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TABLE OF CONTENTS
I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2 (a)(3)1
II. STATEMENT OF FACTS...2 A. Michelle Gibson and Deborah Meem2 B. Heather Apple and Mary K. Koehler3 C. Ronald Kastner Beck and David Beck..3 D. Andrew Hickam and Ethan Fletcher.5 E. Gary Goodman and Karl Rece, Jr.6 F. Rhonda Craig and Kendra Dukes.6 G. Plaintiffs Cannot Get Married in Ohio.7
III. STANDARD FOR GRANTING INJUNCTIVE AND DECLARATORY RELIEF.9
IV. ARGUMENT10
A. Ohios Marriage Bans Are Unconstitutional Under Windsor11
1. The marriage bans constitute discrimination[] of an unusual character requiring careful consideration by the Court..14 2. The primary purpose and practical effect of Ohios marriage bans is to disparage and demean same-sex couples and their families..15 3. The state regulation of marriage is subject to constitutional limits and the central rationale of Windsor applies here. ..18
B. Ohios Marriage Bans Are Subject To Heightened Scrutiny Under Both The Due Process And Equal Protection Clauses Because They Infringe Upon Plaintiffs Fundamental Right To Marry..18
C. Ohios Marriage Bans Are Subject To Heightened Scrutiny Because They Deny Equal Protection Based On Sexual Orientation21
1. The level of scrutiny for sexual-orientation classifications is an open question in this Circuit. 21 2. Sexual-orientation classifications require heightened scrutiny under the traditional criteria examined by the Supreme Court. 23
D. Ohios Marriage Bans Are Subject To Heightened Scrutiny Because They Deny Equal Protection Based On Sex26
E. Ohios Marriage Bans Are Unconstitutional Under Any Standard Of Review..28
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1. Under rational-basis review, excluding same-sex couples from marriage must have a rational relationship to a legitimate governmental purpose28 2. Ohios marriage bans cannot be justified by an asserted interested in proceeding cautiously..30 3. Ohios marriage bans cannot be justified by an asserted interest in preserving traditional discrimination32 4. The marriage bans cannot be justified by an asserted interest in channeling the procreative potential of heterosexual couples into marriage33 5. Ohios marriage bans cannot be justified by an asserted interest in optimal childrearing..35
V. CONCLUSION ..38
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TABLE OF AUTHORITIES Page(s) Cases Baker v. Nelson, 409 U.S. 810 (1972) ...........................................................................................................36, 37 Baskin v. Bogan, No. 1:14-cv-00355-RLY., 2014 WL 1814064 (S.D. Ind. May 8, 2014) .................................13 Bates v. Jones, 131 F.3d 843 (9th Cir. 1997) ...................................................................................................32 Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (Kennedy, J ., concurring) .......................................................................29 BellSouth Telecommunications, Inc. v. Farris, 542 F.3d 499 (6th Cir. 2008) ...................................................................................................34 Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. J an. 14, 2014) .....................12, 35 Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ....................................12, 20, 36 Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) .............................13, 28, 36 Bowers v. Hardwick, 478 U.S. 186 (1986) .....................................................................................................19, 21, 22 Caban v. Mohammed, 441 U.S. 380 (1979) .................................................................................................................27 Califano v. Webster, 430 U.S. 313 (1977) (per curiam) ............................................................................................26 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) ...........................................................................................................25, 29 Craig v. Boren, 429 U.S. 190 (1976) .................................................................................................................37 Davis v. Prison Health Servs., 679 F.3d 433 (2012) ...........................................................................................................22, 28 Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 4 of 48 PAGEID #: 567 iv
De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) ...........................12 De Leon v. Perry, No. SA-13-CA-00982-OLG, slip op. (W.D. Texas Feb. 26, 2014) ...........................................9 DeBoer v. Snyder, No. 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) ...........................12, 32, 36 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ...................................................................................................................9 Eisenstadt v. Baird, 405 U.S. 438 (1972) .................................................................................................................29 Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997) .......................................................................................22, 23, 28 Frontiero v. Richardson, 411 U.S. 677 (1973) .................................................................................................................26 Garden State Equality et al. v. Dow et al., 82 A.3d 336 (N.J Super. Ct. Law Div. 2013) ..........................................................................13 Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014) ......................................12 Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968 (N.D.Cal. 2012) ..........................................................................22, 30, 32 Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) ...........................................................................................10 Griego v. Oliver, 316 P.3d 865 (N.M. 2013) .................................................................................................13, 26 Heller v. Doe by Doe, 509 U.S. 312 (1993) .................................................................................................................32 Henry v. Himes, __ F. Supp.2d. __ (S. D. OH 2014), 2014 WL 1418395 (April 14, 2014) ..............9, 13, 18, 21 Hicks v. Miranda, 422 U.S. 332 (1975) .................................................................................................................37 Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612 (1985) ...........................................................................................................34, 35 Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 5 of 48 PAGEID #: 568 v
Ill. State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173 (1979) .................................................................................................................37 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) .................................................................................................................32 Johnson v. Robison, 415 U.S. 361 (1974) ...........................................................................................................34, 35 Jones v. Bates, 127 F.3d 839 (9th Cir. 1997) ...................................................................................................31 Jordan v. Jordan, 689 N.E.2d 1005 (Ohio Ct. App. 1996) .............................................................................14, 15 Kerrigan v. Commr of Pub. Health, 957 A.2d 407 (Conn. 2008) .....................................................................................................24 King v. King, 63 Ohio St. 363 (1900).............................................................................................................15 Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013) ...................................12, 27, 36 Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014) ...............................12 Lawrence v. Texas, 539 U.S. 558 (2003) .............................................................................. passim Lee v. Orr, No. 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ................................................12 Loving v. Virginia, 388 U.S. 1 (1967) ............................................................................................................. passim In re Marriage Cases, 183 P.3d 384 (Cal. 2008) .........................................................................................................20 Mathews v. Lucas, 427 U.S. 495 (1976) .................................................................................................................37 Nevada Dept of Human Res. v. Hibbs, 538 U.S. 721 (2003) .................................................................................................................27 Obergefell v. Himes, COA No. 14-3057 at 21-22 ....................................................................................27, 33, 34, 35 Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 6 of 48 PAGEID #: 569 vi
Obergefell v. Wymyslo, 962 F. Supp.2d 968 (S.D. Ohio 2013) ............................................................................. passim Ohio Citizen Action v. City of Englewood, 671 F.3d 564 (6th Cir. 2012) .....................................................................................................9 Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294 (D. Conn. 2012) .............................................................................. passim Pers. Admr of Mass. v. Feeney, 442 U.S. 256 (1979) .................................................................................................................16 Plyler v. Doe, 457 U.S. 202 (1982) .................................................................................................................36 Romer v. Evans, 517 U.S. 620 (1996) ......................................................................................................... passim Rutherford v. Columbia Gas, 575 F.3d 616 (6th Cir. 2009) ...................................................................................................23 Savoie v. Martin, 673 F.3d 488 (6th Cir. 2012) ...................................................................................................10 Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006) ...................................................................................................22 Sierra Club v. Korleski, 681 F.3d 342 (6th Cir. 2012) ...................................................................................................23 Smith Setzer & Sons, 20 F.3d 1311 (4th Cir. 1994) ...................................................................................................34 SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014) .......................................................................................15, 21, 23 Stemler v. City of Florence, 126 F.3d 856 (6th Cir.1997) ....................................................................................................16 Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) .......................................13 Taylor v. Ouachita Parish Sch. Bd., 648 F.2d 959 (5th Cir. 1981) ...................................................................................................16 Turner v. Safley, 482 U.S. 78 (1987) ...................................................................................................................20 Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 7 of 48 PAGEID #: 570 vii
U.S. Dept of Agric. v. Moreno, 413 U.S. 528 (1973) ...........................................................................................................29, 33 U.S. v. Windsor, 133 S. Ct. 2675 (J une 26, 2013)....................................................................................... passim United States v. Salerno, 481 U.S. 739 (1987) ...................................................................................................................9 United States v. Virginia, 518 U.S. 515 (1996) .....................................................................................................21, 26, 32 Vill. of Willowbrook v. Olech, 528 U.S. 562 (2000) .................................................................................................................28 Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................................................................19 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) .................................................................................................................31 Wayne v. Vill. of Sebring, 36 F.3d 517 (6th Cir. 1994) .......................................................................................................9 Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014) ...........................................12 Windsor v. United States, 699 F.3d 169 (2012) ......................................................................................................... passim Wolf v. Walker, No. 14-cv-64-bbc (W.D. Wisc. J une 6, 2014) .........................................................................12 Womens Med. Profl Corp. v. Baird, 438 F.3d 595 (6th Cir. 2006) .....................................................................................................9 Wright v. State, No. 60CV-13-2662 (Ark. Cir. Ct. 2nd Div. May 15, 2014) ....................................................13 Zablocki v. Redhail, 434 U.S. 374 (1978) .................................................................................................................20 Statutes O.R.C. 3101.99 ................................................................................................................................8 O.R.C. 2921.13 .............................................................................................................................8 Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 8 of 48 PAGEID #: 571 viii
O.R.C. 3101 ................................................................................................................................15 O.R.C. 3101.01 ...........................................................................................................................17 O. R.C. 3101.01(A) .................................................................................................................7, 15 O.R.C. 3101.01(C) ..................................................................................................................1, 38 O.R.C. 3101.01(C)(1) .............................................................................................................7, 15 O.R.C. 3101.05(A) ........................................................................................................................7 O.R.C. 3101.05 (B) .......................................................................................................................8 O.R.C. 3101.09 ..............................................................................................................................8 O.R.C. 3705.02 .............................................................................................................................8 O.R.C. 3705.21 .............................................................................................................................8 Other Authorities Fourteenth Amendment .......................................................................................................1, 27, 38 Bill of Rights ............................................................................................................................20, 32 Equal Protection Clause ......................................................................................................... passim Fed. R. Civ. Pro. 57....................................................................................................................1, 10 Fed. R. Civ. Pro. 65..........................................................................................................................1 Federal Constitution .......................................................................................................................36 LOCAL RULE 7.2 (a)(3) .................................................................................................................1 O.A.C. 3701-5-02 (A)(10) ............................................................................................................8 O.A.C. 3701-5-02 (C) ...................................................................................................................8 Ohio Const. Art. XV, 11 ...................................................................................................... passim Ohio Constitution .......................................................................................................................7, 15 United States Constitution .........................................................................................................1, 38 Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 9 of 48 PAGEID #: 572 1
MOTION
Pursuant to Fed. R. Civ. Pro. 57 and Fed. R. Civ. Pro. 65, and for the reasons contained in the memorandum in support, Plaintiffs hereby move for: (1) a declaration that those portions of Ohio Const. Art. XV, 11 and O.R.C. 3101.01(C), and any other provisions of the Ohio Revised Code that may be relied on to deny same-sex couples the right to marry in Ohio (collectively the right to marry bans), violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples are denied their fundamental right to marry without due process of law and their right to equal protection; and (2) a permanent injunction prohibiting the Defendants and their officers and agents from (a) enforcing the right to marry bans. I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2 (a)(3) This civil rights case is facial challenge to the Ohio constitutional and statutory provisions that restrict same-sex couples from marrying. Marriage is the most important commitment many adults make in their lives. Marriage forms the foundation of families, and secures spousal and parental rights and duties. Marriage serves as the primary financial safety- net for married couples and their children. By purposefully denying same-sex couples the ability to get married, Ohio attacks the dignity of those couples and imposes life-long harms on their families. This Court should act to stop this unjust discrimination now. Plaintiffs include six same-sex couples who range widely in age, race and in other respects. They mirror the diversity of opposite-sex couples in Ohio. Only because all of these relationships are between two people of the same-sex, Ohio will not issue them marriage licenses or extend to them the legal rights and responsibilities of marriage. This lawsuit seeks to compel Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 10 of 48 PAGEID #: 573 2
Ohio to allow these couples access to marriage and declare the marriage ban facially unconstitutional in all respects. As set out in detail below, this Court should follow the lead of the Supreme Court in Windsor, the rulings by this court in Obergefell and Henry, and the 14 district court decisions since the Windsor ruling and hold the marriage ban unconstitutional as a violation of due process and equal protection. Through this lawsuit this Court should open the door to marriage to all same-sex couples across Ohio. II. STATEMENT OF FACTS A. Michelle Gibson and Deborah Meem 1
Plaintiffs began dating in 1995 and have had a loving and fulfilling relationship ever since. They are both professors at the University of Cincinnati, where they met. They would like to be married in Ohio, where they live, as do their family and friends. Michelle and Deborah have two grandchildren and they believe it is particularly important for their grandchildren to see their relationship treated equally with opposite-sex couples. In October, 2008, Michelle was diagnosed with multiple sclerosis. In 2011, she began using a wheelchair. For the past two years, she has used a wheel chair full time. She has recently had additional health issues that required her to spend time in a rehabilitation facility. Although she has returned home, it is very likely that at some time in the future, she may need 24 hour home-care or even need to live in an extended care facility. Because of Michelles illness, it is important that their relationship be legally recognized very soon. They have drafted documents so that Deborah can care for Michelle and make health care and financial decisions for Michelle if necessary, but they worry that those documents may not be honored. Given the wide range of health care staff and others who must refer to these wordy, technical documents,
1 See Declaration of Michelle Gibson Doc. 5-3. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 11 of 48 PAGEID #: 574 3
their fear is very reasonable. Deborah and Michelle need the protections that a state-recognized marriage would provide. B. Heather Apple and Mary K. Koehler 2
Heather Apple and Mary K. Koehler (Mary Kay) began dating in 2004, soon fell in love, and moved in together in 2006. They discussed raising children together but wanted to get married first, so they had a commitment ceremony in 2008. It was the best they could do because Ohio bans same-sex marriage. In 2009, they began the fertility process, and in 2010 Heather gave birth to their first daughter. Mary Kay gave birth to their second daughter in 2012. Heather and Mary Kay would like to be legally married. They want their family to have the same legal and financial stability that opposite-sex married couples enjoy. This is especially important because they are raising children together. C. Ronald Kastner Beck and David Beck 3
Ronald Kastner Beck (Ronny) and David Beck (Dave) met at a fitness gym, and began dating in March 2001. In 2006, Ronny and Dave were on vacation in Hawaii with Daves parents and while admiring an amazing view, they were overwhelmed by the beautiful setting and the beauty of their relationship. They had previously talked about adopting children and how it was important that they be 100% committed to each other beforehand. At that overlook, they made the commitment to marry. They knew that Ohio would not allow them to legally wed, so they planned a commitment ceremony. Ronny and Dave were both raised as Catholics. To prepare for the lifelong commitment they were making, they participated in a three month marriage counseling process called Pre-Cana. On J une 9, 2006, Ronny and Dave exchanged
2 See Declaration of Heather Apple Doc 5-4. 3 See Declaration of Ronald Beck Doc. 5-5. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 12 of 48 PAGEID #: 575 4
vows before God, their family, and their friends. Their priest was not allowed to officiate because of the Catholic Churchs position on homosexuality, but he attended as a guest. They soon began foster-to-adopt certification and in December, 2007, a six month old little boy was placed in their care as an emergency placement after his birth mother tried to commit suicide. Because only one of them was allowed by Ohio law to be his adoptive parent, Ronny became his legal father through adoption. When he was almost three years old, their son was diagnosed with autism. He required extensive early intervention therapy that included 40 hours a week of tutoring for over two years. He has since transitioned to full day kindergarten. He can speak and read but he will require an educational intervention plan throughout his education. In March, 2009, another little boy was placed in Ronny and Daves care on an emergency basis. He came to them at six months old, directly from the hospital where he had undergone a double hernia surgery. His birth mother was homeless and unable to care for him. Three or four months after they began fostering their second son and before the adoption process began, Ronny and Dave learned that their son would have multiple developmental delays. Ronny and Dave decided that they were just like any other parents who do not know beforehand the types of challenges their birth child may face. You love them anyway and you just figure it out. Giving him back was not an option because he was their son now. Dave became his adoptive parent. Although Ronny and Dave have drafted extensive paperwork to try to protect their family, they are always fearful of what would happen if one of them died. They worry about being separated from one of their children or having their sons separated from each other. They worry about their sons medical insurance and the disposition of the deceaseds social security benefits. These and many other uncertainties would be resolved if Ronny and Dave were legally Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 13 of 48 PAGEID #: 576 5
married just like an opposite-sex couple in their situation. Ronny has stopped working to stay at home and care for their sons with special needs. Ronny lost medical insurance coverage because Daves plan does not cover domestic partners, only spouses. They have had to purchase an individual health insurance plan for Ronny. Ronny and Dave would like to marry in Ohio and have that marriage legally recognized. D. Andrew Hickam and Ethan Fletcher 4
Andrew Hicks and Ethan Fletcher are both 29 years old and they are in love. They first met when they lived across the street from each other in Over-the-Rhine. They would say hello when they bumped into each other walking around the neighborhood. In December, 2011, Andrew invited Ethan to dinner. They soon discovered they have a lot in common. They are close to their families, treasure their friends, and love music. Ethan sang with the Cincinnati Mens Chorus, and Andrew subsequently joined. In the spring of 2013, Andrew and Ethan moved in together. On New Years Eve 2013, Ethan told Andrew that he had planned a house party at the home of one of their friends. Before they left for the party, Ethan got down on one knee and asked Andrew to marry him. Of course Andrew said yes and they exchanged rings that Ethan had bought for both of them. The house party was really a happy engagement party, because their friends were in on the surprise. Andrew and Ethan would like to marry soon. Both Andrews mother and Ethans grandmother are elderly. They all live close to each other and it is very important to Andrew and Ethan that they attend the wedding. Because of their age, it would be a significant hardship, if not impossible, for them to travel a great distance. If Andrew and Ethan could be married in Hamilton County, Andrews mother and Ethans grandmother could
4 See Declaration of Andrew Hickam Doc. 5-6. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 14 of 48 PAGEID #: 577 6
attend. It is important to Andrew and Ethan that they get married and not just have a commitment ceremony. They want a marriage that is on equal terms with opposite-sex couples. E. Gary Goodman and Karl Rece, Jr. 5
Gary Goodman and Karl Rece J r. met in 2001 at Kings Island Pride Night. They fell in love immediately. Gary has twin boys and they soon embraced Karl as a father. In 2011, on their ten-year anniversary they went back to Kings Island for Pride Night and Gary proposed to Karl in front of many friends and family. Soon after their engagement, they began planning their wedding. They have created a guest list of 350 people. They have a date, theme, colors, and dcor. They have even bought wedding favors for their guests. The only thing they dont have is the right to be married at home, in Ohio. Gary and Karls family and friends love and support them and want to attend their wedding, but will only be able to do that if they are married in Ohio. Gary and Karls friends and family are not wealthy and cannot afford to travel to a destination wedding. If they get married in Ohio, they expect to have over 300 guests. If they are married out of state, they would be lucky to have 10 guests attend. Gary and Karl want to celebrate their marriage at home, in front of all their family and friends. F. Rhonda Craig and Kendra Dukes 6
Rhonda Craig and Kendra Dukes met in 1997, started dating in 2003, and moved in together in 2004. Rhonda and Kendra always wanted children. Together they now have two children, a son and a daughter. Kendra, Rhonda, and their children have been discussing the importance of marriage. To them, marriage is a public expression of how they feel about their relationship and their family. Kendra and Rhonda are African-American, and feel that marriage
5 See Declaration of Gary Goodman Doc. 5-7. 6 See Declaration of Rhonda Craig Doc. 5-8. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 15 of 48 PAGEID #: 578 7
for same-sex couples is an issue comparable to voting rights. It is not that you have to vote or get married, but they should have the same right to vote and marry that other citizens have. Kendra and Rhonda would like to get married. They believe it would be an important lesson for their children that you should not be judged by your color or by who you love. G. Plaintiffs Cannot Get Married in Ohio
Plaintiffs cannot get married in Ohio. Ohio statutory law excludes same-sex couples from marriage. O. R.C. 3101.01(A) states that a marriage may only be entered into by one man and one woman. O.R.C. 3101.01(C)(1) declares that any marriage between persons of the same sex is against the strong public policy of this state. Further, any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state. Id. The Ohio Constitution also excludes same-sex couples from marriage. OH Const. Art. XV, 11 states, Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage. To be married in Ohio, a couple must together appear in person at the county probate court where one of them resides or where they want to be married in Ohio if they are out of state residents. O.R.C. 3101.05(A). The probate judge may only grant the marriage license if he is satisfied there is no legal impediment to the marriage. Once any of these couples apply for a marriage license in person, Defendant J udge Cissell will be required to deny them a marriage license since the legal impediment of being of the same sex would prohibit him from issuing a marriage license. Id. Furthermore, if the Plaintiffs apply for a marriage license they will be Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 16 of 48 PAGEID #: 579 8
committing a crime. The application requires the marriage applicants to swear under oath that there is no legal impediment to their marriage. Plaintiffs, knowing the prohibitions in Ohio law for same-sex couples to marry, cannot swear to this statement. If any were to, they would be subject to criminal prosecution for the crime of falsification under O.R.C. 2921.13 and O.R.C. 3101.99. O.R.C. 3101.05 (B). Plaintiffs are prohibited from even having their marriage solemnized since no marriage shall be solemnized without the issuance of a marriage license. O.R.C. 3101.09. Defendant Mr. Himes is the interim director of the Ohio Department of Health (ODH). The Ohio Department of Health Office of Vital Statistics registers all marriages that take place in Ohio. O.R.C. 3705.21. The ODH Director is in charge of the system of vital statistics, enforces the laws related to registering vital statistics, including marriages, and issues instructions and adopts rules as necessary. O.R.C. 3705.02. The ODH Director prescribes the forms to be used in the system of vital statistics, including the certified abstract of marriage. O.R.C. 3705.02; O.A.C. 3701-5-02 (A)(10). Only those forms furnished or approved by the ODH Director may be used. O.A.C. 3701-5-02 (C). Hamilton County Probate Courts marriage application form requires the marriage applicants to swear there is no legal impediment to their marriage. (See sample Certified Abstract of Marriage attached as Exhibit 1). The ODH Director approved Hamilton County Probate Courts certified abstract of marriage form. Unless this Court acts to enjoin these provisions of Ohio law as unconstitutional on its face these same-sex plaintiffs will not be able to get married on an equal basis as similarly situated opposite-sex men and women.
III. STANDARD FOR GRANTING INJUNCTIVE AND DECLARATORY RELIEF
Plaintiffs seek a permanent injunction enjoining enforcement of the constitutional and statutory bans on the right to marry. In this case the Plaintiffs go beyond the as-applied challenge pursued in Obergefell and the facial challenge pursued in Henry with respect to recognition of out of state marriages. These plaintiffs seek a declaration that the marriage bans are facially unconstitutional, invalid, and unenforceable. In other words, no set of circumstances exists under which the [challenged marriage bans] would be valid, and the bans should therefore be struck down in their entirety. United States v. Salerno, 481 U.S. 739, 745 (1987); see also De Leon v. Perry, No. SA-13-CA-00982-OLG, slip op. at 46 n.7 (W.D. Texas Feb. 26, 2014) (declaring that Texass ban on same-sex marriages and marriage recognition fails the constitutional facial challenge because. . . Defendants have failed to provide any and the Court finds no rational basis that banning same-sex marriage furthers a legitimate governmental interest.). A party is entitled to a permanent injunction if it can establish that it suffered a constitutional violation and will suffer continuing irreparable injury for which there is no adequate remedy at law. Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir. 2012); Womens Med. Profl Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)); Obergefell, 2013 WL 6726688, at *4. It lies within the sound discretion of the district court to grant or deny a motion for permanent injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Obergefell, 2013 WL 6726688, at *4, citing Kallstrom, 136 F.3d at 1067; Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994). Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 18 of 48 PAGEID #: 581 10
The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. Fed. R. Civ. P. 57. In the Sixth Circuit, [t]he two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding. Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W. R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984)); see also Obergefell, 2013 WL 6726688, at *5. Plaintiffs are entitled to both permanent injunctive and declaratory relief. IV. ARGUMENT
A. Ohios Marriage Bans Are Unconstitutional Under Windsor
This case follows a wave of recent court decisions holding that states violate the Constitution when they refuse to allow or recognize marriages between same-sex couples. The first such decision, and the most significant, was the Supreme Court ruling in U.S. v. Windsor, 133 S. Ct. 2675 (J une 26, 2013). After Edith Windsors spouse Thea Spyer died, the federal government was required by the federal DOMA statute not to respect her marriage for federal estate tax purposes. Windsor paid the tax but challenged DOMAs constitutionality. The Supreme Court held that the federal governments refusal to recognize the legal marriages of same-sex couples violated due process and equal protection because it burdened many aspects of married and family life, from the mundane to the profound, Id. at 2694, and because its avowed purpose and practical effect were to treat those couples unequally, rather than to further a legitimate purpose. Id. at 2693. Ohios marriage bans similarly burden the family lives of same-sex couples and treat them unequally with no legitimate purpose. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 19 of 48 PAGEID #: 582 11
The Supreme Court could have based its decision on Federalism principles, but it did not. Instead, it held Congress to account for its bare congressional desire to harm a politically unpopular group, and gave federal DOMA careful consideration as a law motivated by an improper animus or purpose that created [d]iscrimination[] of an unusual character. Id. at 2693 (internal quotations omitted). The Court detailed numerous rights and responsibilities incidental to marriage and found that DOMA divests couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force. Id. at 2695. The Court also described how discriminatory marriage laws affect families with same-sex parents: The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, ... and it humiliates children now being raised by same-sex couples. Windsor, 133 S. Ct. at 2694 (internal citations omitted). The Court described how discrimination against same-sex couples has an insidious effect on their children: [It] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Id. The Windsor Court made it clear that governments harm children when they treat their parents love and commitment as worthless. In a vigorous dissent, J ustice Scalia provided the first interpretation of the majority decision. He predicted that lower courts applying the Windsor decision would use it to invalidate state laws prohibiting and refusing to recognize marriages for same-sex couples. Id. at 2710. His prediction has proved accurate. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 20 of 48 PAGEID #: 583 12
Since the Windsor decision, 7 federal district courts in Michigan, Texas, Illinois, Virginia, Oklahoma, Utah, Idaho, Oregon, Pennsylvania, and Wisconsin have ruled state DOMA laws unconstitutional and required those states to celebrate marriages of same-sex couples. DeBoer v. Snyder, No. 12-CV-10285, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014) (permanently enjoining Michigan anti-celebration provisions on equal protection grounds); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, at *1, *24 (W.D. Tex. Feb. 26, 2014) (preliminarily enjoining Texas anti-celebration and anti-recognition provisions on equal protection and due process grounds); Illinois Lee v. Orr, No. 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (declaring Illinois celebration ban unconstitutional on equal protection grounds); Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014) (finding Virginias anti-celebration and anti-recognition laws unconstitutional on due process and equal protection grounds, and preliminarily enjoining enforcement); Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013, at *33-34 (N.D. Okla. J an. 14, 2014) (permanently enjoining Oklahomas anti-celebration provisions on equal protection grounds); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *30 (D. Utah Dec. 20, 2013) (permanently enjoining Utah anti-celebration provisions on due process and equal protection grounds); Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014); Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014); Wolf v. Walker, No. 14-cv-64-bbc (W.D. Wisc. J une 6, 2014). In Tennessee, Kentucky, Ohio, and Indiana, federal district courts have also found state DOMA marriage recognition laws unconstitutional and required those states to recognize
7 This list is based on the decisions issued as of the date of this filing. Cases are pending in courts of appeal across the country. The Sixth Circuit will hear oral argument on August 6, 2014 in all the pending same-sex marriage cases within this circuit. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 21 of 48 PAGEID #: 584 13
marriages legally performed in other states. Henry v. Himes, __ F. Supp.2d. __ (S. D. OH 2014), 2014 WL 1418395 (April 14, 2014), (permanently enjoining enforcement of Ohios anti- recognition provisions on its face on due process and equal protection grounds); (Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525, at *6, *9 (M.D. Tenn. Mar. 14, 2014) (preliminarily enjoining enforcement of Tennessee anti-recognition provisions, on equal protection grounds); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014) (declaring Kentuckys anti-recognition provisions unconstitutional on equal protection grounds); Obergefell v. Wymyslo, 962 F. Supp.2d 968, 999-1000 (S.D. Ohio 2013) (permanently enjoining as to plaintiffs enforcement of Ohio anti-recognition provisions, on due process and equal protection grounds); Baskin v. Bogan, No. 1:14-cv-00355-RLY., 2014 WL 1814064 (S.D. Ind. May 8, 2014). See also the cases cited above from Texas, Virginia, Idaho, Oregon, and Pennsylvania where same-sex marriage recognition was allowed in addition to allowing marriage celebration. Finally, state courts in Arkansas, New J ersey, and New Mexico have also struck down bans on marriage for same-sex couples. Wright v. State, No. 60CV-13-2662 (Ark. Cir. Ct. 2nd Div. May 15, 2014); Garden State Equality et al. v. Dow et al., 82 A.3d 336 (N.J Super. Ct. Law Div. 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013). This collection of unanimous decisions from 17 states in the year since the Windsor decision is not surprising. The judiciary has a long tradition of protecting individuals right to marry the person of their choosing. Windsor itself was not groundbreaking; though it provided an important guidepost for lower courts faced with plaintiffs who are in love and wish to marry, but are prevented from doing so by discriminatory laws in obvious violation of fundamental constitutional rights of due process and equal protection. The Plaintiffs before this Court are in Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 22 of 48 PAGEID #: 585 14
love and want to get married. Windsor and its progeny and predecessors require that they be granted that the right to marry 1. The marriage bans constitute discrimination[] of an unusual character requiring careful consideration by the Court.
In Windsor, the Supreme Court reaffirmed that [d]iscriminations of an unusual character require careful consideration to determine whether they are obnoxious to the constitutional provision at issue. Windsor, 133 S. Ct. at 2692 (internal quotation marks omitted). The unusual discrimination that triggered careful consideration in Windsor was DOMAs depart[ure] from [Congresss] history and tradition of reliance on state law to define marriage. Id. at 2692. But careful consideration is not limited to cases involving federalism concerns. For example, in Romer v. Evans, 517 U.S. 620, 633 (1996), the Supreme Court held that Colorados ban on nondiscrimination protections for gay people required careful consideration because such a disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. And the Windsor court found that where a bare congressional desire to harm a politically unpopular group motivated the passage of a law, careful consideration of the laws constitutionality is especially require[d]. 133 S.Ct at 2693. This court already held in Obergefell that Ohios marriage bans dramatically depart from Ohios longstanding practice of recognizing legal marriages from other jurisdictions even when those marriages would not have been legal under Ohio law. Obergefell, 962 F. Supp. 2d 968, 983 (S.D. Ohio 2013). Likewise, Ohios ban on celebrating marriages between same-sex couples departs from Ohios strong public policy in favor of marriage. Jordan v. Jordan, 689 N.E.2d 1005, 1007 (Ohio Ct. App. 1996). Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 23 of 48 PAGEID #: 586 15
Over 100 years ago, the Ohio Supreme Court declared private contracts restraining the right to marry void, as being contrary to the public policy of the law. King v. King, 63 Ohio St. 363, 369 (1900). Ohio public policy favors the union of two people in marriage, for it has been the ultimate expression of commitment and love throughout this nations history and has been the bedrock upon which our society has built and continues to build upon. Jordan, 689 N.E.2d at 1007. Despite Ohios long-standing disfavor on restraints to marriage, in 2004 the Ohio legislature amended Revised Code Section 3101 to prohibit marriages between same-sex couples, declaring them against the strong public policy of this state. O.R.C. 3101(C)(1). That same year, Ohio voters duplicated the legislatures efforts by passing a constitutional amendment prohibiting same-sex couples from getting married. Ohio Const. art XV, 11. Up until those votes, the strong public policy of Ohio was to disfavor restraints on marriage. Ohio statutes only banned marriages between minors and kin nearer than second cousins. O.R.C. 3101(A). The Ohio Constitution had no mention of marriage. This abrupt departure from Ohios long history of disfavoring restraints on marriage is [d]iscrimination[] of an unusual character, and it requires careful consideration. Windsor, 133 S. Ct. at 2692 (Quoting Romer, 517 U.S. at 633). 8
2. The primary purpose and practical effect of Ohios marriage bans is to disparage and demean same-sex couples and their families.
The record surrounding the passage of Ohios marriage bans, as well as the lack of any rational basis for the bans (see Section E, below) leads to the inescapable conclusion that, just as was true for DOMA, Ohios marriage bans were passed because of, not in spite of, the harm they
8 As discussed infra, the Ninth Circuit in SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014), interpreted Windsor to require careful consideration as part of heightened scrutiny for all sexual-orientation classifications. Regardless of whether Windsor applied careful consideration because DOMA was unusual or because it classified based on sexual orientation, Ohios marriage recognition bans require careful consideration in this case under either interpretation of Windsor. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 24 of 48 PAGEID #: 587 16
would inflict on same-sex couples. Windsor, 133 S. Ct. at 2694 (The principal purpose [of DOMA] is to impose inequality ). The Sixth Circuit has also held that the desire to effectuate animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause. Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir.1997). The historical background of the marriage bans reflects a targeted attempt to exclude same-sex couples, not a mere side-effect of some broader public policy. Cf. Windsor, 133 S. Ct. at 2693 (examining historical context of DOMA). The marriage bans were not enacted at a time when many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. Windsor, 133 S. Ct. at 2689. They were enacted as specific responses to developments in other jurisdictions where same-sex couples sought the freedom to marry. Becker Declaration (Doc. 14-1). At the time the marriage bans were enacted, Ohio law already prevented same-sex couples from getting married. But this history of discrimination does not save the marriage bans. Rather, their emphatic endorsement of the status quo perpetuated and maintained unconstitutional discrimination. The Equal Protection Clause is violated when government has selected or reaffirmed a particular course of action because of its negative effects on an identifiable group. Pers. Admr of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (emphasis added)). Even if the status quo was considered neutral - actions neutral at their inception may, of course, be perpetuated or maintained for discriminatory purposes, and that perpetuation or maintenance itself may be found a constitutional violation. Taylor v. Ouachita Parish Sch. Bd., 648 F.2d 959, 966 (5th Cir. 1981). Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 25 of 48 PAGEID #: 588 17
Moreover, the sheer breadth of Ohios marriage bans is so discontinuous with the reasons offered for it that the exclusion of same-sex couples is inexplicable by anything but animus toward the class it affects. Romer, 517 U.S. at 632. Ohios marriage bans did much more than simply preserve the traditional definition of marriage. They included sweeping new disabilities that prohibited same-sex couples from entering into any other legal relationship similar to marriage. O.R.C. 3101.01; Ohio Con. Art. XV, 11. Though at the time Ohio law clearly limited marriage to opposite-sex couples, the legislature and electorate acted anyway to pass the bans. Becker Declaration (Doc. 14-1). Finally, the inescapable practical effect of Ohios marriage bans is to impose a disadvantage, a separate status, and so a stigma upon same-sex couples. Windsor, 133 S. Ct at 2693. The marriage bans collectively diminish[] the stability and predictability of basic personal relations of gay people and demean[] the couple, whose moral and sexual choices the Constitution protects. Id. at 2694. That official statement of inequality in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. Lawrence v. Texas, 539 U.S. 558 (2003) at 575. But [a] State cannot so deem a class of persons a stranger to its laws. Romer, 517 U.S. at 635. Even if it were possible to hypothesize a rational connection between Ohios marriage bans and some legitimate governmental interestand there is none, see Section E, belowno hypothetical justification can overcome the unmistakable primary purpose and practical effect of the marriage bans to disparage and demean the dignity of same-sex couples in the eyes of the State and the wider community.
3. The state regulation of marriage is subject to constitutional limits and the central rationale of Windsor applies here.
Attempts to minimize Windsors impact are unavailing. While States do have considerable freedom to define marriage, the Windsor Court repeatedly noted that those laws are subject to constitutional limits and must respect the constitutional rights of persons. Windsor, 133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967)). Indeed, as J ustice Scalia noted in dissent, the Windsor majority formally disclaimed reliance upon principles of federalism. Id. at 2705 (Scalia, J ., dissenting). Respect for federalism does not come at the cost of sacrificing the constitutional rights of individuals. Cf. Loving, 388 U.S. at 12 (Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.). Ohios broad authority over domestic relations law does not include the power to infringe upon Plaintiffs federal constitutional rights. While Windsors central holding concerned marriage recognition, its central rationale was that DOMA was motivated by a bare desire to harm. See Id. at 2709 (Scalia, J ., dissenting). While the ultimate holding of the Court is distinguisable from this case, its rationale is inescapable. Ohios bans on celebrating marriages between same-sex couples were not motivated or enacted for different reasons than its bans on recognizing marriages from other states. Both are attributable to a bare desire to harm. As J ustice Scalia presciently predicted, the state law shoe [has] dropped, and Ohios marriage bans simply cannot survive constitutional review after Windsor. Id. at 2705, 2709 (Scalia, J ., dissenting). B. Ohios Marriage Bans Are Subject To Heightened Scrutiny Under Both The Due Process And Equal Protection Clauses Because They Infringe Upon Plaintiffs Fundamental Right To Marry
While states have a legitimate interest in regulating and promoting marriage, the fundamental right to marry belongs to the individual. Henry v. Himes, No. 1:14-CV-129, 2014 Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 27 of 48 PAGEID #: 590 19
WL 1418395 *7 (S.D. Ohio Apr. 14, 2014). As the Court held in Loving, 388 U.S. at 12, [t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. By denying the Plaintiffs the ability to get married, the Ohio marriage bans infringe Plaintiffs fundamental right to marry and are therefore subject to heightened scrutiny. The marriage bans implicate the fundamental right to marryand not, as opponents have attempted to reframe the issue, a right to same sex marriage. Same-sex couples in Ohio and elsewhere do not seek a new right to same-sex marriage. Instead, they seek the same freedom to marry that courts have recognized and protected for decades. Reframing the right at stake in this case as the right to same-sex marriage would repeat the error committed in Bowers v. Hardwick, 478 U.S. 186 (1986) at 190. where the right at issue was characterized as the fundamental right [for] homosexuals to engage in sodomy. The Lawrence Court, in overruling Bowers, specifically criticized the framing of the issue by the Bowers Court as fail[ing] to appreciate the extent of the liberty at stake. Lawrence, 539 U.S. at 567. As J ustice Kennedy explained, our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education and [p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. Id. at 574. To be sure, same-sex couples have until recently been denied the freedom to marry, but the State cannot deny fundamental rights to certain groups simply because it has done so in the past. Our Nation's history, legal traditions, and practices help courts identify what fundamental rights the Constitution protects but not who may exercise those rights. Washington v. Glucksberg, 521 U.S. 702, 721 (1997). [F]undamental rights, once recognized, cannot be Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 28 of 48 PAGEID #: 591 20
denied to particular groups on the ground that these groups have historically been denied those rights. In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008)(quotation marks omitted; bracket in original). When individuals have been denied their fundamental right to marry, the Supreme Court has repeatedly come to their defense. See e.g. Loving v. Virginia, 388 U.S. 1, 12 (1967); (state statutes criminalizing interracial marriages violate equal protection and substantive due process rights); Turner v. Safley, 482 U.S. 78 (1987) (prison regulation requiring superintendent to approve inmate marriages unconstitutionally burdens inmates right to marry); Zablocki v. Redhail, 434 U.S. 374 (1978) (Wisconsin statute requiring residents with child-support obligations to get judicial permission to marry unconstitutionally impinges right to marry). Time and again, the Court has defended the right of individuals to enter into marriage. For the right to marry is older than the Bill of Rights older than our political parties. Id. at 384 (quoting Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Id. Both the proponents and opponents of Ohios marriage ban likely share this view of marriage, but regrettably they part ways despite this shared reverence for marriage. They part over a dispute regarding who among [Ohios] citizenry may exercise the fundamental right to marry. Bostic, No. 2:13-cv-395, 2014 WL 561978, at *12. Thankfully, this dispute is destined to end, for marriage is not defined by its parties, but by their union. The Supreme Courts understanding of marriage, and the lesson implicit in Loving, is that the right to marry is not about the two people who claim it. Consequently the right is not modified by their race, convictions, financial obligations, or sexual orientation. The right to Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 29 of 48 PAGEID #: 592 21
marry is defined by the nature of the marital union itself and the right of couples to pursue its perfection without interference by the government. The Plaintiff couples in this case seek to perfect their union through marriage and no social cause, political agenda, or popular vote can trump their constitutional right to do so. Thus, the fundamental right to marry remains the same regardless of who exercises it. This case is no more about a new right to same-sex marriage than Loving was about a new right to interracial marriage. There is only one form of marriage, and the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right. Henry, No. 1:14-CV-129 at *8. C. Ohios Marriage Bans Are Subject To Heightened Scrutiny Because They Deny Equal Protection Based On Sexual Orientation
This Court should follow the decisions in Obergefell and Henry, and join the Second and Ninth Circuits in holding that sexual-orientation classifications are not presumed to be constitutional and must be subjected to heightened scrutiny under the Equal Protection clause. Windsor v. United States, 699 F.3d 169, 181-85 (2012); SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471, 484 (9th Cir. 2014). When the government classifies people based on their sexual orientation, it should bear the burden of proving the statutes constitutionality, and it should be required to do so by showing, at a minimum, that the sexual-orientation classification is closely related to an important governmental interest. Cf. United States v. Virginia, 518 U.S. 515, 532-33 (1996)(sex discrimination). 1. The level of scrutiny for sexual-orientation classifications is an open question in this Circuit.
The proper level of scrutiny for sexual-orientation classifications is an open question in the Sixth Circuit. Relying directly or indirectly on Bowers, and/or asserting dicta, the Sixth Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 30 of 48 PAGEID #: 593 22
Circuit has applied rational-basis review to sexual orientation discrimination claims prior to Windsor. See Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati (Equality Foundation II), 128 F.3d 289, 292-93 (6th Cir. 1997) ; Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006) (relying on Equality Foundation II). But like every other Circuit to address the issue before Lawrence, in Equality Foundation II, the Sixth Circuit reasoned that, because the government could constitutionally criminalize private, consensual sex between gay people under Bowers, sexual orientation could not be considered a suspect or quasi- suspect classification for equal protection. In 2003, the Supreme Court overruled Bowers and emphatically declared that it was not correct when it was decided, and it is not correct today. Lawrence, 539 U.S. at 578. The Obergefell Court properly held that by overruling Bowers, the Supreme Court necessarily abrogated Equality Foundation II and other decisions that relied on Bowers to foreclose heightened scrutiny for sexual-orientation classifications. Obergefell, 962 F. Supp.2d at 986-7; see also Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012); Golinski v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D.Cal. 2012). Since Lawrence, the Sixth Circuit has only twice confronted sexual orientation equal protection claims and, in dicta, citing back to Equality Foundation, has noted that sexual orientation receives rational-basis review in this Circuit. Davis v. Prison Health Servs., 679 F.3d 433, 438 (2012); Scarbrough, 470 F.3d at 261. Because the only post-Lawrence Sixth Circuit cases to consider the level of scrutiny for classifications based on sexual orientation have done so in dicta and have followed Equality Foundation II, which cannot be reconciled with Lawrence, this Court may apply a heightened scrutiny level of review for sexual-orientation classifications. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 31 of 48 PAGEID #: 594 23
The Supreme Courts holding in Windsor provides another intervening jurisprudential reason for this Court not to follow Equality Foundation II and its progeny. The Ninth Circuit has held that Windsor requires that heightened scrutiny be applied to equal protection claims involving sexual orientation SmithKline, 740 F.3d at 481. SmithKline held that under Windsor, the Court must examine [the classifications] actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. Id. at 483. When Sixth Circuit precedent is inconsistent with later Supreme Court precedent, the older Sixth Circuit precedent no longer should be followed. See, e.g., Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (prior panel decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.) (emphasis added) (internal quotation marks and citations omitted); Sierra Club v. Korleski, 681 F.3d 342, 352 (6th Cir. 2012) (same). Given the Supreme Courts inconsistent holdings in Lawrence and Windsor, Equality Foundation II is no longer the law of the Circuit. 2. Sexual-orientation classifications require heightened scrutiny under the traditional criteria examined by the Supreme Court.
The Supreme Court uses the following factors to determine whether a classification triggers heightened scrutiny: A) whether the class has been historically subjected to discrimination,[ ] B) whether the class has a defining characteristic that frequently bears [a] relation to ability to perform or contribute to society,[ ] C) whether the class exhibits obvious, immutable, or distinguishing characteristics that define them as a discrete group;[ ] and D) whether the class is a minority or politically powerless.
Windsor, 699 F.3d at 181 (internal quotation marks and citations omitted). Of these considerations, the first two are the most important. See id. (Immutability and lack of political power are not strictly necessary factors to identify a suspect class.). Citing to the robust uncontested factual record, including expert reports addressing each criterion, 9 the Obergefell Court held that any faithful application of those factors leads to the inescapable conclusion that sexual-orientation classifications must be recognized as suspect or quasi-suspect and subjected to heightened scrutiny. 962 F. Supp2d at 987. Since the same factual record exists in this case (Doc. 14-1 and 15-1 through 15-6), this Court should follow the holding in Obergefell. Sexual orientation easily fits all four factors. See, e.g., Pedersen, 881 F. Supp. 2d at 310- 33; Kerrigan v. Commr of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008). First, [t]he history of discrimination against gay and lesbian individuals has been both severe and pervasive. Obergefell, 962 F. Supp.2d at 987 (Citing expert reports of Chauncey (Doc. 15-1 and Becker Doc. 14-1). See also Windsor, 699 F.3d at 182 (It is easy to conclude that homosexuals have suffered a history of discrimination. Windsor and several amici labor to establish and document this history, but we think it is not much in debate.). Second, sexual orientation bears no relation to ability to perform or contribute to society. Obergefell, 962 F. Supp.2d at 988-9 (sexual orientation is akin to race, gender, alienage, and national origin, all of which are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.) (citing expert report of Peplau (Doc. 15-5) and City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). Though some have argued that sexual orientation is relevant to the ability to contribute to society because the two people in a same-sex couple cannot
9 The same expert reports are filed in this case as Doc. 14-1 and 15-1 through 15-6. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 33 of 48 PAGEID #: 596 25
accidentally procreate, that argument misunderstands the proper inquiry. See Windsor, 699 F.3d at 182-83 (rejecting a similar argument). The relevant question for heightened scrutiny is whether, as a general matter, a classification usually bears on a persons ability to contribute to society not whether a classification is always irrelevant in all contexts. Cleburne, 473 U.S. at 446 (the Court should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us; the proper question is whether a characteristic is one that the government may legitimately take into account in a wide range of decisions.). Third, sexual orientation is an obvious, immutable, or distinguishing aspect of personal identity that a person cannot and should not be required to change in order to escape discrimination. Obergefell, 962 F. Supp.2d at 990-91. The Obergefell Court, relying on the report of expert Anne Peplau (Doc. 15-5), properly held that, [u]nder any definition of immutability, sexual orientation clearly qualifies. Id. at 991; see Windsor, 699 F.3d at 183. Fourth, [a]s political power has been defined by the Supreme Court for purposes of heightened scrutiny analysis, gay people do not have it. Obergefell, 962 F. Supp.2d at 990. While gay people have secured some limited advances recently, they pale in comparison to the political progress of women at the time sex was recognized as a quasi-suspect classification. Id. There is still no express federal ban on sexual orientation discrimination in employment, housing, or public accommodations, and twenty-nine states, including Ohio, have no such protections either. Id. at 989 (citing Becker Report (Doc. 14-1)); see also Pedersen, 881 F. Supp. 2d at 326-27 and Sequra Report (Doc. 15-6). Notably, gay people have also been particularly vulnerable to discriminatory ballot initiatives, like Ohios marriage amendment, that seek to roll Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 34 of 48 PAGEID #: 597 26
back protections they have secured in the legislature or prevent such protections from ever being extended. Griego v. Oliver, 316 P.3d 865, 883 (N.M. 2013). In short, sexual-orientation classifications demand heightened scrutiny under not just the two critical factors, but under all four factors that the Supreme Court has used to identify classifications warranting heightened scrutiny review. D. Ohios Marriage Bans Are Subject To Heightened Scrutiny Because They Deny Equal Protection Based On Sex
[A]ll gender-based classifications today warrant heightened scrutiny. Virginia, 518 U.S. at 518 (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994))(denying women access to Virginia Military Institute violates equal protection). There can be no doubt that Ohios marriage bans contain explicit gender classifications: a persons marriage will be allowed only if her sex and her spouses sex are different. Like any other sex classification, the marriage bans must be tested through the framework of heightened scrutiny. Cf. Califano v. Webster, 430 U.S. 313 (1977) (per curiam) (upholding sex-based classification in social security benefit formula, but only after subjecting it to heightened scrutiny). So far the State has not contested that the marriage bans discriminate on the basis of sex. In other cases, supporters of marriage bans have argued that the sex-based classifications in the marriage bans do not trigger heightened scrutiny because they are not designed to denigrate members of either sex or deny opportunity to men or women. But heightened scrutiny applies to all explicit sex-based classifications regardless of whether those classifications have a purpose to denigrate or deny opportunity. Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (classifications based upon sex are inherently suspect, and must therefore be subjected to strict judicial scrutiny). Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 35 of 48 PAGEID #: 598 27
Similarly, Ohios marriage bans are no less invidious because they equally deny men and women the right to marry, under Ohio law, a person of the same sex. In Loving, 388 U.S. at 8, the Supreme Court rejected the notion that the mere equal application of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendments proscription of all invidious racial discriminations. Applying the same logic used in Loving, the fact of equal application to both men and women does not immunize [Ohios marriage bans] from the heightened burden of justification that the Fourteenth Amendment requires of state laws drawn according to sex. Kitchen, 961 F. Supp. 2d at 1206. 10
Ohios marriage bans are also based on sex stereotypes about the proper parenting roles for men and women. Supporters of the marriage bans have argued that the bans advance the States interest in ensuring gender differentiated parenting in which men and women each make distinct parenting contributions. See e.g., Amicus Brief of Citizens for Community Values, Obergefell v. Himes, COA No. 14-3057 at 21-22. But the Supreme Court has long rejected the notion of any universal difference between maternal and paternal relations at every phase of a childs development. Caban v. Mohammed, 441 U.S. 380, 389 (1979); Nevada Dept of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003)(rejecting [s]tereotypes about womens domestic roles and parallel stereotypes presuming a lack of domestic responsibilities for men). Because Ohios marriage bans explicitly classify based on sex, they must like all other laws containing explicit sex classifications be tested within the heightened scrutiny framework.
10 The anti-miscegenation law in Loving also applied unequally to protect the racial integrity of white people but no other racial groups. But the Court made clear that the racial classifications were unconstitutional even assuming an even-handed state purpose to protect the integrity of all races. Loving, 388 U.S. at 11 n.11. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 36 of 48 PAGEID #: 599 28
E. Ohios Marriage Bans Are Unconstitutional Under Any Standard Of Review
If the requisite heightened scrutiny is applied, the State cannot carry its burden to demonstrate how excluding same-sex couples from marriage is at least closely related to an important governmental interest. Nor can the State explain, under the careful consideration required by Windsor, how any legitimate interest overcomes the primary purpose and practical effect of the marriage bans to demean Plaintiffs and other married same-sex couples. 11 Even under rational basis review - the most deferential standard - the marriage bans violate the Equal Protection Clause. Indeed, the arguments in defense of Ohios marriage bans have failed rational basis review in every court to consider them post-Windsor. Bourke, 2014 WL 556729, at *8. 12
1. Under rational-basis review, excluding same-sex couples from marriage must have a rational relationship to a legitimate governmental purpose.
[E]ven in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained. Romer, 517 U.S. at 632. It is this search for the link between classification and objective that gives substance to the Equal Protection Clause. Id. [R]equiring that the classification bear a rational relationship to an independent and legitimate legislative end
11 Though here it is clear that the primary purpose and practice effect of the marriage recognition bans is to demean same-sex couples, see, Section A 2, supra, the Court need not find animus to strike down the bans under rational- basis review. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (allegations of irrational discrimination quite apart from the Villages subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis); Davis, 679 F.3d at 438) (demonstrating that the challenged government action was motivated by animus or ill-will is one, but not the exclusive, way of showing that government lacks a rational basis for its action.). 12 Though the Equality Foundation II Court held that the repeal of sexual orientation-based protections from employment and housing discrimination was rationally related to a legitimate interest in cost savings, 126 F.3d at 299, no such rationale could survive here after Windsor. In defense of DOMA, The Bipartisan Legal Advisory Group (BLAG) asserted the same alleged interest in conserving resources, Merits Brief of Bipartisan Legal Advisory Group of the U.S. House of Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12- 307), 2013 WL 267026, at *37, but the Supreme Court held that no legitimate purpose could justify the inequality and stigma that DOMA imposed on same-sex couples and their families. 133 S. Ct. at 2696. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 37 of 48 PAGEID #: 600 29
ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Id. at 633; accord Cleburne, 473 U.S. at 450; U.S. Dept of Agric. v. Moreno, 413 U.S. 528, 534 (1973). The Supreme Court has sometimes described this impermissible purpose as animus or a bare desire to harm a politically unpopular group. Windsor, 133 S. Ct. at 2693; Romer, 517 U.S. at 634; Cleburne, 473 U.S. at 447; Moreno, 413 U.S. at 534. But an impermissible motive does not always reflect malicious ill will. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375 (2001) (Kennedy, J ., concurring). It can also take the form of moral disapproval, Lawrence, 539 U.S. at 582 (OConnor, J ., concurring), negative attitudes, Cleburne, 473 U.S. at 448, fear, id., irrational prejudice, id. at 450, simple want of careful, rational reflection, Garrett, 531 U.S. at 374 (Kennedy, J ., concurring), or some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Id. In addition, even when the government offers an ostensibly legitimate purpose, the court must also examine the laws connection to that purpose to assess whether it is too attenuated to rationally advance the asserted governmental interest. Cleburne, 473 U.S. at 446; see, e.g., Moreno, 413 U.S. at 535-36 (invalidating law on rational-basis review because even if we were to accept as rational the Governments wholly unsubstantiated assumptions concerning [hippies] we still could not agree with the Governments conclusion that the denial of essential federal food assistance constitutes a rational effort to deal with these concerns); Eisenstadt v. Baird, 405 U.S. 438, 448 (1972) (invalidating law on rational-basis review because, even if deterring premarital sex is a legitimate governmental interest, the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective). Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 38 of 48 PAGEID #: 601 30
This search for a meaningful connection between a classification and the asserted governmental interest also provides an additional safeguard against intentional discrimination. The rationales that have been offered in support of the marriage bans boil down to four arguments: 1) the bans are rationally related to a state interest in proceeding with caution and preserving the will of Ohio legislators and voters; 2) the bans are rationally related to an interest in uniformity; 3) the bans are rationally related to a state interest in preserving tradition; 4) Section 2 of DOMA provides a rational basis for the bans; 5) the bans are justified by a state interest in channeling the procreative potential of heterosexual couples into marriage; and 6) they are justified by a state interest in optimal childrearing. Regardless of the level of scrutiny applied, none of the proffered rationales for Ohios marriage bans can withstand constitutional review. 2. Ohios marriage bans cannot be justified by an asserted interested in proceeding cautiously.
Proceeding cautiously by continuing to deny equal treatment to an unpopular group is not a legitimate state interest. See Pedersen, 881 F. Supp. 2d at 34546 (Categorizing a group of individuals as a vast untested social experiment to justify their exclusion, until long- term evidence is available to establish that such a group will not have a harmful effect upon society is a rationale, which, would eviscerate the doctrine of equal protection by permitting discrimination until equal treatment is proven, by some unknown metric, to be warranted.); see also Golinski, 824 F. Supp. 2d at 1001. If caution and deliberation alone could justify discrimination, the development of civil rights for unpopular groups would be perpetually thwarted, and rational-basis review would mean no judicial review at all. Even if proceeding cautiously were a legitimate interest, the States marriage bans do not rationally advance that interest. Ohios constitutional amendment adopted an absolute ban, Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 39 of 48 PAGEID #: 602 31
unlimited in time, that erected a fundamental barrier to adoption of a different policy. By enshrining the marriage ban in the State Constitution, the voters did not pause and enact a time- specific moratorium to allow more study, but rather ensured a blunt, definitive prohibition that could not be changed without enlisting the citizenry of [Ohio] to amend the State Constitution, yet again. Romer, 517 U.S. at 631. Given the terms of the amendment itself, it is not credible that the State was seeking solely to be cautious. Romer, 517 U.S. at 635. The related rationale of protecting Ohio voters and lawmakers from judicial intrusion is inconsistent with the entire constitutional system. The doctrine of judicial review, a bedrock principle of our system of government, unequivocally empowers and obligates the federal judiciary to scrutinize the constitutionality of legislative action. Pedersen, 881 F. Supp. 2d at 344 (citing Marbury v. Madison, 5 U.S. 137 (1803)). The irreplaceable value of the power articulated by Mr. Chief J ustice Marshall [in Marbury,], the Pedersen Court noted, lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. Id. (citing United States v. Richardson, 418 U.S. 166, 192 (1974)). The need for judicial review is equally, if not more pressing, in the context of voter initiatives. Cf. Romer, 517 U.S. 620 (striking down voter-initiated constitutional Amendment 2 in Colorado banning any legislative, executive or judicial action protecting individuals based on sexual orientation); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982) (striking down voter-initiated school re-districting law). It is government's duty under our constitutional designto safeguard against the tyranny of [majoritarian] passions [and] the need for judicial independence is the greatest when constitutional impairments are instigated by the major voice of the community. Jones v. Bates, 127 F.3d 839 (9th Cir. 1997)(citing Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 40 of 48 PAGEID #: 603 32
Federalist Papers), revd on other grounds sub nom. Bates v. Jones, 131 F.3d 843 (9th Cir. 1997). When the majority revokes a minoritys rights through a popular vote and then claims because we voted so as a legitimate reason for their discrimination, the laws popular origin does nothing to insulate the provision from constitutional scrutiny. Debore, 2014 WL 1100794 at *16. For the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Id. (quoting West Virginia Bd. Of Ed. v. Barnette, 319 U.S. 624, 638 (1943)). Democracy can become tyranny if everything can be put to a vote. 3. Ohios marriage bans cannot be justified by an asserted interest in preserving traditional discrimination.
Tradition, by itself, does not constitute an independent and legitimate legislative end for purposes of rational-basis review. Romer, 517 U.S. at 633. [T]he government must have an interest separate and apart from the fact of tradition itself. Golinski, 824 F. Supp. 2d at 993. Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis. Heller v. Doe by Doe, 509 U.S. 312, 326 (1993). The Supreme Court has on many occasions struck down discriminatory practices that had existed for years without raising any constitutional concerns. Many of our peoples traditions, such as de jure segregation and the total exclusion of women from juries, are now unconstitutional even though they once coexisted with the Equal Protection Clause. J.E.B., 511 U.S. at 142 n.15 (citation omitted); see also id (We do not dispute that this Court long has tolerated the discriminatory use of peremptory challenges, but this is not a reason to continue to do so.); Virginia, 518 U.S. at 557 (A prime part of the history of our Constitution is the story of the extension of constitutional Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 41 of 48 PAGEID #: 604 33
rights and protections to people once ignored or excluded.); Windsor, 133 S. Ct. at 2689 (As we have gained new perspective, a new insight about same-sex couples and their families, we can now see [t]he limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental as an unjust exclusion.). Acknowledging that changed understanding does not mean that people in past generations were irrational or bigoted. It simply acknowledges that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. Lawrence, 539 U.S. at 579. Ultimately, preserving the traditional institution of marriage is just a kinder way of describing the [s]tates moral disapproval of same-sex couples. Lawrence, 539 U.S. at 601 (Scalia, J ., dissenting) (emphasis in original). That intent to discriminate is not a rational basis for perpetuating discrimination. See, e.g., Romer, 517 U.S. at 633; Moreno, 413 U.S. at 534. 4. The marriage bans cannot be justified by an asserted interest in channeling the procreative potential of heterosexual couples into marriage.
The argument that the marriage bans can be justified by the States interest in channel[ing] potentially procreative conduct into stable, enduring relationships (hereafter responsible procreation) is without merit. Amicus Brief of Citizens for Community Values, Obergefell v. Himes, COA No. 14-3057 at 15. The responsible procreation interest advanced here has already been rejected by the Supreme Court. BLAG, defending DOMA in Windsor, asserted the same purported governmental interest in responsible procreation, Merits Brief of Bipartisan Legal Advisory Group of the U.S. House of Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 267026, at *21, and the Supreme Court necessarily rejected that argument when it held that no legitimate purpose could justify the Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 42 of 48 PAGEID #: 605 34
inequality and stigma that DOMA imposed on same-sex couples and their families. 133 S. Ct. at 2696. The Equal Protection Clause prohibits irrational line drawing. BellSouth Telecommunications, Inc. v. Farris, 542 F.3d 499, 505 (6th Cir. 2008). When the government draws a line between two groups, it must come forward with a legitimate reason justifying the line it has drawn. Smith Setzer & Sons, 20 F.3d 1311, 1321 (4th Cir. 1994); see Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612, 618 (1985). The argument that the marriage bans are justified by the States interest in channeling potentially procreative man-woman couples into marriage explains neither why Ohio refuses to allow same-sex couples who have procreated to marry nor why it does allow marriages of different-sex couples who cannot procreate. If the governments interest is ensuring that children be raised by two married parents, that interest applies equally to the children of same-sex couples. And, even if it made sense to describe the state interest underlying marriage laws as addressing only the problem of unplanned pregnancies, this argument does not explain why Ohio allows marriages of all adult couples, including obviously infertile different-sex couples, but not same-sex couples. Nor does it explain how banning marriages between same-sex couples induces man-woman couples to procreate responsibly. Supporters of the marriage bans have argued that under Johnson v. Robison, 415 U.S. 361, 378 (1974), a classification will be upheld if characteristics peculiar to only one group rationally explain the statutes different treatment of the two groups but fail to meet the very standard that they invoke. Amicus Brief of Citizens for Community Values, Obergefell v. Himes, COA No. 14-3057 at 24-25. This argument, however, fails to identify a characteristic peculiar to the favored group that rationally explains the [laws] different treatment of the two Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 43 of 48 PAGEID #: 606 35
groups. Id. If the goal is to persuade couples to marry before or after they conceive a child, the reason has to be that children do better when raised in a family with two parents. But that interest is just as applicable to the children of same-sex couples. Here, same-sex couples and their children will benefit as much from being married in Ohio as different-sex couples and their children do. Thus, the addition of married same-sex couples advances the interest in ensuring that children are raised by two parents. Johnson, 415 U.S. at 38. Finally, Ohios decision not to allow same-sex couples to marry does not logically induce straight couples to marry, to have children, or to have children within marriage. Where there is no logical connection between the classification and the asserted purpose, the law violates equal protection. Hooper, 472 U.S. at 618; see also, Bishop, 962 F. Supp. 2d at 1291 (Marriage is incentivized for naturally procreative couples to precisely the same extent regardless of whether same-sex couples (or other non-procreative couples) are included.) 5. Ohios marriage bans cannot be justified by an asserted interest in optimal childrearing.
Ohios marriage bans do not advance an interest in optimal parenting. Rather than promoting an optimal environment for children, the only effect the bans have on childrens well-being is harming the children of same-sex couples who are denied the protection and stability of having parents who are legally married. Obergefell, 962 F. Supp.2d at 995. Refusing to allow same-sex couples to marry has no rational connection or any connection to the asserted goal of fostering a purportedly optimal parenting environment for the children of heterosexual couples. Indeed, J ustice Kennedy explained [in Windsor] that it was the Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 44 of 48 PAGEID #: 607 36
governments failure to recognize same-sex marriages that harmed children, not having married parents who happened to be of the same sex. Bourke, 2014 WL 556729, at *8. 13
In addition to failing rational-basis review as a matter of logic, the underlying premise that same-sex couples are less optimal parents than different-sex couples has been rejected by every major professional organization dedicated to childrens health and welfare. Many courts have concluded that [t]he overwhelming scientific consensus, based on decades of peer- reviewed scientific research, shows unequivocally that children raised by same-sex couples are just as well adjusted as those raised by heterosexual couples. Obergefell, 962 F. Supp.2d at 994 fn. 20; Bostic, 2014 WL 561978, at *18 (Gay and lesbian couples are as capable as other couples of raising well-adjusted childrenIn the field of developmental psychology, the research supporting this conclusion is accepted beyond serious debate.); DeBoer, 2014 WL 1100794, at *10 (reaching same conclusion after bench trial and concluding that authors of leading studies suggesting otherwise clearly represent a fringe viewpoint that is rejected by the vast majority of their colleagues). The Supreme Courts summary dismissal, more than forty years ago, of the appeal in Baker v. Nelson, 409 U.S. 810 (1972), for want of a substantial federal question, does not control this case. Every court to have considered such bans after Windsor has not only determined that it could reach the merits notwithstanding Baker, but has concluded that the marriage recognition bans at issue violate the Federal Constitution. See, e.g., Bostic, 2014 WL 561978, at *10; Bourke, 2014 WL 556729, at *1; Kitchen, 961 F. Supp. 2d at 1194-95. The State may argue that
13 To the extent that Ohios marriage bans visit these harms on children as a way to attempt (albeit irrationally) to deter other same-sex couples from having children, the Supreme Court has invalidated similar attempts to incentivize parents by punishing children as illogical and unjust. Plyler v. Doe, 457 U.S. 202, 220 (1982) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)). Obviously, no child is responsible for his birth and penalizing the child is an ineffectualas well as unjustway of deterring the parent. Id. (quoting Weber, 406 U.S. at 175). Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 45 of 48 PAGEID #: 608 37
lower courts must follow Baker until the Supreme Court explicitly overrules it. But that rule does not apply to summary dismissals like Baker, which have considerably less precedential value than an opinion on the merits. Ill. State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173, 180-81 (1979). Instead, the Supreme Court has cautioned that, when doctrinal developments indicate otherwise, courts should not adhere to the view that if the Court has branded a question as unsubstantial, it remains so[.] Hicks v. Miranda, 422 U.S. 332, 344 (1975)(internal citations omitted). That admonition should be heeded in this case. Doctrinal developments by the Supreme Court in application of the Equal Protection and Due Process Clauses require that Baker no longer have precedential effect. In the forty years after Baker, there have been manifold changes in the Supreme Courts equal protection jurisprudence. Windsor, 699 F.3d at 178-79. When Baker was decided, the Supreme Court had not yet recognized an intermediate level of heightened equal protection scrutiny or applied such scrutiny to laws that discriminate based on gender or so-called illegitimacy. See Craig v. Boren, 429 U.S. 190, 197 (1976) (striking down gender-based classification under intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 510 (1976) (striking down law that discriminated against children born outside of marriage under intermediate scrutiny). It had not yet struck down laws that target gay and lesbian people, see Romer, 517 U.S. at 635, or invalidated a law enacted in order to treat same-sex couples unequally, see Windsor, 133 S. Ct. at 2693. Certainly the Court had not yet considered a case involving same- sex couples who are legally married, or held that laws must treat those couples and their children with equal dignity. Id. In light of these developments, this court should follow every other court post-Windsor in concluding that Baker does not control challenges to state laws barring a state from allowing Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 46 of 48 PAGEID #: 609 38
marriages of same-sex couples and address the significant constitutional questions presented here. V. CONCLUSION This Court should issue a declaration that Ohio Const. Art. XV, 11 and O.R.C. 3101.01(C), and any other provisions of the Ohio Revised Code that may be relied on to deny same-sex couples the right to marry, violate rights secured by the Fourteenth Amendment to the United States Constitution in that same-sex couples who wish to marry and to enjoy the rights, protections and benefits of marriage provided to opposite-sex married couples under Ohio law, are denied their fundamental right to marry without due process of law and their right to equal protection. This Court should further issue a permanent injunction prohibiting the Defendants and their officers and agents from (a) enforcing the marriage bans, and (b) denying same-sex couples who choose to marry any and all of the rights, protections, and benefits of marriage provided under Ohio law. Finally, the injunctive relief should include but not be limited to requiring Defendants to accept the applications of the Plaintiffs for marriage licenses, issue marriage licenses to the Plaintiffs, and record the Plaintiffs duly solemnized marriage certificates. Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 47 of 48 PAGEID #: 610 39
Respectfully submitted,
Lisa T. Meeks #0062074 NEWMAN & MEEKS Co., LPA 215 E. Ninth Street, Suite 650 Cincinnati, OH 45202 Phone: 513.639.7000 Fax: 513.639.7011 lisameeks@newman-meeks.com Attorney for Plaintiffs
/s/ J ennifer L. Branch J ennifer L. Branch #0038893 Trial Attorney for Plaintiffs Alphonse A. Gerhardstein #0032053 J acklyn Gonzales Martin #0090242 GERHARDSTEIN & BRANCH Co. LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 Phone: 513.621.9100 Ext. 13 Fax: 513. 345-5543 jbranch@gbfirm.com agerhardstein@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on J une 19, 2014, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Courts electronic filing system. Parties may access this filing through the Courts system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically. /s/J ennifer L. Branch Trial Attorney for Plaintiffs