# Petition for Writ of Certiorari — Obergefell v. Hodges > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A002 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2015 - **Citation:** 576 U.S. 644 ## 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. li 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. ii 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 lv 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 1 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. 2 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, 6 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 9 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). 10 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 11 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. 12 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. 13 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. 14 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. 15 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. 16 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. 17 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 18 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”). 19 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)— - - . ° l Happy Adoption Day Words and Music by John McCulcheon © 1992 John McCutcheon/Appalsongs (ASCAP) Oh who would have guessed, who could have seen Who could have possibly known All these roads we have traveled, the places we’ve been Would have finally taken us home. So here’s to you, three cheers to you Let’s shout it, “Hip, hip horray!” For out of a world so tattered and torn, You came to our house on that wonderful morn And all of a sudden this family was born Oh, happy Adoption Day! 159a There are those who think families happen by chance A mystery their whole life through But we had a voice and we had a choice We were working and waiting for you. So here’s to you, three cheers to you Let's shout it, “Hip, hip horray!” For out of a world so tattered and torn, You came to our house on that wonderful morn And all of a sudden this family was born Oh, happy Adoption Day! No matter the time and no matter the age No matter how you came to be No matter the skin, we are all of us kin We are all of us one family. So here’s to you, three cheers to you Let’s shout it, “Hip, hip horray!” For out of a world so tattered and torn, You came to our house on that wonderful morn And all of a sudden this family was born Oh, happy Adoption Day! 160a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Case No. 1:13-cv-501 Judge Timothy S. Black JAMES OBERGEFELL, et al., Plaintiffs, vs. THEODORE E. WYMYSLO, M.D., et al., Defendants. FINAL ORDER GRANTING PLAINTIFFS’ MOTION FOR DECLARATORY JUDGMENT AND PERMANENT INJUNCTION This civil case is before the Court for final decision on Plaintiffs’ Motion for Declaratory Judgment and Permanent Injunction (Doc. 53), the record evidence (Docs. 34, 42-47, 61; see Appendix at pp. 49-50'), Defendants’ memorandum in opposition (Doc. 56), Plaintiffs’ reply (Doc. 62), and oral argument held on December 18, 2013. Plaintiffs include two individuals who entered into legal same- sex marriages in states that provide for such marriages and have been denied recognition of those legal marriages on their spouses’ death certificates by the State of Ohio. Plaintiffs seek a declaratory judgment that, as applied to them, Ohio’s ban on the recogniticn of legal same-sex marriages granted in other states is unconstitutional; and, therefore, that a permanent injunction compelling Defendants and 16la their officers to recognize Plaintiffs’ marriages on Ohio death certificates is required under the law and the evidence. Also present as a Plaintiff is Robert Grunn, an Ohio funeral director, who seeks a declaration of his rights and duties when preparing death certificates for individuals in same-sex marriages. Defendants are the local and state officers responsible for death certificates. OVERVIEW The Court’s ruling today is a limited one, and states simply, that under the Constitution of the United States, Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates, just as Ohio recognizes all other out-of- state marriages, if valid in the state performed, and even if not authorized nor validly performed under Ohio law, such as marriages between first cousins, marriages of certain minors, and common law marriages. That is, once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution. U.S. Const. amend. XIV, § 1. Moreover, as this Court held in its initial Orders this summer and reaffirms today, by treating lawful same-sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins, marriages of certain minors, and common law marriages), Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s 162a guarantee of equal protection: that “No State shall make or enforce any law which shall .. . deny to any person within its jurisdiction equal protection of the laws.” U.S. Const. amend. XIV, § 1. Therefore, under the Constitution of the : —_ > United States, Ohio must recognize on Ohio death . . . > , . " -L* . Je - sve : . “ | > 7 - — - J . ? » This conclusion flows from the Windsor decision of the United States Supreme Court this past summer, which held that the federal government cannot refuse to recognize a valid same- sex marriage. United States v. Windsor, _U.S.__., 133 S. Ct. 2675 (2013). And now it is just as Justice Scalia predicted! — the lower courts are applying the Supreme Court’s decision,? as they must, and the ' In a vigorous dissent to the Windsor ruling, Justice Scalia predicted that the question whether states could refuse to recognize other states’ same-sex marriages would come quickly, and that the majority’s opinion spelled defeat for any state's refusal to recognize same-sex marriages authorized by a co- equal] state. As Justice Scalia predicted: “no one should be fooled [by this decision] ... the majority arms well any challenger to a state law restricting marriage to its traditional definition ... it's just a matter of listening and waiting for the other shoe [to drop}.” Windsor, 133 S. Ct. at 2710 (Scalia, J., dissenting). 2 See Griego v. Oliver, No. 34,306, 2013 WL 6670704, at *22 (N.M. Dec. 19, 2013) ("Denying same-gender couples the right to marry and thus depriving them and their families of the rights, protections, and responsibilities of civil marriage violates the equality demanded by the Equal Protection Clause of the New Mexico Constitution.”); see also Kitchen v. Herbert, 2:13-CV-00217 (D. Utah Dec. 20, 2013) (“Utah's prohibition on same-sex marriage conflicts with the United States Constitution's guarantees of equal protection and due process under the law.”). 163a question is presented whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples ... simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no, as follows. I. ESTABLISHED FACTS A. Marriage Law in Ohio The general rule in the United States for interstate marriage recognition is the “place of celebration” rule, or lex loci contractus, which provides that marriages valid where celebrated are valid everywhere. (Doc. 44-1 at ¥ 7). Historically, Ohio has recognized marriages that would be invalid if performed in Ohio, but are valid in the jurisdiction where celebrated. This is true even when such marriages clearly violate Ohio law and are entered into outside of Ohio with the purpose of evading Ohio’s unwillingness to grant them. (/d.). Ohio departed from this tradition in 2004 to adopt its * As the Supreme Court has explained: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis supplied). 164a statutory and constitutional prohibitions on the recognition of marriages between two individuals of the same sex (“marriage recognition bans”). (/d. at 44 7, 32, 60). Prior to 2004, the Ohio legislature had never passed a law denying recognition to a specific type of marriage solemnized outside of the state. (/d. at WY 32, 51). Ohio Revised Code Section 3101 was amended in 2004 to prohibit same-sex marriages in the state and to prohibit recognition of same-sex marriages from other states. Sub-section (C) provides the following: (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 marnage 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 165a 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... (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. Ohio Rev. Code Ann. § 3101.01. Also adopted in 2004 was an amendment to the Ohio Constitution, which states: Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create’ or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage. Ohio Const. art. XV, § 11. 166a At the time of the passage of these provisions, Governor Robert Taft stated that their purpose was “to reaffirm existing Ohio law with respect to our most basic, rooted, and time-honored institution: marriage between a man and a woman.” He went on: Marriage is an essential building block of our society, an institution we must reaffirm. At a time when parents and families are under constant attack within our social culture, it is important to confirm and protect those environments that offer our children, and ultimately our society, the best opportunity to thrive. (Doc. 41-1 at § 72). During the 2004 floor debates over the legislation, Senator Jeff Jacobson stated that the legislation would not interfere with “the way adults choose to order their lives” because “[a]dults can form household relationships” after the passage of the legislation even though those relationships “don’t have all the bells and whistles,” “{plerhaps don't have all the opportunities,” and do not appear “equal to everyone else’s.” (/d. at 4 59). The primary sponsor for the 2004 Ohio constitutional amendment, Citizens for Community Values (“CCV”), described as its core principle its goal to protect Ohio from the “inherent dangers of the homosexual activists’ agenda.” (/d. at 4 82). CCV sent letters to school boards and superintendents in Ohio warning them, erroneously, that they would face criminal and “daunting” civil liability if they took measures to protect lesbian and 167a gay students from violence and harassment. (/d. at 4 84). In one of CCV’s campaign publications, the organization misled Ohio voters about the need for the amendment, stating that marriage equality advocates sought to eliminate age requirements for marriage, advocated polygamy, and_é sought elimination of kinship limitations so that incestuous marriages could occur. Ud. at 4 85). CCV warned Ohio employers that “[sJexual relationships between members of the same sex expose gays, lesbians and bisexuals to extreme risks of sexually transmitted diseases, physical injuries, mental disorders and even a shortened life span.” (Jd. at 4 86). The television and media campaign in support of the amendment contained misleading statements, such as “[w]le won't have a future unless [heterosexual] moms and dads have children,” and that “[e]very major social science study tells us time and again: families are stronger with a wife and a husband; children do better with a mother and a father.” (Ud. at 4 88).* B. Plaintiffs James Obergefell, John Arthur (now deceased), David Michener, and Robert Grunn Longtime Cincinnati residents James Obergefell and John Arthur met in 1992 and lived together in a loving, committed relationship for more than 20 years. (Doc. 3-1 at 99 2-3). In 2011, Mr. 4 With this Court’s leave, CCV also filed an amicus brief in this case. (Doc. 61). Among its many remarkable and fundamentally baseless arguments, one of the most offensive is that adopted children are less emotionally healthy than children raised by birth parents. 168a Arthur was diagnosed with amyotrophic lateral sclerosis (“ALS”), a terminal illness. (Ud. at § 8). After the Supreme Court’s decision in Windsor requiring the federal government to recognize valid same-sex marriages, Mr. Obergefell and Mr. Arthur decided to get married. (/d. at 4 11). On July 11, 2013, the couple boarded a medically equipped plane to travel to Maryland, a state that provides for same-sex marriages, and were married in the plane as it sat on the tarmac. (Ud. at 4 12). Under Ohio law, their marriage was not recognized for any purpose until this Court granted them a temporary restraining order requiring that upon Mr. Arthur’s death, his death certificate reflect that he was married and that Mr. Obergefell is his surviving spouse. (Ud. at 4 13; Doc. 14). Mr. Arthur died on October 22, 2013, and his death certificate was issued in compliance with this Court’s Order. (Docs. 51, 52). Without this Court ordering a permanent injunction, Mr. Arthur’s death certificate would need to be amended to remove any mention of his husband, Mr. Obergefell, or their marriage. Ohio Rev. Code Ann. § 3705.22. Plaintiff David Michener and his late spouse, William Herbert Ives, were together as a loving couple for 18 years and adopted three children together. (Doc. 21 at 1). On July 22, 2013, Mr. Michener and Mr. Ives were married in Delaware, a state that provides for same-sex marriages. (/d.) On August 27, 2013, Mr. Ives died unexpectedly of natural causes. (/d.) In order for the cremation of Mr. Ives’ remains to proceed, a death certificate had to be issued, and Plaintiff Michener sought a death certificate that accurately reflected their marriage. Ud.) This Court entered a temporary restraining order granting such relief on September 3, 2013. 169a (Doc. 23). Without a permanent injunction, the Court-ordered death certificate of William Herbert Ives would need to be amended to remove any mention of Mr. Michener or their marriage. Ohio Rev. Code Ann. § 3705.22. Robert Grunn is a licensed funeral director operating his business in Cincinnati, Ohio. (Doc. 34-1 at 99 2, 12). Mr. Grunn is a gay man and is known within the gay community as a gay-friendly funeral director. Ud. at § 11). One of his responsibilities as a funeral director is to fill out death certificates, including the portion of the certificate indicating the deceased’s marital status and the name of the surviving spouse. (Jd. at § 3). He uses Ohio Department of Health software to do this, and for deaths that occur in Cincinnati, he delivers the death certificates to the office of Defendant Camille Jones. (/d. at 9] 3, 5). In his experience, his clients often do not realize the importance of death certificates until he returns certified copies to them. (/d. at 4 7). Mr. Grunn has multiple married gay or lesbian clients, including Mr. Obergefell, who utilized his services when Mr. Arthur died. Ud. at 94 13-15). In the future, Mr. Grunn is certain to face the question of how to fill out death certificates for married same-sex couples. (Jd.) Mr. Grunn intends to record the marital status as “married” and list the surviving spouse of the next married decedent with a same-sex spouse that he serves, but fears that by doing so he may be prosecuted for purposely making a false statement on a death certificate. (dd. at § 17). He seeks a declaration of his mghts and duties when serving clients with same-sex spouses. (Doc. 53-1 at 12). 170a II. STANDARD OF REVIEW An “as-applied challenge” to a law, as here, limits the relief to the particular circumstances of the plaintiff. A “facial challenge,” not presented here, generally seeks to declare or enjoin a law as unconstitutional in all respects. In this case. Plaintiffs have requested injunctive and declaratory relief limited to the issue of marriage recognition on death certificates. The narrow breadth of the remedy employed by this Court reflects this distinction. See Citizens United v. Fed. Elections Comm.. 558 U.S. 310, 331 (2010). A permanent injunction is appropriate if a party “can establish that it suffered a constitutional violation and will suffer ‘continuing irreparable injury for which there is no adequate remedy at law.” Women's Med. Profil Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)). It is within the sound discretion of the district court to grant or deny a motion for permanent injunction. See Kallstrom, 136 F.3d at 1067; Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994) (district court erred in failing to rule on permanent injunction request). In the Sixth Circuit, “[t]he two principal criteria guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W. R. Co. v. 1l7la Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984)). Both criteria for rendering a declaratory judgment are established here. Ill, ANALYSIS A. Due Process Clause The Due Process Clause of the Fourteenth Amendment to the United States Constitution establishes that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. And “[t}he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” that is protected by the Due Process Clause. Loving v. Virginia, 388 U.S. 1, 12 (1967).5 However, although neither the United States Court of Appeals for the Sixth Circuit nor the Supreme Court of the United States has spoken on the issue, most courts have not found that a right to same-sex marriage is implicated in the fundamental right to marry. See, e.g., Jackson v. Abercrombie, 884 5 See also Turner v. Safley, 482 U.S. 78, 95 (1987) (“The decision to marry is a fundamental right”); Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (“[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition”); Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965) (intrusions into the “sacred precincts of marital bedrooms” offend rights “older than the Bill of Rights”); id., at 495-496 (Goldberg, J., concurring) (the law in question “disrupt[ed] the traditional relation of the family — a relation as old and as fundamental as our entire civilization”); see generally Washington v. Glucksberg, 521 U.S. 702, 727 n.19 (1997) (citing cases). 172a F. Supp. 2d 1065, 1094-98 (D. Haw. 2012) (“Other courts considering claims that same-sex couples have a fundamental right to marry, have concluded that the right at issue is not the existing fundamental ‘right to marry.”) (collecting cases).® In situations like those of Plaintiffs, however, where same-sex couples legally marry outside of Ohio and then reside in Ohio, a different right than the fundamental right to marry is also implicated: here, the constitutional due process right at issue is not the right to marry, but, instead, the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.7 6 See also Wilson v. Ake, 354 F. Supp. 2d 1298, 1306-07 (M.D. Fla. 2005) (“No federal court has recognized that [due process] . . includes the right to marry a person of the same sex”) (internal citation omitted); Conaway v. Deane, 932 A.2d 571, 628 (Md. App. 2007) (“[V]irtually every ccurt to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole”); Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006) (“The right to marry is unquestionably a fundamental right . . . The right to marry someone of the same sex, however, is not “deeply rooted,” it has not even been asserted until relatively recent times”). But see Kitchen v. Herbert, 2:13-CV-00217 (D. Utah Dec. 20, 2013). 7 The concept of the right to remain married as a liberty interest protected by the Due Process Clause is eloquently advanced by Professor Steve Sanders in his article, The Constitutional Right to (Keep Your) Same-Sex Marriage, 110 MICH. L. REV. 1421 (2011). This judge acknowledges significant reliance upon Professor Sanders’s learned (and more extended) analysis of the fundamental right to remain married. 173a 1. Right of Marriage Recognition As the Supreme Court has observed, the idea of being married in one state and unmarried in another is one of “the most perplexing and distressing complication[s] in the domestic relations of .. . citizens.” Williams v. North Carolina, 317 U.S. 287, 299 (1942). In identifying the right to remain married as fundamental, Professor Sanders points out that the “f[lJaw favors. stability in legal relationships, vindication of justified expectations, and preventing casual evasion of legal duties and responsibilities.” Sanders, 110 MICH. L. REV. at 1425. Moreover, the Supreme Court has established that existing marital, family, and _ intimate relationships are areas into which the government should generally not intrude without substantial justification. See Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984); see also Lawrence v. Texas, 549 U.S. 558, 578 (2003). Based on these principles, the concept that a marriage that has legal force where it was celebrated also has legal force throughout the country has been a longstanding general rule in every state.® The_ right to remain married is therefore properly recognized as one that is a fundamental liberty interest appropriately protected by the Due Process Clause of the United States Constitution. Here, Ohio’s marriage recognition bans violate this fundamental right without rational justification. 8 Joanna L. Grossman, Resurrecting Comity: Revisiting the Problem of Non-Uniform Marriage Laws, 84 OR. L. REV. 433, 461 (2005) (historically, “[a]ll jurisdictions followed some version of lex loci contractus in evaluating the validity of a marriage’). 174a a. Level of Scrutiny As a general matter, the Supreme Court applies strict scrutiny when a state law encroaches on a fundamental right. Roe v. Wade, 410 U.S. 113. 155 (1973). While the right to marriage recognition has not historically been labeled “fundamental,” in the Supreme Court cases establishing the highly- protected status of existing marriage, family, and intimate relationships, the Court has applied an intermediate standard of review falling between rational basis and strict scrutiny. See, e.g., Moore, 431 U.S. at 113 (1977) (balancing the state interests advanced and the extent to which they are served by the challenged law against the burden on plaintiffs rights); Zablocki v. Redhail, 434 U.S. 374 (1978) (same). As the Ninth Circuit has observed, in Lawrence, the “[Supreme] Court’s rationale for its holding — the inquiry analysis that it was applying — is inconsistent with rational basis review.” Witt v. Dep't of the Air Force, 527 F.3d 806, 817 (9th Cir. 2008). The Ninth Circuit also took note of a post- Lawrence substantive due process case, Sell v. United States, 39 U.S. 166 (2003), in which the Supreme Court recognized a “significant constitutionally protected liberty interest” (but not a fundamental right) in “avoiding the unwanted administration of antipsychotic drugs.” /d. at 178 (quoting Washington v. Harper, 494 U.S. 210, 221 (1990)). The Supreme Court held that such intrusion on personal interests by the government was permissible only where it was “necessary significantly to further important governmental trial- related interests.” Jd. at 179. In other words, a mere legitimate interest would not suffice. The court’s conclusion in Witt that, based on Lawrence and Sell, 175a intermediate scrutiny was appropriate is also applicable to the case at hand: for when “the government attempts to intrude upon the private lives of homosexuals,” then “the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.” Witt, 527 F.3d at 817. Based on the foregoing, the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into — and in fact erasing — Plaintiffs’ already-established marital and family relations. b. Burden on Plaintiffs When couples — including same-sex couples — enter into marriage, it generally involves long-term plans for how they will organize their finances, property, and family lives. “In an age of widespread travel and ease of mobility, it would create inordinate confusion and defy the reasonable expectations of citizens whose marriage is valid in one state to hold that marriage invalid elsewhere.” Jn re Estate of Lenherr, 314 A.2d 255, 258 (Pa. 1974). Couples moving from state to state have an expectation that their marriage and, more concretely, the property interests involved with it — including bank accounts, inheritance rights, property, and other rights and benefits associated with marriage — will follow them. When a state effectively terminates the marriage of a same-sex couple married in another jurisdiction, it intrudes into the realm of private marital, family, and intimate relations specifically protected by the Supreme Court. After 176a Lawrence, same-sex relationships fall squarely within this sphere, and when it comes to same-sex couples, a state may not “seek to control a personal relationship,” “define the meaning of the relationship,” or “set its boundaries absent injury to a person or abuse of an institution the law protects.” Lawrence, 539 U.S at 578. For example, when a_e parents legal relationship to her child is terminated by the state, it must present clear and convincing’ evidence supporting its action to overcome the burden of its loss. Santosky v. Kramer, 455 U.S. 745, 753, 769 (1982). Here, in this case, a similar legal familial relationship is unilaterally terminated by Ohio's marriage recognition bans, without any due process. Moreover, Ohio's official statutory and constitutional establishment of same-sex couples married in other jurisdictions as a disfavored and disadvantaged subset of people has a destabilizing and stigmatizing impact on them. In striking down the statutory provision that had denied gay and lesbian couples federal recognition of their otherwise valid marriages, the Supreme Court in Windsor observed: {The relevant statute] tells those cuuples, and all the world, that their otherwise valid marriages are unworthy of . . . recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the _ couple, whose moral and sexual choices the Constitution protects .. . And it 177a humiliates tens of thousands of children now being raised by same-sex couples. The law in question 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. Windsor, 133 S. Ct. at 2694. Ohio death certificates, which currently do not reflect legal marriages of same-sex couples outside of this litigation, are important not only for the dignity of the surviving spouse and his or her family, but also have evidentiary value for rights such as receiving life insurance payouts, claiming social security survivors benefits, administering wills, and title transfers for automobiles, real estate, and other property. (Doc. 34-1 at ¥ 6; Doc. 45-1 at ¥ 17). However, in Ohio, when a married person domiciled in Ohio who has a valid same-sex marriage from another jurisdiction dies, the estate administration unfolds as if the person had died unmarried, and the many rights afforded to surviving spouses under Ohio probate law are denied to same-sex surviving spouses. While, after Windsor, many federal tax laws that used to disfavor same-sex spouses over opposite- sex spouses no longer do so, Ohio’s tax commission has refused to offer same-sex spouses equal rights under its regulations. (Doc. 45-1 at 49 40-43). Married same-sex couples must consider many additional burdens in their estate planning in order to try to protect their surviving spouse from financial vulnerability. Ud. at 94 50-65). 178a In the family law context, while opposite-sex married couples can invoke step-parent adoption procedures or adopt children together, same-sex married couples cannot. While Ohio courts allow an individual gay or lesbian person to adopt a child, a same-sex couple cannot. (Doc. 41-1 at § 17). Same- sex couples are denied local and state tax benefits available to heterosexual married couples, denied access to entitlement programs (e.g., Medicaid, food stamps, welfare benefits, etc.) available to heterosexual married couples and their families, barred by hospital staff and/or relatives from their long-time partners’ bedsides during serious and final illnesses due to lack of ilegally-recognized relationship status, denied the remedy of loss of consortium when a spouse is seriously injured through the acts of another, denied the remedy of a wrongful death claim when a spouse is fatally injured through the wrongful acts of another, and evicted from their homes following a spouse’s death because same-sex spouses are considered complete strangers to each other in the eyes of the law. (/d. at 4 23). The benefits of state-sanctioned marriage are extensive, and the injuries raised and evidenced by Plaintiffs represent just a portion of the harm suffered yy same-sex married couples due to Ohio’s refusal to recognize and give the effect of law to their legal unions. c. Potential State Interests 179a Defendants advance a number of interests in support of Ohio’s marriage recognition bans. (Doc. 56 at 33-40). Defendants cite “Ohioans’ desire to retain the right to define marriage through the democratic process,” “avoiding judicial intrusion upon a historically legislative function,” “Ohio’s interest in approaching social change with deliberation and due care,” “the desire not to alter the definition of marriage without evaluating steps to safeguard the religious rights and beliefs of others,” and “Ip]reserving the traditiona) definition of marriage,” although they raise these interests in the context of a rational basis equal protection analysis. (/d.) In the intermediate scrutiny context, however, these vague, speculative, and unsubstantiated state interests do not rise anywhere near the level necessary to counterbalance the specific, quantifiable, and particularized injuries evidenced here and suffered by same-sex couples when their existing legal marriages and the _ attendant protections and benefits are taken from them by the state. Defendants argue that Windsor stressed that “regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” Windsor, 133 S. Ct. at 2692. However, as Defendants acknowledge, this regulation is “subject to constitutional guarantees.” (Doc. 56 at 18). As the Supreme Court has explained: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them bevond the reach of majorities and officials and to 180a establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submi vote; t d nd on the me of no elections. W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis supplied). Regardless of the justifications provided by an enactment’s proponents, the Supreme Court has clearly stated that if such an enactment violates the U.S. Constitution — whether passed by the people or their representatives — judicial intervention is necessary to preserve the rule of law. See, e.g., Watson v. City of Memphis, 373 U.S. 526, 528 (1963) (rejecting appeal by city to permit delay in desegregation based on alleged “need and wisdom of proceeding slowly and gradually”). The electorate order a violation of the Due r Equ Protection Clauses by referendum or otherwise, just as the state may not avoid their application by deferring to the wishes or objections of its citizens. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). The fact that each state has the exclusive power to create marriages within its territory does not logically lead to the conclusion that states can nullify already-established marriages from other co- equal states absent due process of law. Perhaps the interests raised by Defendants may be more compelling in the context of marriage creation than they are in the context of marriages that have 18la already taken place and same-sex relationships that already exist, i.e., marriage recognition.® Defendants have not provided evidence of any state interest compelling enough to counteract the harm Plaintiffs suffer when they lose, simply because they are in Ohio, the immensely important dignity, status, recognition, and protection of lawful marriage. As the Supreme Court held in Windsor, marriage confers “a dignity and status of immense import.” Windsor, 133 U.S. at 2692. Accordingly, Ohio’s refusal to recognize same- sex marriages performed in other states violates the substantive due process rights of the parties to those marriages because it deprives them of their significant liberty interest in remaining married absent a sufficient articulated state interest for doing so or any due process. procedural protection whatsoever. ® The Court acknowledges the continuing pendency of Section 2 of the discredited federal Defense of Marriage Act (“DOMA”), which Section 2 was not before the Supreme Court in Windsor, and wherein Congress has sought to invoke its power under the Constitution’s full faith and credit clause to state that “[n]Jo State ... shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State,” 28 U.S.C. § 1738C, but this Court states affirmatively that Section 2 of DOMA does not provide a legitimate basis for otherwise constitutionally invalid state laws, like Ohio’s marriage recognition bans, no matter what the level of scrutiny. Although Section 2 of DOMA is not specifically before this Court, the implications of today’s ruling speak for themselves. See also Kitchen v. Herbert, 2:13-CV-00217 (D. Utah Dec. 20, 2013). 182a 2. Right to Marry Although it is unnecessary to reach the issue of whether the fundamental right to marry itself also endows Ohio same-sex couples married in other jurisdictions with a significant liberty interest in their marriages for substantive due process purposes, the Court notes that a substantial logical and jurisprudential basis exists for such a conclusion as well]. 1° 10 While states do have a legitimate interest in regulating and promoting marriage, the fundamental right to marry belongs to the individual. Thus, “the regulation of constitutionally protected decisions, such as where a person shall reside or whom he or she shall marry, must be predicated on legitimate state concerns other than disagreement with the choice the individual has made.” Hodgson v. Minnesota, 497 U.S. 417, 435 (1990); see also Loving, 388 U.S. at 12 (“Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”); Roberts, 468 U.S. at 620 (“[T]he Constitution undoubtedly imposes constraints on the State's power to control the selection of one’s spouse .. .”). In individual cases regarding parties to potential marriages with a wide variety of characteristics, the Supreme Court consistently describes a general “fundamental right to marry” rather than “the right to interracial marriage,” “the right to inmate marriage,” or “the right of people owing child support to marry.” See Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 982 n.5 (N.D. Cal. 2012) (citing Loving, 388 U.S. at 12; Turner, 482 U.S. at 94-96; Zablocki, 434 U.S. at 383-86; accord In re Marriage Cases, 183 P.3d 384, 421 n.33 (Cal. 2008) (Turner “did not characterize the constitutional right at issue as ‘the right to inmate marriage”’). And the Supreme Court held in Lawrence that the right of consenting adults (including same- sex couples) to engage in private, sexual intimacy is protected by the Fourteenth Amendment's protecticn of liberty. 183a notwithstanding the historical existence of sodomy laws and their use against gay people. For the same reasons, the fundamental right to marry is “deeply rooted in this Nation's history and tradition” for purposes of constitutional protection even though same-sex couples have not historically been allowed to exercise that right. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” Lawrence, 539 U.S. at 572 (citation omitted). While courts use history and tradition to identify the interests that due process protects, they do not carry forward historical limitations, either traditional or arising by operation of prior law, on which Americans may exercise a right once that right is recognized as one that due process protects. “Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.” Jn re Marriage Cases, 183 P.3d at 430 (quotation omitted). For example, when the Supreme Court held that anti- interracial marriage laws violated the fundamental right to marry in Loving, it did so despite a long tradition of excluding interracial couples from marriage. Planned Parenthood ov. Casey, 505 U.S. 833, 847-48 (1992) (“[I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving ...”); Lawrence, 539 U.S. at 577- 78 (“[N]Jeither history nor tradition could save a law prohibiting miscegenation from constitutional attack”) (citation omitted). Cases subsequent to Loving have similarly confirmed that the fundamental right to marry is available even to those who have not traditionally been eligible to exercise that right. See Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (states may not require indigent individuals to pay court fees in order to obtain a divorce, since doing so unduly burdened their fundamental right to marry again); see also Zablocki, 434 U.S. at 388-90 (state may not condition ability to marry on fulfillment of existing child support obligations). Similarly, the right to marry as traditionally understood in this country did not extend to 184a B. Equal Protection Clause In addition to concluding that Ohio’s marriage recognition bans are an impermissible and unconstitutional burden on Plaintiffs’ significant liberty interest in the continued existence and recognition of their marriages under the Due Process Clause, this Court further finds and declares that Plaintiffs have also demonstrated that Ohio’s same- sex marriage recognition bans further violate Plaintiffs’ constitutional rights by denying them equal protection of the laws. As the Court previously held: “The issue is whether the State of Ohio can discriminate against same-sex marriages lawfully solemnized out of state, when Ohio law has historically and unambiguously provided that the validity of a marriage is determined by whether it complies with the law of the jurisdiction where it was celebrated. Throughout Ohio’s history, Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where people in prison. See Virginia L. Hardwick, Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60 N.Y.U. L. Rev. 275, 277-79 (1985). Nevertheless, in Turner, 482 U.S. at 95-97, the Supreme Court held that a state cannot restrict a prisoner’s ability to marry without sufficient justification. Thus, when analyzing other fundamental rights and liberty interests in other contexts, the Supreme Court has consistently adhered to the principle that a fundamental right, once recognized, properly belongs to everyone. 185a solemnized. Thus, for example, under Ohio law, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins. Likewise, under Ohio law, out of state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. How then can Ohio, especially given the historical status of Ohio law, single out same- sex marriages as ones it will not recognize? The short answer is that Ohio cannot... at least not under the circumstances here. By treating lawful same-sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied to these Plaintiffs, violates the United States Constitution which guarantees that “No State shall make or enforce any law which shall... deny to any person within its jurisdiction equal protection of the laws.” (Doc. 13 at 1-2, Order Granting Plaintiffs’ Motion for a Temporary Restraining Order, 7/22/13). As to equal protection, to repeat the analysis previously stated by this Court and re-affirmed The Fourteenth Amendment to the United States Constitution provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; 186a nor deny to an erson within its jurisdiction equal protection of the laws.” U.S. Const. amend. XIV, § 1 (emphasis supplied). Plaintiffs, two same-sex couples, were legally married in Maryland and Delaware. They reside in Ohio where their marriage is not recognized as valid. They are treated differently than they would be if they were in a comparable opposite-sex marriage. By treating lawful same-sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins and marriages of minors), the Ohio laws barring recognition of out-of-state same-sex marriages, enacted in 2004, violate equal protection principles. Although the law has long recognized that marriage and domestic relations are matters generally left to the states, see Ex parte Burrus, 136 U.S. 586, 593-94 (1890), the restrictions imposed on marriage must nonetheless comply with the United States Constitution. Loving, 388 U.S. at 12 (statute limiting marriage to same-race couples violated equal protection and due process); Zablocki, 434 U.S. at 383 (statute restricting from marriage persons owing child support violated equal protection). In Windsor, the Supreme Court again applied the principle of equal protection to a _ statute restricting marriage when it reviewed the constitutionality of the federal Defense of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for purposes of federal law. This included marriages from the twelve states and District of Columbia in which same-sex couples could legally marry. The Supreme Court held that the federal law was unconstitutional because it violated equal 187a protection and due process principles guaranteed by the Fifth Amendment. Windsor, 133 S. Ct. at 2675. In reality, the decision of the United States Supreme Court in Windsor was not unprecedented. The Court relied upon its equal protection analysis from a 1996 case holding that an amendment to a state constitution, ostensibly merely prohibiting any special protections for gay people, in truth violated the Equal Protection Clause under even a rational basis analysis. Ramer v. Evans, 517 U.S. 620 (1996). In Romer, the Supreme Court struck down Colorado’s Amendment 2 because, the Court held, “[w]le cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.” Jd. at 635. The Supreme Court deemed this “class legislation . . . obnoxious to the prohibitions of the Fourteenth Amendment.” Jd. (quoting Civil Rights Cases, 109 U.S. 3, 24 (1883)). As the Supreme Court held so succinctly in Romer: “|Colorado law] classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause[.]” 517 U.S. at 635-36. As the Supreme Court explained in striking down Section 3 of DOMA, “[t]he avowed purpose and practical effect of the law here in question are to 188a impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Windsor, 133 S. Ct. at 2693. 2 Similarly, in Windsor, the Supreme Court cited U. S. Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973), for the proposition that a legislative desire to harm a politically unpopular group of people cannot justify disparate treatment of that group. Windsor, 133 S. Ct. at 2693. In Moreno, a federal statute prohibiting households containing “unrelated persons” from qualifying for food stamps was held to be in violation of the Equal Protection Clause under a _ rational basis analysis. The legislative purpose of the statute was to prohibit “hippies” from taking advantage of food stamps. The Supreme Court held that “the classification here .. . is wholly without any rational basis.” Moreno, 413 U.S. at 538. Likewise, in Windsor, the Supreme Court held that the purpose of the federal DOMA was “to impose inequality, not for other reasons like governmental efficiency.” 133 S. Ct. at 2694. Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations. Here, in derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal. 189a As a threshold matter, it is absolutely clear that under Ohio law, from the founding of the state through at least 2004, the validity of a heterosexual marriage is to be determined by whether it complies with the law of the jurisdiction where it was celebrated. This legal approach is firmly rooted in the longstanding legal principle of lex loci contractus — i.e., the law of the place of contracting controls. That is, a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. As the leading compendium of Ohio law states: Generally, a marriage’ solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. Thus, the validity of a common-law marriage is determined by the law of the state where it was consummated, and that of a solemnized marriage by the law of the state where it was contracted. Likewise, a marriage created in a foreign nation is valid according to that nation's laws. [. . .] The fact that the parties to a marriage left the state to marry in order to evade Ohio's _ marriage laws is immaterial to the marriage’s validity in Ohio. See 45 Ohio Jur. 3d Family Law § 11 (emphasis supplied)."! Thus, for example, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even 1) Defendants did not argue that the Plaintiffs’ marriages were obtained by fraud, nor that Plaintiffs were not genuinely migratory couples. 190a though Ohio law does not authorize marriages between first cousins. Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio Sup. Ct. 1958) (marriage of first cousins was legal in Massachusetts and therefore is legal in Ohio regardless of Ohio statute to the contrary); Hardin v. Davis, 16 Ohio Supp. 19, at *22 (Com. Pl. Hamilton Co. May 18, 1945) (“But, although first cousins cannot marry in Ohio, it has been held that if they go to another state where such marriages are allowed, marry, and return to Ohio, the marriage is legal in Ohio”); Slovenian Mut. Ben. Ass'n v. Knafelj, 173 N.E. 630, 631 (Ohio App. 1930) (“It is true that, under the laws of Ohio, if she were his first cousin he could not marry her; but they could go to the state of Michigan, or the state of Georgia, and perhaps many other states in the United States, and intermarry, and then come right back into Ohio and the marriage would be legal”). Likewise, under Ohio law, out-of-state marriages of minors are recognized by Ohio, even though Ohio law does not authorize marriages of minors. See Peefer v. State, 182 N.E. 117, 121 (Ohio App. 1931) (where underage couples leave the state to marry in a state in which their marriage is valid and return to Ohio, the marriage cannot be set aside based on Ohio's law against marriage of underage people); see also Courtright v. Courtright, 1891 Ohio Misc. LEXIS 161, at *7, affd without opinion, 53 Ohio 685 (Ohio 1895) (marriage between persons considered underage in Ohio married in a state where their marriage is legal “cannot be set aside, either because it was not contracted in accordance with the law of this state, or because the parties went out of the state for the purpose of evading the laws of this state”). 19la Upon the record before this Court, Plaintiffs prevail on their claim that by treating lawful same- sex marriages differently than it treats lawful heterosexual marriages (e.g., marriages of first cousins and marriages of minors), Ohio law, as applied here, violates the United States Constitution’s guarantee that “[n]o State shall make or enforce any law which shall. . . deny to any person within its jurisdiction equal protection of the laws.” 1. Heightened Scrutiny Since Windsor, the Sixth Circuit has not reviewed controlling law regarding the appropriate level of scrutiny for evaluating classifications based on sexual orientation, such as Ohio’s marriage recognition bans. In the most recent Sixth Circuit case to consider the issue, Davis v. Prison Health Servus., 679 F.3d 433, 438 (6th Cir. 2012), the court rejected heightened scrutiny by _ relying = on Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006), for the proposition that sexual orientation has never been recognized as a suspect class in this circuit. Scarbrough, in turn, relied on Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 293 (6th Cir. 1997). However, Equality Foundation no _ longer stands as sound precedential authority for the proposition that restrictions on gay and lesbian individuals are subject to rational basis analysis. As the Court for the Eastern District of Michigan recently pointed out, there are “ample reasons to revisit the question of whether sexual orientation is a suspect classification,” including the fact that Sixth Circuit precedent on this issue — including Equality 192a Foundation — is based on Bowers v. Hardwick, 478 U.S. 186 (1986), which was overruled by Lawrence in 2003. Bassett v. Snyder, No. 12-10038, 2013 WL 3285111, at *1 (E.D. Mich. June 28, 2013) (same-sex couples demonstrated a likelihood of success on the merits of their equal protection claim regarding a Michigan law prohibiting same-sex partners from receiving public employer benefits). The Supreme Court, in overruling Bowers, emphatically declared that it “was not correct when it was decided and is not correct today.” Lawrence, 539 U.S. at 578. In repudiating the Bowers decision, the Supreme Court stated that “[i]Jts continuance as precedent demeans the lives of homosexual persons” and represents “an invitation to subject homosexual persons. to discrimination both in the public and in the private spheres.” Id. In overruling Bowers, the Supreme Court eliminated a major jurisprudential foundation of Scarbrough, Equality Foundation, and _. other decisions relied on to foreclose the possibility of heightened scrutiny for sexual orientation classifications. !2 12 See Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012) (“The Supreme Court's holding in Lawrence ‘removi[ed] the precedential underpinnings of the federal case law supporting the defendants’ claim that gay persons are not a [suspect or] quasi-suspect class”) (citations omitted); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D. Cal. 2012) (“[T]he reasoning in [prior circuit court decisions], that laws discriminating against gay men and lesbians are not entitled to heightened scrutiny because homosexual conduct may be legitimately criminalized, cannot stand post-Lawrence’). Lawrence “does not involve whether the government must give formal recognition to any relationship that homosexual persons 193a As a result, lower courts, without controlling post-Lawrence precedent on the issue, should now apply the criteria mandated by the Supreme Court to determine whether sexual orientation classifications should receive heightened scrutiny. In deciding whether a new classification qualifies as a suspect or quasi-suspect class, the Supreme Court considers: A) whether the class has _ been historically “subjected to discrimination”; B) whether the class has aé_ée defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society”; C) whether the class exhibits “obvious, immutable, or distinguishing characteristics that define them as a discrete group”; and D) whether the class is “a minority or politically powerless.” Windsor v. United States, 699 F.3d 169, 181 (2d Cir. 2012) (quoting Bowen v. Gilliard, 483 U.S. 587, 602 (1987) and City of Cleburne, Tex., 473 U.S. at 440-41 (citations omitted). Of these considerations, the first two are the most important. See id. (“Immutability and lack of political power are not strictly necessary factors to identify a suspect class”); accord Golinski, 824 F. Supp. 2d at 987. As several federal and state seek to enter.” 539 U.S. at 578. It does, however, erase the jurisprudential basis to conclude that sexual orientation is defined by constitutionally proscribable sexual acts and thus that classifications based on it are only appropriately evaluated under the rational basis test. 194a courts have recently recognized, a reasonable application of these factors leads to the conclusion that sexual orientation classifications should be subject to some form of heightened scrutiny.!* a. Historical Discrimination The history of discrimination against gay and lesbian individuals has been both severe and pervasive. In 1952, Congress prohibited gay men and women from entering the country. (Doc. 42-1 at § 48). In 1953, President Eisenhower issued an executive order requiring the discharge of gay people from all federal employment and mandating that all defense contractors and other private corporations with federal contracts ferret out and fire all homosexual employees, a policy which remained in place until 1975. Ud. at YJ 46-47, 78). Even then, federal agencies were free to discriminate based on sexual orientation until President Clinton issued the first executive order forbidding such hiring discrimination in 1998. After World War II, known homosexual service members were denied GI Bill benefits, and later, when other people with undesirable discharges had their’ benefits restored, the Veterans Administration refused to restore them to gay people. Ud. at 9 42). 13 See, e.g., Windsor, 699 F.3d at 181-85; Golinski, 824 F. Supp. 2d at 985-90; Pedersen, 881 F. Supp. 2d at 310-33; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 997 (N.D. Cal. 2010) aff'd sub nom Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012) vacated and remanded sub nom Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); In re Balas, 449 B.R. 567, 573-75 (Bankr. C.D. Cal. 2011) (decision of 20 bankruptcy judges); Varnum v. Brien, 763 N.W.2d 862, 885-96 (lowa 2009); In re Marriage Cases, 183 P.3d at 441-44; Kerrigan v. Comm’ of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008). 195a Until the Supreme Court’s Lawrence decision in 2003, consensual homosexual conduct was criminalized in many states. In the mid-twentieth century, bars in major American cities posted signs telling potential gay customers they were not welcome, and raids on gay bars in this period were “a fact of life, a danger every patron risked by walking through the door.” (Ud. at § 56). Until 2011, homosexuals could not openly serve in the military, and the military still criminalizes sodomy today. (Jd. at 4 40). In 1993, Cincinnati voters passed Issue 3, which amended the city charter to prohibit the city from extending civil rights protections based on sexual orientation, which was not repealed until 2004. Ud. at 4 74). The Republican Party in its 2012 Platform reaffirmed its support for a Constitutional amendment prohibiting same-sex marriage, and baselessly alleged that supporters of same-sex marriage rights were engaged in “hate campaigns, threats of violence, and vandalism .. . against advocates of traditional marriage.” (Doc. 53-1 at 26). The governor of Pennsylvania recently compared same-sex marriage to incest. (/d. at 25). These are just some of the most egregious examples of discrimination against gays and lesbians at the hands of both federal and state governments, their officials, and one of the two primary political parties in our country, and based on these examples alone, “fijt is easy to conclude that homosexuals have suffered a history of discrimination.” Windsor, 699 F.3d at 182; see Pedersen, 881 F. Supp. 2d at 318 196a (“The long history of anti-gay discrimination which evolved from conduct-based proscriptions to status or identity-based proscriptions perpetrated by federal, ‘state and local governments as well as private parties amply demonstrates that homosexuals have suffered a long history of invidious discrimination”). b. Ability to Contribute to Society The other essential factor in the Supreme Court’s heightened scrutiny analysis is whether the group in question is distinctively different from other groups in a way that “frequently bears [a] relation to ability to perform or contribute to society.” City of Cleburne, Tex., 473 U.S. at 440-41 (citation omitted); see also Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (“[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society”). “It is well-established that homosexuality is a normal expression of human sexuality. It is not a mental i 1 or lesbian h n inherent association with a person’s ability to lead a ha healthy, and uctive li t ribute to society.” (Doc. 46-1 at § 11). As the Windsor appellate court provides: “There are some _ distinguishing characteristics, such as age or mental handicap, that may arguably inhibit an individual’s ability to contribute to society, at least in some respect. 197a But homosexuality is not one of them.” Windsor, 699 F.3d at 682.14 (emphasis supplied). In this respect, sexual orientation is akin to race, gender, alienage, and national origin, all of which “are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” City of Cleburne, Tex., 473 U.S. at 440 (emphasis supplied). c. Lack of Political Power Lack of political power is not essential for recognition as a suspect or quasi-suspect class, see Windsor, 699 F.3d at 181, but the limited ability of gay people as a group to protect themselves in the political process also weighs in favor of heightened scrutiny of laws that discriminate based on sexual orientation. In analyzing this factor, “[t]he question is not whether homosexuals have’ achieved political successes over the years; they clearly have. The question is whether they have the strength to politically protect themselves from wrongful '4 See also Golinski, 824 F. Supp. 2d at 986 (* j i : ; 3 et: SCA Utt. s r} - ‘ . ation has no : . — i & § . | aS . s relev , ili i iet {emphasis supplied); Pedersen, 881 F. Supp. 2d at 320 (“Sexual orientation is not a distinguishing characteristic like mental retardation or age which undeniably impacts an individual's capacity and ability to contribute to society. Instead like sex, race, or illegitimacy, homosexuals have been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities”); see also Am. Psychiatric Ass'n, Position Statement On Homosexuality and Civil Rights, 131 AM. J. PSYCHIATRY 436, 497 (1974). 198a discrimination.” /d. at 184. Due to the history of prejudice that gay men, lesbians, and bisexuals have faced, they are lacking in the political power to expand their civil rights. (Doc. 47-1 at 4 27) (“In light of the political disadvantages still faced by a small, targeted, and disliked group ... gay men and lesbians are powerless to secure basic rights within the normal political processes”). One way gay men, lesbians, and bisexuals’ lack of power is demonstrated is by the absence of statutory protections for them. For example, the gridlocked U.S. Congress has failed to pass any federal legislation prohibiting discrimination on the basis of sexual orientation in employment, education, access to public accommodations, or housing. (Jd. at 4 30). Although a number of states have now extended basic anti-discrimination protections to gay men, lesbians, and bisexuals, the majority of states, including Ohio, have no statutory prohibition on firing, refusing to hire, or demoting a person in private sector employment solely on the basis of their sexual orientation. (Doc. 42-1 at {| 77). Similarly, the majority of states, including Ohio, do not provide statutory protections against discrimination in housing or public accommodations on the basis of sexual orientation. (/d.) In the last two decades, more than two-thirds of ballot initiatives that proposed to enact (or prevent the repeal of) basic anti- discrimination protections for gay, lesbian, and bisexual individuals have failed. (Doc. 47-1 at § 40). Other measures of this group’s lack of political power are the repeal or pre-emption of various legislative protections through ballot initiatives including anti- discrimination policies, anti-marriage initiatives, and adoption bans, and the underrepresentation of gays 199a and lesbians in political office. Ud. at 15-22). In Ohio, for instance, only two of 132 members — or 1.5% — of the state legislature identify as gay. Ud. at 4 51). This lack of political power is caused by a number of factors, including small population size and dispersion, the effect of HIV/AIDS on the community, violence against gay and lesbian people, relative invisibility because many gay, lesbian, and bisexual people are not open about their sexual orientation, censorship, public. hostility and prejudice, political and social hostility, unreliable allies in the political process, moral and political condemnation, and a powerful, numerous, and well- funded opposition. (Ud. at 22-35). For example, violence against gay and lesbian people engenders intimidation, which can “undermine the mobilization of gays and lesbians and their allies to limit their free exercise of economic and social liberties.” (Jd. at * 58). In Ohio, the number of hate crimes committed on the basis of sexual orientation increased from 15.8% of total hate crimes reported in 2009 to 25% in 2012. Ud. at § 60). The total-number of reported incidents decreased, but the number of incidents motivated by sexual orientation increased. (/d.) The relative lack of political influence of gay people today stands in contrast to the political power of women in 1973, when a plurality of the Court concluded in Frontiero, 411 U.S. at 688, that sex- based classifications required heightened scrutiny. Congress had already passed Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, both of which protect women from discrimination in the workplace. See id. at 687-88. As stated, there are still no such bans on discrimination based on sexual 200a orientation in the federal government or the majority of states. See Golinski, 824 F. Supp. 2d at 988-989; Pedersen, 881 F. Supp. 2d at 326-27. As political power has been defined by the Supreme Court for purposes of heightened scrutiny analysis, gay people do not have it. d. Immutability The heightened scrutiny inquiry sometimes also considers whether laws discriminate on the basis of “immutable . . . or distinguishing characteristics that define [persons] as a discrete group.” Bowen, 483 U.S. at 602 (citation omitted). This consideration derives from the “basic concept of our system that legal burdens should bear some relationship to individual responsibility.” Frontiero, 411 U.S. at 686; see also Plyler v. Doe, 457 U.S. 202, 220 (1982) (noting that illegal alien children “have little control” over that status). There is no requirement, however, that a characteristic be immutable in order to trigger heightened scrutiny. For example, heightened scrutiny applies. to classifications based on alienage and legitimacy, even though “[a]llienage and illegitimacy are actually subject to change.” Windsor, 699 F.3d at 183 n.4; see Nyquist v. Mauclet, 432 U.S. 1, 9 n.11 (1977) (rejecting the argument that alienage did not deserve strict scrutiny because it was mutable). To the extent that “immutability” is relevant to the inquiry of whether to apply heightened scrutiny, the question is not whether a characteristic is strictly unchangeable, but whether’ the characteristic is a core trait or condition that one cannot or should not be required to abandon. See 20l1la Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000) overruled on other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005) (“[Slexual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them”); Watkins v. U.S. Army, 875 F.2d 699, 726 (9th Cir. 1989) (Norris, J., concurring in judgment) (“It is clear that by ‘immutability’ the [Supreme] Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class. . . . the Supreme Court is willing to treat a trait as effectively immutable if changing it would involve great difficulty, such as requiring a major physical change or a traumatic change of identity”). Under any definition of immutability, sexual orientation clearly qualifies. There is now broad medical and _ scientific consensus that sexual orientation is immutable. “Sexual orientation refers to an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes. Most adults are attracted to and form relationships with members of only one sex. Efforts to change a person’s sexual orientation through religious or psychotherapy interventions have not been shown to be effective.” (Doc. 46-1 at § 10). Indeed, there is significant evidence to show that interventions to change sexual orientation can be harmful to patients, and no major mental health professional organization has approved their use. (U/d. at 44 26- 27). Further, when asked whether they have any choice in their sexual orientation, the vast majority of gay men and lesbians state that they have very 202a little or no choice in the matter. Ud. at § 25).)5 Even more importantly, sexual orientation is so fundamental to a person’s identity that one ought not be forced to choose between one’s sexual orientation and one’s rights as an individual — even if such a choice could be made. See Lawrence, 539 U.S. at 576- 77 (recognizing that individual decisions’ by consenting adults concerning the intimacies of their physical relationships are “an integral part of human freedom”). '® Sexual orientation discrimination accordingly fulfills all the criteria the Supreme Court has identified, and thus Defendants must justify Ohio's failure to recognize same-sex marriages. in accordance with a heightened scrutiny analysis. Defendants have utterly failed to do so. 15 See also Perry, 704 F. Supp. 2d at 966 (“No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation”); accord Golinski, 824 F. Supp. 2d at 986; Pedersen, 881 F. Supp. 2d at 320-24. 16 See also In re Marriage Cases, 183 P.3d. at 442 (“Because a person's sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment”); Kerrigan, 957 A.2d at 438 (“In view of the central role that sexual orientation plays in a person's fundamental right to self-determination, we fully agree with the plaintiffs that their sexual orientation represents the kind of distinguishing characteristic that defines them as a discrete group for purposes of determining whether that group should be afforded heightened protection under the equal protection provisions of the state constitution”); accord Golinski, 824 F. Supp. 2d at 987; Pedersen, 881 F. Supp. 2d at 325. 203a 2. Rational Basis Moreover, even if no heightened level of scrutiny is applied to Ohio’s marriage recognition bans, they still fail to pass constitutional muster. “Even in the ordinary equal protection case calling for the most deferential of standards, [the Court] insist[s] on knowing the relation between the classification adopted and the object to be attained.” Romer, 517 U.S. at 632. “[Slome objectives ... are not legitimate state interests” and, even when a law is justified by an ostensibly legitimate purpose, “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne, Tex., 473 U.S. at 446-47. “Rational basis review, while deferential, is not ‘toothless.” Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998) (citing Mathews v. Lucas, 427 U.S. 495, 510 (1976)). At the most basic level, by requiring that classifications be justified by an independent and legitimate purpose, the Equal Protection Clause prohibits classifications from being drawn for “the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633; see also Windsor, 133 S. Ct. at 2693; City of Cleburne, Tex., 473 U.S. at 450; Moreno, 413 U.S. at 534. The Supreme Court invoked this principle most recently in Windsor when it held that the principal provision of the federal DOMA violated equal protection guarantees because the “purpose and practical effect of the law . . . [was] to impose a disadvantage, a separate status, and so a stigma 204a upon all who enter into same-sex marriages.” Windsor, 133 S. Ct. at 2693. The Supreme Court has described this impermissible purpose as “animus” or a “bare .. . desire to harm a politically unpopular group.” Jd. at 2693; Romer, 517 U.S. at 633; City of Cleburne, Tex., 473 U.S. at 447; Moreno, 413 U.S. at 534. However, an impermissible motive does not always reflect “malicious ill will.” Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J., concurring). It can also take the form of “negative attitudes,” “fear,” “irrational prejudice,” “some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” City of Cleburne, Tex., 473 U.S. at 448, 450; Garrett, 531 U.S. at 374 (Kennedy, J., concurring). The Sixth Circuit has held that “the desire to effectuate one’s animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.” Davis, 679 F.3d at 438 (emphasis supplied) (quoting Stemler v. City of Florence, 126 F.3d 856, 873-74 (6th Cir. 1997) (inmate had viable equal protection claim where he alleged prison officials purposefully discriminated against him based on his sexual orientation when he was removed from prison job)). In addition, even when the government offers an ostensibly legitimate purpose, the court must also examine the statute’s connection to that purpose to assess whether it is too “attenuated” to rationally advance the asserted governmental interest. City of 205a Cleburne, Tex., 473 U.S. at 446; see, e.g., Eisenstadt, 405 U.S. at 448-49 (invalidating law on rational basis review because, even if deterring premarital sex is a legitimate governmental interest, “the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective”); Moreno, 413 U.S. at 535-36 (invalidating law on rational basis review because “even if we were to accept as rational the Government’s wholly unsubstantiated assumptions concerning [hippies] . . . we still could not agree with the Government’s conclusion that the denial of essential federal food assistance . . . constitutes a rational effort to deal with these concerns”). This search for a meaningful connection between a classification and the _ asserted governmental interest also provides a safeguard against intentional discrimination. As the Supreme Court has explained, “[b]y requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Romer, 517 U.S. at 633.17 ‘7 The Supreme Court has been particularly likely to find a classification too attenuated to serve an asserted government interest when the law imposes a sweeping disadvantage on a group that is grossly out of proportion to accomplishing that purpose. In Romer, the Court invalidated a Colorado constitutional amendment excluding gay people from eligibility for nondiscrimination protections because the law “identifie[d] persons by a single trait and then denief[d] them protection across the board.” 517 U.S. at 633. Similarly, in Windsor, the Supreme Court invalidated the challenged section of DOMA as not sufficiently related to any legitimate governmental purpose 206a In Bassett, the court held that same-sex couples demonstrated a likelihood of success on the merits of their equal protection claim regarding a Michigan law prohibiting same-sex partners from receiving public employee benefits where “[t]he historical background and legislative history of the Act demonstrate that it was motivated by animus against gay men and lesbians.” 2013 WL 3285111 at *24-26. The Sixth Circuit has stated that where a provision has “no rational relationship to any of the articulated purposes of the state,” a court is left with the necessary conclusion that the cited interests are pretextual. Craigmiles v. Giles, 312 F.3d 220, 228 (6th Cir. 2002). In Windsor, the Supreme Court bolstered this truth, finding that: DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. in part because it was “a system-wide enactment with no identified connection” to any particular government program. Windsor, 133 S. Ct. at 2694. In such situations, the law's breadth may “outrun and belie any legitimate justifications that may be claimed for it.” Romer, 517 U.S. at 635 (“The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them”). Ohio's sweeping marriage bans likewise exclude same-sex couples and their children system-wide from the protections and benefits afforded married couples and their families under the law. 207a Windsor, 133 S. Ct. at 2693. A review of the historical background and legislative history of the Ohio laws at issue leads to the same conclusion in the case at hand, that in refusing to recognize a particular type of legal out-of-state marriages for the first time in its history, Ohio is engaging in “discrimination[] of an unusual character” without a rational basis for doing so. Jd. at 2692 (citing Romer, 517 U.S. at 633). Consequently, the evidentiary record establishes that the requested relief is also to be granted to Plaintiffs on the basis of the Equal Protection Clause. 3. Potential State Interests To survive rational basis scrutiny, the marriage recognition bans must be justified by some legitimate state interest other than _ simply maintaining a “traditional” definition of marriage.!® “Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis.” Heller v. Doe by Doe, 509 U.S. 312, 326-27 (1993). Indeed, the fact that a form of discrimination has been “traditional” is a reason to be more skeptical of its rationality. “The Court must be especially vigilant in evaluating the rationality of any classification involving a group that has been subjected to a tradition of disfavor for a traditional classification is more likely to be used without pausing to consider its 1® As stated, at the time of the passage of Ohio’s same-sex marriage bans, Governor Robert Taft stated that their purpose was “to reaffirm existing Ohio law with respect to our most basic, rooted, and time-honored institution: marriage between a man and a woman.” (Doc. 41-1 at ¥ 72). 208a justification than is a newly created classification.” City of Cleburne, Tex., 473 U.S. at 454 n.6 (Stevens, J., concurring).'!9 Indeed, just as the tradition of banning interracial marriage represented the embodiment of deeply-held prejudice and long-term racial discrimination in Loving, 388 U.S. at 1, the same is true here with regard to Ohio’s marriage recognition bans and discrimination based on sexual orientation. Supporters of Ohio’s marriage recognition bans have also asserted that children are best off when raised by a mother and father. (Doc. 41-1 at 44 41, 88). 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 19 See also Marsh v. Chambers, 463 U.S. 783, 791-92 (1983) (even longstanding practice should not be “taken thoughtlessly, by force of long tradition and without regard to the problems posed by a pluralistic society”); In re Marriage Cases, 183 P.3d at 853-54 (“[E]ven the most familiar and generally accepted of social practices and traditions often mask an unfairness and ineque’ity that frequently is not recognized or appreciated by those not directly harmed by those practices or traditions”). 11sec s same-sex Cc nies are . as We adi SLE those raised by heterosexual couples. (Doc. 43-1 at 94 18-19 (“[iJn .. . widely variable studies, the same findings continue to emerge: children reared by lesbian and gay parents are doing as well as children raised by heterosexual parents”). The American Psychological Association, the American Academy of Pediatrics, the American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the American Academy of Family Physicians (among others) have all released statements in support of gay and lesbian parents and their ability and rights to rear children. (Jd. at § 16). This consensus has also 209a rational connection between the Ohio marriage recognition bans and the asserted goal, as Ohio's marriage recognition bans do not prevent gay couples from [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0306%3A002. Public record. Not legal advice.