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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Michelle Gibson, et al., Plaintiffs, vs. Lance Himes, et al., Defendants. : : : : : : : : : Case No. Judge:
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND MEMORANDUM IN SUPPORT
Pursuant to Fed. R. Civ. Pro. 65, Plaintiffs hereby move for a temporary restraining order and preliminary injunction prohibiting the Defendants from enforcing Ohio Rev. Code §3101.01(C) and Art. XV, §11 of the Ohio Constitution as applied to their requests for Ohio marriage licenses. Specifically, Plaintiffs seek an order requiring Defendants to issue marriage licenses to the Plaintiffs upon their application, duly record their marriages once properly solemnized, and extend to Plaintiffs all the rights and responsibilities of marriage under Ohio law. A proposed order is attached as Exhibit 1. Notice will be provided to the Defendants but due to the daily violation of Plaintiffs‟ constitutional rights, Plaintiffs request an expedited hearing and an expedited ruling on the merits. Plaintiffs request that bond be set at $1.00. MEMORANDUM OF LAW IN SUPPORT I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2 (3) This civil rights case is facial challenge to the Ohio constitutional and statutory provisions that restrict same-sex couples from marrying. Marriage is the most important
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commitment many adults make in their lives. Marriage forms the foundation of families, and secures spousal and parental rights and duties. Marriage supplants the state as the primary financial safety-net for the married couple and their children. By purposefully denying same-sex couples the ability to get married, Ohio attacks the dignity of those couples and imposes life-long harms on their families. This Court should act to stop this unjust discrimination now. Plaintiffs include six same-sex couples who range widely in age, race and in other respects. They mirror the diversity of opposite-sex couples in Ohio. Only because all of these relationships are between two people of the same-sex, Ohio will not issue them marriage licenses or extend to them the legal rights and responsibilities of marriage. This lawsuit seeks to compel Ohio to allow these couples access to marriage and declare the marriage ban facially unconstitutional in all respects. As set out in detail below, this Court should follow the lead of the Supreme Court in Windsor and the ten district court decisions since that ruling and hold the marriage ban unconstitutional as a violation of due process and equal protection. Through this lawsuit this court should open the door to marriage to all same-sex couples across Ohio. II. STATEMENT OF FACTS A. Michelle Gibson and Deborah Meem1 Plaintiffs began dating in 1995 and have had a loving and fulfilling relationship ever since. They are both professors at the University of Cincinnati, where they met. They would like to be married in Ohio, where they live, as do their family and friends. Michelle and Deborah have two grandchildren and they believe it is particularly important for their grandchildren to see their relationship treated equally with opposite-sex couples.
See Declaration of Michelle Gibson.
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In October, 2008, Michelle was diagnosed with multiple sclerosis. In 2011, she began using a wheelchair. For the past two years, she has used a wheel chair full time. She has recently had some health issues that required her to spend time in a rehabilitation facility. Although she has returned home, it is very likely that at some time in the future, she may need 24 hour home-care or even need to live in an extended care facility. Because of Michelle‟s illness, it is important that their relationship be legally recognized very soon. They have drafted documents so that Deborah can care for Michelle and make health care and financial decisions for her if she is unable, but they worry that those documents may not be honored. Given the wide range of health care staff and others who must refer to these wordy, technical documents, their fear is very reasonable. Deborah and Michelle need the protections that a state-recognized marriage would provide. B. Heather Apple and Mary K. Koehler2 Heather Apple and Mary K. Koehler (“Mary Kay”) began dating in 2004, soon fell in love, and moved in together in 2006. They discussed raising children together but wanted to get married first, so they had a commitment ceremony in 2008. It was the best they could do because Ohio bans same-sex marriage. In 2009, they began the fertility process, and in 2010 Heather gave birth to their first daughter. Mary Kay gave birth to their second daughter in 2012. Heather and Mary Kay would like to be legally married. They want their family to have the same legal and financial stability that opposite-sex married couples enjoy. This is especially important because they are raising children together.
See Declaration of Heather Apple.
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Ronald Kastner Beck and David Beck3 Ronald (“Ronny”) and David (“Dave”) met at a fitness gym, and began dating in March
2001. In 2006, Ronny and Dave were on vacation in Hawaii with Dave‟s parents and while admiring an amazing view, they were overwhelmed by the beautiful setting and the beauty of their relationship. They had previously talked about adopting children and how it was important that they be 100% committed to each other beforehand. At that overlook, they made the commitment to marry. They knew that Ohio would not allow them to legally wed, so they planned a commitment ceremony. Ronny and Dave were both raised as Catholics. To prepare for the lifelong commitment they were making, they participated in a three month marriage counseling process called Pre-Cana. On June 9, 2006, Ronny and Dave exchanged vows before God, their family, and their friends. Their priest was not allowed to officiate because of the Catholic Church‟s position on homosexuality, but he attended as a guest. They soon began foster-to-adopt certification and in December, 2007, a six month old little boy was placed in their care as an emergency placement after his birth mother tried to commit suicide. Because only one of them was allowed by Ohio law to be his adoptive parent, Ronny became his legal father through adoption. When he was almost three years old, their son was diagnosed with autism. He required extensive early intervention therapy that included 40 hours a week of tutoring for over two years. He has transitioned to full day kindergarten. He can speak and read but he will require an educational intervention plan throughout his education. In March, 2009, another little boy was placed in Ronny and Dave‟s care on an emergency basis. He came to them at six months old, directly from the hospital where he had undergone a double hernia surgery. His birth mother was homeless and unable to care for him. Three or four
See Declaration of Ronald Beck.
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months after they began fostering their second son and before the adoption process began, Ronny and Dave learned that their son would have multiple developmental delays. Ronny and Dave decided that they were just like any other parents who do not know beforehand the types of challenges their birth child may face. You love them anyway and you just figure it out. Giving him back was not an option because he was their son now. Dave became his adoptive parent. Although Ronny and Dave have drafted extensive paperwork to try to protect their family, they are always fearful of what would happen if one of them died. They worry about being separated from one of their children or having their sons separated from each other. They worry about their sons‟ medical insurance and the disposition of the deceased‟s social security benefits. These and many other uncertainties would be resolved if Ronny and Dave were legally married just like an opposite-sex couple in their situation. Ronny has stopped working to stay at home and care for their sons with special needs. Ronny lost medical insurance coverage because Dave‟s plan does not cover domestic partners, only spouses. They have had to purchase an individual health insurance plan for Ronny. Ronny and Dave would like to marry in Ohio and have that marriage legally recognized. D. Andrew Hickam and Ethan Fletcher4 Andrew and Ethan are both 29 years old and they are in love. They first met when they lived across the street from each other in Over-the-Rhine. They would say hello when they bumped into each other walking around the neighborhood. In December, 2011, Andrew invited Ethan to dinner. They soon discovered they have a lot in common. They are close to their families, treasure their friends, and love music. Ethan sang with the Cincinnati Men‟s Chorus, and Andrew subsequently joined. In the spring of 2013, Andrew and Ethan moved in together.
See Declaration of Andrew Hickam.
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On New Year‟s Eve 2013, Ethan told Andrew that he had planned a house party at the home of one of their friends. Before they left for the party, Ethan got down on one knee and asked Andrew to marry him. Of course Andrew said yes and they exchanged rings that Ethan had bought for both of them. The “house party” was really a “happy engagement party,” because their friends were in on the surprise. Andrew and Ethan would like to marry soon. Both Andrew‟s mother and Ethan‟s grandmother are elderly. They all live close to each other and it is very important to Andrew and Ethan that they attend the wedding. Because of their age, it would be a significant hardship, if not impossible, for them to travel a great distance. If Andrew and Ethan could be married in Hamilton County, Andrew‟s mother and Ethan‟s grandmother could attend. It is important to Andrew and Ethan that they get married and not just have a commitment ceremony. They want a marriage that is on equal terms with opposite-sex couples. E. Gary Goodman and Karl Rece, Jr.5 Gary and Karl met in 2001 at King‟s Island Pride Night. They fell in love immediately. Gary has twin boys and they soon embraced Karl as a father. In 2011, on their ten-year anniversary they went back to Kings Island for Pride Night and Gary proposed to Karl in front of many friends and family. Soon after their engagement, they began planning their wedding. They have created a guest list of 350 people. They have a date, theme, colors, and décor. They have even bought wedding favors for their guests. The only thing they don‟t have is the right to be married at home, in Ohio. Gary and Karl‟s family and friends love and support them and want to attend their wedding, but will only be able to do that if they are married in Ohio. Gary and Karl‟s friends and family are not wealthy and cannot afford to travel to a destination wedding. If they get
See Declaration of Gary Goodman.
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married in Ohio, they expect to have over 300 guests. If they are married out of state, they would be lucky to have 10 guests attend. Gary and Karl want to celebrate their marriage at home, in front of all their family and friends. F. Rhonda Craig and Kendra Dukes6 Rhonda and Kendra met in 1997, started dating in 2003, and moved in together in 2004. Rhonda and Kendra always wanted children. Together they now have two children, a son and a daughter. Kendra, Rhonda, and their children have been discussing the importance of marriage. To them, marriage is a public expression of how they feel about their relationship and their family. Kendra and Rhonda are African-American, and feel that marriage for same-sex couples is an issue comparable to voting rights. It is not that you have to vote or get married, but they should have the same right to vote and marry that other citizens have. Kendra and Rhonda would like to get married. They believe it would be an important lesson for their children that you should not be judged by your color or by who you love. G. Plaintiffs Cannot Get Married in Ohio Plaintiffs cannot get married in Ohio. Ohio statutory law excludes same-sex couples from marriage. Ohio Rev. Code § 3101.01(A) states that “a marriage may only be entered into by one man and one woman.” Section 3101.01(C)(1) declares that “any marriage between persons of the same sex is against the strong public policy of this state.” Further, “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.” Id. The Ohio Constitution also excludes same-sex couples from marriage. OH Const. Art. XV, §11 states, “Only a union between one man and one woman may be a marriage valid in or
See Declaration of Rhonda Craig.
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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.” To be married in Ohio, a couple must together appear in person at the county probate court where one of them resides or where they want to be married in Ohio. O.R.C. § 3101.05(A). The probate judge may only grant the marriage license if he is “satisfied there is no legal impediment” to the marriage. Once any of these couples apply for a marriage license in person, Defendant Judge Cissell will be required to deny them a marriage license since the legal impediment of being of the same sex would prohibit him from issuing a marriage license. Id. Furthermore, the Plaintiffs may not even apply for a marriage license without committing a crime. The application requires the marriage applicants to swear under oath that “there is no legal impediment to their marriage.” Plaintiffs, knowing the prohibitions in Ohio law for samesex couples to marry, cannot swear to this statement. If any were to, they would be subject to criminal prosecution for the crime of falsification under O.R.C. § 2921.13 and 3101.99. O.R.C. § 3101.05 (B). Plaintiffs are prohibited from even having their marriage solemnized since no marriage shall be solemnized without the issuance of a marriage license. O.R.C.§ 3101.09. Defendant Mr. Himes is the interim director of the Ohio Department of Health (“ODH”). The Ohio Department of Health Office of Vital Statistics registers all marriages that take place in Ohio. O.R.C. § 3705.21. The ODH Director is in charge of the system of vital statistics, enforces the laws related to registering vital statistics, including marriages, and issues instructions and adopts rules as necessary. O.R.C. § 3705.02. The ODH Director prescribes the forms to be used in the system of vital statistics, including the certified abstract of marriage. O.R.C. § 3705.02; O.A.C. § 3701-5-02 (A)(10). Only those forms furnished or approved by the 8
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ODH Director may be used. O.A.C. § 3701-5-02 (C). Hamilton County Probate Court‟s marriage application form requires the marriage applicants to swear there is no legal impediment to their marriage. (See sample Certified Abstract of Marriage at Exhibit 2). The ODH Director approved Hamilton County Probate Court‟s certified abstract of marriage form. Unless this Court acts to enjoin these provisions of Ohio law as unconstitutional on its face these same-sex plaintiffs will not be able to get married on an equal basis as similarly situated opposite-sex men and women. H. Need for Injunction Defendant James Cissell, Hamilton County Probate Judge must deny marriage licenses to Plaintiffs because he is required to do so under Ohio Rev. Code § 3101.01 and OH Const. Art. XV, §11. Defendant Lance Himes is the Director of the Ohio Department of Health. As such, he is in charge of the system of vital statistics, enforces the laws related to registering vital statistics, including marriages, and issues instructions and adopts rules as necessary. These actions by Defendants deny to Plaintiffs the same status and dignity that Defendants extend to similarly situated opposite-sex couples. Plaintiffs‟ inability to get married undermines the security of their relationships and their families. The State does not offer them a safety net as a couple. In the event of serious injury they may be barred by hospital staff and/or relatives from their partners‟ bedsides due to lack of legally-recognized relationship status. If they are injured through the acts of another, the uninjured partner would be denied any loss of consortium by the courts. A surviving partner could not take through intestacy or by electing against her partner‟s estate. In Ohio, like anywhere else, life can end in an instant, and after decades of love and commitment a surviving partner can be left with nothing. 9
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The status of marriage has unique social significance and recognition. Without access to the familiar language and label of marriage, Plaintiffs are unable to instantly or adequately communicate to others the depth or permanence of their commitment, or to obtain respect for that commitment as others do simply by invoking their married status or labeling the person they love “my husband” or “my wife.” Plaintiffs‟ exclusion from marriage frustrates their life goals and dreams, their ability to fulfill their personal values, their happiness and self-determination. For Plaintiffs, marriage is a deeply held value. The Plaintiffs wants to be married in Ohio, their home state, where they have close family and friends. Some of the Plaintiffs are engaged; one couple has been engaged for three years. They have an urgent need to affirm their commitment to one another before their children, their family, their friends, and their community. Ohio treats Plaintiffs as strangers, rather than families, demeans their deepest relationships, and stigmatizes their children by labeling their families as second class. See Windsor, 133 S. Ct. at 2694. This court should take judicial notice of the factual record in Obergefell v. Wymyslo, 962 F.Supp.2d 968 (S.D. Ohio 2013) and Henry v. Himes, __ F. Supp.2d. __ (2014), 2014 WL 1418395 (April 14, 2014), including the expert declarations filed by the parties. There is no adequate remedy at law. The Plaintiffs and their families are all suffering irreparable harm by being denied their fundamental right to marry. There is no harm to the state or local governments by granting a declaratory judgment and an injunction prohibiting Defendants‟ enforcement of the challenged statute and Ohio constitutional amendment as applied to the plaintiffs with respect to the issuance of marriage licenses. The public interest is clearly served by this Court ordering Ohio to treat Plaintiffs the same as similarly situated opposite-sex couples who wish to marry. In fact, the State would benefit from placing the responsibilities of 10
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marriage upon the Plaintiffs who would be required to financially support each other and their shared minor children while married and in the event of a divorce. Only prompt action by this Court ordering declaratory and injunctive relief will serve the public interest. III. A. ARGUMENT
Standard for Granting Preliminary Relief. The standard for evaluating a request for preliminary injunctive relief under Rule 65 is
well established in this Circuit. Though, there is no “rigid and comprehensive test for determining the appropriateness of preliminary injunctive relief,” Tate v. Frey, 735 F.2d 986, 990 (6th Cir. 1984) (citations omitted), the court should consider the following four factors: (1) Whether the party seeking the injunction has shown a substantial likelihood of success on the merits; (2) Whether the party seeking the injunction will suffer irreparable harm absent the injunction; (3) Whether the injunction will cause others to suffer substantial harm; (4) Whether the public interest would be served by the preliminary injunction. See also, Obergefell v. Kasich, 2103 WL 381462 (July 22, 2013) *2; Overstreet v. Lexington– Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir.2002); Memphis Planned Parenthood, Inc. v. Sunquist, 175 F.3d 456, 460 (6th Cir. 1999); Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 n.3 (6th Cir. 1991). See also Jane Doe v. Barron, 92 F.Supp.2d 694, 695 (S.D. Ohio 1999); Women’s Medical Professional Corp. v. Voinovich, 911 F. Supp. 1051 (S.D. Ohio 1995), aff‟d, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998). These factors are “to be balanced and [are] not prerequisites that must be satisfied . . . they are not meant to be rigid and unbending requirements.” McPherson v. Michigan High School Athletic Association, 119 F.3d 453, 459 (6th Cir. 1997) (en banc). A finding of irreparable injury “is the single most important prerequisite that the Court must examine when ruling upon a motion for preliminary injunction.”
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Even if the Court is not certain that a plaintiff is likely to succeed on the merits, a preliminary injunction is still appropriate where the plaintiff shows “„serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant,‟” DeLorean, 755 F.2d 1223, 1229 (quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)), or if “the merits present a sufficiently serious question to justify further investigation,” DeLorean, 755 F.2d at 1230. In this case, as thoroughly set out below and in the accompanying declarations, the plaintiffs meet the test for preliminary relief. Their likelihood of success on the merits, their irreparable harm, the balance of hardships, and the public interest all strongly favor the issuance of an injunction. B. Plaintiffs Have a Substantial Likelihood of Success on the Merits. Plaintiffs are likely to succeed on the merits in part because this case follows several recent court decisions holding that states violate the Constitution when they refuse to allow or recognize same-sex marriages. The most significant decision was the Supreme Court ruling in U.S. v. Windsor, 133 S. Ct. 2675 (June 26, 2013). In Windsor, the issue was the federal Defense of Marriage Act (“DOMA”), which denied recognition to same-sex marriages for the purposes of federal law. This included marriages from the 12 states and District of Columbia where same-sex couples could legally marry. The Court ruled that the federal government‟s refusal to recognize marriages between same-sex couples legally performed in those states violated equal protection and due process principles guaranteed by the Fifth Amendment. The Supreme Court could have based its decision on Federalism principles, but it did not. Instead, it held Congress to account for its “bare congressional desire to harm a politically unpopular group,” and gave federal DOMA careful consideration as a law 12
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“motivated by an improper animus or purpose” that created “[d]iscrimination of an unusual character.” Id. at 2693 (internal quotations omitted). The Court detailed numerous rights and responsibilities incidental to marriage and found that DOMA divests “couples of the duties and responsibilities that are an essential part of married life and that they in most cases would be honored to accept were DOMA not in force.” Id. at 2695. The Court also described how discriminatory marriage laws affect families with same-sex parents: “The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, ... and it humiliates … children now being raised by same-sex couples.” Windsor, 133 S. Ct. at 2694 (internal citations omitted). The Court described how discrimination against same-sex couples has an insidious effect on their children: “[It] makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Id. The Windsor Court made it clear that governments harm children when they treat their parents‟ love and commitment as worthless. Refusing to recognize a lawful marriage harms the entire family. Id. In a vigorous dissent, Justice Scalia provided the first interpretation of the majority decision. He predicted that lower courts applying the Windsor decision would use it to invalidate state laws prohibiting and refusing to recognize same-sex marriages. Id. at 2710. His prediction has proved accurate. Since the Windsor decision, federal courts in Michigan, Texas, Illinois, Virginia, Oklahoma, and Utah have ruled state DOMA laws unconstitutional and required those states to celebrate and/or recognize marriages of same-sex couples. DeBoer v. Snyder, No. 12-CV-10285, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014) (permanently enjoining Michigan anticelebration provisions on equal protection grounds); De Leon v. Perry, No. SA-13-CA-0098213
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OLG, 2014 WL 715741, at *1, *24 (W.D. Tex. Feb. 26, 2014) (preliminarily enjoining Texas anti-celebration and anti-recognition provisions on equal protection and due process grounds); Illinois Lee v. Orr, No. 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) (declaring Illinois celebration ban unconstitutional on equal protection grounds); Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978, at *23 (E.D. Va. Feb. 13, 2014) (finding Virginia‟s anticelebration and anti-recognition laws unconstitutional on due process and equal protection grounds, and preliminarily enjoining enforcement); Bishop v. United States ex rel. Holder, No. 04-CV-848-TCK-TLW, 2014 WL 116013, at *33-34 (N.D. Okla. Jan. 14, 2014) (permanently enjoining Oklahoma‟s anti-celebration provisions on equal protection grounds); Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6697874, at *30 (D. Utah Dec. 20, 2013) (permanently enjoining Utah anti-celebration provisions on due process and equal protection grounds). In Tennessee, Kentucky, and Ohio, federal courts have also found state DOMA laws unconstitutional and required those states to recognize marriages legally performed in other states. Henry v. Himes, __ F. Supp.2d. __ (2014), 2014 WL 1418395 (April 14, 2014), (permanently enjoining enforcement of Ohio‟s anti-recognition provisions on due process and equal protection grounds); (Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 997525, at *6, *9 (M.D. Tenn. Mar. 14, 2014) (preliminarily enjoining enforcement of Tennessee anti-recognition provisions, on equal protection grounds); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 WL 556729, at *1 (W.D. Ky. Feb. 12, 2014) (declaring Kentucky‟s anti-recognition provisions unconstitutional on equal protection grounds); Obergefell, 2013 WL 6726688, *23-24 (permanently enjoining as to plaintiffs enforcement of Ohio anti-recognition provisions, on due process and equal protection grounds).
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The court in DeBoer, which is currently on appeal, found that the Michigan same-sex marriage ban “impermissibly discriminates against same-sex couples in violation of the Equal Protection Clause because the provision does not advance any conceivable legitimate state interest.” DeBoer at * 10. The DeBoer court applied the lowest level of scrutiny to Michigan‟s ban and found even under a rational basis review, the ban was not rationally related to the achievement of any of Michigan‟s purported state interests: providing an optimal environment for child rearing, proceeding with caution before altering the traditional definition of marriage, upholding tradition and morality, and federalism. Id. at * 12-17. This wave of decisions is neither surprising nor novel. The federal courts have long been the true defenders of marriage. The Supreme Court has repeatedly come to the defense of those who are denied their fundamental right to marry. That right is well established under the due process clause. “[T]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12 (1967); Henry at * 7. When that vital personal right has been denied to certain classes of individuals by the state, such discrimination has been consistently struck down as unconstitutional. See e.g., Id. (state statutes criminalizing interracial marriages violate equal protection and substantive due process rights); Turner v. Safley, 482 U.S. 78 (1987) (prison regulation requiring superintendent to approve inmate marriages unconstitutionally burdens inmates‟ right to marry); Zablocki v. Redhail, 434 U.S. 374 (1978) (Wisconsin statute requiring residents with child-support obligations to get judicial permission to marry unconstitutionally impinges right to marry). Gay and lesbian individuals are not the first minority group to be denied their right to marry by the majority, and when the majority revokes a minority‟s rights through a popular vote and then claims “because we voted so” as a legitimate reason for their 15
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discrimination, the law‟s “popular origin … does nothing to insulate the provision from constitutional scrutiny.” Debore, No. 12-CV-10285, __ F.Supp.2d__, 2014 WL 1100794 at *16. For “the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Id. (quoting West Virginia Bd. Of Ed. v. Barnette, 319 U.S. 624, 638 (1943)). Democracy can become tyranny if everything can be put to a vote. For this reason, the courts are obligated to defend the sacred ground of marriage. For the right to marry is “older than the Bill of Rights – older than our political parties.” Id. at 384 (quoting Griswold v. Connecticut, 381 U.S. 479, 486 (1965)). “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.” Id. Both the proponents and opponents of Ohio‟s marriage ban likely share this view of marriage, but regrettably they “part ways despite this shared reverence for marriage. They part over a dispute regarding who among [Ohio‟s] citizenry may exercise the fundamental right to marry.” Bostic, No. 2:13-cv-395, 2014 WL 561978, at *12. Thankfully, this dispute is destined to end, for marriage is not defined by its parties, but by their union. The Court‟s understanding of marriage, and the lesson implicit in Loving, is that the right to marry is not about the two people who claim it. Consequently the right is not modified by their race, convictions, financial obligations, or sexual orientation. The right to marry is defined by the nature of the marital union itself and the right of couples to pursue its perfection without interference by the government. The Plaintiff couples in this case seek to perfect their union 16
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through marriage and no social cause, political agenda, or popular vote can trump their constitutional right to do so. The Supreme Court also recognizes that an important part of the right to marry is the legal rights attached to marriage. “Marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock).” Turner, 482 U.S. at 96. The Windsor court recognized that federal DOMA controlled over 1,000 statutes and federal regulations. 133 S.Ct. at 2694. Ohio considers marriage status when distributing benefits under numerous entitlement programs (welfare benefits, food stamps, Medicaid, etc.). In the event of serious injury in Ohio, an unmarried same-sex partner may be barred by hospital staff and/or relatives from their partners‟ bedsides due to lack of legally-recognized relationship status. If they are injured through the acts of another, the uninjured partner would be denied any loss of consortium by the courts or the right to bring a wrongful death claim, or the right to inherit. The Plaintiff couples seek the status of legal marriage so they can gain access to these rights enjoyed by similarly situated opposite-sex couples. In Henry this Court held that the right to marry is a fundamental right, protected by the Due Process Clause of the U.S. Constitution. Henry at *7. The Court further found that Ohio‟s “marriage ban [is] facially unconstitutional and unenforceable in all circumstances on the record before it” in Henry, which record the Plaintiffs will request the Court to accept in this case. Id. Additionally, the Court found that the right to parent is a fundamental right. Id. at *9. In light of this long judicial practice of defending marriage from politics and defining the right to marry by the nature of the union not the nature of the parties, the Plaintiffs have a high 17
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likelihood of success on the merits based on the due process arguments. That likelihood is even greater given the rulings from this and other courts based on equal protection. Plaintiffs have requested that this Court take judicial notice of the extensive record in Obergefell and Henry, particularly the expert declarations, including the reports of Megan Fulcher and Susan Becker which address issues of marriage, family, and child rearing. The Obergefell court announced a view of sexual orientation long-held by psychologists, historians, and gay and lesbian individuals. In Obergefell, this Court analyzed whether classifications based on sexual orientation should be recognized as a suspect class and afforded heightened scrutiny. Id. at *13. The Court declared that the Sixth Circuit‟s prior holdings denying heightened scrutiny based on sexual orientation are no longer sound precedent. Id. The Court went on to analyze the four factors that determine whether classifications qualify as a suspect or quasi-suspect class: whether the class (1) has faced historical discrimination, (2) has a defining characteristic that bears a relation to contribute to society, (3) has immutable characteristics, and (4) is politically powerless. Id. at *14. After a thorough discussion, the Court held that “sexual orientation discrimination accordingly fulfills all the criteria the Supreme Court has identified, and thus Defendants must justify Ohio‟s failure to recognize same-sex marriages in accordance with a heightened scrutiny analysis.” Id. at *18. The defendants “utterly failed to do so.” Id. The Obergefell court is not alone in reviewing classifications based on sexual orientation using heightened scrutiny. So have district courts in Texas7 and Virginia.8 This Court also found that Ohio failed the most deferential standard of equal protection analysis because it “is engaging in „discrimination of an unusual character‟ without a rational basis for doing so.” Id. at *19 (quoting Windsor, 133
De Leon, No. 12-CV-10285, 2014 WL 1100794, *12-14. Bostic, No. 2:13-cv-395, 2014 WL 561978, at *22 fn. 16.
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S.Ct. at 1693). Thus, the court correctly held that Ohio‟s refusal to recognize same-sex marriages performed in other jurisdictions violated the Equal Protection Clause. Id. The same holds true for Ohio‟s discrimination against same-sex couples who wish to get married in Ohio. For the foregoing reasons, Plaintiffs have a substantial likelihood of success on the merits of their claims. C. Plaintiffs Are Experiencing Irreparable Harm Plaintiffs are experiencing irreparable harm. Defendants‟ denial of the right to marry to Plaintiffs imposes numerous indignities and legal disabilities. Further, the state is violating the Plaintiffs‟ fundamental right to marry the person of their choosing and to function as a family. These violations, disabilities, and indignities all constitute irreparable harm. The violation of an individual‟s fundamental constitutional rights constitutes irreparable harm as a matter of law. Obergefell, 962 F.Supp.2d at 996 (denying plaintiffs their right to marriage recognition imposes irreparable harm). See e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”); Saenz v. Roe, 526 U.S. 489, 498 (1999) (violation of right to travel interstate constituted irreparable injury); Planned Parenthood Ass'n of Cincinnati v. City of Cincinnati, 822 F.2d 1390 (6th Cir.1987) (finding irreparable injury where plaintiff has shown substantial likelihood of success on merits of constitutional challenge to abortion regulation); Amalgamated Transit Union, Local 1277, AFL-CIO v. Sunline Transit Agency, 663 F. Supp. 1560 (C.D. Cal. 1987) (violation of right to be free of unreasonable seizures during litigation constitutes irreparable harm). Defendants have also violated the married Plaintiffs‟ fundamental constitutional right to marry. “The freedom to marry has long been recognized as one of the vital personal rights 19
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essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12 (1967). The right to have your marriage entered into in one state recognized in other states is a fundamental constitutional right. Henry v. Himes, __ F. Supp.2d. __ (2014), 2014 WL 1418395 at * 7-9. (April 14, 2014). Therefore, Ohio‟s violation of this right constitutes irreparable harm as a matter of law. The Defendants have violated the fundamental constitutional rights of the Plaintiffs with minor children to care for their children without interference by the state. “The interest of parents in the care, custody, and control of their children  is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court].” Troxel v. Granville, 530 U.S. 57, 65 (2000). It is well-established under the law “that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). “A family‟s right to remain together without the coercive interference of the awesome power of the state is the most essential and basic aspect of familial privacy.” Hernandez ex rel. Hernandez v. Foster, 657 F.3d 463, 478 (7th Cir. 2011). D. An Injunction Will Not Cause Harm to the Defendants or Anyone Else. An injunction in this case will have no material effect on anyone other than the Plaintiffs. The State of Ohio will not be harmed by allowing Plaintiffs to marry. It is anticipated Ohio may argue that the state interest in preserving the traditional definition of marriage or assuring the will of the people is carried out are legitimate state interests that outweigh Plaintiffs‟ interests. However, this Court rejected such state interests in Henry, at *11-12.
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The Balance of Hardships and the Public Interest Favor Issuance of an Injunction. In constitutional cases, an inquiry into the public interest is difficult to separate from the
likelihood of success on the merits because “the public interest is promoted by the robust enforcement of constitutional rights.” Am. Freedom Def. Initiative v. Suburban Mobility for Reg. Transp., 698 F.3d 885, 896 (6th Cir. 2012). In this case, the public interest is clearly served by awarding an injunction. However, the harm imposed on committed same-sex couples by their exclusion from marriage is severe. They must meticulously keep powers of attorney, medical power of attorney, and living wills up to date and available. They have to pay lawyers to draft co-custody agreements for each child and create and update estate planning documents to achieve what opposite-sex couples achieve with a marriage license. They are denied tax benefits, public benefits and employer benefits that are tied to their status as legally married in Ohio. In Windsor, the Supreme Court stated that there were over 1,000 federal benefits that are impacted. The balance of hardships clearly favors relief for the plaintiffs. IV. CONCLUSION
This Court should issue a temporary restraining order or a preliminary injunction restraining the defendants from enforcing Ohio Rev. Code §3101.01(C) (3) and (4) and Art. XV, §11, of the Ohio Constitution as applied to all same-sex couples who wish to get married in Ohio. This includes but is not limited to such officials accepting marriage license applications, issuing marriage licenses, allowing officiates to solemnize marriages, accepting marriage certificates from persons authorized to perform marriages in Ohio, and by recording marriage licenses as a Vital Record in Ohio.
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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 firstname.lastname@example.org Attorney for Plaintiffs
/s/ Jennifer L. Branch Jennifer L. Branch #0038893 Trial Attorney for Plaintiffs Alphonse A. Gerhardstein # 0032053 Jacklyn Gonzales Martin #0090242 GERHARDSTEIN & BRANCH Co. LPA 432 Walnut Street, Suite 400 Cincinnati, Ohio 45202 Phone: 513.621.9100 Ext. 13 Fax: 513. 345-5543 email@example.com firstname.lastname@example.org email@example.com Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify all defendants were served with a copy of this Motion by email or fax service on April 30, 2014 and putative counsel for defendants have also been served by email on April 30, 2014: Bridget Coontz Constitutional Offices Assistant Section Chief Office of Ohio Attorney General Mike DeWine bridget.coontz@OhioAttorneyGeneral.gov Kimberley Vanover Riley Montgomery, Rennie & Johnson firstname.lastname@example.org David Stevenson Assistant Hamilton County Prosecutor Dave.Stevenson@hcpros.org
/s/Jennifer L. Branch
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Michelle Gibson, et al., Plaintiffs, vs. Lance Himes, et al., Defendants. : : : : : : : : Case No. 1:14-cv-347 Judge: PROPOSED TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Upon consideration of the Plaintiffs’ motion for a temporary restraining order and preliminary injunctive relief and the response of the defendant, 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 preliminary injunction. Specifically, the Court finds, that Ohio Rev. Code §3101.01(C) and Art. XV, §11, Ohio Constitution, on their face, violate rights secured by the First and Fourteenth Amendments to the United States Constitution in that same-sex couples are denied their fundamental right to marry without due process of law and are treated differently than opposite-sex couples. There is insufficient state interest to justify singling out same-sex couples and preventing their marriages, given the severe harm it imposes on the Plaintiffs. THEREFORE, it is hereby ORDERED that the motion is GRANTED and defendants Lance Himes and Judge James Cissell, 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 ORC §3101.01(C) and
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Art. XV, §11, Ohio Constitution, and must issue marriage licenses to Michelle Gibson, Deborah Meem, Heather Apple, Mary K. Koehler, Ronald Kastner Beck, David Beck, Andrew Hickam, Ethan Fletcher, Gary Goodman, Karl Rece, Jr., Rhonda Craig, and Kendra Dukes upon their application, duly record their marriages once properly solemnized, and extend to Plaintiffs all the rights and responsibilities of marriage under Ohio law.
This Temporary Restraining Order shall expire on ___________________________ 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: ________________
_______________________________ UNITED STATES DISTRICT JUDGE
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