14-3464 #21

No.
14-3464
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRITTANI HENRY, et al.,

Plaintiffs-Appellees,

v.

LANCE D. HIMES,

Defendant-Appellant.
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On Appeal from the United States
District Court for the Southern
District of Ohio, Western Division

District Court Case No. 14-cv-0129

BRIEF OF APPELLANT LANCE D. HIMES, INTERIM DIRECTOR
OF THE OHIO DEPARTMENT OF HEALTH

MICHAEL DEWINE (0009181)
Ohio Attorney General

ERIC E. MURPHY* (0083284)
State Solicitor
*Counsel of Record
BRIDGET E. COONTZ (0072919)
Assistant Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980; 614-466-5087 fax
eric.murphy@ohioattorneygeneral.gov

Counsel for Lance D. Himes,
Interim Director of the Ohio
Department of Health
Case: 14-3464 Document: 21 Filed: 06/10/2014 Page: 1

TABLE OF CONTENTS
Page

TABLE OF CONTENTS ............................................................................................ i
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT .............................................. xi
J URISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 1
INTRODUCTION ..................................................................................................... 3
STATEMENT OF THE CASE .................................................................................. 5
A. Ohios lawmakers and citizens both reaffirmed the traditional
definition of marriage in Ohio ............................................................... 5
B. Plaintiffs, four same-sex couples, an adopted child, and an
adoption agency, filed suit seeking to have both same-sex partners
listed on Ohio birth certificates ............................................................. 8
C. The district court granted a permanent injunction enjoining the
State from following Ohio law prohibiting it from recognizing
out-of-state, same-sex marriages ......................................................... 10
SUMMARY OF ARGUMENT ............................................................................... 16
STANDARD OF REVIEW ..................................................................................... 18
ARGUMENT ........................................................................................................... 18
I. THE DISTRICT COURT ERRED AT THE OUTSET BY
TRANSFORMING THE NARROW AS-APPLIED COMPLAINT
INTO A BROAD FACIAL ATTACK .......................................................... 19
II. AS IN OBERGEFELL, THE DISTRICT COURTS EQUAL-
PROTECTION AND DUE-PROCESS HOLDINGS CONFLICT WITH
BINDING SUPREME COURT PRECEDENT ............................................ 24
ii
III. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLY
INVOKED SUBSTANTIVE DUE PROCESS ............................................. 27
A. Plaintiffs have no fundamental right to same-sex marriage ................ 28
B. Plaintiffs have no fundamental right to same-sex-marriage
recognition ........................................................................................... 32
C. Ohios decision to retain the traditional definition of marriage
does not implicate any fundamental parental rights ............................ 35
IV. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLY HELD
THAT OHIOS DECISION TO RETAIN TRADITIONAL
MARRIAGE VIOLATED EQUAL PROTECTION .................................... 37
A. Rational-basis review applies to Ohios marriage laws ...................... 38
1. Binding precedent requires this Court to apply rational-
basis review ............................................................................... 38
2. Even apart from precedent, heightened scrutiny is not
proper ........................................................................................ 41
B. Ohios marriage laws survive rational-basis review ........................... 42
V. OHIOS DECISION TO RECOGNIZE ONLY TRADITIONAL
MARRIAGE DOES NOT VIOLATE THE FULL FAITH AND
CREDIT CLAUSE AS APPLIED TO THE NEW YORK PLAINTIFFS ... 50
A. Section 1983 does not provide a vehicle for enforcing the
requirements of the Full Faith and Credit Clause ............................... 50
B. Even if 1983 could enforce the Full Faith and Credit Clause,
Ohios decision not to put both of the New York Plaintiffs names
on an amended birth certificate did not violate the clause .................. 56
CONCLUSION ........................................................................................................ 59
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
DESIGNATION OF DISTRICT COURT RECORD
iii
TABLE OF AUTHORITIES
Cases Page(s)
Adar v. Smith,
639 F.3d 146 (5th Cir. 2011) (en banc) .......................................................passim
Am. Express Travel Related Servs. Co. v. Kentucky,
641 F.3d 685 (6th Cir. 2011) .............................................................................. 18
Am. Fedn of State, Cnty. & Mun. Emps. Council 79 v. Scott,
717 F.3d 851 (11th Cir. 2013) ...................................................................... 20, 21
Ariz. Christian Sch. Tuition Org. v. Winn,
131 S. Ct. 1436 (2011) ........................................................................................ 55
Armour v. City of Indianapolis,
132 S. Ct. 2073 (2012) ........................................................................................ 41
Ashwander v. TVA,
297 U.S. 288 (1936) ............................................................................................ 20
Baker v. Gen. Motors Corp.,
522 U.S. 222 (1998) ...................................................................................... 56, 57
Baker v. Nelson,
191 N.W.2d 185 (Minn. 1971) ........................................................................... 24
Baker v. Nelson,
409 U.S. 810 (1972) .....................................................................................passim
Bassett v. Snyder,
951 F. Supp. 2d 939 (E.D. Mich. 2013) ............................................................. 40
Bd. of Trs. of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) ............................................................................................ 42
Blessing v. Freestone,
520 U.S. 329 (1997) ............................................................................................ 50
Bourke v. Beshear,
No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ................... 41
iv
Bowers v. Hardwick,
478 U.S. 186 (1986) ...................................................................................... 39, 40
Bruni v. Cnty. of Otsego,
192 A.D.2d 939 (N.Y. App. Div. 1993) ............................................................. 56
Chapman v. Houston Welfare Rights Org.,
441 U.S. 600 (1979) ............................................................................................ 53
Citizens United v. Fed. Election Commn,
558 U.S. 310 (2010) ................................................................................ 12, 22, 23
City of Cleburne v. Cleburne Living Center,
473 U.S. 432 (1985) ...................................................................................... 41, 42
Collins v. Harker Heights,
503 U.S. 115 (1992) ............................................................................................ 28
Conaway v. Deane,
932 A.2d 571 (Md. 2007) ................................................................................... 29
Conn v. Gabbert,
526 U.S. 286 (1999) ............................................................................................ 33
Cook v. Cook,
104 P.3d 857 (Ariz. Ct. App. 2005) .................................................................... 33
Davis v. Prison Health Servs.,
679 F.3d 433 (6th Cir. 2012) .................................................................. 38, 39, 40
Durfee v. Duke,
375 U.S. 106 (1963) ............................................................................................ 56
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997) .................................................................. 38, 39, 40
Estin v. Estin,
334 U.S. 541 (1948) ............................................................................................ 57
Exxon Mobile Corp. v. Allapattah Servs., Inc.,
545 U.S. 546 (2005) ............................................................................................ 52
v
FCC v. Beach Commcns, Inc.,
508 U.S. 307 (1993) ............................................................................................ 42
Finstuen v. Crutcher,
496 F.3d 1139 (10th Cir. 2007) .......................................................................... 55
Golden State Transit Corp. v. City of Los Angeles,
493 U.S. 103 (1989) ................................................................................ 50, 53, 55
Gonzaga Univ. v. Doe,
536 U.S. 273 (2002) ...................................................................................... 51, 52
Gonzales v. Carhart,
550 U.S. 124 (2007) ............................................................................................ 48
Goodridge v. Dept of Pub. Health,
798 N.E.2d 941 (Mass. 2003) ......................................................................... 7, 45
Graham v. Connor,
490 U.S. 386 (1989) ............................................................................................ 33
Heller v. Doe,
509 U.S. 312 (1993) ...................................................................................... 42, 43
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006) ................................................................................... 30
Hicks v. Miranda,
422 U.S. 332 (1975) ............................................................................................ 25
Hood v. McGehee,
237 U.S. 611 (1915) ............................................................................................ 57
Howlett v. Rose,
496 U.S. 356 (1990) ............................................................................................ 51
In re Bonfield,
780 N.E.2d 241 (Ohio 2002) .............................................................................. 37
In re Stiles Estate,
391 N.E.2d 1026 (Ohio 1979) ............................................................................ 33
vi
In re Thompson,
30 A.D.3d 154 (N.Y. App. Div. 2006) ............................................................... 56
Jackson v. Abercrombie,
884 F. Supp. 2d 1065 (D. Haw. 2012) .........................................................passim
Lamb Enters., Inc. v. Kiroff,
549 F.2d 1052 (6th Cir. 1977) ............................................................................ 55
Lawrence v. Texas,
539 U.S. 558 (2003) .....................................................................................passim
Lee v. Pauldine,
No.1:12-cv-07, 2013 WL 65111 (S.D. Ohio J an. 4, 2013) ................................ 41
Lewis v. Harris,
908 A.2d 196 (N.J . 2006) ................................................................................... 30
Liberty Healthcare Mgmt. Grp. Inc. v. Fahey,
257 A.D.2d 964 (N.Y. App. Div. 1998) ............................................................. 56
Lofton v. Secy of Dept of Children & Family Servs.,
358 F.3d 804 (11th Cir. 2004) ............................................................................ 35
Loving v. Virginia,
388 U.S. 1 (1967) .......................................................................................... 30, 31
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...................................................................................... 21, 22
Lyng v. Castillo,
477 U.S. 635 (1986) ............................................................................................ 36
Massachusetts v. U.S. Dept of Health & Human Servs.,
682 F.3d 1 (1st Cir. 2012) ................................................................................... 27
Mazzolini v. Mazzolini,
155 N.E.2d 206 (Ohio 1958) ........................................................................ 32, 45
Mullins v. Oregon,
57 F.3d 789 (9th Cir. 1995) ................................................................................ 36
vii
Minnesota v. N. Secs. Co.,
194 U.S. 48 (1904) ........................................................................................ 51, 52
Nevada v. Hall,
440 U.S. 410 (1979) ............................................................................................ 34
New State Ice Co. v. Liebmann,
285 U.S. 262 (1932) ...................................................................................... 31, 49
Obergefell v. Wymyslo,
962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal pending sub nom.
Obergefell v. Himes, No. 14-3057 ...............................................................passim
Parham v. J.R.,
442 U.S. 584 (1979) ............................................................................................ 36
Pierce v. Socy Sisters,
268 U.S. 510 (1925) ............................................................................................ 36
Reno v. Flores,
507 U.S. 292 (1993) ............................................................................................ 28
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) ............................................................................................ 26
Romer v. Evans,
517 U.S. 620 (1996) .......................................................................... 25, 27, 38, 39
Rosin v. Monken,
599 F.3d 574 (7th Cir. 2010) ........................................................................ 54, 57
Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250 (6th Cir. 2006) .................................................................. 38, 39, 40
Schmidt v. Lessard,
414 U.S. 473 (1974) (per curiam) ....................................................................... 22
Schuette v. Coal. to Defend Affirmative Action,
134 S. Ct. 1623 (2014) (op. of Kennedy, J .) ............................................. 5, 45, 46
Sevcik v. Sandoval,
911 F. Supp. 2d 996 (D. Nev. 2012) ............................................................. 44, 45
viii
Smith v. Smith,
50 N.E.2d 889 (Ohio Ct. App. 1943) .................................................................. 33
Song v. City of Elyria,
985 F.2d 840 (6th Cir. 1993) .............................................................................. 25
State Oil Co. v. Khan,
522 U.S. 3 (1997) ................................................................................................ 26
Stewart v. Lastaiti,
409 F. Appx 235 (11th Cir. 2010) ............................................................... 53, 54
Sun Oil Co. v. Wortman,
486 U.S. 717 (1988) ...................................................................................... 33, 34
Thompson v. Thompson,
484 U.S. 174 (1988) ...................................................................................... 51, 52
Troxel v. Granville,
530 U.S. 57 (2000) .............................................................................................. 36
Turner v. Safley,
482 U.S. 78 (1987) ........................................................................................ 30, 31
United Farm Workers v Ariz. Agric. Empt Relations Bd.,
669 F.2d 1249 (9th Cir. 1982) ............................................................................ 55
United States v. Carroll,
667 F.3d 742 (6th Cir. 2012) .............................................................................. 21
United States v. Green,
654 F.3d 637 (6th Cir. 2011) .............................................................................. 18
United States v. Thompson,
515 F.3d 556 (6th Cir. 2008) .............................................................................. 26
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................passim
U.S. Citizens Assn v. Sebelius,
705 F.3d 588 (6th Cir. 2013) ........................................................................ 28, 31
ix
Warshak v. United States,
532 F.3d 521 (6th Cir. 2008) ........................................................................ 20, 21
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008) ...................................................................................... 20, 23
Washington v. Glucksberg,
521 U.S. 702 (1997) .......................................................................... 28, 29, 31, 37
Wilson v. Ake,
354 F. Supp. 2d 1298 (M.D. Fla. 2005) .................................................. 25, 27, 44
Windsor v. United States,
699 F.3d 169 (2d Cir. 2012) ............................................................................... 26
Zablocki v. Redhail,
434 U.S. 374 (1978) ...................................................................................... 30, 31
Statutes, Rules, and Constitutional Provisions
22 C.F.R. 51.42(a) ................................................................................................. 37
28 U.S.C. 1291 ........................................................................................................ 1
28 U.S.C. 1331 .................................................................................................. 1, 52
28 U.S.C. 1738C ............................................................................................. 33, 58
42 U.S.C. 1983 ...............................................................................................passim
Fed. R. Civ. P. 65 ..................................................................................................... 22
Maine Rev. Stat. Ann. 19-A 650-A ...................................................................... 42
N.Y. Dom. Rel. Law 10-a ..................................................................................... 42
N.Y. Dom. Rel. Law 117(1)(c) ............................................................................. 36
New Hampshire Rev. Stat. 457:1-a .......................................................................... 42
Ohio Const. art. XV, 11 .................................................................................passim
Ohio R. Civ. P. 19.1 ................................................................................................. 49
Ohio Rev. Code 3010.01(C)(2) ....................................................................... 10, 43
x
Ohio Rev. Code 3101.01(C) ..................................................................... 6, 7, 8, 11
Ohio Rev. Code 3107.03 ....................................................................................... 58
Ohio Rev. Code 3111.95 ....................................................................................... 14
Ohio Rev. Code 3111.95(A) ................................................................................... 9
Ohio Rev. Code 3111.97 ....................................................................................... 49
Ohio Rev. Code 3313.672(A)(1) .......................................................................... 37
Ohio Rev. Code 3705.12 ....................................................................................... 57
Ohio Rev. Code 3705.12(A)(1) ............................................................................ 14
Ohio Rev. Code 5747.08(E) .................................................................................. 49
U.S. Const. art. IV, 1 ........................................................................... 33, 40, 52, 58
15 Vermont Stat. Ann. 8 ....................................................................................... 42
Other Authorities
13D Charles Alan Wright, et al., Federal Practice and Procedure
3563 (3d ed. 2008) .............................................................................................. 52
J . Story, Commentaries on the Conflict of Laws 113a (Little Brown,
& Co. 6th ed. 1865) ............................................................................................ 33
Ohio Secretary of State, State Issue 1: November 2, 2004, available
at
http://www.sos.state.oh.us/sos/elections/Research/electResultsMai
n/2004ElectionsResults/04-1102Issue1.aspx (last visited J une 6,
2014) ..................................................................................................................... 7
Restatement (Second) Conflicts of Laws 283 (1971) ..................................... 32, 33

xi
STATEMENT REGARDING ORAL ARGUMENT
Defendant-Appellant Lance D. Himes asks the Court to hear oral argument
because this case concerns an issue of substantial importance. As in the similar
case of Obergefell v. Himes, No. 14-3057, the district court invalidated the
application of a popularly enacted state law, and, in the process, overturned a
tradition that was unquestioned for most of the Nations (and the worlds) history.
The ruling deserves oral argument.


JURISDICTIONAL STATEMENT
The district court had federal-question jurisdiction under 28 U.S.C. 1331.
It entered a final judgment for Plaintiffs on April 14, 2014. On May 9, 2014,
Interim Director of Health Lance D. Himes (Defendant Himes, State, or
Ohio) timely appealed the final judgment. Doc.33, Notice of Appeal, at Page ID
#884. This Court has jurisdiction under 28 U.S.C. 1291.
STATEMENT OF THE ISSUES
Most Plaintiffs in this case are same-sex couples married in States that,
unlike Ohio, recognize same-sex marriage. For three of the four couples, one of
the women has conceived a child through artificial insemination; the fourth couple
lives in New York and has obtained a New York adoption decree for a child born
in Ohio. This appeal presents four issues, two of which (Questions 2 and 3) are
similar to the issues in Obergefell v. Himes, No. 14-3057, and two of which
(Questions 1 and 4) are distinct from the issues in Obergefell:
1. Plaintiffs complaint concerned the limited question whether the
Constitution required Defendant Himes to list both individuals from an out-of-
state, same-sex marriage on Ohio birth certificates. Did the district court
improperly decidebefore even reaching the meritsthat this narrow complaint
gave it an opportunity facially to enjoin Ohio laws prohibiting state actors from
2
recognizing out-of-state, same-sex marriages not just in this birth-certificate
context but also in seemingly other contexts not before the Court?
2. May Ohio, consistent with the substantive-due-process protections in
the Fourteenth Amendments Due Process Clause, retain the traditional definition
of marriage and decline to recognize same-sex marriages performed in other
States?
3. May Ohio, consistent with the Fourteenth Amendments Equal
Protection Clause, retain the traditional definition of marriage and decline to
recognize same-sex marriages performed in other States?
4. The New York Plaintiffs (the same-sex couple living in New York
who obtained a New York adoption decree for a child born in Ohio) sought an
amended birth certificate for their child. Ohio offered to list one of the couples
names on the amended birth certificate, but declined to list both names because
Ohio law permits only married couples to jointly adopt and prohibits Ohio officials
from recognizing out-of-state, same-sex marriages. Did the district court correctly
holdin conflict with the Fifth Circuitthat the New York Plaintiffs could bring
a claim under 42 U.S.C. 1983 alleging that Ohios refusal to list both of their
names on a birth certificate violates the Full Faith and Credit Clause? If so, did the
district court also correctly holdagain in conflict with the Fifth Circuitthat
Ohios actions violated the Full Faith and Credit Clause?
3
INTRODUCTION
The district courts decision in this case expands on its earlier decision in
Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D. Ohio 2013), appeal pending sub
nom. Obergefell v. Himes, No. 14-3057, and thereby continues to override the
democratic choices of Ohios citizens regarding fundamental social policy. In
Obergefell, the court held that the plaintiffs, same-sex couples who had married in
other States, had both substantive-due-process and equal-protection rights
requiring Ohio to issue death certificates identifying their out-of-state, same-sex
marriages. Id. at 997-98. In this case, the district court was presented with a
similar as-applied complaint brought by same-sex couples married in other States
challenging Ohio practices concerning birth certificates.
In many respects, the district courts new decision simply rested on the
mistakes it made in Obergefell. As in Obergefell, for example, the court ignored
the Supreme Court case that is most directly on pointthe summary dismissal in
Baker v. Nelson, 409 U.S. 810 (1972). As in Obergefell, moreover, the court held
that Plaintiffs have a substantive-due-process right to same-sex-marriage
recognition, even though no such right has existed within our Nations traditions
and even though the Full Faith and Credit Clause allows one State not to recognize
a marriage undertaken in another. And, as in Obergefell, the court found that
courts should analyze sexual-orientation classifications under heightened scrutiny
4
despite this Courts chain of authority applying rational-basis review. Because the
district court made many of the same mistakes as in Obergefell and because these
two cases have been consolidated for submission, the State will, where appropriate,
cite its Obergefell Appellants Brief to streamline the analysis and avoid
duplication as much as possible. See Doc.29, Brief of Appellant, Obergefell v.
Himes, No. 14-3057 (6th Cir. Apr. 10, 2014) (Obergefell Appellants Brief).
In other respects, however, the decision below magnified the errors made in
Obergefell. Unlike there, for example, the court issued a broad order facially
invalidating Ohio laws prohibiting its officials from recognizing out-of-state,
same-sex marriages seemingly in all contexts. It did so despite the preference for
as-applied challenges and the complaints as-applied focus. Similarly, in
Obergefell, the court found no substantive-due-process right to same-sex marriage
itself because most courts had found no such right. Obergefell, 962 F. Supp. 2d
at 977. In this case, however, the court departed from its earlier analysis by
holding that substantive due process does, in fact, protect same-sex marriage.
Doc.28, Order, at Page ID #828-32. As one more example, the district courts
decision, unlike Obergefell, disagreed with the Fifth Circuit on an identical issue
whether a claim may be brought under 1983 to enforce an alleged violation of the
Full Faith and Credit Clause. Compare Adar v. Smith, 639 F.3d 146, 153-54 (5th
Cir. 2011) (en banc), with Doc.28, Order, at Page ID #854-56 n.i.
5
At days end, despite these differences, the district courts decision in this
case rests on the same overarching premise as its decision in Obergefell. The court
presumed that anyone who believes that a State should retain the traditional
definition of marriage can have one, and only one, rationalebigotry. But, as the
Supreme Court noted in an equally delicate context a mere week after the decision
below, [i]t is demeaning to the democratic process to presume that the voters are
not capable of deciding an issue of this sensitivity on decent and rational grounds.
See Schuette v. Coal. to Defend Affirmative Action, 134 S. Ct. 1623, 1637 (2014)
(op. of Kennedy, J .). And if such an acrimonious allegation is to be made, surely
it ought not to be at the invitation or insistence of the courts. Id. at 1635. Ohios
citizens are engaged in a good-faith debate on this important public-policy issue.
The Court should hold that the debate rightly belongs with the People of Ohio
rather than with the courts.
STATEMENT OF THE CASE
A. Ohios lawmakers and citizens both reaffirmed the traditional
definition of marriage in Ohio
Like every State until recently, Ohio has always followed the traditional
legal and societal definition of marriage. In 2004, as the debate over that definition
grew in both the democratic sphere and the courts, Ohioans decided to confirm the
traditional definition in two ways.
6
Legislative Action. Ohios lawmakers reaffirmed the traditional definition of
marriage by passing Ohios Defense of Marriage Act. The Act provides:
(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 . . . 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. . . .
Ohio Rev. Code 3101.01(C). The Act disavows any intent to prohibit extending
non-marital benefits to same-sex relationships or any intent to affect private
agreements. Id. 3101.01(C)(3)(a)-(b).
On February 6, 2004, after the Act passed Ohios General Assembly,
Governor Robert Taft signed it into law. In doing so, the governor emphasized
that the laws purpose was not to discriminate against any Ohioans, but to
reaffirm existing Ohio law with respect to our most basic, rooted, and time-
honored institution: marriage between a man and a woman. Doc.17-3, Becker
Decl. Ex. G, at Page ID #290.
7
Constitutional Action. Around the same time, litigants were challenging
statutes like Ohio Rev. Code 3101.01(C) under state constitutional provisions.
See, e.g., Goodridge v. Dept of Pub. Health, 798 N.E.2d 941 (Mass. 2003)
(invalidating, under state constitution, statutory marriage definition). Ohios
citizens decided to define marriage a second time, this time in Ohios Constitution,
to ensure that Ohios state courts would not trump their democratic choices under
the rubric of interpreting the Ohio Constitution.
Specifically, Ohios citizens amended the Ohio Constitution to retain the
traditional definition of marriage, and to confirm that Ohio would not recognize
out-of-state, same-sex marriages. The amendment passed with over three million
votes, by a margin of 61.7% in favor and 38.3% against. See Ohio Secy of State,
State Issue 1: November 2, 2004, available at
http://www.sos.state.oh.us/sos/elections/Research/electResultsMain/2004Elections
Results/04-1102Issue1.aspx (last visited J une 9, 2014). Article XV 11 of the
Ohio Constitution now provides:
Only a union between one man and one woman may be a
marriage valid in or recognized by this state and its political
subdivisions. This state and its political subdivisions shall not create or
recognize a legal status for relationships of unmarried individuals that
intends to approximate the design, qualities, significance or effect of
marriage.
Ohio Const. art. XV, 11.
8
B. Plaintiffs, four same-sex couples, an adopted child, and an
adoption agency, filed suit seeking to have both same-sex partners
listed on Ohio birth certificates
Plaintiffs are four same-sex couples married outside Ohio in States that
permit same-sex marriages, the adopted son of one of these couples, and an
adoption agency. Doc.1, Compl., at Page ID #4-10. Plaintiffs filed this suit in
February 2014 on the heels of Obergefell v. Wymyslo, 962 F. Supp. 2d 968 (S.D.
Ohio 2013). In Obergefell, the other Ohio same-sex-marriage case pending before
this Court, the same judge permanently enjoined Defendant Himes, the Interim
Director of the Ohio Department of Health, from adhering to Ohio Const. art. XV,
11 and Ohio Rev. Code 3101.01(C) as applied to the plaintiffs. Specifically,
the court ordered Himes to list the same-sex partners of the plaintiff decedents on
the decedents death certificates. Doc.1, Compl., at Page ID #2; see Obergefell,
962 F. Supp. 2d at 997-98.
In this case, by comparison, three of the four couples are women who
married in other StatesNew York (Brittani Henry and LB Rogers), California
(Nicole and Pam Yorksmith), and Massachusetts (Kelly Noe and Kelly
McCracken). Id. at Page ID #4-7. When this litigation began, Brittani Henry,
Nicole Yorksmith, and Kelly Noe each had conceived an unborn child through
artificial insemination and each expected to deliver the infant in Ohio. Id. These
women sought to have their same-sex partners names listed on the childrens birth
9
certificates in addition to their own names. Id. They asserted that, under Ohio law,
a womans husband would be deemed the natural father of the child (and listed on
the father section of the birth certificate) even when that child was conceived
through artificial insemination. Doc.1, Compl., at Page ID #5-7; see Doc.19-4,
Sample Birth Certificate, at Page ID #617; Ohio Rev. Code 3111.95(A). But
because Ohio does not recognize these Plaintiffs same-sex marriages, the
complaint alleged, this presumption does not apply to the non-birth-mother spouse
in a same-sex marriage from another State. Doc.1, Compl., at Page ID #5-7. Ohio
thus does not list the mothers same-sex partner on the birth certificate.
The fourth couple, men married and living in New York (J oseph J . Vitale
and Robert Talmas), have adopted a child under an order from a New York probate
court. Id. at Page ID #8. The child was born in Ohio in 2013. Id. The couple
seeks an amended birth certificate listing both men as parents. Id. The couple
asserted that Ohio would amend an adopted childs birth certificate to list both
spouses when those spouses are in an out-of-state, opposite-sex marriage. Id. But
since Ohio does not recognize same-sex marriages, the New York adoptive couple
cannot have both individuals listed on an amended birth certificate. Id.
The final Plaintiff, Adoption S.T.A.R., was the adoption agency for the New
York Plaintiffs. Id. It challenged Ohios birth-certificate laws on behalf of future
clients. Id. at Page ID #9-10. The agency alleged that it continues to serve same-
10
sex couples in the adoption process, and that it has spent unbudgeted time and
money addressing this issue. Id. at Page ID #9.
Plaintiffs complaint alleged two counts. First, on behalf of all Plaintiffs, the
complaint asserted that the States refusal to list both same-sex partners on the
birth certificates violated the First and Fourteenth Amendments and the right to
associate, to due process, and to equal protection. Id. at Page ID #16. Second, on
behalf of the New York Plaintiffs, the complaint asserted that the States refusal to
list both men on an amended birth certificate for their adopted child conflicted with
the New York adoption decree and so violated the Full Faith and Credit Clause.
Id. Plaintiffs complaint sought a declaration that Ohio Const. art. XV, 11 and
Ohio Rev. Code 3010.01(C)(2) violated their constitutional rights and that
Plaintiffs were entitled to have both individuals listed on the respective birth
certificates. Id. at Page ID #16-17. Plaintiffs also sought a permanent injunction
requiring Ohio to list both names of the same-sex couples on the Ohio birth
certificates. Id. at Page ID #17-18.
C. The district court granted a permanent injunction enjoining the
State from following Ohio law prohibiting it from recognizing
out-of-state, same-sex marriages
The parties agreed to an expedited schedule with a stipulation describing
Ohios birth-certificate process, and Plaintiffs used the same expert declarations
submitted in Obergefell. See Doc.17-1, Gerhardstein Decl., at Page ID #133;
11
Doc.19, Stip., at Page ID #603-07. While Plaintiffs complaint sought narrow
relief requiring Ohio to recognize their same-sex marriages with respect to their
requests for birth certificates, Doc.1, Compl., at Page ID #2, their briefing
switched gears and sought facially to invalidate Ohios refusal to recognize out-of-
state, same-sex marriages in all contexts, including those that do not involve the
Ohio Department of Health, see Doc.18-2, Proposed Order, at Page ID #602.
The district court appeared to grant something approaching the broad relief
that Plaintiffs briefing requested. Doc.29, Decl. J . & Permanent Injunction, at
Page ID #860. It not only ordered Ohio to issue birth certificates to the Plaintiffs
for their children listing both same-sex parents, but also enjoined Defendant
Himes and his officers, agents, and employees from enforcing those portions of
Ohio Const. art. XV, 11 and Ohio Rev. Code 3101.01(C), and any other
provisions of the Ohio Revised Code, to deny recognition to valid out-of-state
same-sex marriages, and from denying same-sex couples validly married in other
jurisdictions all the rights, protections, and benefits of marriage provided under
Ohio law. Id. at Page ID #860.
The courts opinion largely tracked its decision in Obergefell, grounding its
broader holding in the Fourteenth Amendments Due Process and Equal Protection
Clauses. Doc.28, Order, at Page ID #828-50.
12
1. At the outset, the court rejected Ohios argument that the facial relief
that Plaintiffs permanent-injunction briefing requested was not properly presented.
Id. at Page ID #826-28. Despite the limited relief pursued by the Plaintiffs in
Obergefell, the court reasoned, that case had intentionally expressed the facial
invalidity of Ohios marriage recognition ban . . . . Id. at Page ID #826. Further,
the court noted that this case was not explicitly framed only as an as-applied
challenge, and that, even if it were, the Court has authority to facially invalidate
a challenged law in an as-applied context. Id. at Page ID #827 (citing Citizens
United v. Fed. Election Commn, 558 U.S. 310, 331 (2010)).
2. Turning to Plaintiffs substantive-due-process arguments, the court
found that this case implicated three fundamental rights. Id. at Page ID #828.
First, while it conceded that [s]ome courts have not found that a right to same-sex
marriage is implicated in the fundamental right to marry, it found no reasonable
basis on which to exclude gay men, lesbians, and others . . . from this culturally
foundational institution. Id. at Page ID #828-29. Second, the court invoked the
same right to remain married on which it had relied in Obergefell. Id. at Page ID
#832-33. Third, the court stated that the marriage recognition bans also implicate
the parenting rights of same-sex married couples with children. Id. at Page ID
#833. As for the level of scrutiny, the court held that strict scrutiny applied to
13
the right to marry and the right to parental authority, but that intermediate
scrutiny applied to the right to marriage recognition. Id. at Page ID #833-34.
Applying this scrutiny, the court began with the burden on Plaintiffs. The
court reasoned that Ohios refusal to recognize out-of-state marriageslike
Section 3 of the federal DOMA struck down in United States v. Windsor, 133
S. Ct. 2675 (2013)demeans the couple and humiliates tens of thousands of
children now being raised by same-sex couples. Id. at Page ID #836 (quoting
133 S. Ct. at 2694). And the court stated that the inability to obtain an accurate
birth certificate saddles the child with the life-long disability of a government
identity document that does not reflect the childs parentage and burdens the ability
of the childs parents to exercise their parental rights and responsibilities. Id. at
Page ID #837.
As for Ohios interestsincluding the interest in keeping the decision to
permit same-sex marriage within the democratic processes and the need to
approach social change with carethe court found them vague, speculative,
and/or unsubstantiated. Id. at Page ID #838. The court was especially critical of
Ohios repeated appeal to the purportedly sacred nature of the will of Ohio
voters, referring to it as particularly specious. Id.
3. The court next held that Ohios refusal to recognize out-of-state,
same-sex marriages violated equal protection. The court stated that, under Ohio
14
law, opposite-sex spouses are listed as parents on birth certificates in cases of
artificial insemination and adoption. Id. at Page ID #841-43 (citing Ohio Rev.
Code 3111.95, 3705.12(A)(1)). But since Plaintiffs out-of-state, same-sex
marriages are not recognized, the birth mothers same-sex partner will not be listed
as a parent on the birth certificates. Id.
From here, the courts analysis tracked Obergefell. Turning to the level of
scrutiny for this distinction, the court conceded that this Court has continued to
apply rational-basis review to sexual-orientation classifications after Lawrence v.
Texas, 539 U.S. 558 (2003). Id. at Page ID #844. But it stated that these
decisions were not binding because they relied on pre-Lawrence logic. Id. at Page
ID #844-45. Based on the rationales explained in Obergefell, the court thus
concluded that classifications based on sexual orientation must pass muster under
heightened scrutiny to survive constitutional challenge. Id. at Page ID #845.
The court went on to hold that Ohio lacked even a rational basis for
maintaining the traditional definition of marriage for the same reasons it identified
in Obergefell. Id. at Page ID #846-50. While purporting to apply rational-basis
review, the court asserted that Ohio certainly cannot meet its burden under
heightened scrutiny to demonstrate that the marriage recognition ban is necessary
to further important State interests. Id. at Page ID #848 (emphasis added).
15
4. The district court addressed other substantive matters in two endnotes.
With respect to the New York Plaintiffs full-faith-and-credit claim, the court
concluded both that the claim could be brought under 42 U.S.C. 1983 against
state officials and that giving full faith and credit to an out-of-state adoption decree
requires Ohio to list both out-of-state adoptive parents on an amended Ohio birth
certificate. Id. at Page ID #854-56 n.i. When doing so, the court departed from the
only circuit to have considered this issue. Id. at Page ID #855 (agreeing with
dissent in Adar v. Smith, 639 F.3d 146 (5th Cir. 2011)). As for the ban in Section 2
of the federal DOMA on requiring one State to give effect to any public act,
record, or judicial proceeding of any other State respecting same-sex marriage,
the court held that, although Section 2 of DOMA is not specifically before the
Court, the implications of todays rulings speak for themselves. Id. at Page ID
#856.
In the second endnote, the court found that Adoption S.T.A.R. lacked
standing. Id. at Page ID #857 n.ii. Adoption S.T.A.R. relied on the rights of its
future clients under the third-party-standing doctrine, but failed to show that
same-sex couples married in other jurisdictions are hindered from litigating their
own rights. Id. Because Adoption S.T.A.R. did not cross-appeal this adverse
ruling, it no longer remains in this suit.
16
After issuing this decision, the district court stayed its facial ruling but not
its as-applied ruling concerning Plaintiffs birth-certificate claims. Doc.32, Stay
Order, at Page ID #881-82. This appeal followed.
SUMMARY OF ARGUMENT
The district court erred at every step. First, as a procedural matter, the
district court wrongly began its analysis by expanding this case into a facial
challenge prohibiting Ohio from recognizing out-of-state, same-sex marriages. In
doing so, it departed from the traditional preference for as-applied challenges. And
to the extent the court thought it could enjoin applications of these laws far afield
of the particular official before the court, that relief would have surpassed its
Article III jurisdiction. At bottom, the courts unusual haste to facially invalidate
democratically passed laws confirms its refusal to give them proper deference.
Second, as in Obergefell, the district court ignored the Supreme Court
precedent most directly on point. Baker v. Nelson, 409 U.S. 810 (1972), found that
claims to same-sex marriage do not implicate a federal issue. This Court has held
that only the Supreme Court can depart from a summary dismissal like Baker, and
the district court should have followed that binding rule here.
Third, the district courts substantive-due-process analysis erred in finding
that Ohios prohibition on recognizing out-of-state, same-sex marriages implicated
three fundamental rights: a right to same-sex marriage; a right to same-sex-
17
marriage recognition; and a right to parental authority in this context. Our
Nations history and traditions, not to mention the weight of appellate authority,
establish no fundamental right to same-sex marriage or same-sex-marriage
recognition. Substantive due process, moreover, does not apply where a more
specific constitutional provision is implicated. That is notable with respect to
same-sex-marriage recognition, because the Full Faith and Credit Clause permits
Ohio to refrain from recognizing out-of-state, same-sex marriages. Indeed,
Congress, which has authority over the effect that one State must give to another
States laws, has preserved a States power to choose non-recognition. And Ohios
refusal to place both names on birth certificates does not infringe any parental right
of constitutional dimension.
Fourth, the longstanding definition of marriage comports with equal
protection. The district court wrongly applied heightened scrutiny to Plaintiffs
equal-protection claim, because this Courts binding precedent applies rational-
basis review. And Ohio had several conceivable rational bases for its marriage
laws, including, among others, retaining the right of Ohioans to decide marriage
policy, approaching major social change cautiously, and maintaining uniformity.
Fifth, the district court erred by suggesting that Ohios laws violate the Full
Faith and Credit Clause as applied to the New York Plaintiffs and their New York
adoption decree. The Full Faith and Credit Clause, like the Supremacy Clause,
18
does not create federal rights; it merely secures state-law rights flowing from a
judgment in the State of that judgment. Accordingly, like the Supremacy Clause, it
is not covered by 1983. See Adar v. Smith, 639 F.3d 146, 152-57 (5th Cir. 2011)
(en banc). Regardless, Ohios refusal to list both same-sex New York spouses on
an amended birth certificate does not violate the Full Faith and Credit Clause.
New York preclusion law would not apply to the relevant Ohio official (who was
not a party to the New York adoption decree). The Full Faith and Credit Clause,
moreover, does not require one State to enforce the judgment of a different State in
a manner that violates its own state laws. And Section 2 of the federal DOMA
allows Ohio to refuse to recognize such out-of-state judicial orders.
STANDARD OF REVIEW
The district courts various conclusions as to the constitutionality of Ohio
laws are all reviewed de novo. See United States v. Green, 654 F.3d 637, 649 (6th
Cir. 2011); Am. Express Travel Related Servs. Co. v. Kentucky, 641 F.3d 685, 688
(6th Cir. 2011).
ARGUMENT
Relying on substantive-due-process and equal-protection rationales, the
district court facially invalidated the portions of Ohios constitutional and statutory
marriage provisions that prohibit Ohio officials from recognizing out-of-state,
same-sex marriages. The court also suggested that the New York adoption decree
19
gave the New York Plaintiffs a right under the Full Faith and Credit Clause to have
both individuals listed on their adopted childs amended birth certificate. The
court was mistaken on all counts. This case did not present the court with an
opportunity to facially invalidate Ohio law. See Part I. The courts substantive-
due-process and equal-protection conclusions, moreover, expanded on the mistakes
made in its Obergefell decision. See Parts II-IV. And its full-faith-and-credit
analysis misinterpreted both 1983 and the Full Faith and Credit Clause. See
Part V.
I. THE DISTRICT COURT ERRED AT THE OUTSET BY
TRANSFORMING THE NARROW AS-APPLIED COMPLAINT
INTO A BROAD FACIAL ATTACK
As explained below, the district courts errors on the merits largely track the
errors it made in Obergefell. But here, as distinct from Obergefell, the court erred
at the outset by mistakenly analyzing the permissible scope of its ruling. In
Obergefell, the court limited its holding and injunction to the particular plaintiffs
and the particular death-certificate context. See Obergefell v. Wymyslo, 962
F. Supp. 2d 968, 1000 (S.D. Ohio 2013). In this case, the same court seemingly
claimed the authority to require state officials to recognize out-of-state, same-sex
marriages for all same-sex couples (not just Plaintiffs) and for all contexts (not just
the birth-certificate context in Plaintiffs complaint). See Doc.28, Order, at Page
ID #814 & n.1, 826-28, 852. The district court was mistaken.
20
The courts decision departed from normal rules. Courts disfavor[] facial
challenges, Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
450 (2008), and prefer to interpret complaints as raising as-applied claims, see,
e.g., Warshak v. United States, 532 F.3d 521, 528-29 (6th Cir. 2008); see also Am.
Fedn of State, Cnty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 864 (11th
Cir. 2013) (noting that courts construe a plaintiffs challenge, if possible, to be as-
applied). That rule follows from the fundamental principle of judicial restraint
that courts should neither anticipate a question of constitutional law in advance of
the necessity of deciding it nor formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied. Wash. State Grange,
552 U.S. at 450 (quoting Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)
(Brandeis, J ., concurring)). It also follows from the nature of courts, which are not
suited to engage in [l]itigation by hypothetical rather than litigation by a
particular cases concrete facts. Warshak, 532 F.3d at 529. The district court
flipped this presumption on its head by jumping immediately to a facial challenge.
To make matters worse, the district court did so even though the complaint
asserted a narrow challenge in the birth-certificate context. The complaint was
limited to recognition of same-sex marriages on birth certificates for the specific
Plaintiffs. Doc.1, Compl., at Page ID #2 (emphasis added). In the relevant count,
for example, Plaintiffs alleged that Ohio violated equal protection and due process
21
because it had failed and will fail to issue birth certificates listing the adult
plaintiffs as the legal parents of their children based solely on the fact that they are
in a same-sex marriage. Id. at Page ID #16 (emphasis added). And the complaint
restricted the relief sought to the birth-certificate context. Id. at Page ID #16-18.
Nowhere does the complaint hint at the possibility of invalidating the Ohio laws
barring its agencies from recognizing out-of-state, same-sex marriages in the many
other potential contexts in which they might arise. Plaintiffs later attempt to
request broader relief in their briefing on fundamentally different factual claims
having nothing to do with birth certificates departed from normal pleading rules.
See Am. Fedn, 717 F.3d at 863.
Given the narrow claims asserted, moreover, the court could not even grant
injunctive relief outside the birth-certificate context consistent with Article III
standing. Standing requires the plaintiff to show that its injury is fairly traceable
to the challenged action of the defendant and not the result of the independent
action of some third party not before the court. United States v. Carroll, 667
F.3d 742, 745 (6th Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 568 (1992)). Thus, a plaintiff cannot bring suit against an alleged injury
caused by one governmental agency and expect to obtain relief against other
argued (if unalleged) injuries caused by other governmental agencies. See Lujan,
504 U.S. at 568-71 (plurality op.). This problem exists here. Because Plaintiffs
22
brought a challenge only in the birth-certificate context, they (naturally enough)
sued Defendant Himes rather than other directors of other Ohio agencies. Given
the narrow suit, the District Court could accord relief only against Himes, not
other state-agency directors. See id. at 568. Accordingly, any unspecified injuries
flowing from state laws outside of the Ohio Department of Healths domain could
not be redressed by a decision against Defendant Himes. See id. at 568-71. Those
unalleged and unknown injuries potentially caused by other agencies not before the
court cannot possibly fall within the scope of the district courts ambiguous
injunction. See Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam) (noting
that Fed. R. Civ. P. 65 was designed to prevent uncertainty and confusion on the
part of those faced with injunctive orders, and to avoid the possible founding of a
contempt citation on a decree too vague to be understood).
The district courts analysis, by comparison, did not justify its contrary
result. Relying on Citizens United v. Federal Election Commission, 558 U.S. 310
(2010), the court asserted that the distinction between facial and as-applied
challenges is not so well defined that it has some automatic effect or that it must
always control the pleadings and disposition in every case involving a
constitutional challenge. Doc.28, Order, at Page ID #827 (quoting Citizens
United, 558 U.S. at 331). But Citizens United confirms the district courts error.
For one, Citizens United resolved the facial challenge there only after rejecting as-
23
applied challenges. Citizens United, 558 U.S. at 322-29; see id. at 374 (Roberts,
C.J ., concurring) (The majoritys step-by-step analysis accords with our standard
practice of avoiding broad constitutional questions except when necessary to
decide the case before us.). Here, however, the district court jumped to the broad
facial challenge without considering the narrower as-applied challenge. For
another, Citizens United recognized that the distinction between facial and as-
applied challenges was instructive and necessary, for it goes to the breadth of the
remedy employed by the Court, not what must be pleaded in a complaint. Id. at
331. Here, however, the district court failed to consider whether it could grant its
broad remedy (reaching well beyond the birth-certificate context and perhaps
beyond the purview of the Department of Health).
In sum, the district courts analysis on this basic procedural issue speaks
volumes: Its failure to follow normal rules reflects the courts refusalfrom the
outsetto give due respect to the democratic social-policy choices made by Ohios
citizens. After all, the preference for as-applied challenges exists precisely because
facial challenges threaten to short circuit the democratic process by preventing
laws embodying the will of the people from being implemented in a manner
consistent with the Constitution. Wash. State Grange, 552 U.S. at 451.
24
II. AS IN OBERGEFELL, THE DISTRICT COURTS EQUAL-
PROTECTION AND DUE-PROCESS HOLDINGS CONFLICT WITH
BINDING SUPREME COURT PRECEDENT
Turning to the merits, the district court committed the same overarching
error that it did in Obergefell by ignoring Baker v. Nelson, 409 U.S. 810 (1972),
which precludes Plaintiffs due-process and equal-protection claims.
A. As the State noted in the Obergefell Appellants Brief (at 17-20), the
Supreme Courts Baker order requires this Court to reject Plaintiffs claims. In
Baker, a same-sex couple argued that they were deprived of liberty and property
without due process and [were] denied the equal protection of the laws when a
clerk declined to issue them a marriage license. Baker v. Nelson, 191 N.W.2d 185,
186 (Minn. 1971). The Minnesota Supreme Court rejected both arguments. Id. at
186-87. The U.S. Supreme Court dismissed the case for want of a substantial
federal question. Baker, 409 U.S. at 810. By doing so, the Court rejected the
plaintiffs two claims: (1) that Minnesotas refusal to sanctify [the plaintiffs]
[same-sex] marriage deprive[d] [them] of their liberty to marry and of their
property without due process of law; and (2) that Minnesotas refusal, pursuant
to Minnesota marriage statutes, to sanctify [the plaintiffs] marriage because both
are of the male sex violate[d] their rights under the equal protection clause.
Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1085 (D. Haw. 2012) (quoting
Baker v. Nelson, J urisdictional Stmt., No. 71-1027, at 3 (Feb. 11, 1971)).
25
Baker governs today. The dismissal was an adjudication on the merits that
is binding on lower federal courts. Wilson v. Ake, 354 F. Supp. 2d 1298, 1304
(M.D. Fla. 2005) (citing Hicks v. Miranda, 422 U.S. 332, 344 (1975)). And [t]he
precedential value of a dismissal for want of a substantial federal question extends
beyond the facts of the particular case to all similar cases. Jackson, 884
F. Supp. 2d at 1087 (citation omitted); Song v. City of Elyria, 985 F.2d 840, 843
(6th Cir. 1993) (noting that summary dispositions have the same precedential
value as other holdings and are binding on the lower courts until the Supreme
Court decides otherwise). Plaintiffs have raised here the same issues that the
same-sex couple in Baker brought: whether due process and equal protection
require States to sanction same-sex marriage. Baker held that the States do not
have that duty.
B. Ignoring Baker, the district court relied instead on analogies to the
more recent (yet further afield) decisions in United States v. Windsor, 133 S. Ct.
2675 (2013), Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517
U.S. 620 (1996). Doc.28, Order, at Page ID #828-50. In doing so, the district
court erred for the reasons identified in the Obergefell Appellants Brief (at 20-24).
The Supreme Court has repeatedly told lower courts that [i]f a precedent of
this Court has direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case which
26
directly controls, leaving to this Court the prerogative of overruling its own
decisions. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 484 (1989); see State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); United States v.
Thompson, 515 F.3d 556, 565 (6th Cir. 2008). The district court disregarded this
rule by relying on alleged inferences from distinguishable decisions to ignore a
binding decision.
Windsor, for example, considered Section 3 of DOMA, which imposed a
federal definition of marriage for all federal laws. The Court invalidated this
provision because it was an unusual deviation from the [federal governments]
usual tradition of recognizing and accepting state definitions of marriage. 133
S. Ct. at 2693. Until DOMA, the Federal Government, through our history,
[would] defer[] to state-law policy decisions with respect to domestic relations,
because regulation of domestic relations is an area that has long been regarded as
a virtually exclusive province of the States. Id. at 2691 (citation omitted).
Tellingly, the circuit courts that struck down Section 3 of DOMA before Windsor
distinguished Baker in the same manner. The Second Circuit, for example,
distinguished Baker on the ground that [t]he question whether the federal
government may constitutionally define marriage as it does . . . is sufficiently
distinct from the question . . . whether same-sex marriage may be constitutionally
restricted by the states. Windsor v. United States, 699 F.3d 169, 178 (2d Cir.
27
2012). Similarly, the First Circuit held that Baker was precedent binding on us
unless repudiated by subsequent Supreme Court precedent. Massachusetts v. U.S.
Dept of Health & Human Servs., 682 F.3d 1, 8 (1st Cir. 2012).
The district courts reliance on Lawrence and Romer was even more
mistaken. Lawrence, a case involving a prohibition on specified sexual conduct,
disclaimed that it did not involve whether the government must give formal
recognition to any relationship that homosexual persons seek to enter. 539 U.S. at
578. Romer involved a state constitutional amendment restricting the ability of
localities to prohibit discrimination based on sexual orientation in, among other
things, employment. 517 U.S. at 624. It, too, said nothing about marriage. These
decisions thus do not alter the dispositive effect of Baker. Wilson, 354
F. Supp. 2d at 1305; see Jackson, 884 F. Supp. 2d at 1085-86.
As in Obergefell, Ohio concedes that other district courts have disregarded
Bakers controlling nature, see Obergefell Appellants Br. 24, but those lower
courts mistakenly did so. This Court should not make the same mistake.
III. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLY
INVOKED SUBSTANTIVE DUE PROCESS
The district courts substantive-due-process analysis was mistaken. To
qualify as a fundamental right triggering heightened scrutiny under substantive
due process, a right must be objectively, deeply rooted in this Nations history
and tradition, and implicit in the concept of ordered liberty, such that neither
28
liberty nor justice would exist if they were sacrificed. U.S. Citizens Assn v.
Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (rejecting substantive-due-process
challenge to Patient Protection and Affordable Care Acts individual mandate)
(quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). And to
determine whether an alleged right meets these demanding standards, courts must
articulate a careful description of the asserted right, for [t]he doctrine of judicial
self-restraint requires [them] to exercise the utmost care whenever [they] are asked
to break new ground in this field. Reno v. Flores, 507 U.S. 292, 302 (1993)
(quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
As explained in the Obergefell Appellants Brief (at 24-33), a careful
description of the asserted right in this case, Reno, 507 U.S. at 302, shows that
Ohios decision to adhere to the traditional definition of marriage cannot violate
substantive due process. Yet the district courts decision below expanded on the
errors it made in Obergefell by finding that Ohios refusal to recognize out-of-
state, same-sex marriages implicated not one but three different fundamental
rights: (1) the right to marry; (2) the right to marriage recognition; and (3) the
right to parental authority. The district court erred in each respect.
A. Plaintiffs have no fundamental right to same-sex marriage
Obergefell found no right to same-sex marriage itself because most courts
have not found that a right to same-sex marriage is implicated in the fundamental
29
right to marry. 962 F. Supp. 2d at 977. The district court changed its mind here,
however, by holding that Plaintiffs do have a fundamental right to same-sex
marriage. Doc.28, Order, at Page ID #828-32. That was mistaken.
1. The court departed from the traditional substantive-due-process
framework. When conducting that type of analysis, the Court should begin, as
[the Supreme Court does] in all due process cases, by examining our Nations
history, legal traditions, and practices. Glucksberg, 521 U.S. at 710. Those
factors provide the crucial guideposts for responsible decision making, . . . that
direct and restrain [the] exposition of the Due Process Clause. Id. at 721 (citation
omitted). This history is dispositive with respect to same-sex marriage. The
concept of same-sex marriage is not rooted in our Nations history. No State
recognized same-sex marriage until 2004, when Massachusetts began issuing
same-sex-marriage licenses as a result of a court decision. Doc.17-6, Grossman
Decl. 46, Page ID #402. Currently, a majority of States continue to adhere to the
traditional definition of marriage. See Obergefell Appellants Br. 27 n.1.
Not surprisingly, therefore, the district court departed from the great weight
of appellate courts to consider this question, which have refused to recognize a
fundamental right to same-sex marriage. See, e.g., Conaway v. Deane, 932 A.2d
571, 628 (Md. 2007) ([V]irtually every court to have considered the issue has held
that same-sex marriage is not constitutionally protected as fundamental in either
30
their state or the Nation as a whole.); see also Hernandez v. Robles, 855 N.E.2d 1,
10 (N.Y. 2006); Lewis v. Harris, 908 A.2d 196, 211 (N.J . 2006). Windsor itself
shows the futility of this argumentat least under normal substantive-due-process
rules. The Supreme Court there agreed that [i]t seems fair to conclude that, until
recent years, 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. 133 S. Ct. at 2689.
2. The district court rejected this general framework and case law on the
ground that the Supreme Court has consistently refused to narrow the scope of the
fundamental right to marry by reframing a plaintiffs asserted right to marry as a
more limited right that is about the characteristics of the couple seeking marriage.
Doc.28, Order, at Page ID #829 (citing, as support, Loving v. Virginia, 388 U.S. 1
(1967); Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374
(1978); Lawrence, 539 U.S. 558). In other words, because Loving did not ask
whether there was a traditional right to interracial marriage, Turner did not ask
whether there was a traditional right to inmate marriage, and Zablocki did not ask
whether there was a traditional right to marriage by one who owes child-support
payments, the district court reasoned that it was improper to ask whether there was
a traditional right to same-sex marriage. But this analysis is circular.
31
Transforming the question from whether a new right to same-sex marriage
exists to whether same-sex marriage falls within the existing right to marry does
not change the method of answering the questionwhether the relevant
relationship is objectively, deeply rooted in this Nations history and tradition.
U.S. Citizens Assn, 705 F.3d at 601 (quoting Glucksberg, 521 U.S. at 720). In that
respect, the Supreme Court cases on which the district court relied all involved the
traditional marriage relationship between a man and a woman and asked whether
burdens on it could survive heightened scrutiny. Loving, 388 U.S. at 2; Zablocki,
434 U.S. at 377-79; Turner, 482 U.S. at 94-96. These cases thus confirm that
traditional marriage is the proper benchmark for triggering scrutiny under
substantive due process. Read this way, these cases comport with Glucksberg
given that, unlike same-sex marriage, traditional marriage is consistent with our
Nations history, legal traditions, and practices. 521 U.S. at 710. In comparison,
there is no way to reconcile what the district court said with the general test for
analyzing substantive-due-process claims. That test should be applied
evenhandedly. It should not be used in some contexts (like assessing the
Affordable Care Acts individual mandate, see Sebelius, 705 F.3d at 601), but
ignored in others (like assessing Ohios marriage laws).
The only case cited by the district court that did not involve traditional
marriageLawrenceis far afield of marriage. As noted, Lawrence indicated that
32
the case did not involve public conduct and did not consider whether the
government must give formal recognition to any relationship that homosexual
persons seek to enter. 539 U.S. at 578 (emphasis added). It instead involved the
opposite right to privacy in the home. See id. at 567 (noting that the law touch[es]
upon the most private human conduct, sexual behavior, and in the most private of
places, the home). A right to be left alone by the government should not be
transmogrified into a right to require the government to act.
B. Plaintiffs have no fundamental right to same-sex-marriage
recognition
The district court next largely incorporated its Obergefell analysis, opining
that Plaintiffs have a substantive-due-process right that requires one State to
recognize a same-sex marriage validly entered in another State. Doc.28, Order, at
Page ID #832-33. That was mistaken for the reasons indicated in the Obergefell
Appellants Brief (at 25-36).
1. No longstanding historical tradition requires States to recognize out-
of-state, same-sex marriages. To be sure, most States traditionally recognized out-
of-state marriages under a conflict-of-law rule holding that the validity of a
marriage depends on its validity in the State of celebration. See Restatement
(Second) Conflicts of Laws 283 (1971). But that rule contained an equally
traditional exception for marriages unalterably opposed to a [States] well defined
public policy. Mazzolini v. Mazzolini, 155 N.E.2d 206, 208 (Ohio 1958); see
33
Smith v. Smith, 50 N.E.2d 889, 894 (Ohio Ct. App. 1943); In re Stiles Estate, 391
N.E.2d 1026, 1027 (Ohio 1979). This public policy exceptionthe one under
which Ohio refuses to recognize out-of-state, same-sex marriagescomports with
the Nations history, legal traditions, and practices just as much as the traditional
recognition rule. See J . Story, Commentaries on the Conflict of Laws 113a, at
168 (Little Brown, & Co. 6th ed. 1865); Restatement (Second) Conflicts of Laws
283; see, e.g., Cook v. Cook, 104 P.3d 857, 860 (Ariz. Ct. App. 2005).
In addition, when a particular provision of the Constitution provides an
explicit textual source of constitutional protection, a court must assess a plaintiffs
claims under that explicit provision and not the more generalized notion of
substantive due process. Conn v. Gabbert, 526 U.S. 286, 293 (1999) (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)). Here, the Full Faith and Credit
Clause provides the most relevant constitutional rule. And, for two reasons, it
permits Ohio to refuse to recognize out-of-state, same-sex marriages.
Reason One: The Full Faith and Credit Clause grants Congress the ability to
prescribe the Effect that one States public Acts and Records have in other
States. U.S. Const. art. IV, 1; see Sun Oil Co. v. Wortman, 486 U.S. 717, 729
(1988). In that respect, Section 2 of the federal DOMA permits States to refuse to
give effect to any public act or record of any other State authorizing same-
sex marriage. 28 U.S.C. 1738C. It thus controls on this issue.
34
Reason Two: The Full Faith and Credit Clause would have protected Ohios
right to define marriage aside from Section 2 of DOMA. [T]he Full Faith and
Credit Clause does not require a State to apply another States law in violation of
its own legitimate public policy. Nevada v. Hall, 440 U.S. 410, 422 (1979).
Thus, the States established and still subsisting choice-of-law practice[] of
recognizing only those marriages that do not violate their public policy is
constitutional under the Full Faith and Credit Clause, even if this policy has come
to be thought, by modern scholars, unwise. Sun Oil, 486 U.S. at 728-29.
To sum up, both historical practice and the most relevant constitutional
provision point in the same directionthat substantive due process does not
require Ohio to recognize out-of-state, same-sex marriages.
2. As in Obergefell, the district courts analysis on this issue turned
substantive due process into a super full-faith-and-credit provision unmoored
from history and tradition. Its decision to incorporate its Obergefell reasoning was
mistaken for the reasons already identified in the Obergefell Appellants Brief (at
33-36). The courts new invocation of Windsor was equally mistaken. Windsor
recognized the unquestioned authority of the States to regulate marriage. 133
S. Ct. at 2693. Windsors federalism rationale would have made no sense if the
Court had believed that one States decision to recognize same-sex marriage would
bind the other forty-nine States.
35
C. Ohios decision to retain the traditional definition of marriage
does not implicate any fundamental parental rights
The district court lastly held, in a conclusory paragraph, that Ohios refusal
to recognize out-of-state marriages implicate[s] the parenting rights of same-sex
married couples with children. Doc.28, Order, at Page ID #833. This conclusion,
too, was mistaken.
As an initial matter, the only other appellate court to consider whether there
is any fundamental right to listing both same-sex individuals names on a birth
certificate has rejected the claim. See Adar v. Smith, 639 F.3d 146, 162 (5th Cir.
2011) (en banc). In Adar, an unmarried same-sex couple adopted a Louisiana child
in New York, and requested an amended Louisiana birth certificate listing both
adoptive parents. 639 F.3d at 149-50. But Louisiana officials could not place both
names on the certificate under Louisiana law, offering instead to list one name on
it. Id. The New York couple brought a 1983 suit alleging, among other things,
that this refusal violated equal protection. Id. at 161-62. The court rejected that
claim. Critically for present purposes, the court noted that heightened scrutiny did
not apply to this claim under any type of fundamental rights analysis. Id. at 162
(noting that since adoption is not a fundamental right, the Louisiana law will be
upheld if it is rationally related to a legitimate state interest); see also Lofton v.
Secy of Dept of Children & Family Servs., 358 F.3d 804, 811 (11th Cir. 2004)
36
(holding that there is no fundamental right to adopt, nor any fundamental right to
be adopted); Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995) (same).
The district court did not follow this precedent. It also provided no
indication of how failing to have two names on a birth certificate affected any
fundamental parenting right. That is notable because only laws that directly and
substantially interfere with a fundamental right are entitled to heightened
scrutiny. Lyng v. Castillo, 477 U.S. 635, 638 (1986) (citation omitted). In that
respect, the absence of both same-sex partners names from a birth certificate does
not prohibit a parent from obtaining medical care for their child, Parham v. J.R.,
442 U.S. 584, 602 (1979), from providing a child with the desired education, see
Pierce v. Socy Sisters, 268 U.S. 510, 535 (1925), or from regulating the childrens
contact with others, Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality op.).
With respect to the New York Plaintiffs, New York law recognizes the New
York adoption decree, not the names listed on a birth certificate, as establishing the
legal relationship of parent and son. N.Y. Dom. Rel. Law 117(1)(c) ( The
adoptive parents . . . and the adoptive child shall sustain toward each other the
legal relation of parent and child and shall have all the rights and be subject to all
the duties of that relation . . .). And the adoption decree itself indicates that it can
be provided to other governmental agencies for necessary purposes. Doc.17-2, at
Page ID #137-38. With respect to the Ohio Plaintiffs, contrary to the district
37
courts suggestion, Doc.28, Order, at Page ID #837, a birth certificate that lists the
same-sex couple is not necessary for, among other things, the child to be admitted
to school, see Ohio Rev. Code 3313.672(A)(1), or to obtain a passport, see 22
C.F.R. 51.42(a). And Ohio law even permits shared custody agreements by non-
married individuals. See, e.g., In re Bonfield, 780 N.E.2d 241, 249 (Ohio 2002).
* * * *
In sum, the district court inappropriately applied heightened scrutiny based
on substantive-due-process analysis. The Ohio laws prohibiting state officials
from recognizing out-of-state, same-sex marriages do not intrude on any
fundamental rights, so substantive due process requires courts to apply, at most,
rational-basis review to those laws. See Glucksberg, 521 U.S. at 728. For the
reasons explained below, the States decision to retain the traditional definition of
marriage satisfies that deferential review. See Part IV.B.
IV. AS IN OBERGEFELL, THE DISTRICT COURT WRONGLY HELD
THAT OHIOS DECISION TO RETAIN TRADITIONAL
MARRIAGE VIOLATED EQUAL PROTECTION
The district courts equal-protection analysis largely repeated the same
equal-protection errors it made in Obergefell. The court mistakenly relied on
Obergefells reasoning to apply heightened scrutiny to Ohios marriage laws, and,
based on Obergefells incorrect analysis, also mistakenly held that those laws
could not even pass muster under deferential rational-basis review.
38
A. Rational-basis review applies to Ohios marriage laws
As in Obergefell, the district court contradicted three of this Courts
opinions by holding that heightened scrutiny applies to Plaintiffs equal-protection
claims premised on sexual orientation. See Doc.28, Order, at Page ID #845.
1. Binding precedent requires this Court to apply rational-
basis review
This Courts binding precedent dictates rational-basis review, and the district
court should not have disregarded those cases. Three published cases establish that
equal-protection claims based on sexual orientation receive rational-basis review.
See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough
v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006); Equality Found.
of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 (6th Cir. 1997).
In Equality Foundation, this Court explained that the Supreme Court had
resolved in Romer that the deferential rational relationship test . . . was the
correct point of departure for sexual-orientation classifications. 128 F.3d at 294
(citation omitted). Applying that standard, the Court concluded that the (now
repealed) Cincinnati charter amendment at issue served the valid interests of the
Cincinnati electorate in conserving public and private financial resources. Id. at
301.
Since Equality Foundation, the Court has twice reaffirmed that equal-
protection claims premised on sexual orientation receive rational-basis review. In
39
Scarbrough, the Court relied on the fact that homosexuality is not a suspect class
in this circuit to conclude that persons who associate with homosexuals are
likewise not a suspect class. 470 F.3d at 261. J ust two years ago, the Court again
restated the rational-basis standard: Because this court has not recognized sexual
orientation as a suspect classification, [the plaintiffs equal-protection] claim is
governed by rational basis review. Davis, 679 F.3d at 438.
While recognizing that this Court rejected heightened scrutiny for claims
based on sexual orientation in its most recent . . . case to consider the issue,
Doc.28, Order, Page ID #844, the district court departed from these cases based on
the same logic it pressed in Obergefell: (1) this Courts recent cases relied on its
earlier decision in Equality Foundation; (2) Equality Foundation relied on Bowers
v. Hardwick, 478 U.S. 186 (1986); (3) Lawrence overruled Bowers; and thus
(4) Equality Foundation (and apparently the Courts later decisions) now rest[]
on shaky ground. Doc.28, Order, at Page ID #844. This analysis is flawed.
For starters, Equality Foundation relied on Romer, not Bowers. See 128
F.3d at 291. The Supreme Court expressly directed this Court to apply Romer
when sending Equality Foundation back for reconsideration in light of Romer. Id.
at 294. In deciding Equality Foundation on remand, therefore, the Court noted that
Romer resolved that the deferential rational relationship test . . . was the correct
point of departure for the evaluation of laws which uniquely burdened the interests
40
of homosexuals. Id. And Equality Foundation mentioned Bowers only once to
recount its prior vacated decision. Id. at 292-93.
Even if Equality Foundation had relied on Bowers, the Supreme Court
decided Lawrence (the case that overruled Bowers) on substantive-due-process
grounds without any equal-protection analysis. Lawrence stated that the question
presented was whether the petitioners were free as adults to engage in the private
conduct . . . under the Due Process Clause of the Fourteenth Amendment, 539
U.S. at 564, and disclaimed that its holding relied on any alternative equal-
protection argument, id. at 574-75. Lawrence does not speak to whether rational-
basis review should apply to equal-protection claims. Thus, in both Scarbrough
and Davis, this Court continued to apply rational-basis review after Lawrence. In
that respect, the district courts claim that it was without controlling post-
Lawrence precedent is patently incorrect. Doc.28, Order, at Page ID #844.
Any doubt on this score can be resolved by looking to the other opinion
(aside from Obergefell) on which the district court below purported to rely.
Doc.28, Order, Page ID #844 (citing Bassett v. Snyder, 951 F. Supp. 2d 939, 961
(E.D. Mich. 2013)). In Bassett, the court concluded that although it had doubts
about the Sixth Circuits rational-basis standard, it could not, as a lower court,
decide that sexual orientation is a suspect classification because that is not the law
of the circuit, and it cannot govern the decision here. 951 F. Supp. 2d at 961.
41
Two other courts have likewise reached the same conclusion in the last two years.
See Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *4-5 (W.D. Ky.
Feb. 12, 2014) (applying rational-basis review); Lee v. Pauldine, No.1:12-cv-07,
2013 WL 65111, at *6 (S.D. Ohio J an. 4, 2013) (same).
In addition to its Obergefell analysis, the district court also cited recent
Ninth Circuit authority for the proposition that Windsor requires heightened
scrutiny for classifications based on sexual orientation. Doc.28, Order, at Page
ID #845 (citation omitted). But Windsor used the language of rational-basis
review, holding that the principal purpose of the federal law was to demean
same-sex couples, which itself could not be a legitimate purpose. Windsor, 133
S. Ct. at 2695-96; see Armour v. City of Indianapolis, 132 S. Ct. 2073, 2080 (2012)
(defining rational-basis standard). Windsor thus does not affect this Courts
precedent establishing rational-basis review for sexual-orientation claims.
2. Even apart from precedent, heightened scrutiny is not
proper
Aside from circuit precedent, sexual orientation is not a suspect class
entitled to heightened scrutiny. See Obergefell Appellants Br. 44-45. When
considering social . . . legislation, the Equal Protection Clause allows the States
wide latitude because the Constitution presumes that even improvident decisions
will eventually be rectified by the democratic processes. City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985). That is why rational-basis review
42
is the rule rather than the exception. See id. Heightened scrutiny, by contrast,
applies only if democratic processes cannot be expected to change the law where
warranted. Id. Today advocates of same-sex marriage are experiencing significant
success both at the ballot box and in state legislatures. See Maine Rev. Stat. Ann.
19-A 650-A; New Hampshire Rev. Stat. 457:1-a; 15 Vermont Stat. Ann. 8;
N.Y. Dom. Rel. Law 10-a. That success is inconsistent with the lack of political
power that the Supreme Court has recognized as a trademark of a suspect class.
See Cleburne, 473 U.S. at 440, 443-44.
B. Ohios marriage laws survive rational-basis review
For the reasons stated in the Obergefell Appellants Brief (at 45-51), Ohios
marriage laws satisfy rational-basis review. When applying rational-basis review,
courts do not sit in judgment of the wisdom, fairness, or logic of legislative
choices, FCC v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993), but instead
consider only if a rational relationship exists between the laws classification and
some legitimate government purpose, Bd. of Trs. of Univ. of Ala. v. Garrett, 531
U.S. 356, 367 (2001) (internal quotation omitted). Rational-basis review is not
concerned with the reasoning articulate[d] . . . at the moment a particular decision
is made. Id. And [a] legislative choice is not subject to courtroom
factfinding; it may be based on rational speculation unsupported by evidence or
empirical data. Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting Beach, 508
43
U.S. at 315). Accordingly, the challenging party can prevail only by disproving
every reasonably conceivable state of facts that could provide a rational basis for
the classification in the law. Id. (citation omitted).
Plaintiffs cannot meet that demanding standard. Indeed, the district courts
stated analysis suggests that it applied rational-basis review in name only. And
some portions of its opinion did not even do that. The court, for example, asserted
that Ohio cannot meet its burden under heightened scrutiny to demonstrate that
the marriage recognition ban is necessary to further important State interests.
Doc.28, Order, at Page ID #848 (emphases added). That all but confirms that the
district court could invalidate Ohios marriage laws only by applying heightened
scrutiny in substance if not in name. Ohio has many conceivable rational bases for
refraining from recognizing out-of-state, same-sex marriages.
Protecting Democracy. When enacting Ohio Rev. Code 3010.01(C)(2)
and Ohio Const. art. XV, 11 in 2004, Ohio legislators and voters both had a
rational interest in ensuring that Ohios democratic processes would continue to set
marriage policy in the State. They faced risks that they would lose control over
this issue on two distinct spheres.
As an initial matter, Ohios legislators and voters faced the real concern that
a single State, by adopting same-sex marriage, could trump the democratic choices
of every other State, including Ohio. They thus acted to ensure that Ohios
44
democratic processesnot the processes of New York, California, Massachusetts,
or any other Statewould guide Ohios future on this highly emotional and
important issue of public policy. It is precisely this license for a single State to
create national policy that other courts have rejected and that is rational for Ohio
to want to avoid. Wilson, 354 F. Supp. 2d at 1303; Sevcik v. Sandoval, 911
F. Supp. 2d 996, 1021 (D. Nev. 2012).
Similarly, both Ohios legislators and Ohios voters sought to prevent
judicial intrusion on a historically democratic function (defining marriage). That
too is a legitimate justification for Ohios laws. Ohioans could have feared that,
absent a public-policy statement like that set out in the statute, they would risk
abdicating the States marriage definition to judicial resolution. See Doc.17-3,
Becker Decl. Ex. E, Page ID #202, 213 (statement of Rep. Seitz, p. 5, lns. 1-3,
Im not willing to leave it to our courts to define what Ohios public policy might
be.); (statement of Rep. Grendell, p. 46, lns. 9-15, Theres no judge in
Massachusetts who is accountable to one person who lives in this state, but we all
are. And thats why it is important that we retain the policy, power in Ohio to
decide on what is marriage.); (statement of Rep. Grendell, p. 47, lns. 18-20, Im
going to vote that the people of Ohio deserve to have their representatives decide
the public policy of this state.). That courts could intrude upon this area, absent a
legislative statement of public policy, is hardly unrealistic, since it happened
45
before. See Mazzolini, 155 N.E.2d at 208-09. Ohioans desire to prevent courts
from undermining their democratic voice is a legitimate justification for Ohios
marriage laws. See Sevcik, 911 F. Supp. 2d at 1021 ([T]he protection of Nevadas
public policy is a valid reason for the States refusal to credit the judgment of
another state, lest other states be able to dictate the public policy of Nevada.).
With respect to Ohio Const. art. XV, 11, moreover, the provision was a
rational wayindeed, the only wayfor Ohio voters to ensure that their state
courts would not uncover a state constitutional right to same-sex marriage under
the Ohio Constitution, just as other state courts had done under their respective
constitutions. See Goodridge v. Dept of Pub. Health, 798 N.E.2d 941, 969 (Mass.
2003). Plaintiffs have never identified any other way in which Ohioans could have
protected against this state-law interpretation without a constitutional amendment.
The modest suggestion that Ohios citizens should be the ones to decide
Ohios destiny on this fundamental issue does not reflect any improper animus or
purpose. Windsor, 133 S. Ct. at 2693. It reflects instead the importance of
democracy and the greater legitimacy that results from the people deciding such
bedrock issues for themselves. Indeed, the conclusion that this rationale was
irrational in essence would announce a finding that the past [10] years of state
public debate on this issue have been improper. See Schuette v. Coal. to Defend
Affirmative Action, 134 S. Ct. 1623, 1636 (2014) (op. of Kennedy, J .).
46
The district courts decision, by contrast, reserved special criticism for this
rationale. Doc.28, Order, at Page ID #838. It ridiculed the States appeal to the
purportedly sacred nature of the will of Ohio voters (that is, democracy) as
particularly specious, observing that all practicing attorneys, as well as the vast
majority of all citizens know that unconstitutional laws cannot stand. Id. But
this circular contentionthat a law is unconstitutional because it is
unconstitutionalmisses the point. The question here is whether Ohios voters
acted rationally or instead with improper animus when they passed the
challenged laws. Windsor, 133 S. Ct. at 2693. As Schuette illustrates in an equally
sensitive context, they acted rationally by preventing a difficult question of public
policy [from] be[ing] taken from the reach of [Ohios] voters, and thus removed
from the realm of public discussion, dialogue, and debate in an [Ohio] election
campaign. Schuette, 134 S. Ct. at 1637 (op. of Kennedy, J .). In short,
preservation of democratic self-control is a rational interest, not one inherently
marred with bigotry.
Unknowable Effects. Ohioans also have an interest in approaching social
change with deliberation and care. For most of the history of the world, no
sovereign permitted same-sex marriage. Now, some States have chosen to expand
marriage to include same-sex couples, while many others, including Ohio, have
not. It is undisputed that allowing same-sex marriage would significantly alter
47
Ohios definition of marriage. Faced with these circumstances, Ohio lawmakers
and voters could rationally choose to examine the impact that changing marriage
laws will have in other States and wait before considering whether to change
Ohios laws. [T]he state may rationally decide to observe the effect of allowing
same-sex marriage in other states before changing its definition of marriage.
Jackson, 884 F. Supp. 2d at 1118. And the state could rationally conclude that it
is addressing a divisive social issue with caution. Id. at 1072.
Two J ustices of the U.S. Supreme Court would have found this factor all but
dispositive even for the unusual federal law at issue in Windsor, as compared to the
traditional law at issue here. [P]ast changes in the understanding of marriage
for example, the gradual ascendance of the idea that romantic love is a prerequisite
to marriagehave had far-reaching consequences that tend[ ] to occur over an
extended period of time. Windsor, 133 S. Ct. at 2715 (Alito, J ., dissenting). It is
thus rational for someone to believe that redefining marriage to include same-sex
couples could affect the institution of marriage, as various participants on all sides
have argued throughout the ongoing public debate. See id. at 2715-16 nn.5-6
(stating that no oneincluding social scientists, philosophers, and historians
can predict with any certainty what the long-term ramifications of widespread
acceptance of same-sex marriage will be); see also, e.g., Lawrence, 539 U.S. at
585 (OConnor, J ., concurring) (listing preserving the traditional institution of
48
marriage as an example of a legitimate state interest and noting that other
reasons exist to promote the institution of marriage beyond mere moral disapproval
of an excluded group). This cautious approach is a rational response to a new
concept. Indeed, courts have long given legislatures broad deference in the face of
such uncertainty even in cases applying a more rigorous standard of review. See
Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (citing cases).
To take but one example of the interest in caution, Ohio voters and
lawmakers may have desired not to consider changing the definition of marriage
without first uncovering its effects on religious-liberty issues. Such concerns have
been the subject of significant ongoing debate and attention by people on all sides
of the marriage-policy issue. And a desire to ensure that any such issues are fully
analyzed and appropriately addressed is a conceivable legitimate basis for
legislators and voters to prevent a potential move away from traditional marriage.
That is especially true in the context in which the challenged statute and
amendment were adopted, as courts in other jurisdictions contemplated rulings that
otherwise might have been claimed to have extraterritorial effect.
Maintaining Uniformity. The desire to maintain marriage uniformity within
Ohio is another conceivable rational basis supporting Ohios marriage laws. A
simple search of any legal database will reveal hundreds of provisions of Ohio law
that rely in some way on the terms husband, wife, or spouse, sometimes
49
with associated gender pronouns. Those provisions touch on all manner of topics,
ranging from domestic relations to tort remedies and tax law. See, e.g., Ohio Rev.
Code 3111.97 (parentage rules for embryo donation); Ohio R. Civ. P. 19.1
(compulsory joinder where husband or wife injured); Ohio Rev. Code
5747.08(E) (joint tax returns). It is rational for Ohioans to determine that if
same-sex marriage is to be recognized in this State, such revision should not be
undertaken in a piecemeal fashion by a judicial decree but in a systematic fashion
through a comprehensive legislative change.
And that uniformity rationale can hardly be thought to proceed from
illegitimate animus; in fact, the opposite could be true, as the interest in uniformity
could serve a fundamental goal of fairness. If Ohio had instead chosen to
recognize only out-of-state same-sex marriage, as the Plaintiffs advocate here, it
would essentially have approved same-sex marriage only for those couples who
possess the resources necessary to navigate another States marriage laws and the
wherewithal required to travel to be married. Ohioans could have preferred that
same-sex marriage be legal for all purposes in the State or for none, which
provides yet another rational basis for the marriage laws Ohio has enacted.
At days end, J ustice Brandeiss metaphor of the States as the laboratories of
democracy remains powerfuland rationaltoday. See New State Ice Co. v.
Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J ., dissenting). It is rational for
50
Ohios voters and lawmakers to determine how revision efforts in other States
progress, to assess the results of such changes, and then to take them into account
in setting a future uniform policy. See Jackson, 884 F. Supp. 2d at 1118.
V. OHIOS DECISION TO RECOGNIZE ONLY TRADITIONAL
MARRIAGE DOES NOT VIOLATE THE FULL FAITH AND
CREDIT CLAUSE AS APPLIED TO THE NEW YORK PLAINTIFFS
The district court alternatively found that the Full Faith and Credit Clause
requires Ohio to list both of the New York Plaintiffs on their adopted childs
amended birth certificate because of the New York adoption decree. Doc.28,
Order, at Page ID #854-56 n.i. The district court was wrong for two reasons.
A. Section 1983 does not provide a vehicle for enforcing the
requirements of the Full Faith and Credit Clause
1. The New York Plaintiffs claim under the Full Faith and Credit
Clause fails because, unlike their equal-protection and due-process claims, this
claim is not enforceable through a 1983 cause of action. Many factors support
that conclusion.
Section 1983s Requirement of a Federal Right. [T]o seek redress through
1983, . . . a plaintiff must assert the violation of a federal right, not merely a
violation of federal law. Blessing v. Freestone, 520 U.S. 329, 340 (1997); Golden
State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989). The Full
Faith and Credit Clause does not create federal rights; it directs courts to enforce
the rights created by other lawsmost commonly, the preclusion laws of a State
51
in which a judgment arises. Howlett v. Rose, 496 U.S. 356, 381 (1990) (citation
omitted). In other words, the clause only prescribes a rule by which courts,
Federal and state, are to be guided when a question arises in the progress of a
pending suit as to the faith and credit to be given by the court to the public acts,
records, and judicial proceedings of a State other than that in which the court is
sitting. Thompson v. Thompson, 484 U.S. 174, 182-83 (1988) (quoting
Minnesota v. N. Secs. Co., 194 U.S. 48, 72 (1904)). And since the duty of
affording full faith and credit to a judgment falls on courts, it is incoherent to speak
of vindicating full faith and credit rights against non-judicial state actors. Adar,
639 F.3d at 154.
Implied Rights of Action. In addition, [a] courts role in discerning whether
personal rights exist in the 1983 context should . . . not differ from its role in
discerning whether personal rights exist in the implied right of action context.
Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002). It is thus notable that the
Supreme Court has already held that the Full Faith and Credit Clause, in either its
constitutional or statutory incarnations, does not give rise to an implied federal
cause of action. Thompson, 484 U.S. at 182. In Thompson, the Court asked
whether the statute at issue (the Parental Kidnaping Prevention Act of 1980)
created an implied right of action for determining the validity of state custody
decisions. Id. at 176-78. The Court held that the statute created no such right
52
because Congress modeled it under a full faith and credit approach like the Full
Faith and Credit Clause. Id. at 182. Accordingly, it was most naturally construed
to furnish a rule of decision for courts to use in adjudicating custody disputes and
not to create an entirely new cause of action. Id. at 183 (emphasis added).
Thompsons holding that the Full Faith and Credit Clause does not create an
implied right of action illustrates that it also does not create federal rights
actionable under 1983. See Gonzaga, 536 U.S. at 285.
Federal-Question Jurisdiction. The Supreme Court has also held that the
Full Faith and Credit Clause is the only provision of the Constitution that does not
establish federal-question jurisdiction under 28 U.S.C. 1331. See N. Secs. Co.,
194 U.S. at 72 ([T]o invoke the rule which [the Full Faith and Credit Clause]
prescribes does not make a case arising under the Constitution or laws of the
United States.); see also 13D Charles Alan Wright, et al., Federal Practice and
Procedure 3563, at 214 (3d ed. 2008) ([R]eliance on the Full Faith and Credit
Clause of Article IV, Section 1, of the Constitution will not invoke federal question
jurisdiction.); Adar, 639 F.3d at 157 & n.7. It is difficult to see how the Full Faith
and Credit Clause creates a federal right for purposes of 1983 if it does not even
create a federal question for purposes of 1331. After all, 1331 exists to
provide a federal forum for plaintiffs who seek to vindicate federal rights. Exxon
Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005).
53
Supremacy Clause. An analogy to the Supremacy Clause cements this
conclusion. The Supreme Court has held that the Supremacy Clause, of its own
force, does not create rights enforceable under 1983. Golden State, 493 U.S. at
107. That clause is not a source of any federal rights; it merely secure[s]
federal rights by according them priority whenever they come in conflict with state
law. Id. (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613
(1979)). A similar analysis applies under the Full Faith and Credit Clause. It, too,
does not create rights; it merely secures the state-law rights that a judgment creates
in the State of the judgment. See Adar, 639 F.3d at 153. J ust as the Supremacy
Clause establishes a choice-of-law rule (that federal laws trump state laws), the
Full Faith and Credit Clause establishes a different choice-of-law rule (that one
States preclusion rules apply over anothers). Because the Supreme Court has
held that 1983 cannot be used to enforce the Supremacy Clause, it follows that
1983 cannot be used to enforce the Full Faith and Credit Clause.
Circuit Precedent. Finally, the circuits that have considered the issue agree
that 1983 does not constitute a vehicle to enforce the Full Faith and Credit
Clause. See Adar, 639 F.3d at 152-57; Stewart v. Lastaiti, 409 F. Appx 235, 235-
36 (11th Cir. 2010). Adar is most instructive. There, as noted, an unmarried same-
sex couple adopted a Louisiana child in New York, and the Louisiana officials
refused to place both names on the birth certificate. 639 F.3d at 149-50. The
54
same-sex couple brought a 1983 suit to enforce the Full Faith and Credit Clause
with respect to the New York adoption decree. Id. The Fifth Circuit held that full-
faith-and-credit obligations did not give[] rise to a right vindicable in a 1983
action. Id. at 153. The Full Faith and Credit Clause created a constitutional
rule of decision [binding] on state courts, not an individual right enforceable
against non-judicial state actors. Id. at 153-54; see Stewart, 409 F. Appx at
235-36 (holding that trial court properly dismissed a 1983 full-faith-and-credit
claim for lack of subject-matter jurisdiction). The only difference between this
case and Adar is that the Plaintiffs here were married under New York law
whereas the plaintiffs in Adar were not. But that distinction makes no difference
for this claim, which is predicated on the adoption decree, not the couples marital
status. This Court should follow Adar rather than create a circuit split.
2. The district court mistakenly resolved this question. It indicated that
the Fifth Circuit stands alone in holding that federal claims to enforce rights
conferred by the Full Faith and Credit Clause are unavailable under 1983 against
non-judicial state officials. Doc.28, Order, at Page ID #855 n.i. But the only
other decision to consider this issuean Eleventh Circuit decisionagrees with
the Fifth Circuit. Stewart, 409 F. Appx at 235-36. All but one of the cases that
the district court cited, by comparison, either reject 1983 claims on other grounds
without considering this issue, see Rosin v. Monken, 599 F.3d 574, 575 (7th Cir.
55
2010); United Farm Workers v Ariz. Agric. Empt Relations Bd., 669 F.2d 1249,
1257 (9th Cir. 1982); Lamb Enters., Inc. v. Kiroff, 549 F.2d 1052, 1059 (6th Cir.
1977), or merely state that 1983 should be broadly construed. Golden State,
493 U.S. at 105. That liberal construction rule cannot create federal rights that
do not exist; it did not, for example, lead the Supreme Court to hold that the
Supremacy Clause establishes a federal right enforceable under 1983. Id. at 107.
The remaining decisionFinstuen v. Crutcher, 496 F.3d 1139 (10th Cir.
2007)also does not help the district court. See Doc.28, Order, at Page ID #856
n.i. Finstuen held that a state statute refusing to give any recognition to out-of-
state adoptions by same-sex couples violated the Full Faith and Credit Clause.
But, as the Fifth Circuit noted, Adar, 639 F.3d at 156-57, Finstuen did not cite
1983 once, let alone consider whether it provides a vehicle for asserting full-
faith-and-credit claims. See Finstuen, 496 F.3d at 1143-53. And even if this issue
presents a (non-waivable) jurisdictional question rather than a (waivable) merits
question, the Supreme Court has repeatedly indicated that [w]hen a potential
jurisdictional defect is neither noted nor discussed in a federal decision, the
decision does not stand for the proposition that no defect existed. Ariz. Christian
Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448 (2011) (citing cases). Finstuen is
thus not even binding with respect to this issue in the Tenth Circuit.
56
B. Even if 1983 could enforce the Full Faith and Credit Clause,
Ohios decision not to put both of the New York Plaintiffs names
on an amended birth certificate did not violate the clause
Even assuming (wrongly) that a plaintiff may bring a full-faith-and-credit
claim under 1983, Ohios refusal to list both of the New York Plaintiffs names
on a birth certificate does not violate the Full Faith and Credit Clause. First,
[f]ull faith and credit . . . generally requires every State to give to a judgment at
least the res judicata effect which the judgment would be accorded in the State
which rendered it. Durfee v. Duke, 375 U.S. 106, 109 (1963). Yet it is black-
letter law that neither issue preclusion nor claim preclusion applies to parties who
did not take part in the prior proceeding. See Bruni v. Cnty. of Otsego, 192 A.D.2d
939, 941 (N.Y. App. Div. 1993) (noting that neither res judicata, collateral
estoppel nor the principle of law of the case binds [the City] . . . because the City
was not a party to [the prior] proceeding); see also, e.g., In re Thompson, 30
A.D.3d 154, 155 (N.Y. App. Div. 2006); Liberty Healthcare Mgmt. Grp. Inc. v.
Fahey, 257 A.D.2d 964, 965 (N.Y. App. Div. 1998). Because the state actor here
(the Interim Director of the Ohio Department of Public Health) was not a party in
the New York proceeding, New York preclusion rules simply do not limit him.
Second, [f]ull faith and credit . . . does not mean that States must adopt the
practices of other States regarding the time, manner, and mechanisms for enforcing
judgments. Baker v. Gen. Motors Corp., 522 U.S. 222, 235 (1998).
57
Enforcement measures do not travel with the sister state judgment as preclusive
effects do; such measures remain subject to the evenhanded control of forum law.
Id. So, for example, a divorce order in Nevada does not prevent a New York court
from requiring a husband to continue to pay alimony, see Estin v. Estin, 334 U.S.
541, 544-45 (1948); an adoption decree in Louisiana does not prohibit an Alabama
court from excluding adopted children from recovering under a fathers estate, see
Hood v. McGehee, 237 U.S. 611, 615 (1915); a Michigan order barring an
individual from testifying in related proceedings does not prohibit a Missouri court
from compelling the individuals testimony in one such proceeding, see Baker, 522
U.S. at 239-40; and a New York criminal judgment that permitted the defendant
not to register as a sex offender cannot prohibit Illinois from requiring him to
register in Illinois based on the same conviction, Rosin, 599 F.3d at 577.
This analysis applies here. See Adar, 639 F.3d at 159-61. [T]he New York
adoption decree cannot compel within [Ohio] an official act within the exclusive
province of that state. See id. at 160 (quoting Baker, 522 U.S. at 235). Ohio is
not refusing to recognize the New York adoption decree. As Plaintiffs own
evidence demonstrates, Ohio is willing (consistent with Ohio law) to reissue a birth
certificate for the New York Plaintiffs adopted child under Ohio Rev. Code
3705.12 listing either one of them. See Doc.4-6, Letter, at Page ID #73-74. This
58
is the same treatment an unmarried opposite-sex couple would receive. See id.;
Ohio Rev. Code 3107.03.
Third, as noted above, see Part III.B, the Full Faith and Credit Clause allows
Congress to establish the effect of a judicial proceeding, U.S. Const. art. IV, 1,
and Section 2 of the federal DOMA says that Ohio need not give effect to any . . .
judicial proceeding . . . respecting a relationship between persons of the same
sex . . . . 28 U.S.C. 1738C. Section 2 of DOMA, therefore, permits Ohio to
determineconsistent with the Full Faith and Credit Clausewhether to credit
judicial orders respecting same-sex marriages. Here, Ohio has done precisely that.
Ohio law prohibits the State from recognizing the New York Plaintiffs same-sex
marriage, and instead, Ohio treats them as any other unmarried individuals for the
purposes of reissuing an Ohio birth certificate. Because Section 2 of DOMA
permits Ohios decision, the Full Faith and Credit Clause does as well.

59
CONCLUSION
The Court should reverse the district courts judgment, dissolve its
permanent injunction, and direct it to enter a judgment in favor of Defendant-
Appellant Lance D. Himes.

Respectfully submitted,

MICHAEL DEWINE (0009181)
Ohio Attorney General

/s/ Eric E. Murphy
ERIC E. MURPHY* (0083284)
State Solicitor
*Counsel of Record
BRIDGET E. COONTZ (0072919)
Assistant Attorney General
614-466-8980; 614-466-5087 fax



CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that this brief complies
with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B):
1. Exclusive of the portions of the brief exempted by 6th Cir. R. 32
(b)(1), the brief contains 13,980 words.

2. The brief has been prepared in monospaced (nonproportionally
spaced) typeface using a Times New Roman, 14 point font.

/s/ Eric E. Murphy
Eric E. Murphy
State Solicitor
614-466-8980; 614-466-5087 fax



CERTIFICATE OF SERVICE
I certify that a copy of this brief has been served through the Courts
electronic filing system on this 10th day of J une, 2014. Electronic service was
therefore made upon all counsel of record on the same day.

/s/ Eric E. Murphy
Eric E. Murphy
State Solicitor
614-466-8980; 614-466-5087 fax



DESIGNATION OF DISTRICT COURT RECORD
Defendant-Appellant Lance D. Himes designates the following district court
documents:
Doc. No. Description of Document Page ID#
1 Complaint 1
4 Motion for Temporary Restraining Order
and Exhibits (including Docs. 4-1 to 4-8)
24
6 Briefing Schedule 93
15 Answer to Complaint 116
17 Notice of Filing Declaration (including Docs.
17-1 to 17-9)
131
18-2 Plaintiffs Proposed Order 600
19 Stipulations (including Docs. 19-1 to 19-4) 603
28 Final Order Granting Permanent Injunction
and Declaratory J udgment
814
29 Declaratory J udgment and Permanent
Injunction
859
32 Order on Stay Pending Appeal 880
33 Notice of Appeal 884
34 Transcript of Proceedings 887


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