14-3464 #21

8/12/2019 14-3464 #21

1/74

No. 14-3464

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRITTANI HENRY, et al.,

Plaintiffs-Appellees,

v.

LANCE D. HIMES,

Defendant-Appellant.

::

:

:

:

:

:

:

:

On Appeal from the United StatesDistrict Court for the Southern

District of Ohio, Western Division

District Court Case No. 14-cv-0129

BRIEF OF APPELLANT LANCE D. HIMES, INTERIM DIRECTOR

OF THE OHIO DEPARTMENT OF HEALTH

MICHAEL DEWINE (0009181)

Ohio Attorney General

ERIC E. MURPHY* (0083284)State Solicitor

*Counsel of Record

BRIDGET E. COONTZ (0072919)

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980; 614-466-5087 fax

[email protected]

Counsel for Lance D. Himes,Interim Director of the Ohio

Department of Health

Case: 14-3464 Document: 21 Filed: 06/10/2014 Page: 1

8/12/2019 14-3464 #21

2/74

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................................................................ iTABLE OF AUTHORITIES ................................................................................... iiiSTATEMENT REGARDING ORAL ARGUMENT .............................................. xiJURISDICTIONAL STATEMENT .......................................................................... 1STATEMENT OF THE ISSUES............................................................................... 1INTRODUCTION ..................................................................................................... 3STATEMENT OF THE CASE .................................................................................. 5

A. Ohios lawmakers and citizens both reaffirmed the traditionaldefinition of marriage in Ohio ............................................................... 5

B. Plaintiffs, four same-sex couples, an adopted child, and anadoption agency, filed suit seeking to have both same-sex partners

listed on Ohio birth certificates ............................................................. 8C. The district court granted a permanent injunction enjoining the

State from following Ohio law prohibiting it from recognizingout-of-state, same-sex marriages ......................................................... 10

SUMMARY OF ARGUMENT ............................................................................... 16STANDARD OF REVIEW ..................................................................................... 18ARGUMENT ........................................................................................................... 18I. THE DISTRICT COURT ERRED AT THE OUTSET BY

TRANSFORMING THE NARROW AS-APPLIED COMPLAINT

INTO A BROAD FACIAL ATTACK .......................................................... 19II. AS IN OBERGEFELL, THE DISTRICT COURTS EQUAL-

PROTECTION AND DUE-PROCESS HOLDINGS CONFLICT WITH

BINDING SUPREME COURT PRECEDENT ............................................ 24


8/12/2019 14-3464 #21

3/74

ii

III. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLYINVOKED SUBSTANTIVE DUE PROCESS ............................................. 27A. Plaintiffs have no fundamental right to same-sex marriage ................ 28B. Plaintiffs have no fundamental right to same-sex-marriage

recognition ........................................................................................... 32C. Ohios decision to retain the traditional definition of marriage

does not implicate any fundamental parental rights ............................ 35IV. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLY HELD

THAT OHIOS DECISION TO RETAIN TRADITIONAL

MARRIAGE VIOLATED EQUAL PROTECTION .................................... 37

A. Rational-basis review applies to Ohios marriage laws ...................... 381. Binding precedent requires this Court to apply rational-

basis review ............................................................................... 382. Even apart from precedent, heightened scrutiny is not

proper ........................................................................................ 41B. Ohios marriage laws survive rational-basis review ........................... 42

V. OHIOS DECISION TO RECOGNIZE ONLY TRADITIONALMARRIAGE DOES NOT VIOLATE THE FULL FAITH ANDCREDIT CLAUSE AS APPLIED TO THE NEW YORK PLAINTIFFS ... 50A. Section 1983 does not provide a vehicle for enforcing the

requirements of the Full Faith and Credit Clause ............................... 50B. Even if 1983 could enforce the Full Faith and Credit Clause,

Ohios decision not to put both of the New York Plaintiffs names

on an amended birth certificate did not violate the clause .................. 56CONCLUSION ........................................................................................................ 59CERTIFICATE OF COMPLIANCECERTIFICATE OF SERVICEDESIGNATION OF DISTRICT COURT RECORD


8/12/2019 14-3464 #21

4/74

iii

TABLE OF AUTHORITIES

Cases Page(s)

Adar v. Smith,

639 F.3d 146 (5th Cir. 2011) (en banc) .......................................................passim

Am. Express Travel Related Servs. Co. v. Kentucky,

641 F.3d 685 (6th Cir. 2011) .............................................................................. 18

Am. Fedn of State, Cnty. & Mun. Emps. Council 79 v. Scott,

717 F.3d 851 (11th Cir. 2013) ...................................................................... 20, 21

Ariz. Christian Sch. Tuition Org. v. Winn,

131 S. Ct. 1436 (2011) ........................................................................................ 55

Armour v. City of Indianapolis,

132 S. Ct. 2073 (2012) ........................................................................................ 41

Ashwander v. TVA,

297 U.S. 288 (1936) ............................................................................................ 20

Baker v. Gen. Motors Corp.,

522 U.S. 222 (1998) ...................................................................................... 56, 57

Baker v. Nelson,

191 N.W.2d 185 (Minn. 1971) ........................................................................... 24

Baker v. Nelson,

409 U.S. 810 (1972) .....................................................................................passim

Bassett v. Snyder,

951 F. Supp. 2d 939 (E.D. Mich. 2013) ............................................................. 40

Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001) ............................................................................................ 42

Blessing v. Freestone,

520 U.S. 329 (1997) ............................................................................................ 50

Bourke v. Beshear,

No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ................... 41


8/12/2019 14-3464 #21

5/74

iv

Bowers v. Hardwick,

478 U.S. 186 (1986) ...................................................................................... 39, 40

Bruni v. Cnty. of Otsego,

192 A.D.2d 939 (N.Y. App. Div. 1993) ............................................................. 56

Chapman v. Houston Welfare Rights Org.,

441 U.S. 600 (1979) ............................................................................................ 53

Citizens United v. Fed. Election Commn,

558 U.S. 310 (2010) ................................................................................ 12, 22, 23

City of Cleburne v. Cleburne Living Center,

473 U.S. 432 (1985) ...................................................................................... 41, 42

Collins v. Harker Heights,503 U.S. 115 (1992) ............................................................................................ 28

Conaway v. Deane,

932 A.2d 571 (Md. 2007) ................................................................................... 29

Conn v. Gabbert,

526 U.S. 286 (1999) ............................................................................................ 33

Cook v. Cook,

104 P.3d 857 (Ariz. Ct. App. 2005) .................................................................... 33

Davis v. Prison Health Servs.,

679 F.3d 433 (6th Cir. 2012) .................................................................. 38, 39, 40

Durfee v. Duke,

375 U.S. 106 (1963) ............................................................................................ 56

Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati,

128 F.3d 289 (6th Cir. 1997) .................................................................. 38, 39, 40

Estin v. Estin,334 U.S. 541 (1948) ............................................................................................ 57

Exxon Mobile Corp. v. Allapattah Servs., Inc.,

545 U.S. 546 (2005) ............................................................................................ 52


8/12/2019 14-3464 #21

6/74

v

FCC v. Beach Commcns, Inc.,

508 U.S. 307 (1993) ............................................................................................ 42

Finstuen v. Crutcher,

496 F.3d 1139 (10th Cir. 2007) .......................................................................... 55

Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103 (1989) ................................................................................ 50, 53, 55

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002) ...................................................................................... 51, 52

Gonzales v. Carhart,

550 U.S. 124 (2007) ............................................................................................ 48

Goodridge v. Dept of Pub. Health,798 N.E.2d 941 (Mass. 2003) ......................................................................... 7, 45

Graham v. Connor,

490 U.S. 386 (1989) ............................................................................................ 33

Heller v. Doe,

509 U.S. 312 (1993) ...................................................................................... 42, 43

Hernandez v. Robles,

855 N.E.2d 1 (N.Y. 2006) ................................................................................... 30

Hicks v. Miranda,

422 U.S. 332 (1975) ............................................................................................ 25

Hood v. McGehee,

237 U.S. 611 (1915) ............................................................................................ 57

Howlett v. Rose,

496 U.S. 356 (1990) ............................................................................................ 51

In re Bonfield,780 N.E.2d 241 (Ohio 2002) .............................................................................. 37

In re Stiles Estate,

391 N.E.2d 1026 (Ohio 1979) ............................................................................ 33


8/12/2019 14-3464 #21

7/74

vi

In re Thompson,

30 A.D.3d 154 (N.Y. App. Div. 2006) ............................................................... 56

Jackson v. Abercrombie,

884 F. Supp. 2d 1065 (D. Haw. 2012) .........................................................passim

Lamb Enters., Inc. v. Kiroff,

549 F.2d 1052 (6th Cir. 1977) ............................................................................ 55

Lawrence v. Texas,

539 U.S. 558 (2003) .....................................................................................passim

Lee v. Pauldine,

No.1:12-cv-07, 2013 WL 65111 (S.D. Ohio Jan. 4, 2013) ................................ 41

Lewis v. Harris,908 A.2d 196 (N.J. 2006) ................................................................................... 30

Liberty Healthcare Mgmt. Grp. Inc. v. Fahey,

257 A.D.2d 964 (N.Y. App. Div. 1998) ............................................................. 56

Lofton v. Secy of Dept of Children & Family Servs.,

358 F.3d 804 (11th Cir. 2004) ............................................................................ 35

Loving v. Virginia,

388 U.S. 1 (1967) .......................................................................................... 30, 31

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ...................................................................................... 21, 22

Lyng v. Castillo,

477 U.S. 635 (1986) ............................................................................................ 36

Massachusetts v. U.S. Dept of Health & Human Servs.,

682 F.3d 1 (1st Cir. 2012) ................................................................................... 27

Mazzolini v. Mazzolini,155 N.E.2d 206 (Ohio 1958) ........................................................................ 32, 45

Mullins v. Oregon,

57 F.3d 789 (9th Cir. 1995) ................................................................................ 36


8/12/2019 14-3464 #21

8/74

vii

Minnesota v. N. Secs. Co.,

194 U.S. 48 (1904) ........................................................................................ 51, 52

Nevada v. Hall,

440 U.S. 410 (1979) ............................................................................................ 34

New State Ice Co. v. Liebmann,

285 U.S. 262 (1932) ...................................................................................... 31, 49

Obergefell v. Wymyslo,

962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal pending sub nom.

Obergefell v. Himes, No. 14-3057 ...............................................................passim

Parham v. J.R.,

442 U.S. 584 (1979) ............................................................................................ 36

Pierce v. Socy Sisters,

268 U.S. 510 (1925) ............................................................................................ 36

Reno v. Flores,

507 U.S. 292 (1993) ............................................................................................ 28

Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477 (1989) ............................................................................................ 26

Romer v. Evans,

517 U.S. 620 (1996) ..........................................................................25, 27, 38, 39

Rosin v. Monken,

599 F.3d 574 (7th Cir. 2010) ........................................................................ 54, 57

Scarbrough v. Morgan Cnty. Bd. of Educ.,

470 F.3d 250 (6th Cir. 2006) .................................................................. 38, 39, 40

Schmidt v. Lessard,

414 U.S. 473 (1974) (per curiam) ....................................................................... 22

Schuette v. Coal. to Defend Affirmative Action,

134 S. Ct. 1623 (2014) (op. of Kennedy, J.) ............................................. 5, 45, 46

Sevcik v. Sandoval,

911 F. Supp. 2d 996 (D. Nev. 2012) ............................................................. 44, 45


8/12/2019 14-3464 #21

9/74

viii

Smith v. Smith,

50 N.E.2d 889 (Ohio Ct. App. 1943) .................................................................. 33

Song v. City of Elyria,

985 F.2d 840 (6th Cir. 1993) .............................................................................. 25

State Oil Co. v. Khan,

522 U.S. 3 (1997) ................................................................................................ 26

Stewart v. Lastaiti,

409 F. Appx 235 (11th Cir. 2010) ............................................................... 53, 54

Sun Oil Co. v. Wortman,

486 U.S. 717 (1988) ...................................................................................... 33, 34

Thompson v. Thompson,484 U.S. 174 (1988) ...................................................................................... 51, 52

Troxel v. Granville,

530 U.S. 57 (2000) .............................................................................................. 36

Turner v. Safley,

482 U.S. 78 (1987) ........................................................................................ 30, 31

United Farm Workers v Ariz. Agric. Empt Relations Bd.,

669 F.2d 1249 (9th Cir. 1982) ............................................................................ 55

United States v. Carroll,

667 F.3d 742 (6th Cir. 2012) .............................................................................. 21

United States v. Green,

654 F.3d 637 (6th Cir. 2011) .............................................................................. 18

United States v. Thompson,

515 F.3d 556 (6th Cir. 2008) .............................................................................. 26

United States v. Windsor,133 S. Ct. 2675 (2013) .................................................................................passim

U.S. Citizens Assn v. Sebelius,

705 F.3d 588 (6th Cir. 2013) ........................................................................ 28, 31


8/12/2019 14-3464 #21

10/74

ix

Warshak v. United States,

532 F.3d 521 (6th Cir. 2008) ........................................................................ 20, 21

Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008) ...................................................................................... 20, 23

Washington v. Glucksberg,

521 U.S. 702 (1997) ..........................................................................28, 29, 31, 37

Wilson v. Ake,

354 F. Supp. 2d 1298 (M.D. Fla. 2005) .................................................. 25, 27, 44

Windsor v. United States,

699 F.3d 169 (2d Cir. 2012) ............................................................................... 26

Zablocki v. Redhail,434 U.S. 374 (1978) ...................................................................................... 30, 31

Statutes, Rules, and Constitutional Provisions

22 C.F.R. 51.42(a) ................................................................................................. 37

28 U.S.C. 1291 ........................................................................................................ 1

28 U.S.C. 1331 .................................................................................................. 1, 52

28 U.S.C. 1738C ............................................................................................. 33, 58

42 U.S.C. 1983 ...............................................................................................passim

Fed. R. Civ. P. 65 ..................................................................................................... 22

Maine Rev. Stat. Ann. 19-A 650-A ...................................................................... 42

N.Y. Dom. Rel. Law 10-a ..................................................................................... 42

N.Y. Dom. Rel. Law 117(1)(c) ............................................................................. 36

New Hampshire Rev. Stat. 457:1-a.......................................................................... 42

Ohio Const. art. XV, 11 .................................................................................passim

Ohio R. Civ. P. 19.1 ................................................................................................. 49

Ohio Rev. Code 3010.01(C)(2) ....................................................................... 10, 43


8/12/2019 14-3464 #21

11/74

x

Ohio Rev. Code 3101.01(C) ..................................................................... 6, 7, 8, 11

Ohio Rev. Code 3107.03 ....................................................................................... 58

Ohio Rev. Code 3111.95 ....................................................................................... 14

Ohio Rev. Code 3111.95(A) ................................................................................... 9

Ohio Rev. Code 3111.97 ....................................................................................... 49

Ohio Rev. Code 3313.672(A)(1) .......................................................................... 37

Ohio Rev. Code 3705.12 ....................................................................................... 57

Ohio Rev. Code 3705.12(A)(1) ............................................................................ 14

Ohio Rev. Code 5747.08(E) .................................................................................. 49

U.S. Const. art. IV, 1 ........................................................................... 33, 40, 52, 58

15 Vermont Stat. Ann. 8 ....................................................................................... 42

Other Authorities

13D Charles Alan Wright, et al., Federal Practice and Procedure

3563 (3d ed. 2008) .............................................................................................. 52

J. Story, Commentaries on the Conflict of Laws 113a (Little Brown,& Co. 6th ed. 1865) ............................................................................................ 33

Ohio Secretary of State, State Issue 1: November 2, 2004, available

at

http://www.sos.state.oh.us/sos/elections/Research/electResultsMai

n/2004ElectionsResults/04-1102Issue1.aspx (last visited June 6,

2014) ..................................................................................................................... 7

Restatement (Second) Conflicts of Laws 283 (1971) ..................................... 32, 33


8/12/2019 14-3464 #21

12/74

xi

STATEMENT REGARDING ORAL ARGUMENT

Defendant-Appellant Lance D. Himes asks the Court to hear oral argument

because this case concerns an issue of substantial importance. As in the similar

case of Obergefell v. Himes, No. 14-3057, the district court invalidated the

application of a popularly enacted state law, and, in the process, overturned a

tradition that was unquestioned for most of the Nations (and the worlds) history.

The ruling deserves oral argument.


8/12/2019 14-3464 #21

13/74

JURISDICTIONAL STATEMENT

The district court had federal-question jurisdiction under 28 U.S.C. 1331.

It entered a final judgment for Plaintiffs on April 14, 2014. On May 9, 2014,

Interim Director of Health Lance D. Himes (Defendant Himes, State, or

Ohio) timely appealed the final judgment. Doc.33, Notice of Appeal, at Page ID

#884. This Court has jurisdiction under 28 U.S.C. 1291.

STATEMENT OF THE ISSUES

Most Plaintiffs in this case are same-sex couples married in States that,

unlike Ohio, recognize same-sex marriage. For three of the four couples, one of

the women has conceived a child through artificial insemination; the fourth couple

lives in New York and has obtained a New York adoption decree for a child born

in Ohio. This appeal presents four issues, two of which (Questions 2 and 3) are

similar to the issues in Obergefell v. Himes, No. 14-3057, and two of which

(Questions 1 and 4) are distinct from the issues in Obergefell:

1. Plaintiffs complaint concerned the limited question whether the

Constitution required Defendant Himes to list both individuals from an out-of-

state, same-sex marriage on Ohio birth certificates. Did the district court

improperly decidebefore even reaching the meritsthat this narrow complaint

gave it an opportunity facially to enjoin Ohio laws prohibiting state actors from


8/12/2019 14-3464 #21

14/74

2

recognizing out-of-state, same-sex marriages not just in this birth-certificate

context but also in seemingly other contexts not before the Court?

2. May Ohio, consistent with the substantive-due-process protections in

the Fourteenth Amendments Due Process Clause, retain the traditional definition

of marriage and decline to recognize same-sex marriages performed in other

States?

3. May Ohio, consistent with the Fourteenth Amendments Equal

Protection Clause, retain the traditional definition of marriage and decline to

recognize same-sex marriages performed in other States?

4. The New York Plaintiffs (the same-sex couple living in New York

who obtained a New York adoption decree for a child born in Ohio) sought an

amended birth certificate for their child. Ohio offered to list one of the couples

names on the amended birth certificate, but declined to list both names because

Ohio law permits only married couples to jointly adopt and prohibits Ohio officials

from recognizing out-of-state, same-sex marriages. Did the district court correctly

holdin conflict with the Fifth Circuitthat the New York Plaintiffs could bring

a claim under 42 U.S.C. 1983 alleging that Ohios refusal to list both of their

names on a birth certificate violates the Full Faith and Credit Clause? If so, did the

district court also correctly holdagain in conflict with the Fifth Circuitthat

Ohios actions violated the Full Faith and Credit Clause?


8/12/2019 14-3464 #21

15/74

3

INTRODUCTION

The district courts decision in this case expands on its earlier decision in

Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal pending sub

nom. Obergefell v. Himes, No. 14-3057, and thereby continues to override the

democratic choices of Ohios citizens regarding fundamental social policy. In

Obergefell, the court held that the plaintiffs, same-sex couples who had married in

other States, had both substantive-due-process and equal-protection rights

requiring Ohio to issue death certificates identifying their out-of-state, same-sex

marriages. Id. at 997-98. In this case, the district court was presented with a

similar as-applied complaint brought by same-sex couples married in other States

challenging Ohio practices concerning birth certificates.

In many respects, the district courts new decision simply rested on the

mistakes it made in Obergefell. As in Obergefell, for example, the court ignored

the Supreme Court case that is most directly on pointthe summary dismissal in

Baker v. Nelson,409 U.S. 810 (1972). As in Obergefell, moreover, the court held

that Plaintiffs have a substantive-due-process right to same-sex-marriage

recognition, even though no such right has existed within our Nations traditions

and even though the Full Faith and Credit Clause allows one State not to recognize

a marriage undertaken in another. And, as in Obergefell, the court found that

courts should analyze sexual-orientation classifications under heightened scrutiny


8/12/2019 14-3464 #21

16/74

4

despite this Courts chain of authority applying rational-basis review. Because the

district court made many of the same mistakes as in Obergefelland because these

two cases have been consolidated for submission, the State will, where appropriate,

cite its Obergefell Appellants Brief to streamline the analysis and avoid

duplication as much as possible. See Doc.29, Brief of Appellant, Obergefell v.

Himes, No. 14-3057 (6th Cir. Apr. 10, 2014) (ObergefellAppellants Brief).

In other respects, however, the decision below magnified the errors made in

Obergefell. Unlike there, for example, the court issued a broad order facially

invalidating Ohio laws prohibiting its officials from recognizing out-of-state,

same-sex marriages seemingly in all contexts. It did so despite the preference for

as-applied challenges and the complaints as-applied focus. Similarly, in

Obergefell, the court found no substantive-due-process right to same-sex marriage

itselfbecause most courts had found no such right. Obergefell, 962 F. Supp. 2d

at 977. In this case, however, the court departed from its earlier analysis by

holding that substantive due process does, in fact, protect same-sex marriage.

Doc.28, Order, at Page ID #828-32. As one more example, the district courts

decision, unlike Obergefell, disagreed with the Fifth Circuit on an identical issue

whether a claim may be brought under 1983 to enforce an alleged violation of the

Full Faith and Credit Clause. Compare Adar v. Smith, 639 F.3d 146, 153-54 (5th

Cir. 2011) (en banc), with Doc.28, Order, at Page ID #854-56 n.i.


8/12/2019 14-3464 #21

17/74

5

At days end, despite these differences, the district courts decision in this

case rests on the same overarching premise as its decision in Obergefell. The court

presumed that anyone who believes that a State should retain the traditional

definition of marriage can have one, and only one, rationalebigotry. But, as the

Supreme Court noted in an equally delicate context a mere week after the decision

below, [i]t is demeaning to the democratic process to presume that the voters are

not capable of deciding an issue of this sensitivity on decent and rational grounds.

See Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014)

(op. of Kennedy, J.). And if such an acrimonious allegation is to be made, surely

it ought not to be at the invitation or insistence of the courts. Id.at 1635. Ohios

citizens are engaged in a good-faith debate on this important public-policy issue.

The Court should hold that the debate rightly belongs with the People of Ohio

rather than with the courts.

STATEMENT OF THE CASE

A. Ohios lawmakers and citizens both reaffirmed the traditionaldefinition of marriage in Ohio

Like every State until recently, Ohio has always followed the traditional

legal and societal definition of marriage. In 2004, as the debate over that definition

grew in both the democratic sphere and the courts, Ohioans decided to confirm the

traditional definition in two ways.


8/12/2019 14-3464 #21

18/74

6

Legislative Action. Ohios lawmakers reaffirmed the traditional definition of

marriage by passing Ohios Defense of Marriage Act. The Act provides:

(C)(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) The recognition or extension by the state of the specificstatutory 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 . . . 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. . . .

Ohio Rev. Code 3101.01(C). The Act disavows any intent to prohibit extending

non-marital benefits to same-sex relationships or any intent to affect private

agreements. Id. 3101.01(C)(3)(a)-(b).

On February 6, 2004, after the Act passed Ohios General Assembly,

Governor Robert Taft signed it into law. In doing so, the governor emphasized

that the laws purpose was not to discriminate against any Ohioans, but to

reaffirm existing Ohio law with respect to our most basic, rooted, and time-

honored institution: marriage between a man and a woman. Doc.17-3, Becker

Decl. Ex. G, at Page ID #290.


8/12/2019 14-3464 #21

19/74

7

Constitutional Action. Around the same time, litigants were challenging

statutes like Ohio Rev. Code 3101.01(C) under state constitutional provisions.

See, e.g., Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003)

(invalidating, under state constitution, statutory marriage definition). Ohios

citizens decided to define marriage a second time, this time in Ohios Constitution,

to ensure that Ohios state courts would not trump their democratic choices under

the rubric of interpreting the Ohio Constitution.

Specifically, Ohios citizens amended the Ohio Constitution to retain the

traditional definition of marriage, and to confirm that Ohio would not recognize

out-of-state, same-sex marriages. The amendment passed with over three million

votes, by a margin of 61.7% in favor and 38.3% against. See Ohio Secy of State,

State Issue 1: November 2, 2004, available at

http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2004Elections

Results/04-1102Issue1.aspx (last visited June 9, 2014). Article XV 11 of the

Ohio Constitution now provides:

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 thatintends to approximate the design, qualities, significance or effect of

marriage.

Ohio Const. art. XV, 11.


8/12/2019 14-3464 #21

20/74

8

B. Plaintiffs, four same-sex couples, an adopted child, and anadoption agency, filed suit seeking to have both same-sex partners

listed on Ohio birth certificates

Plaintiffs are four same-sex couples married outside Ohio in States that

permit same-sex marriages, the adopted son of one of these couples, and an

adoption agency. Doc.1, Compl., at Page ID #4-10. Plaintiffs filed this suit in

February 2014 on the heels of Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D.

Ohio 2013). In Obergefell, the other Ohio same-sex-marriage case pending before

this Court, the same judge permanently enjoined Defendant Himes, the Interim

Director of the Ohio Department of Health, from adhering to Ohio Const. art. XV,

11 and Ohio Rev. Code 3101.01(C) as applied to the plaintiffs. Specifically,

the court ordered Himes to list the same-sex partners of the plaintiff decedents on

the decedents death certificates. Doc.1, Compl., at Page ID #2; see Obergefell,

962 F. Supp. 2d at 997-98.

In this case, by comparison, three of the four couples are women who

married in other StatesNew York (Brittani Henry and LB Rogers), California

(Nicole and Pam Yorksmith), and Massachusetts (Kelly Noe and Kelly

McCracken). Id. at Page ID #4-7. When this litigation began, Brittani Henry,

Nicole Yorksmith, and Kelly Noe each had conceived an unborn child through

artificial insemination and each expected to deliver the infant in Ohio. Id. These

women sought to have their same-sex partners names listed on the childrens birth


8/12/2019 14-3464 #21

21/74

9

certificates in addition to their own names. Id. They asserted that, under Ohio law,

a womans husband would be deemed the natural father of the child (and listed on

the father section of the birth certificate) even when that child was conceived

through artificial insemination. Doc.1, Compl., at Page ID #5-7; see Doc.19-4,

Sample Birth Certificate, at Page ID #617; Ohio Rev. Code 3111.95(A). But

because Ohio does not recognize these Plaintiffs same-sex marriages, the

complaint alleged, this presumption does not apply to the non-birth-mother spouse

in a same-sex marriage from another State. Doc.1, Compl., at Page ID #5-7. Ohio

thus does not list the mothers same-sex partner on the birth certificate.

The fourth couple, men married and living in New York (Joseph J. Vitale

and Robert Talmas), have adopted a child under an order from a New York probate

court. Id. at Page ID #8. The child was born in Ohio in 2013. Id. The couple

seeks an amended birth certificate listing both men as parents. Id. The couple

asserted that Ohio would amend an adopted childs birth certificate to list both

spouses when those spouses are in an out-of-state, opposite-sex marriage. Id. But

since Ohio does not recognize same-sex marriages, the New York adoptive couple

cannot have bothindividuals listed on an amended birth certificate. Id.

The final Plaintiff, Adoption S.T.A.R., was the adoption agency for the New

York Plaintiffs. Id. It challenged Ohios birth-certificate laws on behalf of future

clients. Id. at Page ID #9-10. The agency alleged that it continues to serve same-


8/12/2019 14-3464 #21

22/74

8/12/2019 14-3464 #21

23/74

11

Doc.19, Stip., at Page ID #603-07. While Plaintiffs complaint sought narrow

relief requiring Ohio to recognize their same-sex marriages with respect to their

requests for birth certificates, Doc.1, Compl., at Page ID #2, their briefing

switched gears and sought facially to invalidate Ohios refusal to recognize out-of-

state, same-sex marriages in allcontexts, including those that do not involve the

Ohio Department of Health, seeDoc.18-2, Proposed Order, at Page ID #602.

The district court appeared to grant something approaching the broad relief

that Plaintiffs briefing requested. Doc.29, Decl. J. & Permanent Injunction, at

Page ID #860. It not only ordered Ohio to issue birth certificates to the Plaintiffs

for their children listing both same-sex parents, but also enjoined Defendant

Himes and his officers, agents, and employees from enforcing those portions of

Ohio Const. art. XV, 11 and Ohio Rev. Code 3101.01(C), and any other

provisions of the Ohio Revised Code, to deny recognition to valid out-of-state

same-sex marriages, and from denying same-sex couples validly married in other

jurisdictions all the rights, protections, and benefits of marriage provided under

Ohio law. Id. at Page ID #860.

The courts opinion largely tracked its decision in Obergefell, grounding its

broader holding in the Fourteenth Amendments Due Process and Equal Protection

Clauses. Doc.28, Order, at Page ID #828-50.


8/12/2019 14-3464 #21

24/74

12

1. At the outset, the court rejected Ohios argument that thefacialrelief

that Plaintiffs permanent-injunction briefing requested was not properly presented.

Id. at Page ID #826-28. Despite the limited relief pursued by the Plaintiffs in

Obergefell, the court reasoned, that case had intentionally expressed the facial

invalidity of Ohios marriage recognition ban . . . . Id. at Page ID #826. Further,

the court noted that this case was not explicitly framed only as an as-applied

challenge, and that, even if it were, the Court has authority to facially invalidate

a challenged law in an as-applied context. Id. at Page ID #827 (citing Citizens

United v. Fed. Election Commn, 558 U.S. 310, 331 (2010)).

2. Turning to Plaintiffs substantive-due-process arguments, the court

found that this case implicated three fundamental rights. Id.at Page ID #828.

First, while it conceded that [s]ome courts have not found that a right to same-sex

marriage is implicated in the fundamental right to marry, it found no reasonable

basis on which to exclude gay men, lesbians, and others . . . from this culturally

foundational institution. Id.at Page ID #828-29. Second, the court invoked the

same right to remain married on which it had relied in Obergefell. Id. at Page ID

#832-33. Third, the court stated that the marriage recognition bans also implicate

the parenting rights of same-sex married couples with children. Id. at Page ID

#833. As for the level of scrutiny, the court held that strict scrutiny applied to


8/12/2019 14-3464 #21

25/74

13

the right to marry and the right to parental authority, but that intermediate

scrutiny applied to the right to marriage recognition. Id. at Page ID #833-34.

Applying this scrutiny, the court began with the burden on Plaintiffs. The

court reasoned that Ohios refusal to recognize out-of-state marriageslike

Section 3 of the federal DOMA struck down in United States v. Windsor, 133

S. Ct. 2675 (2013)demeans the couple and humiliates tens of thousands of

children now being raised by same-sex couples. Id. at Page ID #836 (quoting

133 S. Ct. at 2694). And the court stated that 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 childs parentage and burdens the ability

of the childs parents to exercise their parental rights and responsibilities. Id. at

Page ID #837.

As for Ohios interestsincluding the interest in keeping the decision to

permit same-sex marriage within the democratic processes and the need to

approach social change with carethe court found them vague, speculative,

and/or unsubstantiated. Id.at Page ID #838. The court was especially critical of

Ohios repeated appeal to the purportedly sacred nature of the will of Ohio

voters, referring to it as particularly specious. Id.

3. The court next held that Ohios refusal to recognize out-of-state,

same-sex marriages violated equal protection. The court stated that, under Ohio


8/12/2019 14-3464 #21

26/74

14

law, opposite-sex spouses are listed as parents on birth certificates in cases of

artificial insemination and adoption. Id. at Page ID #841-43 (citing Ohio Rev.

Code 3111.95, 3705.12(A)(1)). But since Plaintiffs out-of-state, same-sex

marriages are not recognized, the birth mothers same-sex partner will not be listed

as a parent on the birth certificates. Id.

From here, the courts analysis tracked Obergefell. Turning to the level of

scrutiny for this distinction, the court conceded that this Court has continued to

apply rational-basis review to sexual-orientation classifications after Lawrence v.

Texas, 539 U.S. 558 (2003). Id. at Page ID #844. But it stated that these

decisions were not binding because they relied on pre-Lawrencelogic. Id.at Page

ID #844-45. Based on the rationales explained in Obergefell, the court thus

concluded that classifications based on sexual orientation must pass muster under

heightened scrutiny to survive constitutional challenge. Id.at Page ID #845.

The court went on to hold that Ohio lacked even a rational basis for

maintaining the traditional definition of marriage for the same reasons it identified

in Obergefell. Id. at Page ID #846-50. While purporting to apply rational-basis

review, the court asserted that Ohio certainly cannot meet its burden under

heightened scrutinyto demonstrate that the marriage recognition ban is necessary

to further important State interests. Id. at Page ID #848 (emphasis added).


8/12/2019 14-3464 #21

27/74

15

4. The district court addressed other substantive matters in two endnotes.

With respect to the New York Plaintiffs full-faith-and-credit claim, the court

concluded both that the claim could be brought under 42 U.S.C. 1983 against

state officials and that giving full faith and credit to an out-of-state adoption decree

requires Ohio to list both out-of-state adoptive parents on an amended Ohio birth

certificate. Id. at Page ID #854-56 n.i. When doing so, the court departed from the

only circuit to have considered this issue. Id. at Page ID #855 (agreeing with

dissent inAdar v. Smith, 639 F.3d 146 (5th Cir. 2011)). As for the ban in Section 2

of the federal DOMA on requiring one State to give effect to any public act,

record, or judicial proceeding of any other State respecting same-sex marriage,

the court held that, although Section 2 of DOMA is not specifically before the

Court, the implications of todays rulings speak for themselves. Id. at Page ID

#856.

In the second endnote, the court found that Adoption S.T.A.R. lacked

standing. Id. at Page ID #857 n.ii. Adoption S.T.A.R. relied on the rights of its

future clients under the third-party-standing doctrine, but failed to show that

same-sex couples married in other jurisdictions are hindered from litigating their

own rights. Id. Because Adoption S.T.A.R. did not cross-appeal this adverse

ruling, it no longer remains in this suit.


8/12/2019 14-3464 #21

28/74

8/12/2019 14-3464 #21

29/74

17

marriage recognition; and a right to parental authority in this context. Our

Nations history and traditions, not to mention the weight of appellate authority,

establish no fundamental right to same-sex marriage or same-sex-marriage

recognition. Substantive due process, moreover, does not apply where a more

specific constitutional provision is implicated. That is notable with respect to

same-sex-marriage recognition, because the Full Faith and Credit Clause permits

Ohio to refrain from recognizing out-of-state, same-sex marriages. Indeed,

Congress, which has authority over the effect that one State must give to another

States laws, has preserved a States power to choose non-recognition. And Ohios

refusal to place both names on birth certificates does not infringe any parental right

of constitutional dimension.

Fourth, the longstanding definition of marriage comports with equal

protection. The district court wrongly applied heightened scrutiny to Plaintiffs

equal-protection claim, because this Courts binding precedent applies rational-

basis review. And Ohio had several conceivable rational bases for its marriage

laws, including, among others, retaining the right of Ohioans to decide marriage

policy, approaching major social change cautiously, and maintaining uniformity.

Fifth, the district court erred by suggesting that Ohios laws violate the Full

Faith and Credit Clause as applied to the New York Plaintiffs and their New York

adoption decree. The Full Faith and Credit Clause, like the Supremacy Clause,


8/12/2019 14-3464 #21

30/74

18

does not create federal rights; it merely secures state-law rights flowing from a

judgment in the State of that judgment. Accordingly, like the Supremacy Clause, it

is not covered by 1983. See Adar v. Smith, 639 F.3d 146, 152-57 (5th Cir. 2011)

(en banc). Regardless, Ohios refusal to list both same-sex New York spouses on

an amended birth certificate does not violate the Full Faith and Credit Clause.

New York preclusion law would not apply to the relevant Ohio official (who was

not a party to the New York adoption decree). The Full Faith and Credit Clause,

moreover, does not require one State to enforce the judgment of a different State in

a manner that violates its own state laws. And Section 2 of the federal DOMA

allows Ohio to refuse to recognize such out-of-state judicial orders.

STANDARD OF REVIEW

The district courts various conclusions as to the constitutionality of Ohio

laws are all reviewed de novo. See United States v. Green, 654 F.3d 637, 649 (6th

Cir. 2011);Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688

(6th Cir. 2011).

ARGUMENT

Relying on substantive-due-process and equal-protection rationales, the

district court facially invalidated the portions of Ohios constitutional and statutory

marriage provisions that prohibit Ohio officials from recognizing out-of-state,

same-sex marriages. The court also suggested that the New York adoption decree


8/12/2019 14-3464 #21

31/74

19

gave the New York Plaintiffs a right under the Full Faith and Credit Clause to have

both individuals listed on their adopted childs amended birth certificate. The

court was mistaken on all counts. This case did not present the court with an

opportunity to facially invalidate Ohio law. See Part I. The courts substantive-

due-process and equal-protection conclusions, moreover, expanded on the mistakes

made in its Obergefell decision. See Parts II-IV. And its full-faith-and-credit

analysis misinterpreted both 1983 and the Full Faith and Credit Clause. See

Part V.

I. THE DISTRICT COURT ERRED AT THE OUTSET BYTRANSFORMING THE NARROW AS-APPLIED COMPLAINT

INTO A BROAD FACIAL ATTACK

As explained below, the district courts errors on the merits largely track the

errors it made in Obergefell. But here, as distinct from Obergefell, the court erred

at the outset by mistakenly analyzing the permissible scope of its ruling. In

Obergefell, the court limited its holding and injunction to the particular plaintiffs

and the particular death-certificate context. See Obergefell v. Wymyslo, 962

F. Supp. 2d 968, 1000 (S.D. Ohio 2013). In this case, the same court seemingly

claimed the authority to require state officials to recognize out-of-state, same-sex

marriages for all same-sex couples (not just Plaintiffs) and for all contexts (not just

the birth-certificate context in Plaintiffs complaint). See Doc.28, Order, at Page

ID #814 & n.1, 826-28, 852. The district court was mistaken.


8/12/2019 14-3464 #21

32/74

20

The courts decision departed from normal rules. Courts disfavor[] facial

challenges, Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,

450 (2008), and prefer to interpret complaints as raising as-applied claims, see,

e.g., Warshak v. United States, 532 F.3d 521, 528-29 (6th Cir. 2008); see also Am.

Fedn of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 864 (11th

Cir. 2013) (noting that courts construe a plaintiffs challenge, if possible, to be as-

applied). That rule follows from the fundamental principle of judicial restraint

that courts should neither anticipate a question of constitutional law in advance of

the necessity of deciding it nor formulate a rule of constitutional law broader than

is required by the precise facts to which it is to be applied. Wash. State Grange,

552 U.S. at 450 (quoting Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)

(Brandeis, J., concurring)). It also follows from the nature of courts, which are not

suited to engage in [l]itigation by hypothetical rather than litigation by a

particular cases concrete facts. Warshak, 532 F.3d at 529. The district court

flipped this presumption on its head by jumping immediately to a facial challenge.

To make matters worse, the district court did so even though the complaint

asserted a narrow challenge in the birth-certificate context. The complaint was

limited to recognition of same-sex marriages on birth certificates for the specific

Plaintiffs. Doc.1, Compl., at Page ID #2 (emphasis added). In the relevant count,

for example, Plaintiffs alleged that Ohio violated equal protection and due process


8/12/2019 14-3464 #21

33/74

21

because it had failed and will fail to issue birth certificates listing the adult

plaintiffs as the legal parents of their children based solely on the fact that they are

in a same-sex marriage. Id.at Page ID #16 (emphasis added). And the complaint

restricted the relief sought to the birth-certificate context. Id.at Page ID #16-18.

Nowhere does the complaint hint at the possibility of invalidating the Ohio laws

barring its agencies from recognizing out-of-state, same-sex marriages in the many

other potential contexts in which they might arise. Plaintiffs later attempt to

request broader relief in their briefing on fundamentally different factual claims

having nothing to do with birth certificates departed from normal pleading rules.

See Am. Fedn, 717 F.3d at 863.

Given the narrow claims asserted, moreover, the court could not even grant

injunctive relief outside the birth-certificate context consistent with Article III

standing. Standing requires the plaintiff to show that its injury is fairly traceable

to the challenged action of the defendant and not the result of the independent

action of some third party not before the court. United States v. Carroll, 667

F.3d 742, 745 (6th Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 568 (1992)). Thus, a plaintiff cannot bring suit against an alleged injury

caused by one governmental agency and expect to obtain relief against other

argued (if unalleged) injuries caused by othergovernmental agencies. See Lujan,

504 U.S. at 568-71 (plurality op.). This problem exists here. Because Plaintiffs


8/12/2019 14-3464 #21

34/74

22

brought a challenge only in the birth-certificate context, they (naturally enough)

sued Defendant Himes rather than other directors of other Ohio agencies. Given

the narrow suit, the District Court could accord relief only against Himes, not

other state-agency directors. See id. at 568. Accordingly, any unspecified injuries

flowing from state laws outside of the Ohio Department of Healths domain could

not be redressed by a decision against Defendant Himes. See id.at 568-71. Those

unalleged and unknown injuries potentially caused by other agencies not before the

court cannot possibly fall within the scope of the district courts ambiguous

injunction. See Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam) (noting

that Fed. R. Civ. P. 65 was designed to prevent uncertainty and confusion on the

part of those faced with injunctive orders, and to avoid the possible founding of a

contempt citation on a decree too vague to be understood).

The district courts analysis, by comparison, did not justify its contrary

result. Relying on Citizens United v. Federal Election Commission, 558 U.S. 310

(2010), the court asserted 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. Doc.28, Order, at Page ID #827 (quoting Citizens

United, 558 U.S. at 331). But Citizens United confirms the district courts error.

For one, Citizens Unitedresolved the facial challenge there only after rejecting as-


8/12/2019 14-3464 #21

35/74

23

applied challenges. Citizens United, 558 U.S. at 322-29; see id.at 374 (Roberts,

C.J., concurring) (The majoritys step-by-step analysis accords with our standard

practice of avoiding broad constitutional questions except when necessary to

decide the case before us.). Here, however, the district court jumped to the broad

facial challenge without considering the narrower as-applied challenge. For

another, Citizens United recognized that the distinction between facial and as-

applied challenges was instructive and necessary, for it goes to the breadth of the

remedy employed by the Court, not what must be pleaded in a complaint. Id.at

331. Here, however, the district court failed to consider whether it could grant its

broad remedy (reaching well beyond the birth-certificate context and perhaps

beyond the purview of the Department of Health).

In sum, the district courts analysis on this basic procedural issue speaks

volumes: Its failure to follow normal rules reflects the courts refusalfrom the

outsetto give due respect to the democratic social-policy choices made by Ohios

citizens. After all, the preference for as-applied challenges exists precisely because

facial challenges threaten to short circuit the democratic process by preventing

laws embodying the will of the people from being implemented in a manner

consistent with the Constitution. Wash. State Grange, 552 U.S. at 451.


8/12/2019 14-3464 #21

36/74

24

II. AS IN OBERGEFELL, THE DISTRICT COURTS EQUAL-PROTECTION AND DUE-PROCESS HOLDINGS CONFLICT WITH

BINDING SUPREME COURT PRECEDENT

Turning to the merits, the district court committed the same overarching

error that it did in Obergefell by ignoring Baker v. Nelson, 409 U.S. 810 (1972),

which precludes Plaintiffs due-process and equal-protection claims.

A. As the State noted in the ObergefellAppellants Brief (at 17-20), the

Supreme Courts Baker order requires this Court to reject Plaintiffs claims. In

Baker, a same-sex couple argued that they were deprived of liberty and property

without due process and [were] denied the equal protection of the laws when a

clerk declined to issue them a marriage license. Baker v. Nelson, 191 N.W.2d 185,

186 (Minn. 1971). The Minnesota Supreme Court rejected both arguments. Id.at

186-87. The U.S. Supreme Court dismissed the case for want of a substantial

federal question. Baker, 409 U.S. at 810. By doing so, the Court rejected the

plaintiffs two claims: (1) that Minnesotas refusal to sanctify [the plaintiffs]

[same-sex] marriage deprive[d] [them] of their liberty to marry and of their

property without due process of law; and (2) that Minnesotas refusal, pursuant

to Minnesota marriage statutes, to sanctify [the plaintiffs] marriage because both

are of the male sex violate[d] their rights under the equal protection clause.

Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1085 (D. Haw. 2012) (quoting

Baker v. Nelson,Jurisdictional Stmt., No. 71-1027, at 3 (Feb. 11, 1971)).


8/12/2019 14-3464 #21

37/74

8/12/2019 14-3464 #21

38/74

26

directly controls, leaving to this Court the prerogative of overruling its own

decisions. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.

477, 484 (1989); see State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); United States v.

Thompson, 515 F.3d 556, 565 (6th Cir. 2008). The district court disregarded this

rule by relying on alleged inferences from distinguishable decisions to ignore a

bindingdecision.

Windsor, for example, considered Section 3 of DOMA, which imposed a

federal definition of marriage for all federal laws. The Court invalidated this

provision because it was an unusual deviation from the [federal governments]

usual tradition of recognizing and accepting state definitions of marriage. 133

S. Ct. at 2693. Until DOMA, the Federal Government, through our history,

[would] defer[] to state-law policy decisions with respect to domestic relations,

because regulation of domestic relations is an area that has long been regarded as

a virtually exclusive province of the States. Id. at 2691 (citation omitted).

Tellingly, the circuit courts that struck down Section 3 of DOMA before Windsor

distinguished Baker in the same manner. The Second Circuit, for example,

distinguished Baker on the ground that [t]he question whether the federal

government may constitutionally define marriage as it does . . . is sufficiently

distinct from the question . . . whether same-sex marriage may be constitutionally

restricted by the states. Windsor v. United States, 699 F.3d 169, 178 (2d Cir.


8/12/2019 14-3464 #21

39/74

27

2012). Similarly, the First Circuit held that Bakerwas precedent binding on us

unless repudiated by subsequent Supreme Court precedent. Massachusetts v. U.S.

Dept of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012).

The district courts reliance on Lawrence and Romer was even more

mistaken. Lawrence, a case involving a prohibition on specified sexual conduct,

disclaimed that it did not involve whether the government must give formal

recognition to any relationship that homosexual persons seek to enter. 539 U.S. at

578. Romer involved a state constitutional amendment restricting the ability of

localities to prohibit discrimination based on sexual orientation in, among other

things, employment. 517 U.S. at 624. It, too, said nothing about marriage. These

decisions thus do not alter the dispositive effect of Baker. Wilson, 354

F. Supp. 2d at 1305; see Jackson, 884 F. Supp. 2d at 1085-86.

As in Obergefell, Ohio concedes that other district courts have disregarded

Bakers controlling nature, see Obergefell Appellants Br. 24, but those lower

courts mistakenly did so. This Court should not make the same mistake.

III. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLYINVOKED SUBSTANTIVE DUE PROCESS

The district courts substantive-due-process analysis was mistaken. To

qualify as a fundamental right triggering heightened scrutiny under substantive

due process, a right must be objectively, deeply rooted in this Nations history

and tradition, and implicit in the concept of ordered liberty, such that neither


8/12/2019 14-3464 #21

40/74

28

liberty nor justice would exist if they were sacrificed. U.S. Citizens Assn v.

Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (rejecting substantive-due-process

challenge to Patient Protection and Affordable Care Acts individual mandate)

(quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). And to

determine whether an alleged right meets these demanding standards, courts must

articulate a careful description of the asserted right, for [t]he doctrine of judicial

self-restraint requires [them] to exercise the utmost care whenever [they] are asked

to break new ground in this field. Reno v. Flores, 507 U.S. 292, 302 (1993)

(quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).

As explained in the Obergefell Appellants Brief (at 24-33), a careful

description of the asserted right in this case, Reno, 507 U.S. at 302, shows that

Ohios decision to adhere to the traditional definition of marriage cannot violate

substantive due process. Yet the district courts decision below expanded on the

errors it made in Obergefell by finding that Ohios refusal to recognize out-of-

state, same-sex marriages implicated not one but three different fundamental

rights: (1) the right to marry; (2) the right to marriage recognition; and (3) the

right to parental authority. The district court erred in each respect.

A. Plaintiffs have no fundamental right to same-sex marriageObergefellfound no right to same-sex marriage itself because most courts

have not found that a right to same-sex marriage is implicated in the fundamental


8/12/2019 14-3464 #21

41/74

29

right to marry. 962 F. Supp. 2d at 977. The district court changed its mind here,

however, by holding that Plaintiffs do have a fundamental right to same-sex

marriage. Doc.28, Order, at Page ID #828-32. That was mistaken.

1. The court departed from the traditional substantive-due-process

framework. When conducting that type of analysis, the Court should begin, as

[the Supreme Court does] in all due process cases, by examining our Nations

history, legal traditions, and practices. Glucksberg, 521 U.S. at 710. Those

factors provide the crucial guideposts for responsible decision making, . . . that

direct and restrain [the] exposition of the Due Process Clause. Id.at 721 (citation

omitted). This history is dispositive with respect to same-sex marriage. The

concept of same-sex marriage is not rooted in our Nations history. No State

recognized same-sex marriage until 2004, when Massachusetts began issuing

same-sex-marriage licenses as a result of a court decision. Doc.17-6, Grossman

Decl. 46, Page ID #402. Currently, a majority of States continue to adhere to the

traditional definition of marriage. See ObergefellAppellants Br. 27 n.1.

Not surprisingly, therefore, the district court departed from the great weight

of appellate courts to consider this question, which have refused to recognize a

fundamental right to same-sex marriage. See, e.g., Conaway v. Deane, 932 A.2d

571, 628 (Md. 2007) ([V]irtually every court to have considered the issue has held

that same-sex marriage is not constitutionally protected as fundamental in either


8/12/2019 14-3464 #21

42/74

30

their state or the Nation as a whole.); see alsoHernandez v. Robles, 855 N.E.2d 1,

10 (N.Y. 2006); Lewis v. Harris, 908 A.2d 196, 211 (N.J. 2006). Windsor itself

shows the futility of this argumentat least under normal substantive-due-process

rules. The Supreme Court there agreed that [i]t seems fair to conclude that, until

recent years, many citizens had not even considered the possibility that two

persons of the same sex might aspire to occupy the same status and dignity as that

of a man and woman in lawful marriage. 133 S. Ct. at 2689.

2. The district court rejected this general framework and case law on the

ground that the Supreme Court has consistently refused to narrow the scope of the

fundamental right to marry by reframing a plaintiffs asserted right to marry as a

more limited right that is about the characteristics of the couple seeking marriage.

Doc.28, Order, at Page ID #829 (citing, as support, Loving v. Virginia, 388 U.S. 1

(1967); Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374

(1978); Lawrence, 539 U.S. 558). In other words, because Loving did not ask

whether there was a traditional right to interracial marriage, Turner did not ask

whether there was a traditional right to inmatemarriage, andZablockidid not ask

whether there was a traditional right to marriage by one who owes child-support

payments, the district court reasoned that it was improper to ask whether there was

a traditional right to same-sex marriage. But this analysis is circular.


8/12/2019 14-3464 #21

43/74

31

Transforming the question from whether a new right to same-sex marriage

exists to whether same-sex marriage falls within the existing right to marry does

not change the method of answering the questionwhether the relevant

relationship is objectively, deeply rooted in this Nations history and tradition.

U.S. Citizens Assn, 705 F.3d at 601 (quoting Glucksberg, 521 U.S. at 720). In that

respect, the Supreme Court cases on which the district court relied allinvolved the

traditionalmarriage relationship between a man and a woman and asked whether

burdens on it could survive heightened scrutiny. Loving, 388 U.S. at 2;Zablocki,

434 U.S. at 377-79; Turner, 482 U.S. at 94-96. These cases thus confirm that

traditional marriage is the proper benchmark for triggering scrutiny under

substantive due process. Read this way, these cases comport with Glucksberg

given that, unlike same-sex marriage, traditional marriage is consistent with our

Nations history, legal traditions, and practices. 521 U.S. at 710. In comparison,

there is no way to reconcile what the district court said with the general test for

analyzing substantive-due-process claims. That test should be applied

evenhandedly. It should not be used in some contexts (like assessing the

Affordable Care Acts individual mandate, see Sebelius, 705 F.3d at 601), but

ignored in others (like assessing Ohios marriage laws).

The only case cited by the district court that did not involve traditional

marriageLawrenceis far afield of marriage. As noted,Lawrenceindicated that


8/12/2019 14-3464 #21

44/74

8/12/2019 14-3464 #21

45/74

33

Smith v. Smith, 50 N.E.2d 889, 894 (Ohio Ct. App. 1943); In re Stiles Estate, 391

N.E.2d 1026, 1027 (Ohio 1979). This public policy exceptionthe one under

which Ohio refuses to recognize out-of-state, same-sex marriagescomports with

the Nations history, legal traditions, and practices just as much as the traditional

recognition rule. See J. Story, Commentaries on the Conflict of Laws 113a, at

168 (Little Brown, & Co. 6th ed. 1865); Restatement (Second) Conflicts of Laws

283; see, e.g., Cook v. Cook, 104 P.3d 857, 860 (Ariz. Ct. App. 2005).

In addition, when a particular provision of the Constitution provides an

explicit textual source of constitutional protection, a court must assess a plaintiffs

claims under that explicit provision and not the more generalized notion of

substantive due process. Conn v. Gabbert, 526 U.S. 286, 293 (1999) (quoting

Graham v. Connor, 490 U.S. 386, 395 (1989)). Here, the Full Faith and Credit

Clause provides the most relevant constitutional rule. And, for two reasons, it

permits Ohio to refuse to recognize out-of-state, same-sex marriages.

Reason One: The Full Faith and Credit Clause grants Congress the ability to

prescribe the Effect that one States public Acts and Records have in other

States. U.S. Const. art. IV, 1; see Sun Oil Co. v. Wortman, 486 U.S. 717, 729

(1988). In that respect, Section 2 of the federal DOMA permits States to refuse to

give effect to any public act or record of any other State authorizing same-

sex marriage. 28 U.S.C. 1738C. It thus controls on this issue.


8/12/2019 14-3464 #21

46/74

34

Reason Two: The Full Faith and Credit Clause would have protected Ohios

right to define marriage aside from Section 2 of DOMA. [T]he Full Faith and

Credit Clause does not require a State to apply another States law in violation of

its own legitimate public policy. Nevada v. Hall, 440 U.S. 410, 422 (1979).

Thus, the States established and still subsisting choice-of-law practice[] of

recognizing only those marriages that do not violate their public policy is

constitutional under the Full Faith and Credit Clause, even if this policy has come

to be thought, by modern scholars, unwise. Sun Oil, 486 U.S. at 728-29.

To sum up, both historical practice and the most relevant constitutional

provision point in the same directionthat substantive due process does not

require Ohio to recognize out-of-state, same-sex marriages.

2. As in Obergefell, the district courts analysis on this issue turned

substantive due process into a super full-faith-and-credit provision unmoored

from history and tradition. Its decision to incorporate its Obergefell reasoning was

mistaken for the reasons already identified in the ObergefellAppellants Brief (at

33-36). The courts new invocation of Windsorwas equally mistaken. Windsor

recognized the unquestioned authority of the States to regulate marriage. 133

S. Ct. at 2693. Windsors federalism rationale would have made no sense if the

Court had believed that oneStates decision to recognize same-sex marriage would

bind the otherforty-nineStates.


8/12/2019 14-3464 #21

47/74

35

C. Ohios decision to retain the traditional definition of marriagedoes not implicate any fundamental parental rights

The district court lastly held, in a conclusory paragraph, that Ohios refusal

to recognize out-of-state marriages implicate[s] the parenting rights of same-sex

married couples with children. Doc.28, Order, at Page ID #833. This conclusion,

too, was mistaken.

As an initial matter, the only other appellate court to consider whether there

is any fundamental right to listing both same-sex individuals names on a birth

certificate has rejected the claim. See Adar v. Smith, 639 F.3d 146, 162 (5th Cir.

2011) (en banc). InAdar, an unmarried same-sex couple adopted a Louisiana child

in New York, and requested an amended Louisiana birth certificate listing both

adoptive parents. 639 F.3d at 149-50. But Louisiana officials could not place both

names on the certificate under Louisiana law, offering instead to list one name on

it. Id. The New York couple brought a 1983 suit alleging, among other things,

that this refusal violated equal protection. Id. at 161-62. The court rejected that

claim. Critically for present purposes, the court noted that heightened scrutiny did

notapply to this claim under any type of fundamental rights analysis. Id.at 162

(noting that since adoption is not a fundamental right, the Louisiana law will be

upheld if it is rationally related to a legitimate state interest); see also Lofton v.

Secy of Dept of Children & Family Servs., 358 F.3d 804, 811 (11th Cir. 2004)


8/12/2019 14-3464 #21

48/74

36

(holding that there is no fundamental right to adopt, nor any fundamental right to

be adopted);Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995) (same).

The district court did not follow this precedent. It also provided no

indication of how failing to have two names on a birth certificate affected any

fundamental parenting right. That is notable because only laws that directly and

substantially interfere with a fundamental right are entitled to heightened

scrutiny. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (citation omitted). In that

respect, the absence of both same-sex partners names from a birth certificate does

not prohibit a parent from obtaining medical care for their child, Parham v. J.R.,

442 U.S. 584, 602 (1979), from providing a child with the desired education, see

Pierce v. Socy Sisters, 268 U.S. 510, 535 (1925), or from regulating the childrens

contact with others, Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality op.).

With respect to the New York Plaintiffs, New York law recognizes the New

York adoption decree, not the names listed on a birth certificate, as establishing the

legal relationship of parent and son. N.Y. Dom. Rel. Law 117(1)(c) ( The

adoptive parents . . . and the adoptive child shall sustain toward each other the

legal relation of parent and child and shall have all the rights and be subject to all

the duties of that relation . . .). And the adoption decree itself indicates that it can

be provided to other governmental agencies for necessary purposes. Doc.17-2, at

Page ID #137-38. With respect to the Ohio Plaintiffs, contrary to the district


8/12/2019 14-3464 #21

49/74

37

courts suggestion, Doc.28, Order, at Page ID #837, a birth certificate that lists the

same-sex couple is not necessary for, among other things, the child to be admitted

to school, see Ohio Rev. Code 3313.672(A)(1), or to obtain a passport, see 22

C.F.R. 51.42(a). And Ohio law even permits shared custody agreements by non-

married individuals. See, e.g.,In re Bonfield, 780 N.E.2d 241, 249 (Ohio 2002).

* * * *

In sum, the district court inappropriately applied heightened scrutiny based

on substantive-due-process analysis. The Ohio laws prohibiting state officials

from recognizing out-of-state, same-sex marriages do not intrude on any

fundamental rights, so substantive due process requires courts to apply, at most,

rational-basis review to those laws. See Glucksberg, 521 U.S. at 728. For the

reasons explained below, the States decision to retain the traditional definition of

marriage satisfies that deferential review. SeePart IV.B.

IV. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLY HELDTHAT OHIOS DECISION TO RETAIN TRADITIONAL

MARRIAGE VIOLATED EQUAL PROTECTION

The district courts equal-protection analysis largely repeated the same

equal-protection errors it made in Obergefell. The court mistakenly relied on

Obergefells reasoning to apply heightened scrutiny to Ohios marriage laws, and,

based on Obergefells incorrect analysis, also mistakenly held that those laws

could not even pass muster under deferential rational-basis review.


8/12/2019 14-3464 #21

50/74

38

A. Rational-basis review applies to Ohios marriage lawsAs in Obergefell, the district court contradicted three of this Courts

opinions by holding that heightened scrutiny applies to Plaintiffs equal-protection

claims premised on sexual orientation. See Doc.28, Order, at Page ID #845.

1. Binding precedent requires this Court to apply rational-basis review

This Courts binding precedent dictates rational-basis review, and the district

court should not have disregarded those cases. Three published cases establish that

equal-protection claims based on sexual orientation receive rational-basis review.

See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough

v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006);Equality Found.

of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997).

In Equality Foundation, this Court explained that the Supreme Court had

resolved in Romer that the deferential rational relationship test . . . was the

correct point of departure for sexual-orientation classifications. 128 F.3d at 294

(citation omitted). Applying that standard, the Court concluded that the (now

repealed) Cincinnati charter amendment at issue served the valid interests of the

Cincinnati electorate in conserving public and private financial resources. Id. at

301.

Since Equality Foundation, the Court has twice reaffirmed that equal-

protection claims premised on sexual orientation receive rational-basis review. In


8/12/2019 14-3464 #21

51/74

39

Scarbrough, the Court relied on the fact that homosexuality is not a suspect class

in this circuit to conclude that persons who associate with homosexuals are

likewise not a suspect class. 470 F.3d at 261. Just two years ago, the Court again

restated the rational-basis standard: Because this court has not recognized sexual

orientation as a suspect classification, [the plaintiffs equal-protection] claim is

governed by rational basis review. Davis, 679 F.3d at 438.

While recognizing that this Court rejected heightened scrutiny for claims

based on sexual orientation in its most recent . . . case to consider the issue,

Doc.28, Order, Page ID #844, the district court departed from these cases based on

the same logic it pressed in Obergefell: (1) this Courts recent cases relied on its

earlier decision inEquality Foundation;(2)Equality Foundationrelied onBowers

v. Hardwick, 478 U.S. 186 (1986); (3)Lawrence overruled Bowers; and thus

(4) Equality Foundation (and apparently the Courts later decisions) now rest[]

on shaky ground. Doc.28, Order, at Page ID #844. This analysis is flawed.

For starters, Equality Foundation relied on Romer, not Bowers. See 128

F.3d at 291. The Supreme Court expressly directed this Court to apply Romer

when sendingEquality Foundationback for reconsideration in light ofRomer. Id.

at 294. In decidingEquality Foundation on remand, therefore, the Court noted that

Romer resolved that the deferential rational relationship test . . . was the correct

point of departure for the evaluation of laws which uniquely burdened the interests


8/12/2019 14-3464 #21

52/74

40

of homosexuals. Id. And Equality Foundation mentionedBowersonly once to

recount its prior vacated decision. Id. at 292-93.

Even if Equality Foundation had relied on Bowers, the Supreme Court

decided Lawrence (the case that overruled Bowers) on substantive-due-process

grounds without any equal-protectionanalysis. Lawrence stated that the question

presented was whether the petitioners were free as adults to engage in the private

conduct . . . under the Due Process Clause of the Fourteenth Amendment, 539

U.S. at 564, and disclaimed that its holding relied on any alternative equal-

protection argument, id. at 574-75. Lawrence does not speak to whether rational-

basis review should apply to equal-protection claims. Thus, in both Scarbrough

andDavis, this Court continued to apply rational-basis review after Lawrence. In

that respect, the district courts claim that it was without controlling post-

Lawrenceprecedent is patently incorrect. Doc.28, Order, at Page ID #844.

Any doubt on this score can be resolved by looking to the other opinion

(aside from Obergefell) on which the district court below purported to rely.

Doc.28, Order, Page ID #844 (citing Bassett v. Snyder, 951 F. Supp. 2d 939, 961

(E.D. Mich. 2013)). In Bassett, the court concluded that although it had doubts

about the Sixth Circuits rational-basis standard, it could not, as a lower court,

decide that sexual orientation is a suspect classification because that is not the law

of the circuit, and it cannot govern the decision here. 951 F. Supp. 2d at 961.


8/12/2019 14-3464 #21

53/74

41

Two other courts have likewise reached the same conclusion in the last two years.

See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *4-5 (W.D. Ky.

Feb. 12, 2014) (applying rational-basis review); Lee v. Pauldine, No.1:12-cv-07,

2013 WL 65111, at *6 (S.D. Ohio Jan. 4, 2013) (same).

In addition to its Obergefell analysis, the district court also cited recent

Ninth Circuit authority for the proposition that Windsor requires heightened

scrutiny for classifications based on sexual orientation. Doc.28, Order, at Page

ID #845 (citation omitted). But Windsor used the language of rational-basis

review, holding that the principal purpose of the federal law was to demean

same-sex couples, which itself could not be a legitimate purpose. Windsor, 133

S. Ct. at 2695-96; seeArmour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012)

(defining rational-basis standard). Windsor thus does not affect this Courts

precedent establishing rational-basis review for sexual-orientation claims.

2. Even apart from precedent, heightened scrutiny is notproper

Aside from circuit precedent, sexual orientation is not a suspect class

entitled to heightened scrutiny. See Obergefell Appellants Br. 44-45. When

considering social . . . legislation, the Equal Protection Clause allows the States

wide latitude because the Constitution presumes that even improvident decisions

will eventually be rectified by the democratic processes. City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 440 (1985). That is why rational-basis review


8/12/2019 14-3464 #21

54/74

42

is the rule rather than the exception. See id. Heightened scrutiny, by contrast,

applies only if democratic processes cannot be expected to change the law where

warranted. Id. Today advocates of same-sex marriage are experiencing significant

success both at the ballot box and in state legislatures. SeeMaine Rev. Stat. Ann.

19-A 650-A; New Hampshire Rev. Stat. 457:1-a; 15 Vermont Stat. Ann. 8;

N.Y. Dom. Rel. Law 10-a. That success is inconsistent with the lack of political

power that the Supreme Court has recognized as a trademark of a suspect class.

See Cleburne, 473 U.S. at 440, 443-44.

B. Ohios marriage laws survive rational-basis reviewFor the reasons stated in the ObergefellAppellants Brief (at 45-51), Ohios

marriage laws satisfy rational-basis review. When applying rational-basis review,

courts do not sit in judgment of the wisdom, fairness, or logic of legislative

choices, FCC v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993), but instead

consider only if a rational relationship exists between the laws

14-3464 #21

Documents