UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHELLE GIBSON, et al.,

Plaintiffs,

vs.

LANCE HIMES, et al.,

Defendants.

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Case No. 1:14-cv-347

Judge: Michael R. Barrett



______________________________________________________________________________

PLAINTIFFS’ CORRECTED MOTION FOR DECLARATORY JUDGMENT AND
PERMANENT

INJUNCTIVE RELIEF AND MEMORANDUM IN SUPPORT


______________________________________________________________________________














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TABLE OF CONTENTS

I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2 (a)(3)…1

II. STATEMENT OF FACTS……………………………………………………………...2
A. Michelle Gibson and Deborah Meem………………………………………………2
B. Heather Apple and Mary K. Koehler………………………………………………3
C. Ronald Kastner Beck and David Beck……………………………………………..3
D. Andrew Hickam and Ethan Fletcher……………………………………………….5
E. Gary Goodman and Karl Rece, Jr………………………………………………….6
F. Rhonda Craig and Kendra Dukes………………………………………………….6
G. Plaintiffs Cannot Get Married in Ohio…………………………………………….7

III. STANDARD FOR GRANTING INJUNCTIVE AND DECLARATORY
RELIEF………………………………………………………………………………….9

IV. ARGUMENT……………………………………………………………………………10

A. Ohio’s Marriage Bans Are Unconstitutional Under Windsor……………………11

1. The marriage bans constitute “discrimination[] of an unusual character”
requiring “careful consideration” by the Court……………………………..14
2. The primary purpose and practical effect of Ohio’s marriage bans is to
disparage and demean same-sex couples and their families………………..15
3. The state regulation of marriage is subject to constitutional limits and the
central rationale of Windsor applies here. …………………………………..18

B. Ohio’s Marriage Bans Are Subject To Heightened Scrutiny Under Both The Due
Process And Equal Protection Clauses Because They Infringe Upon Plaintiffs’
Fundamental Right To Marry……………………………………………………..18

C. Ohio’s Marriage Bans Are Subject To Heightened Scrutiny Because They Deny
Equal Protection Based On Sexual Orientation…………………………………21

1. The level of scrutiny for sexual-orientation classifications is an open question
in this Circuit. …………………………………………………………………21
2. Sexual-orientation classifications require heightened scrutiny under the
traditional criteria examined by the Supreme Court. ………………………23

D. Ohio’s Marriage Bans Are Subject To Heightened Scrutiny Because They Deny
Equal Protection Based On Sex……………………………………………………26

E. Ohio’s Marriage Bans Are Unconstitutional Under Any Standard Of Review..28

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1. Under rational-basis review, excluding same-sex couples from marriage must
have a rational relationship to a legitimate governmental purpose…………28
2. Ohio’s marriage bans cannot be justified by an asserted interested in
proceeding cautiously…………………………………………………………..30
3. Ohio’s marriage bans cannot be justified by an asserted interest in
preserving traditional discrimination…………………………………………32
4. The marriage bans cannot be justified by an asserted interest in channeling
the procreative potential of heterosexual couples into marriage……………33
5. Ohio’s marriage bans cannot be justified by an asserted interest in “optimal”
childrearing……………………………………………………………………..35

V. CONCLUSION ………………………………………………………………………..38















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TABLE OF AUTHORITIES
Page(s)
Cases
Baker v. Nelson,
409 U.S. 810 (1972) ...........................................................................................................36, 37
Baskin v. Bogan,
No. 1:14-cv-00355-RLY., 2014 WL 1814064 (S.D. Ind. May 8, 2014) .................................13
Bates v. Jones,
131 F.3d 843 (9th Cir. 1997) ...................................................................................................32
Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356 (2001) (Kennedy, J ., concurring) .......................................................................29
BellSouth Telecommunications, Inc. v. Farris,
542 F.3d 499 (6th Cir. 2008) ...................................................................................................34
Bishop v. United States ex rel. Holder,
No. 04-CV-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. J an. 14, 2014) .....................12, 35
Bostic v. Rainey,
No. 2:13-cv-395, 2014 WL 561978 (E.D. Va. Feb. 13, 2014) ....................................12, 20, 36
Bourke v. Beshear,
No. 3:13-CV-750-H, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) .............................13, 28, 36
Bowers v. Hardwick,
478 U.S. 186 (1986) .....................................................................................................19, 21, 22
Caban v. Mohammed,
441 U.S. 380 (1979) .................................................................................................................27
Califano v. Webster,
430 U.S. 313 (1977) (per curiam) ............................................................................................26
City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432 (1985) ...........................................................................................................25, 29
Craig v. Boren,
429 U.S. 190 (1976) .................................................................................................................37
Davis v. Prison Health Servs.,
679 F.3d 433 (2012) ...........................................................................................................22, 28
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iv

De Leon v. Perry,
No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014) ...........................12
De Leon v. Perry,
No. SA-13-CA-00982-OLG, slip op. (W.D. Texas Feb. 26, 2014) ...........................................9
DeBoer v. Snyder,
No. 12-CV-10285, 2014 WL 1100794 (E.D. Mich. Mar. 21, 2014) ...........................12, 32, 36
eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388 (2006) ...................................................................................................................9
Eisenstadt v. Baird,
405 U.S. 438 (1972) .................................................................................................................29
Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati,
128 F.3d 289 (6th Cir. 1997) .......................................................................................22, 23, 28
Frontiero v. Richardson,
411 U.S. 677 (1973) .................................................................................................................26
Garden State Equality et al. v. Dow et al.,
82 A.3d 336 (N.J Super. Ct. Law Div. 2013) ..........................................................................13
Geiger v. Kitzhaber,
No. 6:13-cv-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014) ......................................12
Golinski v. Office of Pers. Mgmt.,
824 F. Supp. 2d 968 (N.D.Cal. 2012) ..........................................................................22, 30, 32
Grand Trunk W. R.R. Co. v. Consol. Rail Corp.,
746 F.2d 323, 326 (6th Cir. 1984) ...........................................................................................10
Griego v. Oliver,
316 P.3d 865 (N.M. 2013) .................................................................................................13, 26
Heller v. Doe by Doe,
509 U.S. 312 (1993) .................................................................................................................32
Henry v. Himes,
__ F. Supp.2d. __ (S. D. OH 2014), 2014 WL 1418395 (April 14, 2014) ..............9, 13, 18, 21
Hicks v. Miranda,
422 U.S. 332 (1975) .................................................................................................................37
Hooper v. Bernalillo Cnty. Assessor,
472 U.S. 612 (1985) ...........................................................................................................34, 35
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Ill. State Bd. of Elec. v. Socialist Workers Party,
440 U.S. 173 (1979) .................................................................................................................37
J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127 (1994) .................................................................................................................32
Johnson v. Robison,
415 U.S. 361 (1974) ...........................................................................................................34, 35
Jones v. Bates,
127 F.3d 839 (9th Cir. 1997) ...................................................................................................31
Jordan v. Jordan,
689 N.E.2d 1005 (Ohio Ct. App. 1996) .............................................................................14, 15
Kerrigan v. Comm’r of Pub. Health,
957 A.2d 407 (Conn. 2008) .....................................................................................................24
King v. King,
63 Ohio St. 363 (1900).............................................................................................................15
Kitchen v. Herbert,
No. 2:13-cv-217, 2013 WL 6697874 (D. Utah Dec. 20, 2013) ...................................12, 27, 36
Latta v. Otter,
No. 1:13-cv-00482-CWD, 2014 WL 1909999 (D. Idaho May 13, 2014) ...............................12
Lawrence v. Texas, 539 U.S. 558 (2003) .............................................................................. passim
Lee v. Orr,
No. 13-CV-8719, 2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ................................................12
Loving v. Virginia,
388 U.S. 1 (1967) ............................................................................................................. passim
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) .........................................................................................................20
Mathews v. Lucas,
427 U.S. 495 (1976) .................................................................................................................37
Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721 (2003) .................................................................................................................27
Obergefell v. Himes,
COA No. 14-3057 at 21-22 ....................................................................................27, 33, 34, 35
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Obergefell v. Wymyslo,
962 F. Supp.2d 968 (S.D. Ohio 2013) ............................................................................. passim
Ohio Citizen Action v. City of Englewood,
671 F.3d 564 (6th Cir. 2012) .....................................................................................................9
Pedersen v. Office of Pers. Mgmt.,
881 F. Supp. 2d 294 (D. Conn. 2012) .............................................................................. passim
Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256 (1979) .................................................................................................................16
Plyler v. Doe,
457 U.S. 202 (1982) .................................................................................................................36
Romer v. Evans,
517 U.S. 620 (1996) ......................................................................................................... passim
Rutherford v. Columbia Gas,
575 F.3d 616 (6th Cir. 2009) ...................................................................................................23
Savoie v. Martin,
673 F.3d 488 (6th Cir. 2012) ...................................................................................................10
Scarbrough v. Morgan Cnty. Bd. of Educ.,
470 F.3d 250 (6th Cir. 2006) ...................................................................................................22
Sierra Club v. Korleski,
681 F.3d 342 (6th Cir. 2012) ...................................................................................................23
Smith Setzer & Sons,
20 F.3d 1311 (4th Cir. 1994) ...................................................................................................34
SmithKline Beecham Corp. v. Abbott Labs,
740 F.3d 471 (9th Cir. 2014) .......................................................................................15, 21, 23
Stemler v. City of Florence,
126 F.3d 856 (6th Cir.1997) ....................................................................................................16
Tanco v. Haslam,
No. 3:13-cv-01159, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) .......................................13
Taylor v. Ouachita Parish Sch. Bd.,
648 F.2d 959 (5th Cir. 1981) ...................................................................................................16
Turner v. Safley,
482 U.S. 78 (1987) ...................................................................................................................20
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U.S. Dep’t of Agric. v. Moreno,
413 U.S. 528 (1973) ...........................................................................................................29, 33
U.S. v. Windsor,
133 S. Ct. 2675 (J une 26, 2013)....................................................................................... passim
United States v. Salerno,
481 U.S. 739 (1987) ...................................................................................................................9
United States v. Virginia,
518 U.S. 515 (1996) .....................................................................................................21, 26, 32
Vill. of Willowbrook v. Olech,
528 U.S. 562 (2000) .................................................................................................................28
Washington v. Glucksberg,
521 U.S. 702 (1997) .................................................................................................................19
Washington v. Seattle Sch. Dist. No. 1,
458 U.S. 457 (1982) .................................................................................................................31
Wayne v. Vill. of Sebring,
36 F.3d 517 (6th Cir. 1994) .......................................................................................................9
Whitewood v. Wolf,
No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014) ...........................................12
Windsor v. United States,
699 F.3d 169 (2012) ......................................................................................................... passim
Wolf v. Walker,
No. 14-cv-64-bbc (W.D. Wisc. J une 6, 2014) .........................................................................12
Women’s Med. Prof’l Corp. v. Baird,
438 F.3d 595 (6th Cir. 2006) .....................................................................................................9
Wright v. State,
No. 60CV-13-2662 (Ark. Cir. Ct. 2nd Div. May 15, 2014) ....................................................13
Zablocki v. Redhail,
434 U.S. 374 (1978) .................................................................................................................20
Statutes
O.R.C. 3101.99 ................................................................................................................................8
O.R.C. § 2921.13 .............................................................................................................................8
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O.R.C. § 3101 ................................................................................................................................15
O.R.C. § 3101.01 ...........................................................................................................................17
O. R.C. § 3101.01(A) .................................................................................................................7, 15
O.R.C. § 3101.01(C) ..................................................................................................................1, 38
O.R.C. § 3101.01(C)(1) .............................................................................................................7, 15
O.R.C. § 3101.05(A) ........................................................................................................................7
O.R.C. § 3101.05 (B) .......................................................................................................................8
O.R.C.§ 3101.09 ..............................................................................................................................8
O.R.C. § 3705.02 .............................................................................................................................8
O.R.C. § 3705.21 .............................................................................................................................8
Other Authorities
Fourteenth Amendment .......................................................................................................1, 27, 38
Bill of Rights ............................................................................................................................20, 32
Equal Protection Clause ......................................................................................................... passim
Fed. R. Civ. Pro. 57....................................................................................................................1, 10
Fed. R. Civ. Pro. 65..........................................................................................................................1
Federal Constitution .......................................................................................................................36
LOCAL RULE 7.2 (a)(3) .................................................................................................................1
O.A.C. § 3701-5-02 (A)(10) ............................................................................................................8
O.A.C. § 3701-5-02 (C) ...................................................................................................................8
Ohio Const. Art. XV, §11 ...................................................................................................... passim
Ohio Constitution .......................................................................................................................7, 15
United States Constitution .........................................................................................................1, 38
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MOTION

Pursuant to Fed. R. Civ. Pro. 57 and Fed. R. Civ. Pro. 65, and for the reasons contained in
the memorandum in support, Plaintiffs hereby move for:
(1) a declaration that those portions of Ohio Const. Art. XV, §11 and O.R.C. §
3101.01(C), and any other provisions of the Ohio Revised Code that may be relied on
to deny same-sex couples the right to marry in Ohio (collectively the “right to marry
bans”), violate rights secured by the Fourteenth Amendment to the United States
Constitution in that same-sex couples are denied their fundamental right to marry
without due process of law and their right to equal protection; and
(2) a permanent injunction prohibiting the Defendants and their officers and agents from
(a) enforcing the right to marry bans.
I. INTRODUCTION AND SUMMARY PURSUANT TO LOCAL RULE 7.2 (a)(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
commitment many adults make in their lives. Marriage forms the foundation of families, and
secures spousal and parental rights and duties. Marriage serves as the primary financial safety-
net for married couples 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
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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, the rulings by this court in Obergefell and Henry, and the 14
district court decisions since the Windsor 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 Meem
1

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.
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 additional 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 Michelle if necessary, 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,

1
See Declaration of Michelle Gibson Doc. 5-3.
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their fear is very reasonable. Deborah and Michelle need the protections that a state-recognized
marriage would provide.
B. Heather Apple and Mary K. Koehler
2

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.
C. Ronald Kastner Beck and David Beck
3

Ronald Kastner Beck (“Ronny”) and David Beck (“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 J une 9, 2006, Ronny and Dave exchanged

2
See Declaration of Heather Apple Doc 5-4.
3
See Declaration of Ronald Beck Doc. 5-5.
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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 since 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
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
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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 Fletcher
4

Andrew Hicks and Ethan Fletcher 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.
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

4
See Declaration of Andrew Hickam Doc. 5-6.
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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 Goodman and Karl Rece J r. 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
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 Dukes
6

Rhonda Craig and Kendra Dukes 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

5
See Declaration of Gary Goodman Doc. 5-7.
6
See Declaration of Rhonda Craig Doc. 5-8.
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7

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. O. R.C. § 3101.01(A) states that “a marriage may only be entered into by one
man and one woman.” O.R.C. § 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
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 if they are out of state
residents. 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 J udge 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, if the Plaintiffs apply for a marriage license they will be
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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 same-sex 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 O.R.C.
§ 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
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 attached as Exhibit 1). 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.


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9

III. STANDARD FOR GRANTING INJUNCTIVE AND DECLARATORY
RELIEF

Plaintiffs seek a permanent injunction enjoining enforcement of the constitutional and
statutory bans on the right to marry. In this case the Plaintiffs go beyond the as-applied
challenge pursued in Obergefell and the facial challenge pursued in Henry with respect to
recognition of out of state marriages. These plaintiffs seek a declaration that the marriage bans
are facially unconstitutional, invalid, and unenforceable. In other words, “no set of
circumstances exists under which the [challenged marriage bans] would be valid,” and the bans
should therefore be struck down in their entirety. United States v. Salerno, 481 U.S. 739, 745
(1987); see also De Leon v. Perry, No. SA-13-CA-00982-OLG, slip op. at 46 n.7 (W.D. Texas
Feb. 26, 2014) (declaring that Texas’s ban on same-sex marriages and marriage recognition
“fails the constitutional facial challenge because. . . Defendants have failed to provide any – and
the Court finds no – rational basis that banning same-sex marriage furthers a legitimate
governmental interest.”).
“A party is entitled to a permanent injunction if it can establish that it suffered a
constitutional violation and will suffer continuing irreparable injury for which there is no
adequate remedy at law.” Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 583 (6th Cir.
2012); Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (citing Kallstrom
v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)); Obergefell, 2013 WL 6726688, at *4.
It lies within the sound discretion of the district court to grant or deny a motion for permanent
injunction. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); Obergefell, 2013 WL
6726688, at *4, citing Kallstrom, 136 F.3d at 1067; Wayne v. Vill. of Sebring, 36 F.3d 517, 531
(6th Cir. 1994).
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10

The existence of another adequate remedy does not preclude a declaratory judgment that
is otherwise appropriate. Fed. R. Civ. P. 57. In the Sixth Circuit, “[t]he two principal criteria
guiding the policy in favor of rendering declaratory judgments are (1) when the judgment will
serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will
terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the
proceeding.” Savoie v. Martin, 673 F.3d 488, 495-96 (6th Cir. 2012) (quoting Grand Trunk W.
R.R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984)); see also Obergefell, 2013
WL 6726688, at *5. Plaintiffs are entitled to both permanent injunctive and declaratory relief.
IV. ARGUMENT

A. Ohio’s Marriage Bans Are Unconstitutional Under Windsor

This case follows a wave of recent court decisions holding that states violate the
Constitution when they refuse to allow or recognize marriages between same-sex couples. The
first such decision, and the most significant, was the Supreme Court ruling in U.S. v. Windsor,
133 S. Ct. 2675 (J une 26, 2013).
After Edith Windsor’s spouse Thea Spyer died, the federal government was required by
the federal DOMA statute not to respect her marriage for federal estate tax purposes. Windsor
paid the tax but challenged DOMA’s constitutionality. The Supreme Court held that the federal
government’s refusal to recognize the legal marriages of same-sex couples violated due process
and equal protection because it burdened “many aspects of married and family life, from the
mundane to the profound,” Id. at 2694, and because its “avowed purpose and practical effect”
were to treat those couples unequally, rather than to further a legitimate purpose. Id. at 2693.
Ohio’s marriage bans similarly burden the family lives of same-sex couples and treat them
unequally with no legitimate purpose.
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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 “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.
In a vigorous dissent, J ustice 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 marriages for same-sex couples. Id. at 2710. His
prediction has proved accurate.
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Since the Windsor decision,
7
federal district courts in Michigan, Texas, Illinois, Virginia,
Oklahoma, Utah, Idaho, Oregon, Pennsylvania, and Wisconsin have ruled state DOMA laws
unconstitutional and required those states to celebrate 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 anti-celebration provisions on equal protection grounds); De Leon v. Perry,
No. SA-13-CA-00982-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 anti-celebration 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. J an. 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); Latta v. Otter, No. 1:13-cv-00482-CWD, 2014 WL 1909999 (D. Idaho May
13, 2014); Geiger v. Kitzhaber, No. 6:13-cv-01834-MC, 2014 WL 2054264 (D. Or. May 19,
2014); Whitewood v. Wolf, No. 1:13-cv-1861, 2014 WL 2058105 (M.D. Pa. May 20, 2014); Wolf
v. Walker, No. 14-cv-64-bbc (W.D. Wisc. J une 6, 2014).
In Tennessee, Kentucky, Ohio, and Indiana, federal district courts have also found state
DOMA marriage recognition laws unconstitutional and required those states to recognize

7
This list is based on the decisions issued as of the date of this filing. Cases are pending in courts of appeal across
the country. The Sixth Circuit will hear oral argument on August 6, 2014 in all the pending same-sex marriage
cases within this circuit.
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13

marriages legally performed in other states. Henry v. Himes, __ F. Supp.2d. __ (S. D. OH 2014),
2014 WL 1418395 (April 14, 2014), (permanently enjoining enforcement of Ohio’s anti-
recognition provisions on its face 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 v. Wymyslo, 962 F. Supp.2d 968, 999-1000 (S.D. Ohio 2013)
(permanently enjoining as to plaintiffs enforcement of Ohio anti-recognition provisions, on due
process and equal protection grounds); Baskin v. Bogan, No. 1:14-cv-00355-RLY., 2014 WL
1814064 (S.D. Ind. May 8, 2014). See also the cases cited above from Texas, Virginia, Idaho,
Oregon, and Pennsylvania where same-sex marriage recognition was allowed in addition to
allowing marriage celebration.
Finally, state courts in Arkansas, New J ersey, and New Mexico have also struck down
bans on marriage for same-sex couples. Wright v. State, No. 60CV-13-2662 (Ark. Cir. Ct. 2nd
Div. May 15, 2014); Garden State Equality et al. v. Dow et al., 82 A.3d 336 (N.J Super. Ct. Law
Div. 2013); Griego v. Oliver, 316 P.3d 865 (N.M. 2013).
This collection of unanimous decisions from 17 states in the year since the Windsor
decision is not surprising. The judiciary has a long tradition of protecting individuals’ right to
marry the person of their choosing. Windsor itself was not groundbreaking; though it provided
an important guidepost for lower courts faced with plaintiffs who are in love and wish to marry,
but are prevented from doing so by discriminatory laws in obvious violation of fundamental
constitutional rights of due process and equal protection. The Plaintiffs before this Court are in
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14

love and want to get married. Windsor and its progeny and predecessors require that they be
granted that the right to marry
1. The marriage bans constitute “discrimination[] of an unusual character”
requiring “careful consideration” by the Court.

In Windsor, the Supreme Court reaffirmed that “[d]iscriminations of an unusual
character” require “careful consideration to determine whether they are obnoxious to the
constitutional provision” at issue. Windsor, 133 S. Ct. at 2692 (internal quotation marks
omitted). The unusual discrimination that triggered “careful consideration” in Windsor was
DOMA’s “depart[ure] from [Congress’s] history and tradition of reliance on state law to define
marriage.” Id. at 2692. But “careful consideration” is not limited to cases involving federalism
concerns. For example, in Romer v. Evans, 517 U.S. 620, 633 (1996), the Supreme Court held
that Colorado’s ban on nondiscrimination protections for gay people required “careful
consideration” because such a “disqualification of a class of persons from the right to seek
specific protection from the law is unprecedented in our jurisprudence.” And the Windsor court
found that where a “bare congressional desire to harm a politically unpopular group” motivated
the passage of a law, “careful consideration” of the law’s constitutionality is “especially
require[d].” 133 S.Ct at 2693.
This court already held in Obergefell that Ohio’s marriage bans dramatically depart from
Ohio’s longstanding practice of recognizing legal marriages from other jurisdictions even when
those marriages would not have been legal under Ohio law. Obergefell, 962 F. Supp. 2d 968,
983 (S.D. Ohio 2013). Likewise, Ohio’s ban on celebrating marriages between same-sex
couples departs from Ohio’s strong public policy in favor of marriage. Jordan v. Jordan, 689
N.E.2d 1005, 1007 (Ohio Ct. App. 1996).
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15

Over 100 years ago, the Ohio Supreme Court declared private contracts restraining the
right to marry “void, as being contrary to the public policy of the law.” King v. King, 63 Ohio
St. 363, 369 (1900). Ohio public policy favors “the union of two people in marriage,” for it “has
been the ultimate expression of commitment and love throughout this nation’s history and has
been the bedrock upon which our society has built and continues to build upon.” Jordan, 689
N.E.2d at 1007. Despite Ohio’s long-standing disfavor on restraints to marriage, in 2004 the
Ohio legislature amended Revised Code Section 3101 to prohibit marriages between same-sex
couples, declaring them “against the strong public policy of this state.” O.R.C. § 3101(C)(1).
That same year, Ohio voters duplicated the legislature’s efforts by passing a constitutional
amendment prohibiting same-sex couples from getting married. Ohio Const. art XV, § 11. Up
until those votes, the strong public policy of Ohio was to disfavor restraints on marriage. Ohio
statutes only banned marriages between minors and kin nearer than second cousins. O.R.C. §
3101(A). The Ohio Constitution had no mention of marriage. This abrupt departure from
Ohio’s long history of disfavoring restraints on marriage is “[d]iscrimination[] of an unusual
character,” and it requires “careful consideration.” Windsor, 133 S. Ct. at 2692 (Quoting Romer,
517 U.S. at 633).
8

2. The primary purpose and practical effect of Ohio’s marriage bans is to
disparage and demean same-sex couples and their families.

The record surrounding the passage of Ohio’s marriage bans, as well as the lack of any
rational basis for the bans (see Section E, below) leads to the inescapable conclusion that, just as
was true for DOMA, Ohio’s marriage bans were passed because of, not in spite of, the harm they

8
As discussed infra, the Ninth Circuit in SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014),
interpreted Windsor to require careful consideration as part of heightened scrutiny for all sexual-orientation
classifications. Regardless of whether Windsor applied careful consideration because DOMA was unusual or
because it classified based on sexual orientation, Ohio’s marriage recognition bans require careful consideration in
this case under either interpretation of Windsor.
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16

would inflict on same-sex couples. Windsor, 133 S. Ct. at 2694 (“The principal purpose [of
DOMA] is to impose inequality …”). The Sixth Circuit has also held that “the desire to
effectuate … animus against homosexuals can never be a legitimate governmental purpose, [and]
a state action based on that animus alone violates the Equal Protection Clause.” Stemler v. City
of Florence, 126 F.3d 856, 873-74 (6th Cir.1997).
The historical background of the marriage bans reflects a targeted attempt to exclude
same-sex couples, not a mere side-effect of some broader public policy. Cf. Windsor, 133 S. Ct.
at 2693 (examining historical context of DOMA). The marriage bans were not enacted at a time
when “many citizens had not even considered the possibility that two persons of the same sex
might aspire to occupy the same status and dignity as that of a man and woman in lawful
marriage.” Windsor, 133 S. Ct. at 2689. They were enacted as specific responses to
developments in other jurisdictions where same-sex couples sought the freedom to marry.
Becker Declaration (Doc. 14-1). At the time the marriage bans were enacted, Ohio law already
prevented same-sex couples from getting married. But this history of discrimination does not
save the marriage bans. Rather, their emphatic endorsement of the status quo perpetuated and
maintained unconstitutional discrimination. The Equal Protection Clause is violated when
government has “selected or reaffirmed a particular course of action” because of its negative
effects on an identifiable group. Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)
(emphasis added)). Even if the status quo was considered “neutral” - “actions neutral at their
inception may, of course, be perpetuated or maintained for discriminatory purposes, and that
perpetuation or maintenance itself may be found a constitutional violation.” Taylor v. Ouachita
Parish Sch. Bd., 648 F.2d 959, 966 (5th Cir. 1981).
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17

Moreover, the “sheer breadth” of Ohio’s marriage bans “is so discontinuous with the
reasons offered for it that” the exclusion of same-sex couples is “inexplicable by anything but
animus toward the class it affects.” Romer, 517 U.S. at 632. Ohio’s marriage bans did much
more than simply preserve the traditional definition of marriage. They included sweeping new
disabilities that prohibited same-sex couples from entering into any other legal relationship
similar to marriage. O.R.C. § 3101.01; Ohio Con. Art. XV, § 11. Though at the time Ohio law
clearly limited marriage to opposite-sex couples, the legislature and electorate acted anyway to
pass the bans. Becker Declaration (Doc. 14-1).
Finally, the inescapable “practical effect” of Ohio’s marriage bans is “to impose a
disadvantage, a separate status, and so a stigma upon” same-sex couples. Windsor, 133 S. Ct at
2693. The marriage bans collectively “diminish[] the stability and predictability of basic
personal relations” of gay people and “demean[] the couple, whose moral and sexual choices the
Constitution protects.” Id. at 2694. That official statement of inequality “in and of itself is an
invitation to subject homosexual persons to discrimination both in the public and in the private
spheres.” Lawrence v. Texas, 539 U.S. 558 (2003) at 575. But “[a] State cannot so deem a class
of persons a stranger to its laws.” Romer, 517 U.S. at 635.
Even if it were possible to hypothesize a rational connection between Ohio’s marriage
bans and some legitimate governmental interest—and there is none, see Section E, below—no
hypothetical justification can overcome the unmistakable primary purpose and practical effect of
the marriage bans to disparage and demean the dignity of same-sex couples in the eyes of the
State and the wider community.


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3. The state regulation of marriage is subject to constitutional limits and the
central rationale of Windsor applies here.

Attempts to minimize Windsor’s impact are unavailing. While States do have
considerable freedom to define marriage, the Windsor Court repeatedly noted that those laws are
subject to constitutional limits and “must respect the constitutional rights of persons.” Windsor,
133 S. Ct. at 2691 (citing Loving v. Virginia, 388 U.S. 1 (1967)). Indeed, as J ustice Scalia noted
in dissent, the Windsor majority “formally disclaimed reliance upon principles of federalism.”
Id. at 2705 (Scalia, J ., dissenting). Respect for federalism does not come at the cost of
sacrificing the constitutional rights of individuals. Cf. Loving, 388 U.S. at 12 (“Under our
Constitution, the freedom to marry or not marry, a person of another race resides with the
individual and cannot be infringed by the State.”). Ohio’s broad authority over domestic
relations law does not include the power to infringe upon Plaintiffs’ federal constitutional rights.
While Windsor’s central holding concerned marriage recognition, its central rationale
was that DOMA was motivated by a bare desire to harm. See Id. at 2709 (Scalia, J ., dissenting).
While the ultimate holding of the Court is distinguisable from this case, its rationale is
inescapable. Ohio’s bans on celebrating marriages between same-sex couples were not
motivated or enacted for different reasons than its bans on recognizing marriages from other
states. Both are attributable to a bare desire to harm. As J ustice Scalia presciently predicted, the
“state law shoe [has] dropped,” and Ohio’s marriage bans simply cannot survive constitutional
review after Windsor. Id. at 2705, 2709 (Scalia, J ., dissenting).
B. Ohio’s Marriage Bans Are Subject To Heightened Scrutiny Under Both The Due
Process And Equal Protection Clauses Because They Infringe Upon Plaintiffs’
Fundamental Right To Marry

“While states have a legitimate interest in regulating and promoting marriage, the
fundamental right to marry belongs to the individual.” Henry v. Himes, No. 1:14-CV-129, 2014
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19

WL 1418395 *7 (S.D. Ohio Apr. 14, 2014). As the Court held in Loving, 388 U.S. at 12, “[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.” By denying the Plaintiffs the ability to get married,
the Ohio marriage bans infringe Plaintiffs’ fundamental right to marry and are therefore subject
to heightened scrutiny.
The marriage bans implicate the fundamental right to marry—and not, as opponents have
attempted to reframe the issue, a “right to same sex marriage.” Same-sex couples in Ohio and
elsewhere do not seek a new right to “same-sex marriage.” Instead, they seek the same freedom
to marry that courts have recognized and protected for decades.
Reframing the right at stake in this case as the right to “same-sex marriage” would repeat
the error committed in Bowers v. Hardwick, 478 U.S. 186 (1986) at 190. where the right at issue
was characterized as the “fundamental right [for] homosexuals to engage in sodomy.” The
Lawrence Court, in overruling Bowers, specifically criticized the framing of the issue by the
Bowers Court as “fail[ing] to appreciate the extent of the liberty at stake.” Lawrence, 539 U.S. at
567. As J ustice Kennedy explained, “our laws and tradition afford constitutional protection to
personal decisions relating to marriage, procreation, contraception, family relationships, child
rearing, and education” and “[p]ersons in a homosexual relationship may seek autonomy for
these purposes, just as heterosexual persons do.” Id. at 574.
To be sure, same-sex couples have until recently been denied the freedom to marry, but
the State cannot deny fundamental rights to certain groups simply because it has done so in the
past. “Our Nation's history, legal traditions, and practices” help courts identify what
fundamental rights the Constitution protects but not who may exercise those rights. Washington
v. Glucksberg, 521 U.S. 702, 721 (1997). “[F]undamental rights, once recognized, cannot be
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20

denied to particular groups on the ground that these groups have historically been denied those
rights.” In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008)(quotation marks omitted; bracket
in original). When individuals have been denied their fundamental right to marry, the Supreme
Court has repeatedly come to their defense. See e.g. Loving v. Virginia, 388 U.S. 1, 12 (1967);
(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). Time
and again, the Court has defended the right of individuals to enter into 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 Supreme 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
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21

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 through marriage and no social cause, political agenda, or popular vote can
trump their constitutional right to do so.
Thus, the fundamental right to marry remains the same regardless of who exercises it.
This case is no more about a “new” right to “same-sex marriage” than Loving was about a “new”
right to “interracial marriage.” There is only one form of “marriage,” and “the fundamental right
to marry is available even to those who have not traditionally been eligible to exercise that
right.” Henry, No. 1:14-CV-129 at *8.
C. Ohio’s Marriage Bans Are Subject To Heightened Scrutiny Because They Deny
Equal Protection Based On Sexual Orientation

This Court should follow the decisions in Obergefell and Henry, and join the Second and
Ninth Circuits in holding that sexual-orientation classifications are not presumed to be
constitutional and must be subjected to heightened scrutiny under the Equal Protection clause.
Windsor v. United States, 699 F.3d 169, 181-85 (2012); SmithKline Beecham Corp. v. Abbott
Labs., 740 F.3d 471, 484 (9th Cir. 2014). When the government classifies people based on their
sexual orientation, it should bear the burden of proving the statute’s constitutionality, and it
should be required to do so by showing, at a minimum, that the sexual-orientation classification
is closely related to an important governmental interest. Cf. United States v. Virginia, 518 U.S.
515, 532-33 (1996)(sex discrimination).
1. The level of scrutiny for sexual-orientation classifications is an open question
in this Circuit.

The proper level of scrutiny for sexual-orientation classifications is an open question in
the Sixth Circuit. Relying directly or indirectly on Bowers, and/or asserting dicta, the Sixth
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22

Circuit has applied rational-basis review to sexual orientation discrimination claims prior to
Windsor. See Equality Found. of Greater Cincinnati, Inc. v. City of Cincinnati (“Equality
Foundation II”), 128 F.3d 289, 292-93 (6th Cir. 1997) ; Scarbrough v. Morgan Cnty. Bd. of
Educ., 470 F.3d 250, 261 (6th Cir. 2006) (relying on Equality Foundation II). But like every
other Circuit to address the issue before Lawrence, in Equality Foundation II, the Sixth Circuit
reasoned that, because the government could constitutionally criminalize private, consensual sex
between gay people under Bowers, sexual orientation could not be considered a suspect or quasi-
suspect classification for equal protection.
In 2003, the Supreme Court overruled Bowers and emphatically declared that it “was not
correct when it was decided, and it is not correct today.” Lawrence, 539 U.S. at 578. The
Obergefell Court properly held that by overruling Bowers, the Supreme Court necessarily
abrogated Equality Foundation II and other decisions that relied on Bowers to foreclose
heightened scrutiny for sexual-orientation classifications. Obergefell, 962 F. Supp.2d at 986-7;
see also Pedersen v. Office of Pers. Mgmt., 881 F. Supp. 2d 294, 312 (D. Conn. 2012); Golinski
v. Office of Pers. Mgmt., 824 F. Supp. 2d 968, 984 (N.D.Cal. 2012).
Since Lawrence, the Sixth Circuit has only twice confronted sexual orientation equal
protection claims and, in dicta, citing back to Equality Foundation, has noted that sexual
orientation receives rational-basis review in this Circuit. Davis v. Prison Health Servs., 679 F.3d
433, 438 (2012); Scarbrough, 470 F.3d at 261. Because the only post-Lawrence Sixth Circuit
cases to consider the level of scrutiny for classifications based on sexual orientation have done so
in dicta and have followed Equality Foundation II, which cannot be reconciled with Lawrence,
this Court may apply a heightened scrutiny level of review for sexual-orientation classifications.
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23

The Supreme Court’s holding in Windsor provides another intervening jurisprudential
reason for this Court not to follow Equality Foundation II and its progeny. The Ninth Circuit has
held that “Windsor requires that heightened scrutiny be applied to equal protection claims
involving sexual orientation” SmithKline, 740 F.3d at 481. SmithKline held that under Windsor,
the Court “must examine [the classification’s] actual purposes and carefully consider the
resulting inequality to ensure that our most fundamental institutions neither send nor reinforce
messages of stigma or second-class status.” Id. at 483.
When Sixth Circuit precedent is “inconsistent” with later Supreme Court precedent, the
older Sixth Circuit precedent no longer should be followed. See, e.g., Rutherford v. Columbia
Gas, 575 F.3d 616, 619 (6th Cir. 2009) (prior panel decision “remains controlling authority
unless an inconsistent decision of the United States Supreme Court requires modification of the
decision or this Court sitting en banc overrules the prior decision.”) (emphasis added) (internal
quotation marks and citations omitted); Sierra Club v. Korleski, 681 F.3d 342, 352 (6th Cir.
2012) (same). Given the Supreme Court’s inconsistent holdings in Lawrence and Windsor,
Equality Foundation II is no longer the law of the Circuit.
2. Sexual-orientation classifications require heightened scrutiny under the
traditional criteria examined by the Supreme Court.

The Supreme Court uses the following factors to determine whether a classification
triggers heightened scrutiny:
A) whether the class has been historically “subjected to
discrimination,”[ ] B) whether the class has a defining
characteristic that “frequently bears [a] relation to ability to
perform or contribute to society,”[ ] C) whether the class exhibits
“obvious, immutable, or distinguishing characteristics that define
them as a discrete group;”[ ] and D) whether the class is “a
minority or politically powerless.”

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24

Windsor, 699 F.3d at 181 (internal quotation marks and citations omitted). Of these
considerations, the first two are the most important. See id. (“Immutability and lack of political
power are not strictly necessary factors to identify a suspect class.”). Citing to the robust
uncontested factual record, including expert reports addressing each criterion,
9
the Obergefell
Court held that any faithful application of those factors leads to the inescapable conclusion that
sexual-orientation classifications must be recognized as suspect or quasi-suspect and subjected to
heightened scrutiny. 962 F. Supp2d at 987. Since the same factual record exists in this case
(Doc. 14-1 and 15-1 through 15-6), this Court should follow the holding in Obergefell.
Sexual orientation easily fits all four factors. See, e.g., Pedersen, 881 F. Supp. 2d at 310-
33; Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 425-31 (Conn. 2008). First, “[t]he
history of discrimination against gay and lesbian individuals has been both severe and
pervasive.” Obergefell, 962 F. Supp.2d at 987 (Citing expert reports of Chauncey (Doc. 15-1
and Becker Doc. 14-1). See also Windsor, 699 F.3d at 182 (“It is easy to conclude that
homosexuals have suffered a history of discrimination. Windsor and several amici labor to
establish and document this history, but we think it is not much in debate.”).
Second, sexual orientation bears no relation to ability to perform or contribute to society.
Obergefell, 962 F. Supp.2d at 988-9 (“sexual orientation is akin to race, gender, alienage, and
national origin, all of which ‘are so seldom relevant to the achievement of any legitimate state
interest that laws grounded in such considerations are deemed to reflect prejudice and
antipathy.’”) (citing expert report of Peplau (Doc. 15-5) and City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 440 (1985)). Though some have argued that sexual orientation is relevant to
the ability to contribute to society because the two people in a same-sex couple cannot

9
The same expert reports are filed in this case as Doc. 14-1 and 15-1 through 15-6.
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25

accidentally procreate, that argument misunderstands the proper inquiry. See Windsor, 699 F.3d
at 182-83 (rejecting a similar argument). The relevant question for heightened scrutiny is
whether, as a general matter, a classification usually bears on a person’s ability to contribute to
society – not whether a classification is always irrelevant in all contexts. Cleburne, 473 U.S. at
446 (the Court “should look to the likelihood that governmental action premised on a particular
classification is valid as a general matter, not merely to the specifics of the case before us;” the
proper question is whether a characteristic is one that “the government may legitimately take into
account in a wide range of decisions.”).
Third, sexual orientation is an “obvious, immutable, or distinguishing” aspect of personal
identity that a person cannot – and should not – be required to change in order to escape
discrimination. Obergefell, 962 F. Supp.2d at 990-91. The Obergefell Court, relying on the
report of expert Anne Peplau (Doc. 15-5), properly held that, “[u]nder any definition of
immutability, sexual orientation clearly qualifies.” Id. at 991; see Windsor, 699 F.3d at 183.
Fourth, “[a]s political power has been defined by the Supreme Court for purposes of
heightened scrutiny analysis, gay people do not have it.” Obergefell, 962 F. Supp.2d at 990.
While gay people have secured some limited advances recently, they pale in comparison to the
political progress of women at the time sex was recognized as a quasi-suspect classification. Id.
There is still no express federal ban on sexual orientation discrimination in employment,
housing, or public accommodations, and twenty-nine states, including Ohio, have no such
protections either. Id. at 989 (citing Becker Report (Doc. 14-1)); see also Pedersen, 881 F. Supp.
2d at 326-27 and Sequra Report (Doc. 15-6). Notably, gay people have also been particularly
vulnerable to discriminatory ballot initiatives, like Ohio’s marriage amendment, that seek to roll
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26

back protections they have secured in the legislature or prevent such protections from ever being
extended. Griego v. Oliver, 316 P.3d 865, 883 (N.M. 2013).
In short, sexual-orientation classifications demand heightened scrutiny under not just the
two critical factors, but under all four factors that the Supreme Court has used to identify
classifications warranting heightened scrutiny review.
D. Ohio’s Marriage Bans Are Subject To Heightened Scrutiny Because They Deny
Equal Protection Based On Sex

“‘[A]ll gender-based classifications today’ warrant ‘heightened scrutiny.’” Virginia, 518
U.S. at 518 (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994))(denying women
access to Virginia Military Institute violates equal protection). There can be no doubt that
Ohio’s marriage bans contain explicit gender classifications: a person’s marriage will be
allowed only if her sex and her spouse’s sex are different. Like any other sex classification, the
marriage bans must be tested through the framework of heightened scrutiny. Cf. Califano v.
Webster, 430 U.S. 313 (1977) (per curiam) (upholding sex-based classification in social security
benefit formula, but only after subjecting it to heightened scrutiny).
So far the State has not contested that the marriage bans discriminate on the basis of sex.
In other cases, supporters of marriage bans have argued that the sex-based classifications in the
marriage bans do not trigger heightened scrutiny because they are not designed to denigrate
members of either sex or deny opportunity to men or women. But heightened scrutiny applies to
all explicit sex-based classifications regardless of whether those classifications have a purpose to
denigrate or deny opportunity. Frontiero v. Richardson, 411 U.S. 677, 688 (1973)
(“classifications based upon sex … are inherently suspect, and must therefore be subjected to
strict judicial scrutiny”).
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27

Similarly, Ohio’s marriage bans are no less invidious because they equally deny men and
women the right to marry, under Ohio law, a person of the same sex. In Loving, 388 U.S. at 8,
the Supreme Court rejected “the notion that the mere ‘equal application’ of a statute containing
racial classifications is enough to remove the classifications from the Fourteenth Amendment’s
proscription of all invidious racial discriminations.” “Applying the same logic” used in Loving,
“the fact of equal application to both men and women does not immunize [Ohio’s marriage bans]
from the heightened burden of justification that the Fourteenth Amendment requires of state laws
drawn according to sex.” Kitchen, 961 F. Supp. 2d at 1206.
10

Ohio’s marriage bans are also based on sex stereotypes about the proper parenting roles
for men and women. Supporters of the marriage bans have argued that the bans advance the
State’s interest in ensuring “gender differentiated parenting” in which men and women each
make “distinct” parenting contributions. See e.g., Amicus Brief of Citizens for Community
Values, Obergefell v. Himes, COA No. 14-3057 at 21-22. But the Supreme Court has long
rejected the notion of “any universal difference between maternal and paternal relations at every
phase of a child’s development.” Caban v. Mohammed, 441 U.S. 380, 389 (1979); Nevada
Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003)(rejecting “[s]tereotypes about women’s
domestic roles” and “parallel stereotypes presuming a lack of domestic responsibilities for
men”).
Because Ohio’s marriage bans explicitly classify based on sex, they must – like all other
laws containing explicit sex classifications – be tested within the heightened scrutiny framework.



10
The anti-miscegenation law in Loving also applied unequally to protect the racial “integrity” of white people but
no other racial groups. But the Court made clear that the racial classifications were unconstitutional “even assuming
an even-handed state purpose to protect the ‘integrity’ of all races.” Loving, 388 U.S. at 11 n.11.
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28

E. Ohio’s Marriage Bans Are Unconstitutional Under Any Standard Of Review

If the requisite heightened scrutiny is applied, the State cannot carry its burden to
demonstrate how excluding same-sex couples from marriage is at least closely related to an
important governmental interest. Nor can the State explain, under the “careful consideration”
required by Windsor, how any legitimate interest overcomes the primary purpose and practical
effect of the marriage bans to demean Plaintiffs and other married same-sex couples.
11
Even
under rational basis review - the most deferential standard - the marriage bans violate the Equal
Protection Clause. Indeed, the arguments in defense of Ohio’s marriage bans have “failed
rational basis review in every court to consider them post-Windsor.” Bourke, 2014 WL 556729,
at *8.
12

1. Under rational-basis review, excluding same-sex couples from marriage must
have a rational relationship to a legitimate governmental purpose.

“[E]ven in the ordinary equal protection case calling for the most deferential of standards,
[the Court] insist[s] on knowing the relation between the classification adopted and the object to
be attained.” Romer, 517 U.S. at 632. It is this “search for the link between classification and
objective” that “gives substance to the Equal Protection Clause.” Id. “[R]equiring that the
classification bear a rational relationship to an independent and legitimate legislative end …

11
Though here it is clear that the primary purpose and practice effect of the marriage recognition bans is to demean
same-sex couples, see, Section A 2, supra, the Court need not find animus to strike down the bans under rational-
basis review. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000) (allegations of irrational discrimination
“quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal
protection analysis”); Davis, 679 F.3d at 438) (“demonstrating that the challenged government action was motivated
by animus or ill-will” is one, but not the exclusive, way of showing that government lacks a rational basis for its
action.).
12
Though the Equality Foundation II Court held that the repeal of sexual orientation-based protections from
employment and housing discrimination was rationally related to a legitimate interest in cost savings, 126 F.3d at
299, no such rationale could survive here after Windsor. In defense of DOMA, The Bipartisan Legal Advisory
Group (BLAG) asserted the same alleged interest in conserving resources, Merits Brief of Bipartisan Legal
Advisory Group of the U.S. House of Representatives, United States v. Windsor, 133 S. Ct. 2675 (2013) (No. 12-
307), 2013 WL 267026, at *37, but the Supreme Court held that “no legitimate purpose” could justify the inequality
and stigma that DOMA imposed on same-sex couples and their families. 133 S. Ct. at 2696.
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29

ensure[s] that classifications are not drawn for the purpose of disadvantaging the group burdened
by the law.” Id. at 633; accord Cleburne, 473 U.S. at 450; U.S. Dep’t of Agric. v. Moreno, 413
U.S. 528, 534 (1973).
The Supreme Court has sometimes described this impermissible purpose as “animus” or a
“bare … desire to harm a politically unpopular group.” Windsor, 133 S. Ct. at 2693; Romer, 517
U.S. at 634; Cleburne, 473 U.S. at 447; Moreno, 413 U.S. at 534. But an impermissible motive
does not always reflect “malicious ill will.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S.
356, 375 (2001) (Kennedy, J ., concurring). It can also take the form of “moral disapproval,”
Lawrence, 539 U.S. at 582 (O’Connor, J ., concurring), “negative attitudes,” Cleburne, 473 U.S.
at 448, “fear,” id., “irrational prejudice,” id. at 450, “simple want of careful, rational reflection,”
Garrett, 531 U.S. at 374 (Kennedy, J ., concurring), or “some instinctive mechanism to guard
against people who appear to be different in some respects from ourselves.” Id.
In addition, even when the government offers an ostensibly legitimate purpose, the court
must also examine the law’s connection to that purpose to assess whether it is too “attenuated” to
rationally advance the asserted governmental interest. Cleburne, 473 U.S. at 446; see, e.g.,
Moreno, 413 U.S. at 535-36 (invalidating law on rational-basis review because “even if we were
to accept as rational the Government’s wholly unsubstantiated assumptions concerning [hippies]
… we still could not agree with the Government’s conclusion that the denial of essential federal
food assistance … constitutes a rational effort to deal with these concerns”); Eisenstadt v. Baird,
405 U.S. 438, 448 (1972) (invalidating law on rational-basis review because, even if deterring
premarital sex is a legitimate governmental interest, “the effect of the ban on distribution of
contraceptives to unmarried persons has at best a marginal relation to the proffered objective”).
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30

This search for a meaningful connection between a classification and the asserted governmental
interest also provides an additional safeguard against intentional discrimination.
The rationales that have been offered in support of the marriage bans boil down to four
arguments: 1) the bans are rationally related to a state interest in proceeding with caution and
preserving the will of Ohio legislators and voters; 2) the bans are rationally related to an interest
in uniformity; 3) the bans are rationally related to a state interest in preserving tradition; 4)
Section 2 of DOMA provides a rational basis for the bans; 5) the bans are justified by a state
interest in channeling the procreative potential of heterosexual couples into marriage; and 6) they
are justified by a state interest in “optimal” childrearing. Regardless of the level of scrutiny
applied, none of the proffered rationales for Ohio’s marriage bans can withstand constitutional
review.
2. Ohio’s marriage bans cannot be justified by an asserted interested in
proceeding cautiously.

Proceeding “cautiously” by continuing to deny equal treatment to an unpopular group is
not a legitimate state interest. See Pedersen, 881 F. Supp. 2d at 345–46 (“Categorizing a group
of individuals as a ‘vast untested social experiment’ … to justify their exclusion, … until long-
term evidence is available to establish that such a group will not have a harmful effect upon
society is a rationale, which, … would eviscerate the doctrine of equal protection by permitting
discrimination until equal treatment is proven, by some unknown metric, to be warranted.”); see
also Golinski, 824 F. Supp. 2d at 1001. If “caution” and “deliberation” alone could justify
discrimination, the development of civil rights for unpopular groups would be perpetually
thwarted, and rational-basis review would mean no judicial review at all.
Even if proceeding cautiously were a legitimate interest, the State’s marriage bans do not
rationally advance that interest. Ohio’s constitutional amendment adopted an absolute ban,
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31

unlimited in time, that erected a fundamental barrier to adoption of a different policy. By
enshrining the marriage ban in the State Constitution, the voters did not pause and enact a time-
specific moratorium to allow more study, but rather ensured a blunt, definitive prohibition that
could not be changed without “enlisting the citizenry of [Ohio] to amend the State Constitution,”
yet again. Romer, 517 U.S. at 631. Given the terms of the amendment itself, it is not credible
that the State was seeking solely to be “cautious.” Romer, 517 U.S. at 635.
The related rationale of protecting Ohio voters and lawmakers from judicial intrusion is
inconsistent with the entire constitutional system. “The doctrine of judicial review, a bedrock
principle of our system of government, unequivocally empowers and obligates the federal
judiciary to scrutinize the constitutionality of legislative action.” Pedersen, 881 F. Supp. 2d at
344 (citing Marbury v. Madison, 5 U.S. 137 (1803)). “The irreplaceable value of the power
articulated by Mr. Chief J ustice Marshall [in Marbury,],” the Pedersen Court noted, “lies in the
protection it has afforded the constitutional rights and liberties of individual citizens and
minority groups against oppressive or discriminatory government action.” Id. (citing United
States v. Richardson, 418 U.S. 166, 192 (1974)).
The need for judicial review is equally, if not more pressing, in the context of voter
initiatives. Cf. Romer, 517 U.S. 620 (striking down voter-initiated constitutional “Amendment
2” in Colorado banning any legislative, executive or judicial action protecting individuals based
on sexual orientation); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 471 (1982) (striking
down voter-initiated school re-districting law). “‘It is government's duty under our
constitutional design…to ‘safeguard against the tyranny of [majoritarian] passions’ … [and] the
need for judicial independence is the greatest when constitutional impairments are ‘instigated by
the major voice of the community.’” Jones v. Bates, 127 F.3d 839 (9th Cir. 1997)(citing
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32

Federalist Papers), rev’d on other grounds sub nom. Bates v. Jones, 131 F.3d 843 (9th Cir.
1997).
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 discrimination, the law’s “popular origin
… does nothing to insulate the provision from constitutional scrutiny.” Debore, 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.
3. Ohio’s marriage bans cannot be justified by an asserted interest in
preserving traditional discrimination.

“Tradition,” by itself, does not constitute “an independent and legitimate legislative end”
for purposes of rational-basis review. Romer, 517 U.S. at 633. “[T]he government must have an
interest separate and apart from the fact of tradition itself.” Golinski, 824 F. Supp. 2d at 993.
“Ancient lineage of a legal concept does not give it immunity from attack for lacking a
rational basis.” Heller v. Doe by Doe, 509 U.S. 312, 326 (1993). The Supreme Court has on
many occasions struck down discriminatory practices that had existed for years without raising
any constitutional concerns. “Many of ‘our people’s traditions,’ such as de jure segregation and
the total exclusion of women from juries, are now unconstitutional even though they once
coexisted with the Equal Protection Clause.” J.E.B., 511 U.S. at 142 n.15 (citation omitted); see
also id (“We do not dispute that this Court long has tolerated the discriminatory use of
peremptory challenges, but this is not a reason to continue to do so.”); Virginia, 518 U.S. at 557
(“A prime part of the history of our Constitution … is the story of the extension of constitutional
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33

rights and protections to people once ignored or excluded.”); Windsor, 133 S. Ct. at 2689 (As we
have gained “new perspective, a new insight” about same-sex couples and their families, we can
now see “[t]he limitation of lawful marriage to heterosexual couples, which for centuries had
been deemed both necessary and fundamental… as an unjust exclusion.”). Acknowledging that
changed understanding does not mean that people in past generations were irrational or bigoted.
It simply acknowledges that “times can blind us to certain truths and later generations can see
that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S.
at 579.
Ultimately, “‘preserving the traditional institution of marriage’ is just a kinder way of
describing the [s]tate’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601
(Scalia, J ., dissenting) (emphasis in original). That intent to discriminate is not a rational basis
for perpetuating discrimination. See, e.g., Romer, 517 U.S. at 633; Moreno, 413 U.S. at 534.
4. The marriage bans cannot be justified by an asserted interest in channeling
the procreative potential of heterosexual couples into marriage.

The argument that the marriage bans can be justified by the State’s interest in
“channel[ing] potentially procreative conduct into stable, enduring relationships” (hereafter
“responsible procreation”) is without merit. Amicus Brief of Citizens for Community Values,
Obergefell v. Himes, COA No. 14-3057 at 15. The “responsible procreation” interest advanced
here has already been rejected by the Supreme Court. BLAG, defending DOMA in Windsor,
asserted the same purported governmental interest in responsible procreation, Merits Brief of
Bipartisan Legal Advisory Group of the U.S. House of Representatives, United States v.
Windsor, 133 S. Ct. 2675 (2013) (No. 12-307), 2013 WL 267026, at *21, and the Supreme Court
necessarily rejected that argument when it held that “no legitimate purpose” could justify the
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34

inequality and stigma that DOMA imposed on same-sex couples and their families. 133 S. Ct. at
2696.
The Equal Protection Clause prohibits “irrational line drawing.” BellSouth
Telecommunications, Inc. v. Farris, 542 F.3d 499, 505 (6th Cir. 2008). When the government
draws a line between two groups, it must “come forward with a legitimate reason justifying the
line it has drawn.” Smith Setzer & Sons, 20 F.3d 1311, 1321 (4th Cir. 1994); see Hooper v.
Bernalillo Cnty. Assessor, 472 U.S. 612, 618 (1985). The argument that the marriage bans are
justified by the State’s interest in channeling potentially procreative “man-woman” couples into
marriage explains neither why Ohio refuses to allow same-sex couples who have procreated to
marry nor why it does allow marriages of different-sex couples who cannot procreate. If the
government’s interest is ensuring that children be raised by two married parents, that interest
applies equally to the children of same-sex couples. And, even if it made sense to describe the
state interest underlying marriage laws as addressing only the problem of unplanned
pregnancies, this argument does not explain why Ohio allows marriages of all adult couples,
including obviously infertile different-sex couples, but not same-sex couples. Nor does it
explain how banning marriages between same-sex couples induces “man-woman” couples to
procreate responsibly.
Supporters of the marriage bans have argued that under Johnson v. Robison, 415 U.S.
361, 378 (1974), “a classification will be upheld if ‘characteristics peculiar to only one group
rationally explain the statute’s different treatment of the two groups’” but fail to meet the very
standard that they invoke. Amicus Brief of Citizens for Community Values, Obergefell v.
Himes, COA No. 14-3057 at 24-25. This argument, however, fails to identify a “characteristic
peculiar” to the favored group that “rationally explains the [law’s] different treatment of the two
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35

groups.” Id. If the goal is to persuade couples to marry before or after they conceive a child, the
reason has to be that children do better when raised in a family with two parents. But that
interest is just as applicable to the children of same-sex couples. Here, same-sex couples and
their children will benefit as much from being married in Ohio as different-sex couples and their
children do. Thus, the “addition” of married same-sex couples advances the interest in ensuring
that children are raised by two parents. Johnson, 415 U.S. at 38.
Finally, Ohio’s decision not to allow same-sex couples to marry does not logically induce
straight couples to marry, to have children, or to have children within marriage. Where there is
no logical connection between the classification and the asserted purpose, the law violates equal
protection. Hooper, 472 U.S. at 618; see also, Bishop, 962 F. Supp. 2d at 1291 (“Marriage is
incentivized for naturally procreative couples to precisely the same extent regardless of whether
same-sex couples (or other non-procreative couples) are included.”)
5. Ohio’s marriage bans cannot be justified by an asserted interest in “optimal”
childrearing.

Ohio’s marriage bans do not advance an interest in “optimal parenting.” Rather than
promoting an “optimal” environment for children, the “only effect the bans have on children’s
well-being is harming the children of same-sex couples who are denied the protection and
stability of having parents who are legally married.” Obergefell, 962 F. Supp.2d at 995.
Refusing to allow same-sex couples to marry has no rational connection – or any connection – to
the asserted goal of fostering a purportedly “optimal” parenting environment for the children of
heterosexual couples. “Indeed, J ustice Kennedy explained [in Windsor] that it was the
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36

government’s failure to recognize same-sex marriages that harmed children, not having married
parents who happened to be of the same sex.” Bourke, 2014 WL 556729, at *8.
13

In addition to failing rational-basis review as a matter of logic, the underlying premise
that same-sex couples are less “optimal” parents than different-sex couples has been rejected by
every major professional organization dedicated to children’s health and welfare. Many courts
have concluded that “[t]he overwhelming scientific consensus, based on decades of peer-
reviewed scientific research, shows unequivocally that children raised by same-sex couples are
just as well adjusted as those raised by heterosexual couples.” Obergefell, 962 F. Supp.2d at 994
fn. 20; Bostic, 2014 WL 561978, at *18 (“Gay and lesbian couples are as capable as other
couples of raising well-adjusted children…In the field of developmental psychology, ‘the
research supporting this conclusion is accepted beyond serious debate.’”); DeBoer, 2014 WL
1100794, at *10 (reaching same conclusion after bench trial and concluding that authors of
leading studies suggesting otherwise “clearly represent a fringe viewpoint that is rejected by the
vast majority of their colleagues”).
The Supreme Court’s summary dismissal, more than forty years ago, of the appeal in
Baker v. Nelson, 409 U.S. 810 (1972), for want of a substantial federal question, does not control
this case. Every court to have considered such bans after Windsor has not only determined that
it could reach the merits notwithstanding Baker, but has concluded that the marriage recognition
bans at issue violate the Federal Constitution. See, e.g., Bostic, 2014 WL 561978, at *10;
Bourke, 2014 WL 556729, at *1; Kitchen, 961 F. Supp. 2d at 1194-95. The State may argue that

13
To the extent that Ohio’s marriage bans visit these harms on children as a way to attempt (albeit irrationally) to
deter other same-sex couples from having children, the Supreme Court has invalidated similar attempts to
incentivize parents by punishing children as “‘illogical and unjust.’” Plyler v. Doe, 457 U.S. 202, 220 (1982)
(quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175 (1972)). “‘Obviously, no child is responsible for his
birth and penalizing the … child is an ineffectual—as well as unjust—way of deterring the parent.’” Id. (quoting
Weber, 406 U.S. at 175).
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37

lower courts must follow Baker until the Supreme Court explicitly overrules it. But that rule does
not apply to summary dismissals like Baker, which “have considerably less precedential value
than an opinion on the merits.” Ill. State Bd. of Elec. v. Socialist Workers Party, 440 U.S. 173,
180-81 (1979). Instead, the Supreme Court has cautioned that, “when doctrinal developments
indicate otherwise,” courts should not “adhere to the view that if the Court has branded a
question as unsubstantial, it remains so[.]” Hicks v. Miranda, 422 U.S. 332, 344 (1975)(internal
citations omitted). That admonition should be heeded in this case. Doctrinal developments by
the Supreme Court in application of the Equal Protection and Due Process Clauses require that
Baker no longer have precedential effect.
“In the forty years after Baker, there have been manifold changes in the Supreme Court’s
equal protection jurisprudence.” Windsor, 699 F.3d at 178-79. When Baker was decided, the
Supreme Court had not yet recognized an intermediate level of heightened equal protection
scrutiny or applied such scrutiny to laws that discriminate based on gender or so-called
“illegitimacy.” See Craig v. Boren, 429 U.S. 190, 197 (1976) (striking down gender-based
classification under intermediate scrutiny); Mathews v. Lucas, 427 U.S. 495, 510 (1976) (striking
down law that discriminated against children born outside of marriage under intermediate
scrutiny). It had not yet struck down laws that target gay and lesbian people, see Romer, 517
U.S. at 635, or invalidated a law enacted in order to treat same-sex couples unequally, see
Windsor, 133 S. Ct. at 2693. Certainly the Court had not yet considered a case involving same-
sex couples who are legally married, or held that laws must treat those couples and their children
with “equal dignity.” Id.
In light of these developments, this court should follow every other court post-Windsor in
concluding that Baker does not control challenges to state laws barring a state from allowing
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38

marriages of same-sex couples and address the significant constitutional questions presented
here.
V. CONCLUSION
This Court should issue a declaration that Ohio Const. Art. XV, § 11 and O.R.C. §
3101.01(C), and any other provisions of the Ohio Revised Code that may be relied on to deny
same-sex couples the right to marry, violate rights secured by the Fourteenth Amendment to the
United States Constitution in that same-sex couples who wish to marry and to enjoy the rights,
protections and benefits of marriage provided to opposite-sex married couples under Ohio law,
are denied their fundamental right to marry without due process of law and their right to equal
protection.
This Court should further issue a permanent injunction prohibiting the Defendants and
their officers and agents from (a) enforcing the marriage bans, and (b) denying same-sex couples
who choose to marry any and all of the rights, protections, and benefits of marriage provided
under Ohio law.
Finally, the injunctive relief should include but not be limited to requiring Defendants to
accept the applications of the Plaintiffs for marriage licenses, issue marriage licenses to the
Plaintiffs, and record the Plaintiffs’ duly solemnized marriage certificates.
Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 47 of 48 PAGEID #: 610
39

Respectfully submitted,

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

/s/ J ennifer L. Branch
J ennifer L. Branch #0038893
Trial Attorney for Plaintiffs
Alphonse A. Gerhardstein #0032053
J acklyn 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
jbranch@gbfirm.com
agerhardstein@gbfirm.com
jgmartin@gbfirm.com
Attorneys for Plaintiffs



CERTIFICATE OF SERVICE

I hereby certify that on J une 19, 2014, 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/J ennifer L. Branch
Trial Attorney for Plaintiffs



Case: 1:14-cv-00347-MRB Doc #: 17 Filed: 06/19/14 Page: 48 of 48 PAGEID #: 611