14-3057 #89

No.
14-3057
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
J AMES OBERGEFELL, et al.,

Plaintiffs-Appellees,

v.

LANCE D. HIMES,

Defendant-Appellant.
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On Appeal from the United States
District Court for the Southern District
of Ohio, Western Division

District Court Case No. 13-cv-0501

REPLY BRIEF OF APPELLANT LANCE D. HIMES, INTERIM
DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH

MICHAEL DEWINE
Attorney General of Ohio

ERIC E. MURPHY (0083284)
State Solicitor
BRIDGET E. COONTZ* (0072919)
*Counsel of Record
ZACHERY P. KELLER (0086930)
Assistant Attorneys General
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
614-466-2872; 614-728-7592 fax
bridget.coontz@ohioattorneygeneral.gov

Counsel for Defendant-Appellant Lance
D. Himes, Interim Director of the Ohio
Department of Health
Case: 14-3057 Document: 89 Filed: 05/12/2014 Page: 1

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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................................................................ i
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 5
I. CONTRARY TO PLAINTIFFS ARGUMENTS, BAKER CONTROLS
THIS CASE AND WINDSOR REAFFIRMS THAT RESULT ...................... 5
A. Plaintiffs wrongly suggest that this Court may disregard Baker .......... 5
B. Plaintiffs over-read Windsor by ignoring the decisions central
federalism thrust .................................................................................... 8
II. PLAINTIFFS DO NOT HAVE A FUNDAMENTAL RIGHT TO
FORCE OHIO TO RECOGNIZE SAME-SEX MARRIAGES ................... 12
A. Plaintiffs make conclusory arguments in support of a fundamental
right to same-sex-marriage recognition .............................................. 12
B. Plaintiffs fail to establish any right to same-sex marriage .................. 14
III. PLAINTIFFS EQUAL-PROTECTION ARGUMENTS WRONGLY
APPLY A HEIGHTENED STANDARD OF REVIEW UNDER THE
GUISE OF TRADITIONAL RATIONAL-BASIS REVEW ........................ 16
A. Plaintiffs mistakenly assert that heightened scrutiny applies to
Ohios marriage laws .......................................................................... 16
B. Plaintiffs mistakenly assert that Ohios marriage laws do not
satisfy rational-basis review ................................................................ 22
IV. PLAINTIFF GRUNN MISTAKENLY ARGUES THAT HE HAS
THIRD-PARTY STANDING ON BEHALF OF FUTURE CLIENTS ....... 27
A. Grunn does not face the necessary injury-in-fact to establish third-
party standing ...................................................................................... 27

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B. Grunn lacks standing to sue on behalf of third parties ........................ 28
CONCLUSION ........................................................................................................ 30
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE


iii
TABLE OF AUTHORITIES
Cases Page(s)
Armour v. City of Indianapolis,
132 S. Ct. 2073 (2012) ........................................................................................ 23
Baker v. Nelson,
409 U.S. 810 (1972) .....................................................................................passim
Boland v. Holder,
682 F.3d 531 (6th Cir. 2012) .............................................................................. 28
Bowers v. Hardwick,
478 U.S. 186 (1986) ................................................................................ 15, 16, 17
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ............................................................................................ 20
Clapper v. Amnesty Intl,
133 S. Ct. 1138 (2013) ........................................................................................ 28
Craig v. Boren,
429 U.S. 190 (1976) ............................................................................................ 28
Davis v. Bandemer,
478 U.S. 109 (1986) ............................................................................ 6, 17, 18, 19
Davis v. Prison Health Servs.,
679 F.3d 433 (6th Cir. 2012) ........................................................................ 16, 18
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997) ........................................................................ 16, 17
Gonzales v. Carhart,
550 U.S. 124 (2007) ............................................................................................ 24
Goodridge v. Dept. of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ............................................................................. 25
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................................................................ 14

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Hardin v. Davis,
16 Ohio Supp. 19, 1945 WL 5519 (Ohio Ct. Com. Pl. 1945) .............................. 9
Heller v. Doe by Doe,
509 U.S. 312 (1993) ............................................................................................ 26
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ............................................................................. 22, 23
Hicks v. Miranda,
422 U.S. 332 (1975) ...................................................................................... 5, 6, 7
Ill. State Bd. of Elections v. Socialist Workers Party,
440 U.S. 173 (1979) .............................................................................................. 6
Innovation Ventures, LLC v. N.V.E., Inc.,
694 F.3d 723 (6th Cir. 2012) .............................................................................. 21
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) ................................................................ 22
Kowalski v. Tesmer,
543 U.S. 125 (2004) ........................................................................................ 3, 28
Lawrence v. Texas,
539 U.S. 558 (2003) ................................................................................ 15, 17, 26
Loving v. Virginia,
388 U.S. 1 (1967) .................................................................................... 15, 21, 22
Massachusetts v. U.S. Dept of Health & Human Servs.,
682 F.3d 1 (1st Cir. 2012) ................................................................................... 12
Mazzolini v. Mazzolini,
155 N.E.2d 206 (Ohio 1958) ................................................................................ 9
Metromedia, Inc. v. City of San Diego,
453 U.S. 490 (1981) .......................................................................................... 6, 7
Moore v. City of East Cleveland,
431 U.S. 494 (1977) ............................................................................................ 14

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Natl Rifle Assn of Am. v. Magaw,
132 F.3d 272 (6th Cir. 1997) .............................................................................. 27
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) (Brandeis, J ., dissenting) ..................................................... 1
Peefer v. State,
182 N.E. 117 (Ohio Ct. App. 1931) ...................................................................... 9
Reno v. Flores,
507 U.S. 292 (1993) ............................................................................................ 15
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) .............................................................................................. 7
Romer v. Evans,
517 U.S. 620 (1996) .............................................................................. 5, 8, 17, 21
Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250 (6th Cir. 2006) ............................................................ 16, 17, 18, 19
Schuette v. Coal. to Defend Affirmative Action,
134 S. Ct. 1623 (2014) ........................................................................ 4, 10, 23, 25
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ................................................................... 22
Song v. City of Elyria,
985 F.2d 840 (6th Cir. 1993) ........................................................................ 2, 5, 7
Stemler v. City of Florence,
126 F.3d 856 (6th Cir. 1997) .............................................................................. 10
In re Tippett,
542 F.3d 684 (9th Cir. 2008) .............................................................................. 18
Town of Greece v. Galloway,
No. 12-696, 2014 WL 1757828 (U.S. May 5, 2014) .......................................... 26
Tully v. Griffin,
429 U.S. 68 (1976) ................................................................................................ 5

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United States v. Johnson,
256 F.3d 895 (9th Cir. 2001) (en banc) (Kozinski, J ., concurring) ................ 3, 18
United States v. McMurray,
653 F.3d 367 (6th Cir. 2011) .............................................................................. 19
United States v. Playboy Entmt Grp., Inc.,
529 U.S. 803 (2000) ............................................................................................ 24
United States v. Virginia,
518 U.S. 515 (1996) ............................................................................................ 21
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................passim
Washington v. Confederated Bands & Tribes of Yakima Indian
Nation,
439 U.S. 463 (1979) .............................................................................................. 6
Washington v. Glucksberg,
521 U.S. 702 (1997) ...................................................................................... 13, 15
Whitlow v. Hodges,
539 F.2d 582 (6th Cir. 1976) ................................................................................ 6
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ............................................................................... 12
Statutes, Rules, and Constitutional Provisions
28 U.S.C. 1738C ................................................................................................... 27
Ohio Rev. Code 3101.01(C)(1) ............................................................................. 10
Other Authorities
16B Charles Alan Wright et al., Federal Practice & Procedure 4003
(3d ed. 2012) ......................................................................................................... 6

INTRODUCTION
The decision below wrongly overrode our democracy by concluding that
ordinary Ohioans acted with animus rather than good faith when voting to retain
Ohios traditional definition of marriage. When doing so, the district court also
overrode the judicial hierarchyboth by ignoring Baker v. Nelson, 409 U.S. 810
(1972), which rejected similar constitutional claims years ago, and by disregarding
this Courts cases holding that rational-basis review applies to sexual-orientation
classifications. Plaintiffs largely double-down on the district courts mistakes.
First, Plaintiffs suggest (at 15-22) that this case is on all fours with United
States v. Windsor, 133 S. Ct. 2675 (2013). No one doubts that Windsor is
important, but Plaintiffs turn it on its head. Windsor reminded that 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). And while Windsor
attributed animus to Section 3 of the federal DOMA, that was because, the Court
concluded, only animus could explain the federal governments unprecedented
invasion of state authority. Plaintiffs dislike Windsors federalist import, decrying
(at 27) differences in state laws as a chaotic matrix of rules. But their chaotic
matrix is J ustice Brandeiss laboratories of democracy. New State Ice Co. v.
Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J ., dissenting). Equally important,
Baker resolves any ambiguity about Windsors scope. Courts uniformly described

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Baker as controlling pre-Windsor, and Windsors silence as to Baker leaves it in
place. Plaintiffs insist (at 52-54) that this Court may disregard Baker because it is
a summary disposition. But those dispositions are binding on the lower courts
until the Supreme Court decides otherwise. Song v. City of Elyria, 985 F.2d 840,
843 (6th Cir. 1993). In short, while Plaintiffs approach ignores a substantial
portion of Windsor and all of Baker, Ohios approach honors all of Windsor and
reconciles it with Baker.
Second, Plaintiffs insist (at 22-27) that they have a substantive-due-process
right not only to same-sex-marriage recognition, but also to same-sex marriage
itself. Plaintiffs arguments concerning marriage recognition ignore the opening
briefs analysis (at 24-36) that no such right can exist in the face of this countrys
traditions and the Full Faith and Credit Clauses allowance for Ohios decision not
to recognize out-of-state, same-sex marriages. And Plaintiffs reliance on Windsor
is misplaced, as Windsor agreed that until recent years marriage between a man
and a woman no doubt had been thought of by most people as essential to the very
definition of that term. 133 S. Ct. at 2689 (emphasis added). Plaintiffs broader
argumentthat they have a right to same-sex marriageconflicts with the
decision they now defend, which conceded that most courts have not found that a
right to same-sex marriage is implicated in the fundamental right to marry.
Doc.65, Final Order, at Page ID #1052-53.

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Third, regarding equal protection, Plaintiffs argue (at 28-52) that heightened
scrutiny applies to sexual-orientation classifications and that, regardless, Ohioans
acted with animus in retaining the traditional definition of marriage. Plaintiffs
suggest (at 30-31) that this Courts cases analyzing sexual-orientation claims under
the rational-basis test merely did so in dicta, taking a broad reading of that term.
But that standard-of-review issue [was] germane to the eventual resolution of
those cases, and the Court resolved that issue after reasoned consideration in a
published opinion. United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001)
(en banc) (Kozinski, J ., concurring). The resolution of those cases binds this
Court. Under rational-basis review, Ohioans had many sufficient reasons for
placing the traditional definition of marriage into their constitutionincluding, for
example, concerns with retaining democratic control by Ohioans (rather than out-
of-staters) over this sensitive issue, and concerns with the unknown and
unknowable effects of such a fundamental societal change.
Fourth, Plaintiff Robert Grunn, a funeral director, argues (at 54-58) that he
has third-party standing to pursue relief on behalf of future clients. But his
position is irreconcilable with Kowalski v. Tesmer, 543 U.S. 125, 129 (2004),
which held that a lawyer lacked third-party standing with respect to future clients,
and Grunn offers no reason why the Court should stretch to find this type of
prudential standing when it is unnecessary to do so.

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* * * *
More broadly, the genius of our federalist system is that each State can
undertake a statewide deliberative process that enable[s] its citizens to discuss and
weigh arguments for and against issues of the day in good faith. Windsor, 133
S. Ct. at 2689. Citizens of some States may decide that marriage should be
redefined to include same-sex couples; citizens of others may conclude that
traditional marriage should be retained. Likewise, citizens of some States may
decide that certain narrow affirmative-action decisions should be allowed; citizens
of others may decide they should be barred. See Schuette v. Coal. to Defend
Affirmative Action, 134 S. Ct. 1623, 1635-37 (2014) (op. of Kennedy, J .).
It promotes our democracy for the regular give-and-take of debate on
these important issues to be a context in which rancor or discord . . . are avoided,
not invited. Id. at 1635. Yet the district court all but interjected those
acrimonious factors into this case, id., with its holding that Ohioans acted with
irrational bigotry in codifying the traditional definition of marriage into their
constitution. By doing so, the district court demean[ed] . . . the democratic
process by presum[ing] that [Ohio] voters [were] not capable of deciding an
issue of this sensitivity on decent and rational grounds. See id. at 1637. This
Court should not further add to the invective on this important issue. It should
instead leave the issue where it belongswith the People of Ohio.

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ARGUMENT
I. CONTRARY TO PLAINTIFFS ARGUMENTS, BAKER CONTROLS
THIS CASE AND WINDSOR REAFFIRMS THAT RESULT
Ohios opening brief explained (at 17-24) both that Baker v. Nelson, 409
U.S. 810 (1972), precludes Plaintiffs constitutional claims and that the district
court mistakenly relied on post-Baker cases that are further afield, including
United States v. Windsor, 133 S. Ct. 2675 (2013), and Romer v. Evans, 517 U.S.
620 (1996). In response, Plaintiffs suggest (at 15-22, 52-54) that this Court may
disregard Baker as an anachronism and that Windsor requires a finding in their
favor. Plaintiffs are mistaken on both fronts.
A. Plaintiffs wrongly suggest that this Court may disregard Baker
Unable to distinguish Baker, Plaintiffs assert (at 52-54) that lower courts
may disagree with it. That is so, they say, because Baker was a summary
dismissal that has been superseded by later doctrinal developments, including the
developments in Windsor and Romer. Their argument confuses the precedential
rules that apply in this Court with those that apply in the Supreme Court.
In lower courts, summary dispositions are controlling precedent, unless and
until re-examined by [the Supreme] Court. Tully v. Griffin, 429 U.S. 68, 74
(1976); Hicks v. Miranda, 422 U.S. 332, 344-45 (1975). As this Court noted,
summary dispositions have the same precedential value as other holdings and are
binding on the lower courts until the Supreme Court decides otherwise. Song v.

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City of Elyria, 985 F.2d 840, 843 (6th Cir. 1993); Whitlow v. Hodges, 539 F.2d
582, 584 (6th Cir. 1976); see 16B Charles Alan Wright et al., Federal Practice &
Procedure 4003, at 19 (3d ed. 2012) (As to lower courts, a summary disposition
must be treated as a decision on the merits, establishing binding precedent.).
In the Supreme Court, the rules are different. There, summary dismissals
do not . . . have the same precedential value . . . as does an opinion . . . after
briefing and oral argument on the merits. Washington v. Confederated Bands &
Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979); Davis v.
Bandemer, 478 U.S. 109, 121 (1986); Wright, Federal Practice 4003, at 19 (As
to the Supreme Court itself, on the other hand, it was recognized that the lack of
full consideration reduced the precedential impact of a summary disposition
. . . .).
The cases on which Plaintiffs rely do not suggest otherwise. See Appellees
Br. 53 (citing Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,
180-81 (1979); Hicks, 422 U.S. at 344). Illinois State Board of Elections simply
noted the reduced precedential value that summary dispositions have in the
Supreme Court, finding that upon fuller consideration of an issue under plenary
review, the Court has not hesitated to discard a rule which a line of summary
affirmances may appear to have established. 440 U.S. at 181 (citation omitted);
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500 (1981) (plurality op.).

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And while Hicks cited a lower-court decision suggesting that lower courts
are bound by summary dispositions except when doctrinal developments indicate
otherwise, 422 U.S. at 344 (citation omitted), the next sentence in Hicks
illustrates the type of doctrinal development that is necessary: Lower courts are
bound by summary decisions by this Court until such time as the Court informs
[them] that [they] are not. Id. at 344-45 (emphasis added; citation omitted).
Plaintiffs identify no Supreme Court case approving of a lower courts decision to
reject a summary disposition based on alleged doctrinal developments shy of an
express Supreme Court disavowal. Hicks itself did exactly the opposite: It found a
lower court in error for holding that it could disregard a Supreme Court summary
disposition. Id. at 343.
In short, because this Court gives the same precedential value to summary
dispositions as to other decisions, Song, 985 F.2d at 843, normal rules apply.
Under those rules, [i]f a precedent of [the Supreme] Court 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); see
Metromedia, 453 U.S. at 500 (plurality op.) ([T]he California Supreme Court was
quite right in relying on our summary decisions as authority . . . .). Here, that

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means this Court must follow Bakerthe only Supreme Court case involving the
constitutionality of a States refusal to recognize same-sex marriage.
B. Plaintiffs over-read Windsor by ignoring the decisions central
federalism thrust
Plaintiffs likely argue that this Court should overrule Baker because their
broad reading of Windsorthat it is on all fours with this caseis incompatible
with that decision. As the opening brief noted (at 22-23), Windsor invalidated
Section 3 of the federal DOMA, which imposed a federal definition of marriage
for all federal laws, because it lacked any historical pedigree and invaded an area
of traditional state authority. The Court should reject Plaintiffs contrary
interpretation.
First, Plaintiffs argue (at 16-18) that Ohios decision to retain the traditional
definition of marriage is just like the federal governments expansion into the
marriage arena, and thus qualifies as [d]iscrimination[] of an unusual character
that requires the careful consideration that Windsor applied. 133 S. Ct. at 2692
(quoting Romer, 517 U.S. at 633). This argument has it backward. No matter how
one views the Ohioans decision to retain the then usual definition of marriagea
definition that has applied in the State since its foundingthat decision cannot be
characterized as unusual. As the opening brief noted (at 26-28), it is Plaintiffs who
seek a sharp departure from the history and traditions of our People by
constitutionalizing a view of marriage lacking historical support.

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Plaintiffs also argue that Ohios refusal to recognize out-of-state, same-sex
marriages departs from its traditional conflict-of-law rules, claiming that those
rules recognized all out-of-state marriages even when those marriages would not
have been legal under Ohio law. Appellees Br. 16-17 (citing Mazzolini v.
Mazzolini, 155 N.E.2d 206 (Ohio 1958); Peefer v. State, 182 N.E. 117 (Ohio Ct.
App. 1931); Hardin v. Davis, 16 Ohio Supp. 19, 1945 WL 5519 (Ohio Ct. Com. Pl.
1945)). In other words, Plaintiffs argue that because Ohio courts recognized some
out-of-state marriages that would not be valid if performed in the Stateincluding
a marriage between first cousins, Mazzolini, 155 N.E.2d at 208-09, a marriage
involving a minor over the common law age, Peefer, 182 N.E. at 120-21, and a
proxy marriage between a woman and a man serving overseas during World
War II, Hardin, 1945 WL 5519, at *5the Ohio General Assembly forever more
must recognize all out-of-state marriages, including same-sex marriages.
Plaintiffs misstate longstanding Ohio law, as their cited authorities reflect.
Ohio has never recognized all out-of-state marriages. While it generally
recognizes out-of-state marriages that are valid in the place of performance,
Ohiolike every Statehas always included an exception to this rule for
marriages that are unalterably opposed to a well-defined public policy.
Mazzolini, 155 N.E.2d at 208; Hardin, 1945 WL 5519, at *3 (noting that courts
will not recognize any marriages which the legislature has expressly declared to

10
have no validity). Ohios refusal to recognize out-of-state, same-sex marriages
falls within this traditionalnot unusualexception for marriages that violate the
strong public policy of this state. Ohio Rev. Code 3101.01(C)(1).
Second, Plaintiffs insist that Ohios refusal to recognize out-of-state same-
sex marriageslike Section 3 of the federal DOMAcan only be explained by the
ordinary Ohioans desire to effectuate . . . animus against homosexuals.
Appellees Br. 18 (quoting Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th
Cir. 1997)). That is not the case. As a specific matter, Ohioans could have had
many rational bases for placing the traditional definition of marriage into the Ohio
Constitution, including, as noted, interests in democratic control and in proceeding
cautiously over such a fundamental change. See Part III.B. Apart from specific
rationales, [i]t is demeaning to the democratic process to presume, as Plaintiffs
do, that the voters are not capable of deciding an issue of this sensitivity on decent
and rational grounds. Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct.
1623, 1637 (2014) (op. of Kennedy, J .).
Third, Plaintiffs assert (at 21-22) that the federalism rationale that played a
central part in Windsor was irrelevant. That is so, they say, because Windsor
recognized that state marriage laws are subject to constitutional limits and must
respect the constitutional rights of persons. Id. at 21 (quoting Windsor, 133
S. Ct. at 2691). This logicthat the States traditional definition of marriage is

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unconstitutional because it has to follow the Constitutionis question-begging. It
does not overcome the critical distinction, one of constitutional import, between a
traditional state law regulating marriage and a novel federal law that does so.
As the opening brief noted (at 22-23), Section 3 of DOMA was an unusual
deviation from the [federal governments] usual tradition of recognizing and
accepting state definitions of marriage. Windsor, 133 S. Ct. at 2693. Indeed,
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). It was
this unusual departure from the federal governments traditional rolenot simply
the refusal to recognize same-sex marriagethat led Windsor to hold that the
avowed purpose and practical effect of DOMA Section 3 were to impose a
stigma upon all who enter into same-sex marriages. Id. at 2693. Here, by
contrast, the opposite presumption necessarily follows. In exercising its
unquestioned authority in this area to adhere to the view of marriage that the
State has always maintained, Ohio did not depart from usual practice. Id.
In summary, Ohios reading of Windsor and Baker reconciles both of those
binding decisions whereas Plaintiffs reading does not. Because Baker still
applies, Plaintiffs broad view of Windsor must be rejected. In this respect, while
Plaintiffs cite (at 53) several district-court decisions that have rejected Baker on the
heels of Windsor, they ignore the more weighty pre-Windsor decisions from sister

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circuits saying otherwise. See Appellants Br. 22-23 (citing Windsor v. United
States, 699 F.3d 169, 178 (2d Cir. 2012); Massachusetts v. U.S. Dept of Health &
Human Servs., 682 F.3d 1, 8 (1st Cir. 2012)). Those decisions recognized that
Baker was precedent binding on us unless repudiated by subsequent Supreme
Court precedent, Massachusetts, 682 F.3d at 8, but distinguished DOMA Section
3 precisely as the State doeson the ground that it involved the federal
governments authority over marriage, Windsor, 699 F.3d at 178. The Court
should adopt that important distinction here as well.
II. PLAINTIFFS DO NOT HAVE A FUNDAMENTAL RIGHT TO
FORCE OHIO TO RECOGNIZE SAME-SEX MARRIAGES
Ohios opening brief showed (at 24-36) that the district court erred by
finding that Plaintiffs have a fundamental rightone grounded in substantive
due processto force the State to recognize their out-of-state, same-sex marriages.
In response, Plaintiffs argue for a fundamental right both to same-sex-marriage
recognition and to same-sex marriage itself. Neither argument is correct.
A. Plaintiffs make conclusory arguments in support of a
fundamental right to same-sex-marriage recognition
Plaintiffs suggest (at 22-24) that they have a fundamental right for Ohio to
recognize their existing out-of-state marriages. But, in doing so, Plaintiffs contest
neither of the States two arguments why no such right exists: The history and
traditions of our People do not recognize such a right, and the actual constitutional

13
provision implicatedthe Full Faith and Credit Clauseallows Ohio to refuse to
recognize out-of-state, same-sex marriages. The two contrary arguments that
Plaintiffs make in support of this alleged fundamental right cannot sustain it.
Plaintiffs initially argue (at 22-23) that Windsor created such a substantive-
due-process right. But the passage from Windsor that they cite invoked the Fifth
Amendments Due Process Clause, which, unlike the Fourteenth Amendments,
also contains within it the prohibition against denying to any person the equal
protection of the laws. 133 S. Ct. at 2695 (emphases added). Windsor is thus
grounded in equal-protection, not substantive-due-process, principles. See id. at
2693. Indeed, Windsor all but says that same-sex-marriage recognition cannot
satisfy traditional fundamental-right standards, because it acknowledges that until
recent years, many citizens had not even considered the possibility of same-sex
marriage, id. at 2689, and agrees that state marriage rules have varied, id. at 2691.
Accordingly, Windsor confirms that the recognition of out-of-state, same-sex
marriages cannot be viewed as objectively, deeply rooted in this Nations history
and tradition, and implicit in the concept of ordered liberty. Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997) (citations omitted).
Plaintiffs also argue (at 23) that heightened scrutiny applies to laws
infringing existing marital and family relationships. But their analysis simply
assumes the conclusion that they have a fundamental right to same-sex-marriage

14
recognition that triggers this heightened scrutiny. And the two cases they cite here
say nothing on any fundamental right to have one State recognize the out-of-
state, same-sex marriage sanctioned by another. Moore v. City of East Cleveland,
431 U.S. 494 (1977), involved a local restriction on a grandmothers ability to live
with her son and grandsons in her home. Id. at 496. It provided no analysis on the
sensitive topic of when one State must adhere to another States policy decisions.
Griswold v. Connecticut, 381 U.S. 479 (1965), established a right to privacy. Id. at
484. It is safe to say that Plaintiffs seek the exact opposite right as the one
discussed in Griswold. They do not seek a right to privacy, but a right to have the
State publicly recognize their relationship as a marriage within the States borders.
B. Plaintiffs fail to establish any right to same-sex marriage
Recognizing that they cannot establish a fundamental right to same-sex-
marriage recognition, Plaintiffs fall back on the argument (at 24-27) that they have
a fundamental right to same-sex marriage. By doing so, they ask this Court to go
even further than the district court, which recognized that most courts have not
found that a right to same-sex marriage is implicated in the fundamental right to
marry. Doc.65, Final Order, at Page ID #1052-53.
Plaintiffs begin this argument by contending (at 24-25) that the fundamental
right to marry already encompasses the right to same-sex marriage. This
argument conflicts with black-letter, fundamental-rights law, which requires a

15
careful description of the asserted right, for [t]he doctrine of judicial self-restraint
requires [courts] 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) (citation
omitted; emphasis added). Here, the careful description of the right to marry
encompasses only the right to traditional marriage. Indeed, Plaintiffs cite no case
suggesting that the right to marry includes same-sex marriage.
In response, Plaintiffs argue (at 25) that Lawrence v. Texas, 539 U.S. 558
(2003), criticized Bowers v. Hardwick, 478 U.S. 186 (1986), as fail[ing] to
appreciate the extent of the liberty at stake with respect to a law banning certain
sexual conduct. Id. at 567. But Lawrence did not somehow expand the right to
marry to include same-sex marriage. It went out of its way to clarify that its
decision did not involve whether the government must give formal recognition to
any relationship that homosexual persons seek to enter. 539 U.S. at 578.
Lastly, Plaintiffs analogize to Loving v. Virginia, 388 U.S. 1 (1967). But, as
the opening brief explained (at 34), Loving involved a right to traditional marriage,
388 U.S. at 2, which is consistent with our Nations history, legal traditions, and
practices. Glucksberg, 521 U.S. at 710. And Loving involved racial
discriminations within that right, 388 U.S. at 12, thereby triggering the clear and
central purpose of the Fourteenth Amendment, which was to eliminate all
official state sources of invidious racial discrimination in the States, id. at 10.

16
III. PLAINTIFFS EQUAL-PROTECTION ARGUMENTS WRONGLY
APPLY A HEIGHTENED STANDARD OF REVIEW UNDER THE
GUISE OF TRADITIONAL RATIONAL-BASIS REVEW
The opening brief showed (at 36-52) that sexual-orientation classifications
are subject to rational-basis review and that Ohios decision to retain the traditional
definition of marriage passes that review. Plaintiffs counterarguments lack merit.
A. Plaintiffs mistakenly assert that heightened scrutiny applies to
Ohios marriage laws
Ohios opening brief explained (at 37-45) that this Courts cases require
rational-basis review for claims of sexual-orientation discrimination, and that,
aside from precedent, sexual-orientation claims are not entitled to heightened
scrutiny. In response, Plaintiffs argue (at 28-37) that (1) the level-of-scrutiny
question is open in this Court; (2) heightened scrutiny is the correct standard for
sexual-orientation claims; and (3) Ohios marriage laws trigger heightened scrutiny
because they discriminate on the basis of gender. All three arguments fail.
The Courts Cases. Three separate opinions set out rational-basis review as
the relevant standard for sexual-orientation claims. 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 to these decisions, Plaintiffs argue (at 28-30) that the Court
should disregard the oldest, Equality Foundation, because it relied on the Bowers

17
decision that Lawrence overruled. But Plaintiffs misinterpret Equality Foundation.
It mentioned Bowers only once to recount the holding of its prior decision, which
had been vacated in light of Romer. See Equality Found., 128 F.3d at 292-93.
And the panel applied Romer, not Bowers, stating that Romer resolved that the
deferential rational relationship test . . . was the correct point of departure for the
evaluation of laws which uniquely burden[ ] the interests of homosexuals.
Equality Found., 128 F.3d at 294 (emphasis added). While Plaintiffs now claim (at
30) that Romer did not authoritatively resolve that rational-basis review is proper,
this Court did so in Equality Foundationwhich rejected a sexual-orientation
claim using rational-basis review. That Lawrence overruled Bowerss substantive-
due-process holding does nothing to undermine Equality Foundations equal-
protection analysis, which remains this Courts binding interpretation of Romer
rather than Bowers.
Plaintiffs also incorrectly argue (at 30-31) that Davis and Scarbrough, two
more Sixth Circuit cases setting out rational-basis review for sexual-orientation
claims, did so in mere dicta. To get there, Plaintiffs define dicta (at 30 n.2) as
statements that are not outcome-determinative and argue that the standard-of-
review issue was irrelevant in those cases because both plaintiffs prevailed.
This analysis is mistaken. For starters, the question is not whether resolving
a particular issue is necessary [to the outcome] in some strict logical sense, but

18
whether the panel has confronted an issue germane to the eventual resolution of
the case and resolved that issue after reasoned consideration in a published
opinion. United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)
(Kozinski, J ., concurring); see, e.g., In re Tippett, 542 F.3d 684, 691 (9th Cir.
2008). Both Scarbrough and Davis faced equal-protection claims premised on
sexual-orientation classifications, chose the level of scrutiny for those claims, and
then applied that level of scrutiny to the facts. See, e.g., Davis, 679 F.3d at 438
(Because this court has not recognized sexual orientation as a suspect
classification, Daviss claim is governed by rational basis review.); see also
Scarbrough, 470 F.3d at 261. The standard-of-review issue was germane to the
resolution of each case, and represented the Courts reasoned interpretation.
Plaintiffs are mistaken, moreover, to suggest that the plaintiffs in Davis and
Scarbrough prevailed under rational-basis review. In Davis, this Court held
simply that the plaintiffs complaint stated a claim, see 679 F.3d at 440; in
Scarborough, it held simply that the plaintiffs evidence created an issue for a later
trial, see 470 F.3d at 261. Both cases thus remanded for further proceedings under
the law that the Court had just explicated. If this Court finds that discussion to be
dicta, it would mean that the Davis district court was free, on remand, to apply
heightened scrutiny at the summary-judgment stage, or that the Scarborough
district court was free, on remand, to instruct the jury with a heightened-scrutiny

19
standard. In short, Plaintiffs approach would leave district courts at sea as to
when they should follow the law that this Court establishes for the claims at issue.
Not surprisingly, the only case that Plaintiffs cite for their dicta claim (at 30
n.2), United States v. McMurray, 653 F.3d 367 (6th Cir. 2011), does not stand for
their proposition. McMurray held that another panels passing references to a
different crime not at all at issue in the prior case constituted dicta. Id. at 375. In
Scarbrough and Davis, by contrast, the panels relied on rational-basis review to
analyze the very claims at issue. Thus, those cases constitute binding precedent.
Plaintiffs, lastly, suggest (at 31) that Windsor applied heightened scrutiny
and thus permits this Court to reject its older cases. But, as the opening brief noted
(at 39), Windsor relied on rational-basis language and cited rational-basis cases.
133 S. Ct. 2693, 2695-96. It cannot be read as adopting a heightened standard,
and, indeed, confirms that rational-basis review should apply.
Alleged Heightened Scrutiny. Even if precedent did not resolve the issue,
heightened scrutiny should not apply. Plaintiffs argue (at 32) that [t]he Supreme
Court uses a four-part test for determining whether a classification triggers
heightened scrutiny. But they cite the Second Circuits Windsor decision, not any
decision from the Supreme Court. And the Supreme Court has said that the
general rule is that legislation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a legitimate state

20
interest. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).
While that standard gives way for certain classes like race, alienage, and national
origin, id. at 440, the Supreme Court has never held that sexual orientation should
receive the same treatment, despite being asked to do so recently. See Windsor,
133 S. Ct. at 2695-96 (applying rational-basis review); Windsor Appellees Br. 17
(asking Court to hold that sexual orientation is a suspect classification). The Court
should not do what the Supreme Court has declined to do.
Nor can Plaintiffs reasonably claim that gays and lesbians are, as a class,
politically powerless. The test is not whether a minority is unable to assert direct
control over the legislature because, if that were the test, [a]ny minority [could]
be said to satisfy it and much economic and social legislation would now be
suspect. Cleburne, 473 U.S. at 445. Rather, the key is whether the minority
group has no ability to attract the attention of lawmakers. Id. But the same-sex
marriage movement has attracted a great deal of attention from lawmakers at all
levels. For example, after Equality Foundation upheld a charter amendment that
denied sexual orientation the protection of municipal antidiscrimination
ordinances, advocates succeeded in having the amendment overturned by voters.
See Doc.42-1, Chauncey Decl., at Page ID #479. At the state level, many state
legislatures or citizen referenda have adopted laws allowing same-sex marriage.
At the national level, the President, Vice-President, Senate Majority Leader, House

21
Minority Leader, and the National Democratic Party platform have recently
supported same-sex marriage. Heightened scrutiny should not apply.
Alleged Gender Discrimination. Plaintiffs also put forward (at 35-37) an
alternate basis for affirmance that the district court did not even mention: that
Ohios marriage laws discriminate on the basis of sex.
To the extent Plaintiffs claim (at 36) that Ohio waived this issue by not
discussing it in its opening brief, they are mistaken. Since the district courts
opinion did not discuss sex discrimination, Ohio did not address that issue and can
properly respond now that Plaintiffs have raised it in the alternative. See
Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 729 (6th Cir. 2012).
Plaintiffs sex-discrimination argument fails. Equal-protection jurisprudence
treats gender classifications and sexual-orientation classifications as distinct
categories, and it makes no sense to merge them. Compare United States v.
Virginia, 518 U.S. 515, 531 (1996) (applying intermediate scrutiny to gender
classification), with Romer, 517 U.S. at 631-32 (applying rational-basis review to
sexual-orientation classification). Ohios marriage laws do not favor or disfavor
one sex over another. See Virginia, 518 U.S. at 533-34.
In this respect, Plaintiffs are mistaken to rely (at 36-37) on Loving. While
that case invalidated Virginias anti-miscegenation statute even assuming it had an
equal application to all races, that was because the purpose of the law was to

22
maintain White Supremacy, a fundamentally illegitimate purpose. Loving, 388
U.S. at 11. Ohios marriage laws are not intended to benefit one gender over
another as Virginias anti-miscegenation laws were intended to benefit one race
over others.
Not surprisingly, therefore, the vast majority of courts considering the
issue have held that an opposite-sex definition of marriage does not constitute
gender discrimination. Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1098
(D. Haw. 2012); see, e.g., Sevcik v. Sandoval, 911 F. Supp. 2d 996, 1005 (D. Nev.
2012) (rejecting Loving comparison for purposes of gender discrimination and
marriage laws); Hernandez v. Robles, 855 N.E.2d 1, 19-20 (N.Y. 2006) (same).
B. Plaintiffs mistakenly assert that Ohios marriage laws do not
satisfy rational-basis review
Ohios opening brief identified several significant rational bases for its
marriage laws. First, Ohio voters had a rational interest in ensuring that Ohios
democratic processnot that of Maryland or Delawarewould continue to set
marriage policy within the State. Appellants Br. 46. Second, avoiding judicial
intrusion upon a historically legislative function provides another legitimate
justification. Id. at 46-47. A third justification is marriage uniformity throughout
the State, and, fourth, Ohioans could have been seeking to approach[ ] social
change with deliberation and due care. Id. at 48-49. Moreover, Ohioans could
have been motivated by the desire not to alter the definition of marriage without

23
first taking steps to consider religious liberty issues and myriad state laws and
regulatory systems. Id. at 50. Plaintiffs responses 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).
As an initial matter, Plaintiffs do not even consider two of the reasons
identified in the opening brief (at 46-47, 50-51) that could have led reasonable
Ohioans to vote for Ohios retention of the traditional definition of marriage. For
one thing, they do not discuss the interest that Ohioans have in retaining their right
to set the States marriage policyrather than to allow out-of-state legislatures that
have adopted same-sex marriage to set it for them (via recognition of out-of-state
marriages). Cf. Schuette, 134 S. Ct. at 1636 (Michigan voters used the initiative
system to bypass public officials who were deemed not responsive to the concerns
of a majority of the voters with respect to a policy of granting race-based
preferences that raises difficult and delicate issues.). For another, Plaintiffs do not
respond to Ohioans legitimate interest in ensuring that religious-liberty issues are
assessed before deciding to engage in any type of broad societal change.
Regardless, the state interests that Plaintiffs actually confront are equally
valid. They initially claim (at 41-42) that Ohios interests in [p]roceeding
cautiously on this sensitive issue is illegitimate. But it is beyond dispute that, as
two J ustices would have found even with respect to the very different law in

24
Windsor, past changes in the understanding of marriagefor example, the
gradual ascendance of the idea that romantic love is a prerequisite to marriage
have 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 for
someone to believe that redefining marriage to include same-sex couples could
have an effect on the institution of marriage, as various participants on all sides
have argued throughout the ongoing public debate. See id. at 2715-16 nn.5-6
(stating that no oneincluding social scientists, philosophers, and historians
can predict with any certainty what the long-term ramifications of widespread
acceptance of same-sex marriage will be). This cautious approach is a rational
response to a new concept. Indeed, courts have long given legislatures the
broadest possible deference in the face of such uncertainty. See Gonzales v.
Carhart, 550 U.S. 124, 163 (2007) (citing cases).
Plaintiffs respond that (at 42) this interest in proceeding cautiously by
adhering to the status quo is irrational because Ohio laws do not enact a time-
specific moratorium. But that requirement would transform rational-basis review
into a narrow-tailoring test, under which laws are valid only if they are the least-
restrictive means of achieving a compelling governmental interest. United States
v. Playboy Entmt Grp., Inc., 529 U.S. 803, 813 (2000). But rational-basis review
requires only some rational relationship between the governments legitimate

25
interest and the means chosen to achieve it. Here, Ohio laws maintaining the status
quo rationally serve an interest in proceeding cautiously given that it can
sometimes take decades to document the effects of social changes. Windsor, 133
S. Ct. at 2715 n.5 (Alito, J ., dissenting).
Plaintiffs next claim (at 42-43) that protecting Ohio voters and lawmakers
from judicial intrusion is inconsistent with the entire constitutional system. That
is simply untrue. Without reference to the federal Constitution, Ohioans
reasonably could have been concerned that its state courts might findas a matter
of the Ohio Constitutionthat Ohio had to recognize same-sex marriage. Cf.
Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003)
(invalidating, under state constitution, statutory marriage definition). A state
constitutional amendment is a rational wayindeed, the only wayto defend
against that state-court overreach. And Plaintiffs argument (at 43) that the Court
must be especially vigilant in the context of such a voter initiative conflicts with
the Supreme Courts recognition that public policy is impeded, not advanced, by
court decrees based on the proposition that the public cannot have the requisite
repose to discuss certain issues. Schuette, 134 S. Ct. at 1637 (Kennedy, J ., op.).
Plaintiffs also assert (at 43-45) that Ohios laws are not rationally related to
any interest in uniform marriage policy. In doing so, they ignore that, as noted in
the opening brief (at 47-48), any change to same-sex marriage would affect many

26
provisions of Ohios Revised Code, all of which would have to be recalibrated to
account for it. Instead, Plaintiffs merely re-raise the argument that Ohio allegedly
treats out-of-state traditional marriages differently from out-of-state same-sex
marriages. They are mistaken for the reasons already discussed. See Part I.B.
No better is Plaintiffs argument (at 45-46) that tradition cannot establish a
rational basis supporting Ohios marriage laws. Plaintiffs misunderstand the value
of tradition in constitutional analysis. While [a]ncient lineage of a legal concept
does not give it immunity from attack for lacking a rational basis, the fact that
the law has long treated [certain] classes as distinct does support the conclusion
both that a rational basis exists for doing so and that the distinction is
constitutional. Heller v. Doe by Doe, 509 U.S. 312, 326-27 (1993); cf. Town of
Greece v. Galloway, No. 12-696, 2014 WL 1757828, at *7 (U.S. May 5, 2014)
(Any test the Court adopts must acknowledge a practice that was accepted by the
Framers and has withstood the critical scrutiny of time and political change.).
Contrary to Plaintiffs claim, therefore, promoting the traditional institution of
marriage should be considered a legitimate state interest that itself validates
Ohio law. Lawrence, 539 U.S. at 585 (OConnor, J ., concurring).
Plaintiffs lastly claim (at 47) that Section 2 of the federal DOMA does not
authorize Ohios refusal to recognize out-of-state, same-sex marriage laws.
But it does precisely thatindicating that States can refrain from recognizing out-

27
of-state, same-sex marriages. See 28 U.S.C. 1738C. Plaintiffs thus all but
concede now that their equal-protection argument necessarily requires this Court to
invalidate not just Ohio law but also that federal provisioneven though they told
the district court that [t]here is simply no need to reach [the] issue of Section 2s
validity. Doc.62, Reply Br., at Page ID #946.
IV. PLAINTIFF GRUNN MISTAKENLY ARGUES THAT HE HAS
THIRD-PARTY STANDING ON BEHALF OF FUTURE CLIENTS
As the opening brief explained (at 54-58), funeral director Grunn cannot
satisfy the elements of third-party standing, so the Court should reverse the
expanded relief that the district court gave to Grunn on behalf of potential future
clients. Grunns contrary third-party-standing arguments lack merit.
A. Grunn does not face the necessary injury-in-fact to establish
third-party standing
The opening brief showed (at 54-55) that Grunns claimed injury-in-fact for
third-party standinghis fear of prosecution for filling out false informationis
speculative. In response, Grunn merely repeats (at 55-56) that he fears prosecution
based on the existence of a statute and an absence of disavowal. But that is not
enough. The mere existence of a statute, which may or may not ever be applied
to plaintiffs members, is not sufficient to create a case or controversy within the
meaning of Article III. Natl Rifle Assn of Am. v. Magaw, 132 F.3d 272, 293 (6th
Cir. 1997) (internal quotation and citation omitted). Grunn, moreover, does not

28
respond at all to the highly attenuated chain of possibilities, Clapper v. Amnesty
Intl, 133 S. Ct. 1138, 1148 (2013), identified in the opening brief (at 55) that
would be required before his alleged injury would arise.
B. Grunn lacks standing to sue on behalf of third parties
The opening brief likewise showed (at 55-58) that, even if Grunns injury
were enough, he does not meet the high burden required to invoke disfavored
third-party standing. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). He fails to
show either (1) a close relationship with those who actually possess the relevant
right, or (2) a hindrance to those parties ability to protect their interests. Boland
v. Holder, 682 F.3d 531, 537 (6th Cir. 2012). His responses lack merit.
Close Relationship. Citing Craig v. Boren, 429 U.S. 190, 194 (1976), Grunn
claims (at 57) that he has a close relationship with his prospective clients because
he has a particular personal and market focus on the gay community. But, as the
opening brief explained (at 57), Grunn is not like the beer seller in Craig, whose
ability to sell depended on others ability to buy. Indeed, the State in that case
conceded the sellers third-party standing, which is an entirely prudential, not
jurisdictional, doctrine. 429 U.S. at 193. Grunn is, instead, like the lawyers in
Kowalski, who sought to advance claims of unknown future clients just as Grunn
does here. 543 U.S. at 130-31. Grunn does not even address Kowalskis
distinction of existent versus non-existent client relationships. He cites Kowalski

29
(at 56-57) only for his claim that he has an incentive to litigate, but that is not
enough. Nor is it enough to say, as Grunn does (at 57), that his clients rely on him
to access the state registry. Myriad customer relationships involve accessing a
government or corporate database and surely that fact alone does not create a
close relationship for purposes of third-party standing.
Hindrance. Grunns claimed hindrance is based on two premises, both of
which are mistaken. He says (at 58) that his clients face serious obstacles to
asserting their constitutional rights in the narrow window between their spouses
death and the final disposition of the body. This argument presumes both that
parties seeking relief about death certificates must wait until death to sue, and that
relief regarding death certificates can only be brought in a narrow, death-specific
case. Both presumptions are wrong. To begin with, Plaintiff Arthur sued here
before his death. And while his nearness to death was tragic, a party need not face
imminent death to sue regarding a death certificate where sufficient warning
conditions may suffice. The Court need not decide where that line is, but need
only recognize that many parties would not face a hindrance to sue. Further, those
seeking marriage recognition need not sue in the narrow death-certificate context,
but can sue over recognition generallyas the many cases percolating within this
Circuit illustrate. Consequently, Grunn cannot show the requisite hindrance, and
does not qualify for third-party standing.

30
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 Himes.
MICHAEL DEWINE
Attorney General of Ohio

/s/ Bridget E. Coontz
ERIC E. MURPHY (0083284)
State Solicitor
BRIDGET E. COONTZ* (0072919)
*Counsel of Record
ZACHERY P. KELLER (0086930)
Assistant Attorneys General
Constitutional Offices Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
614-466-2872; 614-728-7592 fax
bridget.coontz@ohioattorneygeneral.gov

Counsel for Defendant-Appellant
Lance D. Himes, Interim Director of the Ohio
Department of Health


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 6,985 words.

2. The brief has been prepared in monospaced (nonproportionally
spaced) typeface using a Times New Roman, 14 point font.

3. If the court so requests, I will provide an electronic version of the
brief and/or a copy of the word or line printout.

4. I understand that a material misrepresentation in completing this
certificate, or circumvention of the type-volume limits in Fed. R. App.
P. 32(a)(7) may result in the courts striking the brief and imposing
sanctions against me.

BRIDGET E. COONTZ


CERTIFICATE OF SERVICE
I certify that a copy of this brief has been served through the courts
electronic filing system on this 12th day of May, 2014. Electronic service was
therefore made upon all counsel of record on the same day.

BRIDGET E. COONTZ


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