions are vital to the fabric of society.
Though each faith, minister, and individual can define marriage for themselves,
at issue here are laws that act outside that protected sphere. Once the government
defines marriage and attaches benefits to that definition, it must do so
constitutionally. It cannot impose a traditional or faith-based limitation upon
a public right without a sufficient justification for it. Assigning a religious or
traditional rationale for a law, does not make it constitutional when that law
discriminates against a class of people without other reasons.
The beauty of our Constitution is that is accommodates our individual faith’s
definition of marriage while preventing the government from unlawfully
treating us differently. This is hardly surprising since it was written by
people who came to America to find both freedom of religion and freedom
from it.
Bourke v. Beshear, 2014 WL 556729, at 10 (W.D. Ky. Feb. 12, 2014) (emphasis
supplied) (declaring Kentucky’s anti-recognition provisions unconstitutional on equal
protection grounds).
Defendants argue that Windsor stressed that “regulation of domestic relations is an
area that has long been regarded as a virtually exclusive province of the States.” 133 S.
26
Ct. at 2692. However, as this Court emphasized in Obergefell, this state regulation of
marriage is “subject to constitutional guarantees” and “the fact that each state has the
exclusive power to create marriages within its territory does not logically lead to the
conclusion that states can nullify already-established marriages absent due process of
law.” 962 F. Supp. 2d at 981.
Quintessentially, as the Supreme Court has held, marriage confers “a dignity and
status of immense import.” Windsor, 133 U.S. at 2692. When a state uses “its historic
and essential authority to define the marital relation in this way, its role and its power in
making the decision enhance[s] the recognition, dignity, and protection of the class in
their own community.” Id. Here, based on the record, Defendants have again failed to
provide evidence of any state interest compelling enough to counteract the harm Plaintiffs
suffer when they lose this immensely important dignity, status, recognition, and
protection, as such a state interest does not exist.
Accordingly, Ohio’s refusal to recognize same-sex marriages performed in other
jurisdictions violates the substantive due process rights of the parties to those marriages
because it deprives them of their rights to marry, to remain married, and to effectively
parent their children, absent a sufficient articulated state interest for doing so.
27
C.
Equal Protection Clause
This Court’s analysis in Obergefell also compels the conclusion that Defendants
violate Plaintiffs’ right to equal protection by denying recognition to their marriages and
the protections for families attendant to marriage. In Obergefell, this Court noted Ohio’s
long history of respecting out-of-state marriages if valid in the place of celebration, with
only the marriages of same-sex couples singled out for differential treatment. 962 F.
Supp. 2d at 983-84.
Under Ohio law, if the Henry/Rogers, Yorksmith, and Noe/McCracken couples’
marriages were accorded respect, both spouses in the couple would be entitled to
recognition as the parents of their expected children. As a matter of statute, Ohio
respects the parental status of the non-biologically related parent whose spouse uses AI to
conceive a child born to the married couple. See Ohio Rev. Code § 3111.95 (providing
that if “a married woman” uses “non-spousal artificial insemination” to which her spouse
consented, the spouse “shall be treated in law and regarded as” the parent of the child,
and the sperm donor shall have no parental rights); see also Ohio Rev. Code § 3111.03
(providing that a child born to a married couple is presumed the child of the birth
mother’s spouse).
An Ohio birth certificate is a legal document, not a medical record. Birth
certificates for newborn babies are generated by Defendants through use of the Integrated
Perinatal Health Information System (“IPHIS”) with information collected at birth
28
facilities. 17 Informants are advised that “[t]he birth certificate is a document that will be
used for important purposes including proving your child’s age, citizenship and
parentage. The birth certificate will be used by your child throughout his/her life.” 18
The Ohio Department of Health routinely issues birth certificates naming as parents
both spouses to opposite-sex married couples who use AI to conceive their
children. 19 However, Defendants refuse to recognize these Plaintiffs’ marriages and the
parental presumptions that flow from them, and will refuse to issue birth certificates
identifying both women in these couples as parents of their expected children. (Doc. 15
at ¶¶ 59-62).
17
A suggested worksheet is provided to the hospital or other birth facility by the Ohio Department of Health for use by the birth mother or other informant. A copy of the worksheet can be
found at Ohio Department of Health, http://vitalsupport.odh.ohio.gov/gd/gd. aspx? Page=
3&TopicRelationID=5&Content=5994 (last visited Feb. 28, 2014). The hospital or birth facility
then enters the information gathered into the IPHIS. Two flow sheets describing the typical
sequence of steps leading to a birth certificate can be found at Birth Facility Easy-Step Guide
For IPHIS, pages 4-5, Ohio Department of Health, http://vitalsupport.odh.ohio.gov/gd/gd.
aspx?Page=3& TopicRelationID=519&Content=4597 (last visited Feb. 28, 2014).
18
Mother’s Worksheet for Child’s Birth, available at Ohio Department of Health,
http://vitalsupport.odh.ohio.gov /gd/gd.aspx?Page=3&TopicRelationID=5&Content=5994
(last visited February 28, 2014).
19
See Ohio Rev. Code § 3111.03(A)(1) (“[a] man is presumed to be the natural father of a
child,” including when “[t]he man and the child’s mother are or have been married to each other,
and the child is born during the marriage or is born within three hundred days after the marriage
is terminated by death, annulment, divorce, or dissolution or after the man and the child’s mother
separate pursuant to a separation agreement”); see also Ohio Rev. Code § 3111.95(A) (“If a
married woman is the subject of a non-spousal artificial insemination and if her husband
consented to the artificial insemination, the husband shall be treated in law and regarded as the
natural father of a child conceived as a result of the artificial insemination, and a child so
conceived shall be treated in law and regarded as the natural child of the husband.”); Ohio Rev.
Code § 3705.08(B) (“All birth certificates shall include a statement setting forth the names of the
child’s parents. . . ”).
29
Similarly, when an Ohio-born child is adopted by the decree of a court of another
state, the Ohio Department of Health “shall issue … a new birth record using the child’s
adoptive name and the names of and data concerning the adoptive parents.” Ohio Rev.
Code § 3705.12(A)(1). However, the Department of Health refuses to comply with this
requirement based on Ohio Rev. Code § 3107.18(A), which provides that “[e]xcept when
giving effect to such a decree would violate the public policy of this state, a court decree
… establishing the relationship by adoption, issued pursuant to due process of law by a
court of any jurisdiction outside this state … shall be recognized in this state.”
Before Governor Kasich’s administration and prior-Defendant Wymyslo’s
leadership of the Department of Health, Ohio recognized out-of-state adoption decrees of
same-sex couples and supplied amended birth certificates identifying the adoptive
parents. (See Docs. 4-6, 4-7, and 4-8). However, the current administration takes the
position that issuing birth certificates under such circumstances would violate “public
policy,” i.e., Ohio’s purported limitation on adoptions within the State to couples only if
those couples are married. O.R.C. § 3107.03(A). If the Vitale/Talmas spouses were an
opposite-sex couple, Defendant Himes would recognize their marriage, their New
York adoption decree, and their right to an accurate birth certificate for Adopted
Child Doe.
1.
Heightened Scrutiny
As the Court discussed in Obergefell, the Sixth Circuit has not reviewed
controlling law regarding the appropriate level of scrutiny for reviewing classifications
based on sexual orientation, such as Ohio’s marriage recognition ban, since Windsor.
30
962 F. Supp. 2d at 986. The most recent Sixth Circuit case to consider the issue, Davis v.
Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012), rejected heightened scrutiny by
relying on Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006),
which in turn relied on Equality Foundation of Greater Cincinnati, Inc. v. City of
Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997). As the Court concluded in Obergefell,
however, Equality Foundation now rests on shaky ground and there are “ample reasons
to revisit the question of whether sexual orientation is a suspect classification,” including
the fact that Sixth Circuit precedent on this issue – Equality Foundation among it – is
based on Bowers v. Hardwick, 478 U.S. 186 (1986), which was overruled by Lawrence,
549 U.S. at 558. Bassett v. Snyder, No. 12-10038, 2013 WL 3285111, at *1 (E.D. Mich.
June 28, 2013) (same-sex couples demonstrated a likelihood of success on the merits of
their equal protection claim regarding a Michigan law prohibiting same-sex partners from
receiving public employer benefits). 20 The Supreme Court, in overruling Bowers,
emphatically declared that it “was not correct when it was decided and is not correct
today.” Lawrence, 539 U.S. at 578.
As a result, this Court held in Obergefell that lower courts without controlling
post-Lawrence precedent on the issue should now apply the criteria mandated by the
Supreme Court to determine whether sexual orientation classifications should receive
20
See also Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) (“The
Supreme Court’s holding in Lawrence ‘remov[ed] the precedential underpinnings of the federal
case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect
class”’) (citations omitted); Golinski, 824 F. Supp. 2d at 984 (“[T]he reasoning in [prior circuit
court decisions], that laws discriminating against gay men and lesbians are not entitled to
heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand
post-Lawrence”).
31
heightened scrutiny. 962 F. Supp. 2d at 987. The Court then analyzed the four factors
that, to varying degrees, may be considered to determine whether classifications qualify
as suspect or quasi-suspect: whether the class (1) has faced historical discrimination,
(2) has a defining characteristic that bears no relation to ability to contribute to society,
(3) has immutable characteristics, and (4) is politically powerless. Id. at 987-91. The
Court concluded that “[s]exual orientation discrimination accordingly fulfills all the
criteria the Supreme Court has identified, thus Defendants must justify Ohio’s failure to
recognize same-sex marriages in accordance with a heightened scrutiny analysis,” and
finally that Defendants “utterly failed to do so.” Id. at 991. Subsequent to Obergefell,
the Ninth Circuit similarly held that Windsor “requires heightened scrutiny” for
classifications based on sexual orientation. Smithkline Beechan Corp. v. Abbott
Laboratories, 740 F.3d 471, 484 (9th Cir. 2014) (“we are required by Windsor to apply
heightened scrutiny to classifications based on sexual orientation for purposes of equal
protection… Thus, there can no longer be any question that gays and lesbians are no
longer a ‘group or class of individuals normally subject to ‘rational basis’ review.’”)
(citation omitted). The Court’s entire Obergefell analysis applies and controls here, and
classifications based on sexual orientation must pass muster under heightened scrutiny to
survive constitutional challenge.
Here, Defendants’ discriminatory conduct most directly affects the children
of same-sex couples, subjecting these children to harms spared the children of
opposite-sex married parents. Ohio refuses to give legal recognition to both parents
of these children, based on the State’s disapproval of their same-sex relationships.
32
Defendants withhold accurate birth certificates from these children, burdening the
children because their parents are not the opposite-sex married couples who receive the
State’s special stamp of approval. The Supreme Court has long held that disparate
treatment of children based on disapproval of their parents’ status or conduct
violates the Equal Protection Clause. See, e.g., Plyler v. Doe, 457 U.S. 202, 220
(1982) (striking down statute prohibiting undocumented immigrant children from
attending public schools because it “imposes its discriminatory burden on the basis of a
legal characteristic over which the children can have little control”). 21 Such
discrimination also triggers heightened scrutiny. See, e.g., Pickett v. Brown,
462 U.S. 1, 8 (1983).
The children in Plaintiffs’ and other same-sex married couples’ families cannot be
denied the right to two legal parents, reflected on their birth certificates and given legal
respect, without a sufficient justification. No such justification exists.
2.
Rational Basis
As the Court further held in Obergefell, even if no heightened level of scrutiny is
applied to Ohio’s marriage recognition bans, they still fail to pass constitutional muster.
962 F. Supp. 2d at 991. The Court noted that “[e]ven in the ordinary equal protection
case calling for the most deferential of standards, [the Court] insist[s] on knowing the
21
See also Mathews v. Lucas, 427 U.S. 495, 505 (1976) (“visiting condemnation upon the child
in order to express society’s disapproval of the parents’ liaisons ‘is illogical and unjust’”); Weber
v. Aetna Ca. Sur. Co., 406 U.S. 164, 175 (1972) (“imposing disabilities on the illegitimate child
is contrary to the basic concept of our system that legal burdens should bear some relationship to
individual responsibility or wrongdoing”); Walton v. Hammons, 192 F.3d 590, 599 (6th Cir.
1999) (holding state could not withhold children’s food stamp support based on their parents’
non-cooperation in establishing paternity of their children).
33
relation between the classification adopted and the object to be attained,” that “some
objectives … are not legitimate state interests,” and, even when a law is justified by an
ostensibly legitimate purpose, that “[t]he State may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction arbitrary or
irrational.” Romer, 517 U.S. at 632; City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432, 446-47 (1985).
At the most basic level, by requiring that classifications be justified by an
independent and legitimate purpose, the Equal Protection Clause prohibits
classifications from being drawn for “the purpose of disadvantaging the group
burdened by the law.” Romer, 517 U.S. at 633 (emphasis supplied); see also Windsor,
133 S. Ct. at 2693; City of Cleburne, Tex., 473 U.S. at 450; U.S. Dep’t of Agriculture v.
Moreno, 413 U.S. 528, 534 (1973). This Court concluded by noting that in Bassett, 2013
WL 3285111 at 24-26, the court held that same-sex couples demonstrated a likelihood of
success on the merits of their equal protection claim regarding a Michigan law
prohibiting same-sex partners from receiving public employee benefits where “[t]he
historical background and legislative history of the Act demonstrate that it was motivated
by animus against gay men and lesbians.” The Court further determined that a review of
the historical background and legislative history of the laws at issue and the evidentiary
record established conclusively that the requested relief must also be granted to Plaintiffs
on the basis of the Equal Protection Clause. Obergefell, 962 F. Supp.2d at 993.
Again, the Court’s prior analysis controls, and Ohio’s marriage recognition bans
also fail rational basis review.
34
3.
Potential State Interests
This Court has already considered and rejected as illegitimate and irrational
any purported State interests justifying the marriage recognition bans. Obergefell,
962 F. Supp. 2d at 993-95. Based on this controlling analysis, the government certainly
cannot meet its burden under heightened scrutiny to demonstrate that the marriage
recognition ban is necessary to further important State interests. All advanced State
interests are as inadequate now as they were several months ago to justify the
discrimination caused by the marriage recognition ban and the ban’s particularly harmful
impact on Ohio-born children.
Of particular relevance to this case, in Obergefell this Court analyzed and roundly
rejected any claimed government justifications based on a preference for procreation or
childrearing by heterosexual couples. 962 F. Supp. 2d at 994. This Court further
concluded that the overwhelming scientific consensus, based on decades of peerreviewed scientific research, shows unequivocally that children raised by same-sex
couples are just as well adjusted as those raised by heterosexual couples. Id. at n.20.
In fact, the U.S. Supreme Court in Windsor (and more recently, numerous lower courts
around the nation) similarly rejected a purported government interest in establishing a
preference for or encouraging parenting by heterosexual couples as a justification for
denying marital rights to same-sex couples and their families. The Supreme Court was
offered the same false conjectures about child welfare this Court rejected in Obergefell,
and the Supreme Court found those arguments so insubstantial that it did not deign to
35
acknowledge them. Instead, the Supreme Court concluded:
DOMA instructs all federal officials, and indeed all persons with whom
same-sex couples interact, including their own children, that their marriage
is less worthy than the marriages of others. The federal statute is invalid,
for no legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its marriage laws,
sought to protect in personhood and dignity. By seeking to displace this
protection and treating those persons as living in marriages less respected
than others [the federal government’s non-recognition of marriages is
unconstitutional].
Windsor, 133 S. Ct. at 2696 (emphasis supplied). All of the federal trial court court
decisions since Windsor have included similar conclusions on this issue, including that
child welfare concerns weigh exclusively in favor of recognizing the marital rights of
same-sex couples. 22
22
See, e.g., De Leon, 2014 WL 715741 (declaring unconstitutional Texas bans on same-sex
marriage and out-of-state marriage recognition, and rejecting as irrational purported childrearing
and procreation justifications); Bostic, 2014 WL 561978 at 18 (declaring unconstitutional
Virginia’s marriage ban, which has the effect of “needlessly stigmatizing and humiliating
children who are being raised” by same-sex couples and “betrays” rather than serves an interest
in child welfare); Bourke, 2014 WL 556729 at 8 (rejecting purported government interest in
withholding marriage recognition to advance procreation and childrearing goals, and holding
Kentucky’s marriage recognition ban, similar to Ohio’s, unconstitutional); Bishop, 2014 WL
116013 at 28–33 (rejecting purported government interests in responsible procreation and
childrearing as justifications for Oklahoma’s same-sex marriage ban, which was held
unconstitutional); Kitchen, 2013 WL 6697874 at 25–27 (declaring Utah’s marriage ban
unconstitutional and finding that same-sex couples’ “children are also worthy of the State’s
protection, yet” the marriage ban “harms them for the same reasons that the Supreme Court
found that DOMA harmed the children of same-sex couples”); Griego v. Oliver, No. 34-306,
2013 WL 6670704, at 3 (D.N.M. Dec. 19, 2013) (rejecting “responsible procreation and
childrearing” rationales to justify New Mexico’s marriage ban, and declaring ban in violation
of state constitution).
36
In sum, under Supreme Court jurisprudence, and as confirmed in numerous recent
trial court decisions, states do not have any governmental interest sufficient to justify
their refusal to recognize lawful out-of-state marriages between same-sex couples. 23
D.
Full Faith and Credit
Because this Court has found that Ohio’s marriage recognition bans are
constitutionally invalid on their face and unenforceable, Defendants no longer have a
basis on which to argue that recognizing same-sex marriages on out-of-state adoption
decrees violates Ohio public policy, and thus it is unnecessary to reach Plaintiffs’
arguments based on the Full Faith and Credit Clause. However, the Court determines
that, as expressed infra in endnote i, Plaintiffs have also demonstrated a compelling basis
on which to find, and the Court does so find, that Plaintiffs Vitale and Talmas have a
right to full faith and credit for their New York adoption decree here in Ohio. i
E.
Irreparable Harm
Finally, Plaintiffs have easily met their burden to demonstrate they are suffering
irreparable harm from Defendants’ violation of their rights to due process, equal
protection, and full faith and credit for their adoption decrees. Birth certificates are
vitally important documents. As outlined above, Ohio’s refusal to recognize Plaintiffs’
and other same-sex couples’ valid marriages imposes numerous indignities, legal
disabilities, and psychological harms. Further, the State violates Plaintiffs’ and other
23
Again, the Court’s Order today does NOT require Ohio to authorize the performance of
same-sex marriage in Ohio. Today’s ruling merely requires Ohio to recognize valid same-sex
marriages lawfully performed in states which authorize such marriages.
37
same-sex couples’ fundamental constitutional rights to marry, to remain married, and to
function as a family.
“Constitutional violations are routinely recognized as causing irreparable harm
unless they are promptly remedied.” Obergefell, 962 F. Supp. 2d at 996; see also Elrod v.
Burns, 427 U.S. 347, 373 (1976) (loss of constitutional “freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury”); Saenz v. Roe, 526 U.S.
489, 498 (1999) (violation of the right to travel interstate constitutes irreparable injury).
Without a permanent injunction and declaratory relief, the affected same-sex couples and
their children would have to continue to navigate life without the birth certificates that
pave the way through numerous transactions, large and small. They would needlessly
suffer harmful delays, bureaucratic complications, increased costs, embarrassment,
invasions of privacy, and disrespect. Same-sex couples’ legal status as parents will be
open to question, including in moments of crisis when time and energy cannot be spared
to overcome the extra hurdles Ohio’s discrimination erects. 24 The marital status of the
couples will likewise be open to question, depriving these families of the far-reaching
security, protections, and dignity that come with recognition of their marriages.
24
For example, families can be barred in hospitals from their loved ones’ bedsides due to a lack
of legally-recognized relationship status. (Id. Doc. 17-3 at ¶ 23). And, although Ohio same-sex
couples may obtain co-custody agreements for their children, such an agreement “does not …
create the full rights and responsibilities of a legally recognized child-parent relationship.” (Id.
at ¶ 19). Moreover, inheritance is governed in part by parentage (Id. at ¶¶ 21, 24, 30), and
children are entitled to bring wrongful death actions (Doc. 17-7 at ¶ 37). Indeed, “[s]ame-sex
married couples and their children live in an Ohio that automatically denies most state and
federal rights, benefits and privileges to them.” (Id. at ¶ 103).
38
Plaintiffs and other affected same-sex couples require injunctive and declaratory
relief to lift the stigma imposed by Defendants’ disrespect for their spousal and parental
statuses. Imposition of these burdens on same-sex couples serves no legitimate public
interest that could counteract the severe and irreparable harm imposed by the marriage
recognition bans.
Plaintiffs have therefore more than adequately demonstrated their entitlement to
declaratory and injunctive relief. ii
IV.
CONCLUSION
Accordingly, based on the foregoing, Plaintiffs’ Motion for Declaratory Judgment
and Permanent Injunction (Doc. 18) is hereby GRANTED. Specifically:
1.
The Court finds that those portions of Ohio Const. Art. XV, § 11, Ohio
Rev. Code § 3101.01(C), and any other provisions of the Ohio Revised
Code that may be relied on to deny legal recognition to the marriages of
same-sex couples validly entered in other jurisdictions, violate rights
secured by the Fourteenth Amendment to the United States Constitution in
that same-sex couples married in jurisdictions where same-sex marriage is
lawful, who seek to have their out-of-state marriages recognized and
accepted as legal in Ohio and the enjoy the rights, protections, and benefits
of marriage provided to heterosexual married couples under Ohio law, are
denied significant liberty interests and fundamental rights without due
process of law and in violation of their right to equal protection.
2.
Defendants and their officers and agents are permanently enjoined from
(a) enforcing the marriage recognition ban, (b) denying same-sex couples
validly married in other jurisdictions all the rights, protections, and benefits
of marriage provided under Ohio law, and (c) denying full faith and credit
to decrees of adoption duly obtained by same-sex couples in other
jurisdictions. The Court will separately issue an Order of Permanent
Injunction to this effect.
3.
Defendants shall issue birth certificates to Plaintiffs for their children
listing both same-sex parents.
39
IT IS SO ORDERED. 25
Date: 4/14/14
s/ Timothy S. Black
Timothy S. Black
United States District Judge
25
The Court STAYS enforcement of this Order and the Permanent Injunction until the parties
have briefed whether or not this Court should fully stay its Orders until completion of appeal to
the United States Court of Appeals for the Sixth Circuit and the United States Supreme Court.
The Court is inclined to stay its finding of facial unconstitutionality but not to stay the Orders as
to the as-applied claims of the four couples who are Plaintiffs because they have demonstrated
that a stay will harm them individually due to the imminent births of their children and other
time-sensitive concerns. The Court inclines toward a finding that the issuance of correct birth
certificates for Plaintiffs’ children, due in June or earlier, should not be stayed. The Court is
further inclined to conclude that the Defendants will not be harmed by compliance with the
requirements of the United States Constitution. Nevertheless, Plaintiffs shall file today their
memorandum contra Defendants’ oral motion to stay, and Defendants shall file a reply
memorandum before 3:00 p.m. tomorrow. The Court shall then rule expeditiously.
40
i
Article IV, § 1 of the U.S. Constitution provides that “Full Faith and Credit shall be given in each State
to the public Acts, Records, and judicial Proceedings of every other State.” In incorporating this clause
into our Constitution, the Framers “foresaw that there would be a perpetual change and interchange of
citizens between the several states.” McElmoyle, for Use of Bailey v. Cohen, 38 U.S. 312, 315 (1839).
The Supreme Court has explained that the “animating purpose” of the full faith and credit command is:
to alter the status of the several states as independent foreign sovereignties, each free to
ignore obligations created under the laws or by the judicial proceedings of the others, and
to make them integral parts of a single nation throughout which a remedy upon a just
obligation might be demanded as of right, irrespective of the state of its origin.
Baker v. Gen. Motors Corp., 522 U.S. 222, 232 (1988) (quoting Milwaukee Cnty v. M.E., White Co., 296
U.S. 268, 277 (1935)).
In the context of judgments, the full faith and credit obligation is exacting, giving nationwide
force to a final judgment rendered in a state by a court of competent jurisdiction. Baker, 522 U.S. at 233.
Proper full faith and credit analysis distinguishes between public acts, which may be subject to public
policy exceptions to full faith and credit, and judicial proceedings, which decidedly are not subject to any
public policy exception to the mandate of full faith and credit See id. at 232 (“Our precedent
differentiates the credit owed to laws (legislative measures and common law) and to judgments”);
Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 437 (1943) (“The full faith and credit clause and the Act
of Congress implementing it have, for most purposes, placed a judgment on a different footing from a
statute of one state, judicial recognition of which is sought in another”).
The Supreme Court has thus rejected any notion that a state may disregard the full faith and credit
obligation simply because the state finds the policy behind the out-of-state judgment contrary to is own
public policies. According to the Court, “our decisions support no roving ‘public policy exception’ to the
full faith and credit due judgments.” Baker, 522 U.S. at 233; see also Estin v. Estin, 334 U.S. 541, 546
(1948) (Full Faith and Credit Clause “ordered submission … even to hostile policies reflected in the
judgment of another State, because the practical operation of the federal system, which the Constitution
designed, demanded it”); Williams v. North Carolina, 317 U.S. 287 (1942) (requiring North Carolina to
recognize change in marital status effected by Nevada divorce decree contrary to laws of North Carolina).
Consistent with the guarantee of full faith and credit, Defendant Himes’s Department of Health is
mandated under a provision of the Vital Statistics section of the Ohio Code to issue an amended birth
certificate upon receipt of an adoption decree issued by the court of another state. Pursuant to Ohio
Revised Code § 3705.12(A) and (B), upon receipt of a decree of adoption of an Ohio-born child, issued
with due process by the court of another state, “the department of health shall issue, unless otherwise
requested by the adoptive parents, a new birth record using the child’s adopted name and the names of
and data concerning the adoptive parents… .” This statute does not leave discretion in Defendant
Himes’s hands to reject duly issued out-of-state adoption decrees based on whether the adoption could
have been obtained under Ohio law.
Indeed, as already discussed, before the tenure of prior-Defendant Wymyslo, Ohio issued
amended birth certificates based on the out-of-state adoption decrees of same-sex parents, notwithstanding Ohio’s purported policy against adoptions by unmarried couples within the State. Only recently
has the Department of Health taken the position that Ohio Revised Code. § 3107.18, a separate provision
of the “Adoption” section of the Code, frees it of its obligation to issue a corrected birth certificate upon
41
receipt of another state’s duly issued judgment of adoption decreeing a same-sex couple as adoptive
parents. (Doc. 4-6 at 4-5). According to Defendant Himes, that provision requires the Department of
Health to refuse recognition to out-of-state adoption decrees of same-sex parents, whose marriages are
disrespected under Ohio law, because “giving effect to such a decree would violate the public policy of
this state.” Ohio Revised Code § 3107.18.
This backward evolution in Ohio, from granting accurate birth certificates to adoptive same-sex
parents and their children, to the current administration’s refusal to do so, is yet another manifestation of
the irrational animus motivating Defendants’ discriminatory treatment of lesbian and gay families. The
application of section 3107.18’s “public policy” exception to the adoption decree of another state is
contrary to Ohio’s consistent recognition of the duly-issued adoption decrees of state courts of competent
jurisdiction nationwide. See, e.g., Matter of Bosworth, No. 86-AP-903, 1987 WL 14234, at *2
(Ohio Ct. App. 10th Dist. July 16, 1987) (recognizing Florida adoption decree because, “if due
process was followed by another state’s court in issuing an adoption decree, an Ohio court is
mandated to give full faith and credit to that state’s decree”); Matter of Swanson, No. 90-CA-23,
1991 WL 76457 (Ohio Ct. App. 5th Dist. May 3, 1991) (recognizing New York adoption decree
over objection of Ohio biological parents). Defendant Himes impermissibly injects a “roving ‘public
policy exception’ to the full faith and credit due judgments,” precisely what the Supreme Court has made
clear the Full Faith and Credit Clause prohibits.
The duty to effectuate this command has commonly fallen on state courts in actions to enforce
judgments obtained in out-of-state litigation, which is why many Supreme Court cases identify state
courts as violators of the state’s full faith and credit obligations. See Adar v. Smith, 639 F.3d 146, 171
(5th Cir. 2011) (Weiner, J., dissenting) (citing Guinness PLC v. Ward, 955 F.2d 875, 890 (4th Cir. 1992)
(“[U]nder the common law, the procedure to enforce the judgment of one jurisdiction in another required
the filing of a new suit in the second jurisdiction to enforce the judgment of the first”)). However, this
historical fact does not dictate that the command is directed only to state courts. For example, now “all
but two or three of the fifty states have enacted some version of the Revised Uniform Enforcement of
Foreign Judgments Act, which authorizes non-judicial officers to register out-of-state judgments, thereby
entrusting to them their states’ obligations under the [Full Faith and Credit] Clause.” Adar, 639 F.3d at
171 (Weiner, J., dissenting) (citation omitted). Ohio’s vital statistics statutes likewise transfer to state
executive officials the responsibility to receive and recognize out-of-state judgments of adoption and to
issue amended Ohio birth certificates based on those judgments. See Ohio Revised Code § 3705.12(A)
and (B).
The Fifth Circuit stands alone in holding that federal claims to enforce rights conferred by the
Full Faith and Credit Clause are unavailable under § 1983 against non-judicial state officials. Adar, 639
F.3d at 153. Given that § 1983 creates a remedy for those denied “rights, privileges, or immunities
secured by the Constitution and laws,” 42 U.S.C. § 1983, and that the Supreme Court has repeatedly held
that § 1983 is a remedial statute that must be applied expansively to assure the protection of constitutional
rights (see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 700-01 (1978) (§ 1983 is “to be broadly
construed, against all forms of official violation[s] of federally protected rights”); Golden State Transit
Corp. v. City of Los Angeles, 493 U.S. 103, 105 (1989) (§ 1983’s coverage is to be “broadly construed”);
Wayne v. Vill. of Sebring, 36 F.3d 517, 528 (6th Cir. 1994) (same)), other circuits have unremarkably
entertained such claims. See Rosin v. Monken, 599 F.3d 574, 575 (7th Cir. 2010) (adjudicating full faith
and credit claim against state actors on the merits in § 1983 action); United Farm Workers v Ariz. Agric.
Emp’t Relations Bd., 669 F.2d 1249, 1257 (9th Cir. 1982) (same); Lamb Enters., Inc. v. Kiroff, 549 F.2d
1052, 1059 (6th Cir. 1977) (propriety of
§ 1983 claim in federal court to enforce full faith and credit
obligation against state judge not questioned, but abstention deemed warranted).
42
The Supreme Court has employed a three-part test, articulated in Golden State Transit Corp.,
493 U.S. at 106, to determine whether a constitutional provision creates a right actionable under § 1983:
whether the provision 1) “creates obligations binding on the governmental unit,” 2) that are sufficiently
concrete and specific as to be judicially enforced, and 3) were “intended to benefit the putative plaintiff.”
Dennis v. Higgins, 498 U.S. 439, 449 (1991) (internal quotations and citations omitted). The Full Faith
and Credit Clause explicitly creates obligations binding on the states, is concrete and judicially
recognizable, and was intended to protect the rights of individuals to require respect across state lines for
judgments in their favor. See Thomas v. Wash. Gas Light Co., 448 U.S. 261, 278 n.23 (1980) (“[T]he
purpose of [the Clause] was to preserve rights acquired or confirmed under the … judicial proceedings of
one state by requiring recognition of their validity in other states. …”) (quoting Pac. Emp’rs Ins. Co. v.
Indus. Accident Comm’n of Cal., 306 U.S. 493, 501 (1939)); Magnolia Petroleum Co., 320 U.S. at 439
(referring to the Clause as preserving judicially established “rights”); see also Adar, 639 F.3d at 176
(Weiner, J., dissenting) (“For all the same reasons advanced by the Dennis Court in recognizing the
private federal right created by the Commerce Clause… the [Full Faith and Credit] Clause indisputably
does confer a constitutional ‘right’ for which § 1983 provides an appropriate remedy”).
In Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007), a § 1983 action, the Tenth Circuit held
that Oklahoma was required to issue an amended birth certificate listing as parents both members of a
California same-sex couple that had legally adopted a child born in Oklahoma, notwithstanding
Oklahoma’s prohibition against such adoptions within the state. Id. at 1141-42. Oklahoma, like Ohio,
had a statute providing for issuance of amended birth certificates for children adopted in other states’
courts. The Tenth Circuit ruled that the Full Faith and Credit Clause required Oklahoma “to apply its
own law to enforce [those] adoption order[s] in an ‘even-handed’ manner.” Id. at 1154 (citing Baker, 522
U.S. at 235). The Tenth Circuit concluded: “We hold today that final adoption orders and decrees are
judgments that are entitled to recognition by all other states under the Full Faith and Credit Clause.” Id.
at 1156. Oklahoma’s “refusal to recognize final adoption orders of other states that permit adoption by
same-sex couples” was therefore “unconstitutional.” Id.
The principles and precedent outlined above provide a compelling basis to conclude that the Full
Faith and Credit Clause also requires full recognition of Plaintiffs Vitale’s and Talmas’s New York
adoption decree, and this Court so holds.
(As in Obergefell, this Court again acknowledges the continuing pendency of Section 2 of the
discredited federal Defense of Marriage Act (“DOMA”), which was not before the Supreme Court in
Windsor, and wherein Congress has sought to invoke its power under the Full Faith and Credit Clause to
establish that “[n]o State … shall be required to give effect to any public act, record, or judicial
proceeding of any other State … respecting a relationship between persons of the same sex that is treated
as a marriage under the laws of such other State,” 28 U.S.C. § 1738C. However, as in Obergefell,
although Section 2 of DOMA is not specifically before the Court, the implications of today’s ruling speak
for themselves.)
43
ii
However, the Court agrees with Defendants that Plaintiff Adoption S.T.A.R. lacks standing to
pursue its claims. Rather than relying on its own rights, Adoption S.T.A.R. purports to bring this action
“on behalf of its clients who seek to complete adoptions” involving Ohio-born children and seeks relief
for any … “same-sex couples married in [other] jurisdiction … who become clients of Plaintiff Adoption
S.T.A.R. …” (Doc. 1 at 17). To establish Article III standing, a plaintiff must show that an injury is
“concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.” Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138, 1147 (2013)
(internal quotations omitted). Adoption S.T.A.R. bears the burden of proving each element of standing
“in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at successive stages of the litigation.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
“[A] party generally must assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004)
(internal quotations omitted). If a party can demonstrate injury, however, that party may pursue the rights
of others when it can establish that (1) “the party asserting the right has a ‘close’ relationship with the
person who possesses the right” and (2) “there is a ‘hindrance’ to the possessor’s ability to protect his
own interests.” Boland v. Holder, 682 F.3d 531, 537 (6th Cir. 2012) (internal quotations omitted). The
concept of third-party standing is typically disfavored. Kowalski, 543 U.S. at 130; see also Singleton v.
Wulff, 428 U.S. 106, 113-14 (1976) (outlining reasons why “[f]ederal courts must hesitate before
resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of
third persons not parties to the litigation”).
Here, Adoption S.T.A.R. fails to satisfy its burden of establishing standing because it fails to
satisfy the hindrance requirement. Adoption S.T.A.R. must demonstrate that its clients face some
obstacle “in litigating their rights themselves.” Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d
197, 209 (6th Cir. 2011). In analyzing this question, the United States Supreme Court has generally
looked for “daunting” barriers or “insurmountable procedural obstacles” to support a finding of
hindrance. See Miller v. Albright, 523 U.S. 420, 449-50 (1998) (O’Connor, J., concurring, Kennedy, J.,
joining) (“A hindrance signals that the rightholder did not simply decline to bring the claim on his own
behalf, but could not in fact do so”). Adoption S.T.A.R. has not shown that same-sex couples married in
other jurisdictions are hindered from litigating their own rights, and the participation of the other
Plaintiffs in this lawsuit demonstrates that such parties are capable of doing so. Moreover, because birth
certificates can be amended and reissued, there are no significant time restrictions on the ability of
potential third parties to bring their own actions. Under these circumstances, where the time constraints
and logistical and emotional burdens that prevented injured third parties from vindicating their rights in
Obergefell do not exist, there is no basis for departing from the ordinary rule that “one may not claim
standing … to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U.S. 249,
255 (1953).
Consequently, the Court finds that Plaintiff Adoption S.T.A.R. lacks standing to pursue its
claims. The Court also notes, however, that given today’s ruling, the question of Adoption S.T.A.R.’s
standing is ultimately of no practical effect.
44
Happy Adoption Day
Words and Music by John McCulcheon
© 1992 John McCutcheon/Appalsongs (ASCAP)
Oh who would have guessed, who could have seen
Who could have possibly known
All these roads we have traveled, the places we’ve been
Would have finally taken us home.
So here’s to you, three cheers to you
Let’s shout it, “Hip, hip horray!”
For out of a world so tattered and torn,
You came to our house on that wonderful morn
And all of a sudden this family was born
Oh, happy Adoption Day!
There are those who think families happen by chance
A mystery their whole life through
But we had a voice and we had a choice
We were working and waiting for you.
So here’s to you, three cheers to you
Let’s shout it, “Hip, hip horray!”
For out of a world so tattered and torn,
You came to our house on that wonderful morn
And all of a sudden this family was born
Oh, happy Adoption Day!
No matter the time and no matter the age
No matter how you came to be
No matter the skin, we are all of us kin
We are all of us one family.
So here’s to you, three cheers to you
Let’s shout it, “Hip, hip horray!”
For out of a world so tattered and torn,
You came to our house on that wonderful morn
And all of a sudden this family was born
Oh, happy Adoption Day!
45
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