Amicus Curiae Brief — Deboer v. Snyder, 135 S. Ct. 1040 (2015) (No. 14-571)

Nos. 14-556, 14-562, 14-571 and 14-574

IN THE

Supreme Court of the Anited States

JAMES OBERGEFELL, ET AL., AND BRITTANI HENRY, ET AL.,

PETITIONERS,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., RESPONDENTS.

VALERIA TANCO, ET AL., PETITIONERS,

Vv.

WILLIAM EDWARD “BILL” HASLAM, GOVERNOR OF

TENNESSEE, ET AL., RESPONDENTS.

APRIL DEBOER, ET AL., PETITIONERS,

Ve

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.,

RESPONDENTS.

GREGORY BOURKE, ET AL., AND TIMOTHY LOVE, ET AL.,

PETITIONERS,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL.,

RESPONDENT

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

AMICUS BRIEF OF THE CLEVELAND CHORAL ARTS

ASSOCIATION INC A/K/A THE NORTH COAST MEN’S

CHORUS IN SUPPORT OF PETITIONERS

Harlan D. Karp

Tina R. Haddad Counsel af Record

3155 W.33~ St. 850 Euclid Ave. #1330

Cleveland, OH 44109 Cleveland, OH 44114

(216) 281-5210 (216) 685-1360

trhaddad@aol.com harlankarp@gmail.com

Attarneys for Amicus Cur1sze

1)

2)

i

Questions Presented

Does the Fourteenth Amendment require a state to

license a marriage between two people of the same

sex?

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?

$s

Table of Contents

Page

e.g cca wbeebbastebeesenees i

se cna ck eaten bebaeneeeeenaes ii

I vc vancecsswevecseacaneuses iv

Interest of Amicus Curiae. ... 2... cc cccccccccccs 1

Introduction and Statement. ................... 2

rr ee cece ebe ns eames eases 7

Pt in < cebacdébeSaebeoes petSasetens eens 8

I. Where The Record Contains Explicit

Statements Of Private Bias Against The

Targeted Group, This Court Has Found The

Presence Of Unconstitutional Animus......... 8

A. The Definition of Animus................ 4

i rr ee neneeen 10

C. The Relationship Between Animus And

Rational Basis Review.................. 13

Il. The Record Here Presents An “Easy Case” For

Finding Unconstitutional Animus, And Such a

Finding Provides a Sufficient, Independent

Basis for Striking Down Ohio’s Same Sex

II « 60cs¢encuédest asec ees 14

Table of Contents continued

Page

III. The Presence of Animus Overwhelms Ohio’s

Purported Justifications for Ohio’s Same-Sex

re ence dec eke S ha ee eke ees 16

IV. An Individual’s Fundamental Right To Marry

And Establivh One’s Legal Relatives, Family,

and Manage QOne’s Intimate Relations Is

Protected From Arbitrary Governmental

Intrusion; Laws Voiding Licensed Out of State

Marriages and Banning In-State Same-Sex

Marriages Receive Heightened Scrutiny. ..... 20

V. The Intangible Aspects of Marriage —

R-E-S-P-E-C-T — Find Out What It Means

VI. Because We’re Goin To The Chapel and We’re

Gonna Get Married. Gee I Really Love You and

We’re Gonna Get Married. The Stories of 4

PT ; o's 608s t6ebees bau biee vs 29

ee ded oe eek eee bent 32

iv

Table of Authorities

Page(s)

Cases

Barnette v. West Virginia State Bd. of Ed., 47

F.Supp. 251 (S.D.W.Va. 1942), aff'd sub nom.

West Virginia Bd. of Ed. v. Barnette, 319 US.

PT Vunundibestwueeees Chane ke 19-20

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

denied, 135 S.Ct. 316 (2014).......... 25-27, 29

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

cert. denied, 135 271 (2014). ............. 9, 25

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

denied, 135 S.Ct. 308 (2014)................ 25

Campaign for Southern Equality v. Bryant, No.14-

ee aces 29

City of Cleburne v. Cleburne Living Ctr., Inc., 473

ee ad Cow ad ae 9-12, 16

Cleveland Bd. of Education v. LaFleur, 414 U.S.

20 i Og ca ha cose eee ie ie eae ans 24

Deboer v. Snyder, 973 F.Supp2d. 757 (E.D. Mich.

0 EE Ee re 16, 29

Vv

Table of Authorities continued

Page(s)

Henry v. Himes, 14 F.Supp.3d 1036 (S.D.Ohio

Ds cciekeenes £Okaeeaeeyene eave aoe 6, 16

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

cert. denied, 135 S.Ct. 265 (2014)............ 25

Latta v. Otter, 771 F.3d 456 (9" Cir. 2014)..... 22, 25

Lawrence v. Texas, 539 U.S. 558 (2003)....... 21, 26

Love v. Besheer, 989 F.Supp.2d 536 (W.D.Ky.

Dt: ctauebsh ek Kee Osa Cede ee ee eeeeus 19

Loving v. Virginia, 388 U.S. 1 (1967..... 7, 21, 26, 28

Meister v. Moore, 96 U.S. 76 (1877).............. 20

Moore v. City of East Cleveland, 431 U.S. 494

DP ceeeendeeenaabbeesse seus eeeseeenes 24

Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D.

Ohio 2013), rv’d sub nom Deboer v. Snyder,

772 F.3d 388 (6 Cir. 2014), cert. granted, __

ead oe od ee kgeeeeeeedeke 6, 16-17, 20

Palmore v. Sidoti, 466 U.S. 429 (1984)..... 10-11, 13

Romer v. Evans, 517 U.S. 620 (1996). 9, 11, 16-17, 26

vi

Table of Authorities continued

Page(s)

State v. Carswell, 871 N.E.2d 547 (2007). ..... 23-24

State v. Douglas, Cuyahoga App. Nos. 86567 and

86568, 2006 WL 1304860. ................. 23

State ex rel. Essig v. Blackwell, 817 N.E.2d 5

PPT eer ee er rr es 17

Turner v. Safley, 482 U.S. 78 (1987)....... 21-22, 25

U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528

SES 066 40nenneeeeesuabenseeee 10-12

United States v. Virginia, 518 U.S. 515 (1996). .... 9

United States v. Windsor, 113 S.Ct. 2675

DE ss 06 anekuweaeeee 9-11, 13, 16, 22-23, 29

Warren v. City of Athens, 411 F.3d 697 (6" Cir.

Zablocki v. Redhail, 434 U.S. 374 (1978). .. 20-22, 25

Constitutional Provisions

of Be 8 Pr rer TT ree ee 19

Tes GU, GUE De « 0 6 oe xecaxiauseeeens passim

vii

Table of Authorities continued

Page(s)

MTT mecscccocccccescescecece 3

TE in ccc ccccccececeesecees 3

Ohio Const. art. XV, §11............... 3, 7, 23, 27

ss cca cugbesececcecs 3

Statutes

CC ee 23

EN MD Es cc ccc ccc csc ccccccccess 3

Sub.H.B. 272 (“Ohio’s Super-DOMA”)............ 6

CP occcccccccccsccceceses 23

Ohio Rev. Code § 3101.01(C)................. 6, 23

Ohio Rev. Code §3105.12. .................00.. 21

Ohio Rev. Code § 3505.06... ................045. 3

Ohio Rev. Code § 3505.062................ec0ees 3

Ohio Rev. Code § 3519.03... .. 2... 2... cc eee eee 3

Table of Authorities continued

Page(s)

Other Authorities

Father Robert Drinan, The Loving Decision and

The Freedom to Marry, 29 Ohio St. L.J.358,

DL .¢esccgseeenévevedseeeeeces 28

Henry H. Foster, Jr., A “Basic Civil Right of

Man,” 37 Fordham L.Rev. 51 (1968). ........ 22

Gregory Johnson, We’ve Heard This Before: The

Legacy of Interracial Marriage Bans And the

Implications for Today’s Marriage Equality

Debates, 34 Vermont L. Rev. 277 (2009)... ... 28

Phyl Newbeck, Virginia Hasn’t Always been for

Susannah W. Pollvogt, Unconstitutional Animus,

81 Fordham L.Rev. 887 (2012). .... 8-9, 12, 14-15

The Federalist, No. 78 (Hamilton), at 464-472

(Clinton Rossitor ed. 1961)................. 18

Susannah W. Pollvogt, Windsor, Animus, and the

Future of Marriage Equality, 113 Columbia L.

Rev. Sidebar 204, 205-06 (2013)........... 9,14

ix

Table of Authorities continued

Page(s)

Miscellaneous

“Chapel of Love,” Phil Spector, Ellie Greenwich,

Jeff Barry (1964), recorded by the Dixie

PE S26 b0-n0n66d06050eRb ROSS O SLOSS SCeeees 29

Loving v. Virginia Announcement: Loving for All

(June 12, 2007), available at

Merriam-Webster’s Dictionary —

http://www.merriam-

“One Hand, One Heart,” West Side Story (1957)

Music by Leonard Bernstein, Lyrics by Stephen

Sondheim, Conception of Jerome Robbins, Book

Is ccc ceeecsencaueess 32-33

“R-E-S-P-E-C-T” Aretha Franklin (1967). ....... 25

“You’ve Got to Be Carefully Taught,” Rodgers &

Hammerstein’s South Pacific (1949),

http://en. wikipedia.org/wiki/You've Got to Be_

Ta I ala on ae ieee air ae cee tain Sei lak at 16

Interest of Amicus Curiae’

Amicus, the North Coast Men’s Chorus (“the

Chorus”) is a performing arts organization of gay

men dedicated to touching the hearts and changing

the lives of its members and audiences. The Chorus

provides a safe and supportive environment for its

members and utilizes music to alter negative public

attitudes towards the Lesbian/Gay/Bisexual

/Transgender (“LGBT”) community.

Founded in 1987 by a handful of courageous gay

men, at a time when many chose to hide their sexual

orientation, the Chorus now has over 100 active

members. Chorus members rehearse in LGBT

friendly churches and perform three formal concerts

per season. In June, 2014 the official “Pride” month

for the LGBT community, the Chorus presented “My

Big Fat Gay Wedding,” anticipating the day when

marriage equality becomes reality.?

1 Written consent has been granted by counsel for all

Petitioners; the Respondents have all filed blanket consent

Jetters. No counse) for any party had any role in authoring this

brief, and no one other than the amicus curiae provided any

monetary contribution to its preparation. The Cleveland

Choral Arts Association, Inc., an Ohio nonprofit corporation

known as the “North Coast Men’s Chorus,” is a member of the

Gay and Lesbian Association of Choruses, an association of 170

similar choruses.

2 In August, 2014, the Chorus performed concerts at Playhouse

Square, Cleveland during the international Gay Games 9, one

of the world’s largest sports & cultural festivals.

2

The Chorus is diverse as to its members’ race,

ethnicity, religion, and age. Many Chorus members

are active in their churches: some are ordained and

lay ministers of churches that embrace diversity and

recognize the dignity of all of our relationships,

including those of same-sex couples.

Some Chorus members have had prior

heterosexual marriages. They have children and

grandchildren. Their same-sex relationships came

later in life. Some have married their same-sex

partner out of state while others yearn to marry

within Ohio in front of their own community. Ohio’s

treatment of same-sex spouses as legal strangers has

a direct impact on the lives of Chorus members.®

Introduction and Statement

In examining the legislative history surrounding

Ohio’s enactment of its same-sex marriage bans, one

finds a record replete with bias against, and negative

attitudes towards same-sex couples. Direct evidence

of anti-gay bias comes from the Official Argument or

Explanation (“Explanation”) for an Ohio

constitutional amendment. The Ohio electorate

relies upon the Ballot Initiative’s Explanation (the

pros and cons) for an informed vote. Since 2003,

designated Committees of Proponents § and

Opponents may prepare the Explanation.‘ The five

3 See pages 30-32 for their stories.

4 Professor Susan Becker recognized that ballot initiatives

“have become a favorite tool of special interest groups seeking

to disenfranchise minorities” and are abused because “special

interest group constitutional amendments are often ambiguous

member Ohio Ballot Board, Chaired by Ohio’s

Secretary of State, writes the Explanation if a

Committee fails to do so properly; the Board ensures

it stays under 300 words per side. The Ballot Board

must publish the Explanation in newspapers of every

Ohio County for three consecutive weeks prior to an

election. Ohio’s 2004 Issue 1 [Ohio Const. art. XV,

§11] read:

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.

The “Argument and Explanation in Support of

the Marriage Protection Amendment (Issue 1)”

stated: 6

Vote YES on Issue 1 to preserve in Ohio

law the universal, historic institution of

marriage as the union of one man and one

Continued... .

and designed to exploit the majority's ignorance about and fear

of minorities.” Henry 14-CV-129 ECF 17-3 Pg ID161.

5 Am.Sub.H.B. 445 (2002) added Ohio Rev. Code § 3505.062(D)

and §3519.03 (effective 2003); Ohio Const. art. IT, §§ 1a, 1g; art.

XVI, § 1; Ohio Rev. Code §3505.06, §3505.062(C)-(E), (G); and

§3519.03 govern the Explanation.

6 Ohio Issues Report, distributed by the Ohio Ballot Board.

Henry 14-CV-129 ECF 17-3 Pg ID167, 319 (J.A. 170).

4

woman, and to protect marriage against

those who would alter and undermine it.

WHAT ISSUE 1 DOES:

Issue 1 — establishes in the Ohio

Constitution the historic definition of

marriage as exclusively between one man

and one woman as husband and wife.

Issue 1 excludes from the definition of

marriage homosexual relationships and

relationships of three or more persons.

Issue 1 prohibits judges in Ohio from anti-

democratic efforts to redefine marriage,

such as was done by a bare majority of the

judges of the Massachusetts Supreme

Court, which ordered that same-sex

“marriage” be recognized in that state.

Issue 1 restricts governmental bodies in

Ohio from using your tax dollars to give

official status, recognition and benefits to

homosexual and other deviant

relationships that seek to imitate

marriage.

WHAT ISSUE 1 DOES NOT DO:

Issue 1 does not interfere in any way

with the individual choices of citizens as

to the private relationships they desire

to enter and maintain.

Issue 1 does not interfere in any way with

government benefits granted to persons in

non-marital homosexual relationships, so

long as the government does not grant

those benefits to such persons specifically

for the reason that the relationship is one

that seeks to imitate marriage.

The wisdom of the ages tells us that

marriage between one man and one

woman is critical to the well being of our

children and to the maintenance of the

fundamental social institution of the

family.

Please vote to preserve marriage on

November 2, 2004.

Please Vote YES on Issue 1, the Marriage

Protection Amendment.

Submitted by the Ohio Campaign

to Protect Marriage:

Rev. K.Z. Smith

Lori Viars

Phil Burress

J.A. 170 (Emphasis supplied).

Thus, per the Proponents, the express

motivation, purpose, and effect of Issue 1 was to deny

status, recognition, and benefits to same-sex couples

precisely because their relationships are homosexual

and deviant. The Canton Repository wrote that the

Proponents “make no bones about wanting to make

life as difficult as possible for all couples, gay or

6

straight, who don’t toe their moral line.”? Ohioans

voted for Issue 1 -- 3,329,335 (61.37%) to 2,065,462

(38.29%).

The District Court in Obergefell v. Wymyslo, 962

F.Supp.2d 968, 974-5 (S.D. Ohio 2013) and Henry v.

Himes, 14 F.Supp. 3d (S.D. Ohio 2014), also found

the presence of animus with the Ohio Legislature’s

adoption of Ohio’s Super-DOMA, Sub. H.B. 272,

codified as R.C. §3101.01(C)(1){3), earlier in 2004.

This statute banned recognition of out of state same-

sex marriages, making them void ab initio in Ohio,

and displaced Ohio’s long-standing policy respecting

the place of celebration rule). The uncodified

language of Sub. H.B. 272 §3(b) banned Ohio from

recognizing alternatives like Vermont’s civil unions.

Ohio’s Super-DOMA was fast-tracked and passed

within weeks. Justifications of various Legislators

included religious views, fear of the courts, and bias

against LGBT persons. I/d., Pg ID 150-51, 160.9

7 Citizens for Community Values (“CCV”), the principal donor

to its PAC, the Ohio Campaign to Protect Marriage (OCPM),

gave $1.182 million; the next largest contributor gave $2,000.

mide ‘ pedi Ore hic ' iage aAmenc PT)

5 Vs SS 3! 4 acts

® Henry 14-CV-129 ECF 17-5 Pg ID 392-93, 399, 406; ECF 17-3

Pg ID 139, 150 (Becker at 4{ 2, 35)..

° Cf. Henry 14-CV-129 ECF 17-3 [Rep. Ron Young: “[W]e’re

talking about a divine institution that’s been given to us by

God,” “males and females coming together in traditional

marriage create the basic unit, the building blocks of our

society.”); Rep. Sietz: “To prevent the Ohio Supreme Court

from rendering a decision similar to the [2003] Massachusetts

decision”; with Rep. Ujvagi: “[A]Jnyone who attended any of the

hearings ...knows the level of intolerance that was presented”

to support this legislation; Sen. Dann: “And everybody who

Summary of Argument

The legislative history of Ohio’s same-sex

marriage bans sustains the district court’s findings

of unconstitutional animus. Under this Court’s

precedents, the presence of unconstitutional animus

triggers “careful consideration” — a species of rational

basis review that differs in its bottom line

application. The argument explains the definition of

animus; the types of evidence this Court has

accepted for animus findings; how evidence in the

record below readily meets that standard; and how

the State’s post-hoc, “any plausible justifications” fail

to overcome the presence of animus. The text of Ohio

Const. art. XV, §11, the Official Explanation

distributed by the Ohio Ballot Board (J.A. 170), and

Ohio’s Super-DOMA enactment demonstrate the

presence of unconstitutional animus. Gays and

lesbian relationships alone were singled out as

“deviant relationships” and attempting “to imitate

marriage.” No level of Ohio government (state or

local) may recognize any form of same sex marriage

or civil union. When this Court has found laws to be

primarily be a vehicle for expressing private bias— it

has not let the law stand, despite superficial

legitimate justifications.

Under the fundamental right to marry, and

Loving’s corollary right to have another state

recognize one’s out of state marriage, individuals

Continued. ...

reads this bill and people affected by it are going to suffer from

that hate”; Sen. Prentiss “This bill imposes one set of values

not held by all.”) Pg ID 151,153, 157-158, 202, 214, 248, 253.

8

have a right to marry, make themselves legal

relatives, and create and structure their families.

The freedom to marry is inseparable from the

freedom to marry the person of one’s choice.

Marriage is a form of public commitment of spouses

to their children, families, and community: it

promotes stable families and ultimately, respect.

State restrictions of these rights must satisfy some

form of heightened scrutiny. Because Ohio still

recognizes some common law marriages (those

entered into before 1991), and marriage licensing

serves merely evidentiary and vital statistical

purposes, Ohio’s same-sex marriage bans are nothing

more than a vehicle to demean and destabilize same

sex relationships and families. There is no

important, compelling, or even legitimate

justification for denying LGBT families legal status,

legal documents (accurate birth, marriage, and death

certificates).

Argument

I. Where the Record Contains Explicit

Statements Of Private Bias Against The

Targeted Group, This Court Has Found The

Presence Of Unconstitutional Animus.

This Court has applied the doctrine of

unconstitutional animus in only a small number of

cases..° Although the precise contours of the

© This summary of unconstitutional animus is distilled from

Professor Susannah Pollvogt’s comprehensive treatment of the

subject in Unconstitutional Animus, 81 Fordham L. Rev. 887

(2012).

doctrine have yet to be refined,!! several clear

propositions appear from careful examination of this

animus jurisprudence.

A. The Definition of Animus

First, although a few members of this Court have

characterized animus as a “fit of spite” or a form of

bigotry,'? the Court’s animus precedent

unequivocaliy establishes that unconstitutional

animus may also be understood as mere moral

disapproval, private bias, or discomfort with those

who are “different” somehow.'!* Thus, a finding of

unconstitutional animus does not necessarily mean

that a law’s proponents were filled with hatred.

Rather, the doctrine recognizes that we are all

subject to private prejudices, which evolve over

time.!4

11 See Windsor, Animus, and the Future of Marriage Equality,

113 Columbia L. Rev. Sidebar 204, 205-06 (2013)(explaining

doctrinal uncertainty surrounding animus); cf. Bishop uv.

Smith, 760 F.3d 1070, 1096-1109 (10% Cir.)(Holmes, J.,

concurring)(extensively discussing animus doctrine, citing

animus scholars, and citing Obergefell and Henry as lower court

animus cases), cert. denied, 135 S.Ct. 271 (2014).

12 See United States v. Windsor, 133 S.Ct. 2675, 2696 (2013)

(Roberts, C.J., dissenting); Romer v. Evans, 517 U.S. 620, 636

(1996) (Scalia, J., dissenting).

13 See City of Cleburne v. Cleburne Living Center, 473 U.S. 432,

450 (1985); Unconstitutional Animus at 924-25 (citing cases).

4 Cf. United States v. Virginia, 518 U.S. 515, 566-67

(1996)(Scalia, J., dissenting) (“Close-minded they were—as

every age is, including our own, with regard to matters it

cannot guess, because it simply does not consider them

debatable.”)

10

The function of the doctrine of animus is to

prevent private prejudices from being reflected and

enforced through the public laws:

The Constitution cannot control such

prejudices, but neither can it tolerate

them. Private biases may be outside the

reach of the law, but the law cannot,

directly or indirectly, give them effect.

Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

B. Evidence of Animus

This Court’s animus precedent shows that the

presence of animus can be demonstrated in at least

two ways. In an “easy case,” the legislative history

surrounding the enactment of a particular law

contains explicit statements of private bias directed

toward the group targeted by the law.'5 While this

Court has, in some of these cases, examined the fit

between the means and ends (that is, the Court

applied the applicable level of judicial scrutiny) and

18 See Windsor, 133 S.Ct. at 2693 (finding impermissible

animus where statements in the Defense of Marriage Act’s

(“DOMA”) legislative history demonstrated that the purpose of

the law was to express moral disapproval of homosexuality);

City of Cleburne, 473 U.S. at 448 (finding impermissible animus

where statements in the legislative history expressed

stereotypes toward those with cognitive disability); U.S. Dept.

of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (finding

impermissible animus where statements in the legislative

history indicated a purpose of targeting and excluding “hippies”

from food stamp benefits); see also Unconstitutional Animus at

927 (describing instances where the record presents direct

evidence of private bias as the “easy case” for finding animus).

11

concluded that the law failed on that basis as well, !®

the Court has also struck down state action solely on

the basis that the law was explicitly grounded in

private bias.!’

Palmore — often overlooked as an animus case -

provides crucial guidance on this point. The

Palmore Court reviewed the constitutionality of a

family court order divesting a divorced mother of

custody of her young child because the white mother

had started a relationship with a black man. The

family court judge reasoned that, because society

maintained a pervasive bias against interracial

relationships, this bias would be visited on the child

and custody to the mother would not be in the child’s

best interest.'®

In reviewing the order’s constitutionality, the

Supreme Court concluded that it met strict scrutiny

and that protecting the child’s best interest was a

sufficient important interest.19 Where avoiding the

societal stigma of being raised by an interracial

couple, relying upon a racial classification was

16 Significantly, in both Moreno and Cleburne, after finding

explicit evidence of animus, the Court looked at whether there

was a_ sufficiently significant relationship between the

characteristic defining the targeted group (relatedness/

cognitive disability) and the interest being regulated (food

security/ access to group housing) and found no nexus.

17 In both Romer and Windsor, the Court did not perform a

traditional means-ends analysis examining the relationship

between the characteristic defining the targeted group and the interest

being regulated.

'* 466 U.S. 429, 430-31 (1984).

19 Jd. at 432-433.

12

deemed necessary to accomplish this goal.

Although the order survived strict scrutiny, it served

to enforce private bias, and hence, was struck down

as violating equal protection. There was no

allegation or evidence of bias or animus on the part

of the state actor - the family court judge. Rather

(and fatally), the state action reflected and reinforced

private bias existing in the community.

In other animus cases, the Court has looked to

both direct evidence of animus (explicit statements of

bias in the legislative record) and indirect evidence of

animus (a lack of fit between the challenged laws

purported goals and the classification at issue.)

Thus, in Moreno, the Court invalidated the

challenged law because there was direct evidence of

bias in the record (dislike of hippies) and the

classification—the lack of relatedness of household

members—was not connected to preventing food

stamp fraud.?! Similarly, in Cleburne, the Court

invalidated the challenged state action on the basis

of both direct evidence of animus and the absence of

any connection between the trait of cognitive

disability and the goal of regulating housing to avoid

overcrowding or traffic congestion.22

2 Id. (“There is a risk that a child living with a stepparent of a

different race may be subject to a variety of pressures and

stresses not present if the child were living with parents of the

same racial or ethnic origin.”)

21 Moreno, 413 U.S. at 537.

2 Cleburne, 473 U.S. at 449-50 (zoning permitted other group

housing-apartment buildings and fraternities/ sororities).

13

Windsor arguably falls into the same doctrinal

camp as Palmore because the presence of animus

(state action reflecting private bias) overwhelmed the

law’s purported justifications. Windsor noted the

vast, negative impact of the Defense of Marriage Act:

the legislative history revealed an acknowledged

purpose of expressing moral disapproval of

homosexuality.22 The Court did not, however,

examine the fit between the classification and other

claimed legislative ends. Rather, the conclusion that

DOMA was based in animus discredited any

purported justifications for the law and provided an

independent basis for striking it down.

In sum, while the Court has in some instances

looked at both direct evidence of animus and indirect

(or structural) evidence of animus, in other instances

the Court has found the unequivocal expression of

private bias to be a sufficient basis on which to find

an equal protection violation.

C. The Relationship Between Animus and

Rational Basis Review.

This Court’s precedents are not clear as to the

precise relationship between animus and Fourteenth

Amendment rational basis review.24 At times the

Court appears to treat a finding of animus as a

23 133 S.Ct. at 2696 (“The federal statute is invalid, for no

legitimate purpose overcomes the purpose and effect to

disparage and to injure those whom the State, by its marriage

laws, sought tc protect in personhood and dignity.”)

*% See Windsor, Animus, and the Future of Marriage Equality at

214-15.

14

trigger for applying so-called heightened rational

basis review (rational basis with bite); at other times

the Court treats animus as a silver bullet—once its

presence is found, no further inquiry is necessary.”5

Under either approach, the Ohio laws fail.

One thing is clear: When this court has

discerned the presence of animus—that is, where a

law is found to primarily be a vehicle for expressing

private bias—it has never once let the law stand,

despite superficial, legitimate justifications.”®

Il. The Record Here Presents An “Easy Case”

For Finding Unconstitutional Animus, And

Such A Finding Provides a Sufficient

Independent Basis for Striking Down

Ohio’s Same-Sex Marriage Ban Laws.

Before this Court, there is compelling evidence of

the presence of unconstitutional animus.

e Per the Official Explanation, Issue 1's

Proponents explicitly sought to deny

status, recognition and benefits to same-

sex couples precisely because they were in

same-sex relationships, that is,

homosexual. J.A. 170.

e The Official Explanation explains that

“homosexual and other deviant

relationships” seek “to imitate marriage.”

J.A. 170. Merriam-Webster’s Dictionary

25 See Unconstitutional Animus at 889, 930

26 Id. at 930.

15

defines “deviant” as “different from what is

considered to be normal or morally

correct.” The pejorative quality is

reflected in synonyms listed as part of the

definition: aberrant, abnormal, irregular

and unnatural. Jd.

e The Explanation expresses concern for the

welfare of the children of opposite-sex

couples only and excludes from concern an

entire class of children—those raised by

same-sex couples. This is blatant

discrimination against a class of children

who have become the “collateral damage”

of societys disapproval of same-sex

couples.

e Finally, the timing and circumstances

surrounding the adoption of the marriage

bans expose the presence of animus.

Proponents were threatened by the 2003

Massachusetts Supreme Court and

Vermont Legislature’s decision on same-

sex marriage (or civil unions) and

hurriedly passed the marriage bans to

eliminate any possible similar marriage

recognition in Ohio.

Although individuals may harbor prejudices

against those they dislike, disapprove of, or find to be

deviant,2? the law may not give those private biases

27 Cf. the lyrics of Rodgers & Hammerstein's 1949 musical,

South Pacific, dealing with interracial marriage:

16

effect. Windsor, 133 S.Ct. at 2696; Romer, 517 U.S.

at 630; Cleburne, 473 U.S. at 448.

Ill. The Presence of Animus Overwhelms Ohio’s

Purported Justifications for Ohio’s Same-

Sex Marriage Bans.

In the Courts below, Ohio argued that Equal

Protection case law required Courts to apply the “any

plausible reason standard” of rational basis review.

Although the Deboer panel majority embraced this

position — see 772 F.3d 388, 404 (6 Cir. 2014),

earlier Sixth Circuit panels recognized that this is

not the standard this Court applied in the presence

of animus cases.2® Obergefell 962 F.Supp.2d at 992,

and Henry both found the presence of animus

overwhelmed Ohio’s justifications:

1. Ohio’s Democratic Process Would Set

marriage policy of this State. Ohio Resp. to Pet. Cert

at 26. No: CCV and its PAC, the OCPM, poisoned

the proverbial well. They wrote Issue 1’s Proponent’s

Continued. .. .

You've got to be taught before it's too late,

Before you are six or seven or eight,

To hate all the people your relatives hate,

You've got to be carefully taught!

http:// kinedi hwiki/You've_G Be Careful]

_Taught

28See Warren v. City of Athens, 411 F.3d 697, 710-711 (6% Cir.

2005)(Gibbons, J.)(Plaintiff proceeding under theory that law

was motivated by animus or ill will does not have to disprove all

conceivable justifications). Additionally, as to marriage, this

Court in Zablocki and Turner used a more rigorous test than

the “any plausible basis standard” the Deboer majority used.

17

Explanation; their television and media campaign

spent millions on radio/television ads and robocalls

featuring Secretary of State Blackwell urging voters

to amend Ohio’s constitution to deny marriage and

any form of relationship recognition to Ohio’s same-

sex couples; CCV sent letters to school districts

falsely stating groups seeking to protect LGBT teens

encouraged illicit behavior; and they successfully

cattle-prodded the Legislature months earlier to

reject Ohio’s traditional place of celebration rule as

to marriage recognition.”® Obergefell, at 975. The

Secretary of State’s behavior in Issue 1 did not

escape judicial criticism: See State ex rel. Essig v.

Blackwell, 817 N.E.2d 5, 13 (2004) (Pfeifer, J.,

dissenting) (“Whether the Secretary of State's overt

political interest in the passage of the proposed

amendment influenced his decision is unknowable;

the perception of influence is undeniable.”) Ohio

voters imposed Romer type inequality (making LGBT

persons strangers to the law) through Issue 1.

2. Avoiding Judicial Intrusion Upon a

Historically Legislative Function. Ohio Resp to Cert.

Pet. at 1. Although the Legislature passed Ohio’s

Super DOMA in 2004, OCPM and CCV embedded

the issue into the Ohio Constitution. They and

others raised fears that Ohio’s judges would blindly

follow Massachusetts judicial decisions.2° Ohio

22 Henry 14-CV-0129 ECF 17-3 Pg ID 300-01, 310 (Becker at

9184, 87-89 & Exhs J, M).

80 Ohio’s Super-DOMA’s legislative history shows Ohio Courts

consistently found Ohio statutory law barred same-sex

marriage.

18

judges — in their symbiotic relationship with the

Legislature ~— determine the constitutionality of

many Ohio laws (e.g., tort reform) as a part of

separation of powers. Fear of judges is not

legitimate since Publius did not fear them.?!

3. Maintaining Marriage Uniformity Throughout

Ohio. The State states it is unfair to allow wealthier

same-sex couples to marry outside Ohio while poorer

ones can’t afford to travel outside Ohio. Sixth Cir.

Hodges Brf at 49. However touching the State's

professed concern for poorer LGBT same-sex couples,

wealthier opposite sex couples may marry outside

Ohio and have their marriages recognized under the

place of celebration rule.

4. Caution - Ohioans might have been motivated

by the desire not to change the definition without

taking steps to consider religious liberty issues and

myriad state laws and regulatory systems. Sixth

Cir. Hodges Brf at 46-48. This explanation defies the

historical record. Ohio’s same-sex marriage bans

were fast-tracked through the Ohio’s Legislature in

2004 and despite those, they became state

constitutional bans through Ohio’s 2004 ballot

initiative in the 2004 Presidential election. Ohio is

pandering to certain religious viewpoints within

certain denominations. Although the _ First

Amendment entitles CCV and certain religious

31 The Federalist, No. 78 (A. Hamilton), at 464-472 (Clinton

Rossitor ed. 1961)(“the courts were designed to be an

intermediate body between the people and the legislature, in

order, among other things, to keep the latter within the limits

assigned to their authority.”)

19

organizations to express their views, they may not

impose their religious/moral views on the legal and

secular issue of marriage recognition. Palmore,

supra. What about the rights of those who attend

inclusive churches that would sanctify a same-sex

marriage? The First Amendment religion clauses

require governmental neutrality because civil

marriage licensure and recognition is secular:

[Some] simply believe that the state has

the right to adopt a particular religious or

traditional view of marriage regardless of

how it may affect gay and lesbian persons.

As this Court has respectfully explained,

in America even sincere and long-held

religious views do not trump the

constitutional rights of those who happen

to have been out-voted.

Love v. Beshear, 989 F.Supp.2d 536, 549 (WD

Ky 2014).32

Two generations ago, Judge John Parker wrote for a

unanimous three judge panel:

The tyranny of majorities over the rights of

individuals or helpless minorities has always been

recognized as one of the great dangers of popular

government. The fathers sought to guard against

this danger by writing into the Constitution a bill

of rights guaranteeing to every individual certain

fundamental liberties, of which they might not be

deprived by any exercise whatever of governmental

power. This bill of rights is not a mere guide for the

exercise of legislative discretion.

Barnette v. West Virginia State Bd. of Ed., 47 F.Supp. 251, 254

(S.D.W.Va. 1942), aff'd sub nom West Virginia Bd. of Ed. v.

Barnette, 319 U.S. 624 (1943).

20

IV. An Individuals Fundamental Right To

Marry And Establish One’s Legal Relatives,

Family, and Manage One’s_ Intimate

Relations Is Protected From Arbitrary

Governmental Intrusion; Laws Voiding

Licensed Out of State Marriages and

Banning In-State Same-Sex Marriages

Receive Heightened Scrutiny.

Prior to 2004, Ohio consistently followed the

place of celebration rule and recognized legal

marriages performed outside of Ohio, whether they

be first cousins or underage. But with same-sex

marriage, Ohio enacted marriage nullification:

When a state effectively terminates the

marriage of a same-sex couple married in

another jurisdiction, it intrudes into the

realm of private marital, family, and

intimate relations specifically protected by

the Supreme Court.

Obergefell, 962 F.Supp.2d. at 979

From 1803-1991, Ohio, like many states,

recognized common law marriages — entered into in

Ohio or outside the state. Common law marriages do

not entail a marriage license or certificate. These

licensure laws (imposing ceremonial and registration

requirements) have been strictly construed so as not

to destroy common law marriages and bastardize

children. Meister v. Moore, 96 U.S. 76

(1877)(Michigan licensing law construed to permit

proof of earlier common law marriage). Although

Ohio stopped recognizing new common law

marriages entered into post 1991, it grandfathered

21

pre-1991 common law marriages. Ohio Rev. Code

§3105.12. Since Ohio recognizes unlicensed common

law marriages as legal marriages, and marriage is a

fundamental right, there is no justification for

voiding in state, same-sex marriages, and not

recognizing out of state, licensed same-sex

marriages. Ohio’s marriage bans — which disparage,

injure, and disrespect same-sex unions —warrant at

least, careful consideration. Windsor, 113 S.Ct., at

2693, 2696.

This Court’s precedents have applied a

meaningful form of scrutiny to substantial burdens

on the fundamental right to marry and struck them

down. Loving v. Virginia, 388 U.S. 1, 10-12

(1967)(Virginia ban on any interracial marriages,

even those celebrated out of state); Zablocki v.

Redhail, 434 U.S. 374, 384 (1978) (Wisconsin law

barring non-custodial parent delinquent in child

support from remarrying without court order);

Turner v. Safley, 482 U.S. 78 (1987)(Missouri prison

regulation prohibiting felons from marrying without

superintendent’s approval.)

Zablocki’s class members could not remarry

without a court order if they were non-custodial

parents who owed back child-support. Applying a

heightened standard of review, this Court rejected

Wisconsin’s barriers to Redhail’s fundamental right

to re-marry™ Zablocki, 434 U.S. at 386-391.%

83 Because Wisconsin criminalized fornication, Redhail’s only

option for legal consortium was a licensed marriage. Zablocki,

434 U.S. at 386 fn.11.

22

In Turner, this Court recognized that the

fundamental right to marry survives even in the

prison context. The Court rejected a traditional or

purely conjugal view of marriage. It recognized that

marriage provides emotional support and public

commitment, the free exercise of religious faith, an

expectation of marital consortium, public benefits,

status, and the intangible quality of respect. Turner,

482 U.S. 78, 95-96.

Justice Alito characterized marriage in Windsor

as falling under either a traditional or conjugal view,

and a consent-based vision of mutual love. Windsor,

133 S.Ct. at 2718-19 (Alito, J., dissenting). Other

jurists have described traditional marriage as an

institution that imposed gender inequality (coverture

laws subsuming women’s legal and property rights

into those of her husband; women were deemed the

sexual objects of their spouses). Latta v. Otter, 771

F.3d 456,487-490 (9% Cir. 2014)(Berzon, J.,

concurring).

Whatever one’s view of consent-based marriage

or conjugal marriage, one proposition remains clear:

at bedrock, licensed civil law marriage (including

common law marriage) means individuals become

legal relatives — and not legal strangers in a

34 Writing pre-Zablocki, Professor Foster discussed paramour

acts barring remarriage of at-fault spouses for certain periods of

time, and economic barriers to remarriage such as Wisconsin’s

deadbeat parent law. Under Zablocki and Turner, these laws

do not pass constitutional muster. Henry H. Foster Jr., A ‘Basic

Civil Right of Man,’ 37 Fordham Law R. 51, 66-70 (1968).

23

household. The spouses have a legal status and need

a court order to dissolve it. Every state’s domestic

relations law (marriage, divorce, and adoption)

embodies this concept. So does federal immigration

law. See 8 U.S.C. § 1151(b)(2)[post-Windsor, federal

immigration law applies the place of celebration rule

for legal marriages and treats legally married

spouses (even same-sex) as immediate relatives.]

Ohio deviates from this bedrock concept and

treats same-sex couples who marry as legal

strangers, not as legal relatives. Ohio Rev. Code §§

3101.01(C)(2)-(3). In 2007, the Ohio Supreme Court

upheld the constitutionality of Ohio’s domestic

violence statute [Ohio Rev. Code § 2919.25] despite

its tension with Ohio’s same-sex marriage ban [Ohio

Const. art. XV, § 11]. Justice Lanzinger observed:

As noted in Judge Karpinski's dissenting

opinion,*5.. "[w]hen two unmarried people

share financial responsibilities and engage

in consortium with one another, what else

have we done historically as a society

other than to recognize that relationship

as one that possesses the ‘design, qualities,

significance or effect of marriage.”

State vu. Carswell, 871 N.E.2d 547, 555

(2007)(Lanzinger, J., dissenting).

An individual’s fundamental right to marry is

part of an individual’s right of familial association.

Because these rights promote familial stability, this

36 State v. Douglas, Cuyahoga App. Nos. 86567 and 86568, 2006

WL 1304860

24

Court reviews these laws more rigorously. Moore v.

City of East Cleveland, 431 U.S. 494 (1977) involved

a municipal ordinance that criminalized a

grandmother living with her two biological

grandchildren. No important or compelling reason

justified such invasive laws. The Moore merit Brief

elegantly framed the argument:

The principles of freedom of association

coalesce around the common denominators

of the family home and the composition of

the family. The concepts are inseparable.

The establishment of a family home is in

itself a decision about who will share that

home. These are matters of intensely

personal choice and matters which society

has historically considered to be beyond

the province of legitimate governmental

intrusion * * * Cleveland Bd. of Education

v. LaFleur, 414 U.S. 632, 639-40 (1974).

1976 WL 178722 (1976), at p. 15.

Petitioners seek evidence and recognition of their

marital status through legal (not religious)

documents: accurate birth, marriage and death

certificates listing them, as the case may be, as

spouses or parents. Other than a dislike of same-sex

couples or a desire to keep these couples hidden

away in the closet, Ohio fails to provide any

legitimate reasons justifying this major intrusion

into marriage and family relations.*® Nor has Ohio

36 Kitchen v. Herbert, 755 F.3d 1193 (10% Cir. 2014), cert.

denied, 135 S.Ct. 265 (2014); Bishop v. Smith, 760 F.3d 1070

(10 Cir. 2014), cert. denied, 135 S.Ct. 271 (2014); Bostic v.

25

explained why Ohio law must stigmatize the

innocent children of these couples and destabilize

these families.37

V. The Intangible Aspects of Marriage —

R-E-S-P-E-C-T - Find Out What It

Means To Me.*®

This case involves access to the legal status of

marriage through an affirmative right to marry and

a right to carry one’s marital status across a state

line and have it recognized. Although States restrict

access through licensure laws, there is no shortage of

marriage licenses. Licensure avoids the evidentiary

problem of common law marriage and assists the

vital statistics function. Marriage licenses are not

rationed to keep unqualified individuals from

exercising the right to marry or protect the public

against unfit spouses.°® The deadbeat parents in

Zablocki and prisoners in Turner illustrate that

although a government or democratic process may

not view these individuals as optimal candidates for

marriage, some form of heightened scrutiny should

apply to substantial encroachments on a

fundamental right. As recognized by Lawrence's

dissenters, “principle and logic” would require the

Continued. .. .

Schaefer, 760 F.3d 352 (4% Cir. 2014), cert denied, 135 S.Ct. 308

(2014).

37 Baskin v. Bogan, 766 F.3d 648,663-664 (7% Cir. 2014), cert.

denied, 135 S.Ct. 316 (2014); Latta v. Otter, 771 F.3d 456, 473

(9% Cir. 2014).

88 Aretha Franklin, “R-E-S-P-E-C-T,” (1967).

88 Driver's licenses protect the public from unqualified drivers;

professional licenses try to eliminate unqualified professionals.

26

Court to hold there is a constitutional right to same-

sex marriage. 539 U.S., 558, 605 (Scalia, J.,

dissenting). Loving broke down the interracial

marriage taboo. Similarly, same-sex marriage bans

are the last taboos to equality for same-sex couples.

This Court began the process in Romer and

Lawrence. LGBT persons are indeed capable of

having stable, committed relationships and raising

families like everyone else. Deboer v. Snyder, 973

F.Supp2d. 757, 763-764 (E.D. Mich. 2014).

As to Wisconsin’s and Indiana’s same-sex

marriage bans, Judge Posner cogently wrote:

The harm to homosexuals (and, as we'll

emphasize, to their adopted children) of

being denied the right to marry is

considerable. Marriage confers

respectability on a sexual relationship; to

exclude a couple from marriage is thus to

deny it a coveted status. Because

homosexuality is not a voluntary condition

and homosexuals are among the most

stigmatized, misunderstood, and

discriminated-against minorities in the

history of the world, the disparagement of

their sexual orientation, implicit in the

denial of marriage rights to same-sex

couples, is a source of continuing pain to

the homosexual community. Not that

allowing same-sex marriage will change in

the short run the negative views that

many Americans hold of same-sex

marriage. But it will enhance the status of

these marriages in the eyes of other

27

Americans, and in the long run it may

convert some of the opponents of such

marriage by demonstrating that

homosexual married couples are in

essential respects, notably in the care of

their adopted children, like other married

couples.

Baskin v. Bogan, 766 F.3d at 658.

One sees the striking parallels to Sweatt v.

Painter 339 U.S. 629, 634 (1950), where a law

student sought access to the intangible qualities of

attending a respected law school, instead of the

inferior, ad hoc law school established solely to keep

him isolated from fellow law students and the

mainstream legal community. When it comes to

marriage licensing/recognition, Ohio offers same-sex

couples nothing. Just a complete ban — cradle to

grave — fossilized in Ohio’s Constitution after Issue

1’s Official Explanation branded same-sex marriages

as “deviant relationships,” (J.A. 170) polygamous,

months after the Ohio Legislature banned any kind

of legal recognition for same-sex relationships.

The freedom to marry includes the freedom to

marry the person of one’s choice. Mildred Jeter, an

African American woman, married Richard Loving, a

white man, in the District of Columbia in 1958

because Virginia’s miscegenation law would not let

them get married. After an early morning raid of

their home, the Lovings were indicted for unlawful

co-habitation and given a suspended one year jail

sentence if they departed Virginia for 25 years. They

were effectively banished from their community and

28

unable to visit their families together.*° Forty years

later, Mildred Loving reflected on their ordeal:

My generation was bitterly divided over

something that should have been so clear

and right. The majority believed what the

judge said, that it was God’s plan to keep

people apart .... [Not a day goes by that

I don’t think of Richard and our love, our

right to marry, and how much it meant to

me to have that freedom to marry the

person precious to me, even if others

thought he was the “wrong kind of person”

for me to marry. I believe all Americans,

no matter their race, no matter their sex,

no matter their sexual orientation, should

have that same freedom to marry.*!

Being legally able to say, I do, in front of one’s

own community and neighbors, is an intangible

“Loving, 388 U.S. at 1, 3, 10-12; Phyl Newbeck, Virginia

Wasn't Always For Lovers (2004). Shortly after Loving, Father

(and Dean) Robert Drinan wrote: “The freedom to marry

cannot in modern society be successfully separated from the

freedom to marry the person of one’s choice.” Robert Drinan,

The Loving Decision and the Freedom to Marry, 29 Ohio St. L.J.

358, 364-65 (1968). His observations remain correct.

*! See Gregory Johnson, We've Heard This Before: The Legacy

of Interracial Marriage Bans And the Implications for Today's

Marriage Equality Debates, 34 Vermont L. Rev. 277, 288-89 &

n. 56 (2009) [quoting Mildred Loving, Statement Prepared for

the 40% Anniversary of the Loving v. Virginia Announcement:

tee 4 All 2 (June 12, — available

29

aspect of legal marriage.*? Being able to remain

married and deemed married in one’s own state —

and not have a legal cloud cast upon one’s marriage —

is an intangible aspect of marriage. Marriage

stabilizes relationships and families.

Finally, people of good will understand what

R-E-S-P-E-C-T means to persons who are LGBT. To

those who are just learning — as Judge Posner

observed -- legal same-sex marriage will help them

get there. The overarching theme of Windsor is just

that.

VI. Because We’re Goin To The Chapel and

We’re Gonna Get Married.

Gee I Really Love You and

We’re Gonna Get Married“

The petitioners are not mere “abstractions” who

stumbled into federal court, but real human beings

who seek to vindicate their 14% Amendment rights.

Deboer v. Snyder, 772 F.3d. 388, 421 (6% Cir.

2014)(Daughtrey, J., dissenting). As Judge Posner

put it, “minorities trampled on by the democratic

process have recourse to the courts; the recourse is

called constitutional law.” Baskin, 766 F.3d at 671.

Marriage non-recognition and the denial of licensing

42 Windsor, 133 S.Ct. at 2689 (“. . same-sex couples who wanted

to affirm their commitment to one another before their children,

their family, their friends, and their community”)

48 Brf. Appellees Campaign for Southern Equality v. Bryant,

No.14-60837, p.22, 37 (5% Cir.) and Jan. 9, 2015 oral argument

of Roberta Kaplan

“ “Chapel of Love,” Phil Spector, Ellie Greenwich, Jeff Barry

(1964) famously recorded by the Dixie Cups.

30

deeply wounds the Chorus’ membership. Ohio law

allows them to have unhappy heterosexual

marriages but they may not marry the persons they

love in their own communities. Neither could Romeo

and Juliet.

Chorus Couple 1:

My husband and I met when he joined the

North Coast Men’s Chorus. He and I both

come from traditional large families. .. We

were both raised Catholic and both had

been married in the past. He raised 4

daughters with his ex-wife and I raised a

daughter and two sons with my ex-wife.

Although it is certainly done quite often

now, neither of us could have imagined

trying to raise our children and fit into

this society without the benefit of

marriage.

Although not everyone our age (58 & 60) is

so blessed, we both know and feel the

support of our friends and families. . . On

July 3, 2009, we had nearly 120 people

(family and friends) there to support us in

our commitment ceremony on our

backyard patio. With seven grown children

and nine grand-boys between us it would

be nice to have the security of the legal

protections that marriage provides. This

past St. Patrick’s Day we were legally

married in Palm Springs, California in

front of four of our friends and celebrated

on Facebook.

31

Chorus Couple 2:

I am 53 years old and my husband is 54

years old and we have been together for 33

years. We legally married on July 28th,

2011 in Provincetown, Massachusetts. It

would have been nice to legally marry in

Ohio, where we have both lived since birth

and call our home.

We can now say we are married legally,

but still not in Ohio. Marriage equality is

now recognized federally, but still not in

Ohio. In Massachusetts if one of us were to

become ill and require the other to make

decisions for us, it would be legal, but still

not in Ohio. In Massachusetts if one of us

were to die, the other as a legal spouse

would have protections under the state's

law, but still not in Ohio. * * * It is hard

to fathom how in this great country of

ours, one can be accepted in another state,

but legally discriminated against in their

own home state. We can only hope that

one day, in our lifetime our love can be

recognized at home!

Chorus Couple 3:

We have two marriage anniversaries; the

day we made our vows in our church,

Pilgrim Congregational United Church of

Christ in Cleveland, OH (June 2005) and

the day we made our solemn pledge to

each other and signed our legal marriage

32

license in Claremont, CA (October 2008).

We would have preferred to have only one

anniversary which would be that day in

Ohio when first made promises to each

other before God, family and friends. It is

from that day forward that we have

considered ourselves to be married.

Having another anniversary date, points

to the inequality and discrimination that

exists in Ohio law.

Neither the church nor the state marries

anyone. People marry each other. . . The

state decides which couples it will give a

marriage license. Religious bodies decide

which couples they will recognize and

bless with their rituals of marriage. * * *

And is not each religious body free to set

its own standard, with no one religious

body being allowed to establish a

particular religious standard on _ the

whole?

Vil. Conclusion

As Tony and Maria sang about their forbidden

love in West Side Story:

Make of our hands, one hand,

Make of our hearts, one heart.

Make of our vows, one last vow;

Only death will part us now.

Make of our lives, one life.

Day after day, one life.

Now it begins, Now we start;

33

One Hand, One Heart.

Even death won't part us now.*

All four district court judges in this

consolidated appeal ruled that the Fourteenth

Amendment mandated that the Petitioning

LGBT couples could make their hands - one

hand, their hearts - one heart, and their vows,

one last vow. This Court should do the same.

The judgment below should be reversed.

Respectfully Submitted,

Tina R. Haddad Harlan D. Karp*

3155 W.33" St. Counsel of Record

Cleveland OH 44109 850 Euclid Ave. #1330

(216) 281-5210 Cleveland, Ohio 44114

trhaddad@aol.com (216) 685-1360

harlankarp@gmail.com

www.harlankarplaw.com

March 2015 Counsel for Amicus Curiae

4“One Hand, One Heart,” West Side Story (1957). Music by

Leonard Bernstein, Lyrics by Stephen Sondheim, Conception of

Jerome Robbins, Book by Arthur’ Laurents,' see

http://www.westsidestory .com/site/level2/lyrics/one._html.