Case: 1:13-cv-00501-TSB Doc #: 21 Filed: 09/03/13 Page: 1 of 3 PAGEID #: 127

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION JAMES OBERGEFELL and JOHN ARTHUR, et al Plaintiffs, vs. JOHN KASICH, et al, Defendants. : : : : : : : : : : : Case No. 1:13-cv-501 Judge Timothy S. Black MOTION FOR TEMPORARY RESTRAINING ORDER RE DAVID MICHENER

Pursuant to Fed.R.Civ. Proc. 65 Plaintiff David Brian Michener moves for a temporary restraining order on the same terms and for the same reasons as the temporary restraining order issued to Plaintiffs John Arthur and James Obergefell in this case. Doc. 13. Plaintiff requests that the order issue no later than Tuesday September 3, 2013 in order that the cremation of the spouse of David Brian Michener proceed as scheduled on Wednesday September 4, 2013. MEMORANDUM David Michener has been added as a plaintiff through the amended complaint. He and his husband William Herbert Ives were married on July 22, 2013 in the state of Delaware. Mr. Ives has since died. He seeks an immediate order that a death certificate issue listing Mr. Ives’ status as married and listing his name as the spouse of Mr. Ives. A. FACTS 1. David Michener and William Herbert Ives were married in Delaware on July 22, 2013. Their marriage is legally recognized in Delaware. 2. They had been together for eighteen years and they have three adopted children.

Case: 1:13-cv-00501-TSB Doc #: 21 Filed: 09/03/13 Page: 2 of 3 PAGEID #: 128

3. William died unexpectedly of natural causes at University Hospital in Cincinnati, Ohio on August 27, 2013. 4. His remains are currently at a funeral home in Cincinnati. 5. It was his request that his remains be cremated. A cremation is scheduled for Wednesday, September 4, 2013. 6. A death certificate must be issued before the cremation can be permitted. 7. Surviving spouse David Michener has requested a death certificate that reflects William’s status as married spouse and lists David as the surviving spouse. He urgently needs to bring closure to the family in a manner that respects their marriage and the wishes of the decedent to be cremated. 8. Defendant Jones has received a request to issue a death certificate reflecting the death of William Herbert Ives. She has requested, through her counsel that she be given direction from this Court on how to respond to this request. B. ARGUMENT This Court has previously issued a temporary restraining order in this case that orders that a death certificate be issued under similar circumstances that lists as married a same-sex couple married outside of Ohio. Doc. 13. A similar order is requested for plaintiff David Brian Michener for the same reasons set out in the pleadings that resulted in the temporary restraining order, Doc. 13. A proposed draft order is attached. Defendants have been given notice of this request for a temporary restraining order. Plaintiffs respectfully request that it be issued immediately.

Case: 1:13-cv-00501-TSB Doc #: 21 Filed: 09/03/13 Page: 3 of 3 PAGEID #: 129

Respectfully submitted, /s/ Alphonse A. Gerhardstein Alphonse A. Gerhardstein # 0032053 Trial Attorney for Plaintiffs Jennifer L. Branch #0038893 Jacklyn Gonzales Martin #0090242 Gerhardstein & Branch Co. LPA Attorneys for Plaintiffs 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 (513) 621-9100 (513) 345-5543 fax agerhardstein@gbfirm.com jbranch@gbfirm.com jgmartin@gbfirm.com Attorneys for Plaintiffs

Lisa T. Meeks (0062074) Newman & Meeks Co., LPA 215 E. Ninth Street, Suite 650 Cincinnati, OH 45202 phone: 513-639-7000 fax: 513-639-7011 lisameeks@newman-meeks.com Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on September 3, 2013, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I further certify that a copy of the foregoing pleading and the Notice of Electronic Filing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically. /s/ Alphonse A. Gerhardstein Alphonse A. Gerhardstein # 0032053

Case: 1:13-cv-00501-TSB Doc #: 21-1 Filed: 09/03/13 Page: 1 of 2 PAGEID #: 130

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION JAMES OBERGEFELL AND JOHN ARTHUR, Plaintiffs, v. JOHN KASICH, et. al., Defendants. : : : : : : : : : : Civil Action No. 1:13-cv-501 Judge Timothy S. Black PROPOSED TEMPORARY RESTRAINING ORDER

Upon consideration of the motion of Plaintiff David Michener for injunctive relief filed on September 2, 2013, and in light of the TRO that is presently pending in this matter, this Court has found and concluded, for the specific reasons required under Federal Rule of Civil Procedure 65(d), that Plaintiffs have shown (1) a likelihood of success on the merits on at least some of their claims, (2) that they will suffer irreparable harm if an injunction is not issued, and (3) that the balance of harms and the public interest weigh in favor of granting the temporary restraining order as applied to David Michener. Specifically, the Court finds, on the current record, that Plaintiffs have established a substantial likelihood of success on the merits of their claim that Ohio Rev. Code §3101.01(C )(3)&(4) and Art. XV, §11, Ohio Constitution, violate rights secured by the First and Fourteenth Amendments to the United States Constitution in that same sex couples married in jurisdictions where same sex marriage is valid who seek to have their out-of-state marriage accepted as legal in Ohio are treated differently than opposite sex couples who have been married in states where

Case: 1:13-cv-00501-TSB Doc #: 21-1 Filed: 09/03/13 Page: 2 of 2 PAGEID #: 131

their circumstances allow marriage in that state but not in Ohio (e.g., consanguinity or age). On this record, there is insufficient evidence of a legitimate state interest to justify this singling out of same sex married couples given the severe and irreparable harm it imposes on Michael David Ives-Michener. THEREFORE, as to David Michener, it is hereby ORDERED that the motion (Doc. ___) is GRANTED and Defendants John Kasich, Mike DeWine, Camille Jones, and their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with Defendants who receive actual notice of this Order, are TEMPORARILY RESTRAINED from enforcing Ohio Rev. Code §3101.01(C )(3)&(4) and Art. XV, §11, Ohio Constitution; and, further, the local Registrar of death certificates, including Defendant Dr. Jones and her agents, are TEMPORARILY RESTRAINED from accepting a death certificate for William Herbert Ives that does not record his status at the time of death as “married” and his “surviving spouse” as David Michener. This Temporary Restraining Order shall expire on December 31, 2013 at 5:00 p.m., unless extended by the parties and the Court. Plaintiffs shall not be required to post bond. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995). IT IS SO ORDERED. Date: _________ _______________________ Timothy S. Black United States District Judge