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    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.

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    On Appeal from the United StatesDistrict Court for the Southern District

    of Ohio, Western Division

    District Court Case No. 14-cv-0129

    REPLY BRIEF OF APPELLANT LANCE D. HIMES, INTERIM

    DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH

    MICHAEL DEWINE (0009181)

    Attorney General of Ohio

    ERIC E. MURPHY* (0083284)State Solicitor

    *Counsel of RecordBRIDGET 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 Defendant-Appellant,

    Lance D. Himes, Interim Director of

    the Ohio Department of Health

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    TABLE OF CONTENTS

    Page

    TABLE OF CONTENTS ............................................................................................ iTABLE OF AUTHORITIES ................................................................................... iiiINTRODUCTION ..................................................................................................... 1ARGUMENT ............................................................................................................. 4I. THIS COURT SHOULD REJECT THE VIEW OF PLAINTIFFS (AND

    NOW OF THE KITCHEN MAJORITY) THAT THE LOWER

    COURTS MAY FREELY DISREGARDBAKER......................................... 4II. PLAINTIFFS AND THE KITCHEN MAJORITY BOTH OFFER

    MISTAKEN RATIONALES FOR HEIGHTENED SCRUTINY .................. 7A. Plaintiffs and the Kitchen majority must depart from traditional

    rules to find a fundamental right to same-sex marriage ........................ 8B. Plaintiffs cherry-pick the relevant history when arguing for a

    fundamental right to same-sex-marriage recognition ......................... 12C. Plaintiffs make conclusory arguments in support of a variety of

    different alleged liberty interests ..................................................... 15D. Plaintiffs equal-protection rationales for heightened scrutiny fare

    no better than their fundamental-rights approaches ............................ 16III. PLAINTIFFS ARGUE FOR HEIGHTENED SCRUTINY BECAUSE

    OHIO LAW SATISFIES RATIONAL-BASIS REVIEW ............................ 18IV. PLAINTIFFS WOULD TURN FACIAL CHALLENGES INTO THE

    RULE RATHER THAN THE EXCEPTION................................................ 21V. THE NEW YORK PLAINTIFFS MISINTERPRET THE SCOPE OF

    THE FULL FAITH AND CREDIT CLAUSE .............................................. 24A. Procedurally, Plaintiffs have not shown that 1983 provides a

    vehicle to enforce the Full Faith and Credit Clause ............................ 24

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    ii

    B. Substantively, Ohios decision not to put both of the New YorkPlaintiffs names on an amended birth certificate did not violate

    the Full Faith and Credit Clause .......................................................... 27CONCLUSION ........................................................................................................ 30CERTIFICATE OF COMPLIANCECERTIFICATE OF SERVICE

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    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) .............................................................................. 20

    Arapahoe Cnty. Pub. Airport Auth. v. FAA,

    242 F.3d 1213 (10th Cir. 2001) .......................................................................... 28

    Armour v. City of Indianapolis,

    132 S. Ct. 2073 (2012) ........................................................................................ 19

    Baker v. Gen. Motors Corp.,

    522 U.S. 222 (1998) ............................................................................................ 28

    Baker v. Nelson,

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

    Bowers v. Hardwick,

    478 U.S. 186 (1986) ...................................................................................... 11, 16

    Brandenburg v. Hous. Auth.,

    253 F.3d 891 (6th Cir. 2001) .............................................................................. 13

    Bruni v. Cnty. of Otsego,

    192 A.D.2d 939 (N.Y. App. Div. 1993) ............................................................. 27

    Conn v. Gabbert,

    526 U.S. 286 (1999) ............................................................................................ 13

    Davis v. Prison Health Servs.,

    679 F.3d 433 (6th Cir. 2012) ........................................................................ 16, 17

    Dennis v. Higgins,

    498 U.S. 439 (1991) ............................................................................................ 25

    Dir., Office of Workers Comp. Programs v. Newport News

    Shipbuilding & Dry Dock Co.,

    514 U.S. 122 (1995) ............................................................................................ 24

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    iv

    Durfee v. Duke,

    375 U.S. 106 (1963) ............................................................................................ 27

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

    128 F.3d 289 (6th Cir. 1997) .................................................................. 16, 17, 20

    Finstuen v. Crutcher,

    496 F.3d 1139 (10th Cir. 2007) .................................................................... 26, 27

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

    493 U.S. 103 (1989) ...................................................................................... 24, 25

    Gonzaga Univ. v. Doe,

    536 U.S. 273 (2002) ............................................................................................ 26

    Goodson v. McDonough Power Equip., Inc.,443 N.E.2d 978 (Ohio 1983) .............................................................................. 23

    Graham v. Connor,

    490 U.S. 386 (1989) ............................................................................................ 13

    Griswold v. Connecticut,

    381 U.S. 479 (1965) ............................................................................................ 11

    Hardin v. Davis,

    16 Ohio Supp. 19, 1945 WL 5519 (Ohio Ct. Com. Pl. 1945) ............................ 14

    Hicks v. Miranda,

    422 U.S. 332 (1975) .............................................................................................. 4

    Howlett v. Rose,

    496 U.S. 356 (1990) ............................................................................................ 25

    In re Bonfield,

    780 N.E.2d 241 (Ohio 2002) .............................................................................. 15

    In re Bosworth,No. 86AP-903, 1987 WL 14234 (Ohio Ct. App. July 16, 1987)........................ 28

    Kitchen v. Herbert,

    No. 13-4178, __ F.3d __, 2014 WL 2868044 (10th Cir.

    June 25, 2014) ..............................................................................................passim

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    v

    Lawrence v. Texas,

    539 U.S. 558 (2003) .............................................................................. 4, 6, 11, 16

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

    358 F.3d 804 (11th Cir. 2004) ............................................................................ 15

    Loving v. Virginia,

    388 U.S. 1 (1967) ................................................................................................ 10

    Lyng v. Castillo,

    477 U.S. 635 (1986) ............................................................................................ 15

    Matthews v. Lucas,

    427 U.S. 495 (1976) ............................................................................................ 18

    Mazzolini v. Mazzolini,155 N.E.2d 206 (Ohio 1958) ........................................................................ 13, 14

    Minnesota v. N. Secs. Co.,

    194 U.S. 48 (1904) ........................................................................................ 25, 26

    Mullins v. Oregon,

    57 F.3d 789 (9th Cir. 1995) ................................................................................ 15

    Obergefell v. Himes,

    No. 14-3057 .......................................................................................... 1, 7, 16, 17

    Peefer v. State,

    182 N.E. 117 (Ohio Ct. App. 1931) .................................................................... 14

    Pickett v. Brown,

    462 U.S. 1 (1983) ................................................................................................ 18

    Pink v. A.A.A. Highway Express, Inc.,

    314 U.S. 201 (1941) ............................................................................................ 25

    Plyler v. Doe,457 U.S. 202 (1982) ............................................................................................ 18

    Reno v. Flores,

    507 U.S. 292 (1993) .......................................................................................... 8, 9

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    vi

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

    490 U.S. 477 (1989) .............................................................................................. 5

    Romer v. Evans,

    517 U.S. 620 (1996) .............................................................................. 4, 6, 17, 19

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

    470 F.3d 250 (6th Cir. 2006) ........................................................................ 16, 17

    Schuette v. Coalition to Defend Affirmative Action,

    134 S. Ct. 1623 (2014) .................................................................................... 3, 21

    Smith v. Smith,

    50 N.E.2d 889 (Ohio Ct. App. 1943) .................................................................. 14

    Song v. City of Elyria,985 F.2d 840 (6th Cir. 1993) ........................................................................ 1, 4, 5

    State ex rel. Hofstetter v. Kronk,

    254 N.E.2d 15 (Ohio 1969) ................................................................................ 23

    State ex rel. Wilson v. Preston,

    181 N.E.2d 31 (Ohio 1962) ................................................................................ 23

    Stewart v. Lastaiti,

    409 F. Appx 235 (11th Cir. 2010) ..................................................................... 26

    Sun Oil Co. v. Wortman,

    486 U.S. 717 (1988) ............................................................................................ 13

    Thomas More Law Ctr. v. Obama,

    651 F.3d 529 (6th Cir. 2012) (Sutton, J., concurring in part) ......................... 7, 25

    Thomas v. Wash. Gas Light Co.,

    448 U.S. 261 (1980) ............................................................................................ 25

    Thompson v. Thompson,484 U.S. 174 (1988) ................................................................................ 25, 26, 27

    Tully v. Griffin,

    429 U.S. 68 (1976) ................................................................................................ 5

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    Turner v. Safley,

    482 U.S. 78 (1987) ........................................................................................ 10, 11

    United States Citizens Association v. Sebelius,

    705 F.3d 588 (6th Cir. 2013) .......................................................................... 9, 10

    United States v. Dominguez,

    359 F.3d 839 (6th Cir. 2004) .............................................................................. 28

    United States v. Windsor,

    133 S. Ct. 2675 (2013) .................................................................................passim

    Walton v. Hammons,

    192 F.3d 590 (6th Cir. 1999) .............................................................................. 18

    Warshak v. United States,532 F.3d 521 (6th Cir. 2008) ........................................................................ 22, 23

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

    552 U.S. 442 (2008) ............................................................................................ 22

    Washington v. Confederated Bands & Tribes of Yakima Indian

    Nation,

    439 U.S. 463 (1979) .............................................................................................. 5

    Washington v. Glucksberg,

    521 U.S. 702 (1997) .....................................................................................passim

    Windsor v. United States,

    833 F. Supp. 2d 394 (S.D.N.Y. 2012) ................................................................ 23

    Zablocki v. Redhail,

    434 U.S. 374 (1978) ...................................................................................... 10, 11

    Statutes, Rules, and Constitutional Provisions

    22 C.F.R. 51.42(a) ................................................................................................. 16

    28 U.S.C. 1331 ................................................................................................ 26, 27

    28 U.S.C. 1738C ............................................................................................passim

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

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    viii

    Other Authorities

    Frank H. Easterbrook,Levels of Generality in Constitutional

    Interpretation: Abstraction and Authority, 59 U. Chi. L. Rev.

    (1992) .................................................................................................................... 8

    Patrick J. Borchers, Baker v. General Motors: Implications for

    Interjurisdictional Recognition of Non-Traditional Marriages,

    32 Creighton L. Rev. (1998) ............................................................................... 13

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    INTRODUCTION

    After several rounds of briefing, here and in the companion case of

    Obergefell v. Himes, No. 14-3057, a key point is undebatable: This case is as

    much about the role of the courtsand the role of this intermediate Courtas it is

    about same-sex marriage, fundamental rights, or anything else. Plaintiffs, the court

    below, and the majority in the recent Tenth Circuit decision, Kitchen v. Herbert,

    No. 13-4178, __ F.3d __, 2014 WL 2868044 (10th Cir. June 25, 2014), share an

    expansive view of the judiciarys role to reshape society, and an equally expansive

    view of the lower courts prerogatives to do so in the face of contrary Supreme

    Court precedent. Ohio and its citizens respectfully disagree, and urge this Court to

    respect its limited role within our democracy and judicial hierarchy. It should

    direct Plaintiffs to the proper road for the change they seekthe democratic road.

    Plaintiffs response lacks merit. First, after Kitchen, Plaintiffs think they

    can relegate Baker v. Nelson, 409 U.S. 810 (1972), to a footnote. But Kitchen

    cannot control here. Its conclusion that the Supreme Courts summary dismissals

    have lesser precedential value than its decisions conflicts with this Courts prior

    conclusion that such dismissals have the same precedential value as other

    holdings. Song v. City of Elyria, 985 F.2d 840, 843 (6th Cir. 1993). Moreover, as

    the Kitchen dissent detailed, 2014 WL 2868044, *33-35 (Kelly, J., concurring in

    part and dissenting in part), nothing in United States v. Windsor, 133 S. Ct. 2675

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    (2013), undercutsBaker. It takes serious logical gymnastics to interpret Windsors

    endorsement of the state control of marriage as eliminating the state control of

    marriage.

    Second, Plaintiffs offer a variety of rationales (at 17-36) for applying

    heightened scrutiny here. Most notably, like the Kitchenmajority, they focus on a

    claimed right to marry. This argument runs headlong into Washington v.

    Glucksberg, 521 U.S. 702 (1997), which requires a careful description of the

    asserted right rather than an articulation of that right at a high level of generality.

    Id. at 721. If a specific right to assisted suicide cannot be engineered merely

    through a request to participate in the general right to personal autonomy, see id.

    at 724, Plaintiffs cannot create a specific right to same-sex marriage merely by

    alleging that they seek to participate in the general right to marry.

    Third, Plaintiffs argue (at 36-39) that Ohios marriage laws flunk rational-

    basis review. Notably, however, the Kitchen majority struck down Utahs

    marriage laws only by (wrongly) applying heightened scrutiny, conceding that its

    opinion in no way impugn[ed] the integrity or the good-faith beliefs of those who

    supported the Utah law. 2014 WL 2868044, at *32. And the Kitchen dissent

    outlined many rational bases. For example, same-gender marriage is a new social

    phenomenon with unknown outcomes and the State could choose to exercise

    caution. 2014 WL 2868044, at *40 (Kelly, J., concurring in part and dissenting in

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    part). Plaintiffs also cannot reconcile their views with Schuette v. Coalition to

    Defend Affirmative Action, 134 S. Ct. 1623 (2014). Here, just as in Schuette,

    courts should not presume that voters are not capable of deciding an issue of this

    sensitivity on decent and rationalgrounds. See id.at 1637 (emphasis added).

    Fourth, the Court should at least reverse the district courts facial remedy, as

    Plaintiffs pleaded an as-applied case, and our system favors that limited approach.

    Plaintiffs contrary view (at 40-44) unfairly seeks to use arguments tailored solely

    to the birth-certificatecontext in support of a facial remedy for all contexts.

    Fifth, the New York Plaintiffs mistakenly rely (at 44-58) on the Full Faith

    and Credit Clause. They failed to show that the clause can be enforced under

    1983, and, even if it could, the adoption decree does not violate it. Indeed,

    Plaintiffs do not even cite federal DOMAs Section 2, which, left untouched by

    Windsor, endorses each States right not to recognize same-sex marriage. All told,

    Plaintiffs ask the Court not only to cast aside state law and Baker, but to throw out

    a federal statute by ignoring it. That adds Congress, along with the Supreme Court

    and the people of Ohio, to the actors that Plaintiffs would have the Court disregard

    in their rush to make their views supreme.

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    ARGUMENT

    I. THIS COURT SHOULD REJECT THE VIEW OF PLAINTIFFS

    (AND NOW OF THE KITCHEN MAJORITY) THAT THE LOWER

    COURTS MAY FREELY DISREGARDBAKER

    Ohios opening brief explained (at 24-27) both that Baker precludes

    Plaintiffs claims and that the district court mistakenly relied on distinguishable

    cases, including Windsor,Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v.

    Evans, 517 U.S. 620 (1996). Even though the majority and dissent in the Tenth

    Circuits decision spent pages debating Bakers domain, compare 2014 WL

    2868044, at *7-10, withid.at *33-35 (Kelly, J., concurring in part and dissenting

    in part), Plaintiffs now think it worthy of a mere footnote (at 39 n.7). Baker cannot

    be dismissed in this way. Both precedent and logic point this Court to the Kitchen

    dissent over the Kitchenmajority.

    Start with this Courts precedent. According to the Kitchen majority, a

    lower court must strictly follow a Supreme Court opinion even if recent cases have

    all but overruled it, Kitchen, 2014 WL 2868044, at *8 & n.2, but may freely

    disregard a summary dismissal if doctrinal developments have superseded it,

    id. at *8 (quoting Hicks v. Miranda, 422 U.S. 332, 344 (1975)). Contrary to this

    disparate approach to precedent, this Court has already concluded that summary

    dispositions have the sameprecedential value as other holdings and are binding on

    the lower courts until the Supreme Court decides otherwise. Song, 985 F.2d at

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    843 (emphases added). Because Songinstructs this Court to follow the samerules

    for all cases (even summary dismissals), Baker triggers the rule that if a Supreme

    Court precedent has direct application in a case, yet appears to rest on reasons

    rejected in some other line of decisions, the Court of Appeals should follow the

    case which directly controls, leaving to [the Supreme] Court the prerogative of

    overruling its own decisions. Rodriguez de Quijas v. Shearson/American

    Express, Inc., 490 U.S. 477, 484 (1989).

    The Kitchenmajoritys view fares no better as a matter of Supreme Court

    precedent. As the Kitchendissent recognized, 2014 WL 2868044, at *34 (Kelly,

    J., concurring in part and dissenting in part), the Supreme Court has held that

    summary dispositions are controlling precedent in lower courts unless and until

    re-examined by [that] Court. Tully v. Griffin, 429 U.S. 68, 74 (1976). Any

    relaxed precedential value of summary dismissals applies only in the Supreme

    Courtnot in thisCourt. The Kitchen majoritys own citation to Washington v.

    Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463 (1979),

    proves that fact. Confederated Bandsheld that summary dismissals do not have

    the same precedential value here, id.at 476 n.20 (emphasis added)meaning in

    the Supreme Court. It says nothing about those dismissals having reduced

    precedential value in the lower courts.

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    Even assuming that the Supreme Court would authorize lower courts to

    reject its rulings under a vague doctrinal developments test, nothing has

    superseded Baker. As Ohios opening brief noted (at 27), Lawrence and Romer

    involved different issues, and Lawrence disclaimed any intent to require public

    recognition of gay and lesbian relationships, 539 U.S. at 578. The Kitchen

    majority thus conceded that [s]everal courts held prior to Windsor that Baker

    controlled the same-sex marriage question. 2014 WL 2868044, at *8.

    The majoritys claim for trumping Baker thus boils down to Windsor. But

    Windsors invalidation of Section 3 of DOMA rested on federalism groundsthat

    the law was an unusual deviation from the [federal governments] usual tradition

    of recognizing and accepting state definitions of marriage. 133 S. Ct. at 2693.

    The Kitchenmajority conceded that Windsorcontains substantial federalism logic,

    but suggested that Windsor did not adopt a federalism holding. See 2014 WL

    2868044, at *9 (noting that the WindsorCourt concluded it was unnecessary to

    decide whether DOMA is a violation of the Constitution because it disrupts the

    federal balance (citation omitted)). But that provides no basis for disregarding

    the federalism rationale. While Windsor rested on the Fifth Amendment rather

    than the Constitutions underlying federalism structure, that underlying structure

    still served to answer the Fifth Amendment questioni.e., it led the Court to find

    that improper animus existed because of the federal governments unusual

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    encroachment on the States. 133 S. Ct. at 2693. In this respect, the Kitchen dissent

    rightly recognized the implausibility of the majoritys reading of Windsorwhich

    treated its many pages on federalism as irrelevant musings. See 2014 WL

    2868044, at *35, *38 (Kelly, J., concurring in part and dissenting in part).

    In the end, what Ohio said in its ObergefellReply Brief (at 11-12) remains

    true. The State gives full meaning to all of Windsor and reconciles that recent

    decision withBaker, whereas Plaintiffs and the Kitchen majority readBaker out of

    the U.S. Reports and ignore a substantial portion of Windsor. In this setting, where

    the most natural reading of the relevant Supreme Court cases points in the States

    direction, it is not the job of the lower courts to take the lead on the alternative

    revolutionary path. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 553 (6th

    Cir. 2012) (Sutton, J., concurring in part).

    II. PLAINTIFFS AND THE KITCHEN MAJORITY BOTH OFFER

    MISTAKEN RATIONALES FOR HEIGHTENED SCRUTINY

    Ohios opening brief showed (at 27-42) that the district court erred by

    applying heightened scrutiny to Ohios traditional definition of marriage.

    Plaintiffs response both relies (at 17-21) on the Kitchen majoritys logic that

    same-sex couples have a fundamental right to marry, and asserts (at 22-36) a

    hodgepodge of alternative rationales for heightened scrutiny. None has merit.

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    A. Plaintiffs and the Kitchenmajority must depart from traditionalrules to find a fundamental right to same-sex marriage

    As Ohios opening brief illustrated (at 27-32), the traditional fundamental-

    rights approach requires both that courts make a careful description of the

    asserted right, Reno v. Flores, 507 U.S. 292, 302 (1993) (citation omitted), and

    that the right be deeply rooted in this Nations history and tradition,

    Glucksberg, 521 U.S. at 721 (citation omitted). Here, the carefully described

    right asserted is one to same-sex marriage, which is not deeply rooted in our

    Nations history.

    Plaintiffs do not claim (at 17-21) that same-sex marriage is, in fact, deeply

    rooted. Instead, they ratchet up the level of generality of the asserted right,

    replacing the specific right to same-sex marriage with the more general right to

    marry. But this analysis is irreconcilable with the Supreme Courts cases requiring

    a careful description. Reno, 507 U.S. at 302. Indeed, Plaintiffs effort to change

    the level of generality would lead to decisionmaking that is completely arbitrary

    and impractical. Kitchen, 2014 WL 2868044, at *37 (Kelly, J., concurring in part

    and dissenting in part). Under Plaintiffs approach, any group could argue for any

    constitutional result simply by defining the alleged right at a level of generality that

    makes it consistent with our traditions. See Frank H. Easterbrook, Levels of

    Generality in Constitutional Interpretation: Abstraction and Authority, 59 U. Chi.

    L. Rev. 349, 358 (1992) (Movements in the level of constitutional generality may

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    be used to justify almost any outcome.). This risk of manipulation is precisely

    why the Supreme Court has cautioned that [t]he doctrine of judicial self-restraint

    requires [courts] to exercise the utmost care in the subjective fundamental-rights

    area. Reno, 507 U.S. at 302 (citation omitted).

    A few examples prove this risk. Take Glucksberg, which concerned whether

    the plaintiff had a right to assisted suicide. See 521 U.S. at 705-06. The plaintiffs

    there (like the Plaintiffs here) faced the same dilemmathe Nation had an almost

    universal tradition that has long rejected the asserted right. Id.at 723. No matter.

    The plaintiffs raised the level of generality, asserting that they did not seek to

    create a new right to suicide and merely sought to participate in the general right

    to the basic and intimate exercises of personal autonomy. Id.at 724 (citation

    omitted). The Court handily rejected this claim, reasoning that simply because

    many of the rights and liberties protected by the Due Process Clause sound in

    personal autonomy does not warrant the sweeping conclusion that any and all

    important, intimate, and personal decisions are so protected. Id.at 727.

    Or take this Courts recent decision in United States Citizens Association v.

    Sebelius, 705 F.3d 588 (6th Cir. 2013)which addressed whether the plaintiffs

    had a right not to abide by the individual mandate in the Patient Protection and

    Affordable Care Act. See id. at 601. Since [t]he Supreme Court long ago

    abandoned the protection of economic rights through substantive due process, the

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    plaintiffs attempted to reframe the right. Id. They did not seek a new right not

    to pay taxes; they sought to participate in the fundamental right to refuse

    unwanted medical care. See id. This Court disagreed, and, in the process,

    recognized that the right at issue must be carefully described. Id.

    The Kitchenmajority, by contrast, suggested that, [i]n numerous cases, the

    [Supreme] Court has discussed the right to marry at a broader level of generality

    than would be consistent with Ohios approach. Kitchen, 2014 WL 2868044, at

    *12, *14 (citing Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434

    U.S. 374 (1978);Loving v. Virginia, 388 U.S. 1 (1967)). But, as a general matter,

    nothing suggests that the term marriage as used in those cases had any meaning

    other than what was commonly understood for centuries. Kitchen, 2014 WL

    2868044, at *36 (Kelly, J., concurring in part and dissenting in part). Adjectives

    about inmate marriage (Turner), marriage by one owing child support (Zablocki)

    or interracial marriage (Loving) were modifiers to the nounmarriage, which was

    defined with the opposite-sex framework. SeeWindsor, 133 S. Ct. at 2689.

    These cases are also distinguishable on more specific rationales. Loving, for

    example, involved racial discriminations, 388 U.S. at 12, and triggered the

    Fourteenth Amendments central purpose to eliminate all official state sources

    of invidious racial discrimination, id. at 10. It was also decided years before

    Baker. Whether or notBakerhas been superseded by later decisions,Bakercould

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    not have been supersededby apreceding case. The other two cases are also fully

    consistent with Ohios approach. Plaintiffs assert that Turnerdid not ask whether

    there was any historical right to inmate marriage andZablockidid not ask whether

    there was any historical right to marriage by those who owe child support. But this

    has it backwards. The proper question is whether there was a historical limiton the

    right to marry of prisoners or those who owed child support. The States in neither

    case pointed to any such tradition. See Turner, 482 U.S. at 94-95;Zablocki, 434

    U.S. at 384-86.

    Plaintiffs lastly suggest (at 19-20) that Ohios approach conflicts with

    Lawrence, which criticizedBowers v. Hardwick, 478 U.S. 186 (1986), as fail[ing]

    to appreciate the extent of the liberty at stake. 539 U.S. at 567. But Lawrence

    concerned the most private human conduct, sexual behavior, and in the most

    private of places, the home, id. at 567, and fell within the right to privacy

    recognized by Griswold v. Connecticut, 381 U.S. 479 (1965). Even at the highest

    level of generality, Plaintiffs cannot plausibly assert that this right to privacy

    includes a right topublicrecognition. Cf. Lawrence, 539 U.S. at 578.

    One final point against Plaintiffs view. The traditional fundamental-rights

    approach is the more adaptable; it leaves the greater flexibility for our society to

    debate and evolve. Cf. Glucksberg, 521 U.S. at 735 (Throughout the Nation,

    Americans are engaged in an earnest and profound debate about the morality,

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    legality, and practicality of physician-assisted suicide. Our holding permits this

    debate to continue, as it should in a democratic society.). Plaintiffs approach, by

    contrast, is wooden. It has the potential to cement every question into a

    constitutional one, making it impossible for future generations to adopt new laws

    in the face of a changing society. And it requires the courts to exercise what is

    essentially legislative oversight outside their institutional expertise. See Kitchen,

    2014 WL 2868044, at *37 (Kelly, J., concurring in part and dissenting in part)

    ([T]he State has a much better handle on what statutory and administrative

    provisions are involved, and what is necessary to implement change, than we do.).

    B. Plaintiffs cherry-pick the relevant history when arguing for afundamental right to same-sex-marriage recognition

    As Ohios opening brief showed (at 32-34), Plaintiffs do not have a

    fundamental right to force the State to recognize out-of-state, same-sex

    marriages, because (1) such a right conflicts with our Nations history and (2) the

    Full Faith and Credit Clause has long allowed States to refuse to recognize

    marriages against their public policy. In response, Plaintiffs attempt (at 22-28) to

    satisfy the Glucksberg standard, pointing to an alleged tradition of States

    recognizing out-of-state marriages valid in the State of celebration. This response

    does not suffice.

    To begin with, Plaintiffs ignore the States argument why this Court need

    not even apply Glucksberg. Where a provision of the Constitution provides an

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    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)); see Brandenburg v. Hous. Auth.,

    253 F.3d 891, 900 (6th Cir. 2001). Here, the Full Faith and Credit Clause provides

    the textual source for determining whether one State must recognize anothers

    laws. And, notably, that clause does not require Ohio to recognize out-of-state,

    same-sex marriages. Indeed, it gives Congress great latitude in determining the

    effect of one States laws in another State, see Sun Oil Co. v. Wortman, 486 U.S.

    717, 729 (1988), and Section 2 of DOMA allows Ohio to disregard out-of-state,

    same-sex marriages, see 28 U.S.C. 1738C.

    Regardless, Plaintiffs cannot satisfy Glucksberg. Their view would

    constitutionalize the choice-of-law default rule on which they rely, while reading

    out the equally established public-policy exception. See Mazzolini v. Mazzolini,

    155 N.E.2d 206, 208 (Ohio 1958) (noting that Ohio would not recognize marriage

    unalterably opposed to a well-defined public policy); see generally Patrick J.

    Borchers, Baker v. General Motors: Implications for Interjurisdictional

    Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147, 154-58

    (1998) (discussing history and concluding that [w]hile the application of the

    public policy exception has varied with courts and circumstances, state conflicts

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    rules have always been open to refusing to recognize certain marriages and classes

    thereof). Fundamental-rights analysis does not allow parties to invoke the

    portions of history that they like and disregard the rest.

    Plaintiffs respond (at 28-29) that this exception has been infrequently

    invoked. But they fail to explain why a State must invoke an exception frequently

    enough to preserve its use against a constitutionally imposed expiration date. And,

    frankly, this issue simply has not arisen often either way. Plaintiffs have identified

    three Ohio cases in which an out-of-state marriage that would have been unlawful

    in the State was recognized. It cannot be the case that the Ohio legislature has

    given up its public-policy exception because the Ohio courts once recognized a

    marriage between first cousins, Mazzolini, 155 N.E.2d at 208-09, a marriage

    involving a minor over the common law age, Peefer v. State, 182 N.E. 117, 120-

    21 (Ohio Ct. App. 1931), or a proxy marriage between a woman and a man

    serving during World War II,Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519,

    at *5 (Ohio Ct. Com. Pl. 1945)); cf. Smith v. Smith, 50 N.E.2d 889, 894 (Ohio Ct.

    App. 1943) (suggesting that [h]ad Connecticut recognized the marriage as valid, it

    would be questionable whether the public policy of Ohio would approve). The

    Court should resist the urge to create a super Full Faith and Credit Clause under

    the guise of substantive due process.

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    C. Plaintiffs make conclusory arguments in support of a variety ofdifferent alleged liberty interests

    Plaintiffs supplement (at 30-32) their fundamental-rights claim with other

    liberty interests allegedly at stake for birth certificates, ranging from parental

    rights, to rights to intimate association, family integrity, and self-definition, to

    the right to travel. They are wrong on all counts.

    As an initial matter, Plaintiffs do not dispute that the only other circuit to

    consider whether same-sex couples have a fundamental right to listing both

    names on a birth certificate has rejected the claim. See Adar v. Smith, 639 F.3d

    146, 162 (5th Cir. 2011) (en banc) (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). And other circuits agree that individuals with no

    biological connection to a child have no fundamental right to become that childs

    parent. See, e.g., Lofton v. Secy of Dept of Children & Family Servs., 358 F.3d

    804, 811 (11th Cir. 2004);Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995).

    In all events, Plaintiffs do not explain how the failure to list both names on a

    birth certificate directly and substantially interfere[s] with any fundamental

    right so as to trigger heightened scrutiny. Lyng v. Castillo, 477 U.S. 635, 638

    (1986) (citation omitted). Plaintiffs own expert points to Ohio law allowing

    couples to enter co-custody agreements giving a non-parent decisionmaking

    rights. See Doc.17-3, Becker Decl., at Page ID #144; In re Bonfield, 780 N.E.2d

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    241, 249 (Ohio 2002). And, as for any right to travel, Plaintiffs identify nothing in

    federal law that prevents them from obtaining a passport for the child, whether or

    not the passport lists both individuals. See 22 C.F.R. 51.42(a) (merely requiring

    submission of birth certificate).

    D. Plaintiffs equal-protection rationales for heightened scrutiny fareno better than their fundamental-rights approaches

    With respect to equal protection, Ohios opening brief explained (at 37-42)

    both that this Courts cases require rational-basis review and that, aside from

    precedent, heightened scrutiny is inappropriate. 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 response, Plaintiffs assert (at

    33-36): (1) that sexual-orientation classifications are subject to heightened

    scrutiny; (2) that traditional marriage discriminates based on gender; and (3) that

    Ohios marriage laws discriminate against children. All three theories fail.

    First, Plaintiffs rely entirely (at 33-34) on the ObergefellAppellees Brief

    for their claim that it remains open in this Court whether sexual-orientation

    classifications should be subject to heightened scrutiny. In doing so, they do not

    even attempt to confront the reasons identified in the States ObergefellReply (at

    16-20) why they are wrong. They continue to claim thatLawrences decision to

    overrule Bowers also overruled Equality Foundationeven though, as the State

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    has noted, Equality Foundation rested on Romer. 128 F.3d at 294. Their claim

    thatDavissand Scarbroughs conclusions to the same effect qualify as mere dicta

    ignores the States illustration that the standard-of-review framed how those cases

    were resolved on appeal and how they would be resolved on remand. See, e.g.,

    Davis, 679 F.3d at 438; Scarbrough, 470 F.3d at 261. Finally, Plaintiffs claim

    that Windsor changes things ignores that it relied on rational-basis language and

    cited rational-basis cases. See 133 S. Ct. at 2693, 2695-96.

    The Kitchen decision cements this conclusion. The Kitchenmajority did not

    rely on this ground as the basis for its conclusion that heightened scrutiny applied.

    See 2014 WL 2868044, at *11-21. And the Kitchen dissent noted both that the

    panel was bound by the Tenth Circuits prior cases reject[ing] heightened

    scrutiny for sexual-orientation classifications and that the Windsor decision did

    not undermine those decisions. Id. at *36 (Kelly, J., concurring in part and

    dissenting in part). Identical analysis applies here.

    Second, Plaintiffs gender-discrimination argument simply incorporates the

    logic of the Obergefell Appellees Brief and fails for the reasons stated in the

    Obergefell Reply (at 21-22). Apart from prior briefing, Kitchen is again notable.

    The Kitchenmajority did not rest on any gender-discrimination theory, see 2014

    WL 2868044, at *11-21, and the dissent rejected the theory because the plaintiffs

    there could not show that either gender as a class is disadvantaged by the Utah

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    provisions retaining the traditional definition of marriage, id. at *35 (Kelly, J.,

    concurring in part and dissenting in part).

    Third, Plaintiffs are wrong (at 35-36) to rely on heightened equal-protection

    scrutiny based on alleged discrimination against children. Notably, the Fifth

    Circuit rejected calls for heightened scrutiny in the most analogous case. See Adar,

    639 F.3d at 162. And the only case cited by Plaintiffs that applied heightened

    scrutiny did so based on the use of illegitimacy as a classification. See Pickett v.

    Brown, 462 U.S. 1, 8 (1983). That case[] cannot support the conclusion that the

    children at issue here belong[] to a suspect class protected by heightened

    scrutiny because Ohio is not using any type of illegitimacy classification. Adar,

    639 F.3d at 162. Plaintiffs other cases either applied rational-basis review, see

    Plyler v. Doe, 457 U.S. 202, 223-24 (1982);Matthews v. Lucas, 427 U.S. 495, 505,

    510 (1976); or considered a statutory, not an equal-protection, issue, see Walton v.

    Hammons, 192 F.3d 590, 599 (6th Cir. 1999). In short, the relevant classification

    here by the State is that unmarriedpartners are not listed on birth certificates, and

    the underlying classification that Plaintiffs challenge is the treatment of them as

    unmarried, which they must win or lose on its own merits.

    III. PLAINTIFFS ARGUE FOR HEIGHTENED SCRUTINY BECAUSE

    OHIO LAW SATISFIES RATIONAL-BASIS REVIEW

    Ohios opening brief identified (at 42-50) several rational bases for its

    marriage laws. Among other things, Ohio has a legitimate interest in wanting Ohio

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    marriage law to be decided by Ohio, not by another State, and by the people, not

    by judges. And it is rational to approach such far-reaching social change with care.

    Plaintiffs responses (at 36-39) do not satisfy their high burden to negative every

    conceivable basis which might support Ohio law. Armour v. City of

    Indianapolis, 132 S. Ct. 2073, 2080-81 (2012) (citation omitted).

    Plaintiffs initially assert (at 37) that rational-basis review prohibits a State

    from adopting classifications intended merely to disadvantag[e] the group

    burdened by the law. Romer, 517 U.S. at 633. But retaining the traditional

    definition of marriage does not do so. Indeed, the Kitchen majoritywhile it

    wrongly applied heightened scrutiny for the reasons discussedsupports Ohio on

    this issue. It did not find, even as an alternate ground, that traditional marriage

    flunks rational-basis review. See 2014 WL 2868044, at *21-32. And while the

    majority never formally opined whether the law would survive rational-basis

    review, it did suggest it would have rejected the claim that Utah acted with the bare

    animus to disadvantage gays and lesbians. The majority noted that it in no way

    endorse[s] such a view and in no way impugns the integrity or the good-faith

    beliefs of those who supported the Utah law. Id. at *32. And it said that

    reasonable judges could disagree on the merits of the same-sex marriage

    question. Id. at *10.

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    In addition, the Kitchen dissent outlined many bases that are in no way

    related to animus. Id. at *38-42 (Kelly, J., concurring in part and dissenting in

    part). Among other things, it noted that [o]ne only need consider the reams of

    materials cited by the parties and the scores of amicus briefs on either side to

    know that the States position is (at the very least) arguable. Id.at *41. And it

    detailed the scope of rational-basis review. Id.at *39. That scope bears repeating.

    Under that review, the electorates possible actual motivations are irrelevant, and

    the court must consider all hypothetical justifications which potentially support

    the enactment. Equality Found., 128 F.3d at 293 n.4; see Am. Express Travel

    Related Servs. Co. v. Kentucky, 641 F.3d 685, 690 (6th Cir. 2011) (noting that laws

    satisfy rational-basis review if they can be upheld even under justifications

    hypothesized by the court).

    Plaintiffs respond by briefly discussing two state interests. They ridicule (at

    38) the States reliance on the unknowable effects of same-sex marriage, calling it

    just the kind of wholly unsubstantiated justification[] that the Supreme Court

    has repeatedly rejected. But [p]ast changes in the understanding of marriage

    for example, the gradual ascendance of the idea that romantic love is a prerequisite

    to marriagehave had far-reaching consequences that tend[ ] to occur over an

    extended period of time. Windsor, 133 S. Ct. at 2715 (Alito, J., dissenting). It is

    rational to believe that redefining marriage to include same-sex couples could have

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    some effect on the institution of marriage, and that evaluating the effects in other

    States makes good sense. See id. at 2715-16 nn.5-6. As the Kitchen dissent

    reiterated, [a]t the very least, same-gender marriage is a new social phenomenon

    with unknown outcomes and the State could choose to exercise caution. 2014

    WL 2868044, at *40 (Kelly, J., concurring in part and dissenting in part).

    Plaintiffs also criticize (at 39) the States reliance on Schuette, arguing that it

    does not insulate unconstitutional laws from judicial review. But that argument

    assumes the conclusion to the question presentedwhether Ohios laws are

    constitutional. And Schuette supports the State on that question because the

    question requires Plaintiffs to establish that Ohios voters acted irrationally.

    Schuette reminds the courts that even sensitive issues can be handled by the

    electorate with care, and that [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. 134 S. Ct. at 1637 (emphasis added). This

    substantial skepticism toward the judiciarys finding that the electorate resolved a

    sensitive social issue irrationallyis highly instructive for rational-basis review.

    IV. PLAINTIFFS WOULD TURN FACIAL CHALLENGES INTO THE

    RULE RATHER THAN THE EXCEPTION

    Ohios opening brief explained (at 19-23) that Plaintiffs pleaded an as-

    applied case in the birth-certificate context, and improperly turned it into a broad

    facial attack on Ohios marriage laws in all contexts, contrary to the presumption

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    for as-applied litigation. In response, Plaintiffs do not dispute that they brought an

    as-applied claim, and fail to justify the district courts facial relief.

    Plaintiffs start with the meritsarguing (at 40) that Ohios laws are facially

    invalid because they severely disadvantage[] lesbian and gay couples. But the

    procedural question here is whether the district court should have even reached

    beyond the birth-certificate context. Further, as Plaintiffs brief shows, many of

    their merits arguments concern only birth certificates. For example, Plaintiffs

    (wrongly) claim (at 30-32) that the Ohio laws as applied to birth certificates burden

    rights to parenting or travel. Those claims do not implicate Ohio laws having

    nothing to do with children or plaintiffs without children. Plaintiffs, in other

    words, raise arguments tied to birth certificates, but claim that those arguments

    entitle them to facial relief. But facial challenges generally require the challenger

    to establish that no set of circumstances exists under which [the relevant law]

    would be valid. Warshak v. United States, 532 F.3d 521, 529 (6th Cir. 2008)

    (citation omitted).

    Plaintiffs next rely (at 40-41) on law-review articles for the claim that courts

    mistakenly say facial challenges are disfavored. This Court is bound by precedent,

    not commentary. And the precedent could not be clearer[f]acial challenges are

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

    450 (2008). As for Plaintiffs claim (at 41-42) that Windsor facially invalidated

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    Section 3 of DOMA, nothing in the opinion says as much. And the district court

    merely held that the federal provision was unconstitutional as applied to

    Plaintiff. Windsor v. United States, 833 F. Supp. 2d 394, 406 (S.D.N.Y. 2012).

    Plaintiffs remaining arguments confirm that their facial challenge was

    improper. They insist (at 43-44) that a judgment in their favor would have

    preclusive effect on every state actor. SeeState ex rel. Hofstetter v. Kronk, 254

    N.E.2d 15, 17 (Ohio 1969); State ex rel. Wilson v. Preston, 181 N.E.2d 31, 37-38

    (Ohio 1962). But that is wrong. Ohio still requires mutuality to apply offensive

    preclusion, so different plaintiffs could not rely on it. See Goodson v. McDonough

    Power Equip., Inc., 443 N.E.2d 978, 987 (Ohio 1983). In both Wilson and

    Hofstetter, by contrast, the non-state party was a party in the earlier proceeding.

    Plaintiffs also argue (at 44) that the State is bound to follow precedent. That is

    true, but Plaintiffs fail to explain why they could properly departfrom this normal

    mode of case-by-case decisionmaking with their belated request for facial relief.

    In short, even assuming (wrongly) that Plaintiffs prevail, the Court must at

    least change the scope of the remedy to only Plaintiffsand onlybirth certificates.

    Cf. Warshak, 532 F.3d at 531 (finding it inappropriate to grant a preliminary

    injunction in favor of persons other than [the plaintiff]).

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    V. THE NEW YORK PLAINTIFFS MISINTERPRET THE SCOPE OF

    THE FULL FAITH AND CREDIT CLAUSE

    The full-faith-and-credit claim raised by the New York Plaintiffswho wish

    to have Ohio place both of their names on an amended birth certificate based on

    their New York adoptionfails on procedural and substantive grounds.

    A. Procedurally, Plaintiffs have not shown that 1983 provides avehicle to enforce the Full Faith and Credit Clause

    As Ohio explained (at 50-55), the Fifth Circuit rightly concluded that full-

    faith-and-credit claims are not enforceable via 1983. Adar, 639 F.3d at 152-57.

    Plaintiffs efforts to create a circuit split fall flat. They lead (at 49) with what the

    Supreme Court has elsewhere described as that last redoubt of losing causes

    the canon that certain statutes should be liberally construed. See Dir., Office of

    Workers Comp. Programs v. Newport News Shipbuilding & Dry Dock Co. , 514

    U.S. 122, 135 (1995). This canon cannot create federal rights that do not exist; it

    does not allow courts, for example, to use 1983 to enforce the Supremacy Clause.

    See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107 (1989).

    Analogizing to the dormant Commerce Clause, Plaintiffs next mistakenly

    argue (at 49-50) that the Full Faith and Credit Clause satisfies the test for

    determining whether federal provisions are actionable under 1983. But the Full

    Faith and Credit Clause is more like the Supremacy Clause (which the Supreme

    Court found not actionable under 1983 in Golden State) than the dormant

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    Commerce Clause (which the Supreme Court found actionable under 1983 in

    Dennis v. Higgins, 498 U.S. 439 (1991)). Both the Supremacy Clause and the Full

    Faith and Credit Clause enact choice-of-law rules. The former enforces the rights

    found in otherfederallaws over conflicting state laws. Golden State, 493 U.S. at

    107. The latter enforce[s] the rights found in the judgment States preclusion

    law over contrary laws. Howlett v. Rose, 496 U.S. 356, 381 (1990) (citation

    omitted). In other words, that clause prescribes a rule by which courts, Federal

    and state, are to be guided when a question arises . . . as to the faith and credit to be

    given by the court to the public acts, records, and judicial proceedings of a State

    other than that in which the court is sitting. Thompson v. Thompson, 484 U.S.

    174, 182-83 (1988) (quotingMinnesota v. N. Secs. Co., 194 U.S. 48, 72 (1904)).

    Indeed, Plaintiffs cases (at 50) support this reading and undercut their own.

    See, e.g.,Thomas v. Wash. Gas Light Co., 448 U.S. 261, 278 n.23 (1980); Pink v.

    A.A.A. Highway Express, Inc., 314 U.S. 201, 210 (1941). While some of these

    cases do loosely use the term federal rights under full faith and credit, none

    involved a 1983 suit. And most confirm that the law of the judgment State

    createsthe right, while the Full Faith and Credit Clause secure[s] it. Golden

    State, 493 U.S. at 107 (citation omitted). Thomas, for example, says that the clause

    preserve[s] rights acquired or confirmed under the . . . judicial proceedings of

    one state. 448 U.S. at 278 n.23 (citation omitted; emphases added).

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    Plaintiffs also wrongly argue (52-53) that the Fifth Circuit stands alone, and

    that this Court should instead follow the Tenth Circuit. See Finstuen v. Crutcher,

    496 F.3d 1139 (10th Cir. 2007). But the Tenth Circuit did not even consider this

    issue whether full-faith-and-credit claims are actionable under 1983. See id. at

    1151-56. And Plaintiffs other cases (at 53 n.11) reject 1983 claims on other

    grounds without considering it either. All told, only one other circuit has

    addressed the issue, and it agrees with the Fifth Circuit. Stewart v. Lastaiti, 409

    F. Appx 235, 235-36 (11th Cir. 2010).

    Plaintiffs fare no better (at 55-56) in distinguishing Thompsonwhich held

    that the Full Faith and Credit Clause does not create an implied right of action, 484

    U.S. at 177-78on the ground that it involved a privatedefendant rather than a

    state defendant suable under 1983. But [a] courts role in discerning whether

    personal rights exist in the 1983 context should . . . not differ from its role in

    discerning whether personal rights exist in the implied right of action context.

    Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). Thompsons implied-right-of-

    action holding is dispositive for 1983 as well.

    Finally, Plaintiffs ignore Ohios point that the Full Faith and Credit

    Clausealone among constitutional provisionsdoes not create federal-question

    jurisdiction under 28 U.S.C. 1331. See N. Secs., 194 U.S. at 72. It is hard to see

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    how the Full Faith and Credit Clause could create a federal righttriggering 1983

    when it does not even create afederal questiontriggering 1331.

    B. Substantively, Ohios decision not to put both of the New YorkPlaintiffs names on an amended birth certificate did not violate

    the Full Faith and Credit Clause

    Ohios decision not to list both of the New York Plaintiffs names on a birth

    certificate does not violate the Full Faith and Credit Clause. First, as Ohio noted

    (at 56-58), that Clause requires every State to give to a judgment at least the res

    judicata effect which the judgment would be accorded in the State which rendered

    it, Durfee v. Duke, 375 U.S. 106, 109 (1963), but Defendant Himes was not a

    party to the New York judgment and cannot be bound by it under New York law,

    seeBruni v. Cnty. of Otsego, 192 A.D.2d 939, 941 (N.Y. App. Div. 1993).

    Plaintiffs call this argument absurd (at 57) because it would requir[e] each

    state in the nation to be a party to the original action in a sister state in order for the

    resulting judgment to be enforced across the country. Finstuen, 496 F.3d at 1154.

    But this no-preclusion result only applies where, as here, a plaintiff seeks to

    enforce the judgment against a state official based on a prior case to which the

    official was not a party. The state courts, by contrast, do not have to be parties to

    prior litigation to be bound by the constitutional full-faith-and-credit rule of

    decision. Thompson, 484 U.S. at 182. Thus, Plaintiffs claims of chaos (at 58)

    are overblown because out-of-state adoptions are enforceable in state courts

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    whether or not any state official participated in the previous suitas Plaintiffs

    own cases illustrate. See In re Bosworth, No. 86AP-903, 1987 WL 14234, at *2

    (Ohio Ct. App. July 16, 1987).

    If anything, it is Plaintiffs alternative view that would cause chaos because

    it would mean that every state official in all fifty States would be bound by every

    judgment in all of those States. Cf. Arapahoe Cnty. Pub. Airport Auth. v. FAA, 242

    F.3d 1213, 1219 (10th Cir. 2001) (refusing to give preclusive effect to judgment

    because FAA was not a party to prior proceeding); see also United States v.

    Dominguez, 359 F.3d 839, 845-846 (6th Cir. 2004) (refusing to give preclusive

    effect to state prosecution in federal prosecution, as federal government was not

    party to state action). As Dominguez noted, applying preclusion against all

    government officials who are absent from a prior case incentivizes all of those

    officials to intervene in the prior case. Now that would be chaos.

    Second, as the State noted (at 56-58), [e]nforcement measures do not travel

    with the sister state judgment as preclusive effects do; such measures remain

    subject to the evenhanded control of forum law. Baker v. Gen. Motors Corp., 522

    U.S. 222, 235 (1998). Here, as inAdar, [o]btaining a birth certificate falls in the

    heartland of enforcement, and therefore outside the full faith and credit obligation

    of recognition. See Adar, 639 F.3d at 160. Plaintiffs suggest (at 46-47, 56-57)

    that Ohio is not evenhandedly enforcing adoption decrees because it treats their

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    New York adoption different from an Ohio adoption. They fail to explain why.

    Ohio has not refused to recognize their New York adoption; it refuses to recognize

    their New Yorkmarriage. SeeDoc.4-6, Letter, at Page ID #73-74. That creates an

    evenhanded prohibition: Ohio law does not allow unmarried coupleswhether

    adopting out-of-state or in-stateto obtain revised birth certificates with both

    parents names on them. Adar, 639 F.3d at 161. In this case, for example, it is

    telling that both in-state and out-of-state couples seek the same relief.

    Third, as Ohio noted (at 58), the Full Faith and Credit Clause empowers

    Congress to establish the effect of a judicial proceeding, and federal law says that

    Ohio need not give effect to any . . . judicial proceeding . . . respecting a

    relationship between persons of the same sex. 28 U.S.C. 1738C. Plaintiffs say

    not a word regarding this controlling statute.

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    CONCLUSION

    The Court should reverse the district courts judgment, dissolve its

    permanent injunction, and direct it to enter a judgment in favor of Defendant-

    Appellant Lance D. Himes.

    MICHAEL DEWINE (0009181)

    Attorney General of Ohio

    /s/Eric E. Murphy

    ERIC E. MURPHY* (0083284)

    State Solicitor*Counsel of Record

    BRIDGET E. COONTZ (0072919)

    Assistant Attorney General

    Constitutional Offices Section

    30 East Broad Street, 17th Floor

    Columbus, Ohio 43215

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

    [email protected]

    Counsel for Defendant-Appellant

    Lance D. Himes, Interim Director of the Ohio

    Department of Health

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    CERTIFICATE OF COMPLIANCE

    Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that this brief complies

    with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B):

    1. Exclusive of the portions of the brief exempted by 6th Cir. R. 32(b)(1), the brief contains approximately 6,972 words.

    2. The brief has been prepared in Times New Roman, 14 point font.

    /s/Eric E. Murphy

    Eric E. Murphy

    State Solicitor30 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

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    CERTIFICATE OF SERVICE

    I certify that a copy of this brief has been served through the courts

    electronic filing system on this 15th day of July, 2014. Electronic service was

    therefore made upon all counsel of record on the same day.

    /s/Eric E. Murphy

    Eric E. Murphy

    State Solicitor

    30 East Broad Street, 17th FloorColumbus, 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: 89 Filed: 07/15/2014 Page: 41