Petition for Writ of Certiorari — Obergefell v. Hodges

Supreme Court brief2015

Ask Donna

What actually matters in this document.

Text

— 4-555

- experre Coun US

Supreme Court of the United tes

a ee rate NOV 14 20%

BRITTANI HENRY, et al., OFFICE OF THE CLERK

Petitioners,

—VY, ——

RICHARD HODGES, IN HIS OFFICIAL CAPACITY AS

DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH, |

Respondent.

JAMES OBERGEFELL, ef ai., ree

Petitioners,

—Yy,—

RICHARD HODGEs, IN HIS OFFICIAL CAPACITY AS

DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

JOINT PETITION FOR A WRIT OF CERTIORARI

Susan L. Sommer Alphonse A. Gerhardstein

M. Currey Cook Counsel of Record

Keith Hammeran Jennifer L. Branch

LAMBDA LEGAL DEFENSE Jacklyn Gonzales Martin

& EDUCATION FUND, INC. Adam Gingold Gerhardstein

320 Wall Street, 19th Floor GERHARDSTEIN

New York, NY 10005 & BRANCH Co. LPA

Counsel for Henry Petitioners 423 Walnut Street, #400

Cincinnati, OH 45202

—_ - > Sanaa (513) 621-9100

Steven ao agerhardstein@gbfirm.com

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Counsel for Obergefell Petitioners

(Counsel continued on inside cover)

——— - - ———— _-— ——_ ea

Jon W. Davidson

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

4421 Wilshire Boulevard,

Suite 280

Los Angeles, CA 90010

Paul D. Castillo

LAMBDA LEGAL DEFENSE

& EDUCATION FUND, INC.

3500 Oak Lawn Avenue, Suite 500

Dallas, TX 75219

Ellen Essig

105 East Fourth Street, Suite 400

Cincinnati, OH 45202

Counsel for Henry Petitioners

Freda J. Levenson

Drew S. Dennis

ACLU oF Onto, INc.

4506 Chester Avenue

Cleveland, OH 44103

Counsel for Obergefell

Petitioners

Lisa T. Meeks

NEWMAN & MEEKS Co., LPA

215 East Ninth Street, Suite 650

Cincinnati, OH 45202

Counsel for All Petitioners

QUESTIONS PRESENTED

1. Whether Ohio’s constitutional and statutory

bans on recognition of marriages of same-sex couples

validly entered in other jurisdictions violate the Due

Process and Equal Protection Clauses of the

Fourteenth Amendment to the U.S. Constitution.

2. Whether Ohio’s refusal to recognize a

judgment of adoption of an Ohio-born child issued to

a same-sex couple by the courts of a sister state

violates the Full Faith and Credit Clause of the U.S.

Constitution.

PARTIES TO THE PROCEEDING

This petition seeks Supreme Court review of two

cases challenging the State of Ohio’s constitutional

and statutory bans on recognition of valid, out-of-

state marriages between persons of the same sex, as

well as to the State’s refusal to recognize an out-of-

state judgment of adoption issued to a same-sex

couple.

Petitioners from Obergefell v. Himes are James

Obergefell, David Brian Michener, and Robert

Grunn.

Petitioners from Henry v. Himes are Brittani

Henry and Brittni Rogers, Georgia Nicole Yorksmith

and Pamela Yorksmith, Kelly Noe and Kelly

McCracken, and Joseph J. Vitale and Robert Talmas

and their son—Adopted Child Doe.

Petitioners were all plaintiffs in the District Court

and appellees in the Court of Appeals.

Respondent is Richard Hodges, who in the course

of the litigation replaced formerly named defendant

Lance D. Himes as Director of the Ohio Department

of Health (“Director”). He is sued in his official

capacity only. An official serving as Director has

been a defendant in the District Court and appellant

in the Court of Appeals in both Obergefell and Henry.

The following persons or entities also were parties

to proceedings below, but are no longer parties:

John Arthur, spouse of Petitioner James

Obergefell, was a plaintiff in the District Court in

Obergefell, but passed away prior to the final

judgment.

Adoption S.T.A.R., Inc. was a plaintiff in the

District Court in Henry and dismissed from the

action, and was an appellee before the Sixth Circuit,

but does not join this petition.

Ohio Governor John Kasich and Ohio Attorney

General Mike DeWine were defendants in the

District Court in Obergefell, but were voluntarily

dismissed from the case prior to the final judgment.

Theodore E. Wymyslo, M.D., in his former

capacity as Director of the Ohio Department of

Health, was a defendant in the District Court in

Obergefell, but was substituted by Lance Himes, his

successor as Director, in the appellate court. Himes

in turn was succeeded as Director by Richard

Hodges, who has been substituted as current

Respondent.

Camille Jones, M.D., in her official capacity as

Registrar of the City of Cincinnati Health

Department Office of Vital Records, was a defendant

in the District Court, but did not appeal from the

final judgment.

TABLE OF CONTENTS

Fe ee Oe IT 0 CE cscicecusevinvececesecsccccencssesesenes i

PARTIES TO THE PROCEEDING ........................... il

ee ee Ge IE setiincisienentnasssesisncvotnnsaneninds vi

JOINT PETITION FOR WRIT OF CERTIORARI.... 1

ITI csscnsunnnicgivepiactntpvasstansnienvibinsiaseiins 1

its inicinieesthcntiennnranancnenesniidinbeenduedeserebibuiignes 2

CONSTITUTIONAL AND STATUTORY

ee BD, Ee Ee 2

STATEMENT OF THE CASE...................csccecseesceeeees 4

REASONS FOR GRANTING THE JOINT

ee iuisinitidedisedncniinteiidinpeiniatdianddnibainiinapibancennaineneess 18

I. The Sixth Circuit Ruling Creates a Split Among

the Circuits on the Rights of Same-Sex Couples

to Recognition of Their Marriages, Deciding

Incorrectly a Constitutional Question of

Pressing Nationwide Importance..................... 19

Il. The Sixth Circuit Ruling Exacerbates a Split

Among the Circuits on a Second Important

Question, the Full Faith and Credit Due a

Sister State’s Adoption Decree. ........................ 30

RES Ee eee ence ae RE He 33

EATS ee eee Oe SRE RE ES Im: la

Opinion, United States Court of Appeals for the

Sixth Circuit, November 6, 2014 .................. la-106a

Order, United States District Court for the

Southern District of Ohio,

PE EEA Re ee een ne 107a-160a

Order, United States District Court for the

Southern District of Ohio,

ig Ee 16la-221a.

TABLE OF AUTHORITIES

CASES

Adar v. Smith, 639 F.3d 146 (5th Cir.), cert. denied,

SO oi ccididdehatamasenaediies 30

Baker v. General Motors Corp.,

EI IR ae ae OI Re beens ee 32

Baker v. Nelson,

4 eS eee ee 14, 21, 22

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014),

cert. denied, 135 S. Ct. 316 (2014) ................. passim

Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014),

cert. denied, 135 S. Ct. 271 (2014)............ 19, 21, 22

Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014),

cert. denied, 135 S. Ct. 308 (2014) ................. passim

Bowen v. Gilliard,

EL EERE ae ena eo nee ee eT 25

Bowers v. Hardwick,

ESE Se a hee ee ee 22

City of Cleburne v. Cleburne Living Ctr.,

TTS a Ee Ee Ee 25

Estin v. Estin,

I a eosteteendoreennibiiad 32

Finstuen v. Crutcher,

Se ee Ae Cee Geen BO ovcdvcccccccctccsecsscccccecs 30

Frontiero v. Richardson,

a sisteeunenseinibenaienen 18

Griswold v. Connecticut,

381 Emm of

Grutter v. Bollinger,

RR eee Ae Ree eee ee 19

Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014),

cert. denied, 135 S. Ct. 265 (2014) ................. passim

Latta v. Otter, No. 14-35420, 2014 WL 4977682

SR a i eenicieeaenioniail passim

Lawrence v. Texas,

EE Ree ae mane ee 22, 23, 28

Loving v. Virginia,

RR _, Nee eaee renee passim

M.L.B. v. S.L.d.,

I 4

Mathews v. Lucas,

ELAR by ie tee ee meee Meee Ce 31

Turner v. Safley,

SI i stiiiesimnailil 15

United States v. Virginia,

US ai i i ae ilenciaiannherpitiialinn 26

United States v. Windsor,

Ee is ED IE ctictcctccccscssccotecdans 20, 24, 25, 27

Windsor v. United States, 699 F.3d 169 (2d Cir.

2012), affd, 133 S. Ct. 2675 (2013)....................... 25

Zablocki v. Redhail,

I a aihiadila 4, 15, 23

STATUTES

oF ge fe lS Oe) eee passim

I i cia iliac eee aelieceaaieleatimehabinilaiiagd 13

| eee 1.3.5

Cate Rev. Code © SIOL.ORC) cccccccccccccccccccccscscccesccss. 1,3

Ohio Rev. Code § 3101 .O1(CU IB) ...ccccccccscscsccccsccscscsccsess 5

ne ls Ne Sir SIE ciiiidcicscdndcndvidencensndndsddntoces 14

Ohio Rev. Code §3705.12(A)-(B) ........................c0e0ee 32

OTHER AUTHORITIES

Marriage Rulings in the Courts, Freedom to Marry,

http://www.freedomtomarry.org/pages/marriage-

rulings-in-the-courts

I IE BUN, ile SOD ictttvccctacncntndccsucccsenscese 20

States, Winning the Freedom to Marry: Progress in

the States, Freedom to Marry,

http://www.freedomtomarry.org/states/

Clas WPOeE BUOY. ], BODE) 2. cccccceccccsccecssccccescvcceces 18

vill

JOINT PETITION FOR WRIT OF CERTIORARI

James Obergefell, David Brian Michener, Robert

Grunn, Brittani Henry, Brittni Rogers, Georgia

Nicole Yorksmith, Pamela Yorksmith, Kelly Noe,

Kelly McCracken, Joseph J. Vitale, Robert Talmas,

and Adopted Child Doe respectfully petition the

Court to grant a writ of certiorari to the United

States Court of Appeals for the Sixth Circuit in the

cases Obergefell v. Himes, No. 14-3057, and Henry v.

Himes, No. 14-3464. This joint petition is permitted

by Supreme Court Rule 12.4 and warranted because

of the identity of legal issues and interests in these

cases.

This Court’s intervention is urgently needed to

correct the division among the circuits created by the

decision below on questions of exceptional

importance, particularly to thousands of same-sex

couples and their children nationwide.

OPINIONS BELOW

Both cases presented by this joint petition

challenge those portions of Ohio’s constitutional and

statutory provisions that deny legal recognition

within the state to marriages entered in other

jurisdictions between same-sex spouses. Ohio Const.

art. XV, § 11; Ohio Rev. Code § 3101.01(C) (the

“marriage bans” or “bans”). Henry also challenges

Ohio’s refusal to accord full faith and credit to the

out-of-state adoption decree obtained by a same-sex

couple.

The two cases were decided by the same judge of

the United States District Court for the Southern

District of Ohio and consolidated by the Sixth Circuit

for purpose of submission on appeal. In a single

opinion, the Sixth Circuit reversed the district court

decisions, along with district court rulings in similar

challenges to marriage restrictions on same-sex

couples in the other Sixth Circuit states, Kentucky,

Michigan, and Tennessee.

The Sixth Circuit’s opinion is not yet published

but available at 2014 WL 5748990 (6th Cir. Nov. 6,

2014), and reprinted in the Appendix at la-106a.

The District Court’s Order Granting Plaintiffs’

Motion for Declaratory Judgment and Permanent

Injunction in Henry v. Himes, is not yet published

but available at 2014 WL 1418395 (S.D. Ohio Apr.

14, 2014), and reprinted in the Appendix at 107a-

60a. The District Court’s Final Order Granting

Plaintiffs’ Motion For Declaratory Judgment and

Permanent Injunction in Obergefell v. Wymyslo, is

published at 962 F. Supp. 2d 968 (S.D. Ohio 2013),

and reprinted in the Appendix at 161a-221a.

JURISDICTION

The judgment of the Court of Appeals was entered

on November 6, 2014. This Court’s jurisdiction rests

on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. XIV, § 1

No State shall . . . deprive any person of life, liberty,

or property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

Ohio Const. art. XV, § 11

Only a union between one man and one woman may

be a marriage valid in or recognized by this state and

its political subdivisions. This state and its political

subdivisions shall not create or recognize a legal

status for relationships of unmarried individuals that

intends to approximate the design, qualities,

significance or effect of marriage.

Ohio Rev. Code § 3101.01(C)

(1) Any marriage between persons of the same sex is

against the strong public policy of this state. Any

marriage between persons of the same sex shall have

no legal force or effect in this state and, if attempted

to be entered into in this state, is void ab initio and

shall not be recognized by this state.

(2) Any marriage entered into by persons of the same

sex in any other jurisdiction shall be considered and

treated in all respects as having no legal force or

effect in this state and shall not be recognized by this

state.

(3) The recognition or extension by the state of the

specific statutory benefits of a legal marriage to

nonmarital relationships between persons of the

same sex or different sexes is against the strong

public policy of this state. Any public act, record, or

judicial proceeding of this state, as defined in section

9.82 of the Revised Code, that extends the specific

statutory benefits of legal marriage to nonmarital

relationships between persons of the same sex or

different sexes is void ab initio. Nothing in division

(C)(3) of this section shall be construed to do either of

the following:

(a) Prohibit the extension of specific benefits

otherwise enjoyed by all persons, married or

unmarried, to nonmarital relationships between

persons of the same sex or different sexes,

including the extension of benefits conferred by any

statute that is not expressly limited to married

persons, which includes but is not limited to

benefits available under Chapter 4117 of the

Revised Code.

(b) Affect the validity of private agreements that

are otherwise valid under the laws of this state.

(4) Any public act, record, or judicial proceeding of

any other state, country, or other jurisdiction outside

this state that extends the specific benefits of legal

marriage to nonmarital relationships between

persons of the same sex or different sexes shall be

considered and treated in all respects as having no

legal force or effect in this state and shall not be

recognized by this state.

STATEMENT OF THE CASE

These cases are about love, from birth to death.

The relationships at the heart of each case involve

the love spouses share, with each other and with the

children they jointly raise, and the love that survives

the death of a spouse. This enduring love has

prompted this Court to hold that “[cJhoices about

marriage” belong to the individual and are “sheltered

by the Fourteenth Amendment against the State’s

unwarranted usurpation, disregard, or disrespect.”

M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996). Yet,

despite this Court’s unequivocal! insistence that the

Fourteenth Amendment encompasses a fundamental

right to marry “for all individuals,” Zablocki uv.

Redhail, 434 U.S. 374, 384 (1978), Ohio singles out

the lawful marriages of lesbians and gay men and

treats them as invalid, turning members of these

committed families into legal strangers.

By disrespecting their marriages. Ohio has done

more than deny Petitioners basic legal rights to

which they are entitled. It has treated Petitioners

as second-class citizens whose most intimate

relationships have been denied the dignity and

respect they deserve.

A. Ohio’s Marriage Recognition Bans

In 2004, a majority of Ohio voters and the state

legislature voted to deny lesbian and gay couples

whose marriages had been performed in other

jurisdictions all constitutional and legal rights of

marriage. First, the Ohio legislature amended Ohio

law to prohibit same-sex couples from marrying in

the State and bar officials from recognizing

marriages entered by persons of the same sex in

other jurisdictions. Ohio Rev. Code § 3101.01(C)(2).

Through the law, supporters in the legislature

sought to ensure that the relationships of same-sex

couples would not become “equal to everyone else’s.”

Pet. App. 167a.

That same year, Ohio voters passed a ballot

initiative adding to the Ohio Constitution an

amendment prohibiting not only the creation or

recognition of marriages between persons of the same

sex in Ohio, but also recognition of any “legal status

... that intends to approximate the design, qualities,

significance or effect of marriage.” Ohio Const. art.

XV, § 11. The campaign in support of the amendment

contained mumerous negative and _ inaccurate

representations of lesbians and gay men, including

warnings to employers that same-sex relationships

“expose gays, lesbians and bisexuals to extreme risks

of sexually transmitted diseases, physical injuries,

mental disorders and even a shortened life span,”

and to voters that “[wle won't have a future unless

[heterosexual] moms and dads have children.” App.

168a.

B. Petitioners

Petitioners include four loving and committed

same-sex couples raising children together, the

adopted child of one of the coup!es, and two widowers

who prematurely lost the loves of their lives. Ohio

does not contest the validity of their out-of-state

marriages; it simply refuses to recognize them.

Accordingly, Petitioners have been denied the full

dignity and financial and emotional benefits Ohio

provides to different-sex spouses, including, most

urgently, the recognition of their marriages on

critical family identification documents such as birth

and death certificates.

1. The Obergefell Petitioners

James Obergefell is a resident of Ohio. When

John Arthur, his partner of two decades, was

diagnosed in 2011 with terminal amyotrophic laterial

sclerosis (“ALS”), James stood by his side and cared

for him through his illness. App. 169a. Determined

to be married before John died, the couple boarded a

medically equipped plane, traveled to Maryland with

the support of friends, and were wed on the tarmac

on July 11, 2013. John died a few months later. Id.

David Michener is also an Ohio resident. He wed

William Ives, his partner of 18 years, on July 22,

2013, in Delaware. One month later, William

tragically died of natural causes. Id.

Following the death of their spouses, James

Obergefell and David Michener each sought death

certificates that acknowledged their marriages to

John and William. Were James and David women,

Ohio would have routinely listed their deceased

spouses as married on the death certificates, and

James and David would have been listed as

surviving spouses. Because each is a man who had

married another man, they were treated by Ohio as

legally unconnected—strangers under the law—to

the person they most loved and had chosen to marry.

The third Obergefell Petitioner, Robert Grunn, is

an Ohio funeral director whose _ responsibilities

involve filling out death certificates, including for

Ohio decedents with spouses of the same sex. These

death certificates are required for burial, cremation,

insurance, and other purposes following death.

2. The Henry Petitioners

Petitioners from Henry include four same-sex

couples who entered into valid marriages outside

Ohio. Three of the four couples are women who

conceived using anonymous donor insemination

(“AID”) and gave birth to children in Ohio during

this litigation. The fourth are married men living

in New York who adopted an Qhio-born child,

also a Petitioner. App. 1i0a. Among other marital

protections, these couples urgently seek accurate

birth certificates listing both spouses as_ the

parents of their respective children. The Ohio

Department of Health routinely issues _ birth

certificates naming as parents different-sex spouses

who jointly adopt or use AID to conceive children.

Yet because of the bans, Ohio has refused to

recognize Petitioners Brittni Rogers, Pam Yorksmith,

and Kelly McCracken (the spouses who are

genetically unrelated to their children) as parents.

App. 113a-15a.

Similarly, Henry Petitioners Joseph Vitale and

Robert Talmas secured a duly-issued order of

adoption from a New York court decreeing both men

the legal parents of Ohio-born Adopted Child Doe.

But Ohio refuses to treat them as it would a

different-sex married couple or to accord the full

faith and credit due their New York adoption decree,

claiming that doing so would violate Ohio public

policy. Instead, Ohio will allow just one of them to

appear on their child’s amended birth certificate.

App. 115-17a.

In addition to their urgent need for accurate birth

certificates, Petitioners seek the full panoply of

protections for their families that come _ with

recognition of a couple’s marriage, ranging from

acknowledgment of parental rights arising under the

marital presumption; to tax, inheritance, and a range

of other financial rights; to health care decision-

making and visitation rights; to federal rights

dependent on the state’s recognition of their marital

status. App. 130a;34a. Petitioners also seek the

dignity that comes from legal respect for their

marriage and commitment to one another and to

their children.

Cc. District Court Proceedings

1. Obergefell v. Wymyslo

On July 19, 2013, Petitioner Obergefell and his

husband filed a complaint against the Director of the

Ohio Department of Health, the Cincinnati Vital

Records Registrar, and the Governor and Attorney

General of Ohio (both of whom subsequently were

voluntarily dismissed), alleging that the marriage

bans, as applied to them, violate constitutional

guarantees of due process and equal protection.

The same day, the couple moved for a temporary

restraining order (“TRO”) requiring Ohio to recognize

their marriage on John’s death certificate should the

need arise. That TRO was granted on July 22, 2013,

and upon John’s death in October, Ohio issued a

death certificate accurately naming James as his

surviving spouse. App. 169a. On September 3, 2013,

Petitioner David Michener joined the case and moved

for a TRO requiring Ohio to recognize his marriage to

and status as surviving spouse on William’s death

certificate. The court granted the TRO the same day.

169a-70a.

On October 29, 2013, the Obergefell Petitioners

moved for a declaratory judgment on their as-applied

claims, and to permanently enjoin the Director and

his officers from applying the marriage recognition

bans against them in issuing death certificates.’ The

‘ While the State has, pursuant to the District Court’s order,

issued accurate death certificates, it has also repeatedly

asserted that it can amend the death certificates issued to the

married decedents in the future to remove references to their

marriages and identification of the Obergefell Petitioners as

record included live testimony from the TRO hearing,

uncontested expert declarations, and declarations

from each plaintiff explaining the impact of the Ohio

marriage bans on their lives. After full briefing and

argument, the District Court granted the motion on

December 23, 2013, ruling “that under the

Constitution of the United States, Ohio must

recognize valid out-of-state marriages between same-

sex couples on Ohio death certificates.” App. 162a.

The -District Court held that “the right to remain

married .. . is a fundamental liberty interest

appropriately protected by the Due Process Clause of

the United States Constitution. . . . Ohio’s marriage

recognition bans violate this fundamental right

without rational! justification.” App. 174a.

The District Court also held that Ohio’s marriage

recognition bans discriminate on the basis of sexual

orientation and fail under both heightened equal

protection scrutiny, App. 203a, and rational basis

review under the Equal Protection Clause, App.

204a.

The court rejected the State’s “vague, speculative,

and unsubstantiated” justifications, which it found

“do not rise anywhere near the level necessary to

counterbalance the _ specific, quantifiable, and

particularized injuries” suffered by the Petitioners.

App. 180a. The court ruled that Ohio’s proffered

interests in preserving “tradition” and proceeding

with “caution” were not legitimate. App. 208a-09a.

their surviving spouses. Br. of Appellant, Obergefell v. Himes,

No. 14-3057, 2014 WL 1512606, at *54 (6th Cir. April 10, 2014).

The court also rejected justifications raised by

amicus about the welfare of children, concluding:

Even if it were rational for legislators to

speculate that children raised by

heterosexual couples are better off than

children raised by gay or lesbian

couples, which it is not, there is simply

no rational connection between the Ohio

marriage recognition bans and the

asserted goal. ... The only effect the

bans have on children’s well-being is

harming the children of same-sex

couples who are denied the protection

and stability of having parents who are

legally married.

App. 209a-lla. The Director filed a timely notice of

appeal of the final judgment; the Cincinnati

Registrar did not appeal.

2. Henry v. Himes

On February 10, 2014, the Henry Petitioners

filed suit against Respondent and the Cincinnati

Vital Records Registrar, asserting that Ohio’s

refusal to respect their marriages violates federal

constitutional guarantees of due process, equal

protection, and the right to travel. Henry went

“beyond the as-applied challenge pursued in

Obergefell,” alleging more broadly that no set of

circumstances exist under which the marriage

recognition bans can be validly applied. App. 118a.

The suit also asserted that Ohio’s refusal to recognize

the Vitale-Talmas adoption decree violates full faith

and credit. The record includes uncontested expert

declarations, and declarations from each plaintiff

explaining the impact of the Ohio marriage bans on

their lives. After full briefing and argument, the

District Court issued a declaratory judgment and

permanent injunction in Petitioners’ favor on April

14, 2014. App. 150a.

Drawing from its analysis in Obergefell, the

District Court held that “Ohio’s refusal to recognize

same-sex marriages performed in other jurisdictions

violates the substantive due process rights of the

parties to those marriages” by depriving them “of

their rights to marry, to remain married, and to

effectively parent their children, absent a sufficient

articulated state interest for doing so.” App. 137a.

Respondent, the court concluded, had “again failed to

provide evidence of any state interest compelling

enough to counteract the harm Plaintiffs suffer when

they lose this immensely important dignity, status,

recognition, and protection, as such a state interest

does not exist.” Jd. The court found “specious”

Respondent’s “repeated appeal to the purportedly

sacred nature of the will of Ohio’s voters,” given the

federal Constitution’s supremacy. App. 135a.

The District Court in Henry also reaffirmed

Obergefell’s holding that Ohio’s marriage recognition

bans discriminate on the basis of sexual orientation

and therefore warrant heightened equal protection

scrutiny, App. 142a-43a, though they also fail

rational basis review, App. 144a. Having already

“considered and_ rejected as_ illegitimate and

irrational any purported State interests justifying

the marriage recognition bans” in Obergefell, the

court determined that “[a]ll advanced interests are as

inadequate now as they were several months ago.”

App. 145a.

Because the record—including the judicially

noticed record of Obergefell—was “staggeringly

devoid of any legitimate justification for the State’s

ongoing arbitrary discrimination on the basis of

sexual orientation,” the court declared the marriage

bans “facially unconstitutional and unenforceable

under any circumstances.” App. 108a. In so holding,

the court cited the judiciary’s “responsibility to give

meaning and effect to the guarantees of the federal

constitution for all American citizens,” which is

“never more pressing than when the fundamental

rights of some minority citizens are impacted by the

legislative power of the majority.” Jd. Recognizing

the severe irreparable harm suffered by Petitioners—

and particularly their children—the court

permanently enjoined Respondent and his officers

and agents from enforcing the bans. App. 150a-5la.

The District Court also granted the Vitale-Talmas

family’s distinct full faith and credit claim to enforce

the New York adoption decree. The court held that

violations of full faith and credit by the State are

subject to federal challenge under 42 U.S.C. § 1983.

It concluded that the full faith and credit guarantee

requires Ohio to grant full recognition to the Vitale-

Talmas family’s adoption decree, including for

purposes of issuing a birth certificate correctly

identifying both men as parents. App. 148a, 153a

n.i. The court enjoined Respondent from denying

full faith and credit to decrees of adoption duly

obtained by same-sex couples in other jurisdictions.

App. 15la.

The court subsequently stayed its mandate except

as to the Petitioners’ children’s birth certificates.

App. 152a.”

3. The Sixth Circuit Decision

Respondent’s appeals in Obergefell and Henry

were consolidated by the Sixth Circuit. Both cases

were argued on August 6, 2014, along with four

related appeals from district court decisions striking

down marriage or recognition bans in Kentucky,

Tennessee, and Michigan.

On November 6, 2014, a divided panel of the

Sixth Circuit reversed the lower courts in all six

cases. The majority began by framing the ultimate

issue before the court as “[w]ho decides”——the federal

courts or the state democratic processes? App. 16a.

Opining that it is “[bJetter” to leave social change to

“the customary political processes,” the majority

concluded that the courts should not “resolve new

social issues like this one.” App. 69a.

The court decided as a threshold matter that it

was bound to reject Petitioners’ claims based on this

Court’s one-line, summary dismissal more than forty

years ago of a challenge to Minnesota’s refusal to

issue a marriage license to a same-sex couple in

Baker v. Nelson, 409 U.S. 810, 810 (1972). App. 24a.

* Each child of the Henry Petitioner couples was issued a birth

certificate listing both of his or her parents pursuant to the

order of the District Court. App. 15la. Respondent included on

these birth certificates special notations that they were issued

pursuant to the District Court’s order, and the certificates are

susceptible to amendment under Ohio Rev. Code § 3705.22.

Rather than end its opinion there, however, the

majority went on to address the merits of the

constitutional arguments raised by the plaintiffs in

the six cases and concluded that none makes the case

for “removing the issue from . . . the hands of state

voters.” App. 29a.

The court held that the marriage bans did not

infringe upon the fundamental right to marry,

reasoning that a “right to gay marriage” neither

appears in the Constitution nor is premised on

“bedrock assumptions about liberty.” App. 47a-48a.

It dismissed the significance of this Court’s decisions

in Loving v. Virginia, 388 U.S. 1 (1967), Zablocki,

434 U.S. at 383, and Turner v. Safley, 482 U.S. 78,

94-95 (1987), on the ground that the right to marry

identified in those cases is “tethered to biology” and

procreation. App. 49a.

Citing circuit precedent holding that rational

basis review applies to sexual orientation

classifications, the court rejected the argument that

the marriage bans trigger heightened equal

protection scrutiny. The court also reasoned that

heightened scrutiny is unwarranted because,

although gay people have experienced prejudice in

this country, “the institution of marriage arose

independently of this record of discrimination”; thus,

“It]he order of events prevents us from inferring from

history that prejudice against gays led to the

traditional definition of marriage... .” App. 53a.

Noting political successes by lesbians and gay men in

other contexts, the majority determined that the case

did not present a “setting in which ‘political

powerlessness’ requires ‘extraordinary protection

from the political process.” App. 56a-57a.

Applying rational basis review, the _ court

determined that two purported rationales suffice to

meet this standard: i) the marriage bans rationally

further the government’s interest in regulating male-

female relationships because of their procreative

capacity and “risk of unintended offspring,” App 5a-

36a, and 11) the government’s desire to “wait ana see”

and rely on the democratic process to change a long-

accepted norm. App. 36a-37a. The court further held

that the marriage bans were not driven by animosity

towards lesbians and gay men or designed to make

this group unequal to everyone else. App. 42a.

The majority acknowledged that the marriage

bans deprive same-sex couples and their families of

“benefits that range from the profound (the right to

visit someone in a hospital as a spouse or parent) to

the mundane (the right to file joint tax returns)” and

that “[t]hese harms affect not only gay couples but

also their children.” App. 40a. The majority noted

that it was questionable whether the purported

benefits of the marriage bans justified those harms

but nevertheless concluded that the issue must be

left to the democratic process. According to the

majority, “[t]he question demands an answer—but

from elected legislators, not life-tenured judges.” Id.

The majority also held that the states’ refusal to

recognize the marriages of same-sex couples entered

in other states does not violate the nght to due

process or equal protection largely for the same

reasons it rejected these challenges to the prohibition

against marrying within the states. And, it held that

non-recognition does not violate the right to travel

because non-residents are treated the same as

citizens of the domicile state. App. 63a-68a.

Although the majority did not specifically

address the Vitale-Talmas Petitioners’ full faith and

credit claim, its blanket reversal of all six lower court

decisions reversed the Ohio district court’s ruling on

this claim as well.

Judge Daughtrey dissented, noting that “under

our constitutional system, the courts are assigned

the responsibility of determining individual rights

under the Fourteenth Amendment, regardless of

popular opinion or even a plebiscite.” App. 101a.

The dissent deemed a thorough explication of the

legal basis for striking down the marriage bans

unnecessary, citing with approval the recent opinions

of the Fourth, Seventh, Ninth, and Tenth Circuits on

the same questions. App. 86a-87a. See Kitchen v.

Herbert, 755 F.3d 1193 (10th Cir. 2014), cert. denied,

135 S. Ct. 265 (2014), Bostic v. Schaefer, 760 F.3d

352 (4th Cir. 2014), cert. denied, 135 S. Ct. 308

(2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir.

2014), cert. denied, 135 S. Ct. 316 (2014); Latta uv.

Otter, No. 14-35420, 2014 WL 4977682 (9th Cir. Oct.

7, 2014).

However, the dissenting opinion specifically

addressed and rejected the rationales for the

marriage bans accepted by the majority. In rejecting

the “irresponsible procreation” rationale, Judge

Daughtrey noted that while the majority views

marriage as “an institution conceived for the purpose

of providing a stable family unit ‘within which

children may flourish,’ they ignore the destabilizing

effect of its absence in the homes of tens of thousands

of same-sex parents throughout the four states of the

Sixth Circuit.” App. 72a.

With respect to the “wait and see” rationale, the

dissent again emphasized the court’s responsibility to

decide cases involving individual rights, noting that

this same argument was raised and rejected in

Loving and Frontiero v. Richardson, 411 U.S. 677

(1973). App. 103a. Judge Daughtrey concluded her

dissent by stating that “[iJf we in the judiciary do not

have the authority, and indeed the responsibility, to

right fundamental wrongs left excused by a majwuvity

of the electorate, our whole intricate, constitutional

system of checks and balances, as well as the oaths

to which we swore, prove to be nothing but shams.”

App. 106a.

REASONS FOR GRANTING

THE JOINT PETITION

The Sixth Circuit majority’s ruling robs married

same-sex spouses and their children of dignity and

legal respect from cradle to grave. It squarely and

irreconcilably conflicts with four other circuits on a

question of pressing national importance—the right

of committed same-sex spouses to lead their lives as

married, protect each other and their children

through marriage, and move securely among the

states. The ruling can be expected to breed chaos

in the courts, among employers, and, most

fundamentally, in the lives of thousands of lesbian

and gay families, who will have no assurance when

they cross state lines that they will carry their

marital statuses with them. More than 62 percent of

the country lives in a state where same-sex couples

can now marry. See States, Winning the Freedom to

Marry: Progress in the States, Freedom to Marry,

http://www.freedomtomarry.org/states/ (last updated

Nov. 6, 2014). Ohio’s refusal to respect marriages

entered in those jurisdictions creates an intolerable

situation for lesbian and gay spouses living, working,

visiting, or otherwise having interactions in Ohio.

The Sixth Circuit decision hkewise exacerbates a

split in the circuits on a separate question also

deeply important to same-sex families and their

children—whether a state must accord full faith and

credit to sister state judgments of adoption of

children parented by same-sex couples.

The Ohio cases present excellent vehicles to

resolve these issues now dividing the circuits and

affecting families throughout the nation.

I. The Sixth Circuit Ruling Creates a Split

Among the Circuits on the Rights of

Same-Sex Couples to Recognition of Their

Marriages, Deciding Incorrectly uw

Constitutional Question of Pressing

Nationwide Importance.

1. The Sixth Circuit decision is in direct conflict

with recent rulings of the Fourth, Seventh. Ninth,

and Tenth Circuits, which each—correctly—declared

unconstitutional state bans on the right to marry and

on recognition of out-of-state marriages of same-sex

couples. Bostic, 760 F.3d 352; Baskin, 766 F.3d 648;

Latta, 2014 WL 4977682; Kitchen, 755 F.3d 1193;

Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014), cert.

denied, 135 S. Ct. 271 (2014). Only this Court can

resolve this split among the circuits on a question of

undeniable national significance. See, e.g., Grutter v.

Bollinger, 539 U.S. 306, 322 (2003) (certiorari

granted “to resolve the disagreement among the

Courts of Appeals on a question of national

importance”).

2. The Sixth Circuit’s departure from its sister

circuits—as well as from the overwhelming

consensus among lower federal and state courts

addressing constitutionally-guaranteed marriage

rights for same-sex couples post-United States v.

Windsor, 133 S. Ct. 2675 (2013)—<carries profound

life-long consequences for thousands of families

in Ohio and throughout the nation. See Marriage

Rulings in the Courts, Freedom to Marry,

http://www .freedomtomarry.org/pages/marriage-

rulings-in-the-courts (last updated Nov. 12, 2014)

(gathering cases). Same-sex couples living in Ohio

cannot get married at home. Those who travel to

other states to wed are stripped of their status as

married spouses and the extensive legal rights that

come with it when they return home. As this Court

has observed, those rights span “the mundane to the

profound.” Windsor, 133 S. Ct. at 2694.

The Sixth Circuit decision also leaves children

with same-sex parents unable to obtain even a

birth certificate that accurately describes their

families, much less have the security of a

government-recognized parent-child relationship.

Birth certificates are the basic currency allowing

parents to fulfill their constitutionally-protected

right to care for their children, providing prime

evidence of parentage and allowing adults to make

critical health care decisions for their children, enroll

their children in school, insure their children, and

freely travel with their children. Windsor decried

precisely the injuries the Sixth Circuit’s decision

allows Ohio to impose on children in Ohio and

beyond: the “humiliat[ion],” id.; “financial harm,” id.

at 2695; and “stigma,” id. at 2693, inflicted on these

children by governmental disrespect for their

parents’ marriages. “[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. at 2694.

The Sixth Circuit’s decision inflicts a final blow

even after death, denying deceased spouses and

grieving widowers the dignity and legal rights that

flow from a death certificate acknowledging their

marriage and legal commitment.

3. At multiple junctures throughout its opinion,

the Sixth Circuit majority made critical errors of law,

heightening the need for intervention by this Court.

While the majority opinion is riddled with flaws, the

following summarizes several major missteps and

departures from the correct reasoning that guided

the other circuits.

First, the majority held that this Court’s 1972

summary dismissal of the appeal in Baker for lack of

a substantial federal question forecloses review by all

lower courts of challenges to state bans on marriage

rights for same-sex couples. App. 24a-25a. Yet all

four other circuits considering the issue correctly

concluded that Baker has been superseded by

intervening doctrinal developments clearly rendering

the federal question “not only substantial but

pressing.” Latta, 2014 WL 4977682, at *3; see also

Baskin, 766 F.3d at 659-60; Bostic, 760 F.3d at 373-

75; Bishop, 760 F.3d at 1079-80; Kitchen, 755 F.3d at

1204-08. The Sixth Circuit majority’s continued

reliance on Baker ignores decades of doctrinal

developments in this Court, plunging the nation back

into Baker’s “dark ages .. . fof] litigation over

discriminations against” lesbian and gay people.

Baskin, 766 F.3d at 660. Its reasoning, though

wrong, leaves this the sole court in the nation able to

consider the merits of a federal constitutional

challenge to discriminatory marriage laws like

Ohio’s. Under the Sixth Circuit’s holding, this is the

Court of only resort for same-sex families subjected

to discriminatory state marriage restrictions.

Second, in ruling, incorrectly, that the well-

settled fundamental right to marry and to

recognition of one’s marriage does not encompass

same-sex couples, App. 47a-51a, the court below split

from well-reasoned decisions of the Fourth and Tenth

Circuits, Bostic, 760 F.3d at 377 (the fundamental

right to marry includes the right to marry a spouse of

the same sex); Kitchen, 755 F.3d at 1218; Bishop, 760

F.3d at 1079-80.

As this Court’s jurisprudence teaches, same-sex

couples cannot be excluded from the fundamental

right to marry by dismissing their claimed right as a

“new” right to “same-sex marriage.” The Sixth

Circuit’s mischaracterization of the fundamental

right at issue repeats the mistake of Bowers uv.

Hardwick, 478 U.S. 186 (1986), which erroneously

framed the issue in that case as whether the

Constitution protects a “fundamental right [for]

homosexuals to engage in sodomy’—and thereby

“fail[ed] to appreciate the extent of the liberty at

stake.” Lawrence v. Texas, 539 U.S. 558, 566-67

(2003). Reversing Bowers, this Court explained in

Lawrence: “Our laws’ and ££ tradition = afford

constitutional protection to personal decisions

relating to marriage, procreation, contraception,

family relationships, child rearing, and education,”

and “[plersons in a homosexual relationship may

seek autonomy for these purposes, just as

heterosexual persons do.” Id. at 574. Lawrence thus

demonstrates “that the choices that individuals make

in the context of same-sex relationships enjoy the

same constitutional protection as the _ choices

accompanying opposite-sex relationships.” Bostic,

760 F.3d at 377. Same-sex couples have been denied

this autonomy by the Ohio bans, which withhold only

from them the constitutional protections for their

marriages secured to “all individuals.” Zablocki, 434

U.S. at 384 (emphasis added).

The Sixth Circuit also disregarded a central

holding in Loving, which made emphatically clear

that couples have fundamental rights to have their

marriages accorded legal recognition and protection

not just in the jurisdictions where the marriages

were celebrated, but also across state lines. The

fundamental right to marry would be meaningless if

states could deny a whole class of married spouses

the dignity and legal protections that come with

respect for their marriages once entered. In Loving,

this Court struck down not only Virginia’s

prohibition on interracial marriages within the state,

but also its statutes denying recognition to and

criminally punishing such marriages entered outside

the state. 388 U.S. at 4. Significantly, this Court

held that Virginia’s statutory scheme, including its

penalties imposed on out-of-state marriages and

voiding of marriages obtained elsewhere, “deprive[d]

the Lovings of liberty without due process of law in

violation of the Due Process Clause of the Fourteenth

Amendment.” /d. at 12.

After all, only when the wedding is over, the

guests are gone, and the couple returns home as

spouses does marriage as “a way of life” commence.

Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

But as soon as married same-sex couples step foot in

Ohio, the bans strip them of their rights and dignity

as married spouses. Moreover, the bans’ categorical

refusal to give effect to marriages entered in other

jurisdictions between spouses of the same sex is an

unprecedented departure from Ohio's historical

recognition of out-of-state marriages of all other

couples, even of those barred from marrying under

Ohio law. App. 190a-92a. Had Petitioners married

different-sex spouses, Ohio would have welcomed the

newlyweds with open arms, granting full legal

recognition to their marriages and to their parental

rights and responsibilities. The Ohio marriage bans

thus strike at the heart of the liberty afforded

Petitioners under the Fourteenth Amendment.

Third, in holding that the marriage bans’

discrimination on the basis of sexual orientation

warrants only rational basis review, the Sixth Circuit

departed from the Seventh and Ninth Circuits, as

well as from the Second Circuit’s earlier decision in

Windsor, which correctly held that such

discrimination warrants heightened equal protection

scrutiny. Compare App. 51la-53a, 56a-57a, with

Baskin, 766 F.3d at 654 (“{(Mjore than a reasonable

basis is required because this is a case in which the

challenged discrimination is .. . ‘along suspect

lines.” (citation omitted)); Latta, 2014 WL 4977682,

at *4 (“In its words and its deed, Windsor established

a level of scrutiny for classifications based on sexual

orientation that is unquestionably higher than

rational basis review. In other words, Windsor

requires that heightened scrutiny be applied to equal

protection claims involving sexual orientation.”

(quotations and citation omitted)); Windsor v. United

States, 699 F.3d 169, 185 (2d Cir. 2012), affd, 133 S.

Ct. 2675 (2013). The Sixth Circuit is the only federal

court of appeals since this Court’s decision in

Windsor to apply minimal rational basis review and

accord a presumption of constitutionality to

discrimination based on sexual orientation.

The considerations this Court has applied to

determine whether a particular form of

discrimination involves a suspect classification all

point in the same direction with respect to

classifications based on sexual orientation. See

generally Bowen v. Gilliard, 483 U.S. 587, 602-03

(1987); City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 442-47 (1985). Lesbians and gay men as a

class have historically been subjected to massive

discrimination, and their sexual orientation bears

no relation to their ability to contribute to society.

Though not critical factors to determine heightened

scrutiny, they also are distinguished by a

characteristic that is immutable or so fundamental to

personal identity that they should not be required to

try to change it to avoid discrimination, and they

continue to lack sufficient political power to protect

themselves through the political process. See

Windsor, 699 F.3d at 185.

Heightened scrutiny is also appropriate for the

simple reason that an explicit gender classification

appears on the face of the marriage bans, which also

discriminate based on sex stereotypes regarding

purportedly socially-acceptable gendered roles for

men and women in marriage and childrearing. See,

e.g., United States v. Virginia, 518 U.S. 515, 531, 533

(1996); Latta, 2014 WL 4977682, at *19-22 (Berzon,

J., concurring).

Fourth, the Sixth Circuit decision conflicts with

the other circuit courts to address the question,

which all have rejected the notion that marriage

bans can be justified by a purported government

interest in channeling heterosexual procreative

sexual activity into marriage. App. 35a-36a. As

Judge Posner concluded for the Seventh Circuit, a

procreation-based justification for marriage

discrimination is “so full of holes that it cannot be

taken seriously.” Baskin, 766 F.3d at 656; Latta,

2014 WL 4977682, at *6 (argument “runs off the

rails” in suggesting that marriage’s stabilizing and

unifying force is unnecessary for same-sex couples or

their children); Bostic, 760 F.3d at 381-83; Kitchen,

755 F.3d at 1224. Indeed, this justification is so

without merit that Respondent did not even advance

it in defense of Ohio’s marriage bans.

Fifth, particularly troubling in its implications

for our constitutional democracy and the role of

federal courts as protectors of minority rights, the

Sixth Circuit concluded that leaving in the hands of a

state’s voting majority, rather than the courts,

whether and when to extend rights and protections

to same-sex couples and their families is an interest

in itself that justifies perpetuating the marriage

bans. Here too, the Sixth Circuit departed from its

sister circuits, which have recognized that this

argument dangerously abdicates the judiciary’s

constitutional responsibility to enforce the rights of

even unpopular minorities. Kitchen, 755 F.3d at 1229

(“the value of democratic decision-making” is a

“prudential concern[],” but “the judiciary is not

empowered to pick and choose the timing of its

decisions,” nor can “the experimental value of

federalism . .. overcome plaintiffs’ rights”); Bostic,

760 F.3d at 378-80 (“Windsor does not teach us that

federalism principles can justify depriving

individuals of their constitutional rights; it reiterates

Loving’s admonition that the states must exercise

their authority without trampling constitutional

guarantees.”); Baskin, 766 F.3d at 671 (“Minorities

trampled on by the democratic process have recourse

to the courts; the recourse is called constitutional

law.”); Latta, 2014 WL 4977682, at *9.

The Sixth Circuit majority also departed from

this Court’s explicit teaching in Windsor, which

reiterated that, while “the definition and regulation

of marriage .. . has been treated as being within the

authority and realm of the separate States .. . /s]tate

laws defining and regulating marriage, of course,

must respect the constitutional rights of persons.”

Windsor, 133 S. Ct. at 2690-91 (emphasis added); id.

at 2692 (“The States’ interest in defining and

regulating the marital relation [fis] subject to

constitutional guarantees.” (emphasis added)); id.

(“DOMA rejects the long-established precept that the

incidents, benefits, and obligations of marriage are

uniform for all married couples within each State,

though they may vary, subject to constitutional

guarantees, from one State to the next.”) (emphasis

added).

The prospect that, some day, an Ohio majority

might repeal the marriage bans is cold comfort to the

children of Petitioner couples and others reared by

same-sex parents, who are left without legal

protections for their parent-child relationships, or

even accurate birth certificates. And it provides no

solace to same-sex spouses facing the end of their

lives, or to grieving widows and widowers, denied the

dignity of death certificates acknowledging their

marriages. These families urgently need this Court’s

intervention. To these Americans, there is no more

pressing question.

4. For signposts that we have surely reached the

juncture when this nationally important civil rights

question is ripe for decision by this Court, we need

look no further than Loving and Lawrence. By 1967,

when the Court entered the national debate over race

and interracial marriage, 16 states still had anti-

miscegenation laws in force—though in the 15 years

prior, 14 had repealed such laws. Loving, 388 U.S. at

6n.5. Rather than wait for the last of these laws to

be dismantled through “democratic processes,” this

Court struck down the remaining state bans, holding

that “[uJnder 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.”

Id. at 12.

Similarly, prior to 1961, all 50 states outlawed

sodomy; by 1986, 24 states maintained such laws.

Lawrence, 539 U.S. at 572. By 2003, when this Court

took up the issue and ruled in Lawrence that these

prohibitions unconstitutionally infringed individual

liberties and stigmatized lesbian and gay Americans,

13 states still had such bans in force. Z/d. at 573.

This Court did not leave the nghts of this minority to

be finally resolved through “democratic processes,”

instead ruling that “[ajs the Constitution endures,

persons in every generation can invoke its principles

in their own search for greater freedom.” Jd. at 579.

Today, 16 states still refuse recognition to the

marriage rights of same-sex couples—-Ohio and the

three other Sixth Circuit states included. The

current landscape for marriage recognition for same-

sex couples thus looks much the same as it did in

1967 for interracial couples and in 2003 for same-sex

intimate partners. There is no more reason the

courts should abdicate their role to _ enforce

Petitioners’ constitutional rights today than existed

in 1967 or 2003. Petitioners, for themselves and

their children, invoke the Constitution in their own

search for greater freedom, and turn to this Court for

protection of the liberties denied them in the political

forum.

5. Marriage is a status of profound personal and

legal significance carried by two spouses as they

travel throughout their lives and throughout this

country. But not just the couple relies on certainty

that their marital status will be respected at all

times and in all places; countless third parties—

ranging from family members, to employers, to

creditors, to state and federal government entities—

do as well. Ohio’s refusal to accord respect to marital

statuses conferred by sister states, condoned by the

Sixth Circuit majority, breeds confusion and

uncertainty well beyond Ohio’s borders. The Sixth

Circuit majority focused on deference to state

sovereignty in the domestic relations realm, giving

short shrift not only to the individual constitutional

rights of the Petitioners, but also to the interstate

and national implications of a state’s wholesale

refusal to recognize marital statuses for an entire

class of people married in sister states. The Sixth

Circuit’s ruling impairs the ability of married same-

sex couples, their families, and third parties to

interact across state lines, and offends the interests

of other jurisdictions in certainty about the marital

statuses and rights of same-sex spouses.

This combination of cases highlights the cradle-

to-grave implications of recognition of out-of-state

marriages. They involve Petitioners both who reside

in Ohio but married elsewhere, and—in the Vitale-

Talmas family—reside in the state where they

married and adopted their child, yet have no choice

but to depend on Ohio’s recognition of their family for

critical protections for their Ohio-born child. Ohio's

marriage bans cast a long shadow, raising questions

about far more than the State’s sovereignty over its

own citizens.

II. The Sixth Circuit Ruling Exacerbates a

Split Among the Circuits on a Second

Important Question, the Full Faith and

Credit Due a Sister State’s Adoption Decree.

The Sixth Circuit’s reversal of the lower court’s

decision also intolerably exacerbates a split already

dividing the Fifth and Tenth Circuits on a separate

question—whether the Full Faith and Credit Clause

requires a state to honor a judgment of adoption from

the courts of a sister state for purposes of issuing a

birth certificate naming both of the adopted child’s

same-sex parents. Compare Adar v. Smith, 639 F.3d

146 (5th Cir.) (en banc), cert. denied, 132 S. Ct. 400

(2011) (holding Louisiana not obligated to accord full

faith and credit to out-of-state adoption decree for

purpose of naming both fathers on their Louisiana-

born adopted child’s birth certificate), with Finstuen

v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) (holding

the contrary, in Oklahoma challenge). This Court

should accept review to resolve the widening split in

the circuits on this issue. Regardless of whether

states like Ohio may deny recognition of marriages of

same-sex couples, families headed by same-sex

couples, whether married or not, must be able to rely

on out-of-state judgments of adoption to safeguard

their children.

Because Ohio disapproves of adoption by same-

sex couples, Respondent refused to issue # corrected

birth certificate identifying both of Adopted Child

Doe’s fathers, Joseph Vitale and David Talmas, as

the Ohio-born child’s parents. The State has

volunteered to identify only one, but not both, of the

child’s parents on his birth certificate, offering only

half faith and credit to this family. App. 115a-17a,

154a-55a. The Sixth Circuit’s reversal, without

comment, of the lower court’s order that Ohio must

enforce the adoption decree, recognize both men as

parents, and issue a corrected birth certificate leaves

Adopted Child Doe and other Ohio-born adopted

children without the birth certificates they need to

travel through life with the protection of two parents.

It leaves the Vitale-Talmas family and other families

like them fearful even to step foot in Ohio with their

adopted child. It allows Ohio to “visit[] condemnation

upon the child in order to express society's

disapproval” of his parents, which this Court has

held “illogical and unjust.” Mathews v. Lucas, 427

U.S. 495, 505 (1976). And it may embolden even

more states to disregard their full faith and credit

obligations when it comes to same-sex couples and

their families.

Like every other state, Ohio has recognized by

statute that it is critical to provide adopted children

born in the state with amended birth certificates

naming their adoptive parents. Ohio Rev. Code

§3705.12(A)-(B). Consistent with the requirements

of the Full Faith and Credit Clause, for some time,

Ohio applied this statute upon receipt of an adoption

decree from another state without regard to the sex

or marital] status of the adoptive parents. App. 154a

n.i. But in recent years, the Department of Health

has disregarded its obligations to give full faith and

credit to out-of-state adoption decrees and denied

children adopted by same-sex couples accurate

amended birth certificates, based on asserted Ohio

public policy prohibiting adoption by unmarried

couples. Id.

The district court correctly ruled that “[t}his

backward evolution in Ohio” violates the guarantee

of full faith and credit. App. 154a-55a n.i. This

Court has long made clear that states cannot

disregard foreign judgments based on their own

public policy preferences. Baker v. General Motors

Corp., 522 U.S. 222, 232-33 (1998) (“[O]ur decisions

support no roving ‘public policy exception’ to the full

faith and credit due judgments” (citation omitted));

id. at 243 (Kennedy, J., concurring) (“We have often

recognized the second State’s obligation to give effect

to another State’s judgments even when the law

underlying those judgments contravenes the public

policy of the second State.”). Instead, the Full Faith

and Credit Clause “ordered submission by one State

even to hostile policies reflected in the judgment of

another State, because the practical operation of the

federal system ... demanded it.” Estin v. Estin, 334

U.S. 541, 546 (1948).

The Sixth Circuit’s alignment with the Fifth

Circuit, rather than the Tenth Circuit, further erodes

the bulwark of the Full Faith and Credit Clause for

same-sex couples who depend on the enforceability of

adoption and other judicial decrees by states whose

public policies remain inhospitable to their families.

The rulings of the Fifth and now Sixth Circuits

undercut key guarantees that underlie our federal

system of government and that knit the states into

one nation.

Worst of all, the Sixth Circuit’s reversal falls

hardest on a little boy. Petitioner Adopted Child

Doe, unlike other Ohio-born children, is denied

something as basic, yet critical, as a birth certificate

that simply names his two parents.

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that the Court grant their joint petition for a

writ of certiorari.

Respectfully submitted,

Alphonse A. Gerhardstein

Counsel of Record

Jennifer L. Branch

Jacklyn Gonzales Martin

Adam Gingold Gerhardstein

GERHARDSTEIN & BRANCH Co.

LPA

423 Walnut Street, #400

Cincinnati, OH 45202

(513) 621-9100

agerhardstein@gbfirm.com

Counsel for Henry Petitioners

Susan L. Sommer

M. Currey Cook

Keith Hammeran

LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC.

120 Wall Street, 19th Floor

New York, NY 10005

Jon W. Davidson

LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC.

4421 Wilshire Boulevard,

Suite 280

Los Angeles, CA 90010

Paul D. Castillo

LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC

3500 Oak Lawn Avenue,

Suite 500

Dallas, TX 75219

Ellen Essig

105 East Fourth Street,

Suite 400

Cincinnati, OH 45202

Counsel for Obergefell Petitioners

James D. Esseks

Chase B. Strangio

Steven R. Shapiro

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Freda J. Levenson

Drew S. Dennis

ACLU OF OHIO, INC.

4506 Chester Avenue

Cleveland, OH 44103

Counsel for All Petitioners

Lisa T. Meeks

NEWMAN & MEEKS Co., LPA

215 East Ninth Street,

Suite 650

Cincinnati, OH 45202

Date: November 14, 2014

APPENDIX

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit 1.0.P. 32.1(b)

File Name: 14a0275p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 14-1341; 3057; 3464; 5291; 5297; 5818

14-1341

APRIL DEBOER, et al.,

Plaintiffs-Appellees,

RICHARD SNYDER, Governor, State of Michigan,

in his official capacity, et al.,

Defendants-Appellants.

14-3057

JAMES OBERGEF ELL, et al.,

Plaintiffs-Appellees,

RICHARD HODGES, Director of the Ohio

Department of Health, in his official capacity,

Defendant-Appellant.

14-3464

BRITTANI HENRY, et al.,

Plaintiffs-Appellees,

RICHARD HODGES, Director of the Ohio

Department of Health, in his official capacity,

Defendant-Appellant.

14-5291

GREGORY BOURKE, et al.,

Plaintiffs-Appellees,

STEVE BESHEAR, Governor, Commonwealth of

Kentucky, in his official capacity,

Defendant-Appellant.

14-5297

VALERIA TANCO, et al.,

Plaintiffs-Appellees,

WILLIAM EDWARD “BILL” HASLAM, Governor,

State of Tennessee, in his official capacity, et al.,

Defendants-Appellants.

14-5818

TIMOTHY LOVE, et al.,

Plaintiffs / Intervenors-Appellees,

STEVE BESHEAR, Governor, Commonwealth of

Kentucky, in his official capacity,

Defendant-Appellant.

14-1341

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit;

No. 2:12-cv-10285—-Bernard A. Friedman, District

Judge.

14-3057 & 14-3464

Appeals from the United States District Court

for the Southern District of Ohio at Cincinnati;

Nos. 1:13-cv-00501 & 1:14-cv-00129—Timothy S.

Black, District Judge.

14-52 4-5818

Appeals from the United States District Court

for the Western District of Kentucky at Louisville:

No. 3:13-cv-00750—John G. Heyburn II, District

Judge.

14-5297

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville;

No. 3:13-cv-01159—Aleta Arthur Trauger, District

Judge.

Argued: August 6, 2014

Decided and Filed: November 6, 2014

Before: DAUGHTREY, SUTTON and COOK, Circuit

Judges.

COUNSEL

ARGUED: Aaron D. Lindstrom, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellant in 14-1341. Carole M.

Stanyar, Ann Arbor, Michigan, for Appellees

in 14-1341. Eric E. Murphy, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Appellant in 14-3057 and 14-3464.

Alphonse A. Gerhardstein, GERHARDSTEIN &

BRANCH CO. LPA, Cincinnati, Ohio, for Appellees

in 14-3057 and 14- 3464. Leigh Gross Latherow,

VANANTWERP, MONGE, JONES, EDWARDS &

MCCANN, LLP, Ashland, Kentucky, for Appellant in

14-5291 and 14-5818. Laura E. Landenwich, CLAY

DANIEL WALTON & ADAMS, PLC, Louisville,

Kentucky, for Appellees in 14-5291 and 14- 5818.

Joseph F. Whalen, OFFICE OF THE TENNESSEE

ATTORNEY GENERAL, Nashville, Tennessee, for

Appellants in 14-5297. William L. Harbison,

SHERRARD & ROE, PLC, Nashville, Tennessee, for

Appellees in 14-5297. ON BRIEF: 14-134]; Aaron

D. Lindstrom, Kristin M. Heyse, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing,

Michigan, for Appellant. Carole M. Stanyar,

Ann Arbor, Michigan, Dana M. Nessel, Detroit,

Michigan, Robert A. Sedler, WAYNE STATE

UNIVERSITY LAW SCHOOL, Detroit, Michigan,

Kenneth M. Mogill, MOGILL, POSNER &

COHEN, Lake Orion, Michigan, for Appellees.

Kyle J. Bristow, BRISTOW LAW, = PLLC,

Clarkston, Michigan, Alphonse A. Gerhardstein,

GERHARDSTEIN & BRANCH CoO. LPA, Cincinnati,

Ohio, David A. Robinson, North Haven, Connecticut,

Deborah J. Dewart, Swansboro, North Carolina,

Paul Benjamin Linton, Northbrook, Illinois, James

R. Wierenga, DAVID & WIERENGA, P.C., Grand

Rapids, Michigan, Eric Rassbach, THE BECKET

FUND FOR RELIGIOUS LIBERTY, Washington,

D.C., James J. Walsh, Thomas J. Rheaume, Jr.,

BODMAN PLC, Detroit, Michigan, William J. Olson,

WILLIAM J. OLSON, P.C., Vienna, Virginia,

Lawrence J. Joseph, Washington, D.C., Thomas M.

Fisher, OFFICE OF THE ATTORNEY GENERAL

OF INDIANA, Indianapolis, Indiana,

Mary E. McAlister, LIBERTY COUNSEL,

Lynchburg, Virginia, Mathew D. Staver, Anita L.

Staver, LIBERTY COUNSEL, Orlando, Florida,

Anthony R. Picarello, Jr., Jeffrey Hunter Moon,

Michael F. Moses, U.S. CONFERENCE OF

CATHOLIC BISHOPS, Washington, D.C., Alexander

Dushku, R. Shawn Gunnarson, KIRTON

MCCONKIE, Salt Lake City, Utah, Erin Elizabeth

Mersino, —THOMAS MORE LAW CENTER, Ann

Arbor, Michigan, David Boyle, Long _ Beach,

California, Benjamin G. Shatz, MANATT,

PHELPS & PHILLIPS, LLP, Los Angeles,

California, Elizabeth B. Wydra, CONSTITUTIONAL

ACCOUNTABILITY CENTER, Washington, D.C.,

Paul M. Smith, JENNER & BLOCK LLP,

Washington, D.C., Catherine E. Stetson, HOGAN

LOVELLS US LLP, Washington, D.C., Jason Walta,

NATIONAL EDUCATION ASSOCIATION,

Washington, D.C., Diana Raimi, JAFFE RAITT

HEUER & WEISS, P.C., Ann Arbor, Michigan,

Rocky C. Tsai, ROPES & GRAY LLP, San

Francisco, California, Alan M. Gershel, THOMAS M.

COOLEY LAW SCHOOL, Auburn Hills, Michigan,

Jerome C. Roth, Nicole S. Phillis, _MUNGER,

TOLLES & OLSON LLP, San Francisco, California,

Andrew J. Davis, FOLGER LEVIN LLP, San

Francisco, California, Nicholas M. O’Donnell,

SULLIVAN & WORCESTER LLP, Boston,

Massachusetts, Sean R. Gallagher, POLSINELLI

PC, Denver, Colorado, Mark C. Fleming, Felicia H.

Ellsworth, WILMER CUTLER PICKERING HALE

AND DORR LLP, Boston, Massachusetts, Paul R.Q.

Wolfson, Dina B. Mishra, WILMER CUTLER

PICKERING HALE AND DORR LLP, Washington,

D.C., Alan Schoenfeld, WILMER CUTLER

PICKERING HALE AND DORR LLP, New York,

New York, Diane M. Soubly, STEVENSON

KEPPELMAN ASSOCIATES, Ann Arbor, Michigan

Ria Tabacco Mar, NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC., New York, New

York, Christy L. Anderson, BRYAN CAVE LLP,

Denver, Colorado, Carmine D. _ Boccuzzi, Jr.,

CLEARY GOTTLIEB STEEN & HAMILTON LLP,

New York, New “York, Jonathan B. Miller,

OFFICE OF THE MASSACHUSETTS ATTORNEY

GENERAL, Boston, Massachusetts, Jyotin Hamid,

Joseph Rome, DEBEVOISE & PLIMPTON LLP, New

York, New York, Jeffrey S. Trachtman, KRAMER

LEVIN NAFTALIS & FRANKEL LLP, New York,

New York, Christopher D. Man, CHADBOURNE &

PARKE LLP, Washington, D.C., Chase B. Strangio,

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, New York, New York, Suzanne B.

Goldberg, COLUMBIA LAW SCHOOL, New York,

New York, Marcia D. Greenberger, Emily J. Martin,

NATIONAL WOMEN’S LAW CENTER,

Washington, D.C., G. David Carter, Joseph P.

Bowser, Hunter Carter, ARENT FOX LLP,

Washington, D.C., Sara Bartel, MORRISON &

FOERSTER LLP, San Francisco, California, Daniel

McNeel Lane, Jr., Matthew E. Pepping, AKIN

GUMP STRAUSS HAUER & FELD LLP, San

Antonio, Texas, Jessica M. Weisel, AKIN GUMP

STRAUSS HAUER & FELD LLP, Los Angeles,

California, Michael L. Whitlock, BINGHAM

MCCUTCHEN LLP, Washington, D.C., for Amici

Curiae. 14-3057; Bridget E. Coontz, Zachery P.

Keller, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellant.

Aiphonse A. Gerhardstein, Jennifer L. Branch,

Jacklyn Gonzales Martin, GERHARDSTEIN &

BRANCH CO. LPA, Cincinnati, Ohio, Lisa T. Meeks,

NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio,

Chase B. Strangio, James D. Esseks, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION, New

York, New York, Drew Dennis, ACLU OF OHIO,

INC., Cleveland, Ohio, for Appellees. Byron J.

Babione, ALLIANCE DEFENDING FREEDOM,

Scottsdale, Arizona, Lawrence J. Joseph,

Washington, D.C., Benjamin G. Shatz, MANATT,

PHELPS & PHILLIPS, LLP, Los Angeles,

Califernia, Carmine D. Boccuzzi, Jr., CLEARY

GOTTLIEB STEEN & HAMILTON LLP, New York,

New York, Gregory R. Nevins, LAMBDA LEGAL

DEFENSE AND EDUCATION FUND, INC.,

Atlanta, Georgia, Susan L. Sommer, LAMBDA

LEGAL DEFENSE AND EDUCATION FUND,

INC., New York, New York, Camilla B. Taylor,

LAMBDA LEGAL DEFENSE AND EDUCATION

FUND, INC., Chicago, Illinois, Mark C. Fleming,

Felicia H. Ellsworth, WILMER CUTLER

PICKERING HALE AND DORR LLP, Boston,

Massachusetts, Paul R.Q. Wolfson, Dina B. Mishra,

WILMER CUTLER PICKERING HALE AND DORR

LLP, Washington, D.C., Alan Schoenfeld, WILMER

CUTLER PICKERING HALE AND DORR LLP, New

York, New York, Paul M. Smith, JENNER &

BLOCK LLP, Washington, D.C., Roberta A. Kaplan,

Jaren Janghorbani, Joshua D. Kaye, Jacob H.

Hupart, PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP, New York, New York, Thomas D.

Warren, BAKER & HOSTETLER LLP, Cleveland,

Ohio, Jeffrey S. Trachtman, KRAMER LEVIN

NAFTALIS & FRANKEL LLP, New York, New

York, Marcia D. Greenberger, Emily J. Martin,

NATIONAL WOMEN’S LAW CENTER,

Washington, D.C., Shannon P. Minter, Christopher

F. Stoll, NATIONAL CENTER FOR LESBIAN

RIGHTS, Washington, D.C., for Amici Curiae.

14-3464; Eric E. Murphy, Bridget E. Coontz,

OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Alphonse A.

Gerhardstein, Jennifer L. Branch, Jacklyn

Gonzales Martin, GERHARDSTEIN & BRANCH

CO. LPA, Cincinnati, Ohio, Lisa T. Meeks,

NEWMAN & MEEKS CO., LPA, Cincinnati, Ohio,

Susan L. Sommer, M. Currey Cook, Keith

Hammeran, LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC., New York, New York,

Paul D. Castillo, LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC., Dallas, Texas, for

Appellees. Catherine E. Stetson, HOGAN LOVELLS

US LLP, Washington, D.C., Andrew J. Davis,

FOLGER LEVIN LLP, San Francisco, California,

Sean R. Gallagher, POLSINELLI PC,

Denver, Colorado, Nicholas M. O’Donnell,

SULLIVAN & WORCESTER LLP, Boston,

Massachusetts, Carmine D. Boccuzzi, Jr., CLEARY

GOTTLIEB STEEN & HAMILTON LLP, New York,

New York, Ria Tabacco Mar, NAACP LEGAL

DEFENSE & EDUCATIONAL FUND, INC., New

York, New York, Jyotin Hamid, Joseph Rome,

DEBEVOISE & PLIMPTON LLP, New York, New

York, Suzanne B. Goldberg, COLUMBIA LAW

SCHOOL, New York, New York, Daniel McNeel

Lane, Jr., Matthew E. Pepping, AKIN GUMP

STRAUSS HAUER & FELD LLP, San Antonio,

Texas, Jessica M. Weisel, AKIN GUMP STRAUSS

HAUER & FELD LLP, Los Angeles, California,

Paul D. Ritter, Jr., Christopher J. Weber, Robert

G. Schuler, KEGLER, BROWN. HILL & RITTER

CO., L.P.A., Columbus, Ohio, Lawrence J. Joseph,

Washington, D.C., Harlan D. Karp, Tina R.

Haddad, Cleveland, Ohio, Benjamin G. Shatz,

MANATT, PHELPS & PHILLIPS, LLP, Los

Angeles, California, Christopher D. Man,

CHADBOURNE & PARKE LLP, Washington, D.C..,

Mark C. Fleming, Felicia H. Ellsworth, WILMER

CUTLER PICKERING HALE AND DORR LLP,

Boston, Massachusetts, Paul R.Q. Wolfson, Dina B.

Mishra, WILMER CUTLER PICKERING HALE

AND DORR LLP, Washington, D.C., Alan

Schoenfeld, WILMER CUTLER PICKERING HALE

AND DORR LLP, New York, New York, Rocky C.

Tsai, ROPES & GRAY LLP, San _ Francisco,

California, Joseph R. Guerra, SIDLEY AUSTIN

LLP, Washington, D.C., Emma L. Dill, BRYAN

CAVE LLP, San Francisco, California, Jeffrey S.

Trachtman, KRAMER LEVIN NAFTALIS &

FRANKEL LLP, New York, New York, Marcia D.

Greenberger, Emily J. Martin, NATIONAL

WOMEN’S LAW CENTER, Washington, D.C., Sara

Bartel, MORRISON & FOERSTER LLP, San

Francisco, California, G. David Carter, Joseph P.

Bowser, Hunter T. Carter, ARENT FOX LLP,

Washington, D.C., Marjory A. Gentry, ARNOLD &

PORTER LLP, San Francisco, California,

Diane M. Soubly, STEVENSON KEPPELMAN

ASSOCIATES, Ann Arbor, Michigan, Harlan D.

Karp, Cleveland, Ohio, for Amici Curiae. 14-5291;

Leigh Gross Latherow, William H. Jones, Jr.,

Gregory L. Monge, VANANTWERP, MONGE,

JONES, EDWARDS & MCCANN, LLP, Ashland,

Kentucky, for Appellant. Laura E. Landenwich,

Daniel J. Canon, L. Joe Dunman, CLAY DANIEL

WALTON & ADAMS, PLC, Louisville, Kentucky,

Shannon R. Fauver, Dawn R. Elliott, FAUVER

LAW OFFICE, PLLC, Louisville, Kentucky, for

Appellees. David A. Robinson, North Haven,

Connecticut, Deborah J. Dewart, Swansboro, North

Carolina, Stanton L. Cave, LAW OFFICE OF

STAN CAVE, Lexington, Kentucky, Eric Rassbach,

THE BECKET FUND FOR RELIGIOUS LIBERTY,

Washington, D.C., David Boyle, Long Beach,

California, Benjamin G. Shatz, MANATT, PHELPS

& PHILLIPS, LLP, Los Angeles, California, Paul

M. Smith, JENNER & BLOCK LLP, Washington,

D.C., Catherine E. Stetson, HOGAN LOVELLS US

LLP, Washington, D.C., Andrew J. Davis, FOLGER,

LEVIN LLP, San Francisco, California, Rocky C.

Tsai, ROPES & GRAY LLP, San _ Francisco,

California, Jerome C. Roth, Nicole S. Phillis,

MUNGER, TOLLES & OLSON LLP, San Francisco,

California, Nicholas M. O’Donnell, SULLIVAN &

WORCESTER LLP, Boston, Massachusetts,

Carmine D. Boccuzzi, Jr., CLEARY GOTTLIEB

STEEN & HAMILTON LLP, New York, New York,

Mark C. Fleming, Felicia H. Ellsworth, WILMER

CUTLER PICKERING HALE AND DORR LLP,

Boston, Massachusetts, Paul R.Q. Wolfson, Dina B.

Mishra, WILMER CUTLER PICKERING HALE

AND DORR LLP, Washington, D.C., Alan

Schoenfeld, WILMER CUTLER PICKERING HALE

AND DORR LLP, New York, New York, Sean R.

Gallagher, POLSINELLI PC, Denver, Colorado,

Jyotin Hamid, Joseph Rome, DEBEVOISE &

PLIMPTON LLP, New York, New York, Christy L.

Anderson, BRYAN CAVE LLP, Denver, Colorado,

Ria Tabacco Mar, NAACP LEGAL DEFENSE &

10a

EDUCATIONAL FUND, INC., New York. New

York, Suzanne B. Goldberg, COLUMBIA LAW

SCHOOL, New York, New York, Joshua A. Block,

Chase Strangio, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, New York, New York,

Elizabeth B. Wydra, CONSTITUTIONAL

ACCOUNTABILITY CENTER, Washington, D.C.,

Marcia D. Greenberger, Emily J. Martin,

NATIONAL WOMEN’S LAW CENTER,

Washington, D.C., Jeffrey S. Trachtman, KRAMER

LEVIN NAFTALIS & FRANKEL LLP, New York,

New York, Christopher D. Man, CHADBOURNE &

PARKE LLP, Washington, D.C., Sara _ Bartel,

MORRISON & FOERSTER LLP, San Francisco,

California, Daniel McNeel Lane, Jr., Matthew E.

Pepping, AKIN GUMP STRAUSS HAUER & FELD

LLP, San Antonio, Texas, Jessica M. Weisel, AKIN

GUMP STRAUSS HAUER & FELD LLP, Los

Angeles, California, Diane M. Soubly, STEVENSON

KEPPELMAN ASSOCIATES, Ann Arbor, Michigan,

Marjory A. Gentry, ARNOLD & PORTER LLP,

San Francisco, California, Michael L. Whitlock,

BINGHAM MCCUTCHEN LLP, Washington, D.C.,

G. David Carter, Joseph P. Bowser, Hunter Carter,

ARENT FOX LLP, Washington, D.C., for Amici

Curiae. 14-5297; Joseph F. Whalen, Martha A.

Campbell, Kevin G. Steiling, OFFICE OF THE

TENNESSEE ATTORNEY GENERAL, Nashville,

Tennessee, for Appellants. William L. Harbison,

Phillip F. Cramer, J. Scott Hickman, John L.

Farringer, SHERRARD & ROE, PLC, Nashville,

Tennessee, Abby R. Rubenfeld, RUBENFELD LAW

OFFICE, PC, Nashville, Tennessee, Maureen T.

Holland, HOLLAND AND ASSOCIATES, PLLC,

Memphis, Tennessee, Regina M. Lambert, Knoxville,

lla

Tennessee, Shannon P. Minter, Christopher F.

Stoll, Amy Whelan, Asaf Orr, NATIONAL

CENTER FOR LESBIAN RIGHTS, San Francisco,

California, for Appellees. Deborah J. Dewart,

Swansboro, North Carolina, Eric Rassbach, THE

BECKET FUND FOR RELIGIOUS LIBERTY,

Washington, D.C., Byron J. Babione, ALLIANCE

DEFENDING FREEDOM, Scottsdale, Arizona, Paul

M. Smith, JENNER & BLOCK LLP, Washington,

D.C., Catherine E. Stetson, HOGAN LOVELLS US

LLP, Washington, D.C., Benjamin G. Shatz,

MANATT, PHELPS & PHILLIPS, LLP, Los

Angeles, California, Elizabeth B. Wydra,

CONSTITUTIONAL ACCOUNTABILITY CENTER,

Washington, D.C., Andrew J. Davis, FOLGER

LEVIN LLP, San Francisco, California, Rocky C.

Tsai, ROPES & GRAY LLP, San Francisco,

California, Jerome C. Roth, Nicole S. Phillis,

MUNGER, TOLLES & OLSON LLP, San Francisco,

California, Nicholas M. O’Donnell, SULLIVAN &

WORCESTER LLP, Boston, Massachusetts, Sean R.

Gallagher, POLSINELLI PC, Denver, Colorado,

Carmine D. Boccuzzi, Jr.. CLEARY GOTTLIEB

STEEN & HAMILTON LLP, New York, New

York, Mark C. Fleming, Felicia H. Ellsworth,

WILMER CUTLER PICKERING HALE AND

DORR LLP, Boston, Massachusetts, Paul R.Q.

Wolfson, Dina B. Mishra, WILMER CUTLER

PICKERING HALE AND DORR LLP, Washington,

D.C., Alan Schoenfeld, WILMER CUTLER

PICKERING HALE AND DORR LLP, New York,

New York, Barbara J. Chisholm, P. Casey Pitts,

ALTSHULER BERZON LLP, San _ (Francisco,

California, Christy L. Anderson, BRYAN CAVE

LLP, Denver, Colorado, Jyotin Hamid, Joseph Rome,

12a

DEBEVOISE & PLIMPTON LLP, New York, New

York, Ria Tabacco Mar, NAACP LEGAL

DEFENSE & EDUCATIONAL FUND, INC.. New

York, New York, Joshua A. Block, Chase B.

Strangio, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, New York, New York, Christopher

D. Man, CHADBOURNE & PARKE LLP,

Washington, D.C., Marcia D. Greenberger, Emily J.

Martin, NATIONAL WOMEN'S LAW CENTER.

Washington, D.C., Jeffrey S. Trachtman, KRAMER

LEVIN NAFTALIS & FRANKEL LLP, New York,

New York, G. David Carter, Joseph P. Bowser,

Hunter Carter, ARENT FOX LLP, Washington,

D.C., Sara Bartel, MORRISON & FOERSTER LLP.

San Francisco, California, Daniel McNeel Lane, Jr.,

Matthew E. Pepping, AKIN GUMP STRAUSS

HAUER & FELD LLP, San Antonio, Texas, Jessica

M. Weisel, AKIN GUMP STRAUSS HAUER &

FELD LLP, Los Angeles, California, Marjory A.

Gentry, ARNOLD & PORTER LLP, San Francisco,

California, Diane M. Soubly, STEVENSON

KEPPELMAN ASSOCIATES, Ann Arbor, Michigan,

Michael L. Whitlock, BINGHAM MCCUTCHEN

LLP, Washington, D.C., Suzanne B. Goldberg,

CGLUMBIA LAW SCHOOL, New York, New York,

for Amici Curiae. 14-5818; Leigh Gross Latherow,

William H. Jones, Jr., Gregory L. Monge,

VANANTWERP, MONGE, JONES, EDWARDS &

MCCANN, LLP, Ashland, Kentucky, for Appellant.

Laura E. Landenwich, Daniel J. Canon, L. Joe

Dunman, CLAY DANIEL WALTON & ADAMS,

PLC, Louisville, Kentucky, for Appellees. Diane M.

Soubly, STEVENSON KEPPELMAN ASSOCIATES,

Ann Arbor, Michigan, for Amicus Curiae.

13a

SUTTON, J., delivered the opinion of the

court, in which COOK, J., joined.

DAUGHTREY, J. (pp. 43—64), delivered a separate

dissenting opinion.

ene ee ee ree mrt mre errr rr me mmm ee EN I ee meme Fe RII mae one seein ener

OPINION

SUTTON, Circuit Judge. This is a case about

change—and how best to handle it under the United

States Constitution. From the vantage point of 2014,

it would now seem, the question is not whether

American law will allow gay couples to marry; it is

when and how that will happen. That would not

have seemed likely as recently as a dozen years

ago. For better, for worse, or for more of the same,

marriage has long been a social institution defined

by relationships between men and women. So long

defined, the tradition is measured in millennia, not

centuries or decades. So widely shared, the tradition

until recently had been adopted by all governments

and major religions of the world.

But things change, sometimes quickly. Since

2003, nineteen States and the District of Columbia

have expanded the definition of marriage to include

gay couples, some through state legislation, some

through initiatives of the people, some through state

court decisions, and some through the actions of

state governors and attorneys general who opted

not to appeal adverse court decisions. Nor does this

momentum show any signs of slowing. Twelve of the

nineteen States that now recognize gay marriage

did so in the last couple of years. On top of that,

four federal courts of appeals have compelled several

l4a

other States to permit same-sex marriages under the

Fourteenth Amendment.

What remains is a debate about whether to

allow the democratic processes begun in the States

to continue in the four States of the Sixth Circuit

or to end them now by requiring all States in the

Circuit to extend the definition of marriage to

encompass gay couples. Process and structure matter

greatly in American government. Indeed, they may

be the most reliable, liberty- assuring guarantees of

our system of government, requiring us to take

seriously the route the United States Constitution

contemplates for making such a fundamental change

to such a fundamental social institution.

Of all the ways to resolve this question, one

option is not available: a poll of the three judges on

this panel, or for that matter all federal judges,

about whether gay marriage is a good idea. Our

judicial commissions did not come with such a

sweeping grant of authority, one that would allow

just three of us—just two of us in truth—to make

such a vital policy call for the thirty-two million

citizens who live within the four States of the

Sixth Circuit: Kentucky, Michigan, Ohio, and

Tennessee. What we have authority to decide

instead is a legal question: Does the Fourteenth

Amendment to the United States Constitution

prohibit a State from defining marriage as a

relationship between one man and one woman?

Through a mixture of common law decisions,

statutes, and constitutional provisions, each State in

the Sixth Circuit has long adhered to the traditional

definition of marriage. Sixteen gay and lesbian

couples claim that this definition violates their

15a

rights under the Fourteenth Amendment. The

circumstances that gave rise to the challenges vary.

Some involve a birth, others a death. Some involve

concerns about property, taxes, and insurance,

others death certificates and rights to visit a

partner or partner’s child in the hospital. Some

involve a couple’s effort to obtain a marriage

license within their State, others an effort to

achieve recognition of a marriage solemnized in

another State. All seek dignity and respect, the

same dignity and respect given to marriages between

opposite-sex couples. And all come down to the same

question: Who decides? Is this a matter that the

National Constitution commits to resolution by the

federal courts or leaves to the less expedient, but

usually reliable, work of the state democratic

processes?

Michigan. One case comes from Michigan,

where state law has defined marriage as a

relationship. between a man and a woman since

its territorial, days. See An Act Regulating

Marriages § 1 (1820), in 1 Laws of the Territory

of Michigan 646, 646 (1871). The State reaffirmed

this view in 1996 when it enacted a law that

declared marriage “inherently a unique relationship

between a man and a woman.” Mich. Comp. Laws

§ 551.1. In 2004, after the Massachusetts Supreme

Judicial Court invalidated the Commonwealth’s

prohibition on same-sex marriage, Goodridge uv.

Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003),

nearly fifty-nine percent of Michigan voters opted

to constitutionalize the State’s definition of

marriage. “To secure and preserve the benefits of

16a

marriage for our society and (for future

generations of children,” the amendment says, “the

union of one man and one woman in marriage shall

be the only agreement recognized as a marriage or

similar union for any purpose.” Mich. Const. art. I, §

25.

April DeBoer and Jayne Rowse, a lesbian

couple living in Michigan,’ challenge’ the

constitutionality of this definition. Marriage was

not their first objective. DeBoer and Rowse each

had adopted children as single parents, and both

wanted to serve as adoptive parents for the other

partner’s children. Their initial complaint alleged

that Michigan’s adoption laws violated the Equal

Protection Clause of the Fourteenth Amendment.

The State moved to dismiss the lawsuit for lack of

standing, and the district court tentatively agreed.

Rather than dismissing the action, the court “invit[ed

the] plaintiffs to seek leave to amend their complhaint

to ... challenge” Michigan’s laws denying them a

marriage license. DeBoer R. 151 at 3. DeBoer and

Rowse accepted the invitation and filed a new

complaint alleging that Michigan’s marriage laws

violated the due process and equal protection

guarantees of the Fourteenth Amendment.

Both sets of parties moved for summary

judgment. The district court concluded that the

dispute raised “a triable issue of fact” over

whether the “rationales” for the Michigan laws

furthered “a legitimate state interest,” and it held a

nine-day trial on the issue. DeBoer R. 89 at 4, 8. The

plaintiffs’ experts testified that same-sex couples

raise children as well as opposite-sex couples, and

that denying marriage to same-sex couples creates

17a

instabilities for their children and families. The

defendants’ experts testified that the evidence

regarding the comparative success of children raised

in same-sex households is_ inconclusive. The

district court sided with the plaintiffs. It rejected

all of the State’s bases for its marriage laws and

concluded that the laws failed to satisfy rational

basis review.

Kentucky. Two cases challenge two aspects of

Kentucky’s marriage laws. Early on, Kentucky

defined marriage as “the union of a man and a

woman.” Jones v. Hallahan, 501 S.W.2d 588, 589

(Ky. 1973); see An Act for Regulating the

Solemnization of Marriages § 1, 1798 Ky. Acts 49,

49—50. In 1998, the Kentucky legislature codified the

common law definition. The statute says that

“marriage’ refers only to the civil status, condition,

or relation of one (1) man and one (1) woman

united in law for life, for the discharge to each

other and the community of the duties legally

incumbent upon those whose association is founded

on the distinction of sex.” Ky. Rev. Stat. § 402.005.

In 2004, the Kentucky legislature proposed a

constitutional amendment providing that “fo]nly a

marriage between one man and one woman shall be

valid or recognized as a marriage in Kentucky.”

Ky. Const. § 233A. Seventy-four percent of the

voters approved the amendment.

Two groups of plaintiffs challenge these

Kentucky laws. One group, the fortuitously named

Love plaintiffs, challenges the Commonwealth’s

marriage-licensing law. Two couples filed that

lawsuit: Timothy Love and Lawrence Ysunza, along

with Maurice Blanchard and Dominique James.

18a

Both couples claim that the Fourteenth Amendment

prohibits Kentucky from denying them marriage

licenses.

The other group, the Bourke plaintiffs,

challenges the ban on _ recognizing out-of-state

same-sex marriages. Four same-sex couples filed

the lawsuit: Gregory Bourke and Michael DeLeon;

Jimmy Meade and Luther Barlowe; Randell Johnson

and Paul Campion; and Kimberly Franklin and

Tamera Boyd. All four couples were married outside

Kentucky, and they contend that the State's

recognition ban violates their due process and equal

protection rights. Citing the hardships imposed on

them by the recognition ban—loss of tax breaks,

exclusion from intestacy laws, loss of dignity—they

seek to enjoin its enforcement.

The district court ruled for the plaintiffs in

both cases. In Love, the court held that the

Commonwealth could not justify its definition of

marriage on rational basis grounds. It also thought

that classifications based on sexual orientation

should be subjected to intermediate scrutiny,

which the Commonwealth also failed to satisfy. In

Bourke, the court invalidated the recognition ban on

rational basis grounds.

Ohio. Two cases challenge Ohio’s refusal to

recognize out-of-state same-sex marriages. Ohio also

has long adhered to the traditional definition of

marriage. See An Act Regulating Marriages § 1,

1803 Ohio Laws 31, 31; Carmichael v. State, 12

Ohio St. 553, 560 (1861). It reaffirmed this

definition in 2004, when the legislature passed a

Defense of Marriage Act, which says that marriage

“may only be entered into by one man and one

19a

woman.” Ohio Rev. Code § 3101.01({A). “Any

marriage entered into by persons of the same sex in

any other jurisdiction,” it adds, “shall be considered

and treated in all respects as having no legal force

or effect.” Jd. § 3101.01(C)(2). Later that same year,

sixty-two percent of Ohio voters approved an

amendment to the Ohio Constitution along the same

lines. As amended, the Ohio Constitution says that

Ohio recognizes only “a union between one man and

one woman” as a valid marriage. Ohio Const. art.

XV, § 11.

Two groups of plaintiffs challenge these

Ohio laws. The first group, the Obergefell

plaintiffs, focuses on one application of the law.

They argue that Ohio’s refusal to recognize their

out-of-state marriages on Ohio-issued death

certificates violates due process and _= equal

protection. Two same-sex couples in long-term,

committed relationships filed the lawsuit: James

Obergefell and John Arthur; and David Michener

and William Herbert Ives. All four of them are from

Ohio and were married in other States. When

Arthur and Ives died, the State would not list

Obergefell and Michener as spouses on their death

certificates. Obergefell and Michener sought an

injunction to require the State to list them as

spouses on the certificates. Robert Grunn, a funeral

director, joined the lawsuit, asking the court to

protect his right to recognize same-sex marriages on

other death certificates.

The second group, the Henry plaintiffs,

raises a broader chalienge. They argue that Ohio’s

refusal to recognize out-of-state marriages between

same-sex couples violates the Fourteenth

20a

Amendment no matter what marital benefit is

affected. The Henry case involves four same-sex

couples, all married in other States, who want Ohio

to recognize their marriages on their children’s

birth certificates. Three of the couples (Brittani

Henry and Brittni Rogers; Nicole and Pam

Yorksmith; Kelly Noe and Kelly McCracken) gave

birth to children in Ohio and wish to have both of

their names listed on each child’s birth certificate

rather than just the child’s biological mother. The

fourth couple (Joseph Vitale and Robert Talmas)

lives in New York and adopted a child born in Ohio.

They seek to amend their son’s Ohio birth certificate

so that it lists both of them as parents.

The district court granted the plaintiffs

relief in both cases. In Obergefell, the court

concluded that the Fourteenth Amendment protects

a fundamental right to keep existing marital

relationships intact, and that the State failed to

justify its law under heightened scrutiny. The court

likewise concluded that classifications based on

sexual orientation deserve heightened scrutiny

under equal protection, and that Ohio failed to

justify its refusal to recognize the couples’ existing

marriages. Even under rational basis review, the

court added, the State came up short. In Henry, the

district court reached many of the same conclusions

and expanded its recognition remedy to encompass

all married same-sex couples and all legal incidents

of marriage under Ohio law.

Tennessee. The Tennessee case is of a piece

with the two Ohio cases and one of the Kentucky

cases, as it too challenges the State’s same-sex-

marriage recognition ban. Tennessee has always

2la

defined marriage in traditional terms. See An Act

Concerning Marriages § 3 (1741), in Public Acts of

the General Assembly of WNorth-Carolina and

Tennessee 46, 46 (1815). In 1996, the Tennessee

legislature reaffirmed “that the historical

institution and legal contract solemnizing the

relationship of one (1) man and one (1) woman

shall be the only legally recognized marital

contract in this state in order to provide the unique

and exclusive rights and privileges to marriage.”

Tenn. Code Ann. § 36-3-113(a). In 2006, the State

amended its constitution to incorporate the existing

definition of marriage. See Tenn. Const. art. XI, §

18. Eighty percent of the voters supported the

amendment.

Three same-sex couples, all in committed

relationships, challenge the recognition ban: Valeria

Tanco and Sophy Jesty; Ijpe DeKoe and Thomas

Kostura; and Johno Espejo and Matthew Mansell.

All three couples were legally married in other

States. The district court preliminarily enjoined the

law. Relying on district court decisions within the

circuit and elsewhere, the court concluded that the

couples likely would show that Tennessee’s ban failed

to satisfy rational basis review. The remaining

preliminary injunction factors, the court held, also

weighed in the plaintiffs’ favor.

All four States appealed the decisions against

them.

Il.

Does the Due Process Clause or the Equal

Protection Clause of the Fourteenth Amendment

require States to expand the definition of marriage

22a

to include same-sex couples? The Michigan appeal

(DeBoer) presents this threshold question, and so

does one of the Kentucky appeals (Love). Caselaw

offers many ways to think about the issue.

Perspective of an intermediate court. Start with

a recognition of our place in the hierarchy of the

federal courts. As an “inferior” court (the

Constitution’s preferred term, not ours), a federal

court of appeals begins by asking what the Supreme

Court’s precedents require on the topic at hand. Just

such a precedent confronts us.

In the early 1970s, a Methodist minister

married Richard Baker and James McConnell in

Minnesota. Afterwards, they sought a marriage

license from the State. When the clerk of the state

court denied the request, the couple filed a lawsuit

claiming that the denial of their request violated the

Due Process and Equal Protection Clauses of the

Fourteenth Amendment. Baker v. Nelson, 191

N.W.2d 185, 186 (Minn. 1971). The Minnesota

Supreme Court rejected both claims. As for the due

process claim, the state court reasoned: “The

institution of marriage as a union of man and

woman, uniquely involving the procreation and

rearing of children within a family, is as old as the

book of Genesis. . . . This historic institution

manifestly is more deeply founded than the asserted

contemporary concept of marriage and _ societal

interests for which petitioners contend. The due

process clause .. . is not a charter for restructuring

it by judicial legislation.” Jd. As for the equal

protection claim, the court reasoned: “[T]he state’s

classification of persons authorized to marry” does

23a

not create an “irrational or invidious discrimination.

' [T]hat the state does not impose upon

heterosexual married couples a condition that they

have a proved capacity or declared willingness to

procreate .. . [creates only a] theoretically imperfect

[classification] . . . [and] ‘abstract symmetry’ is not

demanded by the Fourteenth Amendment.” Id. at

187. The Supreme Court’s decision four years earlier

in Loving v. Virginia, 388 U.S. 1 (1967), which

invalidated Virginia’s ban on interracial marriages,

did not change this conclusion. “[{I]n commonsense

and in a constitutional sense,” the state court

explained, “there is a clear distinction between a

marital restriction based merely upon race and one

based upon the fundamental difference in sex.”

Baker, 191 N.W.2d at 187.

Baker and McConnell appealed to the United

States Supreme Court. The Court rejected their

challenge, issuing a one-line order stating that the

appeal did not raise “a substantial federal question.”

Baker v. Nelson, 409 U.S. 810, 810 (1972). This type

of summary decision, it is true, does not bind the

Supreme Court in later cases. But it does confine

lower federal courts in later cases. It matters not

whether we think the decision was right in its time,

remains right today, or will be followed by the

Court in the future. Only the Supreme Court may

overrule its own precedents, and we remain bound

even by its summary decisions “until such time as

the Court informs [us] that [we] are not.” Hicks v.

Miranda, 422 U.S. 332, 345 (1975) (internal

quotation marks omitted). The Court has yet to

inform us that we are not, and we have no license

to engage in a guessing game about whether the

24a

Court will change its mind or, more aggressively, to

assume authority to overrule Baker ourselves.

But that was then; this is now. And now,

claimants insist, must account for United States v.

Windsor, 133 S. Ct. 2675 (2013), which invalidated

the Defense of Marriage Act of 1996, a law that

refused for purposes of federal statutory benefits to

respect gay marriages authorized by state law. Yet

Windsor does not answer today’s question. The

decision never mentions Baker, much less overrules

it. And the outcomes of the cases do not clash.

Windsor invalidated a federal law that refused to

respect state laws permitting gay marriage, while

Baker upheld the right of the people of a State to

define marriage as they see it. To respect one

decision does not slight the other. Nor does

Windsor’s reasoning clash with Baker. Windsor

hinges on the Defense of Marriage Act's

unprecedented intrusion into the States’ authority

over domestic relations. Jd. at 2691-92. Before the

Act’s passage in 1996, the federal government had

traditionally relied on state definitions of marriage

instead of purporting to define marriage itself. Jd. at

2691. That premise does not work— it runs the other

way—in a case involving a challenge in federal court

to state laws defining marriage. The point of

Windsor was to prevent the Federal Government

from “divest[ing]” gay couples of “a dignity and

status of immense import” that New York's

extension of the definition of marriage gave them, an

extension that “without doubt” any State could

provide. Jd. at 2692, 2695. Windsor made explicit

that it does not answer today’s question, telling us

that the “opinion and its holding are confined to

. . lawful marriages” already protected by some of

25a

the States. Jd. at 2696. Bringing the matter to a

close, the Court held minutes after releasing

Windsor that procedural obstacles in Hollingsworth

v. Perry, 133 S. Ct. 2652 (2013), prevented it from

considering the validity of state marriage laws.

Saying that the Court declined in Hollingsworth to

overrule Baker openly but decided in Windsor to

overrule it by stealth makes an unflattering and

unfair estimate of the Justices’ candor.

Even if Windsor did not overrule Baker by

name, the claimants point out, lower courts still

may rely on “doctrinal developments” in_ the

aftermath of a summary disposition as a ground for

not following the decision. Hicks, 422 U.S. at 344.

And Windsor, they say, together with Lawrence v.

Texas, 539 U.S. 558 (2003), and Rumer v. Evans, 517

U.S. 620 (1996), permit us to cast Baker aside. But

this reading of “doctrinal developments” would be

a groundbreaking development of its own. From the

perspective of a lower court, summary dispositions

remain “controlling precedent, unless and until re-

examined by [the Supreme] Court.” Tully v. Griffin,

Inc., 429 U.S. 68, 74 (1976); see Hicks, 422 U.S. at

343—45. And the Court has told us to treat the two

types of decisions, whether summary dispositions

or full-merits decisions, the same, “prevent[ing]

lower courts” in both settings “from coming to

opposite conclusions on the precise issues presented

and necessarily decided by those actions.” Mandel

v. Bradley, 432 U.S. 173, 176 (1977). Lest doubt

remain, the Court has also told us not to ignore its

decisions even when they are in tension with a new

line of cases. “If a precedent of this Court has direct

application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of

26a

Appeals should follow the case which directly

controls, leaving to this Court the prerogative of

overruling its own decisions.” Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484

(1989); see Agostini v. Felton, 521 U.S. 203, 237

(1997).

Just two scenarios, then, permit us to ignore

a Supreme Court decision, whatever its form: when

the Court has overruled the decision by name (if,

say, Windsor had directly overruled Baker) or

when the Court has overruled the decision by

outcome (if, say, Hollingsworth had invalidated the

California law without mentioning Baker). Any

other approach returns us to a world in which the

lower courts may anticipatorily overrule all manner

of Supreme Court decisions based on counting-to-

five predictions, perceived trajectories in the

caselaw, or, worst of all, new appointments to the

Court. In the end, neither of the two

preconditions for ignoring Supreme Court precedent

applies here. Windsor as shown does not mention

Baker, and it clarifies that its “opinion and holding”

do not govern the States’ authority to define

marriage. Hollingsworth was dismissed. And

neither Lawrence nor Romer mentions Baker, and

neither is inconsistent with its outcome. The one

invalidates a State’s criminal antisodomy law and

explains that the case “does not involve . . . formal

recognition” of same-sex relationships. Lawrence,

539 U.S. at 578. The other invalidates a

“[s]}weeping” and “unprecedented” state law that

prohibited local communities from passing laws

that protect citizens from discrimination based on

sexual orientation. Romer, 517 U.S. at 627, 633, 635—

36.

27a

That brings us to another one-line order.

On October 6, 2014, the Supreme Court “denied”

the “petitions for writs of certiorari” in 1,575

cases, seven of which arose from challenges to

decisions of the Fourth, Seventh, and Tenth

Circuits that recognized a constitutional right to

same-sex marriage. But this kind of action (or

inaction) “imports no expression of opinion upon the

merits of the case, as the bar has been told many

times.” United States v. Carver, 260 U.S. 482, 490

(1923). “The ‘variety of considerations [that]

underlie denials of the writ’ counsels against

according denials of certiorari any precedential

value.” Teague v. Lane, 489 U.S. 288, 296 (1989)

(internal citation omitted). Just as the Court’s three

decisions to stay those same court of appeals

decisions over the past year, all without a registered

dissent, did not end the debate on this issue, so too

the Court’s decision to deny certiorari in all of these

appeals, all without a registered dissent, does not

end the debate either. A decision not to decide is a

decision not to decide.

But don’t these denials of certiorari signal

that, from the Court’s perspective, the right to same-

sex marriage is inevitable? Maybe; maybe not. Even

if we grant the premise and assume that same-sex

marriage will be recognized one day in all fifty

States, that does not tell us how— whether through

the courts or through democracy. And, if through the

courts, that does not tell us why—whether through

one theory of constitutional invalidity or another.

Four courts of appeals thus far have recognized a

constitutional right to same-sex marriage. They

agree on one thing: the result. But they reach that

outcome in many ways, often more than one way in

28a

the same decision. See Bostic v. Schaefer, 760 F.3d

352 (4th Cir. 2014) (fundamental rights); Baskin uv.

Bogan, 766 F.3d 648 (7th Cir. 2014) (rational basis,

animus); Latta v. Otter, No. 14-35420, 2014 WL

4977682 (9th Cir. Oct. 7, 2014) (animus,

fundamental rights, suspect classification); Bishop

v. Smith, 760 F.3d 1070 (0th Cir. 2014)

(fundamental rights); Kitchen v. Herbert, 755 F.3d

1193 (10th Cir. 2014) (same). The Court’s certiorari

denials tell us nothing about the democracy-versus-

litigation path to same-sex marriage, and they tell us

nothing about the validity of any of these theories. If

a federal court denies the people suffrage over an

issue long thought to be within their power, they

deserve an explanation. We, for our part, cannot find

one, as several other judges have concluded as well.

See Bostic, 760 F.3d at 385-98 (Niemeyer, J.,

dissenting); Kitchen, 755 F.3d at 1230-40 (Kelly, J.,

concurring in part and dissenting in part); Conde-

Vidal v. Garcia-Padilla, No. 14-1253-PG, 2014 WL

5361987 (D.P.R. Oct. 21, 2014); Robicheaux ov.

Caldwell, 2 F. Supp. 3d 910 (E.D. La. 2014).

There are many ways, as these lower court

decisions confirm, to look at this question:

originalism; rational basis review; animus;

fundamental rights; suspect classifications; evolving

meaning. The parties in one way or another have

invoked them all. Not one of the plaintiffs’ theories,

however, makes the case for constitutionalizing

the definition of marriage and for removing the

issue from the place it has been since the founding:

in the hands of state voters.

29a

Original meaning. All Justices, past and

present, start their assessment of a case about the

meaning of a constitutional provision by looking at

how the provision was understood by the people who

ratified it. If we think of the Constitution as a

covenant between the governed and the governors,

between the people and their political leaders, it is

easy to appreciate the force of this basic norm of

constitutional interpretation—that the originally

understood meaning of the charter generally will

be the lasting meaning of the charter. When two

individuals sign a contract to sell a house, no one

thinks that, years down the road, one party to the

contract may change the terms of the deal. That is

why the parties put the agreement in writing and

signed it publicly—to prevent changed perceptions

and needs from changing the guarantees in the

agreement. So it normally goes with the

Constitution: The written charter cements’ the

limitations on government into an_ unbending

bulwark, not a vane alterable whenever alterations

occur—unless and until the _ people, like

contracting parties, choose to change the contract

through the agreed-upon mechanisms for doing so.

See U.S. Const. art. V. If American lawyers in all

manner of settings still invoke the original meaning

of Magna Carta, a Charter for England in 1215,

surely it is not too much to ask that they (and we)

take seriously the original meaning of the United

States Constitution, a Charter for this country in

1789. Any other approach, too lightly followed,

converts federal judges from interpreters of the

document into newly commissioned authors of it.

30a

Many precedents gauging individual rights

and national power, leading to all manner of

outcomes, confirm the import of original meaning

in legal debates. See, e.g., Marbury v. Madison, 5

U.S. (1 Cranch) 137, 173—80 (1803); McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 401~—25 (1819);

Legal Tender Cases, 79 U.S. 457, 536-38 (1870);

Myers v. United States, 272 U.S. 52, 110—39 (1926);

INS v. Chadha, 462 U.S. 919, 944—59 (1983); Plaut

vu. Spendthrift Farm, Inc., 514 U.S. 211, 218-25

(1995); Washington v. Glucksburg, 521 U.S. 702,

710—19 (1997); Crawford v. Washington, 541 U.S. 36,

42-50 (2004); Boumediene v. Bush, 553 U.S. 723,

739—46 (2008); Giles v. California, 554 U.S. 353, 358~-

61 (2008); District of Columbia v. Heller, 554 U.S.

570, 576—600 (2008).

In trying to figure out the original meaning

of a provision, it is fair to say, the line between

interpretation and evolution blurs from time to time.

That is an occupational hazard for judges when it

comes to old or generally worded provisions. Yet

that knotty problem does not confront us. Yes, the

Fourteenth Amendment is old; the people ratified it

in 1868. And yes, it is generally worded; it says:

“(Njor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.” Nobody in this case,

however, argues that the people who adopted the

Fourteenth Amendment understood it to require the

States to change the definition of marriage.

Tradition reinforces the point. Only months

ago, the Supreme Court confirmed the significance

of long-accepted usage in constitutional

3la

interpretation. In one case, the Court held that the

customary practice of opening legislative meetings

with prayer alone proves the _ constitutional

permissibility of legislative prayer, quite apart from

how that practice might fare under the most up-to-

date Establishment Clause test. Town of Greece v.

Galloway, 134 S. Ct. 1811, 1818-20 (2014). In

another case, the Court interpreted the Recess

Appointments Clause based in part on long-accepted

usage. NLRB v. Noel Canning, 134 S. Ct. 2550,

2559—60 (2014). Applied here, this approach permits

today’s marriage laws to stand until the democratic

processes say they should stand no more. From the

founding of the Republic to 2003, every State

defined marriage as a relationship between a man

and a woman, meaning that the Fourteenth

Amendment permits, though it does not require,

States to define marriage in that way.

Rational basis review. Doctrine leads to the

same place as history. A first requirement of any

law, whether under the Due Process or Equal

Protection Clause, is that it rationally advance a

legitimate government policy. Vance v. Bradley, 440

U.S. 93, 97 (1979). Two words (“judicial restraint,”

FCC v. Beach Commce'ns, Inc., 508 U.S. 307, 314

(1993)) and one principle (trust in the people that

“even improvident decisions will eventually be

rectified by the democratic process,” Vance, 440 U.S.

at 97) tell us all we need to know about the light

touch judges should use in reviewing laws under this

standard. So long as judges can conceive of some

“plausible” reason for the law—any plausible reason,

even one that did not motivate the legislators who

32a

enacted it—the law must stand, no matter how

unfair, unjust, or unwise the judges may consider it

as citizens. Heller v. Doe, 509 U.S. 312, 330 (1993);

Nordlinger v. Hahn, 505 U.S. 1, 11, 17-18 (1992).

A dose of humility makes us hesitant to

condemn as unconstitutionally irrational a view of

marriage shared not long ago by every society in the

world, shared by most, if not all, of our ancestors,

and shaved still today by a significant number of the

States. Hesitant, yes; but still a rational basis, some

rational basis, must exist for the definition. What is

it? Two at a minimum suffice to meet this low bar.

One starts from the premise that governments got

into the business of defining marriage, and remain in

the business of defining marriage, not to regulate

love but to regulate sex, most especially the

intended and unintended effects of male-female

intercourse. Imagine a society without marriage. It

does not take long to envision problems that might

result from an absence of rules about how to

handle the natural. effects of male-female

intercourse: children. May men and women follow

their procreative urges wherever they take them?

Who is responsible for the children that result? How

many mates may an individual have? How does one

decide which set of mates is responsible for which

set of children? That we rarely think about these

questions nowadays shows only how far we have

come and how relatively stable our society is, not

that States have no explanation for creating such

rules in the first place.

Once one accepts a need to establish such

ground rules, and most especially a need to create

stable family units for the planned and unplanned

33a

creation of children, one can well appreciate why

the citizenry would think that a reasonable first

concern of any society is the need to regulate male-

female relationships and the unique procreative

possibilities of them. One way to pursue this

objective is to encourage couples to enter lasting

relationships through subsidies and other benefits

and to discourage them from ending such

relationships through these and other means. People

may not need the government’s encouragement to

have sex. And they may not need the government’s

encouragement to propagate the species. But they

may well need the government’s encouragement to

create and maintain stable relationships within

which children may flourish. It is not society’s laws

or for that matter any one religion’s laws, but

nature’s laws (that men and women complement

each other biologically), that created the policy

imperative. And governments typically are not

second-guessed under’ the Constitution § for

prioritizing how they tackle such issues. Dandridge

v. Williams, 397 U.S. 471, 486—87 (1970).

No doubt, that is not the only way people view

marriage today. Over time, marriage has come to

serve another value—to solemnize_ relationships

characterized by love, affection, and commitment.

Gay couples, no less than straight couples, are

capable of sharing such relationships. And gay

couples, no less than straight couples, are capable of

raising children and providing stable families for

them. The quality of such relationships, and the

capacity to raise children within them, turns not on

sexual orientation but on individual choices and

individual commitment. All of this supports the

policy argument made by many that marriage laws

34a

should be extended to gay couples, just as

nineteen States have done through their own

sovereign powers. Yet it does not show that the

States, circa 2014, suddenly must look at this policy

issue in just one way on pain of violating the

Constitution.

The signature feature of rational basis review

is that governments will not be placed in the dock

for doing too much or for doing too little in

addressing a policy question. Jd. In a modern

sense, crystallized at some point in the last ten

years, many people now critique state marriage

laws for doing too little—for being underinclusive by

failing to extend the definition of marriage to gay

couples. Fair enough. But rational basis review

does not permit courts to invalidate laws every time

a new and allegedly better way of addressing a policy

emerges, even a better way supported by evidence

and, in the Michigan case, by judicial factfinding. If

legislative choices may rest on “rational speculation

unsupported by evidence or empirical data,” Beach

Commce'ns, 508 U.S. at 315, it is hard to see the

point of premising a ruling of unconstitutionality on

factual findings made by one unelected federal judge

that favor a different policy. Rational basis review

does not empower federal courts to “subject”

legislative line- drawing to “courtroom” factfinding

designed to show that legislatures have done too

much or too little. Jd.

What we are left with is this: By creating a

status (marriage) and by subsidizing it (e.g., with

tax-filing privileges and deductions), the States

created an incentive for two people who procreate

together to stay together for purposes of rearing

35a

offspring. That does not convict the States of

irrationality, only of awareness of the biological

reality that couples of the same sex do not have

children in the same way as couples of opposite sexes

and that couples of the same sex do not run the risk

of unintended offspring. That explanation, still

relevant today, suffices to allow the States to retain

authority over an issue they have regulated from the

beginning.

To take another rational explanation for the

decision of many States not to expand the definition

of marriage, a State might wish to wait and see

before changing a norm that our society (like all

others) has accepted for centuries. That is not

preserving tradition for its own sake. No one here

claims that the States’ original definition of

marriage was unconstitutional when enacted. The

plaintiffs’ claim is that the States have acted

irrationally in standing by the traditional definition

in the face of changing social mores. Yet one of

the key insights of federalism is that it permits

laboratories of experimentation—accent on the

plural—allowing one State to innovate one way,

another State another, and a third State to assess

the trial and error over time. As a matter of state

law, the possibility of gay marriage became real in

2003 with the Massachusetts Supreme Judicial

Court’s decision in Goodridge. Eleven years later,

the clock has not run on assessing the benefits

and burdens of expanding the _ definition of

marriage. Eleven years indeed is not even the right

timeline. The fair question is whether in 2004, one

year after Goodridge, Michigan voters could stand by

the traditional definition of marriage. How can we

say that the voters acted irrationally for sticking

36a

with the seen benefits of thousands of years of

adherence to the traditional definition of marriage in

the face of one year of experience with a new

definition of marriage? A State still assessing how

this has worked, whether in 2004 or 2014, is not

showing irrationality, just a sense of stability and an

interest in seeing how the new definition has worked

elsewhere. Even today, the only thing anyone

knows for sure about the long-term impact of

redefining marriage is that they do not know. A

Burkean sense of caution does not violate the

Fourteenth Amendment, least of all when measured

by a timeline less than a dozen years long and when

assessed by a system of government designed to

foster step-by-step, not sudden winner-take-all,

innovations to policy problems.

In accepting these justifications for the four

States’ marriage laws, we do not deny the foolish,

sometimes offensive, inconsistencies that have

haunted marital legislation from time to time.

States will hand some people a marriage license no

matter how often they have divorced or remarried,

apparently on the theory that practice makes

perfect. States will not even prevent an individual

from remarrying the same person three or four

times, where practice no longer seems to be the

issue. With love and commitment nowhere to be

seen, States will grant a marriage license to two

friends who wish to share in the tax and other

material benefits of marriage, at least until the

State’s no-fault divorce laws allow them to exit the

partnership freely. And States allow couples to

continue procreating no matter how little stability,

safety, and love they provide the children they

already have. Nor has _ unjustified sanctimony

37a

stayed off the stage when it comes to marital

legislation—with monogamists who “do not monog”

criticizing alleged polygamists who “do not polyg.”

See Paul B. Beers, Pennsylvania Politics Today and

Yesterday 51 (1980).

How, the claimants ask, could anyone

possibly be unworthy of this civil institution?

Aren’t gay and straight couples both capable of

honoring this civil institution in some cases and of

messing it up in others? All of this, however, proves

much too much. History is replete with examples of

love, sex, and marriage tainted by hypocrisy.

Without it, half of the world’s literature, and three-

quarters of its woe, would disappear. Throughout, we

have never leveraged these inconsistencies about

deeply personal, sometimes existential, views of

marriage into a ground for constitutionalizing the

field. Instead, we have allowed state democratic

forces to fix the problems as they emerge and as

evolving community mores show they should be

fixed. Even if we think about today’s issue and

today’s alleged inconsistencies solely from the

perspective of the claimants in this case, it is

difficult to call that formula, already coming to

terms with a new view of marriage, a failure.

Any other approach would create line-

drawing problems of its own. Consider how

plaintiffs’ love-and-commitment' definition of

marriage would fare under their own rational basis

test. Their definition does too much because it fails to

account for the reality that no State in the country

requires couples, whether gay or straight, to be in

love. Their definition does too little because it fails

to account for plural marriages, where there is no

38a

reason to think that three or four adults, whether

gay, bisexual, or straight, lack the capacity to

share love, affection, and commitment, or for that

matter lack the capacity to be capable (and more

plentiful) parents to boot. If it is constitutionally

irrational to stand by the man-woman definition of

marriage, it must be constitutionally irrational to

stand by the monogamous definition of marriage.

Plaintiffs have no answer to the point. What they

might say they cannot: They might say that

tradition or community mores provide a rational

basis for States to stand by the monogamy

definition of marriage, but they cannot say that

because that is exactly what they claim is

illegitimate about the States’ male-female definition

of marriage. The predicament does not end there. No

State is free of marriage policies that go too far in

some directions and not far enough in others, making

all of them vulnerable—if the claimants’ theory of

rational basis review prevails.

Several cases illustrate just how seriously the

federal courts must take the line-drawing deference

owed the democratic process under rational basis

review. Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307 (1976), holds that a State

may require law enforcement officers to retire

without exception at age fifty, in order to assure the

physical fitness of its police force. If a rough

correlation between age and strength suffices to

uphold exception-free retirement ages (even though

some fifty-year-olds swim/bike/run triathlons), why

doesn’t a correlation between male-female

intercourse and procreation suffice to uphold

traditional marriage laws (even though some

straight couples don’t have kids and many gay

39a

couples do)? Armour v. City of Indianapolis, 132 5S.

Ct. 2073 (2012), says that if a city cancels a tax,

the bureaucratic hassle of issuing refunds entitles it

to keep money already collected from citizens who

paid early. If administrative convenience amounts to

an adequate public purpose, why not a rough sense

of social stability? More deferential still, Kotch uv.

Board of River Port Pilot Commissioners, 330 U.S.

552 (1947), concludes that a State’s interest in

maintaining close ties among those who steer ships

in its ports justifies denying pilotage licenses to

anyone who isnt a friend or relative of an

incumbent pilot. Can we honestly say that

traditional marriage laws involve more irrationality

than nepotism?

The debate over marriage of course has

another side, and we cannot deny the costs to the

plaintiffs of allowing the States to work through

this profound policy debate. The traditional

definition of marriage denies gay couples the

opportunity to publicly solemnize, to say nothing of

subsidize, their relationships under state law. In

addition to depriving them of this status, it deprives

them of benefits that range from the profound (the

right to visit someone in a hospital as a spouse or

parent) to the mundane (the right to file joint tax

returns). These harms affect not only gay couples

but also their children. Do the benefits of standing by

the traditional definition of marriage make up for

these costs? The question demands an answer—

but from elected legislators, not life-tenured judges.

Our task under the Supreme Court’s precedents is to

decide whether the law has some conceivable basis,

not to gauge how that rationale stacks up against

the arguments on the other side. Respect for

40a

democratic control over this traditional area of state

expertise ensures that “a statewide deliberative

process that enable[s] its citizens to discuss and

weigh arguments for and against same-sex

marriage” can have free and reasonable rein.

Windsor, 133 S. Ct. at 2689.

Animus. Given the broad deference owed the

States under the democracy-reinforcing norms of

rational basis review, the cases in which the Supreme

Court has struck down a state law on that basis are

few. When the Court has taken this step, it usually

has been due to the novelty of the law and the

targeting of a single group for disfavored treatment

under it. In one case, a city enacted a new zoning

code with the none-too-subtle purpose of closing

down a home for the intellectually disabled in a

neighborhood that apparently wanted nothing to do

with them. The reality that the code applied only

to homes for the intellectually disabled—and not

to other dwellings such as fraternity houses—led the

Court to invalidate the regulation on the ground that

the city had based it upon “an irrational

prejudice against the mentally retarded.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432,

450 (1985). In another case, a statewide initiative

denied gays, and gays alone, access to the

protection of the State’s existing antidiscrimination

laws. The novelty of the law, coupled with the

distance between the reach of the law and any

legitimate interest it might serve, showed that the

law was “born of animosity toward” gays and

suggested a design to make gays “unequal to

everyone else.” Romer, 517 U.S. at 634—35.

4la

None of the statewide initiatives at issue

here fits this pattern. The four initiatives, enacted

between 2004 and 2006, codified a long-existing,

widely held social norm already reflected in state

law. “[Mlarriage between a man and a woman,” as

the Court reminded us just last year, “had been

thought of by most people as essential to the very

definition of that term and to its role and function

throughout the history of civilization.” Windsor, 133

S. Ct. at 2689.

Neither was the decision to place the

definition of marriage in a State’s constitution

unusual, nor did it otherwise convey the kind of

malice or unthinking prejudice the Constitution

prohibits. Nineteen States did the same thing

during that period. Human Rights Campaign

Found., Equality from State to State 2006, at

13—14 (2006), available at http://s3.amazonaws.com/

hrc-assets//files/assets/resources/StateToState2007.

pdf. And if there was one concern animating the

initiatives, it was the fear that the courts would seize

control over an issue that people of good faith care

deeply about. If that is animus, the term has no

useful meaning.

Who in retrospect can blame the voters for

having this fear? By then, several state courts had

altered their States’ traditional definitions of

marriage under the States’ constitutions. Since then,

more have done the same. Just as state judges

have the authority to construe a state constitution

as they see fit, so do the people have the right to

overrule such decisions or preempt them as they see

fit. Nor is there anything static about this process.

In some States, the people have since re-amended

42a

their constitutions to broaden the category of those

eligible to marry. In other States, the people seemed

primed to do the same but for now have opted to

take a wait- and-see approach of their own as

federal litigation proceeds. See, e.g., Wesley Lowery,

Same- Sex Marriage Is Gaining Momentum,

but Some Advocates Don't Want It on the Ballot

in Ohio, Wash. Post (June 14, 2014),

http://www.washingtonpost.com/politics/same-sex-

marriage-is-gaining-momentum-but-ohio-advocates-

dont-want-it-on-the-ballot/2014/06/14/a090452a-

e77e-11le3-afc6-aldd9407abcf_story.html (explaining

that Ohio same-sex marriage advocates opted not

to place the question on the 2014 state ballot

despite collecting nearly twice the number of

required signatures). What the Court recently said

about another statewide initiative that people care

passionately about applies with equal vigor here:

“Deliberative debate on sensitive issues such as

racial preferences all too often may shade into

rancor. But that does not justify removing certain

court-determined issues from the voters’ reach.

Democracy does not presume that some subjects are

either too divisive or too profound for public debate.”

Schuette v. Coal. to Defend Affirmative Action, 134

S. Ct. 1623, 1638 (2014). “It is demeaning to the

democratic process to presume that the voters are

not capable of deciding an issue of this sensitivity

on decent and rational grounds.” /d. at 1637.

What of the possibility that other motivations

affected the amendment process in the four States?

If assessing the motives of multimember legislatures

is difficult, assessing the motives of all voters in a

statewide initiative strains judicial competence.

The number of people who supported each

43a

initiative—Michigan (2.7 million), Kentucky (1.2

million), Ohio (3.3 million), and Tennessee (1.4

million}—was large and surely diverse. In addition

to the proper role of the courts in a democracy, many

other factors presumably influenced the voters who

supported and opposed these amendments: that

some politicians favored the amendment and others

opposed it; that some faith groups favored the

amendment and others opposed it; that some

thought the amendment would strengthen families

and others thought it would weaken them or were

not sure; that some thought the amendment would

be good for children and others thought it would not

be or were not sure; and that some thought the

amendment would preserve a_ long-established

definition of marriage and others thought it was

time to accommodate gay couples. Even a rough

sense of morality likely affected voters, with some

thinking it immoral to exclude gay couples and

others thinking the opposite. For most people,

whether for or against the amendment, the truth of

why they did what they did is assuredly complicated,

making it impossible to pin down any one

consideration, as opposed to a rough aggregation of

factors, as motivating them. How in this setting

can we indict the 2.7 million Michigan voters who

supported the amendment in 2004, less than one

year after the first state supreme court recognized a

constitutional right to gay marriage, for favoring

the amendment for prejudicial reasons and for

prejudicial reasons alone? Any such conclusion

cannot be squared with the benefit of the doubt

customarily given voters and legislatures under

rational basis review. Even the _ gay-rights

community, remember, was not of one mind about

44a

taking on the benefits and burdens of marriage

until the early 1990s. See George Chauncey, Why

Marriage? The History Shaping Today’s Debate over

Gay Equality 58, 88 (2004); Michael J. Klarman,

From the Closet to the Altar: Courts, Backlash, and

the Struggle for Same-Sex Marriage 48-52 (2013). A

decade later, a State’s voters should not be taken to

task for failing to be of one mind about the issue

themselves.

Some equanimity is in order in assessing the

motives of voters who invoked a constitutionally

respected vehicle for change and for resistance to

change: direct democracy. See Pac. States Tel. & Tel.

Co. v. Oregon, 223 U.S. 118, 151 (1912). Just as gay

individuals are no longer abstractions, neither

should we treat States as abstractions. Behind

these initiatives were real people who teach our

children, create our jobs, and defend our shores.

Some of these people supported the initiative in

2004; some did not. It is no less unfair to paint the

proponents of the measures as a monolithic group

of hate-mongers than it is to paint the opponents

as a monolithic group trying to undo American

families. “Tolerance,” like respect and dignity, is

best traveled on a “two-way street.” Ward v. Polite,

667 F.3d 727, 735 (6th Cir. 2012). If there is a

dominant theme to the Court’s cases in this area, it

is to end otherness, not to create new others.

All of this explains why the Court’s decisions

in City of Cleburne and Romer do not turn on

reading the minds of city voters in one case or of

statewide initiative supporters in the other. They

turn on asking whether anything but prejudice to

the affected class could explain the law. See City of

45a

Cleburne, 473 U.S. at 450; Romer, 517 U.S. at 635.

No such explanations existed in those cases. Plenty

exist here, as shown above and as recognized by

many others. See Lawrence, 539 U.S. at 585

(O’Connor, J., concurring in the judgment)

(“Unlike the moral disapproval of same-sex

relations[,] . . . other reasons exist to promote the

institution of marriage beyond mere _ moral

disapproval of an excluded group.”); Bishop, 760 F.3d

at 1104—09 (Holmes, J., concurring) (same); Citizens

for Equal Prot. v. Bruning, 455 F.3d 859, 868 (8th

Cir. 2006) (enactment not “inexplicable by anything

but animus’ towards same-sex couples”); Conaway v.

Deane, 932 A.2d 571, 635 (Md. 2007) (no reason to

“infer antipathy”); Hernandez v. Robles, 855 N.E.2d

1, 8 (N.Y. 2006) (those who favor the traditional

definition are not “irrational, ignorant or bigoted”);

Andersen v. King Cnty., 138 P.3d 963, 981 (Wash.

2006) (en banc) (“the only reason” for the law was not

“anti-gay sentiment’).

One other point. Even if we agreed with the

claimants that the nature of these _ state

constitutional amendments, and the _ debates

surrounding them, required their invalidation on

animus grounds, that would not give them what

they request in their complaints: the right to same-

sex marriage. All that the invalidation of the

amendments would do is return state law to where it

had always been, a status quo that in all four States

included state statutory and common law definitions

of marriage applicable to one man and one

woman—definitions that mo one claims’ were

motivated by ill will. The elimination of the state

constitutional provisions, it is true, would allow

individuals to challenge the four States’ other

46a

marital laws on state constitutional grounds. No one

filed such a challenge here, however.

Fundamental right to marry. Under the Due

Process Clause, courts apply more muscular review—

“strict,” “rigorous,” usually unforgiving, scrutiny—to

laws that impair “fundamental” rights. In

considering the claimants’ arguments that they have

a fundamental right to marry each other, we must

keep in mind that something can be fundamentally

important without being a fundamental right under

the Constitution. Otherwise, state regulations of

many deeply important subjects—from education to

healthcare to living conditions to decisions about

when to die— would be subject to unforgiving

review. They are not. See San Antonio Indep. Sch.

Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (public

education); Maher v. Roe, 432 U.S. 464, 469 (1977)

(healthcare); Lindsey v. Normet, 405 U.S. 56, 73—74

(1972) (housing); Glucksberg, 521 U.S. at 728 (right

to die). Instead, the question is whether our nation

has treated the right as fundamental and therefore

worthy of protection under substantive due process.

More precisely, the test is whether the right is

“deeply rooted in this Nation’s history and tradition”

and “implicit in the concept of ordered liberty,” such

that “neither liberty nor justice would exist if they

were sacrificed.” Glucksberg, 521 U.S. at 721

(internal citations omitted). That requirement often

is met by placing the right in the Constitution, most

obviously in (most of) the guarantees in the Bill of

Rights. See id. at 720. But the mght to marry in

general, and the right to gay marriage in particular,

nowhere appear in the Constitution. That route for

47a

recognizing a fundamental right to same-sex

marriage does not exist.

That leaves the other option—that, even

though a proposed right to same-sex marriage does

not appear in the Constitution, it turns on bedrock

assumptions about liberty. This too does not work.

The first state high court to redefine marriage to

include gay couples did not do so until 2003 in

Goodridge.

Matters do not change because Loving uv.

Virginia, 388 U.S. 1 (1967), held that “marriage”

amounts to a fundamental right. When the Court

decided Loving, “marriage between a man and a

woman no doubt [was] thought of .. . as essential

to the very definition of that term.” Windsor, 133

S. Ct. at 2689. In referring to “marriage” rather

than “opposite-sex marriage,” Loving confirmed

only that “opposite-sex marnage” would have been

considered redundant, not that marriage included

same-sex couples. Loving did not change the

definition. That is why the Court said marriage is

“fundamental to our very existence and survival,”

388 U.S. at 12, a reference to the procreative

definition of marriage. Had a_ gay African-

American male and a gay Caucasian male been

denied a marriage license in Virginia in 1968, would

the Supreme Court have held that Virginia had

violated the Fourteenth Amendment? No one to our

knowledge thinks so, and no Justice to our

knowledge has ever said so. The denial of the license

would have turned not on the races of the

applicants but on a request to change the definition

of marriage. Had Loving meant something more

when it pronounced marriage a fundamental right,

48a

how could the Court hold in Baker five years later

that gay marriage does not even raise a substantial

federal question? Loving addressed, and rightly

corrected, an unconstitutional eligibility requirement

for marriage; it did not create a new definition of

marriage.

A similar problem confronts the claimants’

reliance on other decisions treating marriage as a

fundamental right, whether in the context of a

statute denying marriage licenses to fathers who

could not pay child support, Zablocki v. Redhail, 434

U.S. 374, 383 (1978), or a regulation restricting

prisoners’ ability to obtain marriage licenses,

Turner v. Safley, 482 U.S. 78, 94-95 (1987). It

strains credulity to believe that a year after each

decision a gay indigent father could have required

the State to grant him a marriage license for his

partnership or that a gay prisoner could have

required the State to permit him to marry a gay

partner. When Loving and its progeny used the

word marriage, they did not redefine the term but

accepted its traditional meaning.

No doubt, many people, many States. even

some dictionaries, now define marriage in a way

that is untethered to biology. But that does not

transform the fundamental-rights decision of Loving

under the old definition into a constitutional right

under the new definition. The question is whether

the old reasoning applies to the new setting, not

whether we can shoehorn new meanings into old

words. Else, evolving-norm lexicographers would

have a greater say over the meaning of the

Constitution than judges.

49a

The upshot of fundamental-rights status, keep

in mind, is strict-scrutiny status, subjecting al] state

eligibility rules for marriage to rigorous, usually

unforgiving, review. That makes little sense with

respect to the trials and errors societies historically

have undertaken (and presumably will continue to

undertake) in determining who may enter and leave

a marriage. Start with the duration of a marriage.

For some, marriage is a commitment for life and

beyond. For others, it is a commitment for life. For

still others, it is neither. In 1969, California enacted

the first pure no-fault divorce statute. See Family

Law Act of 1969, 1969 Cal. Stat. 3312. A

dramatic expansion of similar laws followed. See

Lynn D. Wardle, No-Fault Divorce and the Divorce

Conundrum, 1991 BYU L. Rev. 79, 90. The Court

has never subjected these policy fits and starts

about who may leave a marriage to strict scrutiny.

Consider also the number of people eligible to

marry. As late as the eighteenth century, “[t]he

predominance of monogamy was by no means a

foregone conclusion,” and “[ml]ost of the peoples and

cultures around the globe” had adopted a different

system. Nancy F. Cott, Public Vows: A History of

Marriage and the Nation 9 (2000). Over time,

American officials wove monogamy into marriage’s

fabric. Beginning in the nineteenth century, the

federal government “encouraged or forced” Native

Americans to adopt the policy, and in 1878 the

Supreme Court upheld a federal antibigamy law. Jd.

at 26; see Reynolds v. United States, 98 U.S. 145

(1878). The Court has never taken this topic under

its wing. And if it did, how would the constitutional,

as opposed to policy, arguments in favor of same-sex

marriage not apply to plural marriages?

50a

Consider finally the nature of the individuals

eligible to marry. The age of consent has not

remained constant, for example. Under Roman law,

men could marry at fourteen, women at twelve. The

American colonies imported that rule from England

and kept it until the mid-1800s, when the people

began advocating for a higher minimum age. Today,

all but two States set the number at eighteen. See

Vivian E. Hamilton, The Age of Marital Capacity:

Reconsidering Civil Recognition of Adolescent

Marriage, 92 B.U. L. Rev. 1817, 1824-32 (2012). The

same goes for the social acceptability of marriage

between cousins, a union deemed “desirable in many

parts of the world”; indeed, around “10 percent of

marriages worldwide are between people who are

second cousins or closer.” Sarah Kershaw, Living

Together: Shaking Off the Shame, N.Y. Times

(Nov. 25, 2009), http://www.nytimes.com/2009/1 1/26/

garden/26cousins.html. Even in the United States,

cousin marriage was not prohibited until the

mid-nineteenth century, when Kansas—followed by

seven other States—enacted the first ban. See Diane

B. Paul & Hamish G. Spencer, “/t’s Ok, We're Not

Cousins by Blood”: The Cousin Marriage

Controversy in Historical Perspective, 6 PLoS Biology

2627, 2627 (2008). The States, however, remain

split: half of them still permit the practice. Ghassemi

v. Ghassemi, 998 So. 2d 731, 749 (La. Ct. App. 2008).

Strict scrutiny? Neither Loving nor any other

Supreme Court decision says so.

Discrete and insular class without political

power. A separate line of cases, this one under the

Equal Protection Clause, calls for heightened review

5la

of laws that target groups whom legislators have

singled out for unequal treatment in the past. This

argument faces an _ initial impediment. Our

precedents say that rational basis review applies to

sexual-orientation classifications. See Davis v.

Prison Health Servs., 679 F.3d 433, 438 (6th Cir.

2012); Scarbrough v. Morgan Cnty. Bd. of Educ., 470

F.3d 250, 260-61 (6th Cir. 2006); Stemler v. City of

Florence, 126 F.3d 856, 873—74 (6th Cir. 1997).

There is another impediment. The Supreme

Court has never held that legislative classifications

based on sexual orientation receive heightened

review and indeed has not recognized a new suspect

class in more than four decades. There are ample

reasons for staying the course. Courts consider four

rough factors in deciding whether to treat a

legislative classification as suspect and

presumptively unconstitutional: whether the group

has been historically victimized by governmental

discrimination; whether it has aé_ defining

characteristic that legitimately bears on _ the

classification; whether it exhibits unchanging

characteristics that define it as a discrete group; and

whether it is politically powerless. See Rodriguez,

411 U.S. at 28.

We cannot deny the lamentable reality that

gay individuals have experienced prejudice in this

country, sometimes at the hands of public

officials, sometimes at the hands of fellow citizens.

Stonewall, Anita Bryant’s uninvited answer to the

question “Who are we to judge?’, unequal

enforcement of antisodomy laws between gay and

straight partners, Matthew Shepard, and the

language of insult directed at gays and others make

52a

it hard for anyone to deny the point. But we also

cannot deny that the institution of marriage arose

independently of this record of discrimination. The

traditional definition of marriage goes back

thousands of years and spans almost every society

in history. By contrast, “American laws targeting

same-sex couples did not develop until the last third

of the 20th century.” Lawrence, 539 U.S. at 570.

This order of events prevents us from inferring from

history that prejudice against gays led to the

traditional definition of marriage in the same way

that we can infer from history that prejudice

against African Americans led to laws against

miscegenation. The usual leap from history of

discrimination to intensification of judicial review

does not work.

Windsor says nothing to the contrary. In

arguing otherwise, plaintiffs mistake Windsor’s

avoidance of one federalism question for avoidance

of federalism altogether. Here is the key passage:

Despite these considerations, it is

unnecessary to decide whether this

federal intrusion on state power is a

violation of the Constitution because it

disrupts the federal balance. The

State’s power in defining the marital

relation is of central relevance in this

case quite apart from principles of

federalism. Here the State’s decision to

give this class of persons the right to

marry conferred upon them a dignity

and status of immense import. When

the State used its historic and

essential authority to define the marital

53a

relation in this way, its role and its

power in making the decision enhanced

the recognition, dignity, and protection

of the class in their own community.

DOMA, because of its reach and extent,

departs from this history and tradition

of reliance on state law to define

marriage. “[D]iscriminations of an

unusual character especially suggest

careful consideration to determine

whether they are obnoxious to the

constitutional provision.”

Windsor, 133 S. Ct. at 2692 (quoting Romer, 517

U.S. at 633). Plaintiffs read these words (and others

that follow) as an endorsement of heightened review

in today’s case, pointing to the first two sentences as

proof that individual dignity, not federalism,

animates Windsor’s holding.

Yet federalism permeates both parts of this

passage and both parts of the opinion. Windsor

begins by expressing doubts about whether Congress

has the delegated power to enact a statute like

DOMA at all. But instead of resolving the case on

the far-reaching enumerated- power ground, it

resolves the case on the narrower Romer ground—

that anomalous exercises of power targeting a single

group raise suspicion that bigotry rather than

legitimate policy is afoot. Why was DOMA

anomalous? Only federalism can supply the answer.

The national statute trespassed upon New York’s

time-respected authority to define the marital

relation, including by “enhanc[ing] the recognition,

dignity, and protection” of gay and lesbian couples.

Id. Today’s case involves no such “divest[ing]”/

54a

“depriv[ing]"/“undermin[ing]” of a marriage status

granted through a State’s authority over domestic

relations within its borders and thus provides no

basis for inferring that the purpose of the state

law was to “impose a disadvantage’/“a separate

status’/“a stigma” on gay couples. ld. at 2692—95.

When the Framers “split the atom of sovereignty.”

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

838 (Kennedy, J., concurring), they did so to enhance

liberty, not to allow the National Government to

divest liberty protections granted by the States in the

exercise of their historic and in this instance nearly

exclusive power. What we have here is something

entirely different. It is the States doing exactly what

every State has been doing for hundreds of years:

defining marriage as they see it. The only thing that

has changed is the willingness of many States over

the last eleven years to expand the definition of

marriage to encompass gay couples.

Any other reading of Windsor would require us

to subtract key passages from the opinion and add

an inverted holding. The Court noted that New

York “without doubt” had the power under its

traditional authority over marriage to extend the

definition of marriage to include gay couples and

that Congress had no power to enact “unusual”

legislation that interfered with the States’ long-held

authority to define marriage. Windsor, 133 S. Ct.

at 2692-93. A decision premised on heightened

scrutiny under the Fourteenth Amendment that

redefined marriage nationally to include same-sex

couples not only would divest the States of their

traditional authority over this issue, but it also

would authorize Congress to do something no one

would have thought possible a few years ago—to

55a

use its Section 5 enforcement powers to add new

definitions and extensions of marriage rights in the

years ahead. That would leave the States with

little authority to resolve ever-changing debates

about how to define marriage (and the benefits and

burdens that come with it) outside the beck and

call of Congress and the Court. How odd that one

branch of the National Government (Congress)

would be reprimanded for entering the fray in 2013

and two branches of the same Government (the

Court and Congress) would take control of the issue

a short time later.

Nor, as the most modest powers of observation

attest, is this a _ setting in which “political

powerlessness” requires “extraordinary protection

from the majoritarian political process.” Rodriguez,

411 U.S. at 28. This is not a setting in which

dysfunction mars the political process. See Reynolds

v. Sims, 377 U.S. 533 (1964); Baker v. Carr,

369 U.S. 186 (1962). It is not a setting in which

the recalcitrance of Jim Crow demands judicial,

rather than we-can’t-wait-forever legislative,

answers. See Brown v. Bd. of Educ., 347 U.S. 483

(1954). It is not a setting in which time shows that

even a potentially powerful group cannot make

headway on issues of equality. See Frontiero v.

Richardson, 411 U.S. 677 (1973). It is not a setting

where a national crisis—the Depression—seemingly

demanded constitutional innovation. See W. Coast

Hotel Co. v. Parrish, 300 U.S. 379 (1937). And it

is not a setting, most pertinently, in which the

local, state, and federal governments historically

disenfranchised the suspect class, as they did with

African Americans and women. See United States v.

Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

56a

Instead, from the claimants’ perspective, we

have an eleven-year record marked by nearly as

many successes as defeats and a widely held

assumption that the future holds more promise than

the past—if the federal courts will allow that future

to take hold. Throughout that time, other advances

for the claimants’ cause are manifest. Nationally,

“Don’t Ask, Don’t Tell” is gone. Locally, the

Cincinnati charter amendment that prevented gay

individuals from obtaining certain preferences from

the city, upheld by our court in 1997, Equality

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

Cincinnati, 128 F.3d 289 (6th Cir. 1997), is no more.

The Fourteenth Amendment does not insulate

influential, indeed eminently successful, interest

groups from a defining attribute of all democratic

initiatives—some succeed, some fail—particularly

when succeeding more and failing less are in the

offing.

Why, it is worth asking, the sudden change in

public opinion? If there is one thing that seems to

challenge hearts and minds, even souls, on this

issue, it is the transition from the abstract to the

concrete. If twenty-five percent of the population

knew someone who was openly gay in 1985, and

seventy-five percent knew the same in _ 2000,

Klarman, supra, at 197, it is fair to wonder how few

individuals still have not been forced to think about

the matter through the lens of a gay friend or family

member. That would be a discrete and insular

minority.

The States’ undoubted power over marriage

provides an independent basis for reviewing the laws

before us with deference rather than _ with

57a

skepticism. An analogy shows why. When a state law

targets noncitizens—a group marked by its lack of

political power and its history of enduring

discrimination—it must in general meet the most

demanding of constitutional tests in order to survive

a skirmish with a court. But when a federal law

targets noncitizens, a mere rational basis will save

it from invalidation. This disparity arises because

of the Nation’s authority (and the _ States’

corresponding lack of authority) over international

affairs. Mathews v. Diaz, 426 U.S. 67, 84-85 (1976).

If iederal preeminence in foreign relations requires

lenient review of federal immigration classifications,

why doesn’t state preeminence in domestic relations

call for equally lenient review of state marriage

definitions?

Evolving meaning. If all else fails, the

plaintiffs invite us to consider that “fa] core

strength of the American legal system ... is its

capacity to evolve” in response to new ways of

thinking about old policies. DeBoer Appellees’ Br.

at 57-58. But even if we accept this invitation and

put aside the past—original meaning, tradition, time-

respected doctrine—that does not take the plaintiffs

where they wish to go. We could, to be sure, look at

this case alongside evolving moral and _ policy

considerations. The Supreme Court has done so

before. Lawrence, 539 U.S. at 573. It may do so

again. “A prime part of the history of our

Constitution . .. is the story of the extension of

constitutional rights . . . to people once ignored or

excluded.” United States v. Virginia, 518 U.S. 515,

557 (1996). Why not do so here?

58a

Even on this theory, the marriage laws do

not violate the Constitution. A _ principled

jurisprudence of constitutional evolution turns on

evolution in society’s values, not evolution in judges’

values. Freed of federal-court intervention, thirty-

one States would continue to define marriage the

old-fashioned way. Lawrence, by contrast, dealt

with a situation in which just thirteen States

continued to prohibit sodomy, and even then most of

those laws had fallen into desuetude, rarely being

enforced at all. On this record, what right do we

have to say that societal values, as opposed to

judicial values, have evolved toward agreement in

favor of same-sex marriage?

The theory of the living constitution rests on

the premise that every generation has the right to

govern itself. If that premise prevents judges from

insisting on principles that society has moved past,

so too should it prevent judges from anticipating

principles that society has yet to embrace. It follows

that States must enjoy some latitude in matters of

timing, for reasonable people can disagree about just

when public norms have evolved enough to require a

democratic response. Today’s case captures the

point. Not long ago American society took for

granted the rough correlation between marriage

and creation of new life, a vision under which

limiting marriage to opposite-sex couples seemed

natural. Not long from now, if current trends

continue, American society may define marriage in

terms of affirming mutual love, a vision under which

the failure to add loving gay couples seems unfair.

Today’s society has begun to move past the first

picture of marriage, but it has not yet developed a

consensus on the second.

59a

If, before a new consensus has emerged on a

social issue, federal judges may decide when the

time is ripe to recognize a new constitutional right,

surely the people should receive some deference in

deciding when the time is ripe to move from one

picture of marriage to another. So far, not a single

United States Supreme Court Justice in American

history has written an opinion maintaining that the

traditional definition of marriage violates. the

Fourteenth Amendment. No one would accuse the

Supreme Court of acting irrationally in failing to

recognize a right to same-sex marriage in 2013.

Likewise, we should hesitate to accuse the States

of acting irrationally in failing to recognize the

right in 2004 or 2006 or for that matter today.

Federal judges engaged in the inherent pacing that

comes with living’ constitutionalism should

appreciate the inherent pacing that comes with

democratic majorities deciding within reasonable

bounds when and whether to embrace an evolving,

as opposed to settled, societal norm. The one form

of pacing is akin to the other, making it anomalous

for the Court to hold that the States act

unconstitutionally when making reasonable pacing

decisions of their own.

From time to time, the Supreme Court has

looked beyond our borders in deciding when to

expand the meaning of constitutional guarantees.

Lawrence, 539 U.S. at 576. Yet foreign practice only

reinforces the impropriety of tinkering with the

democratic process in this setting. The great

majority of countries across the world—including

such progressive democracies as Australia and

Finland—still adhere to the traditional definition of

marriage. Even more telling, the European Court of

60a

Human Rights ruled only a few years ago that

European human rights laws do not guarantee a

right to same-sex marriage. Schalk & Kopf v.

Austria, 2010-IV Eur. Ct. H.R. 409. “The area in

question,” it explained in words that work just as

well on this side of the Atlantic, remains “one of

evolving rights with no established consensus,”

which means that States must “enjoy [discretion] in

the timing of the introduction of legislative

changes.” Id. at 438. It reiterated this conclusion as

recently as this July, declaring that “the margin of

appreciation to be afforded” to States “must still be

a wide one.” Hdmdldinen v. Finland, No. 37359/09,

HUDOC, at *19 (Eur. Ct. H.R. July 16, 2014).

Our Supreme Court relied on the European Court’s

gay-rights decisions in Lawrence. 539 U.S. at 576.

What neutral principle of constitutional

interpretation allows us to ignore the European

Court’s same-sex marriage decisions when deciding

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.