Petitioners Brief — Obergefell v. Hodges

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No. 14-556

Supreme Court of the Unite states: —

— FEB 27 2015

JAMES OBERGEFELL, et al.,

Orfetiséoners, pix

—V.--

RICHARD HODGES, Director,

Ohio Department of Health, et al.,

an eS Respondents.

BRITTANI HENRY, ef al.,

Petitioners,

—V_--

RICHARD HODGES, Director,

Ohio Department of Health, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONERS

Susan L. Sommer Alphonse A. Gerhardstein

M. Currey Cook Counsel of Record

Omar Gonzalez-Pagan Jennifer L. Branch

LAMBDA LEGAL DEFENSE Jacklyn Gonzales Martin

AND EDUCATION FUND, INC. Adam Gingold Gerhardstein

120 Wall Street, 19th Floor GERHARDSTEIN

New York, NY 10005 & BRANCH Co. LPA

Counsel for Henry Petitioners 423 Walnut Street, #400

Cincinnati, OH 45202

(513) 621-9100

agerhardstein@gbfirm.com

James D. Esseks

Steven R. Shapiro

Joshua A. Block

Chase B. Strangio

Ria Tabacco Mar

Louise Melling

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Counsel for Obergefell Petitioners

(Counsel continued on inside cover)

Jon W. Davidson

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

4221 Wilshire Boulevard,

Suite 280

Los Angeles, CA 90010

Paul D. Castillo

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

3500 Oak Lawn Avenue,

Suite 500

Dallas, TX 75219

Camilla B. Taylor

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

105 W. Adams, Suite 2600

Chicago, IL. 60603

Elien 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

QUESTION PRESENTED

Does the Fourteenth Amendment require a state

to recognize a marriage between two people of the

same sex when their marriage was lawfully licensed

and performed out-of-state?

PARTIES TO THE PROCEEDING

Petitioners in the proceeding below in Obergefel/

v. Hodges were James Obergefell, David Brian

Michener, and Robert Grunn.

Petitioners in the proceeding below in Henry v.

Hodges were Brittani Henry and Brittni (“LB”)

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.

Respondent in both Obergefel] and Henry is

Richard Hodges, who replaced formerly named

defendant Lance D. Himes as Director of the Ohio

Department of Health. He is sued in his official

capacity only.

11]

TABLE OF CONTENTS

Page

SE cccciiuscenncecvccessnctcceccnteneuiens vi

alin canna cdenianediehimmaiiaiial 1

EERE ae ee ee oO ETT 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................02ccceeeeeecececeeeees l

TEER SLIT RN EN 3

STATEMENT OF THE CASE ........................cce cece eee 4

A. Qhio’s Marriage Recognition Bans........... 4

— TA anne er er TREE 6

1. Obergefel/ Petitioners .....................-... 6

Be, FEINET FOIE cevccccccccecececeseccsscccesees 8

C. District Court Proceedings..................... 12

i, ~ Sa IT eicidenicteeeitaiateidaeasainntemetenmedaiietiiaia 12

i. a aceite leriapd eisai 14

D. Sixth Circuit Decision..........................0.. 15

SUMMARY OF ARGUMENT .........................222020008 18

So iainciccciniccadinsieraiealdeaieihintitiiaeateeaiaidilllinngimanniindendinl 20

I. The Recognition Bans Are

Unconstitutional Under Windsor................ 20

A. The Recognition Bans’ “Design,

Purpose, And Effect” Are To Impose

ERATE A LR DOE Ee ee 21

B. Windsor’s Principles Apply To State

As Well As Federal Marriage

ID BID eiincnnscovtucscesusevcncesecssocees 30

II.

ITI.

IV.

Ohio’s Refusal To Recognize Existing

Marriages Of Same-Sex Couples Is

Subject To Heightened Scrutiny Under

The Due Process Clause ......................2.2000++

Ohio’s Recognition Bans Trigger

Heightened Equal Protection Scrutiny

Because They Discriminate Based on

Sexual Orientation and Sex.....................-...

No Presumption Of Constitutionality

Should Apply To Sexual Orientation

I ainiiccansemmncndinnennarentnnenennnannss

Explicitly Rejecting A Presumption

Of Constitutionality For Sexual

Orientation Discrimination Is

Consistent With The Court’s

Established Jurisprudence For

Identifying “Suspect” And “Quasi-

suspect” Classifications ..........................

Ohio’s Recognition Bans Also

Discriminate Based On Sex And

Warrant Heightened Scrutiny On

I iicccinhahens spuuianinsodamdaeasneinidssitiice

Ohio’s Recognition Bans Fail Any

Standard Of Review ................ccccccscesessesceeees

The Recognition Bans Cannot Be

Upheld Based On The

Discriminatory Status Quo ....................

1. “Leave It To The State

Democratic Process” Rationa/e.........

2. “Wait And See” Rationale .................

3. “Upholding The Traditional

Definition Of Marriage” Rationale ...

B. Preventing “Irresponsible

Procreation” Does Not Explain The

ReCOMMITION BEAMS .........ccccccccccccccccccccesccene PO

C. Promoting “Optimal Parenting”

Cannot Justify The Recognition Bans ...58

TEIN scistiiiininshiancianiibiabniiadinkingnintaedicmmniandieimelaas 60

TABLE OF AUTHORITIES

Page

CASES

Allstate Ins. Co. v. Hague,

449 U.S. 302 (1981) ooo oc cece ccc ccc ecc ccc eceeceeeeeeeeeeeeees 32

Baehr v. Lewin,

852 P.2d 44 (Haw. 1993) 200.0... cc cece cece ecene eens 48

Baker v. Nelson,

a i a caienlieiaaemasiaaial 15

Baker v. State,

ee ee. UD .. ssi ecdeccscneuienmubanonse 48

Baskin v. Bogan,

766 F.3d 648 (7th Cir. 2014) ....................0000 passim

Bd. of Trs. of Univ. of Ala. v. Garrett,

GR RES eek ee ee ee ae 24

Beller v. Middendorf.

COD Fe TE Ges Cie. BGDGD ...cccccccecccccccsseececcncosses 40

Bostic v. Schaefer,

760 F.3d 352 (4th Cir. 2014) ...........0....2eee eee passim

Boutilier v. INS,

a a enenonmmaneneaiiaa 42

Bowen v. Gilliard,

I, I i araeennmnmnicaitil 41, 45

Bowers v. Hardwick,

ee, Sn cnsonsunousseneiiuenseeiennes 40

Brenner v. Scott,

999 F. Supp. 2d 1278 (N.D. Fla. 2014),

appeals docketed, Nos. 14-14061-AA, 14-

I nT cdlebuiebennens 35

Vil

Califano v. Goldtarb,

GE UB, BED IGT nnccceccencoccesccccccccscccccccceccecsecccoees 44

Christian Legal Soc’y v. Martinez,

Fe rs EE III -vcsincoccnnanrececncnesecenscousnncentseesesenens 46

City of Cleburne v. Cleburne Living Ctr.,

I ED saictictinntccdnwsceseaswnsesvectesiesees passim

Cleveland Bd. of Educ. v. LaFleur,

TL ELE a EE 34

Dennis v. R.R. Ret. Bd.,

585 F.2d 151 (6th Cir. 1978) .........................0..000e- 30

Esenstadt v. Baird,

re e, rr ceamunenubeuninononens 50, 57

FCC v. Beach Commc ns,

BN I, MI IED citsincscccvsictncwocnacecesccceviousnvceseens 38

Frontiero v. Richardson,

Se Oe GI cietrcrcsicsnetncecinceiesssccis 17, 44, 46, 47

Golinski v. U.S. Office of Pers. Mgmt.,

824 F. Supp. 2d 968 (N.D. Cal. 2012) ..........00000.... 42

Goodridge v. Dep't of Pub. Health,

798 N.E.2d 941 (Mass. 2003) ...........0.0.0.0.0.. 5, 22, 48

Griego v. Oliver,

Re I, SEED... cnccececucccvcsoccsunscsucecesous 42

Griswold v. Connecticut,

Be Cs GE RIED cc ccecccscccecsncscessseceies 33, 35, 37, 56

Hall v. Florida,

i I, I IED... .. ccanucecctnsuusiimesunbciedimeamensuns 31

Heller v. Doe,

I aD a 49, 54

vill

Hodgson v. Minnesota,

rg ot LSE Renee Emre Se 34

Hollingsworth v. Perry,

< y > @ 2 | Jeena neers oy 47

Hooper v. Bernalillo Cnty. Assessor,

Pr. PF Mo 1 Er eeeeeeeee ne er 50

In re Marriage Cases,

183 P.3d 384 (Cal. 2008) ...........0....0.... intial 42

In re Miller's Estate,

214 N.W. 428 (Mich. 1927)................cccceceseeeceeeeees 30

J E.B. v. Alabama ex rel. T7-B.,

eRe 2) Ee 39, 44, 48

Jimenez v. Weinberger,

ORF Fes Ge SE cacceeccionncceteiiine Ledutieimeial 42

Johnson v. California,

LR DERE ee ne ee! 44

Keith v. Pack,

187 S.W.2d 618 (Tenn. 1945) ....0.0... 0c cece eee eee 30

Kerrigan v. Comm’ of Pub. Health,

yee Ff + | nee 42

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014) ........... 17, 31, 35, 58

Kitchen v. Herbert,

961 F. Supp. 2d 1181 (D. Utah 2013),

affd, 755 F.3d 1193 (10th Cir. 2014) ......000..... 48, 53

Latta v. Otter.

771 F.3d 456 (9th Cir. 2014) ..........0...cc cece eee passim

Lawrence v. Texas,

BOD UB. BEB GIGDGD .n.cccccceccceseccccesececscsccsssssess passim

Loving v. Virginia,

EE 17, 34, 60

Madewell v. United States,

84 F. Supp. 329 (E.D. Tenn. 1949)......................-. 28

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803).............0.000.0.000.........52

Mass. Bd. of Ret. v. Murgia,

Se 45

Mathews v. Lucas,

ee cesusenonsucoooousecs 27

Mazzolini v. Mazzolini,

155 N.E.2d 206 (Ohio 1958) .........................0000002 30

Michael H. v. Gerald D.,

MLB. v. S.L.d.,

EEE 36

Nyquist v. Mauclet,

ee secneonoucosesoccoosces 45

Pedersen v. Office of Pers. Mgmt.,

881 F. Supp. 2d 294 (D. Conn. 2012) .................... 42

Peefer v. State,

182 N.E. 117 (Ohio Ct. App., Greene

a cuscuumseseounen 30

Perry v. Schwarzenegger,

704 F. Supp. 2d 921 (N.D. Cal. 2010) ................... 48

Pers. Adm’ of Mass. v. Feeney,

I a ennmsooodoconooncece 23

Planned Parenthood of Southeastern Pa. v. Casey,

BRR EP, GUD GRID cvcccccccccccccccccccccoccccccccccccocccccccors 24

Plessy v. Ferguson, .

, GE TEE cnceicnssitccnsonsincemecndanandoonnntaesinnndens 55

Plyler v. Doe,

ee 45, 57

Reed v. Reed,

A TN decal cereal 42

Rich v. Sec’y of Army,

735 F.2d 1220 (10th Cir. 1984) ..........0...02. 2. ceeee eee 40

Roberts v. U.S. Jaycees,

en I ci citenemteiaiinieeladiaall 36

Romer v. Evans,

og eerees passim

Rowland v. Mad River Local Sch. Dist.,

gg | RERUNS TET ee ener 40, 42

Shapiro v. Thompson,

I anda 37

SmithKline Beecham Corp. v. Abbott Labs.,

740 F.3d 471 (9th Cir. 2014) .........2..... ccc cece eee 39, 41

State v. Brown,

849 N.E.2d 44 (Ohio Ct. App., Stark

a 22, 23

Stevenson v. Gray,

56 Ky. 193 (Ct. App. 1856) ..........ccccccccccsceseseeeeeeeees 30

Strauder v. West Virginia,

gS nee nearer eC 40

Turner v. Safley,

- ESE ee ee ae 35, 37, 56

United States v. Carolene Prods. Co.,

i Sn i 40

United States v. Virginia,

ey en CE cndudutdeememeineneneenenesuns 48

United States v. Windsor,

133 S. Ct. 2675 (2013) ................0..... 02... eee eee passim

U.S. Dept of Agric. v. Moreno,

Pi he ee 49, 53

Varnum v. Brien,

763 N.W.2d 862 (lowa 2009) ...200..0 o.oo eee eee cece eee 42

W. Va. State Bd. of Educ. v. Barnette,

EG CID 0 scrcsrecusntinnntasanasanniieninatinnchenesniion 52

Washington v. Glucksberg,

a cdinicmaneneinn 36

Weber v. Aetna Cas. & Sur. Co.,

CE eee 57

Whitewood v. Wolf,

992 F. Supp. 2d 410 (M.D. Pa. 2014).............. 35, 41

Williams v. Illinois,

ee 54

Williams v. North Carolina,

a Te 36

Windsor v. United States,

699 F.3d 169 (2d Cir. 2012)

affd, 133 S. Ct. 2675 (2013).......... 39, 41, 44, 45, 46

Wolf v. Walker,

986 F. Supp. 2d 982 (W.D. Wis. 2014),

aff'd sub nom. Baskin v. Bogan, 766 F. 3d 648

I Te 41, 46

Wolfle v. United States,

Ee a 37

xil

Youngberg v. Romeo,

a ih binidnieighiaeiinlaninkon 36

Zablocki v. Redhail,

Sn IIE sical tas hecepespaccanecabipennimenentsaiiniel 33

CONSTITUTIONS & STATUTES

es ME, MINED, SUIT UP vitinwnssiiscnsmindenssntiennenneninnione 1

2 EST eee ee EET 6

- ieiedaiibeanaieannainamnins 1

| IE ae eT ee 26

ee suiniaiianeiannandaanainaianil 25

> | eae eee 1, 4,5

Ohio Rev. Code Ann. § 3101.01(C©) ................ 2, 4, 5, 30

Ohio Rev. Code Ann. § 3107.18(A) ...0.............ccecceeeeeee )

Ohio Rev. Code Ann. § 3111.03.......................c cece eee 8

Ohio Rev. Code Ann. § 3111.95 ...................2.cceceececeeees 8

Ohio Rev. Code Ann. § 3111.95(A)...............0.::c:c0000 25

Ohio Rev. Code Ann. § 3705.09(F)(1)..................000005 25

Ohio Rev. Code Ann. § 3705.12(A)(1)...................20000- )

OTHER AUTHORITIES

Fletcher W. Battershall, The Law of Domestic

Relations in the State of New York (1910)........... 28

Barbara J. Cox, Same-Sex Marriage and the

Public Policy Exception in Choice-of-Law-

Does It Really Exist?, 16 Quinnipiac L. Rev.

RRR ca SCA SO RNS rR 29

xili

The Federalist No. 78 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) ................ccccccccceceeceeees 51

Barbara S. Gamble, Putting Civil Rights to a

Popular Vote, 41 Am. J. Pol. Sci. 245 (1997)........ 47

Donald P. Haider-Markel et al., Lose, Win, or

Draw? A Reexamination of Direct Democracy

and Minority Rights, 60 Pol. Res. Q. 304

SES IER SE EE TR ee A BE OE 47

Arthur S. Leonard, Exorcizing the Ghosts of

Bowers v. Hardwick: Uprooting Invalid

Precedents, 84 Chi.-Kent L. Rev. 519 (2009)........ 40

Nat'l Conference of State Legislatures, Same-Sex

Marriage and Domestic Partnerships On The

Ballot (Nov. 2012), http://www.ncsl.org/

research/elections-and-campaigns/same-sex-

marriage-on-the-ballot.aspx.......................ccceeeeeees 47

Joseph Story, Commentaries on the Conflict of

NG, I ereieicacctcettccnctnesenetimtimmanimeiiiiiiaiiin 37

United States Census, Fertility of American

Women- 2010 — Detailed Tables,

http://www.census.gov/hhes/fertility/data/

ki 2 aaseiemennamemmasiaiicnninieds 57

Tobias Barrington Wolff, /nterest Analysis in

Interjurisdictional Marriage Disputes,

153 U. Pa. L. Rev. 2215 (2005).....0............cccccceeeeee 29

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

106a) is reported at 772 F.3d 388 (6th Cir. 2014).

The district court’s opinions are reported in Henry v.

Himes (Pet. App. 107a-160a) at 14 F. Supp. 3d 1036

(S.D. Ohio 2014) and in Obergefel] v. Wymysio (Pet.

App. 161a-221la) at 962 F. Supp. 2d 968 (S.D. Ohio

2013).

JURISDICTION

The judgment of the Court of Appeals was entered

on November 6, 2014. Petitioners filed their timely

petition for a writ of certiorari in this Court on

November 14, 2014. The petition for writ of

certiorari was granted on January 16, 2015. This

Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. CONST. amend. XTV, § 1

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; nor deny to any person within its

jurisdiction the equal protection of the laws.

OHIO CONST. art. XV, § 11

Only a union between one man and one woman may

be a marriage valid in or recognized by this state and

its political subdivisions. This state and its political

subdivisions shall not create or recognize a legal

status for relationships of unmarried individuals that

intends to approximate the design, qualities,

significance or effect of marriage.

OHIO REV. CODE ANN. § 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.

INTRODUCTION

Petitioners married seeking a cherished status

that protects families throughout life, from cradle to

grave. But Ohio refuses to respect the dignity and

status conferred on Petitioners’ marriages by other

states. From the start of the marriage to the birth of

children to the death of one spouse and beyond, Ohio

erases the legal relationships of Petitioners’ families.

Ohio treats these spouses as legal strangers to one

another and recognizes only one member of each

couple as the legal parent to their children. Ohio

even cruelly refuses to recognize Petitioners’

marriages on death certificates when one spouse dies.

Through its marriage recognition bans, Ohio strikes

out at a class of individuals whose intimate, personal

relationships have been afforded a solemn and

special status by other states—men and women who

love and marry a person of the same sex.

Ohio and the court below contend that legal

recognition of the marriages of same-sex couples

must await the day when the political majority of

each state is ready to bestow equal rights on these

families. They assert that the federal courts should

stand aside while same-sex spouses and their

children suffer daily hardships and _ indignities

imposed by the unconstitutional refusal of states like

Ohio to recognize these couples’ marriages. Wait,

they say, until the majority decides the time is right.

The Petitioners, their children, and many like

them have waited too long already. Ohio widowers

James Obergefell and David Michener ran out of

time when death took their spouses. The infants

born to the Henry-Rogers, Yorksmith, and Noe-

McCracken families could not wait to arrive in this

world until a majority voted that their parents’

marriages would be honored. And Adopted Baby Doe

could not wait for a home until a majority of Ohioans

chose to recognize the marriage of his New York

adoptive fathers. No more children should be

demeaned by states like Ohio; no more loving spouses

should die without the dignity that accompanies

respect for their marriages, while the democratic

process grinds its slow way towards

justice. Following in the path of United States v.

Windsor, which held that guarantees of liberty and

equality prohibit the federal government

from demeaning the dignity and integrity of the

families of married same-sex spouses, 133 S. Ct.

2675, 2695-96 (2013), this Court should declare the

Ohio bans on marriage recognition unconstitutional.

STATEMENT OF THE CASE

A. Ohio’s Marriage Recognition Bans

Prior to 2004, Ohio followed the firm practice of

recognizing all marriages entered out of state, even if

the marriages would have been void if performed in

Ohio. J.A. 247-248, 255. That changed in 2004, with

Ohio’s enactment of Ohio Rev. Code Ann. §

3101.01(C) and adoption of Ohio Const. art. XV, § 11

(collectively, the “recognition bans” or “bans”). While

a separate part of the 2004 measures prohibit same-

sex couples from marrying in the state, the

recognition bans deny married same-sex couples any

legal recognition for their marriages entered in other

jurisdictions.

Ohio’s recognition bans were part of a wave of

similar state restrictions on marriage rights for

same-sex couples. Those measures were in part

reactions to a 2003 Massachusetts ruling under that

state’s constitution holding that same-sex couples

have the right to marry. Goodridge v. Dept of Pub.

Health, 798 N.E.2d 941 (Mass. 2003); J.A. 99, 102.

But Ohio went further than many other states by

also prohibiting recognition of any legal status “that

intends to approximate the design, qualities,

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

XV, § 11, such as out-of-state civil unions or

comprehensive domestic partnerships. The bans

force same-sex couples who seek to formalize their

commitment through a _ government-recognized

relationship to marry in another state but then

endure the indignity and inequity of not being

recognized as married upon returning or moving to

Ohio. J.A. 124.

The recognition bans’ purpose was to create “two

distinct and inherently unequal Ohios.” J.A. 124. A

leading Senate supporter of Ohio Rev. Code Ann. §

3101.01(C) stated that the legislation would ensure

that same-sex couples’ relationships would not “have

all the opportunities” and would not be “equal to

everyone else’s.” Pet. App. 167a. The constitutional

amendment’s primary’ sponsor, Citizens for

Community Values, relied on numerous negative and

inaccurate representations of lesbians and gay men,

including warnings 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

that “[wle won’t have a future unless [heterosexual]

moms and dads have children.” Pet. App. 168a. In

the official ballot report, amendment proponents

urged voters to block giving “official status,

recognition and benefits to homosexual and other

deviant relationships that seek to imitate marriage.”

J.A. 170 (emphasis added). Ohio voters passed the

recognition bans amidst this campaign of fear and

misrepresentation.

B. Petitioners

1. Obergefell Petitioners

James Obergefell fell deeply in love in 1992 with

his late spouse, John Arthur. For more than two

decades they built a life together in Cincinnati, Ohio,

where they worked and had deep roots in the

community. J.A. 24, 29. Tragedy struck in 2011,

when John was diagnosed with terminal amyotrophic

lateral sclerosis—known as ALS, or Lou Gehrig’s

disease. Pet. App. 168a-169a. James “had the honor

of caring” for John throughout John’s illness. J.A. 37.

Following this Court’s June 2013 Windsor ruling

striking down Section 3 of the federal Defense of

Marriage Act, 1 U.S.C. § 7 (“DOMA”), the couple

resolved to marry before John died. Because Ohio

would not permit them to marry, family and friends

opened their hearts and wallets so the couple could

travel to Maryland on a medically-equipped plane

and marry there. J.A. 25. On July 11, 2013, with

John too ill to move any further, they were wed

inside the plane as it sat on the Baltimore tarmac.

J.A. 25, 70.

It was a joyous moment, but cruelly short-lived.

When their plane touched back down in Ohio, the

state’s recognition bans effectively annulled their

marriage for all state law (and some federal law)

purposes. The distraught couple realized that unless

they obtained a court order, John’s death certificate,

his “final record as a person and as a citizen of Ohio,”

would not “reflect and respect [their] 20-year

relationship and legal marriage.” J.A. 37-38. In

James’s words, “Not to do so is hurtful, and it is

hurtful for the rest of time.” J.A. 38. John died on

October 22, 2013, at the age of 48. J.A. 367.

In addition to dealing with the grief of losing his

husband, James continues to suffer a multitude of

inequities and indignities because Ohio refuses to

recognize him as John’s surviving spouse. He is

hindered from applying for benefits as a surviving

spouse, filing joint tax returns for the period in which

John was alive, ensuring that through posterity the

fact of their marriage will be reflected in the official

records of his and John’s home state, and, some day,

being buried with John in John’s family’s cemetery

plot. J.A. 25-26, 38.

Ohioans David Michener and his late spouse,

William Ives, lived as a loving couple for 18 years,

raising three adopted children. On July 22, 2013,

they married in Delaware. Tragically and

unexpectedly, William died of natural causes on

August 27, 2013, at the age of 54, leaving David to

parent their children alone. Pet. App. 169a; J.A. 368.

David sought a death certificate identifying him as

William’s surviving spouse so he could fulfill

William’s wishes to be cremated and “to bring closure

to the family in a manner that respected their

marriage.” J.A. 74.

The third Obergefel/ Petitioner, Robert Grunn, is

a licensed Ohio funeral director whose statutory

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, probate, and other

purposes after the death of a spouse. J.A. 268-269.

2. Henry Petitioners

Brittani Henry and LB Rogers, Nicole and Pam

Yorksmith, Kelly Noe and Kelly McCracken, and

Joseph Vitale and Robert Talmas are married

couples who welcomed Ohio-born children into their

families.

When the Henry case was filed, three of the four

married couples had conceived using anonymous

donor insemination (“ADI”), and they all anticipated

births in Ohio hospitals. Pet. App. 110a, 113a-115a.

Ohio’s recognition bans would have denied those

children the dignity and protections that come from

identification of their two legal parents on their birth

certificates. Before these three babies were born, the

district court ruled that their birth certificates should

reflect that each baby has two parents based on the

recognition of parentage that automatically applies

under Ohio law when a child is born to a married

couple using ADI. Pet. App. 138a-139a, 15la. See

Ohio Rev. Code Ann. § 3111.95 (spouse of woman

using ADI is conclusively deemed legal parent of

resulting child); see also Ohio Rev. Code Ann. §

3111.03. To the joy of their parents, the three babies

were born later in 2014. Pursuant to the court’s

order, these infants were all issued Ohio birth

certificates securing their legal relationships with

both of their parents. However, if the Sixth Circuit’s

ruling is not overturned, Ohio can take these

children’s birth certificates back and literally remove

from each child legal acknowledgement of one

parent.!

The fourth Petitioner couple, two married men

living in New York, adopted an Ohio-born baby boy

in 2013, who also is a Petitioner. Pet. App. 110a.

116a. The Vitale-Talmas couple is_ refused

recognition of their child’s adoption decree and

denied an amended birth certificate identifying both

as parents, which Ohio routinely would grant for

adoptive couples whose marriages the state respects.

See Ohio Rev. Code Ann. §§ 3705.12(A)(1),

3107.18(A); Pet. App. 140a; J.A. 410-411.

Ohio natives Brittani Henry and LB Rogers have

been in a loving, committed relationship since 2008.

Seeking to be married before becoming parents, the

couple journeyed to New York while Brittani was

pregnant and wed on January 17, 2014. Later in

2014 Brittani gave birth to their baby boy. Pet. App.

21a; J.A. 394. The joy of their son’s birth and the

couple’s shared adventure as parents was

accompanied by the anxiety and fear that came with

non-recognition of their marriage. Not only does

Ohio seek to refuse to identify LB as a legal parent

1 While Ohio issued each child a birth certificate listing both

parents pursuant to the order of the district court, Ohio

included special notations on the birth certificates stating they

were issued pursuant to the district court’s order. Moreover,

the State has explicitly reserved the right to amend the birth

certificates should Ohio prevail on appeal. Henry Defs.’ Mot.

Stay 2, ECF 31, Case No. 14-cv-129.

on their infant’s birth certificate, but the couple also

must suffer added anxiety about their son’s security

and wellbeing should either parent become

incapacitated or die. J.A. 394-395. LB worries, “if

something should happen to my wife such that she

could no longer take care of our child, there is no

guarantee that I will be granted custody,” or should

LB die, whether LB’s own parents would be legally

recognized as grandparents. J.A. 395.

Nicole and Pam Yorksmith, who live in Kentucky

near the Ohio border, have been a committed couple

since 2006 and married in California in 2008. J.A.

397-398. In 2009, the married couple legally changed

their names to combine their surnames “York” and

“Smith” so that, when they had children in the

future, their family would share the same last name.

Their first son, G. Yorksmith, conceived by Nicole

with ADI, was born in a Cincinnati hospital in 2010.

J.A. 398. Because Ohio does not recognize their

marriage or Pam as a parent, Pam’s name does not

appear on her son’s birth certificate. They have

experienced both practical and legal disadvantages

as a result. For example, when their son needed a

passport, only Nicole was permitted to apply. They

had to secure a medical power of attorney so Pam

could obtain information from their son’s healthcare

providers. They had to execute a general power of

attorney to authorize Pam to speak with their son’s

teachers and daycare workers. At any moment,

Nicole and Pam fear, “these documents could be

rejected and [their] son’s safety jeopardized if Pam is

not acknowledged as an equal parent.” J.A. 398. In

2014 Nicole gave birth in Ohio to their second son,

again without the security of a birth certificate

naming Pam, who equally co-parents their boys. Pet.

App. 21a.

Kelly Noe and Kelly McCracken, who also live

near Ohio in Kentucky, have been a committed,

loving couple since 2009. They married in

Massachusetts in 2011. Kelly Noe gave birth to their

child in 2014 in a Cincinnati hospital. Pet. App. 21a:

J.A. 402. Like the Yorksmiths, this couple seeks to

have both parents’ names on their child’s birth

certificate because Kelly McCracken “will be this

child’s parent in every sense.” J.A. 402. Ohio's

refusal to recognize their marriage and their child’s

parentage “denigrates” their family and “demeans

and harms all of’ them. J.A. 402.

Joseph Vitale and Robert Talmas have been in a

loving, committed relationship since 1997. J.A. 404.

In 2011 they married in New York, where they live

and built careers. They were able to see their dream

of being parents together come true when they

adopted a son born in Ohio in 2013. The day he was

born, Joseph and Robert were at the hospital to

welcome their baby boy to the world, sleeping in the

same hospital room with him until he was

discharged. A New York court issued the final

adoption decree on January 17, 2014. J.A. 4065.

Together Joseph and Robert have given their little

boy a home filled with love and support. J.A. 406.

But Ohio insists that only one of his parents can be

listed on his amended birth certificate. Joseph wants

to know “[hlow would we choose which parent should

be listed on the birth certificate?” and “[w]hat

message does that give our son?” J.A. 406. From

hundreds of miles away, Ohio disparages Adopted

Child Doe’s family, making it harder for his parents

to take care of his medical needs, obtain a passport

for him, or register him in school. J.A. 406.

Throughout his life, Ohio’s recognition bans will

undermine this child’s ability to feel secure in his

family’s integrity and equality, even in a state like

New York that fully respects his parents’ marriage

and his adoption decree.

C. District Court Proceedings

1. Obergefell

With John Arthur’s death approaching, he and

James Obergefell filed a complaint against, among

others, the Director of the Ohio Department of

Health (“Director”) and the Registrar of the

Cincinnati Health Department? on July 19, 2013, just

weeks after this Court’s Windsor decision. Compl.,

ECF 1, Case No. 13-cv-501. The complaint alleged

that the recognition bans, as applied, violate

constitutional guarantees of due process and equal

protection.

The district court granted James and John a

temporary restraining order (“TRO”) requiring Ohio

to recognize their marriage on John’s death

certificate when the time came. J.A. 41. Pursuant to

that TRO, upon John’s death in October, Ohio issued

a death certificate accurately naming James as his

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

2013, David Michener joined the case and was

granted a similar TRO requiring Ohio to recognize

2 The Registrar, who was also a defendant in Henry, did not

appeal the district court rulings in either case.

his marriage and status as surviving spouse on

William’s death certificate. Pet. App. 169a-170a; J.A.

56.

On October 29, 2013, the Obergefe/l/ Petitioners

moved for a declaratory judgment on their as-applied

claims, seeking permanently to enjoin the Director

and his officers from applying the recognition bans

against them in issuing death certificates.* J.A. 8.

The record included live testimony from the TRO

hearing, uncontested expert declarations, and

declarations from the Petitioners explaining the

impact of the recognition bans on their lives. J.A. 23-

40, 88-368. 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.” Pet. App.

162a.

The district court held that “[t]he 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.” Pet. App. 174a. The

court also held that the recognition bans discriminate

on the basis of sexual orientation and fail under both

heightened equal protection scrutiny, Pet. App. 203a,

and rational basis review under the Equal Protection

Clause. Pet. App. 204a.

3 Ohio has complied with the district court’s order by issuing

accurate death certificates for John Arthur and William Ives

but has also asserted a right to amend those death certificates

in the future to remove references to their marriages and

surviving spouses. See J.A. 370-371.

2. Henry

On February 10, 2014, the Henry Petitioners filed

a complaint against the Director asserting that

Ohio’s refusal to respect their marriages violates

federal constitutional guarantees of due process,

equal protection, and the right to travel. J.A. 372.

Henry went “beyond the as-applied challenge

pursued in Obergefell,” alleging more broadly that no

set of circumstances exist under which the

recognition bans can be validly applied. Pet. App.

118a. The suit also asserted that Ohio’s refusal to

recognize the Vitale-Talmas adoption decree violates

the Full Faith and Credit Clause of the federal

Constitution. J.A. 389. The district court issued a

declaratory judgment and permanent injunction in

Petitioners’ favor on April 14, 2014. Pet. App. 150a.

As 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.” Pet. App. 127a. The district

court also reaffirmed that Ohio’s recognition bans

discriminate on the basis of sexual orientation and

therefore warrant heightened equal protection

scrutiny, Pet. App. 142a-143a, although they also fail

rational basis review. Pet. App. 144a.

Because the record—including the judicially

noticed record of Obergefel/—was “staggeringly

devoid of any legitimate justification for the State’s

ongoing arbitrary discrimination on the basis of

sexual orientation,” the district court declared the

——_—eaw==eereeeeeeeeeeeeeeeeeeeeeeeeeeee eee aaa.

recognition bans “facially unconstitutional and

unenforceable under any circumstances.” Pet. App.

108a. Recognizing the severe irreparable harm

suffered by Petitioners—and particularly their

children—the court permanently enjoined the

Director and his officers and agents from enforcing

the bans. Pet. App. 150a-151la.

The court also granted the Vitale-Talmas family’s

claim for enforcement of the New York adoption

decree, enjoining the Director from denying full faith

and credit to decrees of adoption duly obtained by

same-sex couples in other jurisdictions. Pet. App.

148a, 153a-157a n.i.

The court subsequently stayed its mandate

pending appeal except as to the Petitioners’

children’s birth certificates. Pet. App. 152a n.25.

D. Sixth Circuit Decision

The Sixth Circuit consolidated the appeals in

Obergefell and Henry. Order, ECF 6, Case No. 14-

3464. The cases were argued with four related

appeals from district court decisions striking down

marriage or recognition bans in Kentucky, Michigan,

and Tennessee.

On November 6, 2014, a divided panel of the Sixth

Circuit reversed the lower courts in all six cases. Pet.

App. la, 69a.

The court decided as a threshold matter that it

was bound to reject Petitioners’ claims based on this

Court’s four-decade-old one-line summary dismissal

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 (1972). Pet. App. 24a.

Rather than end its opinion there, however, the

majority proceeded to address additional arguments

raised in the cases. It framed the ultimate issue

before the court as “[wJho decides?” Pet. App. 16a.

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

“the customary political processes,” the majority

concluded that the courts should not “resolve new

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

The court did not find any basis for applying

heightened judicial scrutiny, holding that there is no

“right to gay marriage.” Pet. App. 47a. Relying on

circuit precedent holding that a presumption of

constitutionality applies to sexual orientation

classifications, the court rejected the argument that

the bans trigger heightened equal protection

scrutiny. Pet. App. 52a.

Applying rational basis’ review, the _ court

determined that the bans rationally further two

purported justifications: (1) the government’s

interest in regulating male-female relationships

because of their procreative capacity and “risk of

unintended offspring,” Pet. App. 35a-36a, and (2) the

government’s desire to “wait and see” and rely on the

democratic process to change a long-accepted norm.

Pet. App. 36a-37a. The court further held that the

bans were not motivated by animus towards lesbians

and gay men. Pet. App. 42a.

The majority also held that the states’ refusal to

recognize out-of-state marriages does not violate the

constitutional guarantees of due process or equal

protection largely for the same reasons it concluded

the states could constitutionally withhold the right to

marry within their borders. Pet. App. 63a-67a.

Although the majority did not specifically address

the Vitale-Talmas Petitioners’ Full Faith and Credit

claim, its blanket reversal of all decisions below

reversed the district court’s ruling on that claim as

well.4

The dissent cited with approval the recent

opinions of the Fourth, Seventh, Ninth. and Tenth

Circuits on the same questions, all striking down

denial of marriage rights to same-sex couples. Pet.

App. 86a-87a: see Latta v. Otter, 771 F.3d 456 (9th

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

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

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

2014).

The dissent rejected the “irresponsible

procreation” rationale, noting that, while the

majority characterizes 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.” Pet. App. 72a.

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

dissent emphasized the courts’ responsibility to

resolve cases involving individual rights, noting that

this same argument was raised and rejected in

Loving v. Virginia, 388 U.S. 1 (1967), and Frontiero

v. Richardson, 411 U.S. 677 (1973). Pet. App. 103a.

Accordingly, the dissent concluded that “[i]f we in

the judiciary do not have the authority, and indeed

4 This Court did not accept for review the question whether

Ohio’s denial of recognition to the adoption decree in and of

itself violates the guarantee of Full Faith and Credit.

the responsibility, to right fundamental wrongs left

excused by a majority 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.” Pet. App. 106a.

SUMMARY OF ARGUMENT

1. Ohio’s’ recognition bans’ violate’ the

Fourteenth Amendment for all the reasons this Court

struck down DOMA as unconstitutional in Windsor.

That case invalidated DOMA because DOMA (a) was

designed to treat unequally those same-sex spouses

whom states, by their “marriage laws, sought to

protect in persanhood and dignity,” 133 S. Ct. at

2696: (b) reflected a purpose to refuse recognition to

existing marriages in order to make same-sex couples

unequal to other married couples; (c) had the

practical effect of imposing a stigma on married

same-sex couples and their families by “instructling]

. all persons with whom same-sex couples interact,

including their own children, that their marriage is

less worthy than the marriages of others,” rbid.; and

(d) departed from a strong tradition of respecting

marriages conferred by the states.

The parallels between DOMA and Ohio's

recognition bans are striking. Like DOMA, the

recognition bans impose a “discrimination[ of an

unusual character,” by singling out for disfavored

treatment same-sex couples married by other states

in order to mark those marriages as unequal. /d. at

2692 (quoting Romer v. Evans, 517 U.S. 620, 633

(1996)). The recognition bans brand the marriages

and families of same-sex couples for second-class

treatment. And they depart from longstanding

traditions of federalism in order to impose real costs

on these families. As in Windsor, no legitimate

interest can “overcomel] the purpose and effect to

disparage and to injure those whom la sovereign]

State, by its marriage laws, sought to protect in

personhood and dignity.” Id. at 2696. The

Constitution withholds from both state and federal

government “the power to degrade or demean” in this

manner.” Jd. at 2695. The recognition bans are

therefore unconstitutional.

2. The recognition bans must also be subjected

to heightened scrutiny because they infringe on the

Fourteenth Amendment's guarantee of due process

by denying same-sex couples’ fundamental right to

recognition of their ongoing marriages. Petitioners’

interest in legal respect for their existing marriages

should also be understood as a protected liberty

interest even if it were not an aspect of

fundamentally protected marriage rights.

Recognition of Petitioners’ validly entered marriages

wherever they may live, work, or travel is essential to

the ordered liberty our Constitution protects.

3. The recognition bans should be subjected to

heightened scrutiny under the Equal Protection

Clause as well. The Court should make explicit what

is already implicit in its precedents: that government

discrimination targeting gay people, as the Ohio

recognition bans do, is presumptively impermissible.

A contrary presumption—that such discrimination is

legitimate and subject to the same level of review

applied to routine economic regulation—demeans the

equal dignity of gay people and should be rejected.

Classifications on the basis of sexual orientation have

all the hallmarks to which this Court has pointed in

concluding that laws targeting vulnerable groups of

people demand _=§ special scrutiny. Moreover,

heightened scrutiny is also appropriate because the

recognition bans discriminate on the basis of sex.

4. Even without heightened scrutiny, Ohio's

recognition bans do not pass constitutional muster

under any standard of review. The purported state

interests in deferring to the democratic process,

proceeding cautiously, or upholding tradition are all

circular attempts to justify maintaining’ the

discriminatory status quo for its own sake. They are

not “independent and legitimate” state interests that

can justify discrimination. Momer, 517 U.S. at 633.

And any arguments based on “irresponsible

procreation” or “optimal parenting” are logically

incoherent and factually insupportable.

ARGUMENT

I. The Recognition Bans Are Unconstitutional

Under Windsor

Ohio's recognition bans strip married same-sex

spouses and their children of hundreds of legal and

financial protections, as well as the security and

dignity conferred by marriage. They do so in order to

ensure that same-sex spouses remain unequal to all

other married spouses. As in Windsor, the

recognition bans’ “design, purpose, and effect,”

Windsor, 133 S. Ct. at 2689, are to single out a class

of persons and deny them “a dignity and status of

immense import,” sd. at 2692, depriving same-sex

spouses and their families of constitutionally

protected liberty and equality. And, as in Windsor,

the recognition bans are unconstitutional.

A. The Recognition Bans’ “Design, Purpose, And

Effect” Are To Impose Inequality

1. The text of the recognition bans target the

same narrow class of persons DOMA's text targeted.

Windsor held that DOMA denied same-sex couples

equal protection because DOMA'’s “text” evinced the

design to “interfere[] with the equal dignity of same-

sex marriages.” Jd. at 2693. On its face, DOMA

singled out “same-sex marriages made lawful by ...

the States” for “restrictions and disabilities.” Jd. at

2695. The plain text of Ohio’s recognition bans, like

DOMA’s, singles out same-sex couples among all who

married out of state and denies them the legal

protections, security, and dignity of their marriages.

The recognition bans’ text therefore exhibits the

constitutionally impermissible design to erase the

dignity and status conferred on married same-sex

couples by other states.

2. Windsor also invalidated DOMA because

DOMA’s “purpose” was “to restrict the freedom and

choices of couples married under” “state same-sex

marriage laws.” Jbid. That purpose was evident

from DOMA’s legislative history, which was peppered

with references to “defend{ing]” “heterosexual

marriage” and “protecting the traditional moral

teachings of heterosexual-only marriage laws.” Jbid.

The express purpose invoked by proponents of Ohio's

recognition bans mimicked the purpose invoked by

DOMA’s supporters less than a decade before—“to

impose inequality” and “to identify a subset of state-

sanctioned marriages and make them unequal.” /d.

at 2693, 2694. Ohio legislators enacted the

recognition bans to prevent same-sex relationships

from becoming “equal to everyone else’s.” J.A. 108.

The primary sponsor of the _ constitutional

amendment asserted a central purpose “to protect

Ohio from the ‘inherent dangers of the homosexual

activists’ agenda.” Pet. App. 167a. In the official

ballot report, the amendment’s proponents asserted

it would “restrict [] governmental bodies in Ohio from

... givling] official status, recognition and benefits to

homosexuals and other deviant relationships that

seek to imitate marriage.” J.A. 170. Voters were

urged to support the amendment “to protect marriage

against those who would alter and undermine it.”

J.A. 170.

The context in which the recognition bans were

enacted likewise makes clear that their entire point

was to brand marriages of same-sex spouses as

unequal. Preventing recognition of otherwise lawful

out-of-state marriages was not merely benign

perpetuation of “thousands of years of adherence to

the traditional definition of marriage.” Pet. App. 37a.

The bans were not enacted far in the past when

“many citizens had not even considered the

possibility that two persons of the same sex might

aspire to occupy the same status and dignity as that

of a man and woman in lawful marriage.” Windsor,

133 S. Ct. at 2689. They came eight years after

DOMA, and, like DOMA, were reactions to progress

in a few states to win legal protections for same-sex

relationships. Jd. at 2682; State v. Brown, 849

N.E.2d 44, 46 (Ohio Ct. App., Stark Cnty. 2006); J.A.

98-103. The bans came on the heels of Goodridge,

which extended marriage rights to same-sex couples

in Massachusetts, 798 N.E.2d 941, as well as this

Court’s landmark decision in Lawrence v. Texas,

affirming the liberty of lesbians and gay men to

engage in sexual intimacy and form “a personal bond

that is more enduring.” 539 U.S. 558, 567 (2003). In

the face of growing national acceptance of same-sex

couples, Ohio lawmakers sought to ensure that same-

sex couples in Ohio would not be treated with equal

respect and would be denied even the possibility of

equal status under the law. This is precisely what

equal protection prohibits. See Pers. Adm’ of Mass.

v. Feeney, 442 U.S. 256, 279 (1979) (government

action that has “selected or reaffirmed a particular

course of action” because of its “adverse effects upon

an identifiable group” offends equal protection).

Ohio’s impermissible purpose is also emblazoned

on the title of the act itself? the proponents titled it

the “Marriage Protection Amendment,” J.A. 170, and

it is known in Ohio as the “Defense of Marriage

Amendment.” Brown, 849 N.E.2d at 46. That same

title was a mark against DOMA in Windsor. 133 S.

Ct. at 2693.

Thus, “[t]he history of’ the recognition bans’

“enactment and [their] own text demonstrate that

interference with the equal dignity of same-sex

marriages ... conferred by the States ... [is] more

than an incidental effect[.]” bid It is the

recognition bans’ very “essence.” J/bid.

Faced with similar evidence that DOMA

impermissibly sought to make marriages of same-sex

couples unequal, Windsor held DOMA

unconstitutional. As this Court explained. “no

legitimate purpose overcomes the purpose ... to

disparage and to injure those whom the State ...

sought to protect in personhood and dignity.” Jd. at

2696. For the same reasons, the recognition bans are

unconstitutional.

Acknowledging that the purpose of the recognition

bans is to impose inequality does not brand

individual legislators or voters as “hate-mongers,”

Pet. App. 45a, or “monsters.” Windsor, 133 S. Ct. at

2711 (Scalia, J., dissenting). Unconstitutional

discrimination “rises not from malice or hostile

animus. alone. It may result as well from

insensitivity caused by simple want of careful,

rational reflection or from some instinctive

mechanism to guard against people who appear to be

different in some respects from ourselves.” Bd. of

Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374

(2001) (Kennedy, J., concurring); see also Romer, 517

U.S. at 632-35: City of Cleburne v. Cleburne Living

Ctr.. 473 U.S. 432, 448 (1985) (“mere negative

attitudes, or fear” cannot justify singling out one

group for unequal treatment). It can also arise from

“profound and deep convictions.” Lawrence, 539 U.S.

at 571. Nevertheless, even in matters on which

“[mJlen and women of good conscience can disagree,”

this Court's obligation is “to define the liberty of all,”

not to enforce a particular “moral code.” Planned

Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833, 850 (1992); see Lawrence, 539 U.S. at 571.

3. Windsor also held DOMA unconstitutional

because its “practical effect” was to “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.”

133 S. Ct at 2693. DOMA disqualified married same-

sex spouses, widows, widowers, and their children

from government protections and responsibilities

under more than 1,000 federal laws, ranging from

the “mundane to the profound.” Jd. at 2694. The

recognition bans similarly result in far-reaching

burdens on married couples’ lives. Like DOMA, they

sweep broadly into all manner of financial, medical,

and personal family matters, covering protections

related to birth, death, and most everything in

between.

For example, if Ohio recognized the Petitioner

couples’ marriages, it would also recognize both

spouses in each couple as the parents of their

children and would issue birth certificates naming

both parents. See Ohio Rev. Code Ann. §§

3111.95(A), 3705.09(F)(1); J.A. 453-456. By

depriving children of same-sex spouses of accurate

birth certificates, Ohio interferes with the parents’

ability to protect and provide for their children. A

birth certificate is the only common government-

conferred record that establishes identity, parentage,

and citizenship in one document: is not confidential

(in the way adoption decrees often are): and is

uniformly recognized, readily accepted, and often

required in an array of legal contexts. And by

denying legal recognition to the parental status and

obhgations of same-sex spouses, the recognition bans

expose children to the risk of losing one parent’s

financial support should the couple separate or the

recognized parent pass away. See Pet. App. 132a-

133a.

The recognition bans also prevent married same-

sex couples in Ohio from accessing important

protections under some federal programs. For

example, a surviving spouse is eligible for her

spouse’s level of Social Security retirement benefits

only if the state where they were domiciled

recognizes her marriage. See 42 U.S.C. § 416(h)(1).

Eligibility for certain spousal veterans’ benefits also

requires marriage recognition by the state of

residence. See 38 U.S.C. § 103(c). While Ohio

welcomes other newlyweds home with open arms, it

meets married same-sex couples with government

condemnation of their families that excludes them

from critical federal protections.

Ohio's recognition bans thus destroy the “stability

and predictability of basic personal relations [a] State

has found it proper to acknowledge and protect”

when a same-sex couple married elsewhere crosses

the Ohio border. Windsor, 133 S. Ct. at 2694. For

same-sex couples living outside the state, a road trip

to visit relatives, a short drive to work, or a visit to

an Ohio hospital all risk erasing their marriages and

the protections that come with them. The

discriminatory impact of Ohio’s bans is felt across the

country as same-sex married couples and their

children bear the anxiety that, in an instant of

unexpected heartache, they may be treated as legal

strangers.

Lawfully married couples and their families

should be able to rely on the protections that come

with spousal rights, parentage, and laws of intestacy.

Because of the recognition bans, married same-sex

couples instead must find the means to compile a

portfolio of adoption decrees (where not prohibited by

state law as in Ohio), medical and personal powers of

attorney, advance directives, wills, and other legal

documents to protect themselves as best they can

against a potential family tragedy in Ohio. But these

private documents provide only a small fraction of

the cradle-to-grave protections Ohio law

automatically bestows on families through the

marriages it chooses to recognize. J.A. 267-289,

453-456.

Petitioner Obergefell’s story tragically illustrates

the point. When a same-sex spouse such as John

Arthur dies within Ohio, the state issues a death

certificate proclaiming that he died “single” and

forever obliterating his surviving spouse from the

last official record of his life. J.A. 36-37, 268.

Even when couples remain outside Ohio, the

recognition bans demean and undermine their

families from afar. For the Vitale-Talmas family who

reside in New York, the Ohio recognition bans deny

one parent’s existence on their son’s Ohio-issued

birth certificate. Ohio insists that Adopted Child Doe

must grow up with an inaccurate birth certificate

that makes it harder for his parents to educate him,

travel with him, and secure medical care for him.

J.A. 406, 453-456. From hundreds of miles away, the

bans improperly “visit{] condemnation” on Adopted

Child Doe “in order to express [Ohio's] disapproval of

[his] parents.” Mathews v. Lucas, 427 U.S. 495, 505

(1976). The bans thus cast their long shadow into

states that have “decided that same-sex couples

should have the right to marry and so live with pride

in themselves and their union and in a status of

equality with all other married persons.” Windsor.

133 S. Ct. at 2689. They place same-sex couples in

Ohio and beyond “in an unstable position of being in

a second-tier marriage,” and “make[] 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.” Jd. at 2694.

4. Windsor also gave “careful consideration” to

DOMA’s purpose and effects because it departed from

the “long-established precept” in our federal system

of recognizing marriages from the various states. /d.

at 2692. Before DOMA, the federal government

recognized marriages regardless of differences among

state marriage laws. Ohio’s recognition bans

warrant similarly searching review because they

deviated from the rich tradition, historically followed

by all the states, that a marriage valid where

celebrated is valid everywhere, even if the marriage

could not have been entered in the forum state.

Because the bans replicate “DOMA’s unusual

deviation from the usual tradition of recognizing and

accepting state definitions of marriage,” they warrant

careful judicial review. Jd. at 2693.

The extensive protections for existing marital

relationships are reflected in the bedrock principle of

American law that a marriage valid where celebrated

is valid everywhere. See, eg, Fletcher W.

Battershall, The Law of Domestic Relations in the

State of New York 7-8 (1910) (describing “permission

or prohibition of particular marriages, of right

belongs to the country where the marriage is to be

celebrated” as a “universal practice of civilized

nations”). Certainty that a marital status once

obtained will be universally recognized has long been

understood to be of fundamental importance both to

the individual and to society more broadly. See

Madewell v. United States, 84 F. Supp. 329, 332

(E.D. Tenn. 1949) (The “policy of the civilized world

.. is to sustain marriages, not to upset them.”); see

also Section II, below.

aterarnreenennieemesenenenee

To be sure, cases applying the place of celebration

rule often articulate an exception to the rule if the

out-of-state marriage would violate an extremely

strong public policy of the state. Historically this

generally meant the marriage and concomitant

sexual relations between the spouses were so

condemned as to be criminal if occurring within the

state. Nationwide, until the recent enactment of

laws targeting same-sex couples, the public policy

exception had grown largely obsolete. J.A. 255.

Thus in historical and contemporary times, with

limited exceptions—most notably now-discredited

anti-miscegenation laws (see Section II)—Ohio and

states around the nation have followed a universal

standard to honor marriages wherever entered, even

when the marriage was contrary to the domicile

state’s public policy and express law. See Tobias

Barrington Wolff, Interest Analysis mn

Interjurisdictional Marriage Disputes, 153 U. Pa. L.

Rev. 2215, 2220-21 (2005). In reality, the public

policy exception has been applied infrequently to

invalidate a marriage valid where entered. Barbara

J. Cox, Same-Sex Marriage and the Public Policy

Exception in Choice-of-Law: Does It Really Exist?, 16

Quinnipiac L. Rev. 61, 67-68 (1996).

Until the 2004 recognition bans, Ohio faithfully

adhered to this principle, which has been an

especially robust feature of the State’s marriage

protections. “[I]t 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.” Pet. App.

190a. This was true even if the marriage was

“clearly contrary to Ohio law and entered into by

Ohio residents with the purpose of evading Ohio

law.” J.A. 247. For example, Ohio recognizes the

out-of-state marriages of first cousins and minors,

even though it is illegal for first cousins or minors to

marry in Ohio. Pet. App. 191la; Mazzolini v.

Mazzolini, 155 N.E.2d 206 (Ohio 1958) (first cousins);

Peefer v. State, 182 N.E. 117 (Ohio Ct. App., Greene

Cnty. 1931) (minors); see also Dennis v. R.R. Ret.

Bd., 585 F.2d 151, 156 (6th Cir. 1978).5 Neither

Petitioners, Respondent, nor the courts below

identified a single case in which Ohio actually denied

recognition to the out-of-state marriage of a different-

sex couple. See J.A. 255.

The recognition bans’ exemption of marriages of

same-sex spouses from the longstanding place of

celebration rule by labelling those marriages

contrary to “strong public policy” simply underscores

the State’s purpose to brand same-sex spouses as

unequal. Ohio Rev. Code Ann. § 3101.01(C).

B. Windsor's Principles Apply To State As Well

As Federal Marriage Recognition Bans

The Sixth Circuit denied Windsors obvious

relevance to this case, characterizing this Court’s

ruling as hinging on federalism concerns about

DOMA’s intrusion into state sovereignty. Pet. App.

53a°55a. But Windsor made clear that it was

“unnecessary to decide whether’ the federal intrusion

on state power itself “is a violation of the

* Until adoption of their own marriage bans targeting same-sex

couples, Kentucky, Michigan, and Tennessee similarly adhered

to the universal place of celebration rule. See, e.g., Stevenson v.

Gray, 56 Ky. 193, 207-08 (Ct. App. 1856): Jn re Miller's Estate,

214 N.W. 428, 429 (Mich. 1927): Keith v. Pack, 187 S.W.2d 618,

618 (Tenn. 1945).

Constitution,” because DOMA unjustifiably

discriminated against same-sex spouses lawfully

married in other states—just as Ohio's bans do. 133

S. Ct. at 2692; see also id. at 2709-10, (Scalia, J.,

dissenting) (observing that Windsors reasoning

would apply to states).

Indeed, Windsor confirmed that federalism

interests do not free states to trammel the

constitutional marriage rights of the individual.

While acknowledging that “the definition and

regulation of marriage has ... been treated as being

within the authority and realm of the separate

States,” jd. at 2689-90, the Court also noted that

“Isltate laws defining and regulating marriage, of

course, must respect the constitutional rights of

persons.” Jd. at 2691; see a/so id. at 2692: Latta, 771

F.3d at 474: Baskin, 766 F.3d at 671; Bostic. 760 F.3d

at 378-80; Kitchen, 755 F.3d at 1228. This is

consistent with the fundamental principle that “[t]he

State cannot demean thel[] existence” of persons,

including same-sex couples. Lawrence, 539 U.S. at

578. “The States are laboratories for

experimentation, but those experiments may not

deny the basic dignity the Constitution protects.”

Hail v. Florida, 134 S. Ct. 1986, 2001 (2014); see also

Kitchen, 755 F.3d at 1228-29. Ohjio’s recognition

bans do just that.

Ohio's recognition bans also infringe the

sovereignty of other states that have seen fit to

confer the status of marriage on same-sex couples.

This infringement extends even beyond disrespect for

the marriages of those, like the Vitale-Talmases, who

reside in the state in which they wed. In fealty to its

recognition bans, Ohio even refuses to honor sister

state judgments granting adoptions to same-sex

couples, as it did in refusing to honor Adopted Child

Doe’s New York adoption decree. Pet. App. 153a-

157a n.i. The federal Constitution transformed the

“several States ... into a single, unified Nation.”

Allstate Ins. Co. v. Hague, 449 U.S. 302, 322 (1981)

(Stevens, J., concurring). Ohio’s bans work to

undermine that essential feature of federalism.

*k*k&xx

Windsor makes clear why Ohio’s recognition bans

are unconstitutional. Like DOMA, the “design,

purpose, and effect” of the bans is to exclude married

same-sex couples and their families from rights and

protections even “approximating” those of marriage,

departing from the long practice of the “civilized

world” to recognize, not erase, validly-entered

marriages. Motivated by an impermissible purpose

to impose inequality, the recognition bans do not

survive the careful consideration Windsor requires.

Il. Ohio’s Refusal To Recognize Existing Marriages

Of Same-Sex Couples Is Subject To Heightened

Scrutiny Under The Due Process Clause

When a couple marries, the state “confer[s] ... a

dignity and status of immense import,” through an

“exercise of [the state’s] sovereign power.” Windsor,

133 S. Ct. at 2692, 2693. Once that status is created,

the Due Process Clause protects the relationship

from unjustified attempts to “divest[]” the couple “of

the duties and responsibilities that are an essential

part of married life.” Jd. at 2695. Whether that

protection is understood as a distinct aspect of the

fundamental rights of marriage or as a protected

liberty interest that stems from the importance of

being married in our society, “there is a sphere of

privacy or autonomy surrounding an existing marital

relationship into which the State may not lightly

intrude....”. Zablocki v. Redhail, 434 U.S. 374, 397

n.1 (1978) (Powell, J., concurring) (emphasis added)).

The ongoing relationship receives constitutional

protection because only when the wedding is over,

the guests are gone, and the couple returns home as

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

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

Being married would mean little if the

government were free to refuse all recognition to a

couple’s marriage once the vows are made and the

license is signed. When a couple knits their lives

together through marriage, making promises of

enduring support and care, they vow to be wed until

death—not state lines—“do us part.” Regardless of

whether this Court agrees that same-sex couples

have a constitutionally protected right to enter into

civil marriage in the first instance—and Petitioners

profoundly believe they do—the Court should

nevertheless conclude that, once /awfully married,

same-sex couples have a protected liberty interest,

and, indeed, a fundamental right, to ongoing

recognition of their marriages throughout the

nation.®

1. Petitioners have a fundamental right to

protection and recognition for their validly-entered

marriages—in other words, a right to be and remain

6 A ruling that a state may not constitutionally withhold the

right to marry within the state to same-sex couples would

necessarily require that states recognize within their borders

the out-of-state marriages of same-sex couples. There could be

no legitimate justification to refuse recognition to out-of-state

marriages permitted within the state.

married. Loving made clear that couples have

fundamental rights to have their marriages accorded

legal recognition and protection not just in the

jurisdiction in which they married, but also across

state lines. Indeed, Loving struck down not only

Virginia’s law prohibiting interracial marriages

within the state, but also its statutes denying

recognition to and criminally punishing’ such

marriages entered outside the state. 388 U.S. at 4,

12. It did so in a case involving a couple a/ready

married, who, after celebrating their nuptials in the

District of Columbia, were prosecuted on returning to

their Virginia home for their out-of-state marriage.

Id. at 2-3. Significantly, this Court held that

Virginia's statutory scheme, including its penalties

on out-of-state marriages and voiding of marriages

obtained elsewhere, “deprive[d] the Lovings of liberty

without due process of law in violation of the Due

Process Clause of the Fourteenth Amendment.” /d.

at 12. Like Richard Loving and Mildred Jeter’s

marriage, Petitioner couples’ existing marriages

reflect their life-long commitment essential to their

“pursuit of happiness.” Jbid. (citation omitted).

As Loving illustrates, the fundamental rights of

marriage protected by due process are not limited to

receiving marriage licenses. The freedom to select

the spouse of one’s choice receives constitutional

protection precisely because of the expectation that

this will be the single person with whom one will

travel through life, sharing profound intimacy and

mutual support through life’s good times and bad.

See itbid.; see also Hodgson v. Minnesota, 497 U.S.

417, 435 (1990); Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632, 639-40 (1974). Marriage’s “important

attributes” unfold, and need protection, over time.

These attributes include “expressions of emotional

support and public commitment,” for some “an

exercise of religious faith as well as an expression of

personal dedication,” and “pre-condition to the

receipt of government benefits.” TJTurner v. Safley,

482 U.S. 78, 95-96 (1987). As this Court has said,

marriage is an “enduring” bond, a commitment to

remain “together for better or for worse,” “a bilateral

loyalty,” “an association for [a] noble ... purpose.”

Griswold, 381 U.S. at 486. This constitutionally-

protected “status is a _ far-reaching legal

acknowledgment of the intimate _ relationship

between two people,” Windsor, 133 S. Ct. at 2692, a

commitment of enormous import that legally

recognized spouses carry wherever they’ go

throughout their married lives and even after one of

them dies.

Ohio’s recognition bans utterly disregard and

disrespect the lawful marriages of same-sex couples

entered elsewhere, striking at the heart of this right.

Thus, as the Fourth and Tenth Circuits and many

lower courts have held, a state’s refusal to recognize

a marriage lawfully licensed and performed out of

state between two people of the same sex violates the

Fourteenth Amendment guarantee of due process.

See, e.g., Bostic, 760 F.3d at 377; Kitchen, 755 F.3d

at 1213 (collecting authorities); Brenner v. Scott, 999

F. Supp. 2d 1278, 1288-89, 1293 (N.D. Fla. 2014),

appeals docketed, Nos. 14-14061-AA, 14-14066-AA

(11th Cir.); Whitewood v. Wolf, 992 F. Supp. 2d 410,

424 (M.D. Pa. 2014) (collecting authorities).

2. Even if it were not an aspect of the

fundamental right of marriage, Petitioners’ interest

in legal respect for their existing marriages should

still be understood as a protected liberty interest.

This Court has recognized that “choices to

maintain certain intimate human relationships must

be secured against undue intrusion by the State

because of the role of such relationships in

safeguarding the individual freedom that is central to

our constitutional scheme.” Aoberts v. U.S. Jaycees,

468 U.S. 609, 617-18 (1984). “Protecting these

relationships from unwarranted state interference ...

safeguards the ability independently to define one’s

existence that is central to any concept of liberty.”

Id. at 619. Petitioners’ interests in their existing

marriages are precisely the type of “associational

rights” this Court has repeatedly confirmed protect

an individual's “choices about marriage, family life,

and the bringing up of children” MLB v. SL,

519 U.S. 102, 116 (1996). These choices are

“sheltered by the Fourteenth Amendment against the

State’s unwarranted usurpation, disregard, or

disrespect.” Jbid. Only a weighty governmental

purpose served by denying recognition to Petitioners’

marriages could counterbalance the bans’

extraordinary intrusion on Petitioners’ liberty

interests. See, e.g., Youngberg v. Romeo, 457 U.S.

307, 320 (1982).

Indeed, as noted above, the place-of-celebration

rule reflects the expectation that one’s marriage will

be universally recognized and is so deeply rooted in

our nation’s history as to be “implicit in the concept

of ordered liberty.” Washington v. Glucksberg, 521

U.S. 702, 721 (1997) (Gnternal quotations and

citations omitted); see also Williams v. North

Carolina, 317 U.S. 287, 299 (1942) (being married in

one state and unmarried in another would be one of

“the most perplexing and distressing complicationls]

in the domestic relations of ... citizens.” (internal

quotations and citation omitted)). For this reason, it

is an essential feature of American law, enshrined in

common law and legislation as a pillar of domestic

relations jurisprudence. See. e.g., Joseph Story,

Commentaries on the Conflict of Laws § 113, at 187

(8th ed. 1883).

Throughout our history, the fact of being married

has brought with it a wide swath of protections,

reflecting two spouses’ uniquely interdependent and

enduring relationship. These range from rights in

matters of sexual intimacy and_ reproduction,

Griswold, 381 U.S. 479; to marital presumptions of

parentage shielding the marital family from

intrusions even by a marital child’s genetic parent,

Michael H. v. Gerald D., 491 U.S. 110, 124 (1989); to

“protection of marital confidences, regarded as so

essential to the preservation of the marriage

relationship,” Wolfle v. United States, 291 U.S. 7, 14

(1934); to access to “government benefits ..., property

rights ..., and other, less tangible benefits.” . Turner,

482 U.S. at 96.

The Fourteenth Amendment’s constraints against

state deprivations of individual liberties also have an

interstate unifying dimension, requiring all states to

satisfy a common threshold of respect for the liberties

of Americans wherever they may marry, live, have

their children, or travel. “[T]he nature of our Federal]

Union and our constitutional concepts of personal

liberty unite to require that all citizens be free to

travel throughout the ... land uninhibited by

statutes, rules, or regulations which unreasonably

burden or restrict this movement.” Shapiro v.

Thompson, 394 U.S. 618, 629 (1969).7 This unifying

function plays a particularly critical role in the

marriage context, where two individuals in our

highly mobile society commit to be bound together in

a life-long status of profound personal and legal

significance that transcends state borders.

The guarantee of due process thus prohibits

subjecting spouses to rejection of their lawfully

obtained marital status when they cross state lines

unless strong’. state interests outweigh the

substantial harms that would cause.

Ill. Ohio’s Recognition Bans Trigger Heightened

Equal Protection Scrutiny Because They

Discriminate Based on Sexual Orientation and

Sex

A. No Presumption Of Constitutionality Should

Apply To Sexual Orientation Discrimination

This Court should make explicit what is already

implicit in its_ holdings: that government

discrimination based on sexual orientation is not

entitled to the presumption of constitutionality

described in FCC v. Beach Communications, 508 U.S.

307 (1993), and similar cases. This Court’s decisions

in Windsor, Lawrence, and Romer implicitly

repudiated the notion that discrimination based on

sexual orientation is presumptively legitimate. See

Windsor, 133 S. Ct. at 2706 (Scalia, J., dissenting).

Whether by balancing the harms to gay people

7 Petitioners agree with the arguments asserted in the

Tennessee petitioners’ brief based on the right to travel, which

is an additional source of protection requiring at least a weighty

justification for a state’s refusal to respect marriages same-sex

couples lawfully entered elsewhere.

against the government's asserted interests, Baskin,

766 F.3d at 656-60; employing the traditional tiers of

scrutiny, Windsor v. United States, 699 F.3d 169,

181-85 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013): or

requiring the government to establish that a

“legitimate purpose overcomes” the injury that its

discrimination inflicts on same-sex couples, Windsor,

133 S. Ct. at 2696, the Court should at a minimum

require the government to justify the harms inflicted

by sexual orientation-based discrimination. Baskin.

766 F.3d at 671 (“Windsor'’s balancing is not the

work of rational basis review.” (quoting SmithKline

Beecham Corp. v. Abbott Labs., 740 F.3d 471, 483

(9th Cir. 2014))).

Making explicit that laws discriminating on the

basis of sexual orientation are not presumptively

constitutional is necessary to affirm the equal dignity

of gay people. Although the bans_ are

unconstitutional under any standard of review,

without clarification that sexual orientation

discrimination warrants judicial skepticism, “some

might question whether [the discrimination] would

be valid if drawn differently.” Lawrence, 539 U.S. at

575.

When judges declare that it is presumptively

legitimate for the government to treat people

differently based solely on their sexual orientation,

“that declaration in and of itself is an invitation to

subject homosexual persons to discrimination both in

the public and in the private spheres.” Lawrence,

539 U.S. at 575. The judicial presumption that

comes with rational basis review is “practically a

brand upon” lesbians and gay men, “affixed by the

law, an assertion of their inferiority.” JEB vy.

Alabama ex rel. T.B, 511 U.S. 127, 142 (1994)

(quoting Strauder v. West Virginia, 100 U.S. 303, 308

(1880)). It tells gay people, their families, and

everyone with whom they interact that laws

infringing on their personhood should be viewed with

no more skepticism than laws regulating packaged

milk. See United States v. Carolene Prods. Co., 304

U.S. 144, 152 n.4 (1938).

The presumption that discrimination based on

sexual orientation is constitutional is a continuing

harmful legacy of this Court’s overruled decision in

Bowers v. Hardwick, 478 U.S. 186 (1986). Before

Bowers, lower court judges and Justices of this Court

had begun to recognize that discrimination based on

sexual orientation required some form of heightened

scrutiny as part of either due process or equal

protection. See Rowland v. Mad River Local Sch.

Dist., 470 U.S. 1009, 1009-18 (1985) (Brennan, J.,

dissenting from denial of cert.) (applying heightened

scrutiny based on both due process and equal

protection); Beller v. Middendorf, 632 F.2d 788, 807

(9th Cir. 1980) (Kennedy, J.) (applying due process

balancing test); Rich v. Sec’y of Army, 735 F.2d 1220,

1227 (10th Cir. 1984) (adopting Bel/er framework).

But Bowers brought an abrupt halt to that lower

court jurisprudence when it erroneously upheld the

constitutionality of criminal sodomy laws. See

Arthur S. Leonard, Exorcizing the Ghosts of Bowers

v. Hardwick: Uprooting Invalid Precedents, 84 Chi.-

Kent L. Rev. 519, 526 (2009). As Lawrence held,

“Bowers was not correct when it was decided, and it

is not correct today.” 539 U.S. at 578. Lower court

precedent that still applies rational basis review and

extends a presumption of constitutionality to

government discrimination based on _ sexual

orientation continues to “demean[] the lives of

homosexual persons,” just as Bowers itself did, and

should be squarely overruled. /d. at 575.

B. Explicitly Rejecting A Presumption Of

Constitutionality For Sexual Orientation

Discrimination Is Consistent With The

Courts Established Jurisprudence For

Identifying “Suspect” And “Quasi-suspect”

Classifications

Some classifications “are so seldom relevant to the

achievement of any legitimate state interest” that

their use triggers searching judicial review.

Cleburne, 473 U.S. at 440. Sexual orientation

classifications should be among them. In identifying

such classifications, the Court has examined most

closely whether the class has experienced a history of

discrimination and whether the defining

characteristic of the class bears any relation to ability

to contribute to society. The Court has also

sometimes considered whether any distinguishing or

immutable characteristic defines the group and

whether the group has sufficient political power to

protect itself from the majority. See id. at 440-41;

Bowen v. Gilliard, 483 U.S. 587, 602 (1987). As three

circuits and numerous federal district and state

courts have recently recognized, and as the United

States has argued, heightened scrutiny should apply

to government classifications on the basis of sexual

orientation.®

8 See Baskin, 766 F.3d at 654-55: SmithKline, 740 F.3d at 480-

84 (finding heightened scrutiny applicable to sexual orientation

without examining the four factors); Windsor, 699 F.3d at 181-

85: Whitewood, 992 F. Supp. 2d at 425-30; Wolf v. Walker, 986

F. Supp. 2d 982, 1011-14 (W.D. Wis. 2014), affd sub nom.

Articulating a heightened standard for sexual

orientation classifications now would be consistent

with the Court’s gradual recognition in the past that

classifications based on gender and “illegitimacy”

should be treated as quasi-suspect. This Court

initially subjected those classifications to rational

basis review. See Jimenez v. Weinberger, 417 U.S.

628 (1974); Reed v. Reed, 404 U.S. 71 (1971). But

experience showed that those _ classifications

“generally provideld] no sensible ground for

differential treatment,” Cleburne, 473 U.S. at 440,

and should therefore be approached with heightened

judicial suspicion rather than presumed

constitutional. /d. at 441-42.

1. Gay people have suffered a long history of

discrimination. Indeed, “homosexuals are among the

most stigmatized, misunderstood, and discriminated-

against minorities in the history of the world.”

Baskin, 766 F.3d at 658. Until recently, the

marginalization of gay people included laws

criminalizing their sexual intimacy, Lawrence, 539

U.S. 558; barring them from government jobs,

Rowland, 470 U.S. 1009; and preventing their entry

into the United States. Boutilier v. INS, 387 U.S.

118 (1967). SeeJ.A. 176-225.

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

Office of Pers. Mgmt., 881 F. f upp. 2d 294, 310-33 (D. Conn.

2012); Golinski v. U.S. Office of Pers. Mgmt., 824 F. Supp. 2d

968, 985-90 (N.D. Cal. 2012); Griego v. Oliver, 316 P.3d 865,

879-84 (N.M. 2013): Varnum v. Brien, 763 N.W.2d 862, 885-96

(lowa 2009); Kerrigan v. Comm of Pub. Health, 957 A.2d 407,

425-54 (Conn. 2008): Jn re Marriage Cases, 183 P.3d 384, 441-

44 (Cal. 2008); see also Brief on the Merits for the United

States, United States v. Windsor, 133 S. Ct. 2675 (2013) (No.

12-307), 2013 WL 683048, *18-36.

Acknowledging a history of discrimination against

gay people, the Sixth Circuit nonetheless deemed it

irrelevant because “[t]he traditional definition of

marriage goes back thousands of years and spans

almost every society in history,” while “American

laws targeting same-sex couples did not develop until

the last third of the 20th century.” Pet. App. 53a

(quoting Lawrence, 539 U.S. at 570). The court

concluded that “[t]his order of events prevents us

from inferring from history that prejudice against

gays led to the traditional definition of marriage.”

Pet. App. 53a.

The Sixth Circuit’s historical analysis is wrong.

Invidious discrimination against lesbians, gay men,

and bisexuals did not begin in the 1970s with Anita

Bryant or criminal laws targeting gay people

specifically. See Baskin, 766 F.3d at 664-65.

Lawrence itself noted that “for centuries there have

been powerful voices to condemn homosexual conduct

as immoral,” based on “religious beliefs, conceptions

of right and acceptable behavior, and respect for the

traditional family.” 539 U.S. at 571. Those “powerful

voices” long predate this country’s founding, id. at

568, and they continue to this day, including in the

form of Ohio’s bans and many others like them.

The Sixth Circuit’s reasoning also inverts the

proper heightened scrutiny analysis. In determining

whether a classification requires closer scrutiny,

courts must “look to the likelihood that governmental

action premised on a particular classification is valid

as a general matter, not merely to the specifics of

[the particular] case.” Cleburne, 473 U.S. at 446

(emphasis added). Under this Court’s suspect

classification framework, as long as the history of

discrimination exists, it makes no difference whether

the law that is challenged is ancient or modern, the

clear product of that history or a disconnected

invention. Indeed, one of the purposes of heightened

review is to guard against laws based “upon ‘old

notions’ and ‘archaic and overbroad’ generalizations”

that perpetuate historical patterns of discrimination

into the modern era. Califano v. Goldfarb, 430 U.S.

199, 211 (1977); accord J.E.B., 511 U.S. at 139 n.11.

Heightened review is designed to “smoke out”

improper discrimination without the need for direct

evidence of prejudice every time the classification is

used. Johnson v. California, 543 U.S. 499, 506

(2005).

2. The other essential consideration in the

Court’s heightened scrutiny analysis—one that the

Sixth Circuit ignored—is whether a _ group is

distinctively different from other groups in a way

that “frequently bears [a] relation to ability to

perform or contribute to society.” Cleburne, 473 U.S.

at 440-44 (citation omitted); see a/so Frontiero, 411

U.S. at 686 (plurality) (““[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.”).

Sexual orientation likewise does not bear on an

individual’s ability to perform in or contribute to

society. J.A. 303-305. “There are some

distinguishing characteristics ... that may arguably

inhibit an individual’s ability to contribute to society,

at least in some respect. But homosexuality is not

one of them.” Windsor, 699 F.3d at 182

(distinguishing Mass. Bd. of Ret. v. Murgia, 427 U.S.

307, 316 (1976). and Cleburne, 473 U.S. at 442).

Because a person’s sexual orientation “tendls] to be

irrelevant to any proper legislative goal,” Plyler v.

Doe, 457 U.S. 202, 216 n.14 (1982), courts should not

presume that governmental reliance on such a

classification is constitutional.

3. In determining whether a _ classification

warrants heightened scrutiny, courts have also

considered whether laws discriminate on the basis of

“obvious, immutable, or distinguishing

characteristics that define [persons] as a discrete

group.” Bowen, 483 U.S. at 602 (internal quotation

marks and citation omitted).

As the Second Circuit observed, there is no doubt

that sexual orientation is a_ distinguishing

characteristic that can invite “discrimination when it

is manifest.” Windsor, 699 F.3d at 183; see also J.A.

295-297. Moreover, the broad medical and scientific

consensus is that sexual orientation “is an immutable

(and probably an innate, in the sense of in-born)

characteristic rather than a choice.” Baskin, 766

F.3d at 657; see also J.A. 300-303.9

More fundamentally, in refusing to distinguish

between engaging in same-sex intimate conduct and

the status of being gay, this Court recognized that

sexual orientation is a core component of a person's

® There is no requirement that a characteristic be immutable in

a literal sense in order to trigger heightened scrutiny.

Heightened scrutiny applies to classifications based on alienage

and “illegitimacy,” even though both classifications “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 argument that

alienage did not deserve strict scrutiny because it was mutable).

identity. Christian Legal Soc’y v. Martinez, 561 U.S.

661, 689 (2010) (“Our decisions have declined to

distinguish between status and conduct in this

context.” (citing Lawrence, 539 U.S. at 575, and id. at

583 (O’Connor, J., concurring in judgment))). As

courts have recognized, one should 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 Wolf 986 F. Supp. 2d at 1013

(“[Rlegardless whether’ sexual orientation is

‘immutable,’ it is fundamental to a person’s identity,

which is sufficient to meet this factor.” (interna)

quotation marks and citations omitted)).

4. The final factor courts sometimes consider is

whether the classified group lacks political power to

protect itself from discrimination. Like immutability,

lack of political power is not essential for recognition

as a suspect class. Windsor, 699 F.3d at 181.

Nonetheless, lesbians and gay men are clearly a

numerical minority and “are not in a position to

adequately protect themselves from the

discriminatory wishes of the majoritarian public.” /d.

at 185.

The Sixth Circuit pointed to recent progress by

gay people in_ challenging _- statutory and

constitutional restrictions on marriage as evidence of

their political power. But if the limited successes the

court cited were sufficient to disqualify a group from

the protection of heightened scrutiny, Frontiero

would not have applied such _ scrutiny to

classifications based on sex in 1973. 411 U.S. at 688

(plurality). When Frontiero was decided, Congress

had already passed Title VII of the Civil Rights Act of

1964 and the Equal Pay Act of 1963 to protect women

from discrimination in the workplace. See id. at 687-

88. In contrast, there is still no express federal ban

on sexual orientation discrimination in employment

or housing, and 29 states similarly lack such

protections. J.A. 333, 336. As political power has

been defined by the Court for purposes of heightened

scrutiny analysis, gay people do not have it.

In addition, the Sixth Circuit’s focus on some

progress obscures the larger reality of defeat after

defeat. Beginning in 1974 and continuing through

December 2014, basic civil rights protections have

often been stripped from gay people by numerous

referenda. See Romer, 517 U.S. 620; Hollingsworth

v. Perry, 133 S. Ct. 2652 (2013); J.A. 338-343. And

since 1998, ballot measures amending § state

constitutions to prevent gay people from securing

marriage rights have passed in 30 states. Nat’

Conference of State Legislatures, Same-Sex Marriage

and Domestic Partnerships On The Ballot (Nov.

2012), http://www.ncsl.org/research/elections-and-

campaigns/same-sex-marriage-on-the-ballot.aspx

(last visited Feb. 25, 2015).

This repeated use of majoritarian “direct

democracy” to disadvantage a single minority group

is extraordinary in our nation’s history. Barbara S.

Gamble, Putting Civil Rights to a Popular Vote. 41

Am. J. Pol. Sci. 245, 257-60 (1997); see also Donald P.

Haider-Markel et al., Lose, Win, or Draw? A

Reexamination of Direct Democracy and Minority

Rights, 60 Pol. Res. Q. 304 (2007). This is not, as the

Sixth Circuit claims, “an eleven-year record marked

by nearly as many successes as defeats.” Pet. App.

57a. It is a record of thousands of years in which

equality for gay people was unthinkable, followed by

45 years of political struggle in which gay people

have made any meaningful progress only very

recently, and, even then, hardly securely.

In short, sexual orientation’ classifications

demand heightened scrutiny not just under the two

critical considerations, but under all é (four

considerations this Court has used to identify

suspicious Classifications.

C. Ohio’s Recognition Bans Also Discriminate

Based On Sex And Warrant Heightened

Scrutiny On That Basis

[AJll gender-based classifications today’ warrant

‘heightened scrutiny.” United States v. Virginia, 518

U.S. 515, 555 (1996) (quoting J7.ELB. v. Alabama ex

rel. T.B., 511 U.S. 127, 136 (1992)). On their face,

Ohio’s recognition bans classify based on sex: James

Obergefell’s marriage to John Arthur would have

been recognized had either been a woman, and

Pamela Yorksmith’s marriage to Nicole Yorksmith

would have been recognized had either been a man.

See Latta, 771 F.3d at 480 (Berzon, J., concurring);

see also Kitchen v. Herbert, 961 F. Supp. 2d 1181,

1206 (D. Utah 2013), affd, 755 F.3d 1193 (10th Cir.

2014); Perry v. Schwarzenegger, 704 F. Supp. 2d 921,

996 (N.D. Cal. 2010); Goodridge, 798 N.E.2d at 971

(Greaney, J., concurring); Baker v. State, 744 A.2d

864, 911 (Vt. 1999) (Johnson, J., concurring in part

and dissenting in part); Baehr v. Lewin, 852 P.2d 44,

64 (Haw. 1993).

Like any other classification based on sex, the

recognition bans are automatically subject to

heightened scrutiny even if they give no preference to

women or men. They nevertheless restrict the rights

of both women and men as individuals based on their

ose

sex. Latta, 771 F.3d at 482-84 (Berzon, J.,

concurring and collecting authorities).

On a deeper level, the recognition bans require

heightened scrutiny because they rely on the same

stereotypes about the relative capabilities of men and

women that this Court has repeatedly rejected as

constitutionally suspect. Jd. at 485-86. Indeed, such

bans are often defended based on the assertion that

“gender complementarity” is necessary because,

supposedly, “nen and women ‘naturally’ behave

differently from one another in marriage and as

parents.” Jd. at 485, 491. “[T]hese proffered

justifications simply underscore that the same-sex

marriage prohibitions discriminate on the basis of

sex, not only in their form ... but also in reviving the

very infirmities that led the Supreme Court to adopt

an intermediate scrutiny standard for’ sex

classifications in the first place.” Jd. at 486.

IV. Ohio’s Recognition Bans Fail Any Standard Of

Review

Although heightened scrutiny is warranted, the

Ohio bans fail any level of review. Even when

rational basis review applies, this Court “insist[s] on

knowing the relation between the classification

adopted and the object to be obtained.” Romer, 517

U.S. at 632. The justifications offered must have a

“footing in the realities of the subject addressed by

the legislation.” Heller v. Doe, 509 U.S. 312, 321

(1993); U.S. Dep't of Agric. v. Moreno, 413 U.S. 528,

533-38 (1973). And even when the government offers

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.” Cleburne, 473

U.S. at 446 (emphasis added).

Accordingly it is not enough to point to reasons

why Ohio encourages different-sex couples to marry

and respects their out-of-state marriages. A valid

government justification must exist for why Ohio

insists on denying respect to the out-of-state

marriages of same-sex couples. See, e.g., id. at 448-

50 (focusing on city’s interest in denying housing for

people with developmental disabilities, not merely its

interest in permitting residence for others);

Eisenstadt v. Baird, 405 U.S. 438, 448-53 (1972)

(focusing on state’s interest in denying unmarried

couples access to contraception, not merely its

interest in granting married couples access); see also

Hooper v. Bernalillo Cnty. Assessor, 472 U.S. 612,

618 (1985) (“When a state distributes benefits

unequally, the distinctions it makes are subject to

scrutiny under the Equal Protection Clause.”).

None of the proffered justifications for Ohio’s bans

meets this standard. Indeed, the lack of any

legitimate and plausible justification to deny same-

sex spouses recognition of their marriages and

protections for their children shows the bans to be

“inexplicable by anything but animus toward the

class” they affect. Romer, 517 U.S. at 632.

A. The Recognition Bans Cannot Be Upheld

Based On The Discriminatory Status Quo

Defenders of the recognition bans rely on a

related set of arguments that all boil down to this: a

state majority’s desire to withhold marriage rights

from same-sex couples is sufficient reason in itself to

preserve the ban. Whether labeled deference to state

democratic processes and federalism, proceeding with

caution, or adherence to history and tradition, these

arguments fail the basic requirement of equal

protection—that a classification “bear a _ rational

relationship to an independent and _ legitimate

legislative end.” /d. at 633. This fundamental

requirement ensures that a law was not enacted “for

the purpose of disadvantaging the group burdened by

the law.” Jbid. Yet the majority’s choice to enact and

adhere to the recognition bans merely describes how

same-sex spouses and their families came to have

their rights infringed by the recognition bans; it does

not provide an independent and legitimate end in

itself for that infringement.

1. “Leave It To The State Democratic

Process” Rationale

Conceding the grave harms inflicted by the

marriage bans on same-sex couples and their

children, the Sixth Circuit nonetheless ruled that the

decision whether to end these harms should remain

in the hands of state voters. Pet. App. 40a, 69a.

A preference for majoritarian lawmaking,

however, cannot override the constitutional rights of

a minority. If it could, this Court would not have

struck down the state constitutional amendment

discriminating against gay people in Romer or the

discriminatory ordinance in Cleburne. In striking

down those discriminatory laws, this Court adhered

to a foundational principle of our constitutional

democracy, that the “independence of the Judges is

equally requisite to guard the Constitution and the

rights of individuals, from ... serious oppressions of

the minor party in the community.” The Federalist

No. 78 at 437 (Alexander Hamilton) (Clinton

Rossiter ed., 1961). This principle remains as vital

today as it was at the founding. “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. ... [Flundamental rights may not be

submitted to vote; they depend on the outcome of no

elections.” W. Va. State Bd. of Educ. v. Barnette, 319

U.S. 624, 638 (1943); see also Windsor, 133 S. Ct. at

2688: Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803) (“It is emphatically the province and duty

of the judicial department to say what the law is.”).

Furthermore, a decision upholding the recognition

bans necessarily requires the Court to favor the

democratic processes that denied marriage

recognition in some states over the democratic

processes that resulted in affirmation of the dignity

and marriage rights of same-sex couples in other

states. The constitutionally protected rights of

lesbian and gay individuals to liberty and equality

must tilt the scales in favor of marriage recognition.

While states have a wide berth to regulate

domestic relations in our federal system, as this

Court made clear in Windsor, they must do so within

constitutional bounds. See 133 S. Ct. at 2690-91.

2. “Wait And See” Rationale

The Sixth Circuit also endorsed as a rational basis

a state’s desire to “wait and see” the long-range

consequences of recognizing the marriages of same-

sex couples. Pet. App. 36a; see also Appellant’s Br.

46, ECF 21, Case No. 14-3464 (asserting there are

“(ulnknowable [elffects” of recognizing Petitioners’

marriages). But Ohio’s approach is less a passive

desire to “wait and see” than an affirmative attempt

to claw back the advances same-sex couples have

achieved in other states. Some states have already

granted same-sex couples the legal status and dignity

of marriage, and Ohio seeks to undo that status.

Windsor rejected the idea that a law that stripped

married same-sex couples of their legal status could

be justified by a wait-and-see approach. In Windsor,

the Bipartisan Legal Advisory Group (“BLAG”)

sought to defend DOMA by pointing to “the need for

caution [before] changing such an _ important

institution” as marriage. See Brief on the Merits for

Respondents BLAG, United States v. Windsor, 133 S.

Ct. 2675 (2013) (No. 12-307), 2013 WL 267026, at *10

(“BLAG Brief’). But this Court rejected that

argument when it held that no “legitimate purpose”

supported DOMA. Windsor, 133 S. Ct. at 2696.

Moreover, wait-and-see is precisely the kind of

“wholly unsubstantiated” justification this Court has

rejected as an irrational basis for classifications

discriminating against a minority group. Moreno,

413 U.S. at 535-37 (rejecting justifications based on

unsupported assumptions about “hippies,” and

“related” and “unrelated” households); see also. e.z.,

Cleburne, 473 U.S. at 448-49 (rejecting “mere

negative attitudes, or fear, unsubstantiated by

factors which are properly cognizable” about those

with intellectual disabilities). “The State can plead

an interest in proceeding with caution in almost any

setting. If the court were to accept the State’s

argument here, it would turn the rational basis

analysis into a toothless and perfunctory review.”

Kitchen, 961 F. Supp. 2d at 1213.

While the State awaits the day when it can rule

out “unknowable effects,” Petitioners and others like

them urgently await legal protections and relief from

the indignities the recognition bans impose. If left to

the State’s timetable, the “harm and injuries likely

would continue for a time measured in years”—if not

decades. Windsor, 133 S. Ct. at 2688. More children

in Ohio will be denied protections for their families,

more beloved spouses will die denied the final solace

and dignity of recognition of their marriages, and

more families will suffer countless daily harms from

relegation to a second-tier status. “[T]he urgency of

this issue for same-sex couples” cannot be ignored, id.

at 2689; they should not be required to wait any

longer.

3. “Upholding The Traditional Definition Of

Marriage” Rationale

The Sixth Circuit likewise held that “standing by

the traditional definition of marriage” justifies the

recognition bans. Pet. App. 40a. But this is a

tautology masquerading as a government interest.

Promoting a_ traditional conception of marriage

simply for the sake of perpetuating that tradition

fails to provide the required “independent” basis for

maintaining a discriminatory practice. Aomer, 517

U.S. at 633. “Ancient lineage of a legal concept does

not give it immunity from attack for lacking a

rational basis.” Heller, 509 U.S. at 326: see also

Williams v. Illinois, 399 U.S. 235, 239 (1970)

(“[NJeither the antiquity of a practice nor the fact of

steadfast legislative and judicial adherence to it

through the centuries insulates it from constitutional

attack.”).

Given the pedigree the “tradition” rationale

shares with past attempts to justify other forms of

discrimination, the Court should be particularly

skeptical of its invocation now. See FPlessy v.

Ferguson, 163 U.S. 537, 550-51 (1896) (upholding

segregation based on “established usages, customs

and traditions of the people”); Lawrence, 539 U.S. at

577-78 (“[Nleither history nor tradition could save a

law prohibiting miscegenation from constitutional

attack.”). As this Court explained in Lawrence,

“times can blind us to certain truths and later

generations can see that laws once thought necessary

and proper in fact serve only to oppress.” Jd. at 579.

B. Preventing “Irresponsible Procreation” Does

Not Explain The Recognition Bans_

Although not raised by Ohio, the Sixth Circuit

relied on a purported “irresponsible procreation”

theory to justify the recognition bans. According to

the majority below, the bans rationally further the

State’s interest in channeling the sexual activity of

heterosexuals, who run the “risk of unintended

offspring,” into the state-supported setting of

marriage, which offers “an incentive for two people

who procreate together to stay together for purposes

of rearing offspring.” Pet. App. 35a-36a. Under this

theory, same-sex couples have no need to marry

because their sexual activity does not result in

“unintended offspring.”

Windsor necessarily rejected this justification,

which was advanced by BLAG to justify DOMA. See

BLAG Brief, 2013 WL 267026, at *43-47. Its

irrationality is glaring. Petitioner couples a/ready

are married and a/ready are rearing offspring.

Withholding the stability and security that would

come from recognition of their marriages does

nothing to help the hypothetical children who may

have been accidentally conceived by heterosexual

couples, but does inflict grave harms on the actual

children being raised by married same-sex couples.

This rationale is “so full of holes it cannot be taken

seriously.” Baskin, 766 F.3d at 656.

This conception of marriage as merely a

government-run incentive program that channels

heterosexuals toward “responsible procreation” is

also shockingly out of step with “the popular

understanding of the institution” of marriage “as it

applies to heterosexual couples.” Windsor, 133 S. Ct.

at 2718 (Alito, J., dissenting). “[I]t demeans married

couples—especially those who are childless—to say

that marriage is simply about the capacity to

procreate.” Latta, 771 F.3d at 472 (quoting

Lawrence, 539 U.S. at 567). “(Mlarriage is more than

a routine classification for purposes of certain

statutory benefits.” Windsor, 133 S. Ct. at 2692; see

also Griswold, 381 U.S. at 486. Even when

procreation is impossible, the enduring bond and the

many other attributes of marriage remain

constitutionally protected. Turner, 482 U.S. at 95-96.

Indeed, a married couple's choice not to procreate is

itself a fundamental right. Griswold, 381 U.S. at

486.

Moreover, the Sixth Circuit’s suggestion that only

families headed by couples who can accidentally

procreate need to “stay together for purposes of

rearing offspring,” Pet. App. 35a-36a, makes no

sense. Because “family is about raising children and

not just about producing them,” Baskin, 766 F.3d at

663, the protections and stability of marriage are

important throughout a child’s life, not just at the

point of conception. “If the fact that a child’s parents

are married enhances the child’s prospects for a

happy and successful life ... this should be true

whether the child’s parents are natural or adoptive,”

tbid., and whether the child is conceived through

intercourse or with assisted reproduction. The notion

that some children should receive fewer legal

protections than others based on the circumstances of

their conception is not only irrational, it is

constitutionally repugnant. Latta, 771 F.3d at 472-

73; see also Plyler, 457 U.S. at 220; Weber v. Aetna

Cas. & Sur. Co., 406 U.S. 164, 175 (1972).

The irrationality of the “irresponsible procreation”

argument is even more profound. Different-sex

couples can marry whether they are fertile or

infertile, whether they want children or not, and

regardless of how the children they raise are brought

into the world. The Sixth Circuit’s natural

procreation requirement is thus imposed only on

same-sex couples even though thousands are raising

children in the United States—including Petitioner

couples—and milhons of married different-sex

couples are not.'® The “responsible procreation

rationale” is thus “so underinclusive” that it leads to

the inescapable conclusion that the disparate

treatment “rest[s] on an irrational prejudice.” Bostic,

760 F.3d at 382 (quoting Cleburne, 473 U.S. at 450);

accord Baskin, 766 F.3d at 656; see also Eisenstadt,

405 U.S. at 449 (no rational basis where law was

10 See Brief of Amicus Curiae Gary J. Gates in Support of

Plaintiffs-Appellees and Affirmance, Brenner v. Armstrong, No.

14-14061-AA (11th Cir. Dec. 22, 2014) (according to U.S. Census

data, “more than 125,000 same-sex-couple households include

nearly 220,000 children under age 18 in their homes”): United

States Census, Fertility of American Women: 2010 — Detailed

Tables, http://www.census.gov/hhes/fertility/data/cps/2010.htm!]

(19.4% of women who have been married never had a child).

“riddled with exceptions” for similarly situated

groups).

C. Promoting “Optimal Parenting” Cannot

Justify The Recognition Bans

Neither the Sixth Circuit nor Ohio has defended

the recognition bans based on the notion, espoused by

other defenders of recognition restrictions, that they

promote an “optimal” childrearing *nvironment of a

family headed by a biological motier and father—

and with good reason. “[G]lay couples, no less than

straight couples, are capable of raising children and

providing stable families for them.” Pet. App. at 34a.

As a logical matter, refusing to recognize the valid

marriages of same-sex couples does not rationally

further an interest in “optimal” parenting because it

does not stop lesbians and gay men from having

children; it just harms the children they already

have. Latta, 771 F.3d at 472-73; Baskin, 766 F.3d at

662; Bostic, 760 F.3d at 383; Aitchen, 755 F.3d at

1226. In addition, the very premise of the “optimal

parenting” argument—that restricting recognition of

marriage to different-sex couples “safeguard[s]

children by preventing same-sex couples from

marrying and starting inferior families,” Bostic, 760

F.3d at 383, is itself an affront to the equal dignity of

same-sex couples.!!

Arguments based on “optimal parenting” also fail

as a matter of settled social science. The notion that

same-sex couples are less optimal parents than

different-sex couples has been rejected by all credible

1! Like the “responsible procreation” rationale, the “optimal

childrearing” argument was raised—and rejected—as a defense

of DOMA in Windsor. See BLAG Brief, 2013 WL 267026, at

*47-49.

scientific research on the issue and by every

mainstream child welfare organization. See Bostic,

760 F.3d at 383 (summarizing scientific consensus).

According to the broad professional consensus, “there

is no scientific evidence that parenting effectiveness

is related to parental sexual orientation,’ and ‘the

same factors’—including family stability, economic

resources, and the quality of parent-child

relationships—‘are linked to children’s positive

development, whether they are raised’ by

heterosexual, lesbian, or gay parents.” Jbid. (quoting

amicus brief); see also J.A. 228-241.

The inescapable fact is that Ohio’s recognition

bans do not provide stability or protection to

children. Rather, they deny protection to children of

married same-sex couples based on the sex and

sexual orientation of their parents. As Judge

Daughtrey observed in dissent: “[A]lthough my

colleagues in the majority pay lip service to 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.” Pet. App. 72a.

keke

Though death took the spouses of Petitioners

Obergefell and Michener, the State may not take

from them the enduring public and private

commitments they made through marriage.

Likewise, when the State strips the married

Petitioner couples raising young families of their

marital statuses within Ohio's borders, the State

exceeds the bounds of its constitutional authority.

By erasing Petitioners’ marriages, the recognition

bans deny Petitioners an essential aspect of the

liberty and equality guaranteed by the Fourteenth

Amendment. See, e.g., Loving, 388 U.S. at 12.

CONCLUSION

For the foregoing reasons, the judgment of the

Sixth Circuit should be reversed.

Counsel for Henry Petitioners

Susan L. Sommer

M. Currey Cook

Omar Gonzalez-Pagan

LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, INC.

120 Wall St., 19th Floor

New York, NY 10005

Jon W. Davidson

LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, INC.

4421 Wilshire Boulevard,

Suite 280

Los Angeles, CA 90010

Pau) D. Castillo

LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, INC.

3500 Oak Lawn Ave., Ste. 500

Dallas, TX 75219

Camilla B. Taylor

LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, INC.

105 W. Adams, Suite 2600

Chicago, IL 60603

Ellen Essig

105 East Fourth Street,

Suite 400

Cincinnati, OH 45202

Respectfully submitted,

Alphonse A. Gerhardstein

Counsel of Record for All

Petitioners

Jennifer L. Branch

Jacklyn Gonzales Martin

Adam Gingold Gerhardstein

GERHARDSTEIN & BRANCH CO.

LPA

423 Walnut Street, #400

Cincinnati, OH 45202

(513) 621-9100

agerhardstein@gbfirm.com

Counsel for Obergefell

Petitioners

James D. Esseks

Steven R. Shapiro

Joshua A. Block

Chase B. Strangio

Ria Tabacco Mar

Louise Melling

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

Freda J. Levenson

Drew S. Dennis

ACLU OF OHIO, INC.

4506 Chester Avenue

Cleveland, OH 44103

Counsel continued on following page

Counsel for All Petitioners

Lisa T. Meeks

NEWMAN & MEEKS Co., LPA

215 East Ninth Street, Suite

650

Cincinnati, OH 45202

Date: February 27, 2015

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